CALIF: Re-divorce after 6 years or thinking I was divorced...

What is the name of your state? CALIFORNIA

FACT; I have been seperated from X since 2000. We live in two seperate counties. We have 2 children of which I have been sole custodian of for 5 and a half years(X took off with cousin and avioded/abandoned children - desired no visitation until recently). X filed all the divorce paperwork, I received copies, I signed final paperwork and sent back... 6 years later, I find out divorce was never finalized...

QUESTION; What can I do? Is there a way to file a default after all these years? What is that process? How do I go about getting a change of Venue and where do I find the points and authorities for a venue change?

FACT; I went today (7-3-06) to have paperwork completed to finalize divorce; Was told that X has now decided to ask for Spousal Support (after giving that up 6 years ago).

QUESTION; Can X ask for Spousal Support after so many years and after the original paperwork said she waived it? She also makes pretty close to what I make now - and I have custody of the 2 children. We spilt after 9 years of marriage.


FACT; X has three year old child with 2nd Cousin. Cousin is in prison for Assault/Drugs and when he gets out, he'll be back with her...

QUESTION; Isn't this illegal? How can I use this to prove X unfit?

FACT; X lives in a one bedroom apartment, with child she had with cousin. Oldest of our children is 13. can court demand that he have his own room, if he decides to go live with her? X shares her room with her 3 year old.

FACT; X owes father child support for past 6 years, Child support office has done nothing to collect from her for our two children. She still has her license and owes $35,000.00 in child support and arrears.

QUESTION; How can I make them enforce the order? How long does a wage assignment take to enforce? What about them pulling her license?


Thank you for your time!!
SEB1670

SEB1670 said:

What is the name of your state? CALIFORNIA

FACT; I have been seperated from X since 2000. We live in two seperate counties. We have 2 children of which I have been sole custodian of for 5 and a half years(X took off with cousin and avioded/abandoned children - desired no visitation until recently). X filed all the divorce paperwork, I received copies, I signed final paperwork and sent back... 6 years later, I find out divorce was never finalized...

QUESTION; What can I do? Is there a way to file a default after all these years? What is that process? How do I go about getting a change of Venue and where do I find the points and authorities for a venue change?

Click to expand...

After six years its likely that the courts have closed out the original case. If so, you are free to file a new case in your county.

FACT; I went today (7-3-06) to have paperwork completed to finalize divorce; Was told that X has now decided to ask for Spousal Support (after giving that up 6 years ago).

Click to expand...

Well, if you somehow re-opened the old case then you may have to petition to have the venue changed.

QUESTION; Can X ask for Spousal Support after so many years and after the original paperwork said she waived it? She also makes pretty close to what I make now - and I have custody of the 2 children. We spilt after 9 years of marriage.

Click to expand...

She can ask....however I don't know how successful she might be since you can prove that she did without it for six years.

FACT; X has three year old child with 2nd Cousin. Cousin is in prison for Assault/Drugs and when he gets out, he'll be back with her...

QUESTION; Isn't this illegal? How can I use this to prove X unfit?

Click to expand...

If by illegal do you mean legally incestious? I don't know for sure about CA, but in most states its legal to marry a second or third cousin.

FACT; X lives in a one bedroom apartment, with child she had with cousin. Oldest of our children is 13. can court demand that he have his own room, if he decides to go live with her? X shares her room with her 3 year old.

Click to expand...

A court can take adequate living space into consideration when deciding custody. However, your 13 year old doesn't get to "decide" where he/she lives.

FACT; X owes father child support for past 6 years, Child support office has done nothing to collect from her for our two children. She still has her license and owes $35,000.00 in child support and arrears.

Click to expand...

Well...that might contradict to some extent the argument that she has "done without" spousal support for six years.

QUESTION; How can I make them enforce the order? How long does a wage assignment take to enforce? What about them pulling her license?

Click to expand...

By being a very "squeeky wheel". However, if the child support was part of the divorce that was never finalized, then she may not technically owe child support. If it was ordered separately, then she does.

To a great extent the fact that you were never divorced more or less re-opens alot of issues. In most cases the court would have dismissed your case long before six years passed...so that requires starting over. If you somehow managed to re-open the original case, then it could be different.

I hope you have an attorney on this one. If not, at least consult with one.

