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Modification To Out Of State Child Support Order

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Modification To Out Of State Child Support Order

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.

Registration of out of state child support order

In order modify the out-of-state child support order in a tribunal in the state of California it is necessary to prove residency in the state of California of at least the respondent and the children subject to the child support order for over six months. See Fam Code § 5700.611

If these requirements can be proven then the petitioning party may seek a court order for modification on the same grounds as would generally be available to a party seeking to modify a child support order which was originally issued in the state of California. When a support order or income-withholding order issued in another state or a foreign support order is registered, the registering tribunal of this state shall notify the non-registering party. The notice must be accompanied by a copy of the registered order and the documents and relevant information accompanying the order.

A notice must inform the non-registering party:

(1) that a registered support order is enforceable as of the date of registration in the same manner as an order issued by a tribunal of this state;

(2) that a hearing to contest the validity or enforcement of the registered order must be requested within 20 days after notice unless the registered order is under Section 5700.707;

(3) that failure to contest the validity or enforcement of the registered order in a timely manner will result in confirmation of the order and enforcement of the order and the alleged arrearages; and

(4) of the amount of any alleged arrearages. See Fam Code § 5700.605

If the court grants the request to modify the out-of-state child support order the prevailing party will be required to register a certified copy of the new child support order in the original tribunal within 30 days.

If you have any questions regarding an out-of-state or foreign child support order, contact Walker Law Corporation for a consultation.

Have Questions On Family Law Cases in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Modification To Out Of State Child Custody Order

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Modification to out of state child custody order

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.

Registration of out of state child custody order

In order to register the out-of-state child custody order a petitioner must do all of the send all of the following to an appropriate tribunal of the state of California:

(1) A letter or other document requesting registration.

(2) Two copies, including one certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration, the order has not been modified.

(3) Except as otherwise provided in Section 3429, the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered.

See Fam Code § 3445

Modification of out of state child custody order

In order modify the out-of-state child custody order in a tribunal in the state of California it is necessary to prove all of the following:

(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.

(2) A court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under Section 3427 or 3428, and both of the following are true:

(A) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.

(B) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.

(3) All courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 3427 or 3428.

(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).

(b) Subdivision (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

(d) The presence of a child in this state for the purpose of obtaining gender-affirming health care or gender-affirming mental health care, as defined by Section 16010.2 of the Welfare and Institutions Code, is sufficient to meet the requirements of paragraph (2) of subdivision (a).

See Fam Code § 3421  If these requirements can be proven then the petitioning party may seek a court order for modification on the same grounds as would generally be available to a party seeking to modify a child custody order which was originally issued in the state of California.

Required Notice to the opposing party

Before a child custody determination is made under this part, notice and an opportunity to be heard in accordance with the standards of Section 3408 must be given to all persons entitled to notice under the law of this state as in child custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child. See Fam Code § 3425

Required Notice to the court

In a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child’s present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. However, where there are allegations of domestic violence or child abuse, any addresses of the party alleging violence or abuse and of the child which are unknown to the other party are confidential and may not be disclosed in the pleading or affidavit. See Fam Code § 3429

If you have any questions regarding an out-of-state or foreign child custody order, contact Walker Law Corporation for a consultation.

Have Questions On Family Law Cases in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Joinder of Pension Plan in Dissolution of Marriage Proceedings

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Joinder of Pension Plan in Dissolution of Marriage Proceedings

What is Joinder and is it required?

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.

If you have any questions or concerns about your retirement plan benefits and how those would or should be impacted in a dissolution of marriage proceedings, you may contact Walker Law Corporation for a telephone consultation.

Have Questions On Family Law Cases in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Sam Walker

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(714) 943-2336

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What Constitutes a Valid Written Transmutation Agreement

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What Constitutes a Valid Written Transmutation Agreement

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

If you are concerned about transferring your property during your marriage from community property to separate property or vice versa you should contact Walker Law Corporation to ensure that your written agreement will be enforceable in the future.

Have Questions On Family Law Cases in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Validity of Foreign Marriage

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Validity of Foreign Marriage

A question that often arises in today’s global world is whether a foreign marriage will be recognized in the State of California. As with most legal questions the answer depends upon the facts and circumstances as set forth below.

