What‌ ‌is‌ ‌the‌ ‌Difference‌ ‌Between‌ ‌Dissolution‌ ‌of‌ ‌ Marriage‌ ‌and‌ ‌Legal‌ ‌Separation?

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In California, there are multiple ways couples can alter or end their marriage. Spouses who wish to terminate their marriage permanently can file for dissolution‌ ‌of‌ ‌ marriage‌, commonly known as divorce. If they have the proper grounds, they can annul their marriage by filing for annulment of their marriage. Couples who are looking to separate without legally ending their marriage can file for legal separation.

If you are considering ending your marriage, you’ll want to understand the different options available to you. Every marriage is different and the best choice for you will depend on your given circumstances.

Divorce

In California, divorce is defined as the legal termination of a marriage. In a divorce, spouses seek to dissolve their union and end all legal and financial ties. To be eligible to file for divorce in California, you must have been a California resident for at least six months as well as a resident of the county in which you want to file the petition for three months.

Both spouses don’t need to agree to the divorce. If one spouse initiates a divorce and the other doesn’t take part in the process, a default judgment will likely be placed on the resistant spouse. In other words, it takes two people to say “I do,” but only one to say that “I no longer do”. One spouse cannot stop the other spouse from getting a divorce if they want to get a divorce. Because of California’s absence of a fault law, the spouse filing for divorce doesn’t need to prove any fault of the other party.

When filing for divorce, couples will try to reach reasonable compromises on important issues such as division of property, child custody and visitation, and child and spousal support. If the spouses are unable to come to an agreement, the case will go to court where a judge will decide the outcome of these issues.

Dissolution‌ ‌of‌ Marriage (Summary Dissolution)

In the state of California, a dissolution of marriage is a simpler divorce process. If couples are eligible for a summary dissolution, they can save time by avoiding court proceedings and filing less paperwork. To be eligible for a summary dissolution, couples must meet all the following requirements:

  • Have been married for five years or less
  • Neither spouse owns a home or other real estate
  • The couple did not have any children during the marriage and the wife is not pregnant
  • Community debt is less than $6,000 (excluding auto loans)
  • The couple’s combined property doesn’t exceed $43,000
  • There is a written division of assets and debt
  • Both spouses agree to waive alimony

A dissolution of marriage is a good option for couples who want to end their marriage in its early years before building financial and personal entanglements.

Legal Separation

Legal separation allows couples to physically separate but it does not end the marriage and does not permit spouses to marry others. This allows couples to live in separate residences and neither party is required to communicate with the other for decisions on finances and assets.

While many legal separations ultimately lead to divorce, many couples prefer to legally separate first when they are unsure if a divorce is really what they want. It can serve as a trial run for a divorce in many instances. If the couple is able to work out their differences, it will be much easier for them to return to normal compared to if they had filed for divorce. 

A legal separation is also a viable choice for couples who cannot get divorced due to religious reasons. Another reason why people do legal separation is because of health insurance coverage. If one party is uninsurable, then legal separation allows the other party to continue to carry them on their employer-provided health insurance plan whereas if the parties are divorced, they are no longer each other’s dependents and thus, cannot carry each other on their health insurance plan.

There are no residency requirements to enter into a legal separation in California whereas divorce requires you to be a resident for six months before you file. Because of this, many couples who are ineligible for a divorce will opt for legal separation until they meet the residency requirement to get a divorce.

Annulments

Annulments are quite different from legal separations, summary dissolutions, and divorces. Whereas the other methods of ending or altering a marriage recognize the legal validity and clear start and end date to a marriage, an annulment treats the marriage as if it never happened.

You can obtain an annulment when there are grounds that the marriage was never legally valid. For example, a bigamous marriage is never valid in California and can be nullified. Other legal grounds for receiving an annulment include situations when:

  • The marriage was the result of force or fraud
  • One spouse was underage
  • One party was of “unsound mind” to consent to the union
  • One spouse had a previous marriage or domestic partnership that was still legally valid.

If you can prove any of these conditions, you can obtain an annulment in California at any time. Unlike divorce or legal separation, you cannot get an annulment for “irreconcilable differences”. Be aware that since the marriage is considered to never have been valid, you may not have rights to any assets of your former spouse if you receive an annulment. If there are children from the marriage, you may still be eligible to have child support and custody terms included in the annulment so long as you can prove parentage.

Contact Azemika & Azemika

The experienced divorce attorneys at Azemika & Azemika Law understand that every case is unique and can help you protect your interests in a divorce or legal separation. For comprehensive legal counsel on your options during your divorce or legal separation, contact Azemika & Azemika Law, Kern County Divorce Attorneys. We will craft fast and effective solutions for your unique circumstances and needs. We will fight for and protect you and your family during the separation and divorce process.

