consequences of default judgment - CA legal separation

[pjjones]

What is the name of your state? CA

Are there any negative consequences I should be aware of if I get a default judgment of legal separation from CA?

My situation: I'm a NY state resident and will remain so for the foreseeable future. My spouse just moved to San Francisco and intends to stay there. NY state does not allow no-fault divorce or legal separation, and my spouse does not want a fault-based divorce or separation. For tax purposes, we need either a divorce or judgment of separation before the end of 2006. We think that best option would for my CA spouse to file for legal separation as soon as possible in San Francisco, since there is no residency or waiting period requirement for legal separation. It appears that my spouse would need to pay a $335 filing fee when filing the initial papers (Forms FL-100 and FL-110). After I am served with the papers, I would need to file Form FL-120 (the Response) within 30 days, or I could get a default judgment. It appears that if I file Form FL-120, I'd have to pay a $335 filing fee. This is an outrageous amount of fees - $670 between the 2 of us! NY state fees add up to only about $400 total. We're separating and divorcing due to financial difficulties but would not qualify for any fee waiver. So, my question is, given that we are not contesting the case, would there be any negative consequence of my not filing the FL-120 (or actually I was thinking of sending it in with a not attached stating that I'm not contesting the case and would be fine with a default judgment if my FL-120 can't be processed due to my not including the fee) and getting the default judgment?

I know that sometimes out-of-state spouses who have gotten default divorce judgments have been able to challenge the validity of the divorce and property distribution orders due to jurisdiction; normally the divorce judgment is upheld because the state court of either spouse's residency does have jurisdiction over anything affecting the status of the marriage, but the property distribution is open to attack because the court might not have personal jurisdiction over the nonresident spouse if the nonresident spouse never participated in the case. However, I don't think this lack of personal jurisdiction would apply in my case, as we will also be submitting a settlement agreement signed by both of us and hopefully my including a note would let them know that I consent to the case; perhaps someone can comment on whether my reasoning is correct here?

 

[LdiJ]

Well, first, I am not sure that NY requires a legal separation to be "fault based". I could be wrong, but you should check that out more thoroughly.

The danger in not filing a response (and/or not showing up in court) is that your spouse could ask for anything that he/she wants, and be granted it. So you could end up screwed on the issues of debts, assets, spousal support or child custody matters.

 

[pjjones]

more on CA fees - "amended petition" for divorce?

Thanks for your quick response LdiJ. I have researched the issue quite a bit and found that NY does require court-ordered legal separation to be fault based.

Spouse and I have already agreed to the terms, so that's not an issue. I was just wondering if there could be other pitfalls to getting judgment by default.

As for my other thread, sorry, I did not know that it's best to put all my questions in one thread. I thought having multiple threads would allow people to see the individual questions/topics and decide whether they might have an answer or were interested in reading.

On that note, I'll pose my next question here: suppose we get a legal separation in San Francisco, and 6 months later, after satisfying residency requirements, my spouse files an "amended petition" to ask the court for a divorce, which the www.courtinfo.ca.gov site says we can do. Would my spouse need to pay another filing fee for the "amended petition"? Or would the filing fee paid for the separation cover the amended petition?

 

[rmet4nzkx]

Actually NY does have a form of no fault divorce if you meet the terms, but if you havent started the paperwork it would not be ready before 2007. A dissolution action may be started in San Francisco County if one or both spouses/partners have resided in this county for at least the last 3 months and in the state of California for at least 6 months. Cases involving legal separation or nullity have less strict residency requirements. For legal separation or nullity cases, one or both spouses/partners need only be a resident of the county at the time this case is started. There is no duration of residency requirement for these types of marital actions. While your spouse might establish residency in CA before the year is out (6 months in CA and 3 mo in the county), remember CA is a community property state. Depending on the circumstances there is a Summary dissolution for which you might qualify if you can agree on he settlement and establish a date of separation, here is the SR SUp Court website
http://www.sfgov.org/site/courts_page.asp?id=3666
Here are the instructions http://www.courtinfo.ca.gov/forms/documents/fl810.pdf
Here is a link to SF county SUperior court Family Law Faciliator's office.
http://www.sfgov.org/site/courts_page.asp?id=3790
and the local rules
http://www.sfgov.org/site/uploadedfiles/courts/rule_11.pdf
Also see the link re telephone appearance.

WHy do you need to be divorced or legally separated before year's end?

 

[Bali Hai]

What is the name of your state? CA

Are there any negative consequences I should be aware of if I get a default judgment of legal separation from CA?

