Death and Divorce

Several years back I was retained by a very kind woman for the purpose of obtaining a divorce from her husband.   My client and her husband owned their residence as joint tenants, meaning the survivor of the two would receive 100% of the property.

Under current California law if either spouse dies before the divorce is final, and they owned property as joint tenants, and there was no settlement agreement, the survivor takes everything.  Most people agree this isn’t right, but that’s the law.

Fearful her husband would have someone try to hurt or kill her, my client instructed me to sever the joint tenancy to the community residence.  I advised her that if he died first she would get the whole thing.   My client was willing to take her chances and the property was transferred to my client and her husband as tenants in common, meaning each could dispose of their half of the property any way they wanted.

As luck would have it, my client’s husband died suddenly.  However, she still felt she had done the right thing.

It is also important for everyone getting a divorce to have, at a minimum, a new will, durable power of attorney and advance health care directive prepared.  Failure to do so could result in the soon-to-be ex-spouse having control over you and your property in the event of your death or incapacity.

Actions have consequences.  So does inaction.

http://www.RobertBuschLaw.com

Starting a Divorce in California

Once you have decided to seek a Dissolution of Marriage, which is legalese for “Divorce”, in California, the process is fairly straightforward.  Please note I did not say simple or easy.   Before you begin any paperwork make sure you have the right to file for divorce.  In the State of California a person must be a resident of the state for a minimum of six months and the county for a minimum of three months before filing for divorce.  If either or both of these requirements is not met the court will dismiss your case.

So what do you do if you have just moved to California, or the county?  There is no jurisdictional requirement for filing a Petition for Legal Separation.  You can file your Petition for Legal Separation, then once you have met the jurisdictional requirements amend the Petition to request a Dissolution of Marriage.

Regardless of whether you file for Dissolution of Marriage or Legal Separation you will need to complete a Summons–Family Law and a Petition for Dissolution of Marriage or Petition for Legal Separation.  If there are minor children of your relationship you must also complete a UCCJEA Declaration.

While on the surface these forms appear self-explanatory there are critical areas which, if answered incorrectly, could cost you thousands…and thousands…and thousands of dollars.

For example the Petition will ask for the “Date of Separation”.  Lots of people have different ideas as to what this means.  One of my clients completed her own Petition and listed what she believed the date of separation to be.   Years later, after speaking with an experienced divorce attorney, she believes her separation was actually two years earlier.  So what you may ask?  During the two year period husband incurred significant debt.  If this person had initially put the date of separation two years earlier…and if a judge believed her…she would not have been assigned one-half of the debt, which totaled approximately $43,000.00.   Not consulting an experienced divorce lawyer  may have cost this woman $ 21,500.00.

Even if you can’t afford to retain an attorney, or would rather do it yourself, please consult with an experienced divorce attorney before you sign any important papers.  Any consultation fee will most likely pay for itself many times over.

Once the above documents have been completed they are filed with the county courthouse where you are a resident.  There is currently a $355.00 filing fee to file for divorce or legal separation in California, but depending on your income you may qualify to have some or all of those fees waived.

http://www.RobertBuschLaw.com

If you don’t understand…don’t sign.

I recently met with a client who is quite distraught over the fact she signed some important papers she now claims she did not read or understand.  She now wants to go back to court and undo the damage.   This client has some major hurdles to overcome in order for that to happen.  In the first place, she was represented by an experienced, well-liked and respected divorce attorney when she signed the documents.  In the second place this individual was asked by a settlement conference judge, specifically,  if she had read the document before signing, and if she understood it, or did she have any questions.

The client claimed to be an emotional wreck at the time, suffering from depression.  Assuming that is true, here is another problem with her story.   I have practiced divorce law for more than 15 years.  In my experience, if the settlement conference judge observes hesitation, or a reluctance on the part of the party, they will stop the proceeding until they are comfortable that the party is signing the documents knowlingly and willingly.

The point? Do NOT sign anything unless and until you understand what you are signing and agree with the terms.

Even if this individual files a motion to set-aside, it will be expensive, and if the judge doesn’t think she had a good enough reason to bring the motion he can deny the motion and order her to pay attorney fees to the other side.

http://www.RobertBuschLaw.com

Hello world!

My name is Robert “Jeff” Busch and I practice family law and estate planning in Gold River, California, a suburb of Sacramento, California.   I hope to share helpful hints on divorce, custody, child support, custody, property and debt division and how to do well in court, along with some funny and not-so-funny story’s about family law.  I welcome your ideas and have a few requests/rules.  No profanity.  None.  Also, do not refer to individuals, attorneys, or judges by name or department.

Thank you.

Robert “Jeff” Busch, Attorney

www.RobertBuschLaw.com

www.maximumchildsupport.com