consequences of default judgment - CA legal separation

[rmet4nzkx]

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.

There was a time when couples would marry, get a quickie doityourselfdivorce so they would be divorced by years end and live together to avoid the marriage penalty you can do that if you're both CA residents possibly if you can get the courts to go with your plan but not NY because it requires the actual 1 year of separation for the no fault option. Now you have to trust your wife to aid and abet you in trying to circumvent the laws. If I were her, I'd establish residency in CA, get a good attorney, file for divorce and sit back and let the courts take their sweet time unless you offered me more than what I would get in a community property state. Another option is for her to file in NY on grounds of mental cruelty just to teach you a lesson.

Then you have to ask yourself if it is worth it for the trouble? Maybe you should not have got married in the first place if you are so stingy that you can't take a short vacation in the DR to get this divorce that you desire so much?

THere is no reason you cannot provide a few facts such as whether or not you have children, gross incomes, property, length of marriage etc.



Requirements for a Dominican Divorce

The divorce is obtained by the appearance of one of the spouses in person - or if he or she so wishes, by representation by a lawyer by written Special Power of Attorney in court in Santo Domingo. The other spouse may also be represented by written Special Power of Attorney and thereby authorize an attorney to appear for him and to consent to a divorce. The entire process takes approximately an hour and can be arranged on a few days' advance notice.

In the case where one of the spouses wishes to appear in person in court in the Dominican Republic, he or she must have the following documents:

1. Original or certified copy of marriage certificate.
2. Special Power of Attorney executed by the non-appearing spouse before a Dominican Consul.
3. Birth certificates of children (or photocopies).
4. Passport, Social Security card or driver's license.
5. In order to obtain entry into the Dominican Republic, American citizens must bring a passport or other proof of citizenship; citizens of other countries should check with the Dominican Embassy for entry requirements.
6. A plane ticket home.

Recognition of Dominican Divorces by Other Governments

As a general matter, Dominican divorces are looked upon with disfavor in the United States though all foreign divorces were upheld as valid and biniding. Where neither party was domiciled in the Dominican Republic prior to the divorce, a U.S. court is not required to grant "comity" - to give blind recognition to - the foreign decree. Substantially all jurisdictions will prohibit the spouse who consented to the divorce from attacking it later under a principle of fairness called "estoppel"; with both of the parties themselves consenting to the divorce, there is no one left to attack it. It is therefore absolutely essential that evidence of the consent of the non-appearing spouse be maintained indefinitely, as important rights may turn on a reviewing court's evaluation of that consent.

One of the few states to give recognition to bilateral Dominican divorces is New York (Rosenstiel v. Rosenstiel, 16 N.Y. 2d 64, 209 N.E.2d 709, 262 N.Y.S. 2d 86 [1965]). In New York, both parties must participate in the divorce (i.e., there must be written consent of the non-appearing spouse), and one party must physically travel and appear in person before the court in the Dominican Republic.

 

[pjjones]

One of the links had the statutory language re the judicial separation decree.

The only references to judicial separation decree that I saw referred to the judicial separation judgment that can be obtained only by proving fault grounds. Can you quote the text you are talking about?

You need an attorney! You are hiding something and it is ging to bit you in the butt!

I can't afford an attorney; that's why I've been doing research and posting here. Not sure what you think I'm hiding ... I have not revealed irrelevant personal details because I do want to remain anonymous to keep spousal relations cordial and get an uncontested divorce as soon as possible. Contested divorces drain the parties' finances and emotional health and make lawyers rich.

 

[rmet4nzkx]

The only references to judicial separation decree that I saw referred to the judicial separation judgment that can be obtained only by proving fault grounds. Can you quote the text you are talking about?



I can't afford an attorney; that's why I've been doing research and posting here. Not sure what you think I'm hiding ... I have not revealed irrelevant personal details because I do want to remain anonymous to keep spousal relations cordial and get an uncontested divorce as soon as possible. Contested divorces drain the parties' finances and emotional health and make lawyers rich.

I did not ask you name, I asked for relevant facts, your refusal to provide necessary facts strongly suggests somehting other than a mutual uncontested divorce and to do so without an attorney is going to cost you more in the long run than you save.

 

[pjjones]

Another option is for her to file in NY on grounds of mental cruelty just to teach you a lesson.

Actually I was trying to get my spouse to agree to do that; we both actually have grounds for "cruel and inhuman treatment", and I've volunteered to file on those grounds (so she doesn't have to deal with all the paperwork - spouse doesn't like to deal with paperwork, so I've always been the one to have to do most of the paperwork) or let her file against me on those grounds, but she's pretty insistent on not making it fault based. All I want is something that would allow me not to be responsible for any of my spouse's future expenses.

Then you have to ask yourself if it is worth it for the trouble? Maybe you should not have got married in the first place if you are so stingy that you can't take a short vacation in the DR to get this divorce that you desire so much?

Indeed I came to the conclusion quite a while ago that I shouldn't have gotten married in the first place; thus, I'm trying to undo that mistake and just remember never to get married again. Before getting married, I didn't know anything about what would be involved in marriage and all the financial responsibilities; I also wasn't a tax accountant at that time and only later found out how very many tax laws discriminate against working married people.

My spouse also thinks that I am stingy, but that's because this marriage came with huge expenses that I had never had to deal with before and hadn't expected, so our budget is quite tight. To give you some examples as to why, we have been paying all education expenses for her younger sibling who has been attending private university, and tuition keeps getting more expensive. Spouse needs lots of things, including new clothes to replace existing clothes that are still perfectly fine, expensive computers, eating out frequently, occasional alcohol binge drinking, drug use, etc. Spouse was unemployed for most of the marriage, and I also narrowly survived 6 layoffs in the span of 4 years - very stressful time.

Thanks for the info on DR divorce. I'll look into it further. I'm just nervous because as you said, it tends to be frowned upon in the US. Also, I don't know if it might make a difference that my spouse is not a US citizen (but is a permanent resident); the government tends to be suspicious of non-US citizens in this country these days, so my spouse is already wary of doing anything that might further draw government attention to us. Neither of us has committed fraud or has anything to hide, but the costs of defending oneself against lawsuits and investigations, government or otherwise, can be enormous both money and time-wise.

THere is no reason you cannot provide a few facts such as whether or not you have children, gross incomes, property, length of marriage etc.

You're right. You didn't ask until now, and I didn't think the information was necessary to answer my questions, so I didn't volunteer. OK, here goes:

- No children

- anticipated gross incomes for 2006 (fair amount of uncertainty though):
me: around $45K to $53K
spouse: around $40K to $60K
Spouse is currently unemployed but likely (hopefully, now that the job market has improved overall, and the San Francisco job market is much better than upstate NY) to find a well paying job in San Francisco in the next few weeks or months. Spouse had periods of extended unemployment throughout the marriage.

- property: not much, and we pretty much agree on distribution. Already split cash in bank accounts pretty much in half. No house. Spouse has very little retirement savings due to so much unemployment and therefore wants enough of mine so that we come out pretty much even in retirement savings, which I'm OK with and have written into the draft separation agreement.

- length of marriage: just over 5 years

 

[LdiJ]

At those levels of income, unless you have something really unusual going on with your finances I can't see why all the urgency to get divorced by 12/31 for tax purposes. Neither of you are going to make enough money to jump into the higher tax brackets...you have no children and therefore aren't going to be losing any credits regarding children. If you are also a tax professional then you know this as well as I.

I simply can't see anything potentially signficant. Therefore I can only assume one of two things: Either you are leaving out significant information, or you are REALLY stingy and panicking over a relatively small amount.

