Archives for

Qualified Domestic Relations Order (QDRO) for California

Qualified Domestic Relations Order (QDRO) for California

The term Q.D.R.O stands for Qualified Domestic Relations Order.

It is a judgment or order that is made under California family law codes and:

Relates to the provision of support or property rights to an “alternate payee”;

Creates, acknowledges, or assigns to an alternate payee a right to  rceive benefits under the pension or retirement plan, and

Meets certain statutory requirements.

Congress enacted laws in 1984, making it easier for former spouses to receive a portion of the pension benefits awarded to them. A (QDRO) is a court order, separate from your divorce decree, instructing the Plan Administrator to distribute your share of the retirement benefits to you. If you have been awarded a portion of your former spouse’s pension or retirement benefits, it is very important that a QDRO be prepared, and as soon as possible, here’s why:

[mpinpage]Even if you are awarded one-half of your former spouse’s pension, and he/she dies without a QDRO on file, you will be entitled to nothing.

Your Marital Settlement Agreement awards you your community half of the pension or 401(k) Plan and the Participant cashes it out, the employer is obligated to give it to him/her if there is no QDRO.

If a QDRO was not received by the Plan Administrator before the Participant (your former spouse) actually retires, you lose options and may lose benefits!

Not every pension and 401K plan requires a QDRO. You may contact you or your spouse’s human resource department or retirement plan administrator to determine if you need one. If so, the draft Q.D.R.O. must first be approved by the actual plan before it can be submitted to the Court for approval. This process may proceed quickly or may be delayed for several months depending on the company. After the company approves the QDRO., you and your spouse will need to sign it and it will then be submitted to the Court for the Judge’s signature. The order is then sent to the retirement plan administrator for implementation.

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California family law matters, including the preparation of QDRO’s.[/mpinpage]

Discovery in California Dissolution (Divorce) Litigation

Discovery in California Dissolution (Divorce) Litigation

Parties in California dissolution (divorce) proceedings can utilize the same discovery procedures as are used in California civil litigation as the same rules and procedures are applicable unless another statute or rule has been adopted by the California Judicial Council.  (Ca Fam § 210.).

The importance of discovery in divorce and other family law litigation cannot be emphasized enough.  Utilizing discovery correctly can mean the difference between winning and losing for many divorce cases.  Yet many law firms and solo attorneys are so overworked and understaffed that they do not have the time to propound enough discovery on their divorce cases.  The result is that many cases which could have been won at trial, or a reasonable settlement reached before trial, instead are lost.  The following discovery procedures have been found to be very cost effective in divorce cases.

Form Interrogatories for divorce cases are available using Form FL-145. This form is extremely useful as the questions are specifically tailored to the issues involved in a typical case.  For instance a party may ask the other party to provide the last three (3) years tax returns, and also to complete a Schedule of Assets and Debts Form FL-142 if that form is attached to the Form Interrogatories.

Special Interrogatories are also very useful as a party can request the other party to state all facts, identify all persons having knowledge of the facts, and all documents in support of the facts which, support the other party’s request for attorney’s fees, sole custody, spousal support and other requests or contentions made in that party’s Petition or Response.

Additionally, Requests for Production and Inspection of Documents and other Tangible Things can be useful in obtaining bank and financial records and other documents that are pertinent to the divorce proceeding.  And a party can demand that the other party allow them to inspect and to photograph, test, or sample any tangible things that are in the possession, custody, or control of the party on whom the demand is made as well as demand that any other party produce and permit the party making the demand, or someone acting on that party’s behalf, to inspect, copy, test, or sample electronically stored information in the possession, custody, or control of the party on whom demand is made.  (Ca Civ Pro. § 2031.010).

Thus a party who believes that the other party is hiding assets may demand to inspect their computer, or other electronically stored information.  This could be extremely valuable as computer records may show certain websites that were visited such as bank websites for hidden accounts, or e-mails to banks or other parties which have information on where hidden assets are located.  And many people keep a spreadsheet or other list of their assets on their computer thinking that their spouse will never find it.

And last but not least, Requests for Admission can be used to request the other party admit or deny certain pertinent facts, and/or admit that certain attached documents are genuine.

The California courts have ruled that the scope of discovery in California litigation is very broad.  Any doubts are applied liberally in favor of discovery.

For discovery purposes, information is relevant if it might reasonably assist a party in evaluating case, preparing for trial, or facilitating settlement. Gonzalez v. Superior Court (City of San Fernando (1995) 33 Cal.App.4th 1539, 1546.

Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. Davies v. Superior Court (1984) 36 Cal.3d 291, 301.

These rules are applied liberally in favor of discovery.  Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790, and (contrary to popular belief), fishing expeditions are permissible in some cases. Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 385,  (“although fishing may be improper or abused in some cases, that “is not of itself an indictment of the fishing expedition per se”).

