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

How is Contempt of Court Used in California Divorce Cases?

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All courts have an undeniable interest in ensuring that their orders and procedures are respected and followed. This holds true in California’s family courts, as well. Violations of a court’s order to do—or not to do—something, is known as contempt of court. In California divorce cases, contempt of court has special consequences. It may be enforced by the court on its own motion or can be brought to the court’s attention by the parties to an action.

The punishment for contempt of court in a California divorce case is specific. When an individual is found guilty of contempt of court, he or she may be fined up to $1,000, imprisoned for up to 5 days, or both, per charge. If found guilty of contempt, the contemnor may additionally be ordered to pay the reasonable attorney’s fees and costs of the individual who initiated the contempt proceedings.

Some special provisions that apply to contempt of court in divorce proceedings include California Code of Civil Procedure § 1218.5(a), which reads as follows:

If the contempt alleged is for failure to pay child, family, or spousal support, each month for which payment has not been made in full may be alleged as a separate count of contempt and punishment imposed for each count proven.

Thus, pursuant to California law, there can be multiple counts of contempt charged for a repeated failure to pay child or spousal support in the Golden State. The statute of limitations for bringing such proceedings is three years from the date the payment is due. For the enforcement of any other order relating to family law matters, the statute of limitations is two years.

For each count of contempt, the punishment depends upon whether it is for the failure to pay an ordered support or for a violation of a provision of the divorce order. If there is a finding of contempt for failure to comply with a divorce order, the person who is found to be in contempt cannot then enforce the divorce decree against the other party, except as to the child, family, or spousal support.

In the case of contempt for a failure to pay court-ordered support, the punishment depends on whether it is a repeat occurrence. For the first finding of contempt, the court will order the violator to perform 120 hours of community service or spend up to 120 imprisoned. For the second offense, the penalty is community service and imprisonment for 120 hours each. For the third offense, the penalty is 240 hours of community service, 240 hours of imprisonment, and an administrative fee for the administration and supervision of punishment. These penalties, as noted above, can be cumulative, and added for each offence.

Contempt of court in California divorce cases is specific to the type of offense and whether it has occurred previously. If you or someone you know is involved in a divorce proceeding and there is a failure to follow the orders of the court, a contempt order is your next step for addressing this failure. The attorneys at the Law Offices of Judy L. Burger are experienced in contempt issues in family court cases. Call today to see how we can help you: (415) 293-8314.

California Divorce

How Can Facebook Affect Your Divorce Case?

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Facebook is used by billions of people worldwide, with over 1.94 billion active monthly Facebook users. Its use is ubiquitous. People enjoy Facebook with their morning coffee, to get past the mid-week hump, and to pass the time and share the fun on their Friday nights. And many people using Facebook forget that they are not always aware of who their audience might be.

Facebook can be a great source of information regarding a lawyer’s own client, as well as his or her opposing client. Many people post activities on Facebook that they want to show as fun—but that can be a serious pitfall in a divorce proceeding.

In addition, by checking a person’s Facebook page, a lawyer is sometimes able to determine the user’s location, which can be helpful if the person has been evading service of process.

Other potential uses include important information about a person’s leisure activities. If child custody or visitation is an issue—since the standard a court uses to make decisions about children is what is in the “best interest” of the child—pictures and posts that demonstrate a propensity for drugs, alcohol, or promiscuity can paint a picture that allows the court to protect the child, despite contradictory testimony. Likewise, if a person is claiming financial hardship, pictures showing a lavish vacation or shopping activity could be presented to contravene that person’s in-court statements.

Divorce cases can be challenging for everyone involved. This is especially true when one party (or the other) forgets about the often public nature of Facebook and other social media posts. Remember that Facebook absolutely can affect your divorce case, allowing a judge potential insight into issues you may wish to avoid in court.

If you need assistance in a family law proceeding, you should consult with an experienced California lawyer. The attorneys at the Law Offices of Judy L. Burger will provide authoritative legal support tailored to your specific situation. Make the call today to learn how our attorneys can help: (415) 293-8314.
Legal Separation

Pros and Cons of Default Judgment in Divorce

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When a relationship does not stand the test of time, the people who once were a couple need to become individuals again. In California, this can sometimes be accomplished through the use of a default judgment for divorce. In a default judgment, one partner completes paperwork to have the court enter a divorce judgment and the other individual does not contest the divorce. In this type of default, the parties agree on the settlement provisions. As a result, the court is able to simply enter a default judgment.

A default judgment is sometimes the simplest and easiest method of having a divorce completed. It is usually less costly than litigation. However, there are both pros and cons to this method of ending a marriage.

Sometimes the people who are divorcing decide that having a default judgment is the method they want to use for divorcing, so they agree beforehand on how they want the divorce to be structured and bring that in for the entry of judgment. This allows them to have the ease of a default judgment and still ensure that their collective property is separated in the method they prefer.