 

[rmet4nzkx]

Actually I was trying to get my spouse to agree to do that; we both actually have grounds for "cruel and inhuman treatment", and I've volunteered to file on those grounds (so she doesn't have to deal with all the paperwork - spouse doesn't like to deal with paperwork, so I've always been the one to have to do most of the paperwork) or let her file against me on those grounds, but she's pretty insistent on not making it fault based. All I want is something that would allow me not to be responsible for any of my spouse's future expenses.



Indeed I came to the conclusion quite a while ago that I shouldn't have gotten married in the first place; thus, I'm trying to undo that mistake and just remember never to get married again. Before getting married, I didn't know anything about what would be involved in marriage and all the financial responsibilities; I also wasn't a tax accountant at that time and only later found out how very many tax laws discriminate against working married people.

My spouse also thinks that I am stingy, but that's because this marriage came with huge expenses that I had never had to deal with before and hadn't expected, so our budget is quite tight. To give you some examples as to why, we have been paying all education expenses for her younger sibling who has been attending private university, and tuition keeps getting more expensive. Spouse needs lots of things, including new clothes to replace existing clothes that are still perfectly fine, expensive computers, eating out frequently, occasional alcohol binge drinking, drug use, etc. Spouse was unemployed for most of the marriage, and I also narrowly survived 6 layoffs in the span of 4 years - very stressful time.

Thanks for the info on DR divorce. I'll look into it further. I'm just nervous because as you said, it tends to be frowned upon in the US. Also, I don't know if it might make a difference that my spouse is not a US citizen (but is a permanent resident); the government tends to be suspicious of non-US citizens in this country these days, so my spouse is already wary of doing anything that might further draw government attention to us. Neither of us has committed fraud or has anything to hide, but the costs of defending oneself against lawsuits and investigations, government or otherwise, can be enormous both money and time-wise.



You're right. You didn't ask until now, and I didn't think the information was necessary to answer my questions, so I didn't volunteer. OK, here goes:

- No children

- anticipated gross incomes for 2006 (fair amount of uncertainty though):
me: around $45K to $53K
spouse: around $40K to $60K
Spouse is currently unemployed but likely (hopefully, now that the job market has improved overall, and the San Francisco job market is much better than upstate NY) to find a well paying job in San Francisco in the next few weeks or months. Spouse had periods of extended unemployment throughout the marriage.

- property: not much, and we pretty much agree on distribution. Already split cash in bank accounts pretty much in half. No house. Spouse has very little retirement savings due to so much unemployment and therefore wants enough of mine so that we come out pretty much even in retirement savings, which I'm OK with and have written into the draft separation agreement.

- length of marriage: just over 5 years

OY!
So she is currently unemployed, she has her green card and you are sending her out to San Francisco to gain employment and get a divorce before 2007. How much of a merrage penalty are are you going to have on 1 income?
YOU ARE STINGGGGGGGYYYYYYYYYYYYYY!

So you promiced to support her when she came to this country, that is why she couldn't work at first before she got her green card. Of course she needs new clothes from time to time, to eat, those are normal ongoing expenses.

What is her country of origin?
Is she a mail order bride?
Is her sister attending school in the USA?
Is her sister a legal dependent?

 

[rmet4nzkx]

At those levels of income, unless you have something really unusual going on with your finances I can't see why all the urgency to get divorced by 12/31 for tax purposes. Neither of you are going to make enough money to jump into the higher tax brackets...you have no children and therefore aren't going to be losing any credits regarding children. If you are also a tax professional then you know this as well as I.

I simply can't see anything potentially signficant. Therefore I can only assume one of two things: Either you are leaving out significant information, or you are REALLY stingy and panicking over a relatively small amount.

I am ready to divorce his stingy butt and ask for spousal maintenance!

 

[pjjones]

OY!
So she is currently unemployed, she has her green card and you are sending her out to San Francisco to gain employment and get a divorce before 2007. How much of a merrage penalty are are you going to have on 1 income?
YOU ARE STINGGGGGGGYYYYYYYYYYYYYY!