Clearly then,  propounding discovery is a vital tool in (1) evaluating the strengths and weaknesses of each party’s case; (2) preparing for trial, and (3) facilitating settlement.

Form and special interrogatories, request for admissions, and requests for production and inspection of documents and other tangible things all need to be utilized so that the facts, witnesses and documents that support the opposing party’s claims or defenses can be ascertained, deposed and reviewed, and getting certain admissions or denials of issues relevant to the divorce on record before the trial.

Uncontested Divorce (Dissolution) in California

Uncontested Divorce (Dissolution) in California

This blog post gives an overview of the uncontested California dissolution (“divorce”) filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and there are other methods  of obtaining an uncontested divorce in California.

In California the term “irreconcilable differences” describes No-Fault divorce.  It means that “irreconcilable differences have caused an irremediable breakdown of the marriage.”

In California, as in other states, divorces may be either contested or uncontested, but uncontested, No-Fault divorces move through the courts more quickly and less expensively.

California is a community property state. This means that assets and liabilities are either community property (half is one spouse’s, half the other’s, such as the marital home acquired during the marriage), or separate property (one spouse’s alone, such as gifts and inheritances).

In California, the party who files is called the Petitioner; the party who answers is called the Respondent. The divorce is filed in the Superior Court, normally the county of residence of the couple. One spouse or the other must have lived in California for at least six months and in the county where the divorce is being filed for at least three months. Moreover, there is a six-month waiting period after the service of process or an Answer by the Respondent before the divorce becomes final.

Most of the forms used in divorce in California are those adopted by the California Judicial Council, and their use is mandatory. County courts also have forms that may be used in compliance with local rules governing divorce.

California permits what is called a Summary Dissolution of Marriage. Also called a simplified or special dissolution of marriage, a summary action is an inexpensive and easy way to divorce for those couples who qualify, but both the husband and wife must be certain they want to go this route because either can change his or her mind during the six-month waiting period between the filing and the finalization of the action. To qualify for this divorce routine, a couple must meet certain requirements, see this blog post http://wp.me/ps4Uj-W for more information on a Summary Dissolution.

The procedural requirements for an uncontested divorce come from California statutes, the California rules of Court, and the local rules of court. Depending on the situation, the couple will file a variety of court papers. These include a property settlement agreement dividing community property (the martial estate) and establishing the terms and conditions of child care and spousal support.

However, the basic steps for an uncontested divorce are as follows:

1.  File a petition asking the court to grant a divorce.

2.  Notification of the other spouse that a divorce has been filed. This entails serving the other spouse with a copy of the Summons- Family Law,  Petition, a blank Response form, and may include other forms especially if there are minor children involved.

3.  Exchange Preliminary Declarations of Disclosure, or if the other spouse does not cooperate the Petition needs to serve a Preliminary Declaration of Disclosure including a Schedule of Assets and Debts and an Income and Expense Declaration. The Final Declaration of Disclosure can be waived by both parties, however the Preliminary cannot be waived.

4.  If both parties agree a Marital Settlement Agreement is then prepared which outlines the agreement of the parties regarding child custody/visitation/support if applicable, spousal support if applicable, and division of property and debts. If the other spouse does not cooperate and does not respond to the Petition, then a Request to Enter Default must be filed along with a Request for a Default Hearing.

5.  Submit the Marital Settlement Agreement and other final paperwork to the Court for processing. If both parties agree then no Court appearance will be required. If a default hearing is involved then a Property Declaration and an Income and Expense Declaration must be submitted to the Court before the Default Hearing. At the hearing a proposed Judgment must be submitted to the Clerk before the Judge hears the case. If the Judge agrees with the proposed Judgment they will sign it which will finalize the divorce.

In all cases, the divorce begins with the Petition, the Summons-Family Law, Response and any local forms that may be required by the county court. The Petition, the Summons-Family Law, Response and any local forms that may be required are normally served by a process server and may not be hand-delivered to the other spouse by the Petitioner because he or she is a party to the action. This is called Service of Process. Other forms may normally be mailed to the other party by first class mail.

Divorcing a missing spouse — one who cannot or will not be located -requires a good faith effort at locating him or her, followed by ex parte (without notice) application to the court for Service by Publication. In this regime, the Petitioner must first make a good faith (or “diligent”) search for his or her missing spouse. This search normally includes checking telephone directories in the area where both the petitioner and respondent live or lived, asking friends and relatives, checking tax records, contacting the department of motor vehicles, voter registration, etc. After a diligent but fruitless search has been made, the court approves an application to the court of Service by Publication.

