What is Nunc Pro Tunc?

Nunc pro tunc is a Latin expression, which means now for then. In general, a court ruling nunc pro tunc applies retroactively to correct an earlier ruling.

In California, the court has discretion in family law matters to order an entry of judgment nunc pro tunc, which makes the order relate back in time to when it should have been entered, to avoid injustice

When a judgment of dissolution was not entered through mistake, negligence, or inadvertence or was not entered as soon as it could have been, the court may order that it be deemed entered as of the date that it originally could have been entered. Family Code § 2346(a).

In order to ask the Court to enter your Judgment as nunc pro tunc, you should create a Declaration explaining to the court what date you want the nunc pro tunc to be effective.  A nunc pro tunc does not have anything to do with the filing, other than establishing the case.  The declaration should indicate the earliest date, for example, 6 months and 1 day from date of service/appearance of Respondent, that the Court had the jurisdiction to enter a termination of marriage order and then state what date you want it actually effective.  

For example if you served the other party on May 1, 2015 earliest date for termination of the marriage would be November 2, 2015 but it is now January 4, 2016 of the following year.  You can ask the Court to enter the judgment as 12-31 of the prior year and explain that you need the order because you have remarried and you need the tax advantages of single filing; or whatever else is the reason.

Here are some other examples: A judgment may be entered nunc pro tunc to a date prior to the death of a party even though (1) no subsequent marriage is involved and (2) a surviving spouse will be divested of rights by such entry of judgment. Waller v. Waller (1970) 3 CA 3d 456, 466.

However, a nunc pro tunc entry of judgment is not okay when it is sought solely to defeat the rights of the surviving spouse and will not preserve any significant rights to the decedent’s estate. Marrige of Frapwell (1975) 53 CA 3d 479, 485.

The court may grant nunc pro tunc entry of a judgment on its own motion or on that of a party to the action. Family Code §2346(b). 

In addition, anyone “whose rights are threatened by a delay which is not his fault” may apply for relief under the court’s authority to grant the remedy on its own motion.  This right has been extended to the putative spouse of one whose previous marriage was not finally terminated at the time of the subsequent marriage, to a child seeking to establish his or her legitimacy and the personal representative of a deceased party.

In no event, however, may a judgment obtained by a contested trial be deemed entered as of a date before the trial. Family Code §2346(d). 

If you are considering using the nunc pro tunc process, you should contact a family law attorney to make sure you are correctly following court procedure. Contact me at amanda@gordonfamilylaw.com for more information.

My ex hit a financial windfall and is now making 50% more at work, can I modify our spousal support arrangement?

No. In California, Spousal Support may not be modified solely due to an increase in the supporting spouses income.  

What happens if your spouse dies during your divorce and has changed the beneficiary on your retirement accounts?

Experienced Bay Area Family Law attorneys will tell clients that after they decide to file for divorce, you cannot change the beneficiary on your life insurance, retirement, or annuities until after the divorce is final unless you have consent from your soon to be ex spouse.  But what happens when someone does not follow these rules?

In one case a deceased spouse violated the divorce process rules by changing the beneficiary of his community property IRA (which has a balance of $2 million) from the other spouse client to the parties' minor children in trust.

In order to recover the funds, the family law case was put on hold and instead the case was transferred to the Probate department to resolve the dispute between the Trust of the minor children and the spouse who thought she was going to receive the funds.

Contact me at amanda@gordonfamilylaw.com for more information.

How are social security benefits handled in divorce?

Many Bay Area clients ask about their social security benefits in a divorce.  

In a California divorce, you are eligible to collect benefits based on your ex-spouses work record if (1) you have been married at least 10 years, (2) you have been divorced for at least 2 years, (3) you are at least 62 years old, and (4) you are currently unmarried.

The government provides an excellent resource here:

https://www.ssa.gov/planners/retire/divspouse.html

Contact me at amanda@gordonfamilylaw.com for more information.

My marriage license was never turned in by the officiant, am I married?

Yes, under most circumstances, even if you had a technical defect in your Marriage License you are legally married under California family law.

The typical process for filing a Marriage License and Certificate looks like this:

1.     The Parties apply for a license,

2.     The wedding ceremony occurs,

3.     The officiant sends the license back to the County Clerk,

4.     The officiant then signs the registration, turning the Marriage License into a Marriage Certificate,

5.     The County records this document with the County Recorder’s Office.

6.     The County Clerk sends all original confidential marriage certificates retained, or originals of reproduced confidential marriage certificates filed after January 1, 1982, to the State Registrar of Vital Statistics (Family Code § 511).

If you have a wedding ceremony in California and you have applied for a marriage license, you are most likely married under California family law even if you fail to send in that license to the County. This is because there is at least one family law case that holds that registration of a marriage certificate is not essential to the validity of a marriage. In 2011, an Appellate Court found that parties who, after marriage ceremony in 1991, submitted marriage certificate for registration that was twice rejected for technical defects and was not resubmitted, and who were married in new ceremony about 10 years later, had been married for 17 years at time of dissolution of their marriage in 2008. In re Marriage of Cantarella (2011) 191 C.A. 4th 916, 923.

There is also a California Health and Safety Code section (§103450) that specifically allows for a party to bring an action requesting an order judicially establishing the fact of, and time and place of, the marriage. The definition of a party includes: “[a] member of a law enforcement agency or a representative of another governmental agency, as provided by law, who is conducting official business.” Health and Safety Code 103526(c)(2)(C).

What does that mean? Well, being married under California law requires you to file taxes with the State and Federal government as married. IRS Publication 17, page 20 states: “State law governs whether you are married or legally separated under a divorce or separate maintenance decree.” 

It also means that you will have to use California's dissolution rules in the family code if you decide to formally and legally separate. 

Contact me at amanda@gordonfamilylaw.com for more information.