Divorce

Divorce: Completing Your Preliminary Declaration of Disclosure

Published on: February 19, 2019 | by Bay Area Family Law Center

In a divorce proceeding, Family Code 2104 tells us what each party must disclose to the other party in order to advance the divorce case to a settlement conference or a trial:

(1) Each party shall serve on the other party a preliminary declaration of disclosure, executed under penalty of perjury on a form prescribed by the Judicial Council. The commission of perjury on the preliminary declaration of disclosure may be grounds for setting aside the judgment, or any part or parts thereof, pursuant to Chapter 10 (commencing with Section 2120 ), in addition to any and all other remedies, civil or criminal, that otherwise are available under law for the commission of perjury. The preliminary declaration of disclosure shall include all tax returns filed by the declarant within the two years prior to the date that the party served the declaration.

(2) The preliminary declaration of disclosure shall not be filed with the court, except on court order. However, the parties shall file proof of service of the preliminary declaration of disclosure with the court.

California Court Discusses Responses to Petitions Permitted in Divorce Cases

Published on: February 14, 2019 | by Bay Area Family Law Center

It is not uncommon for either party in a divorce or custody proceeding to seek a modification of a court order. The non-moving party is entitled to respond to any request for a modification and can request affirmative relief. The non-moving party is not permitted to request relief that is not an alternative to the relief requested by the moving party, or that does not arise out of the same issues, however, as recently explained in a case arising out of a California Court of Appeals. If you are in the process of deciding to end your marriage and you must determine a custody arrangement, it is important to retain an experienced California divorce attorney to assist you in protecting your rights.

Factual and Procedural Scenario

Husband and wife were married in November 2000. The wife knew the husband had been convicted of a sex crime, but she did not know the details of the crime, which was that he molested his stepdaughter from the time she was eight to twelve years old. The parties had a daughter in 2007 and separated in 2008. The wife filed for divorce in 2009 and sought custody of the daughter. The marriage was dissolved in 2010. The parties stipulated to share legal custody of the daughter, with the wife having primary physical custody. The father’s physical custody was limited to seven to twelve and a half hours weekly.

It is alleged that the husband filed a petition for modification, seeking a fifty-fifty split of physical custody. The wife filed three pleadings in response, in which she requested attorneys fees and costs associated with responding to the husband’s petition, and asked the court to require the husband’s custody time to be monitored, due to his prior criminal history. The court denied the husband’s request for a modification but granted the wife’s request for monitoring of the husband and for attorney’s fees. The husband appealed.

California Court Holds Settlement Agreement Allowed for Increase in Support Obligation

Published on: January 15, 2019 | by Bay Area Family Law Center

If you intend to seek a divorce, it is essential that you retain an attorney who is knowledgeable in drafting settlement agreements, to avoid unknowingly agreeing to terms that may put you in an unfavorable position in the future. Even if an agreement seems appropriate under your current circumstances, it is important to consider how any change in circumstances could affect your obligations and rights under the agreement. The failure to properly allow for modifications in your favor in the future can result in an increase in financial obligations.

A California Court of Appeals recently held that a marital settlement agreement that required a substantial increase in a wife’s support obligation had to be followed despite a material change in circumstances. If you wish to dissolve your marriage, it is in your best interest to consult a California divorce attorney as soon as possible, to assist you in seeking a settlement agreement that protects your rights now and in the future.

Facts Regarding the Marriage and Separation

Reportedly, husband and wife were married for over 18 years and had two children together. They separated in 2012 and in 2014 dissolved their marriage. A marriage settlement agreement (MSA) and post-judgment stipulation (PJS) were incorporated into the terms of the court’s order dissolving their marriage. The MSA provided that the wife would pay the husband $850 in monthly spousal support, plus 10% of any income she earned per year in excess of $180,000. The MSA also provided that either party could petition the court to modify the spousal support, after which the court would be obligated to consider the income of the parties at the time of the separation. Additionally, the wife agreed to notify the husband if she changed jobs. The PJS subsequently reduced the amount of support payments owed by wife on a sliding scale.

California Court Rules an Interspousal Transfer Deed Changed Nature of Property

Published on: December 21, 2018 | by Bay Area Family Law Center

Under California law, any property obtained during a marriage is presumed to be community property. The California Family Code allows for parties to change community property to separate property in certain circumstances, however.

Recently, an appeals court in California held that an interspousal transfer grant deed contained the necessary language to constitute a transmutation of the character of marital property. If you intend to seek a divorce, you should meet with an experienced California divorce attorney to assess the nature of any property obtained by you or your spouse during the marriage.

Ownership of the Property in Question

The husband and wife married one another in January 2010. In May 2010, the wife reportedly purchased a condo. The deed from the seller allegedly transferred the condo to the wife as “a married woman as her sole and separate property.” That same month, the husband signed an interspousal transfer grant deed (ITGD) granting the condo to the wife as her sole and separate property. The money used for the down payment on the condo was from the husband’s separate bank account. The husband filed for divorce in August 2011. The wife claimed the condo was her separate property based on the ITGD. The husband insisted the condo should be his separate property, however, because he paid for the down payment.