This requires the completion of a form, Ex Parte Application for Publication of Summons; Declaration in Support Thereof; Memorandum of Points and Authorities as well as Order for Publication of Summons. After these have been approved, the summons can be published in a newspaper. The summons must be published once a week for four successive weeks, with a least five days between successive publications.

The Petition, which must be completed in all cases, identifies the Petitioner and Respondent, the date of the marriage, the date of separation, the minor children (if any), makes a declaration of the community and quasi-community assets and debts and states the relief sought. Depending on the situation — that is, whether or not the couple are in agreement — other forms (see below) may be accompanied with the Petition. For example, if there are minor children of the marriage, the petitioner must file the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and attach it to the petition.

The Summons-Family Law is the Notice to the Respondent that a divorce has been filed by the Petitioner.  It gives him or her 30 days to respond and carries with it a warning that failure to respond may result in a default judgment against him or her.  The Summons also restrains both parties from removing minor children from the state and dissipating marital assets without the written consent of the other party, or a Court order.

After one spouse files, uncontested divorces evolve in one of two ways.

The first is when the spouses agree on every issue: asset and liability division, the terms and conditions of child custody, support and visitation, alimony. A divorce can be said to be uncontested when the spouses do the fighting before going to court, come to an agreement, and the judge then approves it if it is fair and reasonable.

The second way happens when the Respondent does not respond to the petition for divorce. In addition, sometimes the responding spouse cannot be located. Sometimes divorcing spouses agree that the responding spouse will default. This is not collusion, and divorce proceeds through the court with his or her agreement.

When a couple agree on all issues, or when either defaults, the court may issue Judgment either by Declaration without an appearance in Court, or a Default Judgment after a Court hearing.  As stated previously, if both parties agree then a Court appearance will not be required. After a summary action, an uncontested action coursing along this default route is probably the easiest route to a divorce.

The trajectory of a contested divorce is difficult to predict because it is litigation, and it is adversarial. A contested divorce begins with the same filing procedure, then often one of the parties will request an Order to Show Cause Hearing, after which the judge will rule on temporary support, child custody and restraining orders.

The parties then may engage in Discovery, which becomes far more invasive and complicated than the voluntary disclosures made in an uncontested action. In both uncontested and contested actions, the Preliminary Declaration of Disclosure is used as well as the disclosure of current expenses and incomes.

After Discovery, the parties and the lawyers attempt to settle the case through negotiations. If they reach an accord, one of the lawyers prepares a MSA based on California’s community property divorce law. This is a contract signed by the parties and their lawyers. But if this fails, the parties go to trial.

Clearly if both parties can agree on all, or most of the issues, they can save a lot of time and money by proceeding with an Uncontested Divorce.

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California Divorce Litigation.

Bifurcation of Marital Status in California

Bifurcation of Marital Status in California

This blog post gives an overview of the Bifurcation process as it applies to California dissolution (“Divorce”) proceedings.

It can take many months, even several years, for a contested divorce to wind its way through the courts. Faced with this fact, many spouses want to terminate the marriage quickly, even if the other issues in the case have not been settled. There might also be situations in which it makes sense to have a separate trial of a particular issue.

In both of those situations, the court will order that the trial is to be “bifurcated.” This means either that the marital status is terminated and the parties are restored to their single status or a separate trial is to be held concerning a specific issue.

 

Bifurcation to Terminate the Marital Status

 

 

Bifurcations are generally requested because one or both of the spouses want to remarry. They are also sought because one or both of them want to file their tax returns for the current year as a “single” taxpayer.

The tax laws state that a person can file as a “single” person as long as his or her marital status was terminated before the end of the year. Thus, even if the marital status is ended on December 31st, the taxpayer can file as a “single” person for the entire year.

This can be significant, particularly for the person who is paying spousal or “family” support.

Payments of spousal and family support are 100% deductible for the person who is ordered to make those payments. Conversely, spousal and family support payments must be reported as income by the person receiving them. Income tax laws provide that these support payments are not deductible if the spouses file a joint tax return.

 

Bifurcation of Trial Issues

 

 

The court can also bifurcate the trial of certain issues. For example, where there is a family business that was owned before the marriage, the spouses might disagree as to whether it is community property or the separate property and what it is worth. If the business is ultimately found to be the separate property of the spouse who started it, the value of the business would be irrelevant. In such a case, the judge might order that there will be a bifurcated trial to first determine if the business is community property or separate property. If the result of that trial is a finding that the business is community property, then there would be a trial on the value to be placed on it.

The law provides that the marital status can be terminated not less than six months from when the Respondent was served with the Petition for Divorce. So, only cases in which the Respondent was served before July 1st can be bifurcated during that year.

 

Procedure to Obtain Bifurcation

 

 

Most courts require the filing of a motion for bifurcation, although some courts allow it to be done simply by filing a written stipulation. If a motion is required, the appropriate court papers must be prepared, which must then be filed with copies mailed to the spouse or his/her attorney. Approximately 3-6 weeks after the motion is filed, the requesting spouse and his/her attorney if they have one have to appear before the judge, who will almost always grant the request.

