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Archive for the ‘Divorce’ Category

Definition:  RFO is short for Request for Order.   This hearing is used to establish interim orders pending a full trial on your divorce and is unique to California Family Law.  These hearings will have different names in different states.   Previously these hearings were referred to as “OSC”s or Order to Show Causes, which were posted earlier before the name change.  RFO’s establish orders relating to custody, visitation, child and spousal support, and attorney fees, among other issues.

Effect:  While these hearings are used for interim orders, if you are served with an RFO do not take the hearing lightly.    Since it is difficult to obtain a trial date which can be months or even years out, the hearing can set the tone of the case for several months or years.   Once the Orders are entered they can be difficult to renegotiate or change.   Prepare a Response to the RFO immediately on the appropriate Judicial Council forms or hire an attorney.

(c)2014

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Jurisdiction is a very complicated legal issue.  The concept of jurisdiction is taught over the course of year during the first year of law school and there are several types of jurisdiction.  There is jurisdiction over the person, jurisdiction over the property and jurisdiction over subject matter.  In more simple terms, think of jurisdiction as an agenda for what will happen in court.   If jurisdiction stood for an agenda for a meeting, it would be who is invited to the meeting.  What will be the topics to be discussed, and who will be making the decision.   For example, if the Judge mentions that he has no jurisdiction to make a spousal support order, it MAY mean that someone did not plead (or in California check the box) for spousal support to place spousal support on the court’s agenda.  This is a very simple explanation of jurisdiction.  If your case has jurisdiction problems being raised you should consult a lawyer immediately.

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Qualified Domestic Relations Order is also known as a QDRO. QDRO’s are required to divide and transfer monies from one retirement plan to the spouse who was not named on the retirement plan. A QDRO is a complicated document and should be drafted by an attorney. QDRO’s are governed by federal law known as ERISA, and must be in place otherwise the retirement plan will lose its tax deductible status from the IRS. The QDRO should be pre approved by the Plan Administrator before submitting to the Judge, otherwise you will pay for a redraft and an Amended QDRO to be submitted to the Judge.

QDRO’s take time, as plan administrators are notoriously slow. Add to the normal court processing time, it could be more than six months for a QDRO to weave its way through the plan administrator, through the court and then back to the plan administrator for the actual transfer. QDRO do not result in quick money.

QDRO’s are for private pension plans only as ERISA does not apply to any city, state or federal plans.

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Putative Marriage is a marriage entered into in good faith and in ignorance (on one or both sides) which is not really a marriage that can be entered into legally. For example, either the bride or the groom is not able to legally marry another person because they are still married to their former spouse. Another example is where a religious ceremony is performed but licenses are never properly obtained from the state. Sometimes these Putative Marriages or void marriages can qualify as a nullity or annulment, but not always.

Putative marriages are tricky marriages which require the courts to clarify the relationship between the spouses. For example, the spouse that is ignorant of the impediment to the marriage has claims to spousal support, and property division. If the court does not proceed to void the marriage, there are issues that arise later when the spouses to a putative marriage attempt to remarry, and laws allowing the putative spouse to come in and lay claim to spousal benefits in probate court. It is best for you and your present and future families to clarify clearly with a decree the status of this relationship.

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QDRO stands for Qualified Domestic Relations Order. QDRO’s are required to divide and transfer monies from one retirement plan to the spouse who was not named on the retirement plan. A QDRO is a complicated document and should be drafted by an attorney. QDRO’s are governed by federal law known as ERISA, and must be in place otherwise the retirement plan will lose its tax deductible status from the IRS. The QDRO should be pre approved by the Plan Administrator before submitting to the Judge, otherwise you will pay for a redraft and an Amended QDRO to be submitted to the Judge.

QDRO’s take time, as plan administrators are notoriously slow. Add to the normal court processing time, it could be more than six months for a QDRO to weave its way through the plan administrator, through the court and then back to the plan administrator for the actual transfer. QDRO do not result in quick money.

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Nullity is more commonly known as an annulment. Legally this erases the marriage. However, in California a Nullity must be “Proved Up” and you must have grounds for the nullity. Unlike a divorce which is no fault in California, you must have grounds such as fraud; unsound mind; bigamy. So, a nullity or annulment will either require a narrative declaration or an actual court trial.

Why is a nullity so hard to obtain? Well the State’s public policy is to promote marriage. The State makes it very easy to get into a marriage and extremely difficult to terminate a marriage.

So what does this mean to you. Simply checking the box in a Petition to obtain a Nullity does not mean that the Court will grant your request. The Judge has to listen to your “evidence” and decide if your evidence is consistent with grounds that have claimed for a nullity. The grounds can not be that you want one or that you both agree to a nullity or annulment. Be prepared to hire an attorney to assist you to “prove up” your nullity and help you examine whether your grounds are adequate in a Judge’s eye. If not you may find that after several months of effort and trying to figure out what the Judge is talking about, you have to start over with a garden variety divorce.

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Bifurcation

Bifurcation (also known as Bifurcated Divorce and Divisible Divorce in jurisdictions other than California) is the entry of a Judgment on a single issue in the divorce. In California the most common use of a Bifurcated Judgment for Dissolution of Marriage is for the termination of marital status. What does this mean? You are divorced in name alone, as you marital status has ended. All of your other issues such as child custody; child support; spousal support, who gets the house are still open for the court to decide at a later date.  For more information on Birfucation please see previous posts at  https://sullivanguzmanlaw.wordpress.com/wp-admin/post.php?post=246&action=edit

Bifucation is most commonly used for termination of marital status will occur so that another party has plans to remarry, and needs the termination of marital status by a date certain, so that their new marriage is valid.  Some are of the theory that a termination of marital status early on in the case will bring the case to conclusion sooner rather than later by sending the spouse the message that the marriage is over.  In California, the courts will grant a bifurcation of marital status from other issues when the party requesting the divorce ahead of all the other issues must guarantee that the spouse is not placed in a worst position because of the earlier termination of marital status.  Thus, there may be a cost such as the payment of a COBRA premium payment, taxes and guarantees through probate statutes which will place the spouse in the same position as a surviving spouse.

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