However, there are many potential cons in using a default judgment in a divorce case, and using this method is not always appropriate. A default judgment should not be used if the parties are not in agreement about the distribution of the marital estate, if there is a situation of abuse of one partner by the other, or if the parties do not have a full understanding of the legal implications of the divorce. It is important for both parties to also understand that the party who is not initiating the divorce, also known as the respondent, is giving up his or her right to contest the court’s decision if no response is made.

Perhaps most important, however, is that failing to obtain the advice of an experienced California divorce attorney can result in giving up rights that a spouse may not even know he or she has, all in the name of “getting along.”

If you want to learn more about whether a default divorce might compromise your future, or that of your children, contact the attorneys at the Law Offices of Judy L. Burger. We can help. Call us today to make an appointment: (415) 293-8314.
Epstein Credits and the Family Home
California Divorce

“Epstein” Credits and the Family Home

As a couple moves toward a divorce or legal separation, one potentially hotly contested issue involves what is known as “Epstein” credits. “Epstein” credits were named after the case in which they were first recognized, In Re Marriage of Epstein, which was decided by the California Supreme Court in 1979. These credits may be given to a party who pays community debt with separate property funds before a divorce or legal separation is final. If you are unfamiliar with the nature of community and separate property, please see our blog here.

The issue of Epstein credits often comes up when one party stays in the family residence with the children after the couple is separated. These credits are based on the notion that the family residence is community property and that both parties have a right to receive the benefit of that property until community assets and debt have been allocated by the court. The parties could benefit from the property in different ways: by staying there themselves, by renting it out, or by selling it. Therefore, when one spouse stays in the home, he or she is receiving a benefit and also depriving the other spouse of beneficial use of the property.

Epstein is not limited, however, to the family home. These credits may be requested any time preexisting community debt is paid with the separate property of one spouse. For that reason, they may apply to credit card debt, vehicle loans, and tax payments. However, the party requesting these credits must be able to show that a community debt was paid with his or her separate funds, such as income earned after the date the parties separated. When Epstein credits are awarded, the spouse who paid the community debt is entitled to be reimbursed out of community property assets.

Additionally, the right to Epstein credits may be extinguished under certain circumstances. For example, no Epstein credits will be awarded if the debt payment was intended as a gift, if the parties agreed that no reimbursement would be made, or if the payments were made in place of spousal support.

As you might imagine, both the date of separation and the nature of the debt involved are critical to a court’s decision of whether to award Epstein credits.

Because the legal issues in determining how property and debt are owned are significant, the assistance of an experienced divorce attorney can materially change the outcome of a divorce or separation matter. For these issues, you need an attorney with substantial experience in Northern California who will represent you aggressively. Please contact The Law Offices of Judy L. Burger at (415) 259-6636 to learn more.

How Is Debt Divided in California Divorces?
California Divorce

How Is Community Debt Divided in California Divorces?

Have you ever wondered how community debt is divided in a California divorce or legal separation? State law mandates that a couple’s community estate be divided “equally”, taking into account both assets and debt. It also provides several specific rules for dealing with debt.

Debt may be allocated as separate debt, community debt, or a combination of both. This determination is similar to the way community assets, or property, are handled. If you are not familiar with the concept of community property, please see our separate blog here.

As you might expect, separate debt is allocated to the person who incurred it. For example, under most circumstances, debt incurred by one of the parties either before or after the marriage will be the responsibility of that party. An additional category of separate debt about which many are unaware is debt incurred during the marriage that was “not incurred for the benefit of the community”. This type of debt is treated as the separate debt of the person who incurred it.

Community debt is handled differently. Under ideal circumstances, the parties agree on how they would like to allocate community debt; however, even if they do agree, the division of debt is not official until a judge enters a final order approving their agreement. If the parties cannot come to an agreement, the judge will do it for them.

The law provides additional rules to distinguish community from separate debt. Debt incurred after marriage but before separation is usually community debt, even if it is only in one spouse’s name. An example of this would be a credit card acquired during the marriage in the name of one spouse. The separate or community nature of debt incurred after separation but before judgment is entered depends on whether it was incurred for the “common necessaries of life of either spouse . . . or the children”. If the debt was for common necessaries, the court will allocate it according to the parties’ need and ability to pay it. If the expense was not for common necessaries, it will be allocated to the party who incurred the debt.

In allocating debt, there are additional considerations, called “reimbursements” or “credits”, that the court may assign due to payments made on the family home after separation, the use of the family home after separation, and payments made for education or training. These topics are discussed in separate blogs on our website.

If a couple’s community debts exceed its assets, the judge will assign excess debt according to what is just and reasonable. The court may consider the parties’ ability to pay, relative to one another, in making this determination.

The manner in which debt is allocated in a divorce or legal separation can impact you for the rest of your life. In hotly contested matters involving debt division, you need an attorney to protect your interests. The attorneys at the Law Offices of Judy L. Burger have extensive experience in property and debt division. Call today: (415) 293-8314.