Get a copy of the old court file for your records - see if any support orders exist in that case. If support orders exist, file a Motion To Change Venue to the county you and the children live in. Even if the case was dismissed for lack of prosecution, you may have an argument (at least there's proof) of the separation date and child support, in Ca, can be ordered as of the filing date (it will be heavily argued, if no support order exists)
Check with the Child Support Enforcement dept - what order are they trying to enforce ? They may have converted the other county's order to an order from your county (reassigned a court number and registered the order) - this may allow you to proceed without a Motion; depends on what's in the court file(s). Go to each courthouse and try to get a copy of the file (you can review your file at court, they sometimes will set another date for copying - ask to review the file and then order the copies).

Whenever you file, have her served with a copy before you file any paperwork with the court.
If you do have to file the Motion To Change Venue, point out that you and the children reside in X county, which is a more convenient venue. Note the separation date of six years ago & be sure the paperwork reflects that the kids have been with you, solely, for the last six years.

Check out Nolo Press's (they're on the net & all major bookstores) 'do it yourself' divorce book(s) - it's excellent.

Any info you want the Judge to know, put it in writing, somehow.
Verbal comments in court are remembered for a short period - the written filings are a permanent reminder to the Judge who will, hopefully, review the file prior to each appearance. Don't throw mud - (e.g. just say 'Respondent abandoned me and our children for another man (my cousin) on X/X/2000, and has only seen the children X times since that date' - [that's plenty of dirt])
Be patient with the court paperwork. Be sure you get the imp info before the Judge, esp the fact that she abandoned the children, and you, 6 years ago, has paid no child support, and has cohabited with another man & had his child & will be back with this man after he gets out of jail.

It would be a crazy Judge who would order spousal support. However, if you never had an order for child support, you may only recover money from the current date (it doesn't sound as tho she can pay much)
Read up on the Nolo books & good luck.

SEB1670 said:

What is the name of your state? CALIFORNIA

FACT; I have been seperated from X since 2000. We live in two seperate counties. We have 2 children of which I have been sole custodian of for 5 and a half years(X took off with cousin and avioded/abandoned children - desired no visitation until recently). X filed all the divorce paperwork, I received copies, I signed final paperwork and sent back... 6 years later, I find out divorce was never finalized...

QUESTION; What can I do? Is there a way to file a default after all these years? What is that process? How do I go about getting a change of Venue and where do I find the points and authorities for a venue change?

FACT; I went today (7-3-06) to have paperwork completed to finalize divorce; Was told that X has now decided to ask for Spousal Support (after giving that up 6 years ago).

QUESTION; Can X ask for Spousal Support after so many years and after the original paperwork said she waived it? She also makes pretty close to what I make now - and I have custody of the 2 children. We spilt after 9 years of marriage.


FACT; X has three year old child with 2nd Cousin. Cousin is in prison for Assault/Drugs and when he gets out, he'll be back with her...

QUESTION; Isn't this illegal? How can I use this to prove X unfit?

FACT; X lives in a one bedroom apartment, with child she had with cousin. Oldest of our children is 13. can court demand that he have his own room, if he decides to go live with her? X shares her room with her 3 year old.

FACT; X owes father child support for past 6 years, Child support office has done nothing to collect from her for our two children. She still has her license and owes $35,000.00 in child support and arrears.

QUESTION; How can I make them enforce the order? How long does a wage assignment take to enforce? What about them pulling her license?


Thank you for your time!!
SEB1670

Click to expand...

The first thing you need to do is order a complete copy of your divorce file, it may be as simple as petitioning the court to grant the divorice, nunc pro tunc since your other orders for custody and child support are already in place, but you may need an attorney for this but much will depend on exactly why the final decree wasn't issued. Depending on the facts and what the file shows and the length of your marriage, spousal is still a possibility although not likely. Have you or DCSS filed to enforce the child support order?

