Uncontested Divorce

If you and your spouse have discussed your divorce and are close to or in complete agreement as to how to divide your assets and debts you may want to consider an uncontested divorce.

Summary Dissolution

A summary dissolution may be considered where all the following statements are true:

1. 1. There are no children of the relationship, and the wife is not pregnant
2. 2. The marriage is of no more than 5 years' duration
3. 3. Neither party has any interest in real property
4. 4. The debts of the community (from date of marriage to date of separation) do not exceed $5,000.
5. 5. The net fair market value of all community property assets do not exceed $33,000 (excluding automobiles and retirement plans) and of either party's separate property assets do not exceed $33,000 (excluding automobiles)
6. 6. The parties have executed an agreement dividing the community assets and assumption of community debts
7. 7. Both parties waive any right to spousal support

If you think a summary dissolution is right for you, contact Attorney Erica C. Affinito for a free initial consultation.

Default

When the petitioner spouse serves the respondent spouse with a summons and petition for divorce, the respondent spouse has 30 days to file a response or risk default. A default means that the time for responding has lapsed and the petitioner spouse has the right to ask the court for a judgment based only on the content of the petition without hearing from the respondent spouse. A respondent spouse should never let the time lapse without consulting an attorney. With the help of an attorney the parties may choose to proceed with a default and enter into a marital settlement agreement without the respondent spouse having to pay an initial filing fee. If the parties agree as to a division of all assets (or are close and just need help with some final compromise) an experienced attorney can help draft an effective and all inclusive marital settlement agreement which accurately represents the desires of the parties. A typical marital settlement agreement includes provisions regarding property characterization, debt distribution, child custody and visitation, child support, spousal support, general waivers, tax provisions, the effects and consequences of subsequent behavior such as reconciliation or the discovery of undisclosed information. Retirement benefits are particularly technical and without proper procedure you could end up losing your community property interest in your spouse's retirement account. While the basic terms may have been reached through mutual agreement the document can still be drafted to heavily favor one party over the other. It is important that you not take this step alone and that you have a qualified family law attorney review the agreement for advice on how well your rights are protected.

Additionally, there are some limitations on the validity of a marital settlement agreement so that even with both yours and your spouse's signature the court may not uphold the provisions.

1. Child Support: A marital settlement agreement cannot terminate the court's jurisdiction to modify child support in the future and cannot terminate a parents' mutual statutory child support obligation.
2. Child Custody: A marital settlement agreement cannot limit a court's jurisdiction over minor children - custody and visitation will always be modifiable where the circumstances meet certain criteria.
3. Religious Upbringing: Any provision dictating the religious of the minor children is likely unenforceable
4. Damages: It would likely be unenforceable to require one spouse to pay damages to the other spouse as California is a "no-fault" state and such a provision would violate public policy.
5. Anything else that is arguably "against public policy"

As a "contract" the agreement must comply with all of the legal requirements of an enforceable and valid contract. If it conflicts with the general principles of contact law it may be unenforceable.

It is important to discuss all of these issues with a skilled and competent attorney so that you know what you are signing and to ensure that your rights are protected.

Response Filed

Even if the respondent spouse has filed a response or both parties have appeared in court they may always find a negotiated settlement rather than proceeding through to trial. In most cases a settlement agreement can be considered a win-win as it is less costly and less stressful than the adversarial atmosphere of constant court appearances and trials.

Judgment Set-Aside

If you have had a default filed against you in the last 6 months contact the Law Office of Erica C. Affinito for a free initial consultation to discuss your options. Pursuant to CCP ���§473 a party may seek relief from judgment entered as a result of that party's mistake, inadvertence, surprise, or excusable neglect. However, this relief is solely within the discretion of the court and the request must be made within a reasonable time from default.

Whenever possible settlement is usually in a client's best interest. At the Law Office of Erica C. Affinito the clients needs are always placed above everything else. You will receive fair and honest advice that will save you time, money and unnecessary heartache. Call now to set up a free initial consultation.