Monthly Archives: September 2012

New Law Changes the Disclosure of Financial Information in Divorce (Again)

Some time after divorce is filed and served on the other spouse, each party needs to send certain financial disclosures to the other spouse.  This process ensures fairness and helps prevent spouses from hiding assets during the divorce (although the process is far from perfect).  However, there is currently no real timeline on making these disclosures–which in turn forces attorneys to file demands for the production of documents and motions to compel this information.  There used to be a timeline for what is called the “preliminary declaration disclosure” (see FL-140) and now it seems a timeline is coming back.

Recently the California State Assembly thought this was something pressing they needed to address (yes, I am being facetious) and they passed AB 1406, which changes three separate Family Code Sections, including Section 2104.  Under the new law, which I assume will come into effect in January of 2013, there are two big changes.  First, the preliminary declaration of disclosure will need to include the two most recent tax returns.  Second, the preliminary declaration of disclosure must be completed within 60 days of filing and 60 days of response.

Personally, I find it flawed to make the deadline relative to the filing date and not the date of service.  There may be some instances when it is difficult to serve the other party and PDD deadlines will approach before or right after service.  In addition, many spouses do not have their tax returns, because the other spouse has control of them.  These spouses will need to file an IRS 4506 form to request a copy of their taxes–so that they can comply with the PDD requirements.

The new requirements will bring some clarity to what seemed to be an ambiguous part of the process.  It may also reduce the judicial resources spent on motion to compel discovery in family law cases.  However, I think just as many judicial resources will be spent on motions brought under Section 2107 requesting sanctions for the other party’s inadvertent failure to comply with the new deadline requirement.    The new section’s ultimate impact will probably be minimal.

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Changing Patterns Amongst Married People

Recent Numbers and Marriage

The recent economic downturn has increased the number of opposite sex couples who cohabitate, but refrain from marriage.  Marriage rates are at an all-time low while birth rates have remained relatively stable—so more children are being born out of wedlock.  Thirty years ago, regardless of the economy, these authors predicted that since more women are on the marriage market than men, there would be startling consequences including a reduction in marriage rates.  Some theorize that just like houses on the market, there is a “glut” of cohabitants waiting to marry when the economy turns around, but of the couples actually marrying—what patterns are emerging amongst married couples?

Geographic and Political Differences Between Married Couples

Are there very real difference between these married couples?  Understanding geographical and political differences may be helpful.  The following is an excerpt from a recent book published by Oxford University Press: Red Families v. Blue Families: Legal Polarization and the Creation of Culture by Naomi Cahn and June Carbone, taken from the publisher’s website:

“Blue Family Paradigm emphasizes the importance of women’s as well as men’s workforce participation, egalitarian gender roles, and the delay of family formation until both parents are emotionally and financially ready. By contrast, the Red Family Paradigm–associated with the Bible Belt, the mountain west, and rural America–rejects these new family norms, viewing the change in moral and sexual values as a crisis. In this world, the prospect of teen childbirth is the necessary deterrent to premarital sex, marriage is a sacred undertaking between a man and a woman, and divorce is society’s greatest moral challenge.”

This seems like a fair evaluation of the political and geographical gap and affirms that in States such as California, the formation of family seems to be delayed until parents are financially prepared, resulting in the delay of marriage during a recession such as the one we are currently experiencing.  Yet, birth rates remain stable.  So, the “formation of family” in this context seems to be equivalent to marriage—not parenthood.

Education Levels and Support

A 2005 study on trends in marriage, conducted through UCLA and republished by Stanford online shows that from 1960-2003, marital educational homogamy (sameness) increased.  Specifically, those with a college education were much more likely to find a spouse with a college degree.  This trend has increased over time and the odds of a person without a degree “marrying-up” and joining someone else with a degree have fallen to very low levels (Gold-Diggers be damned).  This same-ness in education level between spouses may have a collateral effect.  Since spousal support (alimony) attempts to maintain the marital lifestyle and stabilize economic disparities between spouses, if spouses have the same education level they should have more similar incomes and by extension—spousal support should be less common and of a lesser amount when it does occur.  Unfortunately I was unable to find any study in America on the incidence of spousal support.  (I did find this interesting article on spousal support incidence in Australia and they seem to abhor the concept of alimony).

Conclusion

So, where do we go from here?  Increasingly, people seem to be pursuing partners that are more similar to themselves.  We are marrying less, having just as many children, and the ratio of women to men looking to marry seems to be out-of-whack.  To make things more chaotic, divorce rates are slightly down nationwide according to the Census Burea, but divorce rates in California seem to be stable around 60%, or is it 75%, (but I honestly think no one knows an exact number).  It seems when the economy turns around, if it ever does, some of this chaos will fix itself.  More cohabitants will marry, marital discontent may be reduced, the rate of children born out of wedlock will be reduced, and political and geographic differences amongst married couples may also diminish.  So, money doesn’t fix everything, but it may help… and as journalist Bill Vaughan said, “Money won’t buy happiness, but it will pay the salaries of a large research staff to study the problem.”

 

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Divorce in California (The Basics)

What grounds are there for divorce?

There are two grounds for divorce in California: 1) irreconcilable differences and 2) incurable insanity.  California is a no-fault state—meaning that judges don’t care who cheated on who or why you are splitting up.  They just need to know that one of the spouses thinks the marriage is totally broken and can’t be fixed.

Are there any other requirements?

In order to get a divorce in California, at least one spouse must have lived in California for at least six months and been in one specific county in California for at least three months.

Are there ground rules?

Once one spouse files, there are automatic temporary restraining orders that prevent each spouse from doing certain things.  Neither are allowed to take any children out of state without permission from the other spouse, neither can cancel insurance policies already in place, neither can sell off community property, etc.

Do I need a Lawyer?

Maybe.  Married persons can represent themselves.  The divorce, custody, and support process is filled with forms and pitfalls.  People facing divorce are already stressed.  Many divorcing spouses also face a power imbalance in the relationship—and having a lawyer can help counter that power-imbalance.

Some divorcing persons choose to get a lawyer, some choose collaboration, some choose limited capacity attorney representation (where the lawyer acts like a consultant), some go it on their own.

Are there other options?

Legal separation can be an alternative to divorce, especially for couples that have religious, insurance or tax reasons to avoid divorce.  Legal separation can do many of the things that divorce does, while technically preserving the marriage.  Annulment is when a marriage is declared to have never existed in the first place.  Annulments are very difficult to get in California and are usually only granted in cases of fraud or deceipt.

Isn’t there a simpler process?

Yes, but you probably don’t qualify for it.  Summary dissolution is a simple divorce process, but there are a number of requirements:

  • You have been married for five years or less.
  • You have no children from the relationship.
  • Neither of you own a home or other real estate.
  • The value of all community property amounts to less than $25,000, excluding automobiles.
  • The value of either party’s separate property amounts to less than $25,000, excluding automobiles.
  • Your combined debt does not exceed $4,000, except for an auto loan.
  • Both of you waive spousal support.

 

How do I file?

You can obtain the proper forms on the state’s website (courts.ca.gov).  Your lawyer, mediator or you need to file a petition and summons.  After filing these papers with the county court clerk, you have someone else who is qualified serve these papers on your spouse.

What happens after I file?

It depends.  Some of the following might happen:

  • Discovery and Disclosures: there are a number of disclosures that have to be made (like the FL-150).  Sometimes spouses might initiate additional discovery because they don’t know where the other spouse put money, how much they make, or what debts they have.
  • Temporary Orders (Order to Show Cause Hearings): one spouse may ask for a hearing so in the meantime the judge can determine temporary child custody, visitation, support, attorney fees, or a restraining order.
  • Agreement: you and your spouse may settle the case and come to an agreement.
  • Trial:  if you and your spouse can’t come to an agreement there may be a trial and the judge will make the decision.
  • Default:  if your spouse doesn’t respond within 30 days, you may request a default and take steps towards getting a judgment.  Be aware that getting a procedural default isn’t the final word—and this can be overturned if the other spouse “wakes-up” and files something.

Who gets what?

California is a community property state, so any property acquired during the marriage belongs to each spouse equally—each spouse owns half.  Some property is separate property, such as property acquired before the marriage, any inheritance, and any gifts.  Divorcing couples split up community property by agreement or at trial.

What’s the difference between spousal support and alimony?

California calls alimony spousal support, there is no real difference.  Temporary spousal support is determined using a computer program, while permanent support is determined by a judge who looks at a number of factors.  Spousal support generally lasts half the length of the marriage, unless the marriage was longer than 10 years.  If the marriage was longer than 10 years, then support may last indefinitely—with a duty to become self-supporting as best as one can.

Who gets the kids?

Parents can come to an agreement, otherwise it will be determined by the court.  The custody issue will first go to a mediator, then if an agreement can still not be reached—it goes to the court along with the mediator’s recommendation.

