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Discovery In California Family Law Matters

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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: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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What happens to the family home after a divorce?

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What happens to the family home after a divorce?

The majority of divorces in Orange County and/or Los Angeles County include considerations of what to do with the family home at the time of divorce. There are several choices for dividing the home in the State of California which will likely depend upon several factors including 1) when the home was purchased, 2) the classification of the funds which were used to make the down payment and monthly payments and 3) whether one party wishes to remain in the home after the divorce is finalized. See California Family Code Section 2640 – http://leginfo.legislature.ca.gov/faces/codesTOCSelected.xhtml?tocCode=fam

If the home was purchased in Orange County or Los Angeles County by one spouse prior to marriage and was fully paid off prior to marriage the house will be considered to be separate property of that spouse unless the home was transmuted into community property by a written agreement and/or a deed during marriage. In this situation the spouse who paid for the entire cost of the home will be entitled to keep the home as his/her separate property upon divorce. If however the home was not fully paid off prior to the marriage there may be a right to reimbursement for any community funds which were used to pay off the mortgage and/or for the value of any improvements to the property which were paid for with community funds. A detailed analysis of the finances which were used to pay for the home and any improvements will need to be conducted including an analysis of the value of any improvements and their appreciation during the marriage. Representation by an experienced Orange County and/or Los Angeles County attorney at the Law Office of Sam Walker would be of great benefit to any parties needing to fairly determine the rights and responsibilities with respect to the family home. See https://codes.findlaw.com/ca/family-code/fam-sect-2640.html

If the home was purchased during the marriage it will be considered community property absent a transmutation agreement. If the parties will be selling the home and dividing the net proceeds from the sale equally the division of the home will not present any complicated division. If either party wished to remain in the home after divorce and obtain ownership, they will need to buy out the other spouse with either cash or some other mutually agreed upon exchange.

A final consideration is where a home is purchased during marriage and the mortgage is paid for with community funds, but the down payment was made with separate property funds. In this situation the spouse making the down payment will be entitled to reimbursement and/or reimbursement plus the net equity attributable to the down payment. Plainly stated the spouse making the down payment may be entitled to more than just a return of the funds used to make the down payment such as the applicable interest and/or net equity attributable to the down payment. See https://www.courts.ca.gov/1039.htm If any of these matters will arise in your divorce proceedings it would be best for you to obtain the services of the Law Office of Sam Walker.

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: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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(714) 943-2336

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Dividing Pension Plans Through Dissolution of Marriage Proceedings

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Dividing Pension Plans Through Dissolution of Marriage Proceedings

A pension can take different forms and is basically defined as a fund into which money is deposited during an employee’s employment years and from which retirement benefits are provided to the employee after retirement. See-pension Division of retirement plan benefits is always a major concern of both parties upon dissolution of marriage and is a complicated matter which often requires a Qualified Domestic Relations Order expert (QDRO). Depending upon the type of pension plan it may also be necessary to join the pension plan administrator to the dissolution proceedings to ensure that your Qualified Domestic Relations Order is acceptable to the plan administrator. See –Property and debts in a divorce

Whether or not you are required to join the pension plan administrator there are requirements which will be imposed by the court for entering the Qualified Domestic Relations Order. Even in the case where the pension plan administrator is not required to be joined as a party to the dissolution of marriage proceeding it is advisable to utilize the services of an expert for preparation of the Qualified Domestic Relations Order prior to submitting to the Judge for approval.

The division of the pension plan benefits will be based upon the manner in which the pension benefits were acquired including a determination of what percentage of the pension benefits were earned by the employee during the marriage and what percentage of the pension benefits was acquired prior to the marriage and/or after separation. Much like the division of other tangible personal property during the marriage the division of pension plan benefits will be based on the determination of the portion of the benefits are community, quasi community or separate property. Determining the value of the pension at the date of divorce will likely depend upon whether the pension plan is a defined benefit pension plan or a defined contribution plan.

The determination of the cash value of a defined benefit pension plan is typically less complicated because the cash value of the pension benefit can be determined by a set formula based upon your salary history, length of employment and does not depend upon independent investment risk factors. See- What Is a Defined-Benefit Plan? Examples and How Payments Work  By contrast a defined contribution pension benefit plan’s value at the date of divorce and/or separation is dependent upon investment risk factors and may not be easily determinable without the assistance of financial experts. See- Defined contribution plan  Examples of typical defined contribution plans are Individual Retirement Accounts (IRA’s), 401(k) plans and the Federal Thrift Savings Plan.

See-Plan for a lifetime with the TSP Although there are investment risks associated with the defined contribution plans there are benefits to these types of plans which are beyond the scope of this blog. Division of a defined contribution plan can also create risks of investment loss/gain after the divorce and the non-employee spouse may prefer a cash buyout to eliminate further risks and/or the need to make further investment decisions associated with the administration of the pension plan in the future.

Additionally, while there are tax savings which make a defined contribution plan an attractive option there are limits on the deferral amount set by the Internal Revenue Service. See- Retirement Topics

Have Questions On Divorce 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: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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(714) 943-2336

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Division of Property in California

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Division of Property in California

How property is divided through a divorce is a major factor to be considered when contemplating a divorce. The main consideration is whether property is Community Property, Quasi Community Property or Separate Property, each of which will be treated differently.