California law favors bifurcation in the absence of particularized, compelling reasons to the contrary. Under this approach, bifurcation will be granted for almost any reason, such as possible tax advantages, fewer constraints in social and financial matters, or the fact that the property issues will require more discovery and a more lengthy trial.

For example, in Gionis v. Superior Court (1988) 202 Cal. App. 3d 786, 788-790, the California Court of Appeal held that a request for bifurcation does not have to be justified by a compelling showing of need, and that on the contrary a spouse opposing bifurcation must present compelling reasons for denial. Reviewing California case law, the court found that bifurcation was a favored procedure because it implemented the policy underlying no-fault divorce. The court noted that the state’s high court had endorsed the concept of bifurcation in these terms:

“Severance of a personal relationship which the law has found to be unworkable and, as a result, injurious to the public welfare is not dependent upon final settlement of property disputes. Society will be little concerned if the parties engage in property litigation of however long duration; it will be much concerned if two people are forced to remain legally bound to one another when this status can do nothing but engender additional bitterness and unhappiness.” Hull v. Superior Court (1960) 54 Cal. 2d 139, 147.

While the granting of a request for bifurcation of the marital status is virtually automatic, there are some prerequisites and conditions that must be followed by the requesting party. Initially, the party requesting  bifurcation must serve his or her preliminary declaration of disclosure on the other spouse before the request for bifurcation is filed.

The judge will usually impose certain “conditions” on the granting of a bifurcation. These include:

(1) The obligation to reimburse opposing party for any tax consequences or loss of right to claim probate homestead or family allowance; (2) The employee-spouse must maintain existing medical insurance for the other spouse; (3) The employee-spouse must indemnify the other spouse for loss of pension death benefits. In addition, the law requires that, before a bifurcation is granted, the pension plans of the spouses must be joined in the divorce case.

The condition that existing medial insurance be maintained is particularly significant. Under that condition, the spouse requesting bifurcation must maintain existing medical insurance for the other spouse. If such coverage is no longer available, the requesting spouse must purchase medical insurance for the spouse that provides coverage that is comparable to the existing coverage. If such insurance is not available, the requesting spouse must pay for all medical bills incurred by the other spouse that would have been paid by the existing medical coverage.

As discussed above, a person can file as a “single” taxpayer for the entire year, as long as the marital status was terminated sometime in that year, even as late as December 31st. This is why there is usually a flood of bifurcation motions filed at the end of the year. To be assured that the clerk places a bifurcation motion on the court’s calendar before the end of the year, the motion should be filed not later than November 15th.

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California Divorce Litigation.

Request for Income and Expense information in California family law proceedings

Request for Income and Expense information in California family law proceedings

The California Family Code provides a very useful method to obtain income and expense information from another party before commencing a modification or termination proceeding for child, family or spousal support. The relevant statutes are contained in Chapter 6, Article 3 of the California Family Code, sections 3660 through 3668.

These statutes allow a party to serve a request for an income and expense declaration on the other party before they file an Order to Show Cause or Notice of Motion to modify or terminate child, family or spousal support.

The California Legislature states that the purpose of these statutes is to permit inexpensive discovery of facts before the commencement of a proceeding for modification or termination of an order for child, family, or spousal support. See (Ca Fam § 3660).

These status provide the only method of discovery before filing any Order to Show Cause or Notice of Motion to modify or terminate child, family or spousal support. Other methods of discovery may only be used if a motion is pending. See (Ca Fam § 3662).

In the absence of a pending motion for modification or termination of a support order, a request for discovery pursuant to this article may be undertaken not more frequently than once every 12 months. See (Ca Fam § 3663).

The procedure and relevant rules for using this method to obtain income and expense information from another party before commencing a modification or termination proceeding for child, family or spousal support are as follows:

At any time following a judgment of dissolution of marriage or legal separation of the parties, or a determination of paternity, that provides for payment of support, either the party ordered to pay support or the party to whom support was ordered to be paid or that party’s assignee, without leave of court, may serve a request on the other party for the production of a completed current income and expense declaration in the form adopted by the Judicial Council. See (Ca Fam § 3664(a)).

If there is no response within 35 days of service of the request or if the responsive income and expense declaration is incomplete as to any wage information, including the attachment of pay stubs and income tax returns, the requesting party may serve a request on the employer of the other party for information limited to the income and benefits provided to the party in the form adopted by the Judicial Council.  The employer may require the requesting party to pay the reasonable costs of copying this information for the requesting party.  The date specified in the request served on the employer for the production of income and benefit information shall not be less than 15 days from the date this request is issued. See (Ca Fam § 3664(b)).