TRIAL JUDGE WAS WRONG IN NOT GRANTING A CONTINUANCE OF HEARING IN A DOMESTIC VIOLENCE CASE

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A California Court of Appeals has ruled that a Trial Court was wrong, in a Domestic Violence Protection Act (“DVPA”) case, by refusing to grant a continuance to a Plaintiff who needed one to permit him to serve the opposing party and to give him time to recover from an unforeseen back surgery. In the case of J.M. v. W.T., Plaintiff, on January 8, 2019, filed a request for a DVPA protective order against Defendant. In a supporting declaration, Plaintiff asserted that between December 23, 2017, and March 17, 2018, Defendant committed several acts of domestic violence against Plaintiff (throwing a book at him, calling him offensive names over the phone, punching him with closed fist, biting him during sex, threatening to hurt his dog after the dog preferred Plaintiff to Defendant, and demanding entry to Plaintiff’s condo and then becoming physically out of control). Trial Court issued a Temporary Restraining Order pending the hearing and scheduled a hearing for January 29, 2019.

On January 24, 2019, Plaintiff submitted a written request for a continuance on California Judicial Council Form DV-115, explaining that he had been unable to serve Defendant with the necessary papers and that he was scheduled for spinal surgery on January 28, 2019, after which he would be unable to care for himself, stand or sit for a long period, or think clearly because of the medications. Neither party appeared at the January 29, 2019 hearing, and Trial Court denied the request for a continuance and dismissed the case, commenting that the incidents complained of happened almost a year ago.

Plaintiff appealed Trial Court’s decisions, and now a California Court of Appeals has reversed Trial Court’s decisions and remanded the case back to Trial Court with instructions. The Appellate Court has ruled that (1) under California Family Code Section 245(b), Trial Court must grant a continuance if a party shows good cause for one in writing or orally on the record; (2) the failure to serve the opposing party is grounds for a continuance; (3) here Plaintiff demonstrated good cause for a continuance on these facts; and (4) Trial Court abused its discretion by failing to grant a continuance. Therefore, the Appellate Court reversed Trial Court’s order denying a request for DVPA protective order and remanded the case back to Trial Court with directions to grant a continuance within 30 days of the case coming back to Trial Court.

HUSBAND LIVING IN FAMILY RESIDENCE AFTER SEPARATION OWES WIFE REASONABLE RENT BUT NOT INCREASE IN VALUE OF HOME

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A California Court of Appeals has ruled that Watts charges [a party having sole use of both parties’ community property asset, i.e., home, after separation can be charged for that party’s sole use, i.e., reasonable rental value of the home] may be ordered against Husband where Husband lived in his separate property house after the parties’ date of separation and Moore/Marsden formula gave the community a beneficial interest in the house because payments during the marriage were made with community property funds. In the case of In re Marriage of Mohler, Husband bought a house for $168,000, taking title in his sole name in February of 1995, prior to the parties’ marriage. Husband and Wife were married in September of 1998. They lived in the House until they separated on July 2, 2011. The payments on the House were made with community property funds [the parties’ earnings during the marriage] until that date. The principle reduction on the mortgage loan on the House was reduced during the parties’ marriage to the tune of $56,557. After they separated, Husband lived in the House and paid the house payments with his separate property funds [his earnings after the parties’ date of separation].

At trial in 2017, Trial Court valued the House at $530,000. The parties agreed that the Moore/Marsden formula [when community pays for one party’s separate property House during the marriage, the community gets reimbursed based on principle reduction of the loan on the House and appreciation in value of the house during the marriage] should be used to calculate the community property interest in the House acquired by making the mortgage payments. Using that formula, Trial Court calculated that the community property interest amounted to 33.66%, or $172,684 (appreciation value plus mortgage principle reduction). However, Wife argued that the community property interest must be increased to 64.9% to include the six (6) years that Husband lived in the House after the parties’ separation. In essence, Wife was arguing that she had to wait for six (6) years to receive her community property share in the House while Husband was solely enjoying the House and thus, her community property interest should be increased.

Trial Court agreed and re-calculated the community property interest under the Moore/Marsden formula at $332,944, which included Husband’s separate property payments of $52,482 [payments he made on the mortgage after the date of separation]. Husband appealed and now the California Court of Appeals has vacated Trial Court’s order and has remanded the case back to Trail Court with directions as to how to resolve the case.

The Appellate Court has ruled that (1) by making payments on Husband’s separate property House with community property funds [parties’ earnings during the marriage], the community acquired a beneficial interest in House the amount of which is calculated by the application of the Moore/Marsden formula;(2) the community ceases to acquire a beneficial interest in a spouse’s separate property when community property payments stop or date of separation occurs; (3) Trial Court erred by applying the Moore/Marsden formula beyond the date of separation after which Husband made house payments with his separate property [his earnings after the date of separation]; and (4) if any compensation is due to the community by reason of Husband’s living in the House after the parties’ separation, it must be calculated as Watts charges. According to the Appellate Court, “where, as here, the community does not own the property outright but instead maintains a beneficial partial interest in the property due to a Moore/Marsden calculation,” Watts charges may be applied. Therefore, the Appellate Court has remanded the case back to Trial Court for further proceedings in line with this opinion.

