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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 12230
Experience:  Licensed Texas General Practice Attorney
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Given a choice between divorcing in CA or NC, that I am a dependent

Customer Question

Given a choice between divorcing in CA or NC, that I am a dependent spouse married for 20 years to a military person, which state should I choose? As I understand it, CA has a formula but NC does not, and can I expect a minimum of 10 years' support?
Submitted: 1 year ago.
Category: Legal
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

There's not so much of a required formula as there is a "guideline". What county would you reside in in California?

Customer:

San Diego

Customer:

If I live in NC it would be Buncombe County (Asheville)

Customer:

My husband is military, we are both TX residents currently

Customer:

but he is deploying and I have a choice of where I live and establish residency before filing for divorce on his return from deployment

ScottyMacEsq :

Thank you. One moment please...

ScottyMacEsq :

There is no spousal support formula in San Diego County. Rather, the judges often use the guidelines of Santa Clara County (aka the Santa Clara formula). Even this is not mandatory, but merely a guideline in giving the judge a good idea of what to order.

ScottyMacEsq :

Rather, the controlling statute that the court must consider in establishing permanent spousal support states the following:


4320. In ordering spousal support under this part, the court shall consider all of the following circumstances:

(a) 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 all of the following:


(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.


(2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.


(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.


(c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.


(d) The needs of each party based on the standard of living established during the marriage.


(e) The obligations and assets, including the separate property, of each party.


(f) The duration of the marriage.


(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.


(h) The age and health of the parties


(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.


(j) The immediate and specific tax consequences to each party.


(k) The balance of the hardships to each party.


(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a "reasonable period of time" for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.


(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.


(n) Any other factors the court determines are just and equitable.

ScottyMacEsq :

Basically, all of these factors would be considered in making an alimony award. Again, you can use the guidelines to give you a rough idea as to what you can get, but that's by no means certain that it's what you're going to get.

ScottyMacEsq :

You can get alimony in CA, NC or TX for a marriage of this duration, and while you should use the alimony calculators and (unofficial) guidelines, like I said before, that's not going to be binding on the San Diego County court, which is going to determine the amount owed based upon those factors, and weighing all of those factor.s

ScottyMacEsq :

Now California does seem a bit more willing to award a larger portion for spousal support, but that's largely based on the costs of living in California. If you move from California, your ex can seek a modification of that based upon your updated needs.

Customer:

Ok, understood. However, I think I have the most chance of obtaining a higher amount for a longer duration in CA, correct? NC seems to be more subjective based on the judge, and I believe TX has a 5-year cap on any alimony, correct?

ScottyMacEsq :

Yes, that is true.

Customer:

NC would actually be more convenient for me, but I have to look out for the long term with my young daughter and myself, and I think CA might be my best bet. My husband wants to file in TX based on our current residency but that doesn't seem to be a good option for me.

Customer:

Given the 20-year marriage, and that I am currently not earning anything and have a 7-year old child, and also that he is having an affair (a moot point in CA I know)... would your expert opinion would be that I should go to CA, or NC? I understand this is just an opinion, but yours is more informed than mine.

ScottyMacEsq :

It might get you more sympathy in NC, and would certainly allow you to get around the 1 year separation requirement (that you would have had to have been separated for at least 1 year to get a no fault divorce, however, you can file for a fault based divorce based on adultery).

ScottyMacEsq :

But if there's a race to the courthouse (in that if you think that he's going to file in TX, you would need to establish residence in the respective state that you're going to file in for at least 6 months before filing)

Customer:

I can definitely satisfy residence requirements in either CA or NC, it just all basically comes down to where can I get the most for longest...?

ScottyMacEsq :

And ultimately that's up to the judge that you hear the case in front of. Again, CA judges seem to be more inclined to grant larger amounts for longer, but a lot of that is based on costs of living in CA, and a modification could be sought if you ever left.

Customer:

Ok, well that helps a lot. It may be worth the risk to do this in CA and then see what happens with a modification. But the area of NC that I would be moving to, in fact, seem to have roughly the same rent prices as San Diego!

Customer:

Thank you very much, I appreciate your help.

ScottyMacEsq :

My pleasure.If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!

Customer:

Thanks, XXXXX XXXXX rate you a 5 and I appreciate your time.

ScottyMacEsq :

Thank you, XXXXX XXXXX and again, good luck to you!

ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 12230
Experience: Licensed Texas General Practice Attorney
ScottyMacEsq and 2 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Hi I just thought of something related to my questions above and wondered if you could help:


 


If I satisfy the 6-month residency requirement in CA, file for divorce at that time, and then leave the state for an extended visit with family in NC... basically is the 6 month residency requirement supposed to be immediately prior to filing or also supposed to continue for the following 6 months until the divorce would be final? Does this make sense? What I'm trying to do is establish residence in CA, file for divorce, but then go spend the next 6 months with family in NC so that we can all have a support system going through this. I would enroll my daughter in school, but would not put down any permanent roots as far as housing.

Expert:  ScottyMacEsq replied 1 year ago.
Understood. Basically residency is "domicile" with intent to stay indefinitely. That is, even if you go and visit your family for 6 months, if your entire intent is to return to California, make a life in California, etc... then that would satisfy the residency requirements. However, it could become a "fact issue" by your husband, if he's trying to claim jurisdiction in another state. So he could argue that since you have left after 6 months, for a long period of time, that you never intended to indefinitely make it your home. That's something to consider...
Customer: replied 1 year ago.

Ok I understand, and that could definitely be a problem. I am also wondering... what happens if my husband files in TX before I have a chance to file in CA? Since I would be physically located and living in CA, would TX have to defer to CA to have jurisdiction over alimony, child support, and custody? Or would TX have jurisdiction over these things based solely on the fact that TX is his home of record?


 

Expert:  ScottyMacEsq replied 1 year ago.
It depends... Texas would have first jurisdiction over the divorce matter, and if you have not lived in California for at least 6 months with the child(ren), then Texas would retain jurisdiction over the child custody and support issues. If the children have lived in California for at least 6 months, California would have jurisdiction over those issues, and the Texas divorce would be "stayed" upon the filing of a divorce in another state that would handle all of those issues. This is pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Customer: replied 1 year ago.

Ok, so as long as I establish residency in CA or even NC, with my daughter, then I don't have to worry about TX having jurisdiction over child support or custody. What about alimony? Does the same hold true for that since I will have established residency somewhere other than TX?

Expert:  ScottyMacEsq replied 1 year ago.
Alimony is different because it's between the spouses, and doesn't involve the children. So one spouse having a case in one state can bind the other spouse in another state, even after the 6 month period. That is, if he files in Texas, before or after the 6 month residency in CA or NC, TX can still hear the alimony issue, even if it can't hear the child custody and support issues. Again, the difference is that one (the alimony) pertains to the relationship between the spouses, which is what a divorce ultimately is about, but the other (the children issues) pertain to the children, and are thus governed largely by "model" laws (that are applicable in every state) that clearly spell out what states have jurisdiction in these situations.
Customer: replied 1 year ago.

Ok, so if he files first, do I have any recourse at all to object based on the fact that I have no intention to ever live in TX, and I will have established residency in another state? Would my lawyer at that time be able to get the alimony issue heard in the state I actually have residency in?

Expert:  ScottyMacEsq replied 1 year ago.
No, that would not be a basis to object. Texas only requires residency of one spouse (actually all states only require residency of one spouse), so even if you never lived there, it could still hear the divorce case and the alimony matters, and the children issues if the children lived there for at least 6 months, and within the previous 6 months. If he filed first and you couldn't get the case stayed for the child support and custody issues, then the Texas court can hear the alimony case, regardless of your intent to live there or not, and regardless if you ever lived there. Look at it like this: a CA or NC court can also hear the alimony issues, regardless of whether your husband lived in those states or not.
Customer: replied 1 year ago.

Ok then I'm in trouble because my husband is military and is deploying. Therefore, I cannot serve him because he is protected from being served while deployed, but as I understand it he can serve me. He thinks we have to divorce in TX and that would probably be the best for him. What can I do? Convince him to file in CA?

Expert:  ScottyMacEsq replied 1 year ago.
You can try that. And again, remember that you have the 6 month child custody option, in that CA courts will have jurisdiction over the custody issues after 6 months of domicile by the children in CA. At that point, you could ask the courts in TX to dismiss or stay the case because of the CA courts that will handle all of those issues.
Customer: replied 1 year ago.

Ok so what I'm hearing is that, if I establish residency in CA (or NC if I decide to do that), then I can ask TX to dismiss or stay based on domicile by my daughter in CA (or NC) but I'm still looking at TX handling the alimony? Ugh.

Expert:  ScottyMacEsq replied 1 year ago.
No, Texas will dismiss or stay the entire divorce case, as divorce cases inextricably intertwine custody, support, property distribution, etc... orders.
Customer: replied 1 year ago.

Ok, now I understand. Not so bad then. Thank you very much for your time.

Expert:  ScottyMacEsq replied 1 year ago.
My pleasure.

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ScottyMacEsq
ScottyMacEsq
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Licensed Texas General Practice Attorney