Can I get medical insurance benefits through my spouse's employer after the dissolution of marriage?
What is "NO FAULT DIVORCE"?
Increasingly popular throughout the United States since the 1960s, no fault divorce is now in effect in every state except Illinois and South Dakota. In a default divorce state (including California), neither spouse is required to prove "fault" or marital misconduct on the part of the other. To obtain a divorce a spouse must merely allege incompatibility or irreconcilable differences, meaning the marriage is irretrievably broken. This means there is no defense to a divorce petition (so a spouse cannot "fight" a divorce). There is no derogatory testimony, and marital misconduct cannot be used to achieve a division of property favorable to the "innocent" spouse. California State law specifically provides that the Court shall not divide assets on the basis of marital misconduct.If I don't know where my spouse is located, can I still get a divorce?
The California Rules of Civil Procedure (CCP) provide that a missing spouse may be served by publication (advertisement of legal notice). However, this is not the preferred method of notifying your spouse of the pending divorce action, and special requirements must be met to give the court jurisdiction when the other party is served in this manner.How long does the entire divorce process take?
The documents to file your case will be prepared and ready to sign and file within a couple of days after you completed the Questionnaire and conversed with one of our staff. Typically, the other side can be served within a short period of time after the case is filed.The minimum time to conclude the case depends largely on when the Respondent (your spouse) can be legally served. In California, a divorce may not be finalized until at least 6 months have elapsed after the court acquired jurisdiction over your spouse by having the divorce documents served on them. This time period is required by statute and cannot not be shortened.In non-contested cases ("friendly divorce") the matter can be expedited if the Respondent signs an acceptance of service of process form that is then filed with the court.Additional factors affecting the duration of the case include the current court case load, whether the case will proceed by default, whether the parties will proceed by stipulation (Marital Settlement Agreement or Stipulated Judgment) or if the case will be contested. Refer to the next paragraph regarding procedure.What is the procedure to get a Divorce?
There are three methods by which a divorce case may proceed before the Court:A. DEFAULT CASE.
In this type of case, the Petition is filed with the Court and service of the documents is made to the Respondent. The Respondent is allowed 30 days to file a Response to the allegations, issues, causes or requests set forth in the Petition. If the Response is not filed in the allocated amount of time, the Petitioner may request that Respondent's default be taken for failure to respond to the Petition.After the required 6-month waiting period has expired, the Judge or Commissioner may sign the divorce Judgment at the default hearing, (provided that the documents have been properly prepared, and the case administered properly). The case is final and the divorce decree is effective immediately when the Judge or Commissioner signs the Judgment.B. "Uncontested" (Stipulated Decree)
In this type of case, the Petition is filed with the Court and service is effected upon the Respondent. The Respondent is still allowed 30 days to file a Response to any allegations or statements in the Petition.If the parties agree to the terms of the divorce, the Settlement Agreement may be drafted in accordance with the parties' wishes, and the case may proceed by this agreement. This is one of the least expensive ways to proceed. C. CONTESTED PROCEEDING / TRIAL
This is the type of case which can drag on for months, each party incurring additional expenses. Under the Rules of Civil Procedure and Due Process clause of the Constitution, a Respondent has the right to appear and defend the allegations in the Petition. If the Petition is adverse to the Respondent's wishes with regard to property division, debt allocation, alimony, child custody, etc., the Respondent may file a Response to the Petition, stating the terms and conditions the Respondent wants the court to grant. If the Response is properly drafted and timely filed, and the parties do not reach an agreement to facilitate the dissolution process, then the Court may set the case for trial and enter a Judgment based upon the evidence and application of the material statutes.Does my spouse need to sign anything, or otherwise cooperate?
Not if your case is properly prepared and administered through the Court. California is a "no fault divorce" state, so grounds such as infidelity or other marital misconduct need not be proven before the Court may grant a divorce decree. A party does not need to have the consent or permission of the other party to obtain a divorce decree. However, the Respondent may present issues and defenses regarding division of property, alimony, child custody, etc. Because of these defenses, it is obviously the advisable course of action to negotiate or attend mediation with your spouse prior to filing the case in order to avoid contested issues.Does my spouse need to be with me at the Court hearing, or come in with me to our appointment?