My situation: I'm a NY state resident and will remain so for the foreseeable future. My spouse just moved to San Francisco and intends to stay there. NY state does not allow no-fault divorce or legal separation, and my spouse does not want a fault-based divorce or separation. For tax purposes, we need either a divorce or judgment of separation before the end of 2006. We think that best option would for my CA spouse to file for legal separation as soon as possible in San Francisco, since there is no residency or waiting period requirement for legal separation. It appears that my spouse would need to pay a $335 filing fee when filing the initial papers (Forms FL-100 and FL-110). After I am served with the papers, I would need to file Form FL-120 (the Response) within 30 days, or I could get a default judgment. It appears that if I file Form FL-120, I'd have to pay a $335 filing fee. This is an outrageous amount of fees - $670 between the 2 of us! NY state fees add up to only about $400 total. We're separating and divorcing due to financial difficulties but would not qualify for any fee waiver. So, my question is, given that we are not contesting the case, would there be any negative consequence of my not filing the FL-120 (or actually I was thinking of sending it in with a not attached stating that I'm not contesting the case and would be fine with a default judgment if my FL-120 can't be processed due to my not including the fee) and getting the default judgment?

I know that sometimes out-of-state spouses who have gotten default divorce judgments have been able to challenge the validity of the divorce and property distribution orders due to jurisdiction; normally the divorce judgment is upheld because the state court of either spouse's residency does have jurisdiction over anything affecting the status of the marriage, but the property distribution is open to attack because the court might not have personal jurisdiction over the nonresident spouse if the nonresident spouse never participated in the case. However, I don't think this lack of personal jurisdiction would apply in my case, as we will also be submitting a settlement agreement signed by both of us and hopefully my including a note would let them know that I consent to the case; perhaps someone can comment on whether my reasoning is correct here?

You need a lawyer.

 

[pjjones]

Actually NY does have a form of no fault divorce if you meet the terms, but if you havent started the paperwork it would not be ready before 2007.
[...]
WHy do you need to be divorced or legally separated before year's end?

Thanks for the CA info and links. As for NY, I believe you are talking about the procedure where the parties file a separation agreement and live separate and apart for a year, and then they get a no-fault divorce. This arrangement is not acceptable to me, which leads me to the reason I need to be divorced or legally separated before year's end. For a few reasons, most notably a significant marriage tax penalty, we need to be able to file our personal income tax returns as single individuals. You can file under the single filing status for the year only if, by December 31, you're divorced under a final divorce or legally separated under a court decree of separate maintenance. After a fair amount of research, I have come to the conclusion that the separation agreement option in NY does not satisfy the Internal Revenue Code's "legally separated under a court decree of separate maintenance" criterion because there is no official court order. To get a court ordered separation in NY requires proving fault. Fortunately, the court ordered legal separation in CA can be no-fault and does not have residency time requirements, so my spouse who just moved to San Francisco can file for legal separation.

I just wanted to see if anyone knows of the potential pitfalls of getting a default judgment (since I'm trying to save on filing fees, given that financial problems are the reason for the separation/divorce), as well as how long a CA legal separation takes to get processed. The CA courts web site says something along the lines of a few weeks to a few months, but I'd like to hear from anyone who has gone through the process or knows people who have gone through the process.

 

[rmet4nzkx]

Thanks for the CA info and links. As for NY, I believe you are talking about the procedure where the parties file a separation agreement and live separate and apart for a year, and then they get a no-fault divorce. This arrangement is not acceptable to me, which leads me to the reason I need to be divorced or legally separated before year's end. For a few reasons, most notably a significant marriage tax penalty, we need to be able to file our personal income tax returns as single individuals. You can file under the single filing status for the year only if, by December 31, you're divorced under a final divorce or legally separated under a court decree of separate maintenance. After a fair amount of research, I have come to the conclusion that the separation agreement option in NY does not satisfy the Internal Revenue Code's "legally separated under a court decree of separate maintenance" criterion because there is no official court order. To get a court ordered separation in NY requires proving fault. Fortunately, the court ordered legal separation in CA can be no-fault and does not have residency time requirements, so my spouse who just moved to San Francisco can file for legal separation.

I just wanted to see if anyone knows of the potential pitfalls of getting a default judgment (since I'm trying to save on filing fees, given that financial problems are the reason for the separation/divorce), as well as how long a CA legal separation takes to get processed. The CA courts web site says something along the lines of a few weeks to a few months, but I'd like to hear from anyone who has gone through the process or knows people who have gone through the process.

You need to re read the NY no fault divorce requirements, about a month after filing the agreement the court will issue the Separation order, it doesn't involve fault and after 1 year as long as the moving party follows the agreement and there is no contest you may petition for the no fault divorce.

Is your wife motovated to get a divorce? And you realize a CA divorce might cost you more than paying more in taxes for one year. YOu really didn't give a clear reason why you are in such a hurry, did you win the lotery and don't want to share?

