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LegalGems
LegalGems, Lawyer
Category: Family Law
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Experience:  Experienced Family Law Attorney
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I filed my Default September 4, 2015, all paper work was

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I filed my Default September 4, 2015, all paper work was filed required for default. She responded to the petition more than 60 days after I filed the default. The court in Orange County is severely backlogged. They keep saying, "next month" she is harassing my Chain of Command, it's going to ruin my 10 year career in the USMC. What can I do? Her response was filed electronically my default was walked in. It was showing they recieved the default on Sept 4, but now it's not showing. They say they have it though. Can I ask for a legal Seperation in the mean time so she can't harass my COC until the default is entered? Anything? This is ridiculous. I filed my original petition September 2014. She doesn't respond until over a year later after she signed the acknowlement of recipt in January 2015. I don't get it. She's asking for support, she's never turned an income declaration and the USMC makes it mandatory that I pay her a ridiculous amount, even though she makes the same as me. She kept all the assetts, left me with the debt, that I've paid off. What can I do here? If I resubmit my papers elctronically, will that get it going? Do I date it for the original date of September 2015 and attach something stating I've already filed it once before? Please help. Thank you.
Submitted: 10 months ago.
Category: Family Law
Expert:  LegalGems replied 10 months ago.

I am very sorry to hear this;

I is not clear as to why the other party (or how) is harassing the COC.

If the harassment is due to the divorce proceeding (which I presume it is) then one may request an injunction, precluding the other party from contacting one's employer. Courts are reluctant to issue these unless it is shown that the individual is continuously contacting the other's employer for purposes of harassment. Alternatively, the employer itself may seek a restraining order against the individual.

If there is a pending petition for dissolution and one wishes a divorce while other matters are still pending, the proper procedure is to file a motion for bifurcation, so that the court may dissolve the marriage, issue the divorce decree, and then at a later date determine the property issues, support issues, etc.

The relevant code for bifuraction is here:

2337. (a) In a proceeding for dissolution of marriage, the court, upon noticed motion, may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues. (b) A preliminary declaration of disclosure with a completed schedule of assets and debts shall be served on the nonmoving party with the noticed motion unless it has been served previously, or unless the parties stipulate in writing to defer service of the preliminary declaration of disclosure until a later time. (c) The court may impose upon a party any of the following conditions on granting a severance of the issue of the dissolution of the status of the marriage, and in case of that party's death, an order of any of the following conditions continues to be binding upon that party's estate: (1) The party shall indemnify and hold the other party harmless from any taxes, reassessments, interest, and penalties payable by the other party in connection with the division of the community estate that would not have been payable if the parties were still married at the time the division was made. (2) Until judgment has been entered on all remaining issues and has become final, the party shall maintain all existing health and medical insurance coverage for the other party and any minor children as named dependents, so long as the party is eligible to do so. If at any time during this period the party is not eligible to maintain that coverage, the party shall, at the party's sole expense, provide and maintain health and medical insurance coverage that is comparable to the existing health and medical insurance coverage to the extent it is available. To the extent that coverage is not available, the party shall be responsible to pay, and shall demonstrate to the court' s satisfaction the ability to pay, for the health and medical care for the other party and the minor children, to the extent that care would have been covered by the existing insurance coverage but for the dissolution of marital status, and shall otherwise indemnify and hold the other party harmless from any adverse consequences resulting from the loss or reduction of the existing coverage. For purposes of this subdivision, "health and medical insurance coverage" includes any coverage for which the parties are eligible under any group or individual health or other medical plan, fund, policy, or program. (3) Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in a termination of the other party's right to a probate homestead in the residence in which the other party resides at the time the severance is granted. (4) Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the rights of the other party to a probate family allowance as the surviving spouse of the party. (5) Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the other party's rights with respect to any retirement, survivor, or deferred compensation benefits under any plan, fund, or arrangement, or to any elections or options associated therewith, to the extent that the other party would have been entitled to those benefits or elections as the spouse or surviving spouse of the party. (6) The party shall indemnify and hold the other party harmless from any adverse consequences if the bifurcation results in the loss of rights to social security benefits or elections to the extent the other party would have been entitled to those benefits or elections as the surviving spouse of the party. (7) (A) The court may make an order pursuant to paragraph (3) of subdivision (b) of Section 5040 of the Probate Code, if appropriate, that a party maintain a beneficiary designation for a nonprobate transfer, as described in Section 5000 of the Probate Code, for a spouse or domestic partner for up to one-half of or, upon a showing of good cause, for all of a nonprobate transfer asset until judgment has been entered with respect to the community ownership of that asset, and until the other party's interest therein has been distributed to him or her. (B) Except upon a showing of good cause, this paragraph does not apply to any of the following: (i) A nonprobate transfer described in Section 5000 of the Probate Code that was not created by either party or that was acquired by either party by gift, descent, or devise. (ii) An irrevocable trust. (iii) A trust of which neither party is the grantor. (iv) Powers of appointment under a trust instrument that was not created by either party or of which neither party is a grantor. (v) The execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code. (vi) The appointment of a party as a trustee. (8) In order to preserve the ability of the party to defer the distribution of the Individual Retirement Account or annuity (IRA) established under Section 408 or 408A of the Internal Revenue Code of 1986, as amended, (IRC) upon the death of the other party, the court may require that one-half, or all upon a showing of good cause, of the community interest in any IRA, by or for the benefit of the party, be assigned and transferred to the other party pursuant to Section 408(d)(6) of the Internal Revenue Code. This paragraph does not limit the power granted pursuant to subdivision (g). (9) Upon a showing that circumstances exist that would place a substantial burden of enforcement upon either party's community property rights or would eliminate the ability of the surviving party to enforce his or her community property rights if the other party died before the division and distribution or compliance with any court-ordered payment of any community property interest therein, including, but not limited to, a situation in which preemption under federal law applies to an asset of a party, or purchase by a bona fide purchaser has occurred, the court may order a specific security interest designed to reduce or eliminate the likelihood that a postmortem enforcement proceeding would be ineffective or unduly burdensome to the surviving party. For this purpose, those orders may include, but are not limited to, any of the following: (A) An order that the party provide an undertaking. (B) An order to provide a security interest by Qualified Domestic Relations Order from that party's share of a retirement plan or plans. (C) An order for the creation of a trust as defined in paragraph (2) of subdivision (a) of Section 82 of the Probate Code. (D) An order for other arrangements as may be reasonably necessary and feasible to provide appropriate security in the event of the party's death before judgment has been entered with respect to the community ownership of that asset, and until the other party's interest therein has been distributed to him or her. (E) If a retirement plan is not subject to an enforceable court order for the payment of spousal survivor benefits to the other party, an interim order requiring the party to pay or cause to be paid, and to post adequate security for the payment of, any survivor benefit that would have been payable to the other party on the death of the party but for the judgment granting a dissolution of the status of the marriage, pending entry of judgment on all remaining issues. (10) Any other condition the court determines is just and equitable. (d) Prior to, or simultaneously with, entry of judgment granting dissolution of the status of the marriage, all of the following shall occur: (1) The party's retirement or pension plan shall be joined as a party to the proceeding for dissolution, unless joinder is precluded or made unnecessary by Title 1 of the federal Employee Retirement Income Security Act of 1974 (29 U.S.C. Sec. 1001 et seq.), as amended (ERISA), or any other applicable law. (2) To preserve the claims of each spouse in all retirement plan benefits upon entry of judgment granting a dissolution of the status of the marriage, the court shall enter one of the following in connection with the judgment for each retirement plan in which either party is a participant: (A) An order pursuant to Section 2610 disposing of each party's interest in retirement plan benefits, including survivor and death benefits. (B) An interim order preserving the nonemployee party's right to retirement plan benefits, including survivor and death benefits, pending entry of judgment on all remaining issues. (C) An attachment to the judgment granting a dissolution of the status of the marriage, as follows:

If one fails to file an income and expense declaration (Fl 150), a motion to compel (with sanctions) may be brought. If the party refuses to comply they may be held in contempt, which may include more sanctions, including jail time if the failure to provide the FL 150 is intentional and knowing. That is discussed here on page 25: http://sandiegolawlibrary.org/wp-content/uploads/2013/04/Family_Law_Discovery_Issues.pdf

Resubmitting the papers will not expedite anything; Filing for the bifurcation will at least speed up the divorce decree; to speed up the rest of the issues one may file an FL300 requesting a hearing asking for determination of issues - such as control over certain community property, confirmation of certain property as separate property, a determination re: spousal support, etc, so that the issue comes before the court.

Expert:  LegalGems replied 10 months ago.

Another option is to file this form:

http://www.courts.ca.gov/documents/fl165.pdf

along with fl300, - a motion asking the court to expedite the default decree and stating the reasons in a declaration.

A sample family law declaration can be found by googling Santa Barbara Family Law sample declaration - it provides instructions and a sample declaration.

Also, most military bases have legal services you may want to look into. They can review the documents to make sure they comply with the procedural requirements so as to avoid a delay in the process.

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