Nunc pro Tunc Questions?

[Theresalee]

What is the name of your state? Ca..
I can't post in my old thread to remind tou what went on b/c it was closed.
I have a feeling you may remember as it wasn't that long ago.. I am filing under your advise a nunc pro tunc to get a date changed b/c when I got married the date for my first marriage was not legal > (maybe) for 5 days meaning I got married 20 years ago while still married , file judgement has 3 dates the last being the 5 day difference...
O.K heres the issue... I sent for the divorce decree which is in San Diego County a couple weeks ago, (I will call them today on status) but I have'nt received it yet.. I am finding out my husband (maybe) of 20 years has been serching for a lawyer? My question is if it turns out that I did commit bighemy, and I haven't had the chance to fill out the nunc pro tunc yet, Can he just leave the marriage under the circumstances and leave me on the streets with nothing? Is the nunc pro tunc something I only fill out or does he have to sign or fill out any portion etc.. I looked at the forms and I of course don't understand a darn thing on it so I will seek legal counsel for that...
I think if i need him to help me with this I am screwed.. I mean if he thinks a divorce is in the works and I am only doing this nunc pro tunc for that reason then why would he? I haven't told him that was my intention b/c I'm not even sure yet myself.. If counseling and fixing the mariltal problems is a priority with him i will by all means try to work it out but so far he doesn't seem to even want too...
Can I take him to court if he has to sign the papers or be involved in the nunc process but doesn't? and try for something like support or whatever I need? I will have to go anyway for child support for 1 of our kids still under age.. which by the way I found out he talked to her and told her to please stay with him b/c he can't afford child support? Like I can?? I would have to claim bankruptcy on my bills so why not him? Again I am worried I will be out on the streets !!! He has told me before we knew about the Bighemy sp? date if I don't screw him in court he will help me when this was discused at an earlier date when we had problems. Now I don't know what he constitutes screwing him but I know he wont be happy b/c my daughter already has said she wants to live with me.. but if I'm out on the street I guess she wont be with me.....I wouldn't want her to suffer in anyway and if living with her dad helps then I will do whats best for her. Thanks

 

[rmet4nzkx]

Please check with the Court Clerks office in San Diego you should have received your copy of the original decree by now if you sent the required fees and SASE.

NO you husband does not have ot sign the Nunc pro Tunc, he is not party to it and you get it filled out and filed with San Diego after you confirm what the original decree states and the errors corrected based on your declaration and evidence. If you don't get this he can possibly annul or divorce you but not just walk away. If you do get this settled then you have far more options including spousal support since you are disabled. So let us know what the original decree says when you get it and get help from the FLF office to fill it out. Be careful that he doesn't see your computer communications and start checking out the self help legal center and the FLF office you can request mediation and many courts will order it.

 

[Theresalee]

O.K so even if the nunc doesn't get ordered for some strange reasons cause you can clearly see the 3 different dates on my copies which the court will get when I file..... or if he files before i get the nunc filed? We or he has to file for an annulement or divorce even though we wouldn't legaly be married? I thought i was told this earlier by you guys "why file for divorce if you aren't even married? I'm so confused.... Maybe it was my husband that said this but I thought you guys did? Maybe i should ck on my last thread?

 

[rmet4nzkx]

Check with San Diego court and find out when you will get the copy of the Divorce decree.

Then we will worry about the rest, you are getting too confused.

 

[Theresalee]

I got the divorce decree in the mail today and it said it was filed and ordered and you shall not marry before June 10th of that year, we were married June 5th.. Funny cause on this same decree were it says neither partie shall marriy until it gives the date May 2nd? but it was crossed out... I guess I just try and get help filling out this nunc paper work some where in San Benito county the woman here said she is real booked and can't help until May? So I guess I can try and find another county for free legal help then?
O.K so lets say he leaves or ends this relationship and makes me leave or he walks out? Before I get this nunc paper done? Then what?

 

[rmet4nzkx]

Well I'm glad it finally got there.
One of the issues you will have to address is that you were given an incorrect copy of the decree. what was the original filing date of the divorce? Was June 10 6 months after the original filing? Where did the May 5 date come from?
Yes look to a nearby county and call their FLF office or try calling legal aid, tell them you are disabled. If that doesn't work try a local attlrney office or in some counties there are legal assistance offices thaat help with filing forms for minimal fees. You can also see if your county has legal clinics.
Don't panic, just start trying to get help filing out the forms if you cannot figure it out yourself. It's one form and a declaration plus your evidence.