 

[LdiJ]

A legal separation in NY fully meets the IRS criteria for legal separation. In addition, the "marriage penalty" that you are referring to may not exist for you. I am a tax professional. If you would care to share the details of why the tax issue is to important to you, and whether or not you have children living in your home, I may be able to tell you whether or not you really have an urgency in getting a legal separation or divorce.

 

[pjjones]

You need to re read the NY no fault divorce requirements, about a month after filing the agreement the court will issue the Separation order ...

Wow I didn't know that the court will actually issue a Separation Order. I thought that the most "official" thing you can do is file the separation agreement with the county clerk, but that there would not be any official court order. Do you have to specifically ask for a "Separation Order"? Do you have a URL with more info?

 

[rmet4nzkx]

Wow I didn't know that the court will actually issue a Separation Order. I thought that the most "official" thing you can do is file the separation agreement with the county clerk, but that there would not be any official court order. Do you have to specifically ask for a "Separation Order"? Do you have a URL with more info?

With a little more information we might be better able to advise you, withholding facts could result in certain frauds or invalid actions. A divorce is going to cost you money.
www.divorcenet.com/states/new_york/nyfaq08
www.ilrg.com/forms/divorce-nc/us/ny

 

[pjjones]

In addition, the "marriage penalty" that you are referring to may not exist for you. I am a tax professional. If you would care to share the details of why the tax issue is to important to you, and whether or not you have children living in your home, I may be able to tell you whether or not you really have an urgency in getting a legal separation or divorce.

Yes, it will exist quite strongly this year. I am also a tax professional and have estimated projected numbers. It certainly helps that the "marriage penalty relief" acts doubled the standard deduction and taxable income range of bottom 2 tax brackets, but there are so many other things that depend on AGI that discriminate against married people when both spouses have similar incomes. Some states, such as NY, also tend to penalize married people when one person is a full year resident and the other isn't.

A legal separation in NY fully meets the IRS criteria for legal separation.

Can you provide any examples/citations? And info on the proper way to file it with the court (do you ask for a "Separation Order" like the other poster alluded to)? I'd really like for this to be true, but I want to make sure I have strong position ... as you know, we tax professionals are held to a higher standard than the general public in personal tax compliance.

In my research, I came across many Tax Court opinions that tend to be quite harsh in the criteria they use to determine whether a taxpayer qualifies as "legally separated under a decree of separate maintenance," which makes me quite concerned. I think the implication for a "separation agreement" NY separation is that it's vital to get a court order. Here are summaries and excerpts from the two cases I found that dealt with NY "separation agreement" separations:

Elizabeth S. C. Ashby, TC Memo 1984-121:
Taxpayer couldn't claim filing status of a single person. Although taxpayer and her husband executed Memorandum of Separation Agreement and maintained separate residences, they weren't judicially separated because agreement was never executed pursuant to any court order. During 1979, Elizabeth Ashby (petitioner) and her husband Howard Ashby, who were residents of the State of New York executed a Memorandum of Separation Agreement after which they maintained separate residences. The memorandum was filed with the clerk of court but was not executed pursuant to any court order.


James F. Donigan (1977) 68 TC 632 :
Taxpayer separated from wife under written separation agreement must file as “married filing separately,” not as unmarried individual. Separation wasn't ordered under judicial decree, even though agreement had same effect as decree under local law. Petitioner and his wife Rita Donigan began living apart on April 11, 1964. In June 1964 they executed a written separation agreement. During 1973, the tax year in question, petitioner and his wife were still separated. Also, as of the end of 1973, neither petitioner nor Rita Donigan had filed an action in the courts to obtain judgment of separation, a judgment of divorce, or a judgment annulling a viodable marriage.

An excerpt from the Donigan case (bolding done by me):

"Whether petitioner's premise that under New York law the effect of his separation agreement is the same as a court decree separation is subject to dispute. We recognize petitioner's point that a separation agreement under New York law prevents a judicial separation. Borax v. Borax, 4 N.Y.2d 113, 172 N.Y.S.2d 805 (1958). But it merely modifies the customary rights and duties of the spouses in the manner and to the extent provided in the agreements. In re Brown's Will, 153 Misc. 282, 274 N.Y.S. 924 (Weschester County Surr. Ct. 1934). If a husband and wife, after executing a separation [pg. 636]agreement, become reconciled and resume cohabitation the agreement is abrogated and all duties under the agreement terminate. Zimtbaum v. Zimtbaum, 246 App. Div. 778, 284 N.Y.S. 101 (2d Dept. 1935), affd. 272 N.Y. 416 (1936). A judicial separation, on the other hand, will be granted only upon the showing of certain statutory grounds. Purvin v. Purvin, 51 N.Y.S.2d 492 (Kings County Sup. Ct. 1944). The duties and responsibilities of the spouses are dictated by a court and are not subject to negotiation. See People v. Jansen, 264 N.Y. 364, 191 N.E. 17 (1934). And, unlike a written separation agreement, a judgment of separation is not abrogated by a reconciliation of the spouses.Karron v. Karron, 239 App. Div. 180, 267 N.Y.S. 340 (1st Dept. 1933).
Even if petitioner's separation agreement had the same effect as a judicial separation, it was not entered into pursuant to a court decree of divorce or separate maintenance as required by the Internal Revenue Code, and this Court has no power to expand the explicit terminology of the statute. It took a statutory amendment to put a contractual separation agreement on an equal footing with a separation agreement pursuant to a court decree for alimony purposes, and it would require legislation to do the same for filing purposes. We must apply the law as written.
We hold that petitioner was not entitled to determine his tax under section 1(c) since he was a married individual as of the close of 1973. As respondent determined, petitioner was [pg. 637]required to use the tax rates applied to married individuals filing separate returns under section 1(d). "