 

The Law Office of Gary W. Norris, APC handles divorce, support, custody, adoption, and other family law matters in the Ventura County area.

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What Relationships Should the Law Recognize? (Reality T.V. meets legal reality)

As much as we collectively love to hate reality television, reality T.V. seems to identify hot issues and take our cultural pulse.  The Real World tackled race, sexual orientation, health issues, and September 11.  Hoarders on A&E attempts to tackle a mental illness that was not discussed in America, let alone pop culture.  The SBS network in Australia has a new reality show discussing both immigration and H.I.V.  Some may tune their televisions to Showtime and say, “What the heck is Polyamory?”

At first glance, I perceived the show Polyamory as manufactured and fake.  I can imagine a reality T.V. producer sipping cocktails and dreaming this stuff up (like a friend of mine brining this show to the U.S.).  Gawker reviewed the show and called it, “hilarious, shocking, poignant, titillating, and cringe-inducing…also important.”  It seems that the show Polyamory takes Conservative pundits’ arguments against gay marriage and runs with them.  Most liberals who support gay marriage claim that they just want gay marriage, and don’t want the law to recognize every weird type of relationship out there.  Then walks in Showtime stirring the pot.

But, it’s easy to disregard reality television, so we turn off Showtime and say to ourselves, “That will never happen.”  Then out of Brazil—Polyamory meets legality.  In August, a notary public (they have more power in Latin countries) granted the first civil union to a triad of lovers.  The notary called this relationship a Uniao Poliafetiva—or polyfidelitous union.   The relationship?  Two women and one man in their 30’s.

The participants on the Showtime show Polyamory attempt to distinguish themselves from polygamy—describing their relationships as more transient, flexible, adjustable, and not shrouded in misogynist principles.  Yet some of these same participants lament at only being able to marry one of their lovers.  The world’s first recognized polyamorous relationship—something claimed to be “progressive” in form sounds more like regression to polygamy than progress.  Yet, we have a horrid reality T.V. show about polygamy as well (Sister Wives).

Brazil may be at the “progressive forefront,” but there seems to be no consistent principles underlying these relationships.  I think through the lens of reality T.V., society is struggling with what relationships we are willing to accept and which ones we are willing to recognize.  The tendency of reality T.V. to take everything to extremes may itself have an effect on how we perceive these relationships.  If you believe in gay marriage because any two people that love one another should be able to marry—how do you logically argue against three people in a polyamorous relationship?  There are also practical problems.  In a three way civil union who gets property and support when it dissolves?  Do the first two to marry get more than the third one who joins?

It seems the slow-moving legal system in the U.S. is advantageous in that in doesn’t jump on any band-wagon too quickly.  Like a real-worlder popping an Alka-Seltzer after an all-night bender, I think Brazil might wake up, look back and feel a little silly about the Uniao Poliafetiva.

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Post-Judgment Discovery and Modifications (How to see how much $$ your Ex earns)

You may be receiving child support and you don’t think it’s enough.  You may be paying spousal support but think your ex is actually making more now than at the time of the divorce.  Before filing a motion to modify support, wouldn’t it be great to know how much money they are making—so you don’t waste your time or money?  But, they will never give you their paystubs or tax returns, right?

California Family Code § 3664 authorizes requests for current income and expense declarations—after the judgment!  It is suggested that these requests only be made once a year at most.  The form created to facilitate this request is judicial council form FL-396.  So, what happens if they ignore your request?  Guess, what—there’s another form for that (don’t you love family law).  If your Ex doesn’t cooperate, 35 days later you can file judicial council form FL-397 directly with their employer.  The problem?  There’s no real teeth to the FL-397, in that if the employer refuses to cooperate there is not much that you can do about it.

If your Ex refuses to comply with your FL-396 request and the employer fails to cooperate as well, you are setting yourself up for a great argument that the court should make your Ex pay your attorney fees—due to their lack of cooperation.  However, you will have to file a request to modify support.  Once the proceedings begin, if they again fail to submit complete income and expense disclosure documents, you can also ask for sanctions under California Family Code § 3667.

You may read this in horror.  Is there no privacy?  Any party paying or receiving support has a right to demand the other party’s tax information as long as that support order in place!

As Retired California Supreme Court Chief Justice Ronald M. George said, “Our court system increasingly has recognized that a judicial decree is far from the final word in a divorce; parental and fiscal responsibilities may last for many years.”  Far from the final word is right.

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