Hermale Mainit

Practice Court 2

California Divorce Laws

RESIDENCY REQUIREMENTS AND WHERE TO FILE:

A judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has
been a resident of this state for six months and of the county in which the proceeding is filed for three
months next preceding the filing of the petition. The superior court has jurisdiction in proceedings under
this code. [Based on California Family Code - Sections: 200, 2320]

LEGAL GROUNDS FOR DIVORCE:

Dissolution of the marriage or legal separation may be based on either of the following grounds: (a)
Irreconcilable differences, which have caused the irremediable breakdown of the marriage; or (b)
Incurable insanity (only upon proof). [Based on California Family Code - Sections: 2310]

LEGAL SEPARATION:

The grounds for a legal separation are the same as the grounds for a divorce, and the same residency
requirements must be met. After entry of a judgment of legal separation of the parties, the earnings or
accumulations of each party are the separate property of the party acquiring the earnings or
accumulations. [Based on California Family Code - Sections: 2310, 2320, 772]

MEDIATION OR COUNSELING REQUIREMENTS:

When issues are being contested, and there is a minor child of the spouses or parents or of either of them
whose welfare might be affected thereby, the family conciliation court has jurisdiction as provided in this
part over the controversy and over the parties to the controversy and over all persons having any relation
to the controversy. [Based on California Family Code - Sections: 1830]

PROPERTY DISTRIBUTION:

California is a community property state. Except as otherwise provided by statute, all property, real or
personal, wherever situated, acquired by a married person during the marriage while domiciled in this
state is community property. Except upon the written agreement of the parties, or on oral stipulation of the
parties in open court, or as otherwise provided in this division, in a proceeding for dissolution of marriage
or for legal separation of the parties, the court shall divide the community estate of the parties equally.
Separate property is not included in the division of the community estate.

Separate property of a married person includes all of the following: (1) All property owned by the person
before marriage. (2) All property acquired by the person after marriage by gift, bequest, devise, or
descent. (3) The rents, issues, and profits of the property described in this section. (b) A married person
may, without the consent of the person's spouse, convey the person's separate property. After entry of a
judgment of legal separation of the parties, the earnings or accumulations of each party are the separate
property of the party acquiring the earnings or accumulations. [Based on California Family Code -
Sections: 760, 770, 772, 2550]
ALIMONY/SPOUSAL SUPPORT:

The court shall consider all of the following circumstances where determining spousal support: (a) The
ability to maintain the standard of living established during the marriage, taking into account all of the
following: (1) The ability of the spouse seeking support to gain self-supporting employment (2) The extent
to which that spouse's present or future earning capacity was impaired by periods of unemployment
during the marriage to permit the supported party to devote time to domestic duties. (b) The extent to
which the supported party contributed to the attainment of an education, training, a career position, or a
license by the supporting party. (c) The ability of the supporting party to pay spousal support. (d) The
needs of each party based on the standard of living established during the marriage. (e) The obligations
and assets, including the separate property, of each party. (f) The duration of the marriage. (g) The ability
of the supported party to be gainfully employed without unduly interfering with the interests of dependent
children in the custody of the party. (h) The age and health of the parties. (i) Documented evidence of any
history of domestic violence between the parties. (j) The immediate and specific tax consequences to
each party. (k) The balance of the hardships to each party. (l) The goal that the supported party shall be
self-supporting within a reasonable period of time. (m) Any other factors the court determines are just and
equitable. [Based on California Family Code - Sections: 4320]

SPOUSE'S NAME:

In a proceeding for dissolution of marriage or for and anullment, but not in a proceeding for legal
separation of the parties, the court, upon the request of a party, shall restore the birth name or former
name of that party, regardless of whether or not a request for restoration of the name was included in the
petition. [Based on California Family Code - Sections: 2080]

CHILD CUSTODY:

Either parent may be awarded custody. There is neither a preference nor a presumption for or against
joint legal custody, joint physical custody, or sole custody, allowing the court and the family the widest
discretion to choose a parenting plan that is in the best interest of the child. In making a determination of
the best interest of the child when deciding custody, the court shall consider all of the following:

The health, safety, and welfare of the child.

Any history of abuse by one parent or any other person seeking custody against any of the
following: (1) Any child to whom he or she is related by blood or affinity or with whom he or she
has had a care-taking relationship, no matter how temporary. (2) The other parent. (3) A parent,
current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom
the parent or person seeking custody has a dating or engagement relationship.
The nature and amount of contact with both parents, except as provided in Section 3046.
The habitual or continual illegal use of controlled substances or habitual or continual abuse of
alcohol by either parent. The provisions of this subdivision shall not apply if the parties stipulate in
writing or on the record regarding custody or visitation.
Any other factors the court finds relevant.

