Jurisdiction Q & A

The following is a sample of emails I received concerning jurisdiction and procedure issues. 

Dear Sir or Ma'am,

I would like to know what is "common law" and also a paternity case and what does the D.A. do? and I would also like to know what is community property and what laws govern it in marriage and divorce? Thank you,

De.

 

Dear De:

1. Common law is law as historically developed by court decisions.

2. Paternity case is an action to determine the paternity, custody and support of a child.

3. The D.A. acts in the public interest to pursue paternity actions and child support.

4. Community property is all property and debts acquired during the marriage, except for gifts and inheritance.

5. State law governs in marriage and divorce.

Now, why don't you tell me what's troubling you.

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Salomon

Hello, my name is Tarah, and I need some information about obtaining a divorce from my husband who is in the US while I am in another country. We would like to make the divorce as simple and easy as we can. Yes, I do have one child who is with me at the moment but we are mutually working on that. I really need to know if a divorce from abroad is possible for I have no desire to return to the US. Please email me your response asap.

Thanks Tarah

 

Dear Tara

Either you or your husband can file a petition for dissolution in California if either of you has been a resident of California for at least six months immediately preceding the filing of the dissolution papers.  You could also check into the divorce laws and procedures in the country where you reside. You should be able to file for divorce where you reside. 

The matter of custody could be a little tricky and you should give some thought to it. Even though you are working out the custody agreement amicably, it is still a good idea that you agree which jurisdiction shall have the right to make custody decisions. You don't want to create a situation where California takes jurisdiction over custody simply because you agree to do your divorce in California. A jurisdictional tug of war can be expensive.

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Dear Salomon

My wife has abducted my 3-month-old son from Idaho to California. I would like to find out the residency requirements for California for filing a divorce. The police want me to get a warrant issued for her but I'm holding off since I don't want to damage her permanent record.

Bat

 

Dear Bat

California's residency requirement is that either you or your wife must have been a resident of the state for at least six months in order for you to file a petition for dissolution of marriage.

You used the word “abducted.” Removal of the child from his home for the purpose of depriving a parent of his custodial rights is a criminal offense in most states. You should make a police report if you believe that this has happened to you. Idaho may be considered the child's home state, but that could change if you allow them to reside in California without doing something about it. If you file for divorce in Idaho, Idaho may be able to assume primary jurisdiction over the custody matter. You should contact a local family law attorney to discuss your case right away. Good luck.

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Dear Salomon,

My wife and I have been married for 5 years. We do not have any children, and no property. We have savings of over $80,000.00, not liquid. I am a Chief Petty Officer in the U.S. Navy, stationed in Yokosuka, Japan. I have an income of $2,300.00 base pay with allowances of $700.00 per month. I am requesting divorce on the grounds of irreconcilable differences. My wife is a Japanese citizen, and is not naturalized.  We were married in San Diego, California.

AMB

 

Dear AMB,

While you are in the military service, you may consider your last home state as your home state for the purpose of filing for divorce. As you have been in Japan for some time, you should check with a local attorney to determine what your rights are and procedures for divorce in your local jurisdiction.  Good luck,

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Dear Salomon

Hello, Are Dominican Republic divorces legal in the US?? How about Canada?? I have been separated from my wife for some time and I have heard about the one day divorces in the Dominican Republic.  Neither of us are from there.

Thanks again for your time,

LD

 

Dear LD

If you establish residency in the Dominican Republic pursuant to their residency laws and the two of you consent to the legal procedure AND it is not a sham divorce or an effort to defraud creditors, your divorce may be valid. 

Most problems arise with these divorces when only one party appears in that jurisdiction and obtains an unfair judgment without proper notice to the other party, or an opportunity to defend. Such divorces are suspect and may not be dispositive of the rights of the other party. 

Sham divorces are usually intended to defraud creditors, but the parties do not truly end their marital relationship. These divorces will likewise not be given effect.  

The only other consideration would be if the divorce were a fraud on creditors or the IRS. If you are truly ending your marriage, it should be considered a bona fide divorce. If you continue to live together, then what's the purpose of the divorce?

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Dear Salomon:

I was married in California almost a year ago. My wife lives in Utah and I live in Hong Kong. We no longer wish to be married. Do I need a divorce or is it still possible to get the marriage annulled? If I can get it annulled, how, or if I need a divorce how do I get that started. I appreciate any advice you can give me.

Ott.

 

Dear Ott,

Annulment is an action based upon fraud. You would claim that you were tricked into marrying your wife, that your consent to enter into the marriage was obtained by fraud. Annulment has nothing to do with how long you were married. If you and your wife entered into the marriage in good faith, and you were both truthful, there is no basis to claim fraud even if it later did not work out.

In order to get divorced, you or your wife must have residence in the jurisdiction where you seek the divorce. The requirements for residency vary from jurisdiction to jurisdiction. Each place determines its own law on how long you have to live there before you are considered a resident for the purpose of filing for divorce. California requires that you be a resident of the state for at least 6 months and of the county where you file for at least 3 months immediately preceding the filing. I have no idea what the laws of Hong Kong or Utah may be, but I expect that either of you should be able to file for divorce in either jurisdiction. Once legally divorced in any jurisdiction, every other place on earth should recognize your marital status. The place of the marriage is of no consequence on where you may divorce.

