Under Family Code Section 2320, a judgment of marriage dissolution (divorce) may not be entered unless one of the spouses has been a “resident” of California for six months and of the county where the proceeding is filed for three months immediately preceding the filing of the petition. This poses a problem for divorcing couples that has not resided in California for at least 6 months. Couples that moved to California from other states or other countries are faced with this problem because they cannot get divorced until they satisfy the residency requirements. Even a bigger problem is when they need immediate temporary orders from the California Court regarding child custody, child support, management and control of community businesses and property.
The solution for this type of problem is filing nullity or legal separation petition rather than a divorce and amending the petition later on to convert it to a divorce once the residency requirement has been met by one of the parties. Millar v. Millar. Unlike a divorce, there is no residency requirement to filing an Annulment or a legal separation.
The advantage of this strategy is you would immediately have access to the courts and can ask the court for immediate temporary orders needed to maintain the status quo or preserve the marital assets. If domestic violence is involved in the case, the domestic violence issue can be heard in the same court room by the same judge that would be hearing the divorce case. In addition, service on the legal separation petition (to be amended later to a divorce) will also start the clock on the six-month “waiting period” for finality of a judgment terminating marital status, optimizing the time-frame within which the parties will be legally restored to “single” status. As far as the county where to file the legal separation or nullity, venue is proper in the county where either party resided at the time the petition was filed pursuant to CCP 395(a).
Once the parties have satisfied the residency requirements, the Petition may be amended from legal separation to Dissolution without permission from the Court as long as notice is provided the opposing party under Marriage of Dick. The Petitioner would also be in a safer position if the intent to amend from legal separation/nullity to a divorce is stated in the initial Petition.
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Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected]; Website kenreyeslaw.com.
