by Shawn Weber, JD, CLS-F* | Nov 28, 2012 | Uncategorized
Shawn Weber, Attorney at Law
www.bravewebermack.com
In California, the question that should be asked is not when the divorce is legally finalized, but when you were separated. California law defines your date of separation as that day on which it was clear to both parties that the marriage was irretrievable. That could be the date a spouse moved to a separate residence or the date a Petition for Dissolution of Marriage was filed at court. If the house was acquired after the date of separation, it will be considered separate property. (Beware: if you use community property funds to purchase the house or to make a down payment, you run the risk of giving your ex-spouse an interest in the property or – at the very least – a right to reimbursement.)
BE CAREFUL! Adding a spouses name to the title for a piece of separate real property (i.e., a deed) will turn the property into a community asset. However, a right to reimbursement of the separate property investment will still stand.
by Shawn Weber, JD, CLS-F* | Nov 16, 2012 | Uncategorized
By Shawn Weber, Attorney at Law
No. In California divorce law, it is important to distinguish “community property” from “separate property”. §761 of the California Family Code provides that “except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.” But, §770 of the California Family Code provides that separate property of a married person includes the following: (1) all property owned prior to the marriage; (2) all property acquired after the marriage by gift or inheritance; and (3) all rents, issues and profits of any separate property asset.
When a couple divorces in California, the court will divide all of the community property in half and award 100% of the separate property to its respective owner. This means that if you own property prior to getting married it remains your separate property even after you break up. However, there are some exceptions to this rule. For instance, if you commingle your assets you can make an asset community property. Also, if you make a down payment on a piece of real estate with separate property funds prior to the marriage, but throughout your marriage you make mortgage payments from your community wages, your spouse will have a community interest in that property known as a Moore-Marsden interest, which is calculated with a formula based upon the amount of loan principal paid from community funds. However, you will get your separate property down payment back.
For a free consultation about your property and family law, call San Diego Attorney Shawn Weber at 858-410-0144.
by Shawn Weber, JD, CLS-F* | Nov 14, 2012 | Uncategorized
Last Thursday, November 8, 2012, I was very pleased to appear on the local radio show, Real Estate Radio, on San Diego AM 1700 ESPN Radio. The topic was “Love and Real Estate.” I enjoyed the opportunity to have a conversation about how California Family Law can affect relationships as it relates to questions of real estate.
Listen to to the podcast here: http://nxtgrp.com/podcast/realestateradio/?p=episode&name=2012-11-10_rer-ep121108.mp3
I was also very pleased to have a chance to spread the word about Collaborative Divorce as an alternative to litigation at court.
Thanks to Real Estate Radio for having me on!
by Shawn Weber, JD, CLS-F* | Jun 25, 2012 | Uncategorized
This article on Huffington Post about Beth Shak’s $1 million shoe collection is quite illustrative.
A person who spends that kind of money on shoes should not at all be surprised that it comes up in the divorce. The reality is that it is an asset with value. That it is some woman’s shoe collection is not the point. If they have value, they need to be divided. In fact, in some states including California, spending that kind of money during the marriage no matter what the asset could be a breach of fiduciary duty. You’re not allowed to have “secret rooms” full of cash without sharing it with the ex… so why a shoe collection?
Read the Article at HuffingtonPost
by Shawn Weber, JD, CLS-F* | Feb 6, 2012 | Uncategorized
California Duty of Disclosure
In California, it is essential in every dissolution, divorce, nullity or legal separation case to make a full and complete disclosure.
California Family Code § 721 requires full disclosure in divorce cases.
California Family Code § 721
The duties of disclosure are largely controlled by California Family Code § 721, which describes the fiduciary duties between spouses. It provides, in part:
[A] husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.
California Family Code § 721 (b).
The statute goes further to subscribe to marriages the same sort of fiduciary duties that exist between business partners. It indicates that, as with business partners, the confidential relationship between spouses is
(b)…a fiduciary relationship subject to the same rights and duties of nonmarital business partners, as provided in Sections 16403, 16404, and 16503 of the Corporations Code, including, but not limited to, the following:
(1)Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying.
(2)Rendering upon request, true and full information of all things affecting any transaction which concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions.
(3)Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse which concerns the community property.
Id.
Family Code § 2102
With this in mind, the California Family Code has specific disclosure rules. Per Family Code § 2102, parties are subject to the § 721 fiduciary standards. This goes from the time of separation until the distribution of the community assets. Section 2102 requires the following:
(1)The accurate and complete disclosure of all assets and liabilities in which the party has or may have an interest or obligation and all current earnings, accumulations, and expenses, including an immediate, full, and accurate update or augmentation to the extent there have been any material changes.
