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Can I still Get Divorced this Year?


Can I still Get Divorced this Year?

If the divorce petition was filed and served before June 30, 2018, the answer is yes  Since June 30th was a Saturday, the divorce would have had to have been filed no later than June 29th (since courts are not open on Saturdays) and then served either that day or the next day.  All of this is based on Family Code section 2339, which requires six months pass between the service of the filed divorce papers and the restoration of the parties to single persons.

Of course, even if no divorce petition has yet been filed this year, one can still be filed at any time.  It’s just that the effective date of the divorce won’t be until after December 31, 2018.  This can have tax consequences.  If the parties are still married when the year ends but have already started a divorce, they may file jointly, or file married filing separately, or head of household.  But this blog is not the place to get tax advice; talk to a competent tax advisor.  But it is true that parties who are in the middle of a divorce, even a nasty one, may still file their taxes under the category of “married filing jointly”.  They both have to agree to do that, but it may be advantageous to one or both spouses to file jointly.

If you had a tax specialist assist you in tax filings in the past, it may be necessary to seek a new tax advisor because the person who represented both spouses will have a conflict of interest in trying to tell each person what’s best for her or him.  In other words, what’s good for one side may not be good for the other.

In the past, one of the consequences of filing jointly was that any spousal support paid pursuant to a court order would not be tax deductible.  But now, with the new tax law passed by the Congress and signed into law by the President, spousal support will no longer be tax deductible anyway, unless the decree of divorce is entered in 2018 or earlier, or, perhaps, if a temporary order of spousal support was entered in 2018, even if the overall final spousal support order was not entered until 2019 or later.  Again –though you may be sick of hearing this– talk to a competent tax advisor.

Of course, just because the divorce was filed and served before June 30th doesn’t mean that the parties will be single again in six months.  It just means that it is possible for the judgment to be entered on the six month anniversary of serving the papers, if all the other requirements have been met.  If they have not been met, the divorce can be finalized just as soon as those requirements are met.

So, if you’re in a rush — you just can’t stand being married to the other party anymore, you’re thinking about marrying someone else, or whatever the reason is — figure out the requirements as quickly as possible and submit the judgment package to the court, even if it’s before the six month anniversary.  That’s the best way of insuring that you’re divorced on the six month anniversary of when the filed divorce petition was served.

Note that section 2339 has no exceptions, which can be a cruel  realty.  A critically ill person, for example, who wants a divorce before death, cannot get the court to waive the six-month requirement so that he or she may die, so to speak, in peace.

Note, also, that while six months is the soonest the divorce can be final, there is really no deadline for the latest it has to be finalized, other than perhaps a rule that says you have to bring all matters to trial within five years.  But the five-year rule, unlike the six-month rule, has many exceptions for family law cases.

The post Can I still Get Divorced this Year? appeared first on Andy Cook Law.

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