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Recent Blog Posts in November 2010 |
| November 21, 2010 |
| The TIME PERIODS for FILING SET ASIDE MOTIONS DEPENDS.... |
| Posted By Thurman Arnold |
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Q. Just thought you might want to point out that there is a different code section about setting aside judgments (2122) as opposed to orders (3691). It's important because the statute of limitations is 1 year for judgments and 6 mos. for orders.
Thanks for your excellent articles,
Bruce J.
Northern California Attorney
A. I appreciate you for pointing out that some clarification would be helpful (seriously) - most people won't drop me a note - and sometimes I am slow to respond. ; (
Anyway, I am grateful to hear from you.
As you note, there are different statutes of limitations that serve to potentially cut off or extinguish your right to challenge settlement agreements, judgments, or court orders depending on which of these you are challenging and the grounds for the set aside request (i.e., fraud, duress, mistake, etc.) You need to carefully research and understand these rules as they apply to your situation. Mixing up the statutory time periods may result in the denial of your motion, and even subject you to attorney fees for the costs incurred by the other party. I wrote about a recent case in April, 2010, where this occurred entitled
Marriage of Zimmerman.
With respect orders for support, for instance,
Family Code section 3691 generally sets a six month window on the time to file a set aside of child or spousal support orders.
For settlement agreements and stipulated judgments, Family Code section 2122 sets forth the time limits for filing set aside motions. These time-frames differ depending upon the grounds you allege for the set aside, but generally range from one to two years. Note that grounds for set-aside not only include alleged misconduct of the other party but also your own circumstances that contributed to a mistake or other situation that would tend to make a set aside the fair and just remedy. I recommend that you attempt to justify your motion on every legitimate ground, even if it appears to be time-barred, unless the claims are so unlikely as to appear frivolous.
Look at these statutes carefully. Events that trigger the time to commence running can be tricky and fact specific. This is an area where you need to find competent local counsel, because if you draft the motion yourself you may not recognize that what you thought you needed to say actually undermined or destroyed your claim.
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| November 21, 2010 |
| WHY Should I Consider a LEGAL SEPARATION? |
| Posted By Thurman Arnold, CFLS |
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Q. My Wife has filed for legal separation. Is this something that I should consider instead of divorce?
A. There are important advantages to proceeding with a Legal Separation instead of a divorce in some cases, and in my opinion they can be used as a forward thinking and respectful way to end a lengthy relationship in ways that may help the other party live with greater dignity and more financial options.
Unlike a decree of dissolution of marriage, the other party's consent and cooperation is necessary in order to successfully use this procedure. It is not uncommon for one party to file a Petition for Legal Separation only to receive a Response from the other party requesting a disso instead. Unfortunately, in my experience people who may not be talking at the time of break up miss opportunities to explore options that would serve them both better. Deciding how to respond to a Petition for Legal Separation, which occurs early on at the rawest point of breakup, is one of those moments where people have a choice to think bigger than what the hurt of separation usually allows.
A Legal Separation is in many ways identical to a Dissolution proceeding, with the defining difference being that parties to a legal separation remain married and registered domestic partners (RDP's) remain in a domestic partnership. The same laws and the procedures apply as with divorce. However, the advantages and disadvantages of legal separation vs. dissolution very much depend upon the facts and history of each particular case.
There are a number of good reasons for electing to file for legal separation rather than dissolution. These may be strategic, emotional, economic, and religious. Examples include:
- Strategic Reasons to File for Legal Separation: In order to file for certain types of orders, like spousal support, an underlying action must be pending. Often this is a Petition for Dissolution. Where the requesting party has not met the jurisdictional requirement of having resided for six months in California, they are not legally entitled to file a divorce action. They are eligible, however, to file for Legal Separation and seek spousal support therein (and any other orders they could request in a Dissolution action).
- Emotional Reasons to File for Legal Separation: Particularly in lengthy marriages and for elderly couples, Legal Separation may be a less traumatic way of disentangling the legal and economic affairs of people while preserving the symbolic value of the relationship. This may be a better fit for the participants and their extended family of children and grandchildren. Legal Separation can also be a transitional phase or stopping point that allows couples to try out the reality of a different kind of relationship.
- Economic Reasons for Legal Separation: There are significant economic consequences that flow from dissolving the marriage itself. These are often seen in dealing with health insurance questions. Upon divorce most health insurance that covers a non-employee spouse ends after eighteen months from the date of judgment, and those eighteen months cost more each month than before. New insurance may or may not become available to a chronically ill spouse or one with significant pre-existing conditions. Legal Separation allows the existing coverage to be maintained, often at a tremendous savings relative to replacement insurance. Another common economic reason involves the ability to continue to claim the "married status" in federal and state income tax returns, which may benefit one or both spouses. Sometimes people who otherwise wish to remain married have to divide their income and estates in order to qualify for state or federal benefits. In order to collect Social Security benefits from the federal government on account of the other spouse's work history, a marriage must last at least ten years (the end of the marriage is defined by the termination of the marital status). Legal separation is a means to allow those ten years, which cost the working spouse nothing, to accumulate before the actual divorce takes place.
- Religious Reasons for Legal Separation: Certain faiths, and many people, feel that marriage is a life long vow and find that serious consequences flow from the fact of divorce. These may include ostracism from one's religious community, or simply be a result of one's personal views.
By choosing to begin with a Legal Separation - even where it is temporary in the sense that one day the marriage will be completely dissolved in an action for dissolution - people can intelligently and quite compassionately protect and improve the other spouse's quality of life without it costing anything at all, or anything significant.
Thurman W. Arnold, III
Certified Family Law Specialist
http://www.DesertFamilyMediationServices.com
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| November 11, 2010 |
| Is It Possible to Get My Ex's TAX RETURNS Without Any MOTION to MODIFY Pending Between Us? |
| Posted By Thurman Arnold |
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Q. We were divorced three years ago and I haven't taken my ex-husband back to Court. I think he is earning a lot more now. Is there anything I can do to find out what his situation is short of actually filing a modification motion?
A. Absolutely. There is a little known trick for obtaining useful information, possibly with a minimum of trouble, once each year. This is the Request for a completed Income and Expense Declaration (Form FL-150) pursuant to
Family Code section 3664.
When there is no motion or OSC pending for a modification, termination, or set aside of earlier support orders you are limited in terms of your discovery rights in California - assuming the proceedings were completed in the sense that nothing is pending or presently calendared (if there is no final judgment in a divorce, partnership dissolution, or paternity action then you are entitled to continue to utilize discovery and what I say here doesn't apply). You cannot, for instance, schedule a deposition or send out interrogatories or even subpoena records, at least not properly. I have seen lawyers send subpoenas when nothing was pending and if I had done nothing they probably would have gotten the information requested since the receiving party doesn't know the status of the case, but when I objected they backed off and canceled the subpoenas at once because it was abuse of process to do what they were attempting.
But in your case you only have the option provided for by FC section 3664. This entitles you to send out on an approved
FL-396 Request for Production of An Income and Expense Declaration After Judgment a request no more than once each year
(Family Code section 3663) for the other party to produce for you an updated Income and Expense Declaration.
Importantly, the responding party is required to attach to it their last year's federal and state personal income tax returns. (Family Code section 3665).
If they do not respond to you within 35 days, or if there information is incomplete as to wages, you may serve Judicial Council Form Request FL-397 upon their employer per
Family Code section 3664(b) and (c). Unfortunately, compliance by the employer is voluntary and so this provision lacks teeth. Yet if you later do file a motion and can show a history of noncompliance by the employer and/or the other party you are more likely to recover attorney fees or sanctions as well as prove that the other party is being evasive or possibly dishonest and this may help you not only to carry your burden of proof and obtain a modification but it may impact how strongly the court acts towards your ex. In the case of family businesses where there is a lack of cooperation it helps the Court to see that you are being stymied.
Section 3664 is also a very useful tool for parties who are trying to modify or terminate support payments that they have been ordered to make. If you are a payor former spouse or domestic partner and want to terminate the other party's support rights, you would begin by sending them the Request. Again, if they fail to cooperate and comply it makes them look like they are hiding something.
Finally, Family Code section 3667 entitles you to recover certain sanctions where the Income and Expense declaration wasn't provided you, was incomplete, or lacked the required tax return attachments. While you cannot recover attorney fees if you don't actually have an attorney (and this section doesn't provide for them anyway), you can recover deposition and related costs, like for subpoenaed records (which can be significant charges), even where you are a self-represented party.
Good luck!
Thurman W. Arnold III,
Certified Family Law Specialist
Board of Specialization, State Bar of California
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