(2)The accurate and complete written disclosure of any investment opportunity, business opportunity, or other income-producing opportunity that presents itself after the date of separation, but that results from any investment, significant business activity outside the ordinary course of business, or other income-producing opportunity of either spouse from the date of marriage to the date of separation, inclusive. The written disclosure shall be made in sufficient time for the other spouse to make an informed decision as to whether he or she desires to participate in the investment opportunity, business, or other potential income-producing opportunity, and for the court to resolve any dispute regarding the right of the other spouse to participate in the opportunity. In the event of nondisclosure of an investment opportunity, the division of any gain resulting from that opportunity is governed by the standard provided in Section 2556.
(3)The operation or management of a business or an interest in a business in which the community may have an interest.
Family Code § 2102(a).
Duty to Update and Augment Disclosures
It is important to note that the code not only requires a complete disclosure, but it also requires “immediate, full, and accurate update or augmentation to that extent that there have been material changes.” Id [emphasis added]. This means that after you provide your first disclosure, you must update the other party when there are changes.
Preliminary and Final Declarations of Disclosure
Before the court will grant a judgment for divorce, the parties must exchange preliminary and final declarations of disclosure. Parties can waive the final declaration of disclosure by written stipulation of the parties. But, they can’t waive the preliminary disclosures. See Family Code §§ 2104 and 2105. The statute requires that the parties use specified forms for the disclosures. They are:
Complete this form and sign under penalty of perjury to indicate that you have made a complete and accurate disclosure. Don’t file this form. Rather, just serve it on the other party.
On form Fl-150 you provide all of your income and expense data. You show everything you earn and everything you spend. It’s kind of a “budgety” type form. This aids the court and the spouses in determining the best choices for child support and alimony. You only need to file the form FL-150 if support is at issue at a court hearing. Otherwise, just serve it with your Declaration of Disclosure form.
On form FL-142 you list all of your assets and debts. In essence, it shows everything you own and everything you owe. Be sure to list EVERYTHING. There can be consequences if you leave something off. So, when in doubt, disclose. You don’t file form FL-142 at court. Instead, just serve it on the other party with your Declaration of Disclosure.
Declaration Regarding Service of Declaration of Disclosure (Judicial Counsel Form FL-141)
This form indicates to the court that you completed your declaration of disclosure and served it on the other spouse. File this one at court.
Importantly, you only need to file the Declaration Regarding Service of Declaration of Disclosure form at court. Rather than filing, you simply serve the other documents on the other party. However, despite not filing them at court, it is essential to take these forms seriously and to be complete and truthful. The court can be very harsh with people who are inaccurate or incomplete in their disclosures. So, get this one right too.
Sanctions for Failure to Comply with Disclosure Requirements
Family Code § 2107(c) requires monetary sanctions and reasonable attorney fees if a party fails to comply with the spouse’s California Family Code § 721 fiduciary duty of disclosure during dissolution proceedings. Family Code §271(a) provides authority to order attorney fees and costs in the nature of a sanction if conduct “frustrates the policy of the law to promote settlement of litigation.”
In summary, the disclosure required by California Family Code § 721 is not a topic to mess around with. The court must impose Draconian penalties and sanctions on parties who do not comply with the disclosure statutes. Hence, the best advice is to err on the side of caution. Disclose everything and anything to the other side even if you think it is unimportant. Do it early and thoroughly. What’s more, Augment and update routinely. I have seen even the smallest technicality lead a court to set aside a judgment or order stiff sanctions. So, it is simply best to play it safe and disclose it all. Withholding information, whether it is inadvertent or an attempt to be sneaky or cute, can lead to devastating results. If you are not sure if you have disclosed everything necessary, then talk to an attorney and get it right.
For more information, read:
https://weberdisputeresolution.com/california-child-support/
https://weberdisputeresolution.com/early-intervention-mediation-settlement-conference-divorce-case/
https://weberdisputeresolution.com/pre-mediation-information-packet-2/
In California, the question that should be asked is not when the divorce is legally finalized, but when you were separated. California law defines your date of separation as that day on which it was clear to both parties that the marriage was irretrievable. That could be the date a spouse moved to a separate residence or the date a Petition for Dissolution of Marriage was filed at court. If the house was acquired after the date of separation, it will be considered separate property. (Beware: if you use community property funds to purchase the house or to make a down payment, you run the risk of giving your ex-spouse an interest in the property or – at the very least – a right to reimbursement.)