The requesting party shall serve or cause to be served on the employee described in this section or on his or her attorney a copy of the request served on the employer prior to the date specified in the request served on the employer for the production of income and benefit information. This copy shall be accompanied by a notice that, in a typeface that is intended to call attention to its terms, indicates all of the following: (1) That information limited to the income and benefits provided to the employee by his or her employer is being sought from the employer named in the request for production. (2) That the information may be protected by right of privacy. (3) That, if the employee objects to the production of this information by the employer to the requesting party, the employee shall notify the court, in writing, of this objection prior to the date specified in the request served on the employer for the production of income and benefit information. (4) That, if the requesting party does not agree, in writing, to cancel or narrow the scope of the request for the production of this information by the employer, the employee should consult an attorney regarding the employee’s right to privacy and how to protect this right. See (Ca Fam § 3664(c)).

The employee described in this section may, prior to the date specified in the request served on the employer for the production of income and benefit information, bring a motion pursuant to Section 1987.1 of the Code of Civil Procedure to quash or modify this request in the same manner as a subpoena duces tecum.  Notice of this motion shall be given to the employer prior to the date specified in the request served on the employer for the production of income and benefit information.  No employer shall be required to produce information limited to the income and benefits of the employee, except upon order of the court or upon agreement of the parties, employers, and employee affected. See (Ca Fam § 3664(d)).

Service of a request for production of an income and expense declaration or for income and benefit information pursuant to this section or a copy thereof shall be by certified mail, postage prepaid, return receipt requested, to the last known address of the party to be served, or by personal service.  See (Ca Fam § 3664(f)).

Note that the code does not require service of the request on the attorney for the other party although it is probably a good idea to mail a courtesy copy to them assuming that they are still the attorney of record.

Family Code Section 3665 states that, “

(a) A copy of the prior year’s federal and state personal income tax returns shall be attached to the income and expense declaration of each party.

(b) A party shall not disclose the contents or provide copies of the other party’s tax returns to anyone except the court, the party’s attorney, the party’s accountant, or other financial consultant assisting with matters relating to the proceeding, or any other person permitted by the court.

(c) The tax returns shall be controlled by the court as provided in Section 3552. 3666. This article may be enforced in the manner specified in Sections 1991, 1991.1, 1991.2, 1992, and 1993 of the Code of Civil Procedure and in the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure), and any other statutes applicable to the enforcement of procedures for discovery. 3667. Upon the subsequent filing of a motion for modification or termination of the support order by the requesting party, if the court finds that the income and expense declaration submitted by the responding party pursuant to this article was incomplete, inaccurate, or missing the prior year’s federal and state personal income tax returns, or that the declaration was not submitted in good faith, the court may order sanctions against the responding party in the form of payment of all costs of the motion, including the filing fee and the costs of the depositions and subpoenas necessary to be utilized in order to obtain complete and accurate information. This section is applicable regardless of whether a party has utilized subdivision (b) of Section 3664.”

As stated in this blog post the method described above is an extremely useful tool to obtain income and expense information from another party before commencing a modification or termination proceeding for child, family or spousal support. In fact it is the only method that can be used before commencing any modification or termination proceeding. It truly does provide an inexpensive method of obtaining the facts necessary to determine whether or not to commence a modification or termination proceeding.

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California Divorce Litigation including child support modification and termination proceedings.

Attorney fees awards in California Family Law proceedings

Attorney fees awards in California Family Law proceedings

Many parties involved in dissolution (divorce) litigation in California are not aware that the Courts have the power to order that the other party to the proceeding pay a reasonable amount to allow a party who is representing themselves, known in California as “In Pro Per” to retain an attorney in a timely manner before proceedings in the matter go forward. The relevant statutes are contained in Chapter 3.5 of the California Family Code, sections 2030 through 2034. These statutes can be very useful for a party who does not presently have the funds to retain an attorney and has a pending trial or hearing.

In other words if a prospective client who is currently representing themselves without an attorney wishes to retain an attorney they can ask the Court to order the other party to pay so that they can retain an attorney before any trial or hearing. See California Family Code § 2030(b).

And the Court has the authority to make an attorney fees award without notice by an oral motion at the time of a hearing on the cause of the merits. See California Family Code § 2031(b)(1), and at any time before entry of judgment against a party whose default has been entered pursuant to Section 585 or 586 of the Code of Civil Procedure. The court shall rule on any motion made pursuant to this subdivision within 15 days and prior to the entry of any judgment. See California Family Code § 2031(b)(2).

The court has power to impose additional fees than those requested if it determines that the adverse party failed to cooperate in family law proceedings. In re Marriage of Quay 18 Cal. App.4th 961, 970 (1993).

