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Recent Posts in General - What to do? Category
| September 08, 2010 |
| What do I do if my spouse or domestic partner does not complete their DECLARATION OF DISCLOSURE? |
| Posted By Thurman Arnold |
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Q. What do I do if the other party to a divorce or dissolution of domestic partnership proceeding refuses to file their Preliminary Declaration of Disclosure?
A. Declarations of Disclosure must be exchanged in all California proceedings for dissolution of marriage or domestic partnership, for legal separations, and for annulments. They do not need to be served in any other form of family law proceeding.
There are two forms of Declarations of Disclosure: Preliminary Declarations of Disclosure (PDD's) and Final Declarations of Disclosure (FDD's). PDD's are governed by Family Code section 2103 and FC section 2104. FDD's are governed by Family Code section 2105. While parties to a dissolution or legal separation action can waive the exchange of the FDD in writing (although it is not a good idea to do so for reasons discussed in my blogs about fiduciary duties), they cannot waive exchanging the Preliminary Declarations with one exception: Where a dissolution or legal separation judgment is obtained by default, the defaulting party need not provide the PDD to the other party. Family Code section 2110.
Note that I used the words "exchange" and "serve." This is because the forms themselves are not required to be filed with the Court itself - instead, the proof of service upon the other party to the proceeding is what is to be filed. Judicial Council Form FL-141 is what you file with the clerk's office. In practice many people do file the actual schedules with the clerk, which can be a good idea because whether these forms were really exchanged and their contents can have a big impact on future set aside motions.
Here is the California Judicial Council Form FL-140 cover sheet that accompanies the PDD or the FDD. As you can see, it is the same form but different boxes are checked for each. A form FL-150 Income and Expense Declaration must accompany both, in addition to the FL-142 Schedule of Assets and Debts and the FL-160 Property Declaration.
The FDD is supposed to have much more detailed information, including supporting attachments, then is expected in the PDD.
Where the proceedings do not conclude by way of a default Judgment, the problem you have where the other party fails or refuses to exchange at least their PDD and thereupon to file the FL-141 proof of service is that the clerk cannot (a) set the matter for trial or (b) cannot accept for submittal to a judge and later filing a Stipulated Judgment or Marital Termination Agreement. This can make it impossible to conclude a case even by way of settlement where both parties are in perfect agreement, or to obtain a trial date where they are not. One party can hold up the entire process, and it is true that this often happens intentionally.
There is no set time for when parties must complete and exchange their preliminary declarations. Family Code section 2104 states in part that "after or concurrently with service of the petition for dissolution or nullity of marriage or legal separation of the parties, each party shall serve on the other party a preliminary declaration of disclosure...." The problem with this language is the word "after." The expectation is that this will be done within a reasonable time not usually exceeding 60 days from the date a party appears in the action by filing a Petition or a Response, but the statute does not explicitly say that.
The only remedy you have is file a notice of motion (or OSC application) pursuant to Family Code section 2107 asking that the court order the other party to serve their PDD and file the proof of service within a given number of days, not usually exceeding thirty. That motion should request an order that the other party's Petition or Response be stricken if they then fail to do so in a timely manner, so that your matter may effectively proceed by default hearing.
Expect the Court to give the other side one or two opportunities to get themselves into compliance with their fiduciary obligations to provide this exchange.
Thurman W. Arnold III
http://www.DesertDivorceandFamilyLawyer.com
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| June 21, 2010 |
| What is DISCOVERY in California Dissolution and Family Law Cases? (Part 1 - Form Interrogatories) |
| Posted By Thurman Arnold |
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Q. I am helping a friend who considering a divorce from her husband. He is a lawyer and she is a school teacher. They have two teenagers. She doesn't expect him to be at all cooperative and he has bragged in the past how he is smarter than any lawyer she might hire. She thinks he has hidden assets. When my marriage ended I had a thorough divorce lawyer who used "discovery" to get really helpful information from my ex - eventually the case settled. That was in Washington. Can you tell me how discovery works in California?