Now for the real kicker, the child born to your wife while separated, did you file to disestablish paternity? How long ago did you discover that she had this child? Again, if you can get the nunc pro tunc, that will solve most of your problems.
if there was an error, Nunc Pro Tunc, call the family law court in the county where your divorce was final and ask their local rules for this so you can place your declaration on the correct form. They do it all the time. The will have a stamp for it, because they do it all the time. This will cost you a lot less than getting a divorce or remarrying and you will still have the same length of marriage should you become divorced.
California Family Code
2346. (a) If the court determines that a judgment of dissolution of
the marriage should be granted, but by mistake, negligence, or
inadvertence, the judgment has not been signed, filed, and entered,
the court may cause the judgment to be signed, dated, filed, and
entered in the proceeding as of the date when the judgment could have
been signed, dated, filed, and entered originally, if it appears to
the satisfaction of the court that no appeal is to be taken in the
proceeding or motion made for a new trial, to annul or set aside the
judgment, or for relief under Chapter 8 (commencing with Section 469)
of Title 6 of Part 2 of the Code of Civil Procedure.
(b) The court may act under subdivision (a) on its own motion or
upon the motion of either party to the proceeding. In contested
cases, the motion of a party shall be with notice to the other party.

(c) The court may cause the judgment to be entered nunc pro tunc
as provided in this section, even though the judgment may have been
previously entered, where through mistake, negligence, or
inadvertence the judgment was not entered as soon as it could have
been entered under the law if applied for.
(d) The court shall not cause a judgment to be entered nunc pro
tunc as provided in this section as of a date before trial in the
matter, before the date of an uncontested judgment hearing in the
matter, or before the date of submission to the court of an
application for judgment on affidavit pursuant to Section 2336. Upon
the entry of the judgment, the parties have the same rights with
regard to the dissolution of marriage becoming final on the date that
it would have become final had the judgment been entered upon the
date when it could have been originally entered.

Case is in Santa Clara County, I've been in Stanislaus County for 5 years. She filed the divorce. I filed the Child support. She's to pay 500.00+ a month (as of recently because of her failure to pay in the past few years...

X's child has father/cousin's name on Birth Certificate, not mine. She always stated he isn't mine.
Q; What does the law say on incestuous relationships with cousins? She never married the cousin - probably because she knew she didn't finalize our divorce....

This is the only thing I could find, and no mention of a cousin...
CA Family Code Section 2200. Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.

- What the heck does this mean in laymen's terms???



There has always been an order for child support - I filed that. It was seperate from the 'divorce' - I guess if it had been part of the divorce I'd have found out a long time ago that it wasn't finalized...lol...

The Facilitator said the case was a 'dead' case because X never turned in the paperwork that I signed... I know now I shouldn't have trusted her to file it...The Facilitator stated that we are to file a new case - or that she opened it up for us... because we had filled out the paperwork as if we were filing divorce... seperation of assests, ect... She was going to have a Judge come in right there and sign the paperwork and we'd be done... However, I stepped out of the room for a minute and she told the facilitator that she wanted to file for Spousal support and that she didn't agree with anything....

I AM WILLING to give her visitation on a regular basis; with certain stipulations...
1. She picks up the children at the beginning of the visitation, and I will pick them up afterwards... IF she does not pick them up on the designated friday, it is simply a missed visitation not to be recaptured... I just went through a 3 day drama about how she was going to get the kids for this weekend... and it was ridiculous! First her

Before this; she has NEVER had a desire to pick up the kids... Last time before this she had the kids for a few days after thanksgiving and a week after X-mas day... that's it.

I am not willing to give up legal/physical custody. And she can pretty much see them when she wants - but she has to make the effort.

The other thing I'd like to stipulate is that she is not to continue to have the incestuous relationship while having the children and if he lives with her all visitation stops... CAN I DO THIS and how can it be worded correctly/acceptibly for a court?


Thank you for your time!!
SEB1670

SEB1670 said:

Q; What does the law say on incestuous relationships with cousins? She never married the cousin - probably because she knew she didn't finalize our divorce....

This is the only thing I could find, and no mention of a cousin...
CA Family Code Section 2200. Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.

- What the heck does this mean in laymen's terms???

Click to expand...

That means that its legal to marry a cousin, therefore the relationship would not be legally incestuous. Cousins aren't named, and cousins are not ancestors or descendants.

There has always been an order for child support - I filed that. It was seperate from the 'divorce' - I guess if it had been part of the divorce I'd have found out a long time ago that it wasn't finalized...lol...

Click to expand...

Good, so you are ok there.