[Based on California Family Code - Sections: 3010, 3011, 3040]

New York Divorce Laws

Residency and Filing Requirements:

In order to file for a divorce in New York, residency requirements must be met for the court to
accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will
not be accepted or it will eventually be dismissed. The requirements are as follows:

Required residence of parties. An action to annul a marriage, or to declare the nullity of a void
marriage, or for divorce or separation may be maintained only when:

1. The parties were married in the state and either party is a resident thereof when the action is
commenced and has been a resident for a continuous period of one year immediately preceding,
or

2. The parties have resided in this state as husband and wife and either party is a resident thereof
when the action is commenced and has been a resident for a continuous period of one year
immediately preceding, or

3. The cause occurred in the state and either party has been a resident thereof for a continuous
period of at least one year immediately preceding the commencement of the action, or

4. The cause occurred in the state and both parties are residents thereof at the time of the
commencement of the action, or

5. Either party has been a resident of the state for a continuous period of at least two years
immediately preceding the commencement of the action. (Consolidated Laws of New York -
Domestic Relations Laws - Article 13 - Sections: 230 and 231)

Grounds for Filing:

The Complaint for Divorce must declare the appropriate New York grounds upon which the
divorce is being sought. The appropriate lawful ground will be that which the parties agree upon
and can substantiate, or that which the filing spouse desires to prove to the court. The divorce
grounds are as follows:

Action for divorce. An action for divorce may be maintained by a husband or wife to procure a
judgment divorcing the parties and dissolving the marriage on any of the following grounds:

(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the
defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or
improper for the plaintiff to cohabit with the defendant.

(2) The abandonment of the plaintiff by the defendant for a period of one or more years.

(3) The confinement of the defendant in prison for a period of three or more consecutive years
after the marriage of plaintiff and defendant.

(4) The commission of an act of adultery, provided that adultery for the purposes of Articles Ten,
Eleven, and Eleven-A of this Chapter, is hereby defined as the commission of an act of sexual
intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant,
with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual
conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in
Subdivision Two of Section 130.00 and Subdivision Three of Section 130.20 of the penal law.

(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a
period of one or more years after the granting of such decree or judgment, and satisfactory proof
has been submitted by the plaintiff that he or she has substantially performed all the terms and
conditions of such decree or judgment.

(6) The husband and wife have lived separate and apart pursuant to a written agreement of
separation, subscribed by the parties thereto and acknowledged or proved in the form required to
entitle a deed to be recorded, for a period of one or more years after the execution of such
agreement and satisfactory proof has been submitted by the plaintiff that he or she has
substantially performed all the terms and conditions of such agreement. Such agreement shall be
filed in the office of the clerk of the county wherein either party resides. In lieu of filing such
agreement, either party to such agreement may file a memorandum of such agreement, which
memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of
separation and shall contain the following information: (a) The names and addresses of each of
the parties, (b) The date of marriage of the parties, (c) The date of the agreement of separation
and (d) The date of this subscription and acknowledgment or proof of such agreement of
separation.

(7) Irretrievable breakdown in relationship for a least six months.

(Consolidated Laws of New York - Domestic Relations Laws - Volume 8 - Sections: 170 and
Article 10, Section 170, and Article 13, Section 230)

Filing Spouse Title:

Plaintiff. The Plaintiff is the spouse who initiates the filing procedure with the family law or
domestic relations court.

Non-Filing Spouse Title:

Defendant. The Defendant is the spouse who does not file the initial divorce papers, but rather
receives them by service.

Court Name:
Supreme Court of the State of New York, __________ County. This is the New York court
where the divorce will be filed. The court will assign a case number and have jurisdictional
rights to facilitate and grant the orders concerning, but not limited to: property and debt division,
support, custody, and visitation. The name of the court is clearly represented at the top of all
documents that are filed.

Primary Documents:
Complaint for Divorce and Judgment of Divorce. These are the essential documents needed to
start and finalize a divorce according to New York law. There are anywhere from ten to twenty
other documents that may be required throughout the filing process. A few other documents that
are typically filed during the process are: Summons (UD-1), Marital Settlement Agreement,
Sworn Statement of Removal of Barriers to Remarriage (UD-4), Affidavit for Defendant in
Divorce Action (UD-7), Qualified Medical Support Order (UD-8b), and Findings of
Fact/Conclusions of Law (UD-10).

Court Clerk's Title:

Office of the Clerk of the County Court. The clerk or the clerk's assistants will be the people
managing your paperwork with the court. The clerk's office will keep the parties and the lawyers
informed throughout the process in regards to additional paperwork that is needed, further
requirements, and hearing dates and times.

Property Distribution:
Since New York is an "equitable distribution" state, the marital property shall be divided in an
equitable fashion. Equitable does not mean equal, but rather what is fair. The court will
encourage the parties to reach a settlement on property and debt issues otherwise the court will
declare the property award.