 

[rmet4nzkx]

These are old cases.
WHy don't you go to the DR for a divorce is you both consent?
Then you take a short vacation.
http://www.offshore-manual.com/DominicanDivorce.html

 

[pjjones]

With a little more information we might be better able to advise you, withholding facts could result in certain frauds or invalid actions. A divorce is going to cost you money.
www.divorcenet.com/states/new_york/nyfaq08
www.ilrg.com/forms/divorce-nc/us/ny

Not sure what information you're talking about. Obviously I can't post in a public forum the separation agreement that I drafted, but it does contain the necessary provisions of living separate and apart as if sole and unmarried, property distribution, and paying only for one's own living expenses, so I believe it should satisfy the living apart and separate maintenance requirements that the Tax Court has interpreted the Internal Revenue Code to contain.

However, I don't know if I can get a court order along with the separation agreement ... I'll try asking the county clerk ... kind of hard to make these kinds of calls in my open cubicle office though ... grrr.

As you can see from the first link you sent me, it says "New York law recognizes only the following grounds as sufficient for granting a no-fault divorce: (1) living separate and apart for one year under the terms of a Separation Agreement that is in writing and notarized (Note: proof of compliance with the terms of the Settlement Agreement must be submitted when the divorce is filed; and a brief memorandum of the agreement must be filed in the office of the clerk of the county in which the divorce is sought.); or (2) living together and apart for one year under the terms of a judicial separation decree."

I know that the "judicial separation decree" would satisfy Internal Revenue Code requirements, but the judicial separation decree can be issued only after proving fault, so I don't know if a "separation order" can be issued with a separation agreement or if it would have the same effect (by Internal Revenue Code standards) as a "judicial separation decree"

 

[pjjones]

These are old cases.
WHy don't you go to the DR for a divorce is you both consent?
Then you take a short vacation.
http://www.offshore-manual.com/DominicanDivorce.html

Yes, they are old cases. Unfortunately I could not find any newer cases dealing with NY "separation agreement" separations. Absent a change in law, old cases tend to stay around as precedent for newer cases. I would love for the other tax professional or anyone else to find newer cases contradicting the cases I cited and prove my hunches wrong, but in reality, I think there are none.

Yeah, I've also read about Dominican Republic divorces. Sounds like they are legally valid, but I think they tend to be riskier in terms of people challenging their validity. Even if we prevail, it would be expensive to defend ourselves against a lawsuit or other dispute with the government ... plus, the cost of airfare would wipe out any savings in filing fees.

 

[rmet4nzkx]

Not sure what information you're talking about. Obviously I can't post in a public forum the separation agreement that I drafted, but it does contain the necessary provisions of living separate and apart as if sole and unmarried, property distribution, and paying only for one's own living expenses, so I believe it should satisfy the living apart and separate maintenance requirements that the Tax Court has interpreted the Internal Revenue Code to contain.

However, I don't know if I can get a court order along with the separation agreement ... I'll try asking the county clerk ... kind of hard to make these kinds of calls in my open cubicle office though ... grrr.

As you can see from the first link you sent me, it says "New York law recognizes only the following grounds as sufficient for granting a no-fault divorce: (1) living separate and apart for one year under the terms of a Separation Agreement that is in writing and notarized (Note: proof of compliance with the terms of the Settlement Agreement must be submitted when the divorce is filed; and a brief memorandum of the agreement must be filed in the office of the clerk of the county in which the divorce is sought.); or (2) living together and apart for one year under the terms of a judicial separation decree."

I know that the "judicial separation decree" would satisfy Internal Revenue Code requirements, but the judicial separation decree can be issued only after proving fault, so I don't know if a "separation order" can be issued with a separation agreement or if it would have the same effect (by Internal Revenue Code standards) as a "judicial separation decree"

One of the links had the statutory language re the judicial separation decree. You need an attorney! You are hiding something and it is ging to bit you in the butt!