THE holidays are upon us, and soon, we’ll all be thinking about “New Year’s resolutions.” Amid the festivities, many people take this time to look at their lives and decide once and for all if their lives will change in the new year, or if things will remain the same. Love and marriage in the real world involves trying to put order in the chaos of work, maintaining a home, and raising a family all the while maintaining the relationship between husband and wife. Sometimes, divorce happens.
The following seeks to address or clarify some common misconceptions about divorce.
“What if my husband/wife does not want to sign the divorce?” or “My husband/wife does not want to sign the divorce papers, what can I do.” California is a no-fault divorce state. A party filing for divorce does not need the consent of the other in order to file a Petition for Dissolution (Divorce) or, in some instances, to get a judgment of divorce.
Perhaps the confusion lies in the part where the other party (your soon-to-be ex-spouse) needs to be served with process. In proceeding in an action for divorce, there are procedural requirements dictated by law that must be followed to ensure that the other party has notice of the action (that is, that s/he is being brought to court for an action of divorce) and that s/he is given time to respond. However, there is no requirement for the other party to respond. There is no requirement that s/he sign any document at all. All that needs to happen is that s/he is properly served with process according to the rules.
“What? I have to share my money?” Generally, all of your assets prior the marriage is just your own separate property. However, California is a community property state and so once you get married, all property acquired during marriage is community property. And if anything out of the community property is used towards separate property, the community might turn out to have a claim on part(s) of separate property. Separate property are “all property acquired before marriage; all gifts, bequests, devise, or descents. All property acquired or exchanged with traceable separate property; and all property acquired after separation.”
“I don’t want to pay for spousal support.” Again, California is a no-fault divorce state. There is no assignment of blame or fault; fault does not factor in the equation in the issue of support. Some of the factors that the Court will look at to determine whether there is basis for support, and if so, in what amount, are – length of marriage, age of parties, if there are minor children in the marriage, income of both parties.
A Special Note about Divorce and Immigration. Some divorces will have the added element of an immigration issue – where the spouse became a lawful permanent resident of the United States through marriage to a U.S. citizen spouse. The common question is “what will happen to me if I divorce my U.S. citizen husband/wife? Will my green card be affected?” If there is an issue regarding immigration, it is important to consult with an experienced and licensed immigration attorney in order to get the correct information. It is crucial that people get the right advice to be able to make intelligent decisions on what they want to do with their lives.
Not all divorce cases are the same. It is important to be properly informed about your rights and responsibilities under California law in divorce proceedings. The wrong advice or information can and will hurt you, and waste your time and money. Consult a licensed and experienced family law attorney (and a licensed and experienced immigration attorney, if needed) to help you navigate through your divorce.
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Atty. Lilli Berbano Baculi is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; (916) 449-3923; [email protected]. For general information visit www.chuatinsayvega.com.