The family law judge has discretion to create a “judicial lien” on community or separate property in order to secure payment of section 2030 fees. See California Family Code § 2032[c].

The use of this procedure allows a party who is currently representing themselves without an attorney to “level the playing field”.  And the procedure allows them to make such a request by an oral motion at the time of any trial or hearing.  This is very advantageous to many family law litigants as many of them wish to retain an attorney but cannot afford to pay the thousands of dollars most attorneys charge as an upfront retainer.

In fact the California Supreme Court has stated that it is the public policy in California that both spouses have the ability to obtain effective legal representation.

California’s public policy in favor of expeditious and final resolution of marital dissolution actions is best accomplished by providing at the outset of litigation, consistent with the financial circumstances of the parties, a parity between spouses in their ability to obtain effective legal representation. Droeger v. Friedman, Sloan & Ross 54 Cal.3d 26, 41, fn. 12 (1991).

Joinder of pension and retirement plans in California

Joinder of pension and retirement plans in California

Joinder is the legal process by which a pension or retirement plan is “joined” as a party to a dissolution (divorce) or legal separation proceeding in California.  Not all pension or retirement plans need to be joined.  The following pension and retirement plans must be joined as a party.

1.   Governmental plan of a city, county, state, public school or university or other public agency.

2.   Plan (qualified or non-qualified) covering only business owners and spouses or employees of a church.

Federal government pension and retirement plans do not have to be joined as a party.  However, they do require a Qualified Domestic Relations Order (Q.D.R.O) be issued by the Court specifying the non-employee spouses interest in the plan.  Also many plans covering employees who work for private industry also do not have to be joined as a party, neither do Individual Retirement Accounts (IRA’s) or Roth IRA’s.  These may be divided simply by Judgment or Order of the Court. Judicial Council form FL-318-INFO lists numerous different pension and retirement plans and indicates whether or not they require Joinder.

In California the process of Joinder is completed by the filing of several forms with the Court Clerk.  The forms include detailed information about the employee, list the full name of the pension or retirement plan, and include the dates or marriage and separation as well as other pertinent information.

Upon the filing of the forms, the Court Clerk issues an Order of Joinder.  The Order and the other forms are then served on the pension or retirement plan, which then has thirty (30) days from the date it is served to file a response.  A blank response must be served along with the other Joinder paperwork.

The fact that the Court Clerk is authorized to issue an Order of Joinder greatly simplifies things as this means that the Joinder Order can be obtained without appearing before a Judge.  Thus the Order of Joinder can be obtained very quickly if needed.

The Family Code now requires that a pension or retirement plan must be joined as a party to the divorce proceeding prior to the entry of judgment granting dissolution of the status of the marriage unless joinder is precluded or made unnecessary by Title 1 of the federal Employee Retirement Income Security Act of 1974 (29 U.S.C. Sec. 1001 et seq.), as amended (ERISA), or any other applicable law.  See (Ca Fam § 2337(10)(d)(1).

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California Divorce Litigation including Joinder of pension and retirement plans as well as preparation of QDRO’s.

Marital Settlement Agreements in California

Marital Settlement Agreements in California

This blog post will discuss the use of a marital settlement agreement (MSA) in California. MSA’s are widely used in uncontested divorces in California in order that the divorce can be entered without either party actually having to appear in Court.

An MSA in California is used by spouses in a dissolution (divorce) action in an attempt to resolve their contested disputes and claims. A comprehensive marital settlement agreement usually provides for all of the following:

Characterization of property interests and characterization and division of the community estate (assets and debts);

Adjustment of reimbursement claims and income tax issues;

Payment of child support, spousal support and attorney fees and costs;

Child custody and visitation; and

Certain waivers and indemnification agreements between the spouses.

Exchange of statutorily-required “preliminary” and “final” “declarations of disclosure”

(Ca Fam § 2100 et seq.) is an essential step toward the consummation of an effective MSA and entry of judgment thereon.

An exchange of prescribed “preliminary” disclosure declarations is mandatory and nonwaivable. (Ca Fam § 2104).

And, unless excused by the court for good cause, “final” declarations of disclosure must be exchanged before or at the time the parties enter into an agreement resolving property or support issues (Ca Fam § 2105(a). If the mandatory declarations of disclosure are not exchanged the MSA is invalid and will not be accepted by the Court. This cannot be stressed enough.

While, subject to statutory conditions, the parties may stipulate to a waiver of the final declarations of disclosure, the waiver does not limit their underlying fiduciary disclosure obligations–i.e., it simply amounts to a representation that those disclosures have been made (see Ca Fam § 105(d).)

Since the facts and circumstances of each case vary, where the issues involved include, custody, visitation, support, property division, debt division, or other similar issues,  a marital settlement agreement should be carefully drafted to meet the needs of the particular parties involved.