So you promiced to support her when she came to this country, that is why she couldn't work at first before she got her green card. Of course she needs new clothes from time to time, to eat, those are normal ongoing expenses.

What is her country of origin?
Is she a mail order bride?
Is her sister attending school in the USA?
Is her sister a legal dependent?

Actually it was her idea to go to San Francisco; she didn't want to get divorced for a long time, but recently decided after the last layoff that it might be better to start moving on and relocate to a place like San Francisco with a better job market. Spouse was unable to work at first due to difficulties in the job market, not due to just arriving in the US. Spouse had already been living and working in the US for a few years before we met but got laid off right before we got married, so NOT a mail-order bride; in fact, her income was higher than mine before the first layoff.

Your 1 income assumption is wrong. Spouse was working earlier this year but just got laid off. The job market in this region has been very bad over the last few years, but she seems to be having better prospects in CA - prospective employers are discussing high salaries (necessary in that part of the country due to the high cost of living).

Sister has been a dependent for tax purposes and attending school in a different state here. Before we got married, I had no idea that there would be a sibling that we'd have to put through college.

 

[rmet4nzkx]

What country is she from and what industry does she work in?

 

[pjjones]

At those levels of income, unless you have something really unusual going on with your finances I can't see why all the urgency to get divorced by 12/31 for tax purposes. Neither of you are going to make enough money to jump into the higher tax brackets...you have no children and therefore aren't going to be losing any credits regarding children. If you are also a tax professional then you know this as well as I.

I simply can't see anything potentially signficant. Therefore I can only assume one of two things: Either you are leaving out significant information, or you are REALLY stingy and panicking over a relatively small amount.

We'd likely lose the Lifetime Learning Credit. We have no kids but have a dependent sibling at an expensive university. Depending on our job situations, one of us might even qualify to take the full credit, but it's very unlikely that our joint incomes will be low enough to get the full credit on a joint return.
It would also be easier to lower AGI further as single people; each of us would likely qualify to make a significant deductible IRA contribution as single individuals, but we almost certainly won't qualify if we're still considered married.

NY state would also ream us. If one spouse is a full-year resident, they need to file the (full-year) IT-201 which does not allow the exclusion of the non/part-year resident spouse's non-NY income. Only a credit is allowed for taxes paid to another state; we expect that spouse will have much more income from CA than NY for 2006, and the CA tax rate will be lower than what NY will tax on that income, so the credit for CA taxes paid on CA income will not nearly wipe out the NY tax imposed on CA income.

 

[pjjones]

What country is she from and what industry does she work in?

Works in the software industry as a software developer. As you may know, software developers were well paid and in high demand in the late '90s, but the market crashed around 2001 and crashed especially hard in my upstate NY region. The market seems to be doing better now, especially in northern California but not especially over here. I don't think her country of origin is relevant to this discussion, but I can tell you that it's not the Dominican Republic (that would have been nice!)

 

[rmet4nzkx]

Works in the software industry as a software developer. As you may know, software developers were well paid and in high demand in the late '90s, but the market crashed around 2001 and crashed especially hard in my upstate NY region. The market seems to be doing better now, especially in northern California but not especially over here. I don't think her country of origin is relevant to this discussion, but I can tell you that it's not the Dominican Republic (that would have been nice!)

And there are still programmers out of work since the .com bust. It has always been very competetive in Northern CA/ Silicone Valley and the jobs available may be less desireable since the laid off programmers can get the better ones. Also available jobs may not be reliable. My nephew was with a major software company for years, saw the writing on the wall and took an offer from another company only to have it fold several months later.

Let's say she actually does get a stable software job with an excellent income, you might prefer remaining married. While you have a deopendent, it is best you don't have children because they require food and diapers, these costs exceed their tax benefits and it is many years before you can set them out to earn their own living.

Her country of origin can make a difference.