Disposition of property in certain matrimonial actions.

a. Except where the parties have provided in an agreement for the disposition of their property
pursuant to subdivision three of this part, the court, in an action wherein all or part of the relief
granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage, and
in proceedings to obtain a distribution of marital property following a foreign judgment of
divorce, shall determine the respective rights of the parties in their separate or marital property,
and shall provide for the disposition thereof in the final judgment.

b. Separate property shall remain such.

c. Marital property shall be distributed equitably between the parties, considering the
circumstances of the case and of the respective parties.
The court shall consider the following factors when distributing property upon divorce:

(1) The income and property of each party at the time of marriage, and at the time of the
commencement of the action;

(2) The duration of the marriage and the age and health of both parties;

(3) The need of a custodial parent to occupy or own the marital residence and to use or own its
household effects;

(4) The loss of inheritance and pension rights upon dissolution of the marriage as of the date of
dissolution;

(5) Any award of maintenance under subdivision six of this part;

(6) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition
of such marital property by the party not having title, including joint efforts or expenditures and
contributions and services as a spouse, parent, wage earner and homemaker, and to the career or
career potential of the other party;

(7) The liquid or non-liquid character of all marital property;

(8) The probable future financial circumstances of each party;

(9) The impossibility or difficulty of evaluating any component asset or any interest in a
business, corporation or profession, and the economic desirability of retaining such asset or
interest intact and free from any claim or interference by the other party;

(10) The tax consequences to each party;

(11) The wasteful dissipation of assets by either spouse;

(12) Any transfer or encumbrance made in contemplation of a matrimonial action without fair
consideration;

(13) Any other factor which the court shall expressly find to be just and proper. (Consolidated
Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236)

Spousal Support:
Not all cases involve support from one spouse to the other. The obligation of one spouse to
support the other financially for a temporary or permanent basis is decided on a case-by-case
basis as agreed to by the parties or at the court's discretion.

In any action or proceeding brought (1) During the lifetime of both parties to the marriage to
annul a marriage or declare the nullity of a void marriage, or (2) For a separation, or (3) For a
divorce, the court may direct either spouse to provide suitably for the support of the other as, in
the court's discretion, justice requires, having regard to the length of time of the marriage, the
ability of each spouse to be self supporting, the circumstances of the case and of the respective
parties. Such direction may require the payment of a sum or sums of money either directly to
either spouse or to third persons for real and personal property and services furnished to either
spouse, or for the rental of or mortgage amortization or interest payments, insurance, taxes,
repairs or other carrying charges on premises occupied by either spouse, or for both payments to
either spouse and to such third persons.

In determining appropriate temporary or permanent maintenance which has been paid. In

determining the amount and duration of maintenance the court shall consider:

(1) The income and property of the respective parties including marital property distributed
pursuant to subdivision five of this part;

(2) The duration of the marriage and the age and health of both parties;

(3) The present and future earning capacity of both parties;

(4) The ability of the party seeking maintenance to become self-supporting and, if applicable, the
period of time and training necessary therefor;

(5) Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of
having foregone or delayed education, training, employment, or career opportunities during the
marriage;

(6) The presence of children of the marriage in the respective homes of the parties;

(7) The tax consequences to each party;

(8) Contributions and services of the party seeking maintenance as a spouse, parent, wage earner
and homemaker, and to the career or career potential of the other party;

(9) The wasteful dissipation of marital property by either spouse;

(10) Any transfer or encumbrance made in contemplation of a matrimonial action without fair
consideration; and

(11) Any other factor which the court shall expressly find to be just and proper. (Consolidated
Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236)

Child Custody:
When minor children are involved in a divorce, the New York courts will do everything possible
to help lessen the emotional trauma the children may be experiencing. If the parents cannot come
to an agreement regarding the issues involving the children, the court will establish the custody
order at its discretion.

In any action or proceeding brought (1) To annul a marriage or to declare the nullity of a void
marriage, or (2) For a separation, or (3) For a divorce, or (4) To obtain, by a writ of habeas
corpus or by petition and order to show cause, the custody of or right to visitation with any child
of a marriage, the court shall require verification of the status of any child of the marriage with
respect to such child's custody and support, including any prior orders, and shall enter orders for
custody and support as, in the court's discretion, justice requires, having regard to the
circumstances of the case and of the respective parties and to the best interests of the child and
subject to the provisions of Subdivision One-C of this Section. (Consolidated Laws of New York
- Domestic Relations Laws - Article 13 - Sections: 240)

Child Support:
New York child support guidelines are based on the Income Shares Model for calculating child support.
The monthly support amount determined by applying the guidelines is divided proportionally according to
each parents income. These two support amounts are then offset to establish which parent will pay the
other parent for support of the child. All income is typically verified by examining past W-2's and child
support worksheets are available at the courthouse.

Order of support by parent. When the court makes an order of support pursuant to the support guidelines,
and where permitted under Federal Law and where the record of the proceedings contains such
information, the court shall require the Social Security Number of such parent to be affixed to such order;
provided, however, that no such order shall be invalid because of the omission of such number. Where
the record of the proceedings contains such information, such order shall also include on its face the
name and address of the employer, if any, of the person chargeable with support provided, however, that
failure to comply with this requirement shall not invalidate such order.

In determining the appropriate support amount the court will consider the following factors, but not limited
to: 1. Financial resources of the parties involved, including the children. 2. The standard of living prior to
the divorce. 3. The physical and mental health of the children. 4. The tax ramifications. 5. Educational
needs of the parents and children. 6. Other children outside the marriage each parent may have.
(Consolidated Laws of New York - Domestic Relations Laws - Article 13 - Sections: 236, 240, and 243)