How Do I File for Divorce if We Have a Lot of Joint Debts?
Full Question:
Answer:
At least one of the parties to the dissolution action ("dissolution" is the technical California name for divorce) in California must have been a resident of the state for at least six months prior to the filing of the action and a resident of the county in which the action is filed for at least three months prior to the action being filed. If you filed a legal separation, the agreement may be incorporated into a final divorce decree. You may have more debt than will qualify for a summary dissolution, as the maximum debt amount for the procedure is $4,000. Separation may be considered as a factor in determining irreconcilable differences. Divorce is scary because it inevitably will cause a change in lifestyle, but many women have divorced with no assets or income and managed to survive.
A divorce in California may be granted on no-fault grounds of irreconcilable differences when the parties on in agreement on the issues such as property division and alimony. A no-fault divorce is also referred to as an uncontested divorce. An agreement made by the parties may be incorporated in the divorce decree. If the parties are not in agreement, a contested divorce is generally a longer and more expensive process.
Community property refers to the system in some states for dividing a married couple's property in a divorce or upon the death of one spouse. In this system, everything a husband and wife acquire once they are married is owned equally (fifty-fifty) by both of them, regardless of who provided the money to purchase the asset or whose name the asset is held in, with the exception of inheritances, specific gifts to one of the spouses, and property and profits clearly traceable to property owned before marriage, all of which is separate property.
Community property recognizes the equal contribution of both parties to the marriage even though one;or the other may earn more income through employment. By agreement or action the married couple can turn (transmute) separate property into community property, including by commingling community and separate funds in one account.
The courts in California will divide the community property of the parties equally after setting aside to each spouse that spouse's separate property. Community property is presumed to be all property acquired by the parties during the marriage and held in joint form. This presumption may be rebutted by a clear statement in the title by which property is acquired that the property is separate and not community property or by proof that the parties have a written agreement that the property is separate property. In cases where the asset is claimed to be converted to marital property by commingling, in order to prove the separate nature of the property, the other spouse may attempt to trace the funds used to separate property, such as when funds from a spouse's separate property home owned before marriage are used to purchase a joint home after marriage. In such cases, having documentation regarding the source of funding is used to trace the separate funds used to purchase the marital asset.
Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
The Court makes a distinction between marital assets and separate assets. Marital assets are assets acquired during the marriage. Separate assets are asset which one party acquired prior to a marriage and maintained as separate property, property inherited during the marriage and property received as a gift by one party during the marriage. A party can turn a separate asset into marital asset by commingling the asset. Examples include: adding a new spouse's name to a bank account, car title, or deed to the home as joint tenants with right of survivorship.
A divorce may be granted in North Carolina based upon the incurable insanity or mental illness of one of the spouses, or upon the parties living separate and apart for a period of one year without cohabitation. North Carolina law provides for a simplified divorce procedure as follows:
If the parties are seeking a divorce based upon the parties having lived separate and apart without cohabitation for a period of at least one year, and the parties have agreed to all terms of the divorce, leaving no issues to be decided by the court, the court may grant the divorce, finding all requisite facts from nontestimonial evidence presented by affidavit, verified motion or other verified pleading. It shall not be necessary to allege in the complaint that the grounds for divorce have existed for at least six months prior to the filing of the complaint.
A party seeking to obtain a divorce under this provision may, at any time after the expiration of 30 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party may serve opposing affidavits at least two days before the hearing. If the opposing affidavit is not served on the other parties at least two days before the hearing on the motion, the court may continue the matter for a reasonable period to allow the responding party to prepare a response, proceed with the matter without considering the untimely served affidavit, or take such other action as the ends of justice require. For the purpose of this two-day requirement only, service shall mean personal delivery, facsimile transmission, or other means such that the party actually receives the affidavit within the required time. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. 50-10, G.S..1A-1, Rule 56
In North Carolina, proper venue for the divorce action is the Superior or District Court. The action should be filed in the county where either party resides. The party filing the action for divorce is the Plaintiff, while the other party to the action is referred to as the Defendant.
North Carolina is a so-called "equitable distribution" state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. While the trial court's discretion will not be disturbed on appeal without a showing of clear abuse, the court will consider the following factors:
1. The income, property, and liabilities of the parties;
2. Any obligation for support from a previous marriage;
3. The duration of the marriage and the age, physical and mental health of the parties;
4. The needs of the custodial parent;
5. The expectation of pension, retirement or other deferred compensation rights that are not marital property;
6. The contribution to the decation or earning potential of the other spouse; and,
7. Any other factor the court deems just and proper.
The following is a NC statute:
§ 50-6. Divorce after separation of one year on application of either
party.
Marriages may be dissolved and the parties thereto divorced from the
bonds of matrimony on the application of either party, if and when the
husband and wife have lived separate and apart for one year, and the
plaintiff or defendant in the suit for divorce has resided in the State
for a period of six months. A divorce under this section shall not be
barred to either party by any defense or plea based upon any provision of
G.S. 50-7, a plea of res judicata, or a plea of recrimination.
Notwithstanding the provisions of G.S. 50-11, or of the common law, a
divorce under this section shall not affect the rights of a dependent
spouse with respect to alimony which have been asserted in the action or
any other pending action.
Whether there has been a resumption of marital relations during the
period of separation shall be determined pursuant to G.S. 52-10.2.
Isolated incidents of sexual intercourse between the parties shall not
toll the statutory period required for divorce predicated on separation
of one year.
Please see the links to information and forms provided below that may be used to facilitate an uncontested divorce.
Please see the following information:
http://www.womansdivorce.com/prepare-for-divorce.html
http://love.ivillage.com/lnsproblems/lnsdivorce/0,,757f,00.html
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=02001-03000&file=2400-2406
The following is a CA statute:
2310. Dissolution of the marriage or legal separation of the
parties may be based on either of the following grounds, which shall
be pleaded generally:
(a) Irreconcilable differences, which have caused the irremediable
breakdown of the marriage.
(b) Incurable insanity.