Good luck,

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Dear Salomon,

I was married in California in over 10 years ago. I had a daughter there a year later. After 2 years, I moved to Argentina with my wife and daughter. I separated from my wife the following year and took up residence with another person with whom I had a son later. Right now I'm living in California with my new family. I need to get a divorce in order to get married again, but I'm not sure how to go about it as my future ex-wife is in Argentina. This would be a friendly divorce as we are still on good terms and she would be happy to help, if I can find out how to do it.

Dan

 

Dear Dan,

You can terminate your marriage here in California as long as you have resided here for over six months. You will have to have your wife served with the divorce papers in Argentina. This can be accomplished by personal service in Argentina, or by certified mail, with a return receipt.    

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Dear Salomon

I was married in Washington 6 years ago with a woman who had two children from a previous marriage.  We parted within two weeks of the marriage and neither of us bothered to divorce. We have not seen each other since. Six months ago my wages started getting attached for unpaid child support dating from 3 years after the marriage. Washington has a stepparent responsibility law. Now, I need a divorce. Any chance of annulment?

Thanks for any help.

Bummed

 

Dear Bummed,

I'm not familiar with Washington's stepparent responsibility law. Of course, California can terminate your marriage.

I'm a little concerned that you don’t seem to be big on taking care of business. You’ve been separated six years, your wages started getting attached six months ago for kids that aren't yours, and now you’re wondering about annulment?  Maybe time to stop smoking that stuff. 

Good luck.

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Dear Salomon

My wife abandoned my two daughters and I about 7 months ago. I do not know where she is located, and therefore cannot contact her. How do pursue a divorce?

66

 

Dear 66

You can serve the summons and petition for dissolution of marriage by publication, but only after proving to the court that you have done everything possible to find her, including contacting all of her known friends and relatives, checking drivers license records, and hiring a private investigator to find her. Usually it's just easier to find her than go through the trouble of trying to get a court to permit service by publication.

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Dear Salomon

What is this page about?? I've recently divorced, and looking for women that have done the same.

David

 

Dear Dave,

This is a law office, not a dating service.

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Dear Salomon

We were married for 10 years when we separated. A year after separation, he filed, summons and petition for divorce, stating Section 5 Line b-DECLARATION REGARDING COMMUNITY PROPERTY - All such assets and obligations disposed of by Written Agreement. A month later he filed request to enter default. The next month he moved his ex-wife into my home, and they packed it up, and took all my things to Oregon. I have given him the list of what I want returned in order to sign any agreement. He just keeps promising, soon... He has $115K, I have $35K. I want to take this before a judge to re-divide our stuff, or provide me compensation. Can I still file a response to the request for default? Do I need to file for divorce on my own, against him? I don't know what to do next, but I do want this to go to court. Thanks in advance-

Car

 

Dear Car,

Please check with the court to find out what provisions for property division are in the judgment. There is a rule that you cannot get a default judgment for more than you asked for in the Petition. If he did not list property in the Petition and you were not served with a Declaration of Disclosure and Schedule of Assets and Debts, you may still set aside the divorce judgment. 

Good Luck,

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Dear Salomon

I have been married for just over one year. My husband and I have agreed to divorce amicably. We have no property to divide and virtually no money saved. I have heard that stationary stores sell forms for just such divorces, where everything is very simple and uncontested. Is this true and how long does it take for the divorce to become final?

Thank you.

/s/ Ang

 

Dear Ang

California does offer the summary dissolution. This is a simplified procedure that allows people who have been married for less than 5 years, have no children, and very little in the way of assets or debts to file for termination of marital status. This procedure does not allow for support or restraining orders. Divorce is final after 6 months.

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Dear Salomon

My wife and I are planning to get divorced. However, due to the incredible amount of finger pointing, and our intense love for our one 2 1/2 year old child, we both wish to protect her from each other. We both are low wage earners, and he has difficulty just paying the bills. What do we do when we have decided that the marriage is irreconcilable, but can't afford the hundreds or thousands of dollars necessary for legal representation? What if there is only money enough for one of us to get a lawyer.

Innocent

 

Dear Innocent,

Most courts in California now have a “Family Law Facilitator” who is available to help people file their own divorce in cases such as yours. You mention a lot of finger pointing. If you both agree to put aside the fighting for the sake of reaching an amicable agreement, you, your husband and child will all be better off.   Good luck,

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Dear Salomon,

I got married to my girlfriend last December. We have a child that turns 2 December 20th. We decided to get married at such an early date so that she could become legal in this country (she's from Ecuador) and be able to attend college. I was in college at the time and living on campus so we were never living together after we were married. I left her this past August before our scheduled appointment with immigration services concerning her legal status and our marriage. I don't want to be married to her anymore. I'm wondering if it would be possible to get an annulment, if California even supports annulments, or a divorce and how would I go about doing this. What about child payments? I'm willing to pay if I have to. Any help would be greatly appreciated. Thanks.

Chris,

 

Dear Chris,

Since you have a child together, I doubt that an annulment would be the best thing. Do you have anything against your wife legalizing her status here in the US so that you could continue to share responsibility for your child?  You should consider your responsibility to your child to help his or her mother. Even if the marriage does not work for you, you still have to do what is best for your child, even if it means helping his mother. Good luck to both of you.  

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