California Family Law Attorney
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February 08, 2010
Posted By Thurman Arnold

California Family Law Disclosure Forms

Whether you are representing yourself in your divorce, or a pro per family law litigant, you need to know about and understand the Declarations of Disclosure that are required in California before a Judgment of Dissolution may be entered. Getting it wrong can have serious consequences. In my experience, paralegal firms or non-lawyer mediators do not know how to properly assist clients in meeting these obligations, and even seasoned divorce attorneys get these disclosure forms wrong. You need to understand that these disclosure forms are not simply another document that needs to be prepared in a sloppy fashion in order to complete your divorce, but rather they are the proof that you have complied with important spousal fiduciary duties after your physical separation.

You can’t get even a default divorce and marital termination agreement past the family court clerk without a least a Preliminary Declaration of Disclosure (PDD) and when the other side has appeared in the action, you cannot obtain a Divorce Judgment without both parties have exchanged for waived the Final Declaration of Disclosure (FDD). Even if the documents have been exchanged, if they are incomplete or inaccurate the other party may be able to set all or parts of your divorce judgment or divorce settlement for up to several years after a judgment is filed. These rules and requirements apply equally to domestic partnerships, annulments, and legal separations.

This article covers the Preliminary Declaration of Disclosure.

Preliminary Declarations of Disclosure

California Family Code sections 2100 to 2113 cover declarations of disclosure for California divorces. FC section 2100(a) declares it is the policy of the State of California to “(1) marshal, preserve, and protect community, and quasi-community assets and liabilities that exist at the date of separation so as to avoid dissipation of the community estate before distribution, (2) to ensure fair and sufficient child and spousal support awards, and (3) to achieve a division of community and quasi-community assets and liabilities on the dissolution or nullity of marriage or legal separation of the parties as provided by California law.”

FC section 2100(c) states that in order to promote this policy “a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties.”

This bears emphasis:

  • There must be a full disclosure
  • It must be accurate
  • It includes all assets
  • It includes all liabilities
  • It applies to assets or liabilities one has or may have
  • The disclosure must be made early on in the proceedings, although there is no specific time rule
  • It doesn’t matter whether you think the asset or debt is a separate property item, you still must disclose
  • You must also fully and accurately disclose all income and expenses
  • Although the statute doesn’t say it, you may see why these are forms that you do not want to lose – since, as mentioned below, the disclosures themselves are not filed with the court.

FC section 2100(c) does not, however, stop there. The statute continues “Moreover, each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent that there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the underlying facts.”

Family Code section 2102 sets forth the rules governing interspousal fiduciary duties, including the operation and management of community or part community businesses. I will discuss this section elsewhere and link back to it when that article is finished.

Family Code section 2104 describes the Preliminary declaration of disclosure. It must be completed as set forth in this Judicial Council Form. It does not get filed with the Court, but a declaration stating it has been exchanged must be filed with the Court.

If, as commonly occurs where parties have negotiated and signed an agreement and the Dissolution Judgment proceeds by default with a Marital Settlement Agreement signed by both being submitted, no final disclosure needs to be exchanged between the parties but the Petitioner still must himself or herself complete and serve the Preliminary declaration; the defaulting Respondent is relieved of that obligation.

Family Code sections 2120 to 2129 describe when a judgment for dissolution, or a property settlement or a support settlement, may be set aside for defects in the Preliminary declaration of disclosure and for other reasons.

You can find the California Judicial Council forms here.

For more information on Declarations of Disclosure, visit this link!

Author: T.W. Arnold, C.F.L.S.

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January 17, 2010
  Why is the date of PHYSICAL SEPARATION legally important?
Posted By Thurman Arnold

Q. Why is the idea of 'physical separation' important in California divorce or domestic partnership dissolutions?

A. The idea of "physical separation" is one of the most important concepts to California matrimonial law. It determines presumptions based upon time of acquisition as to what is, or is not, community property. It is used to determine the length of marriage for purposes of deciding how long someone must pay, or can receive, spousal support. We've written a ton of stuff about this issue, and the laws have changed, changed again, and changed once more! See 2017's Family Code section 70.

Physical separation is the date that the marriage ends, for most practical purposes. The date of physical separation is the date that community property ceases to accumulate. Family Code section 771 states "The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse."

Once spouses separate, all their earnings and everything that is acquired with those earnings are separate property of each spouse, respectively.

Similarly, upon separation each spouse is no longer liable for the debts of the other spouse. The community estate is liable for a debt incurred by either spouse "during marriage". During marriage "does not include the period during which the spouses are living separate and apart before a judgment of dissolution ... or legal separation...." FC section 910. An exception exists as to "necessaries" except to the extent that the parties are living separate by agreement and whether or not support is stipulated by that agreement. FC section 4302.