The Facilitator said the case was a 'dead' case because X never turned in the paperwork that I signed... I know now I shouldn't have trusted her to file it...The Facilitator stated that we are to file a new case - or that she opened it up for us... because we had filled out the paperwork as if we were filing divorce... seperation of assests, ect... She was going to have a Judge come in right there and sign the paperwork and we'd be done... However, I stepped out of the room for a minute and she told the facilitator that she wanted to file for Spousal support and that she didn't agree with anything....

Click to expand...

Unfortunately, that opens things back up....although I doubt she has an real chance of getting spousal support.

I AM WILLING to give her visitation on a regular basis; with certain stipulations...
1. She picks up the children at the beginning of the visitation, and I will pick them up afterwards... IF she does not pick them up on the designated friday, it is simply a missed visitation not to be recaptured... I just went through a 3 day drama about how she was going to get the kids for this weekend... and it was ridiculous! First her

Before this; she has NEVER had a desire to pick up the kids... Last time before this she had the kids for a few days after thanksgiving and a week after X-mas day... that's it.

I am not willing to give up legal/physical custody. And she can pretty much see them when she wants - but she has to make the effort.

The other thing I'd like to stipulate is that she is not to continue to have the incestuous relationship while having the children and if he lives with her all visitation stops... CAN I DO THIS and how can it be worded correctly/acceptibly for a court?

Click to expand...

You don't have any choice about visitation. If she wants visitation she will get visitation, and it will be on the judge's terms, not yours. Either you come to an agreement or the judge decides. Most likely the judge is going to give her standard visitation (every other weekend, rotating holidays and a decent chunk of the summer.)

Since her relationship with the cousin isn't legally incestuous, the judge can't order her to give up her relationship with the cousin....at least not based on that. However, didn't you say that he is in jail? Its possible that you could convince the judge to order that he can't be around the children during visitation, if his crimes were such that he could be considered as legitimately dangerous to children.

Even though she has not been much of a mother for the last 6 years she does have rights....therefore you are not going to be able to call all the shots.

I do sympathize with your distaste over her having a relationship with her second cousin, but if its not illegal, there is nothing you can do about it.

I am willing to give her chance(s) with visitation of the kids. I'd like to keep sole physical and sole legal custody until she proves to the kids that she is going to be consistent with visitation. Then I'd be willing to change it to Joint Legal/ Physical.

I'd be willing to give her joint physical custody with my having Sole legal and Joint physical.

The Cousin's record should be proof enough to the Judge that he's a habitual criminal. And she has been warned that I will do what I can to protect the kids from that kind of environment. That's how I got custody in the first place.. I told her either she quits selling and doing drugs or I'm taking the kids - she packed their things and I left with them... Then she didn't want contact and avioded the support order moving out of state and now that the kids are bigger and her cousin is in prison, she wants a relationship/visitation with them..

One of the kids is ADHD, and is in a special school. He's considered special needs. She wants him to go to school where she lives, yet there are no special needs schools in or near her area...

If the kids are in summer school, I'm willing to work out a summer schedule for her to have visitation.

I AM willing to work visitation out - as long as it's in the kids best interest...


Thank you again!!
SEB1670

SEB1670 said:

Case is in Santa Clara County, I've been in Stanislaus County for 5 years. She filed the divorce. I filed the Child support. She's to pay 500.00+ a month (as of recently because of her failure to pay in the past few years...

Click to expand...

Then you have several options, but you are best using an attorney.

X's child has father/cousin's name on Birth Certificate, not mine. She always stated he isn't mine.
Q; What does the law say on incestuous relationships with cousins? She never married the cousin - probably because she knew she didn't finalize our divorce....

Click to expand...

Then she presented herself as divorced when they signed the Affidivit of paternity in order to get his name on the Birth Certificate, this may be grounds to get your divorce finalized nunc pro tunc because of her failure to turn in the forms and later presenting herself as divorced, she is estopped under the evidence code. THere is a 2 year rule, you have 2 years from the time you discovered the baby wasn't yours, you can petition the court to establish paternity and SHE will have to pay for the test if YOU are not the father, that may in and of its self make her cooporate with the nunc pro tunc final decree.

This is the only thing I could find, and no mention of a cousin...
CA Family Code Section 2200. Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.

- What the heck does this mean in laymen's terms???

Click to expand...

THat means you can't marry 1st degree relatives, your mother/father/ siblings/aunts/ uncles/nieces/ nephews. 1st or second cousins may marry, sorry I forgot to mention that.