No. The Hearing set by the Court to grant the Judgment. As outlined above, the Court does not need to know whether or not your spouse "agrees, or wants" the divorce. If a Respondent wishes to contest the issues, then the procedure to make those issues apparent would be to "appear" in the case by filing a Response or other responsive pleading to the Petition for Dissolution of Marriage.Under California law persons can become divorced or they might become legally separated. The differences between Dissolution of Marriage and Legal Separation are described below:DISSOLUTION OF MARRIAGE
A divorce, or dissolution of marriage will legally end the marriage and restore the parties to the status of single. Legal grounds for divorce in California are that the parties have "irreconcilable differences." There is no requirement for the production of evidence of marital breakdown, other than the assertion of one of the parties that "irreconcilable differences" have arisen in the marriage.Divorce is not a reward for innocence or punishment for guilt, and the court will not divide property or award spousal maintenance on the basis of marital misconduct, unless intentional waste or fraud is established. The primary responsibility for the terms of the decree rest with the parties rather than with the Court. The court needs to ensure that the division of property, child support and spousal maintenance provisions are not unfair to either party.Mediation is available through Colton Legal Clinic for couples desiring assistance, but if either spouse will not willingly participate, the reality of marital failure must be addressed through other methods. For more information on our Mediation services, Click Here.LEGAL SEPARATIONS
Legal separations are virtually identical to dissolution of marriage cases, but in legal separation, the marriage is not ended. However, the marital property and debts are divided and custody and support of children are established. Community property rights terminate in a legal separation case. The grounds for legal separation are that one of the parties desires to permanently reside separate and apart from the other, and communicates that fact to the other party.The court can grant a legal separation decree even if one of the parties objects. Legal separations can be converted to Dissolution of Marriage before and after the entry of the Judgment of the Legal Separation case. If it is converted after the Judgment, then the Court will usually presume that the provisions in the Judgment should remain the same, except that the parties are restored to the status of single, unless one of the Parties files papers stating the provisions have changed. The property disposition approved in the legal separation Judgment may not be revoked or modified unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state - in other words, the Judgment of legal separation is deemed to be final with respect to the division of property, unless fraud or other serious conditions are present.SPOUSAL SUPPORT (ALIMONY)
In any dissolution of marriage or legal separation case, the court is authorized under the law to order spousal support (alimony) for either spouse. The parties may agree in writing as to the amount of maintenance to be awarded the supported spouse, and it may be made part of the final judgement. In the absence of a written agreement, the court may award support in amounts and for the periods of time as it deems just, without consideration to marital misconduct and after considering all relevant factors.Spousal support may be awarded by the court for specific reasons including but not limited to one of the parties:- lacks sufficient property, including property apportioned to such spouse, to provide for his or her reasonable needs, or
- is unable to support himself or herself through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or
- lacks earning ability in the labor market adequate to support himself or herself, or
- had a marriage of long duration and is of an age which may preclude the possibility of gaining employment adequate to support himself or herself.