Separation is of critical importance to the expanding interpretation and growing field of the law of fiduciary duties. The duty of confidentiality that arises because of the marital relationship by legislative fiat (Family Code section 721) and which gives rise to major exposure for the conduct of spouses with regard to property and money, ceases at separation - meaning spouses no longer have the expectation and right of relying upon one another as trusted partners. Fiduciary duties continue pursuant to FC sections 1100 et seq. and sections 2100 et seq. as to assets that already exist, or can be considered marital opportunities arising after separation, until the time each asset in question is divided by agreement or court adjudication. Fiduciary duties are land mines. A good example of the consequences for breach of fiduciary duty is the Rossi case, where a wife who won the lottery and then filed for divorce the next day claiming she and her husband had already separated. She fails to list the lottery winnings in her paperwork, and refused to disclose it to the husband later claiming, among other things, that she had been a victim of domestic violence. Because the husband had no idea about the lottery winnings, he did not dispute the divorce or wife's asserted date of separation until much later when one day he received a letter intended for the wife by a company offering to buy out the winnings. He called the State Lottery Board, and then filed a motion to set aside the divorce degree and for damages for wife's fraud and breach of fiduciary duty. The court ordered the wife to disgorge all her winnings (100%) and pay them over to the husband.

The separation date is crucial to understanding reimbursement claims relating to payment on joint and separate debts, or in fixing rights to real property. For instance, California law provides that the community has an interest in the appreciation of a residence which is owned, meaning title is held, in one spouse's name alone where principal on a mortgage is being paid down. This is called the Moore-Marsden approach to equitable reimbursement. If the house appreciates after separation, the titled spouse may want to argue that all that appreciation belongs to them. Date of separation becomes important to the date of valuing the real estate and determining the relative principal loan amounts.

It is crucial where businesses are involved, regardless whether they are corporations, mom and pop shops, or sole proprietorships. For instance, what happens when a spouse who controls or who is the business, which was established before or during the marriage, continues to derive income from it after the parties separate? Maybe the business goes up in value. Perhaps it goes down in value through market factors, or maybe even the spouse intentionally drives it into the ground in order to reduce the amount that will be ordered to buy out the other spouse's interest. In all these situations a date of separation determination is crucial.

Another common area where it comes up in with regard to pensions, whether they be defined benefit plans or contributive benefit plans. Whatever accrues to the spouse who holds the pension by way of his post-separation contributions belongs to them.

Date of separation is also critical to determining the length of the marriage for purposes of spousal support or alimony rights. It is a snapshot in time with huge ramifications, including how long a spousal support obligation may continue and when it might be terminated.

It is critical that you hire an attorney who understands how to litigate and present the facts of physical separation. For a January, 2014 update and review of current date of separation appellate decisions, click here!

Author: Thurman W. Arnold III, Certified Family Law Specialist

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January 17, 2010
  What Is a LEGAL SEPARATION in California?
Posted By Thurman Arnold

Q. What is meant by "separation" in California, and is legal separation a good idea?

A. There are two contexts in which the word separation is used in divorce and family law in California: (1) Legal Separation and (2) physical separation. Both are important, but in practice the concept of physical separation has a far huger impact on people's lives.

A Decree of Legal Separation in California is identical for all purposes to a Decree of Dissolution of marriage, with one critical distinction: A judgment for legal separation leaves the marriage (and the marital "bonds") intact. The parties remain married, and so neither can remarry. But for all other purposes, the marriage is effectively dissolved.

There are religious and personal reasons why two people might want to do this, and there are some practical reasons involving most notably health insurance but sometimes job related benefits why two married persons might choose this over divorce.

A decree of legal separation cuts off the creation of community property thereafter, which includes liability for community debts as well. It is possible to divide all property between the parties, to fix all rights and entitlements to spousal support, and to deal with custody, visitation, and child support issues, and yet remain legally married. It requires the consent of both parties, because if either party objects to a legal separation or seeks a dissolution instead, a Judgment of Legal Separation cannot be granted. Even if the parties are in agreement concerning a legal separation, neither is precluded from later seeking to terminate marital status through a subsequent dissolution action. If the parties have reached a legal separation agreement, or if the Court enters a Judgment of Legal Separation, a subsequent action does not undo any of that.

This is a fairly unusual outcome. In my substantial experience, very few parties have been in agreement on this way of resolving their joint affairs and it doesn't usually make sense unless there are unique health, insurance, or religious or familial reasons for not dissolving the marriage.

Need more information about the twists and turns of Legal Separation?

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