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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 88727
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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My wife and I would like to divorce but we arent sure if we

Customer Question

My wife and I would like to divorce but we aren't sure if we would file it in CA since we have lived out of the country for the last 2.5 years. I work for the USG and was overseas on assignment. We have an investment property in CA and file taxes in CA as well.

Are we able to file for divorce in CA?
Submitted: 2 years ago.
Category: Family Law
Expert:  P. Simmons replied 2 years ago.
Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

The standard for residence is taxes. If you filed your state income tax return for California and you are physically in California when you file, this will not likely be a problem...particularly if you can agree, at lest in general terms, on the conditions of divorce.

A divorce can be either contested or uncontested

Uncontested; Now the fastest, (and by far the least expensive) way to get a divorce is if you can agree on the terms. If you can agree on "who gets what" there is not a need for attorneys...this will cut the costs to a very small amount (court fees)

Contested; if you can not agree, this is a contested divorce. To proceed you need an attorney or need to act as your own attorney (very bad idea). Here the parties present evidence to the court on "who gets what" and the court decides. This take longer and involves attorney fees for both sides.

And this is key, since if you both agree, there will be no one to raise the issue of jurisdiction.

But even if you can not agree, the fact you paid California income tex for the last years will be enough for the court to find jurisdiction (allow you to divorce in California)

BotXXXXX XXXXXne: What you describe is not going to be an issue for filing in California.



Customer: replied 2 years ago.

Additional info:

1. We are not currently in CA, as I am in training in Washington DC for the next several months.

2. There are no plans to physically return to CA in the coming months for any extended period of time.

3. While we filed CA state income tax, we did not pay any CA tax as a result of our living out of the country continuously throughout the last two tax years. This is part of the CA tax code.

4. This would be an uncontested divorce.

 

Expert:  P. Simmons replied 2 years ago.
That makes it more complex.

That is, if you are not returning to CA, it will be tough to file there.

But the uncontested part? Everything is easier based on that...

If you are in DC and will be for 6 months? Consider filing in DC. They have a 6 month residency requirement...but at the 6 month mark you can file. Again, if this is uncontested (and you want that if at all possible) with no objections at court there is not likely going to be a challange. DC has a rule that requires one year of Living separate and apart" but this may may be accomplished under the same roof, if the spouses do not share bed or food...so if you can go back 6 months and claim this, and then forward 6 months...you have the year met and the 6 month residence requirement.

Or your "soon to be ex"...where is she/he? Since you may be able to file in that state...

Customer: replied 2 years ago.

More info:

*I work in DC and we live in Arlington, VA.

 

*Will probably be here less than six months total.

 

*Wife is living with me here.

 

*After DC/VA I will be out of the country again.

 

*My wife may be moving out of the country as well at that point.

 

*BotXXXXX XXXXXne is that we may be living in DC/VA for less than 6 months and then both out of the country again.

Expert:  P. Simmons replied 2 years ago.
Ok...now we are getting much more complex, since VA law has a hard rule of separation (not just no sex/no meals)

In VA, you have to live there 6 months prior to filing (just like DC). One thing that can help is VA allows for 6 months separation IF you have no children under the age of 18. So if you can move apart, live in VA for 6 months, and then file? Then you have it.

That is the law.

If you want a divorce considering staying in VA for the total time to meet residence and separation requirements.

Or consider sending your spouse to Nevada for 6 weeks. NV has a 6 week residence requirement. Move there, stay 6 weeks, file, and you are done.

Customer: replied 2 years ago.

I'm sorry perhaps I'm not understanding something.

 

We would like to file in CA if possible but our job situation does not allow for us to be in the USA for any extended period. Moving with two kids to NV is not feasible as well.

 

I imagine this kind of thing occurs with other military, govt types who are out of the country for long periods.

 

Since we file taxes in CA and have assets and mailing address there, is there no way for us to file in CA without going back and living there? I'm not saying one or both of us couldn't go for a short trip to file, but we can't just pick up and move there for any extended period.

 

 

Expert:  P. Simmons replied 2 years ago.
Military is easy, since there is the "Service Members Civil Relief Act" that allows them to maintain residence regardless of moves. There is no similar law for civil servants.

Let me ask this...where did you both vote last election (or did you vote)?
Customer: replied 2 years ago.

I am Foreign Service (diplomat) with the Department of State.

 

We have not voted in local or state elections. The last time we voted was the presidential election in 2008 in CA. However, I believe that we are both registered to vote in CA.

Expert:  P. Simmons replied 2 years ago.
I am going to send this on to someone who I think may have some more insight. Hang on please.

Expert:  Law Educator, Esq. replied 2 years ago.
Your previous expert has asked me to assist here. Your previous expert was correct above. A person can legally have multiple residences, but only one domicile. The residence is where a person may live, but their domicile is where there is an eventual intent to return. The fact you own property and are registered to vote in CA, means this is going to be considered your domicile for purposes of filing divorce and it would allow you to file for divorce in CA if you choose to do so as long as you both agree to claim this is your place of domicile at the property you own there.

If you use an attorney in CA to file, it would minimize your need to show up in CA except for the one hearing where the court asks the parties to testify to verify the claims in the petition and from there the attorney can handle the remainder. If you are both in agreement on everything, one attorney can handle the whole matter on an uncontested divorce.


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Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 88727
Experience: Experienced attorney: Family law, Estate Law, SS Law etc.
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