Litigants may believe that once the Petition for Dissolution of Marriage is filed, they are divorced. This is not the case. Litigants may also believe that once the six-month waiting period has expired, they are automatically divorced. This is also untrue. The Court must adjudicate the marital dissolution, which requires a trial or a written agreement of the parties submitted for the judge’s approval and signature to dissolve it.
With the exception of a summary dissolution of marriage, which has a different procedural protocol than the standard dissolution of marriage, “no judgment is final for the purpose of terminating the marriage relationship of the parties until six months have expired from the date of service of a copy of summons and petition or the date of appearance of the respondent, which ever occurs first.” (Family Code sec. 2339(a).) This is the minimum amount of time which must elapse prior to dissolution of marriage, but in practical terms the only time a divorce occurs in exactly six months is when the parties have reduced all the issues to a written agreement and submitted the agreement as part of a judgment package for the judicial officer’s signature well before the six-month waiting period has expired.
Status-Only Judgment, Discretionary Conditions, and Mandatory Requirements
A spouse may request or the parties may mutually agree to a status-only judgment, i.e., “an early and separate trial on the issue of the dissolution of the status of the marriage apart from the other issues.” (Family Code sec. 2337(a).) Still, the dissolution must occur after the date the six-month waiting period expires. A party should carefully consider the discretionary conditions and mandatory requirements prior to seeking a status only judgment simply because it may not be worth the time, expense, and compliance with conditions that may be imposed.
Because the early dissolution in a status-only judgment may cause one of the parties to lose significant benefits from the marriage once it is dissolved, under Family Code section 2337((c), the judicial officer ordering the status-only judgment may impose upon a party any of the 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 had become final, the party shall maintain all existing health and medical insurance coverage for the party and any other minor children as named dependents, so long as the party is eligible to do so. If at any time during his 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.
Prior to, or simultaneous with, entry of judgment granting dissolution of the status of the marriage, all of the following must occur:
Under Family Code sec. 2337(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.
Under Family Code section 2337(d):
(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:
EACH PARTY (insert names and addresses) IS PROVISIONALLY AWARDED WITHOUT PREJUDICE AND SUBJECT TO ADJUSTMENT BY A SUBSEQUENT DOMESTIC RELATIONS ORDER, A SEPARATE INTEREST EQUAL TO ONE-HALF OF ALL BENEFITS ACCRUED OR TO BE ACCRUED UNDER THE PLAN (name each plan individually) AS A RESULT OF EMPLOYMENT OF THE OTHER PARTY DURING THE MARRIAGE OR DOMESTIC PARTNERSHIP AND PRIOR TO THE DATE OF SEPARATION. IN ADDITION, PENDING FURTHER NOTICE, THE PLAN SHALL, AS ALLOWED BY LAW, OR IN THE CASE OF A GOVERNMENTAL PLAN, AS ALLOWED BY THE TERMS OF THE PLAN, CONTINUE TO TREAT THE PARTIES AS MARRIED OR DOMESTIC PARTNERS FOR PURPOSES OF ANY SURVIVOR RIGHTS OR BENEFITS AVAILABLE UNDER THE PLAN TO THE EXTENT NECESSARY TO PROVIDE FOR PAYMENT OF AN AMOUNT EQUAL TO THAT SEPARATE INTEREST OR FOR ALL OF THE SURVIVOR BENEFIT IF AT THE TIME OF THE DEATH OF THE PARTICIPANT, THERE IS NO OTHER ELIGIBLE RECIPIENT OF THE SURVIVOR BENEFIT.
Under Family Code section 2337(e), the moving party shall promptly serve a copy of any order, interim order, or attachment entered pursuant to paragraph (2) of subdivision (d), and a copy of the judgment granting a dissolution of the status of the marriage, on the retirement or pension plan administrator. (Family Code sec. 2337(e).)
Under Family Code section 2337(f), a judgment granting a dissolution of the status of the marriage shall expressly reserve jurisdiction for later determination of all other pending issues. And,
Under Family Code section 2337(g), if the party dies after the entry of judgment granting a dissolution of marriage, any obligation imposed by this section shall be enforceable against any asset, including the proceeds thereof, against which these obligations would have been enforceable prior to the person’s death.