Residency Requirements for Divorce (Including New Rules for Same Sex Partners)

Irvine Divorce Attorneys and Family Law Specialists

The law has recently changed with respect to residency requirements for same-sex marital partners to divorce in the State of California.  Below is an outline of the residency requirements as they exist, generally, along with comments regarding the new changes effective January 1, 2012.

Residency Requirements Generally. In order to obtain a divorce in California, one spouse must be a resident of the State of California for six months and of the county where the proceeding is filed for three months preceding the filing of the petition.  Either party may file for dissolution (divorce) as long as one party satisfies the requirements.  It is important to note that if the residency requirements are not satisfied and neither party contests residency, any defect in the requirement is waived.

The six-months/three-months residence prerequisite applies only to marriage dissolutions.  There is no residence requirement for filing for legal separation.  Therefore, if neither spouse satisfies the residency requirement but wish to obtain a divorce in California, and will later meet the requirements, a spouse can file for legal separation and later amend the petition.  This tactic could be used if one party intends to fulfill the six-months/three-months prerequisite eventually but would like to start the dissolution process immediately.  Once the requirement is satisfied, the spouse may amend the petition or the response to request dissolution instead of legal separation.

Domestic Partnerships. There is no minimum residence prerequisite to dissolve a domestic partnership that was established in California.  Domestic partners who register their partnership with the California Secretary of State thereby consent to California jurisdiction to end the partnership as well.   However, the residency requirements still apply in California if the domestic partnership was established outside of California.

Same Sex Marriages. For a brief period in 2008, California granted marriage licenses to same-sex couples.  Since November of 2008, California has banned such licenses. A problem arose when these married same-sex couples moved out of California to states that did not recognize their marriage and therefore would not grant them a divorce.   The couple no longer satisfied the California residency requirements and could not obtain a divorce in the state where they currently resided.

In 2011, the Domestic Partnership Equality Act was passed.  The Act authorizes a judgment for dissolution or legal separation of a marriage between persons of the same sex to be entered if the marriage was entered in California and neither party resides in a state that will dissolve the marriage.  On January 1, 2012, this exception to the California residency requirements became effective.

When contemplating a divorce or legal separation, it is imperative to consider where to file the petition. Dissolution cases involve difficult and life changing decisions. Because of the complexity of this issue, it is best to hire an attorney who is experienced in such matters. The attorneys at Wilkinson and Finkbeiner, LLP are Certified Family Law Specialists and have successfully handled a variety of dissolution cases and can assist you with your matter. Feel free to call today at (714) 667-0045 for your free initial consult. You can also send us an email inquiry.

Huntington Beach Child Support Jurisdiction Issues

Laguna Child Support Lawyers

Recent Case Holds Child Support Judgment Void for Lack of Service

In the recent case County of San Diego v. Gorham (2008) (186 Cal. App. 4^th 1215), the Appellant and purported father sought review of a post-judgment order from the Superior Court of San Diego County, which denied his motions to set aside a default judgment in favor of respondent county Department of Child Support Services (DCSS), which had established paternity and child support, and to dismiss the action based on the fact that the father was not actually served with the summons. 

The proof of service in the superior court’s file stated that the process server had personally served the purported father with the summons and complaint at his residence.  In challenging the default judgment, the father provided evidence that he was incarcerated on the alleged service date.  After a hearing, the trial court found that the proof of service was false, that extrinsic fraud had occurred, and that the default judgment was void for lack of personal jurisdiction.  Evidently, the process server perjured himself by saying he served the purported father, when in fact the father was incarcerated, so it was impossible for the process server to be telling the truth.  Notwithstanding the fact that the Court found that the father was not actually served with notice of the proceeding, the trial court denied his motion to set aside the action.  The court reasoned that because the father knew about the case since 2002, he failed to file a motion to set aside the case within the statutory period.  Further, the court could not provide equitable relief to the father.

The Court of Appeal ruled because the Appellant father was never served with the complaint and summons, or other documents and notices as required by the statutory procedures used by the DCSS to commence this action against him, the trial court never obtained personal jurisdiction over him.  The resulting default judgment was therefore void (and not merely voidable) because lack of personal jurisdiction violated fundamental due process.

The ruling in the case extends into many areas of law.  Where a person is not correctly served, or not served at all, any judgment that follows is void on its face.  Our attorneys are skilled litigators dealing with motions to set aside and jurisdictional issues.  Please contact us today to schedule your free initial consultation.