There has always been an order for child support - I filed that. It was seperate from the 'divorce' - I guess if it had been part of the divorce I'd have found out a long time ago that it wasn't finalized...lol...

The Facilitator said the case was a 'dead' case because X never turned in the paperwork that I signed... I know now I shouldn't have trusted her to file it...The Facilitator stated that we are to file a new case - or that she opened it up for us... because we had filled out the paperwork as if we were filing divorce... seperation of assests, ect... She was going to have a Judge come in right there and sign the paperwork and we'd be done... However, I stepped out of the room for a minute and she told the facilitator that she wanted to file for Spousal support and that she didn't agree with anything....

Click to expand...

Seriously look into nunc pro tunc especially if they reopened the case, let your ex know that way she will save money on paying for the paternity test, because if she insists on asking for spousal support, that will backfire, and you would have to disestablish paternity without the nunc pro tunc. If she will not agree to the nunc pro tunc and you cannot get it otherwise, be sure to get an attorney, file for spousal support, file to disestablish paternity, and for attorney's fees. If there is no visitaiton order, wait until she files for that, otherwise file for sole legal and residential custody, she can file for visitation. Since you have a special needs child petition the court to appoint a Guardian ad Litem. If you really want to, you could file for custody and visitaiton of the other child of your marriage. More than likely she will agree to th enunc pro tunc final decree.

I AM WILLING to give her visitation on a regular basis; with certain stipulations...
1. She picks up the children at the beginning of the visitation, and I will pick them up afterwards... IF she does not pick them up on the designated friday, it is simply a missed visitation not to be recaptured... I just went through a 3 day drama about how she was going to get the kids for this weekend... and it was ridiculous! First her

Before this; she has NEVER had a desire to pick up the kids... Last time before this she had the kids for a few days after thanksgiving and a week after X-mas day... that's it.

Click to expand...

What is the wording on your current visitation, is there a schedule or is it "reasonable" If it is reasonable and you already have sole custody, then you essentially call the shots. You can request that any visits are as you suggested and you can ask the court to limit the presense of adult relatives beyond 1st degree relatives, a judge may or not order that.

I am not willing to give up legal/physical custody. And she can pretty much see them when she wants - but she has to make the effort.

Click to expand...

How have the few visits gone? Is the transportation arrangement you mentioned feasible? Will you be able to pick them up?

The other thing I'd like to stipulate is that she is not to continue to have the incestuous relationship while having the children and if he lives with her all visitation stops... CAN I DO THIS and how can it be worded correctly/acceptibly for a court?

Click to expand...

It is not incestious.


Thank you for your time!!
SEB1670[/QUOTE]
You are welcome, keep us updated.

Visitation is stated as Reasonable. What little visitation she has had has been interesting to say the least... she'll have the kids for a day or two before she's calling saying that she can't handle them and that she wants me to come get them.

She tells me now that she wants only one of our kids at a time because she can't handle all three of the kids at once (our two and her one). And she's only had two visitations in the last year!!

I have told her everytime that I will pick the kids up on Sunday's, as long as she picks them up on Friday's. The problem is that she doesn't want to drive all that way (100+) My gf has offered to drive them up if X will pay gas. And after 3 days of drama, X finally came to the conclusion that if she offered to pay gas, maybe we could take them down. My gf has made it perfectly clear to my X that our kids aren't her responsibility to pick up and drop off the kids (She has a car - I have a motorcycle) BUT she won't charge me gas...lol...She agreed this time because the kids really wanted to go(it was the younger's B-day) ... and the X was talking about getting bus tickets, or BART tickets, or ??, or asking 10 different relatives if they could come and used the excuse that her mom won't let her drive her own car to get her kids... Anyway, NO, my picking up the kids won't be a problem. (And we will be getting another car soon).

I won't take the kids to her on Fridays out of fear that she'll try to make me come get them again on Sunday - So if she wants to see the kids, she has to come get them, and I'll retreive them... I don't want a long drawn out court drama over how much in gas she owes me, or having to file police reports for kidnapping or failure to return the kids, etc... It's fair to split the difference in traveling.

This is all another good reason to have a more defined visitation plan. Everything's all spelled out and hopefully no loop holes...

I understand now that the relationship isn't legally considered incestuous...

I will definately look into all that you have suggested!

Thank you!
SEB1670