 

[Theresalee]

My ex filed in Nov of 84 but I see on this what happened, a court clerk accidently put May 2nd as the date marital status ends, then down below I see May2nd as a date of our next hearing... Thats what it appears b/c we didn't get our actual paperwork until the custody was done etc.. until Sept of 85... What a mess!!! But I have 2 others here from back then that give June2nd as the date it ends as well then that was crossed out and initialed...
My attorney was a close friend of my moms and didn't charge me anything but filing fees and he wasn't a divoce lawyer so maybe thats were the mistakes came from? I don't know... I had the yellow pages out yesterday for legal aid on help with this. My now husband did't even seem to care what the papers said, he glanced at them then put them down.. but then again why would he care if he wants to end it. I have a feeling, now that the paper work has come, this is when something will happen so I'm sure I'll be back..
Thanks for all the help, I would have never known to do this..
Oh I forgot to mention this as well, I was denied my Social security disability b/c my husband makes to much money? I already sent that paper work off to my work comp attorney. I didn't think it mattered what your household income was? If it was for a disability? Oh well!!!!

 

[rmet4nzkx]

OK you are up early.
go to http://www.leginfo.ca.gov/calaw.html and then to code or civil procedure
473. (a) (1) The court may, in furtherance of justice, and on any
terms as may be proper, allow a party to amend any pleading or
proceeding by adding or striking out the name of any party, or by
correcting a mistake in the name of a party, or a mistake in any
other respect; and may, upon like terms, enlarge the time for answer
or demurrer. The court may likewise, in its discretion, after notice
to the adverse party, allow, upon any terms as may be just, an
amendment to any pleading or proceeding in other particulars; and may
upon like terms allow an answer to be made after the time limited by
this code.
(2) When it appears to the satisfaction of the court that the
amendment renders it necessary, the court may postpone the trial, and
may, when the postponement will by the amendment be rendered
necessary, require, as a condition to the amendment, the payment to
the adverse party of any costs as may be just.
(b) The court may, upon any terms as may be just, relieve a party
or his or her legal representative from a judgment, dismissal, order,
or other proceeding taken against him or her through his or her
mistake, inadvertence, surprise, or excusable neglect. Application
for this relief shall be accompanied by a copy of the answer or other
pleading proposed to be filed therein, otherwise the application
shall not be granted, and shall be made within a reasonable time, in
no case exceeding six months, after the judgment, dismissal, order,
or proceeding was taken. However, in the case of a judgment,
dismissal, order, or other proceeding determining the ownership or
right to possession of real or personal property, without extending
the six-month period, when a notice in writing is personally served
within the State of California both upon the party against whom the
judgment, dismissal, order, or other proceeding has been taken, and
upon his or her attorney of record, if any, notifying that party and
his or her attorney of record, if any, that the order, judgment,
dismissal, or other proceeding was taken against him or her and that
any rights the party has to apply for relief under the provisions of
Section 473 of the Code of Civil Procedure shall expire 90 days after
service of the notice, then the application shall be made within 90
days after service of the notice upon the defaulting party or his or
her attorney of record, if any, whichever service shall be later. No
affidavit or declaration of merits shall be required of the moving
party. Notwithstanding any other requirements of this section, the
court shall, whenever an application for relief is made no more than
six months after entry of judgment, is in proper form, and is
accompanied by an attorney's sworn affidavit attesting to his or her
mistake, inadvertence, surprise, or neglect, vacate any (1) resulting
default entered by the clerk against his or her client, and which
will result in entry of a default judgment, or (2) resulting default
judgment or dismissal entered against his or her client, unless the
court finds that the default or dismissal was not in fact caused by
the attorney's mistake, inadvertence, surprise, or neglect. The
court shall, whenever relief is granted based on an attorney's
affidavit of fault, direct the attorney to pay reasonable
compensatory legal fees and costs to opposing counsel or parties.
However, this section shall not lengthen the time within which an
action shall be brought to trial pursuant to Section 583.310.
.......
475. The court must, in every stage of an action, disregard any
error, improper ruling, instruction, or defect, in the pleadings or
proceedings which, in the opinion of said court, does not affect the
substantial rights of the parties. No judgment, decision, or decree
shall be reversed or affected by reason of any error, ruling,
instruction, or defect, unless it shall appear from the record that
such error, ruling, instruction, or defect was prejudicial, and also
that by reason of such error, ruling, instruction, or defect, the
said party complaining or appealing sustained and suffered
substantial injury, and that a different result would have been
probable if such error, ruling, instruction, or defect had not
occurred or existed. There shall be no presumption that error is
prejudicial, or that injury was done if error is shown.
--------
Look at this entire section because this allows the judge to do the Nunc pro Tunc due to error, mistake...... which you only just discovered, also the clerks mistake and your belief that the divorce was complete in May was 6 months after the divorce filing and could have been awarded even though the custody issues were reserved.