A. "Discovery" generally consists of a formalized requests and responses for the exchange of information that has a bearing upon some issue in a dissolution or other type of family law proceeding. It is governed by the Code of Civil Procedure (the "Civil Discovery Act") and not the Family Code, and the same rules that apply to discovery in all civil cases generally apply equally to divorces. However, there is one important difference: There is a major overlap today between discovery obligations and fiduciary duties in marriages and domestic partnerships. I will tie those together for you in a later Blog.
I am identifying this Blog as Discovery Part 1 because I intend to write a series of articles on the subject and want people to be able to access them in order so they make more sense. This Blog is to identify the basic forms of discovery. There is no discovery until a proceeding is actually filed and generally the responding party must have been served with the summons and Petition at least 15 days before discovery commences.
Discovery options basically include:
The statutory references I provide here for the various discovery modalities are illustrative only - if you are representing yourself or have a lawyer but want to be educate yourself nonetheless you may want to review other 'neighboring' code sections. I will try to hit the most important for you.
The simplest form of discovery in California family law cases is the FL-145 Judicial Council Form Interrogatories. Interrogatories come in two flavors: Form and Specially Prepared. CCP section 2030.030 addresses the propounding of interrogatories.
The form interrogatories are preprinted and pre-approved by the California Judicial Council (those same folks who determine the other forms that must be used in most family law matters), and in family law cases they cover topics relating to income stream, debt, community and separate property, alleged agreements, and reimbursement issues. Simply check the applicable boxes and mail them together with a proof of service signed by a third party. The responding party has 30 days plus 5 when the interrogatories are served by mail to answer (if served in person, then only 30 days). An important benefit of the form interrogatories is that they cannot be objected to since the questions are preapproved. Special interrogatories take care to draft.
Form interrogatories should be used in all cases. Except in cases that are entirely amicable and where there is no question that both parties are being completely honest, I cannot overstate that it is essential that you obtain these answers. Even if the answers are false or incomplete, they create a record of what representations were made to you which may affect your rights downstream (for instance, in the event of a set aside motion for nondisclosure or a false representation).
One of their most important uses is to force the other party to complete a schedule of assets and debts. This is item number 10, and it requires that the FL-142 - Schedule of Assets and Debts also be filled out and provided with the Responses. Be sure to serve a blank FL-142 with the Form Interrogatories. Particularly where you suspect someone is hiding assets or otherwise not being transparent, this interrogatory forces the other party to sign their disclosures under penalty of perjury.
The other form of interrogatories are "specially prepared" meaning they are drafted from scratch and tailored to specific issues. You are entitled to ask up to 35 of these, and more so long as you submit the Declaration for Additional Interrogatories.
Specially prepared interrogatores are extremely useful because you can ask pinpointed questions about specific areas in contention, but they are a bit more problematic for a non-lawyer because they must meet formal requirements in order to avoid objections.
I will cover that topic and provide a sample in a later Blog.
T.W. Arnold III
http://www.ThurmanArnold.com
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| August 29, 2009 |
| Woman not from this country mistreated by American husband |
| Posted By Thurman Arnold |
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From J:
Hello, I am an Australian woman who married almost 4 years ago an American and he treats me like a housekeeper not as his wife. We are in Phoenix right now, but we were living most of the time in Indian Wells, CA, at his house. He is also threatening me that he is going to take my two daughters away from me. (Mine from a previous relation). He changed since we become a married couple. I really fell alone and he is denying my existence. I have nobody here and he doesn't even let my go visit my parents for a few weeks. What would be a good advice? Best Regards.
J.
Hello J:
That kind of treatment may be a form of domestic violence, and you have my sympathy and concern. Have there been threats or hitting?
When do you return to the desert? I assume you have no ability to travel on your own because you have no money? You may need to look to your family for help.
This gentlemen is not going to take your children away from you, no matter what he says.
In terms of dissolution rights, you are absolutely entitled to have the marriage dissolved, but you are not going to have huge support or property rights – typically support for a short marriage is half its length although it is possible to stall a case to stretch that out in this case, and figure if you have no income you might be entitled to about 35% of what he grosses, all other things being equal. In terms of property, if nothing was acquired during marriage there is not going to be much to divide, although if there has been a mortgage payment on the Indian Wells residence there might be some reimbursement.
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