Alimony can be awarded for any of these reasons, but is also based on the other person's ability to pay. An obligation to pay spousal maintenance cannot be avoided by voluntarily reducing the ability to pay, like quitting your job to avoid paying support.Unless otherwise agreed in writing or stated in the decree, a spousal support award is terminated upon the death of either party or the remarriage of the party receiving support.Issues Regarding ChildrenIn all divorce cases, California law requires the court to enter orders concerning the support and custody of any minor children of the marriage being dissolved. Child Support and Child Custody are separate but related issues from each other.CHILD CUSTODY
In a sole custody arrangement, one of the parents is charged to be responsible for and deemed suitable to make day to day decisions concerning the child's activities and development. The non-custodial parent's rights are not diminished, and he or she is entitled to visitation and frequent access with the child, before and after the entry of a divorce decree. The Child Custody and Visitation Order will state the frequency and duration that a non-custodial parent is entitled to have the child, unless there are reasons to restrict visitation. The modern view is that, "conduct of the parties not affecting the relationship with the children is not considered."The visitation guidelines are based on certain premises, including that both parents are fit, both desire to have an ongoing relationship with the child and that it is in the child's best interest for each parent to have frequent, meaningful and continuing access to the child.CHILD SUPPORT
In California, the amount of child support to be paid by one parent to the other is based on, among other things:- each parents' incomes and expenses,
- the custody arrangement which the parents will observe,
- the percentage of custodial time each parent has with the child(ren),
- whether or not there are minor children from a relationship other than the marriage for which one of the parents is financially responsible,
- certain unusual or extraordinary expenses which may increase or reduce the support payment amount, depending upon which party incurs the expenses,
- certain job-related issues, such as mandatory union dues or required work clothing (uniforms),
- other factors, but always considered in light of the best interests of the children.
What is the difference between a Lawyer, Paralegal or Legal Document Assistant?
A Paralegal or Legal Document Assistant cannot appear for another person in Court or negotiate on another parties' behalf. A Paralegal or Legal Document Assistant may prepare legal documents and perform other services such as filing the pleadings with the Court, calendaring and generally administering the case to insure compliance with deadlines and procedures set under the Rules of Court.In choosing a Paralegal or Legal Document Assistant, you should be cautious. Less than one-half of Paralegal or Legal Document Assistant businesses started in the last year are still open for business. However, Colton Legal Clinic has been serving Southern California since 1991 with excellent and professional document preparation services. You need to be aware of what legal experience the Paralegal or Legal Document Assistant has, such as their work experience with law firms and attorneys, and the capacity in which they were engaged. It is extremely important to consider the extent of experience the Paralegal or Legal Document Assistant has had in related fields such as Creditor/Debtor Law, Community Property, Real Estate Law and Probate Law, since the divorce case will almost always involve issues relative to those areas of law.Paralegal or Legal Document Assistant services who "just do divorces" are usually covering their lack of knowledge and experience in these related areas. The staff at Colton Legal Clinic have extensive experience in the fields of law related to divorce. provides:
- Precise, accurate and professional document preparation
- Personal service and exceptional customer support
- Attorney-quality work at a fraction of the price of a lawyer
- Years of experience handling hundreds of divorce document preparation needs
- A caring and safe environment to discuss your needs at a difficult time
- EMERGENCY SERVICES AVAILABLE!
Is my Spouse able to prevent me from obtaining a Divorce?
California is known as a ‘no-fault’ state. This means that either spouse may divorce the other one for any reason. The consent of the other spouse is not required. This also means that the court will not take into consideration who is the nicer or better person in the divorce, or who did what to whom and when.
How long will it take for our Divorce to be finalized?
The soonest you can become legally divorced is 6 months from the date the other party is served with the divorce papers. However, the parties can reach an agreement on all issues (including the division of the assets and debts, child support, spousal support etc) at any time, even well before the 6-month period lapses. If the parties are able to resolve all issues, the parties or their attorneys can prepare a Marital Settlement Agreement, and file it with the court. However, neither party is able to remarry until you receive a judgement terminating the marriage.
What are the residency requirements for a divorce in California?
In order for a California court to have jurisdiction over your divorce you must be a resident of California for at least 6 months immediately prior to filing an action for dissolution. Further, you must reside in the county in which you intend to file for at least 6 months immediately prior to filing. It is not necessary for your spouse to reside in California but it does tend to be less complicated if they do.
When does the waiting period begin?
The waiting period begins to run after the spouse not requesting the divorce (the Respondent) has been served with the divorce papers.
Will Child or Spousal Support be Ordered while the Divorce is pending?
Once a divorce or legal separation has been initiated, temporary orders can be entered for child support, spousal support, custody and visitation as well as other issues pending a final dissolution.