 

[rmet4nzkx]

Have you actually filed for Social Security disability or did you apply for SSI which can be denied for the reasons you stated, SSI is needs based. Your Attorney may be able to help you or you may need to consult with a Social Security attorney or your local Independent living resources center for assistance with the application.

 

[Theresalee]

Thanks for all that info, wish I understood it well, but good enough to know this nunc pro tunc will work, just b/c of the mistakes that are seen in front of me on all my paper work alone...
As for Social Security that went through my mind as well, I may have filed for the wrong thing which I don't understand b/c the lady in the office knew what I needed, maybe my attorney will be able to see whats up with it, They said they can appeal if it in fact is NO.
I do have another question, I am disabled and I have a hearing date set for May. I haven't gotten any money except tempoary disability which in ther eyes ran out? If my husband and i are going through this divorce do I have to give him half of the money for my injuries? I know I will take the lower mount to recieve lifetime medical too as I wont have Insurance after we part. I would like to use this (if I get any) to start my life with. I don't have a problem giving him his share if I have too since he has supported me for a lot of years even though I did my share raising 5 kids and working when they got into school. Since my injury happened when we were together I was just wondering what could happen with that? Thank You!! You have been such a great help!!!

 

[rmet4nzkx]

OK so when you write your declaration you will explain the mistake and cite cccp473, apparently the clerk counted wrong and entered the wrong date for the divorce being final. Try to get this done ASAP and get it filed this week or next. You might try calling San Diego FLF office, tell them you are in San Benito county and they are backed up and that you are asking them to assist you with the Nunc pro Tunc under CA Rules of Court 989.3 ADA Accommodations and that you would like them to review it for form and to allow telephonic conference if needed.

There is so much going on that can go many ways, there is no way for me to advise you much more.

Speak with your attorney and get referals from them. Call the people at independent living center they can help with a lot of things including reconsideration. I have a feeling you didn't apply for Social Security Disability but SSI perhaps pending SSDI getting approved??? You will be eligible for Medi-Cal, if you only have disability income or no income in the case of divorce, possibly not if you get spousal support, Medicare doesn't start until 29 months after date of qualifying disability, so it is important to get medical coverage if you get divorced.

 

[Theresalee]

Thank you so much rmet4nzkx

You have really helped as you can see I am up at all hours with worry and pain.... But I will be able to do this just fine..... I have too...
Now when I call the court about the rules of the court 989.3 ADA acomendations to review it for telephonic conference, is that for help in filling out the nunc pro tunc or hoping they will just go ahead and fix the mistake? I guess wishful thinking LOL... Do I just call family law division were it was filed and they made the mistake? Who do I ask for? b/c if you don't know they just say well i don't know what to tell you????
Again thank you..

 

[rmet4nzkx]

Contact their ADA coordinator and also file MC410 form with San Diego court if you have a FAX ask to Fax.
http://www.sdcourt.ca.gov/portal/page?_pageid=53,129199&_dad=portal&_schema=PORTAL

 

[Theresalee]

I do have a fax and will do so but my case isn't finished yet through work comp.. I am labeled temp. disabled until then. Not sure if this makes a difference or not...
Also I can't find help anywgere near here that will help me fill this out for no money, I called Legal aid saying I just found out i wasn't really married and am trying to fix it but I have no money and they said we don't help filling out forms?? I am going to look and see if you guys posted a link somewhere were I can look it up.. I live in San Benito county but am close to Santa cruz county and Monterey county as well.. Actually my yard seperates the counties (not that any of this matters) or will I even need this if I do the above with the San Diego courts? Should I continue to try to find someone or wait until I talked to The S.D court about ADA and the form I need? Sorry I am so lame about this but I don't have a clue!! To be honest when I went to the free consult it appears you know more then they do as well!!!!

 

[Theresalee]

I am reading the ADA page and it's becoming clearer now, I don't think you have to answer the above ques except do i still qualify if I'm still in the process of my work comp claim or should i ask them? If they say NO then I will ask the other questions!!! Duh!! I will get this yet......