Marriage in a foreign country

If you were married in a foreign country the validity of your marriage will depend on what state you currently live in and whether the laws of the country in which you resided at the time you were married were followed. (Reference Material)

Some of the requirements you might encounter are:

    • Parties must be resident in that country for a specified period of time before a marriage may be performed there.
    • Blood tests.
    • Minimum age for the parties who are being married.
    • Parental consent.
    • Documents certifying the end of any previous relationship (such as death or divorce certificates), translated into the local language, and authenticated.
    • Affidavit of Eligibility to Marry: Some countries require an affidavit by the parties as proof of legal capacity to enter into a marriage contract. No such government-issued document exists in the United States. You may execute such an affidavit at a U.S. embassy or consulate. The U.S. embassy or consulate cannot attest to your marital status. However, most countries will accept a statement from you regarding your ability to marry if your signature on the affidavit has been notarized by a U.S. consular officer. (Reference Material)


The State of California will recognize a foreign marriage only if it is valid in the foreign country, “A marriage contracted outside this state that would be valid by laws of the jurisdiction in which the marriage was contracted is valid in California.” ( Cal Fam Code § 308)

Marriage to a Foreigner

If you marry a foreigner your marriage will only be valid if you comply with the laws of the State of California. The requirements in the State of California for a valid marriage are as follows:

(a) Marriage is a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).

(b) For purposes of this part, the document issued by the county clerk is a marriage license until it is registered with the county recorder, at which time the license becomes a marriage certificate. (Family Code § 330)

However, any failure to comply with these requirements by a non-party will not invalidate the marriage,

Except as provided in Section 307, a marriage shall be licensed, solemnized, and authenticated, and the authenticated marriage license shall be returned to the county recorder of the county where the marriage license was issued, as provided in this part. Noncompliance with this part by a nonparty to the marriage does not invalidate the marriage. (Cal Fam Code § 306)

Have Questions On Marriage to a Foreigner in Los Angeles County and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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What Happens to Assets in Revocable Family Trust During a Dissolution Proceeding

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What Happens to Assets in Revocable Family Trust During a Dissolution Proceeding

Once either party files for a Dissolution of Marriage and serves a Summons on the opposing party there are certain automatic restraining orders that go into effect which limit both parties’ rights to deal with real property without consultation with the other party including any property which is held by a revocable living trust. (See Also) Under the Family Code both parties are restrained from selling or encumbering any real property with minor exceptions if needed to obtain attorney’s fees for the Dissolution proceedings,

Restraining both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of, any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life, and requiring each party to notify the other party of proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party.

(B) Notwithstanding subparagraph (A), the restraining order shall not preclude a party from using community property, quasi-community property, or the party’s own separate property to pay reasonable attorney’s fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay the party’s attorney’s retainer for fees and costs under this provision shall account to the community for the use of the property. A party who uses other property that is subsequently determined to be the separate property of the other party to pay the party’s attorney’s retainer for fees and costs under this provision shall account to the other party for the use of the property.

(Cal Fam Code § 2040) This provision of the Family Code should be strictly adhered to by both parties and failure to do so can result in the court imposing monetary or other types of sanctions. However, there are exceptions to the general rule as provided by Section (b),

This section does not restrain any of the following:

(1) Creation, modification, or revocation of a will.

(2) Revocation of a nonprobate transfer, including a revocable trust, pursuant to the instrument, provided that notice of the change is filed and served on the other party before the change takes effect.

(3) Elimination of a right of survivorship to property, provided that notice of the change is filed and served on the other party before the change takes effect.

(4) Creation of an unfunded revocable or irrevocable trust.

(5) Execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.

(Fam. Code, § 2040) Accordingly, if the Parties created a Revocable Living Trust during the marriage which authorized revocation either party can revoke the Trust as long as the required notice is filed and served five days prior to taking effect. Likely, if the Parties have previously consulted with an Estate Planning Attorney, they will each have a Will in addition to the Revocable Living Trust and revocation thereof would also be authorized. Due to the complexity of the financial concerns that are at issue with a Dissolution which includes a Revocable Living Trust you should consult with an attorney to discuss your options and the best possible course of conduct based upon your unique situation. If these are issues that may affect you in a Dissolution of Marriage proceeding, you should contact the Law Office of Sam Walker for a free 15-Minute telephonic consultation.