Can one party obtain exclusive use of the marital house?
A court might order that one party is to have exclusive use of the marital residence for a definite time period. The party must bring the appropriate motion including valid reasons as to why that party should get exclusive use. The court may order exclusive use, if, for example, there are allegations of domestic violence and the spouse or children are in danger.
Who decides who get custody of the children?
If the parties cannot agree amongst themselves, then a judge will decide what the custodial arrangement of the children will be. The judge then makes this decision based on information he is provided by the parties, and a mediator, and rules according to what will be in the child’s best interests.
How is Child Support determined?
Child support is determined by a state mandated formula, taking into account a number of factors. These include the amount of time each parent sees the child, the number of children, the income of each party’s tax filing status. Additional amounts may be ordered for childcare expenses and health care costs, which are split 50/50.
What is a Marital Settlement Agreement?
A Marital Settlement Agreement or ‘MSA’ is an agreement drawn up between you and your spouse before the final judgment that resolves issues like child custody and property. An MSA is usually used in uncontested cases to prevent either party form having to attend court.
If the other parent refuses to work what remedy do I have?
In this situation, the court is empowered to impute income to a parent if the judge believes that the parent is capable of working, and that the labor market is able to provide such work.
What are arrearages?
Arrearages are support obligations, which are past due. If a parent has been ordered to make child support payments, an action to recover an arrearage in those payments may be initiated.
Will I have to pay Spousal Support?
The court may order you to pay spousal support. The court will consider the extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account a variety of factors, including, but not limited to the marketable skills of the supported party.
Why are your services so cheap?
We are an expert online divorce service serving YOUR needs since 1991- therefore we have considerably fewer overheads than an attorney- this keeps our costs down to a minimum, allowing us to pass on our savings to our customers.
How long will my Spousal Support Last?
In general, where the marriage has lasted more than 10 years, the court will, at the very least require a "reservation of jurisdiction." This means that, even if there is no current order for spousal support, the wife will be permitted to come back to court at a later date to request spousal support should the need arise. In marriages of less than ten years, spousal support will usually be paid for approximately one-half of the length of the marriage.
Is the Spousal Support I am paying tax deductible?
The Internal Revenue Code provides that all spousal support payments are tax deductible by the paying spouse and taxable to the recipient spouse as "ordinary income." For this reason, it is not uncommon for a negotiated settlement to include the payment of a high amount of spousal support, because such a payment results in tax benefit to the husband.
Can I get medical insurance benefits through my spouse's employer after the dissolution of marriage?
Under Federal Law you might be entitled to keep your medical insurance benefits under your former spouse's group plan. The Consolidated Omnibus Budget Reconciliation Act of 1985 created what are commonly known as "C.O.B.R.A." benefits, which are avail able to the former spouses of people who work for employers who have 20 or more employees.
In general this law provides that employers must offer "continuation coverage" for the first three years after the termination of the marriage. The law further provides that the employer can charge the former spouse for this coverage, but the charge cannot be more than 2% greater than what is charged to employees.
After the three years have ended, the law states that the employer must offer a former spouse the right to purchase "conversion coverage", but there are no limits on how much the employer can charge for this coverage.
The C.O.B.R.A law further provides that the former spouse does not have to pass a physical examination in order to obtain the continuation or conversion benefits. This is significant if you have any pre-existing conditions that might not be covered by another medical insurance carrier.
In order to obtain your C.O.B.R.A. benefits you have to file your application with your spouse's employer by no later than sixty (60) days after the termination of your marriage. If you do not file your application by that date you will not be able to get these important benefits.
If you wish to have your C.O.B.R.A. benefits you must contact your former spouse's employer directly and request the appropriate forms. This is not a service that is customarily performed by our office. You must contact your former spouse's employer directly if you want to obtain these benefits.
Frequently asked questions
DO IT YOURSELF . . .
NOT BY YOURSELF!
Affordable Legal Document Assistance
Copyright by Legalmadeeasy aka Colton Legal Clinic @2007 - 2008