WIFE CONVICTED OF DOMESTIC VIOLENCE NOT ENTITLED TO SPOUSAL SUPPORT

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A California Court of Appeals has ruled that a Trial Court was not wrong when it denied Wife a spousal support award under California Family Code Section 4325’s rebuttable presumption against spousal support award to a spouse who is convicted of domestic violence. In the case of In re Marriage of Brewster and Clevenger, Husband, an orthopedic surgeon, and Wife, a gynecologist and obstetrician, separated in August of 2011, after 21 years of marriage. Wife filed for divorce.

In March of 2015, Husband filed a request for a temporary spousal support. In his supporting declaration, Husband stated that he had been depositing $10,000 per month into a joint account to cover Wife’s expenses and had been paying the mortgage and property taxes on the parties’ family home, where Wife was living rent free. Husband also asserted that he should not be ordered to pay any spousal support to Wife because she had been charged with “several criminal counts” for harassing him. Wife filed no response to Husband’s request.

After Trial Court set a trial date for October of 2016, Husband filed a trial brief in which he asked Trial Court to take judicial notice of the file in Wife’s criminal stalking case. Husband acknowledged that Trial Court had reserved jurisdiction on his temporary spousal support request, but reiterated his assertion that he should not have to pay spousal support to Wife under Family Code Section 4325 [rebuttable presumption against spousal support award to spouse convicted of domestic violence] and Section 4320 (i) and (n) [spousal support factors regarding domestic violence and any other equitable factors] since Wife had been convicted of domestic violence in January of 2016. He also claimed that Wife was underemployed and could be self-supporting.

Trial Court held four days of trial between October of 2016, and January 2017. At the outset, Trial Court took judicial notice of the minute orders and sentencing hearing in Wife’s criminal case. The parties stipulated on the record that the duck club membership would be assigned to Husband at a value of $65,000. Wife testified that she had been convicted of some criminal counts but did not specify them. However, in her written closing argument, she confessed to having put a non-poisonous python and several rats into the home where Husband was staying.

In rebuttal of the Family Code Section 4325 presumption, Wife testified to three incidents in which Husband had committed domestic violence against her. In the first, Wife claimed that Husband intentionally dislocated her finger when she refused to let go of his shirt during a confrontation; in the second, she alleged that Husband screamed at her, picked her up out of his chair, and threw her across the hallway after she confronted him at his office during business hours about an affair; and in the third, she stated that she had gone to Husband’s office on a Saturday, gained entry with a key she had previously purloined, and surprised him at his desk. In the ensuing conflict, Wife stated that Husband had injured her hip by throwing her down on the thinly-carpeted concrete floor, but had dissuaded her from calling police and begged for forgiveness. In his testimony, Husband claimed that Wife was the aggressor in each incident, that he had merely tried to subdue her, and that he had not noticed the bruises that she had claimed to have received.

Wife also testified to having several medical conditions relating to her shoulders, hands, and feet, as well as to suffering cardiac arrythmias requiring hospitalization after the last incident with Husband. Wife said that most of her conditions had since resolved, but she was unable to perform many of the procedures required in her practice and had begun to offer medical weight reduction treatment to supplement her practice.

After the parties submitted written closing arguments, Trial Court issued a tentative decision and subsequent divorce judgment in which it awarded the duck club membership to Husband at a value of $60,000, determined that the $10,000 payments Husband made were in lieu of spousal support and were taxable to Wife and deductible to Husband, ruled that Family Code Section 4325 applied (Wife had not rebutted the presumption), and set spousal support at zero.

Wife appealed, but after modifying the value of the duck club membership, the California Court of Appeals has affirmed Trial Court’s decisions. The appellate court has ruled that (1) it must deny Wife’s request for judicial notice of documents not presented at trial and not considered by Trial Court in making its judgment; (2) Trial Court was not wrong in applying Family Code Section 4325 presumption or in concluding that Wife failed to rebut the presumption on these facts (Wife filed to introduce documented evidence that she was the victim of domestic violence and statute does not require conviction be for a violent act); (3) Trial Court was also not wrong in declining to order spousal support; (4) Trial Court was also not wrong in finding that Husband’s payments into joint account were in lieu of spousal support (Trial Court did not lack jurisdiction to make temporary support order or retroactive order; Wife was estopped from arguing that payments were not in lieu of spousal support when she took the opposite position at trial); (5) Wife waived her argument regarding taxability of payments by failing to raise that issue at trial; and (6) Trial Court was wrong by valuing duck club membership at $60,000 after parties’ stipulated that its value was $65,000. Therefore, the Court of Appeals modifies the judgment to reflect correct value of the membership and affirms the remainder of the judgment.