Have Questions On Revocable Family Trust in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Family Law in Orange County Courts – COVID 19

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Family Law in Orange County Courts – COVID 19

The Governor of the State of California issued a State of Emergency on March 4, 2020. In addition to the Governor’s declaration of a State of Emergency, the California Judicial Council issued emergency rules related to the operation of the courts during the Covid-19 pandemic. (View PDF) The Orange County Superior Court has also issued emergency rules which affect family court’s in Orange County. (View PDF)

How Are Family Law Matters Affected In Orange County Superior Courts?

The Governor’s Orders are referred to by both the Judicial Council and the Orange County Superior Courts as set forth above. Under the Judicial Council’s emergency rule 13 a party may apply for a modification of support, a Request for Order, under the emergency rules,

Notwithstanding any other law, including Family Code sections 3591, 3603, 3653, and 4333, this rule applies to all requests to modify or terminate child, spousal, partner, or family support. For the purpose of this rule, “request” refers to Request for Order (form FL-300), Notice of Motion (Governmental) (form FL-680), or other moving papers requesting a modification of support.

Rule 13 (b) allows a party to initiate the modification of support procedure by serving a copy upon the opposing party,

Except as provided in Family Code section 3653(b), an order modifying or 15 terminating a support order may be made effective as of the date the request and 16 supporting papers are mailed or otherwise served on the other party, or other 17 party’s attorney when permitted. Nothing in this rule restricts the court’s discretion 18 to order a later effective date.

A party utilizing the procedure must also comply with Rule 13(c),

If the request and supporting papers that were served have not yet been filed with the court, the moving party must also serve a copy of the request and supporting papers after they have been filed with the court on the other party, or other party’s attorney when permitted. If the moving party is the local child support agency and the unfiled request already has a valid court date and time listed, then subsequent service of the request is not required.

Rule 13(e) indicates that these rules will remain in effect until 90 days after the Governor lifts the State of Emergency,

This rule will remain in effect until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted, or until amended or repealed by the Judicial Council.

The Orange County Superior Court has issued mandatory telephonic appearance rules for most Family Law Matters as set forth below.

Family law proceedings, with limited exceptions as set forth hereinbelow, shall be conducted via remote hearing, using either the Teams or Webex applications; the use of which application to be determined at the discretion of each family law judicial officer;

Initially, calendar preference will be given to matters that can be resolved remotely in an expedited As this hearing backlog decreases, efforts will be made to address the long-cause matters also pending;

An in-court proceeding can be scheduled on a showing of good cause as to why a remote hearing cannot occur, within the discretion of the assigned judicial officer;

Dual pro per domestic violence cases (no attorneys) assigned to the dedicated family law domestic violence courts may be scheduled for in-court proceedings with Judge Henson or Commissioner Watson;

DCSS child support matters shall be heard remotely pursuant to separate remote hearings protocols as established by federal and state statute and the Department of Child Support Services, in conjunction with Judicial Council Emergency Rule No. 3;

Specific protocols for the submission of, and presentation of evidence can be found online.

Any individual seeking access to a public hearing shall contact the courtroom where the hearing is set no less than 24 hours prior to the scheduled The clerk shall then provide information to enable remote access to the hearing. All those who apply for public access to a Family Law hearing should be advised that no part of any Family Law proceeding may be recorded without permission of the Court, and a violation of this order shall subject the individual(s) to potential civil and criminal penalties. (Code Civ. Proc., § 177.5; Pen. Code, § 632 et seq.) Be advised that certain Family Law hearings are not public by statute;

This Administrative Order is to be read in conjunction with Administrative Order 20/08, and is to be considered an exception to said Administrative Order suspending family law proceedings for those cases selected by each judicial officer to be heard remotely under this order. Additionally, those matters set for status conference after June 1, 2020 shall be heard remotely unless otherwise ordered;

This rule will sunset in 60 days unless renewed by a subsequent administrative

Have Questions On Family Law in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Child Custody, Visitation and Support during the Covid-19 Pandemic

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Child Custody, Visitation and Support during the Covid-19 Pandemic

Many parents are concerned about their child custody and/or visitation during the Covid-19 pandemic and need legal assistance in deciding how to handle the other parents demands or irresponsibility. Depending on whether you already have a Custody Order (see below) or if you are recently separated and do not yet have a custody order. In either case the health and well being of the children should be each parent’s paramount concern.

I already have a custody order for Child Custody or Visitation

If you already have a custody order in place you should follow the custody order. If you believe that there are valid safety concerns and that the current custody order will jeopardize the health or safety of your children you should call the Law Office of Sam Walker immediately for a free telephonic consultation on the options that you have available. The most likely best course of conduct would be to file an emergency Ex Parte request for the Court to make a different custody order until the Covid-19 pandemic has passed. What that entails is filing a request for the court to consider written evidence of the emergency and an eventual hearing on the emergency. Depending upon whether you are in Los Angeles or Orange County there are specified procedures that would need to be followed. More information can be obtained directly from the Los Angeles Superior Court website. Likewise the Orange County Superior Court offers information for parents at (View Resource)  Basically, an Ex Parte emergency hearing would be justified if you are concerned about someone in the other parents household testing positive for Covid-19 or other similar types of health and safety emergencies. The Governor has issued emergency orders which affect the availability of the Courts to hear your matters on a non-emergency basis. The Governor’s Executive Orders can be found (View Resource). Likewise the Judicial Council of California has also put orders in place which impact the availability of the Courts (View Resource) If you have any concerns you may call us for a free 15-minute telephonic consultation.

I do not have a Child Custody or Visitation Order

If you do not have a child custody or visitation order in place you still have rights to see your children and if the other parent is not being reasonable in allowing you to share custody or visitation then you should call us for a free 15-minute telephonic consultation to discuss your options. Depending on your circumstances you may have sufficient grounds to file for a emergency Ex Parte hearing in the Family Court to obtain a Court Order for visitation or custody during the Covid-19 pandemic. At a minimum you should be entitled to video visits with your children and if there are no immediate threats to the health and welfare of the children some type of in person visitation or shared custody, depending upon the circumstances.

I have a Child Support Order but I need to make a change due to the impact of Covid-19

If you already have a Child Support Order and it is no longer enough to provide adequate support due or you can no longer make the payments due to loss of income or other Covid-19 impacts you should call us for a free 15-minute telephonic consultation. Filing for an emergency Ex Parte order for increased child support or a decrease in the amount may be a viable option depending upon the circumstances. Regardless of the situation you should consult with an attorney to determine what the right steps are for requesting a modification of your child support.

Have Questions On Child Custody, Visitation in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Transmutation Agreements

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CAN A SPOUSE PURCHASE AN INSURANCE POLICY AS A SEPARATE PROPERTY GIFT TO THE OTHER SPOUSE DURING THE MARRIAGE OR MUST THERE BE A TRANSMUTATION AGREEMENT?

All property purchased during a marriage with community property funds is presumptively community property and remains community property upon death or divorce. 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. Property that a spouse acquired during the marriage is community property unless it is (1) traceable to a separate property source, (2) acquired by gift or bequest or (3) earned or accumulated while the spouses are living separate and apart.

IS THERE A VALID GIFT BETWEEN SPOUSES?

Often times during marriage a spouse will attempt to give a substantial gift to the other spouse and the question becomes whether that gift will remain as the separate property of the receiving spouse upon death or divorce. Ordinarily, gifts of small monetary value will be effectively transmuted to the receiving spouse without a written agreement but for gifts of substantial value the Court will consider the circumstances of the gift and whether or not a written transmutation agreement was executed. This situation arises most precariously when a spouse uses community property to purchase a substantial gift for the other spouse and designates the receiving spouse on the title to that property, such as in the case of an insurance policy, car, house, jewelry etc… In that situation, the California Supreme Court has held that even when the purchasing spouse has purchased an insurance policy (or other substantial gift) and clearly designated the receiving spouse as the beneficiary of that policy that such a purchase and designation is not a lawful transmutation of the property from community to separate property if the policy was purchased with community funds, “a policy of insurance on the husband’s life is community property when the premiums have been paid with community funds.” .  (In re Marriage of Valli (2014) 58 Cal.4th 1396, 1400.) The Valli Court reasoned as follows:

Married persons may, through a transfer or an agreement, transmute—that is, change—the character of property from community to separate or from separate to community. (Fam. Code, § 850., Reference Material) A transmutation of property, however, “is not valid unless 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 adversely affected.” (Id., § 852, subd. (a).) To satisfy the requirement of an “express declaration,” a writing signed by the adversely affected spouse must expressly state that the character or ownership of the property at issue is being changed. (Estate of MacDonald (1990) 51 Cal.3d 262, 272, Reference Material) The “express declaration” requirement “does not apply to a gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage.” (Fam. Code, § 852, subd. (c), italics added.) (In re Marriage of Valli (2014) 58 Cal.4th 1396, 1400-1401)

Accordingly, the Court found in Valli that even an insurance policy which was purchased with community funds was not lawfully transmuted by a designation on the policy that the receiving spouse was the sole beneficiary. A separate written transmutation agreement is required for all gifts which are intended to be a gift of separate property to the receiving spouse.

If you have questions about the characterization of assets purchased during your marriage with community or separate property funds you should contact the Law Offices of Sam Walker for a free 15-minute phone consultation. We can help you determine the appropriate characterization and value for division upon dissolution of marriage or through probate proceedings.

Have Questions On Family Law in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Understanding the Family Law Discovery Process

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Discovery In California Family Law Matters

While each party in a family law proceeding is subject to fiduciary duties often times the parties engage in discovery in addition to the Preliminary Declaration of Disclosure and Final Declaration of Disclosure. Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property. (Cal Code Civ Proc § 2017.010) See- CODE OF CIVIL PROCEDURE – CCP

Several discovery methods are available and most commonly include a request for Interrogatories, a Request for Production of Documents and a Request for Party Admissions. In a family law matter, the discovery process usually will proceed first with the Preliminary Declaration of Disclosure.

PRELIMINARY DECLARATION OF DISCLOSURE

Each party is required to serve on the opposing party a Preliminary Declaration of Disclosure which includes basic financial information such as: 1) Schedule of Assets and Debts, 2) Income and Expense Declaration 3) Tax Returns for the past two years 4) a statement of all material facts regarding valuation of community property and 5) a statement of all material facts regarding financial obligations which are community property and 6) a statement describing any business or investment opportunity since the date of separation.  See-Property and debts in a divorce

FINAL DECLARATION OF DISCLOSURE

A Final Declaration of Disclosure must set forth all relevant financial information prior to any agreement as follows:

(1) All material facts and information regarding the characterization of all assets and liabilities.

(2) All material facts and information regarding the valuation of all assets that are contended to be community property or in which it is contended the community has an interest.

(3) All material facts and information regarding the amounts of all obligations that are contended to be community obligations or for which it is contended the community has liability.

(4) All material facts and information regarding the earnings, accumulations, and expenses of each party that have been set forth in the income and expense declaration.

(Cal Fam Code § 2105)

INTERROGATORRIES

Either party may request that the opposing party provide documents, pictures, emails, text messages and other relevant documents which are relevant to the issues. A request must be limited in scope and duration. A party may not simply demand that the opposing party produce every document, picture, email, text message etc… since the date of the marriage, “Designate the documents, tangible things, land or other property, or electronically stored information to be inspected, copied, tested, or sampled either by specifically describing each individual item or by reasonably particularizing each category of item.” (Cal Code Civ Proc § 2031.030)

REQUEST FOR ADMISSIONS

Either party may request that the opposing party admit that certain facts are true. Requests are usually made to limit the issues that will be disputed at trial and to clarify the facts which are not in dispute. A request for an admission must be very specific and clear, “No request for admission shall contain subparts, or a compound, conjunctive, or disjunctive…” (Cal Code Civ Proc § 2033.060)

Properly preparing and responding to written discovery is a crucial element of every contested divorce proceeding and its importance cannot be underestimated. If you are in need of assistance with discovery in your family law matter you should contact the Law Offices of Sam Walker to ensure that you have an attorney with knowledge and experience in these matters.

Have Questions On Family Law in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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(714) 943-2336

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