While modification of an out-of-state child support order without the consent of the other party is generally not possible, under certain circumstances modification can be accomplished after registering the order in a tribunal of the state of California.

While modification of an out-of-state child custody order without the consent of the other party is generally not possible, under certain circumstances modification can be accomplished after registering the order in a tribunal of the state of California.

Joinder is the process of summoning the retirement plan administrator or trustee in your dissolution of marriage proceedings. (Fam C § 2060) Essentially, the administrator or trustee of the pension plan becomes a party to the divorce proceedings. (Fam C § 2062) The process of joining the retirement plan is an essential step in the process to dividing the relevant spouse’s retirement plan in a equitable manner. Most likely the pension plan trustee will not commence payment of the benefits due under the plan for many years and it is essential to have the court make a determination of what percentage(s) of the benefits will be paid to each spouse at that time. Joinder is completed by filing several forms with the court including the following: Request for Joinder of Employee Benefit Plan and Oder (FL-372), Pleading on Joinder Employee Benefit Plan (FL-370) and Summons (Joinder)(FL-375) Once these forms are filed with the court, the party seeking joinder will be required to serve these documents on the pension plan trustee and then file the proof of service accordingly. Once these steps are completed the trustee of the pension plan will have an opportunity to file a response or to simply do nothing.

Once the trustee of the pension plan is joined the parties will need to determine how the pension plan benefits will be divided amongst the parties after the divorce is completed and the benefits become payable. Most likely the benefits will not be payable until some future event such as retirement. At the time that the benefits become payable the trustee of the pension plan will already have a formula which was predetermined during the divorce proceedings, and they will simply apply the formula to the benefit which is payable and issue payments to the respective x-spouses based upon the formula ordered by the judge.

The process for determining the percentage is a based upon a formula based upon the length of the marriage as compared to the length of the employment service which earned the benefit considering both the time earned during marriage and before/after the marriage. These calculations are done by a Qualified Domestic Relations Order specialist who submits their report to the parties for their review prior to being approved by the court. (Fam C § 2610 ) If the parties are in agreement that the Qualified Domestic Relations Order accurately reflects their legal interests in the pension plan then both parties will request that the Qualified Domestic Relations Order be filed and ordered by the court.

Once the court approves the form and content of the Qualified Domestic Relations Order it becomes an order of the court. At that point the Qualified Domestic Relations order is served upon the trustee of the pension plan and they are at that point in time ordered to comply with the terms of the Qualified Domestic Relations Order.

Both before and during marriage, spouses may agree to change the status of any or all of their property through a property transmutation (Fam C § 850), which is an interspousal transaction or agreement that works a change in the character of the property. However, for a legal transmutation of property to occur, statutory formalities must be met. Fam C § 852(a) provides that a transmutation of real or personal property is not valid unless it is made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is or may be adversely affected. 

A transmutation agreement that is executed in accordance with these formalities is the only lawful method to transmute the character of any property that is acquired during the marriage. (See Transmutation Article) 

What are the requirements for a valid written transmutation agreement?

For any property acquired after January 1, 1985 a valid transmutation agreement must be in writing and must include a clear expression of an intent to not only change the title to property but also to change its character, ‘“a “transmutation,” or an interspousal transaction changing the character of community or separate property (§ 850), “is not valid unless made in writing by an express declaration” approved by the adversely affected spouse.”’ (In re Marriage of Benson (2005) 36 Cal.4th 1096, 1100) A writing is not an “express declaration” unless it contains specific language which expressly states that a change in the characterization or ownership of the property is being made to another form. (Estate of MacDonald (1990) 51 Cal.3d 262, 264)  For example, while the term “transfer” generally refers to a change in ownership, in the marital context it does not necessarily refer to a change in the character of the property, “Transfer” is clearly not synonymous with “transmutation,” as is evident from the language of Fam C §§ 850 and 852. 

The California Supreme Court made it clear that the construction of section Family Code Section 852(a) precludes the use of “extrinsic evidence” to prove that a writing effected a transmutation. The Court explained that the Legislature, in enacting the requirements and abrogating prior case law, sought to increase certainty and honesty in marital property disputes, and to decrease the burden on the courts in resolving such matters. (In re Marriage of Benson (2005) 36 Cal.4th 1096, 1100, https://casetext.com/case/in-re-marriage-of-benson

A writing sufficient to satisfy the “express declaration” requirement might very well contain the words “transmutation,” “community property,” or “separate property,” but the written agreement is not required to include that specific language in order to be valid. For example, a writing signed by the adversely affected party would be sufficient evidence of a transmutation if it included language such as “I give to the account holder any interest I have in the funds deposited in this account.” (Estate of MacDonald (1990) 51 Cal.3d 262, 273, https://law.justia.com/cases/california/supreme-court/3d/51/262.html