The typical contents of an MSA include:

Identity of parties and recital of facts (including statistical facts of the marriage).

Identity of property, distribution of community estate, and confirmation of separate property.

Provision for payment of debts and adjustment of reimbursement claims.

Custody of children and visitation rights.

Child support, including provision for medical, dental, and special educational or other needs (if any); and, if applicable, including agreementas to the support of adult children.

Spousal support (including, as applicable, provisions for life insurance, survivor annuities, and the like); or waiver of spousal support.

Attorneys’ and experts’ fees and costs.

Tax provisions.

Effect of reconciliation.

Judicial action contemplated.

Warranties.

After-discovered property.

Waiver of rights, including rights in deceased spouse’s estate.

Modification, revocation or termination.

Costs of enforcement.

Execution of related documents.

Effective date.

Choice of law.

“Severability” clause.

Execution by parties.

Marital settlement agreements are consider to “occupy a favored position” in California law. Generally, therefore, an MSA that is “not tainted by fraud or compulsion or is not in violation of the confidential relationship of the parties is valid and binding on the court.” However there are some limitations which must be kept in mind when drafting an MSA.

Child Support:

 

Marital settlement agreements cannot abridge the parents’ mutual statutory child support obligation or impinge on the court’s jurisdiction to award child support. This means that an MSA cannot contain a provision in which one party “waives” child support. The issue of child support can be “reserved” which means that the Court retains jurisdiction to order child support in the future, but it can never be waived.

Child Custody:

 

Marital settlement agreements cannot limit a court’s exercise of custody jurisdiction over the minor children of the marriage.

Religious Upbringing:

 

To the extent a marital settlement agreement purports to prescribe the religious upbringing of the parties’ minor children, it is probably unenforceable. Marriage of Weiss (1996) 42 Cal.App.4th 106, 114-115, 118.

Spousal Support Waivers:

 

There is no prohibition against a waiver of post-dissolution spousal support. If the spouses separate by agreement, neither owes the other a duty of support unless they otherwise agree (Ca Fam § 4302); and any right to support after dissolution exists, if at all, only under the terms of the judgment. Thus, a voluntary, knowing and intelligent waiver of support in a marital settlement agreement will be enforced according to its terms. Note that a waiver of spousal support for a “long-term” marriage of ten years or more must be clear and unequivocal.

Fiduciary Obligations Of The Parties Must Be Respected:

 

The “confidential relationship” between spouses carries attendant fiduciary obligations in intraspousal transactions and in the management and control of the community estate (Ca Fam § 721(b), 1100(e).  All “confidential relationship”/fiduciary duties (including broad disclosure obligations) continue postseparation until the community estate is distributed and support and professional fee issues are resolved.  Ca Fam § 2102, 1100(e).

Compliance With General Contract Law:

 

Subject to limited statutory exceptions, marital settlement agreements (like all spousal contracts) must comply with general principles of contract law. The contract law defenses include (among other things) mistake, failure of consideration, unlawfulness of the contract and prejudice to the public interest (Ca Civil § 1689).  Other general contract concepts which may be relevant in drafting or enforcing a marital settlement agreement are:

Voluntary And Knowing Consent:

Each party’s consent must be voluntary and knowledgeable, given free of fraud, undue influence, duress, menace, or mistake. (Ca Civil § 1566-1579).

Filing a motion for change of venue under Code of Civil Procedure Section 397.5

Filing a motion for change of venue under Code of Civil Procedure Section 397.5

This blog post will briefly discuss filing a motion for change of venue in a dissolution (divorce) case under California Code of Civil Procedure Section 397.5 in California. This procedure can also be used in a legal separation or nullity proceeding. Note that this code section does not apply unless both parties have moved from the county where the original judgment or order was made.

In many situations after a divorce case has been filed, both parties will have moved from the county where the judgment or other order was entered. And many times it will be convenient for the parties if the case is transferred to the county of residence of either of the parties. It is in these types of cases that the motion makes sense.

Code of Civil Procedure § 397.5 states that, “In any proceeding for dissolution or nullity of marriage or legal separation of the parties under the Family Code, where it appears that both petitioner and respondent have moved from the county rendering the order, the court may, when the ends of justice and the convenience of the parties would be promoted by the change, order that the proceedings be transferred to the county of residence of either party.”

An Order to Show Cause or motion should be filed in the county where the original judgment or order was made along with a declaration from the party who wants to change venue stating that both parties have moved and that the ends of justice and the convenience of the parties would be promoted by the change of venue.

The author of this article, Stan Burman, is a freelance paralegal  with over 15 years of experience in California divorce and family law matters.

