If you’ve read this blog before, you may already know that we prefer to help clients resolve divorce and other family law matters through alternatives to litigation that help them work collaboratively with a former spouse to reach a positive solution. One of the many drawbacks of the traditional litigation route is the dizzying array of procedural requirements that can end up costing a person his or her case. A recent decision out of California’s Second District Court of Appeals is a good example of one of the primary procedural hurdles: time limits and filing deadlines.
Husband filed for divorce from Wife in May 2009, roughly 10 years after the couple was married. Following a six-day trial, the court ordered Husband to prepare a draft judgment reflecting both the trial court’s decision and a partial settlement agreement that the couple had reached. Wife refused to sign the draft judgment, however, and the court entered it as a final judgment in March 2013. The judgment divided the couple’s assets and set monthly spousal support to be paid by Husband to Wife. The court modified the judgment – with a few handwritten changes to the 12th paragraph – one week later. The court granted Wife’s request to further modify the judgment in May 2013, making clear that Husband was required to make an equalizing payment to Wife covering her share of his Individual Retirement Account (IRA).
Wife filed a notice of appeal two days later. The Second District dismissed the appeal, however, ruling that it was untimely. The applicable rules, the Court noted, require a person seeking to appeal a family court ruling to file an appeal within 60 days of the ruling. Although the lower court had just modified the ruling two days earlier, the Second District said the 60 days started to run when the trial court issued its original ruling in March 2013. That’s because the Court said the modifications made after that time were not “substantial.”
“California courts have articulated the applicable test as whether the revised judgment results in a ‘substantial modification’ of the judgment,” the Court explained. “If so, the revised judgment supersedes the original and becomes the one final, appealable judgment in the action. If not, any changes are considered to relate back to the original judgment and the time to appeal runs from the entry of the first judgment.”
The first change to the order had to do with the timing of Husband’s equalization payment, while the second made clear that the payment include Wife’s share of the IRA. These modifications weren’t substantial, according to the Court, since they didn’t affect Wife’s right to an appeal. Instead, the 60-day period had already expired by the time that Wife sought the modification. Indeed, the Court further observed that Wife styled her appeal as related to the original judgment and attached a copy of that judgment – not the modified version – to her notice of appeal.
As a result, the Court dismissed the appeal as untimely.
This case is just one of the many examples of the strict and often complicated procedural rules that can determine the outcome of divorce litigation. The good news is that most couples can avoid much of the stress and acrimony associated with traditional divorce through alternatives like collaborative divorce and mediation. These models are particularly attractive to couples who are committed to solving problems rather than arguing over who is to blame and are willing to engage in open, honest, and respectful communication.
A typical divorce mediation process first involves filing and serving the Petition and Summons. The soonest a divorce can be effective is six months from the date of service. Second, the couple complete and exchange financial disclosures so that each has the information necessary to discuss options for property division and child and spousal support, if applicable. If there are children, custody and visitation (co-parenting) must also be addressed. It is common that a couple can reach and file a complete marital settlement agreement and judgment of dissolution within two to four months of starting the process and if desired, be divorced six months from filing. No court appearances are necessary and a great deal of financial and emotional pain can be eliminated. In addition, the final outcome is one chosen and agreed to by both, leaving both far happier in the end than the court process and judge imposed outcomes.
With offices throughout the Bay Area, California divorce lawyer Lorna Jaynes approaches divorce cases as a problem to be solved, not a battle to be won. She handles each case personally, taking the time to understand each individual client’s needs and interests and explaining the various options for resolving these matters. Call us at (510) 795-6304 or contact us online to set up an appointment.
Related blog posts: