Monthly Archives: November 2017

Same Sex Marriage and Divorce

Termination of a Domestic Partership in California

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California’s legal options for divorce extend to domestic partnerships registered in California as well as in other states. Termination of a domestic partnership in California is similar to the termination of a marriage with a few differences.

In order to terminate a marriage, California generally requires that a couple have resided in the state for at least 6 months prior to filing for divorce and at least three months in the county in which the divorce is filed. In the case of a domestic partnership that was not registered in California, these same residency requirements apply.

If the domestic partnership was registered in California, there are no residency requirements for dissolution of the partnership. This includes domestic partnerships that were registered in California where the parties no longer live in California or have never lived in California. By registering the domestic partnership in California, the parties have consented to California jurisdiction and no further residency is required. Note, however, that if neither party lives in California, the judge may have issues with ruling on matters such as partner support, debt and property, and child support. This is just one of the reasons why it is important to discuss your case with a lawyer with extensive experience with domestic partnership laws.

If the domestic partnership has been registered for less than 5 years, it may qualify for a “summary dissolution.” In order to qualify for a “summary dissolution” the following requirements apply:

• Both parties are in agreement to terminate the domestic partnership.
• The domestic partnership has been registered for less than 5 years.
• No children were born or adopted during the domestic partnership and no party is currently pregnant.
• Neither party own any part of land or buildings.
• Neither party rents any land or buildings (other than a current residence so long as it is less than a 1-year lease and there is no option to buy).
• The partners have not acquired more than $6,000 in debts since the date of registration of the domestic partnership (not including car loans).
• The total amount of property acquired during the domestic partnership is less than $41,000 (not including cars).
• Neither party has separate property worth more than $41,000 (not including cars).
• No partner is requesting support from the other.
• Both parties have signed an agreement dividing all of their debts and property or they attest that they have no debts or property together.

It is important to discuss the pros and cons of filing for dissolution of a domestic partnership with an experienced family law attorney. As termination of domestic partnerships in California presents unique issues, it is vital to seek the counsel of lawyers with extensive knowledge of California domestic partnership laws. Call the attorneys at the Law Offices of Judy L. Burger to find out how they can help you with your domestic partnership questions or other family law issues: (415) 293-8314.
California Divorce

What Information Do I Have to Provide with my Preliminary Disclosures?

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As discussed in the previous blog post, Preliminary Disclosures are required for all
divorces in California. Preliminary Disclosures are a set of forms and documents that each party in a divorce must give to the other in writing providing information regarding all assets, debts, income and expenses.

Three forms are required by California law to be included as part of the Preliminary Disclosures: 1) Declaration of Disclosure (FL-140), 2) Schedule of Assets and Debts (FL-141), and 3) Income and Expense Declaration (FL-150).

Declaration of Disclosure
The Declaration of Disclosure form (FL-140) is a cover sheet signed by the party providing the disclosure under penalty of perjury. It attests that the Schedule of Assets and Debts and the Income and Expense Declaration are attached. It further requires that additional information be attached apart from the forms:
• The last 2 years of tax returns;
• A written statement of material facts relating to valuation of community property;
• A written statement of material facts relating to community obligations;
• A written statement regarding any investment opportunity, business opportunity, or other income-producing opportunity presented since the date of separation that results from any investment, significant business, or other income-producing opportunity from the date of marriage to the date of separation.

Schedule of Assets and Debts
The Schedule of Assets and Debt (FL-142) is a four-page form with questions related to the assets and debts of the person completing the form. The form requires disclosure of all assets and debts regardless of whether they are community or separate property. The form also requests an estimated value of the assets as of the date of completing the disclosure form and requires that statements be attached as proof of valuation. A party may indicate on the form whether they believe an asset to be separate property by annotating the asset with a “P” for “Petitioner” (the person who filed the divorce petition) or an “R” for “Respondent” (the person responding to the divorce petition).

Income and Expense Declaration
The Income and Expense Declaration requires a listing of a party’s income from all sources and expenses. This is different from the Schedule of Assets and Debts as it provides a “snapshot” of a party’s monthly inflow and outflow. The form has very specific questions that must be answered including special hardships, attorneys’ fees, and average monthly expenses. Like the Schedule of Assets and Debts, the Income and Expense Declaration also requires that supporting documentation be attached.

It is extremely important to be accurate in the completion of all of the disclosure forms. Providing incorrect or incomplete information can result in the judge awarding the entire asset omitted to the other party or an award of attorneys’ fees.

Remember that the “disclosure” requirement continues throughout the divorce process until the divorce is final. This means that if anything changes regarding assets, debt, income or expenses after the filing of the Preliminary Disclosures, you must fill out and serve a new set of disclosure forms on the other party to advise them of the new information. You would also then let the court know that you have filed updated disclosures by filing another Declaration Regarding Service of Declaration of Disclosure (FL-141) with the court.

The financial disclosure requirements for California divorces are very specific and the penalties for providing inaccurate or incomplete information are serious. It is important to hire an experienced California divorce attorney to assist you with completing these forms as part of the divorce process. Call (415) 293-8314 to find out how the knowledgeable divorce attorneys at the Law Offices of Judy L. Burger can help.
California Divorce

What are Preliminary Disclosures?

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In divorce cases in California, both parties are required to provide a set of forms and documents regarding their finances to the other side. These forms and documents are called a “Preliminary Declaration of Disclosure” or “Preliminary Disclosures” and are required in order to get a divorce in California.

California law requires that specific forms be completed and provided to the other party as part of the Preliminary Disclosures. These disclosures are not something that must be requested by either side, there is an automatic requirement that each party provide this information to the other. Complete and transparent disclosure of financial assets is required. The forms and documentation required in the Preliminary Disclosures include detailed information regarding a party’s assets, debts, income and expenses.

The purpose of the Preliminary Disclosures requirement is to facilitate the ultimate goal of resolving all issues completely between the two parties, including a fair division of assets. The only way to reach a fair division of the assets is if both parties are aware of all of the assets held by both parties either individually or together. The Preliminary Disclosures also ensure that all parties are aware of each other’s finances and can adequately determine child support or spousal support where applicable.

Preliminary Disclosures are not filed with the court, but are “served” on the other party, either in person or via mail, as part of the divorce proceedings. Preliminary Disclosures must be served by the Petitioner no later than 60 days after filing the Petition for Divorce and by the Respondent no later than 60 days after the Response is due.

The only document filed with the court related to the Preliminary Disclosures is a “Declaration of Service of Declaration of Disclosure” which advises that the disclosures have been served. In the event that any information changes after service of the initial disclosures, updated disclosure forms must be served on the other side and a new “Declaration of Service of Declaration of Disclosure” must be filed with the court.

California law takes the Preliminary Disclosure requirements very seriously. The failure to provide complete financial information to the other party in the disclosures can result in serious consequences including the award of a hidden asset to the other party or a court order to pay the other side’s attorneys’ fees.

Preliminary disclosures are just one of many complex requirements for obtaining a divorce in California. An experienced California divorce lawyer on your side will make sure that you get the assets that you deserve. The attorneys at the Law Offices of Judy L. Burger are highly knowledgeable and experienced with obtaining positive results for their clients. Call us today at (415) 293-8314 to find out more about how we can help.
California Divorce

What is a QDRO?

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Divorce proceedings are stressful and emotional for everyone involved. In the midst of chaos, it can be difficult to put together a comprehensive list of assets. One of the largest assets in a marriage that is often overlooked is a retirement plan. While retirement may be years down the road for many couples seeking a divorce, the division of that retirement plan must be addressed and approved during the proceedings. Failing to address the issue can lead to additional cost and a great deal of uncertainty down the road.
Retirement plan distributions ordered in divorce proceedings are governed by a document called a Qualified Domestic Relations Order (or “QDRO”). A QDRO is a court order or judgment for a retirement plan to pay benefits to the dependent of a participant.
A QDRO is different from a “Domestic Relations Order” from the court as it must be “qualified.” To be “qualified” means that the order must be approved by the retirement plan in order to be valid. During divorce proceedings, the QDRO is sent to the retirement plan for approval.

Why is a QDRO Important?
Obtaining a QDRO is an important consideration in divorce proceedings as it governs the division of a large martial asset and is the only way to receive a pay-out benefit from a retirement fund. A retirement benefit could be granted by a judge and listed in the divorce decree, but a party is not entitled to a pay out of any benefits from a retirement fund unless a QDRO was sought and issued. The retirement plan then uses the QDRO as the legal basis for making pay-outs to the beneficiaries listed in the Order.

Requirements for a QDRO
There are thousands of retirement plans in the U.S., each with specific requirements as to what information must be included in a QDRO. The IRS requires that a QDRO contain the following information:
• the participant and each alternate payee’s name and last known mailing address; and
• the amount or percentage of the participant’s benefits to be paid to each alternate payee.
While this is a bare minimum, it is also a good idea to include the name of each plan governed by the Order as well as the total time period or number of payments to which the Order applies.
Keep in mind that every retirement plan will have different requirements and may want additional information added to the QDRO. This is why it is important to submit the Order to the retirement plan as soon as possible during divorce proceedings and to make any revisions necessary to obtain approval prior to finalization of the divorce.

If a QDRO is not set up correctly, it may not be enforceable after a divorce. This is where a California divorce attorney with experience in obtaining QDROs is invaluable. The attorneys at the Law Offices of Judy L. Burger are highly knowledgeable and experienced with negotiating and obtaining QDROs. Call (415) 293-8314 to find out how we can help.