Vacating a property settlement agreement (MSA) in California

Vacating a property settlement agreement (MSA) in California

This blog post will briefly discuss some of the issues involved in vacating a property settlement agreement also known as a marital settlement agreement, in California. In particular, vacating a property settlement agreement based on one party having an undue influence on the other party because of undue influence such as taking advantage of another due to distress or weakness of mind.

The author worked on a case some years ago in which the wife had signed a property settlement agreement in which she agreed to accept the sum of $6,000.00 as full and complete reimbursement for her share of the community property. At the time that the wife signed the agreement she was not represented by counsel, and she did not consult with any attorney prior to signing the agreement.

Further, at the time that the wife signed the agreement, her rent was already late and she was going to be served with a 3-Day notice to pay rent or quit by her landlord. She did not have any money to pay her rent as she was not working at the time she signed the agreement.

The husband had a large amount of property, much more than the wife, and the wife may have had a community property share. And the agreement was signed before any petition for dissolution of marriage (divorce) had even been filed.

A brief discussion along with some of the statutes and cases that were used in the memorandum of points and authorities are set forth below.

The confidential relationship between spouses imposes a duty of the highest good faith and fair dealing on each spouse, and neither may take any unfair advantage of the other. See California Family Code § 721(b).

Thus the least overreaching or misrepresentation allowing one spouse to gain the property of the other is fraudulent, and will justify an action to avoid the agreement. Haseltine v. Haseltine (1962) 203 Cal. App. 2d 48, 56.

In this case, the wife signed the agreement to not go after anything of her husband’s if he gave her $6,000.00. She only signed the agreement because her rent was 3 days late and she had no money and no job and would be evicted otherwise. Clearly this was a case of not only one spouse taking unfair advantage of the other spouse, but overreaching of the highest degree as someone who is flat broke and about to be evicted is obviously under extreme stress, and therefore highly vulnerable.

And another issue is that the agreement was signed before the petition for dissolution of marriage (divorce) had even been filed. Thus no preliminary or final declarations of disclosure were completed and exchanged.

An exchange of prescribed “preliminary” disclosure declarations is mandatory and nonwaivable California Family Code § 2104; Marriage of McLaughlin (2000) 82 Cal.App. 4th 327, 335–336.

In dissolution proceedings commenced after 1992, no agreement is enforceable with respect to the parties property rights unless both spouses have executed and served on the opposition the final declaration of disclosure required by Family Code § 2105 unless both parties have signed a voluntary waiver of those requirements. California Family Code § 2106.

That fact alone requires the Court to vacate the agreement. And now we come to the issues of duress, undue influence and gross inadequacy of the consideration received.

Marital settlement agreements, insofar as they are not merged into the judgment, are voidable under general contract principles where a party lacked contractual capacity, or consented due to fraud, duress, undue influence or mistake. In re Marriage of Gonzalez (1976) 57 Cal. App. 3d 736, 743-744.

A marital settlement agreements that is not part of the judgment may be set aside if the court finds it to be inequitable, even in the absence of fraud or compulsion. Also, the courts will carefully scrutinize agreements made by a party without the advice of legal counsel. In re Marriage of Moore (1980) 113 Cal. App.3d 22, 27.

Courts are likely to carefully scrutinize marital settlement agreements affecting substantial rights and obligations when one party acted in pro per. Adams v. Adams (1947) 29 Cal. 2d 621, 628.

An agreement lacks valid consent where one party takes unfair advantage of the other party’s weakness of mind or distress. The exertion of the “undue influence” deprives the other party of the ability to exercise “free will”. California Civil Code § 1575, In re Marriage of Saslow (1985) 40 Cal. App. 3d 848, 864.

By statute, spouses stand in a confidential relationship in transactions between themselves and in that context, are subject to the general rules governing fiduciary relationships. California Family Code §§ 721(b), 1100(e).

Undue influence can be shown by the physical or mental weakness of the party claiming undue influence due to economic distress. In re Marriage of Dawley (1976) 17 Cal.3d 342, 355..

And undue influence can also be shown by gross inadequacy of the consideration received by the party claiming undue influence. In re Marriage of Baltins (1989) 212 Cal. App. 3d 66, 85.

Note that once a marital settlement agreement has been merged into a judgment that it will not be voidable under general contract principles.

It may be possible to vacate the judgment if one party did not fully comply with the California Family Code relating to declarations of disclosure. That issue will be covered in a later blog post.

Those provisions of the marital settlement agreement that are merged in the judgment become an order of the court; the “merged” agreement is superseded by the judgment and ceases to be of independent legal significance. As a result, the agreement can then be enforced only as a judgment (by contempt, execution, etc.) it is no longer enforceable by contract remedies and, unless otherwise provided by the judgment, any warranties are extinguished by the judgment. Marriage of Lynn (2002) 101 CalApp. 4th 120, 130 (citing text).

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California divorce and family law matters.