Community Property

Community property is a marital property regime under which most property acquired by a spouse during a marriage (except for gifts or inheritances), is owned jointly by both spouses and is divided upon divorce, annulment or the death of a spouse. Community property is premised on the theory that marriage creates an economic community between the spouses (who may be same- or opposite-sex); and that the marital property attaches to that interpersonal community, rather than to the spouses themselves. (https://en.wikipedia.org/wiki/Community_property)  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. (Cal Fam Code § 760, https://codes.findlaw.com/ca/family-code/fam-sect-760.html) Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, or as otherwise provided in this division, in a proceeding for dissolution of marriage or for legal separation of the parties, the court shall, either in its judgment of dissolution of the marriage, in its judgment of legal separation of the parties, or at a later time if it expressly reserves jurisdiction to make such a property division, divide the community estate of the parties equally. (Cal Fam Code § 2550, https://california.public.law/codes/ca_fam_code_section_2550)

Quasi Community Property

“Quasi–community property” means all real or personal property, wherever situated, acquired before or after the operative date of this code in any of the following ways:

(a) By either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in this state at the time of its acquisition.

(b) In exchange for real or personal property, wherever situated, which would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition. (Cal Fam Code § 125,  http://leginfo.legislature.ca.gov/faces/codesTOCSelected.xhtml?tocCode=FAM&tocTitle=+Family+Code+-+FAM)

Separate Property

“Separate property” is property that is separate property under Part 2 (commencing with Section 760) of Division 4. (Cal Fam Code § 130) Separate property” does not include quasi–community property. (Cal Fam Code § 2502) The Separate property of a married person includes all of the following:

(1) All property owned by the person before marriage.

(2) All property acquired by the person after marriage by gift, bequest, devise, or descent.

(3) The rents, issues, and profits of the property described in this section.

(b) A married person may, without the consent of the person’s spouse, convey the person’s separate property.

(Cal Fam Code § 770)

Once the parties determine the type of property the division of the Community and Quasi Community Property will be equal 50/50 unless there were other agreements during the marriage. While married the parties may change the character of the property by an agreement called a transmutation. Subject to Sections 851 to 853, inclusive, married persons may by agreement or transfer, with or without consideration, do any of the following:

(a) Transmute community property to separate property of either spouse.

(b) Transmute separate property of either spouse to community property.

(c) Transmute separate property of one spouse to separate property of the other spouse.

(Cal Fam Code § 850) In order to successfully transmute property the agreement must conform to the requirements of the Family Code,

(a) A transmutation of real or personal property 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.

(b) A transmutation of real property is not effective as to third parties without notice thereof unless recorded.

(c) This section 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.

(d) Nothing in this section affects the law governing characterization of property in which separate property and community property are commingled or otherwise combined.

(e) This section does not apply to or affect a transmutation of property made before January 1, 1985, and the law that would otherwise be applicable to that transmutation shall continue to apply.

(Cal Fam Code § 852) (For more information see Transmutation)

Have Questions on the Division of Property 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: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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(714) 943-2336

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Family Law in California – Temp Orders – Support & More

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Family Law in California – Temp Orders – Support & More

Once you decide to file for divorce there are usually financial concerns which arise immediately and may require a temporary court order to provide either spouse with resources to pay for alternate living expenses which may include rent, utilities, auto, telephone and other life sustaining necessaries for you and any children which are under your care. A request for temporary spousal support and child support orders should be made immediately to ensure that these resources are available to you pending the ultimate resolution of these matters by order of the court.  The parties may agree to these matters without an order of the court and it may be preferable to do so to avoid unnecessary litigation.

The final determination of the parties’ rights and obligations through a family law proceeding may take months or years depending upon the level disagreement and the financial complexity of the matters involved. During that time, many couples will need a court order to determine how to handle shared parenting, who will reside in the family home (who will move out) and how much income is needed for the spouse moving to a new location. Other matters may also be determined and ordered on a temporary basis pending trial.   

It is imperative that you discuss these matters with your attorney prior to or at the time of filing your Petition for Dissolution of Marriage. A request for these temporary orders must be handled immediately in order to provide the parties with a manageable approach to divorce and ensure that an order for temporary support is forthcoming. Accordingly, either party may also request that the other party pay their attorney’s fees on a temporary basis until a final order is made by the court.  Both parties should be provided with sufficient resources to hire and retain the services of an attorney.   

The court grants temporary family law orders when either party makes the request in a timely manner and the requested orders are deemed reasonable and necessary by the court. Usually, these orders last until both parties reach an official settlement or the matters are tried before the court and a final judgment issued. Temporary orders can be ordered by a judge or through an agreement of the parties. The parties should anticipate and attempt to resolve these matters without the need for a hearing.  

The attorneys at the Law Office of Sam Walker will provide you with sensible and effective legal advice when requesting or defending against a request for temporary orders. Because the process can be so complex and have a lasting effect throughout the duration of the judicial process, it is essential to have the assistance of an experienced divorce attorney to protect your interests and ensure that you are granted all reasonably necessary temporary orders. We know how to handle temporary orders for spousal support, child support, property division and child custody and we can help you through each step of the process.

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: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Image of Attorney Sam Walker
Sam Walker

sam@attorneysamwalker.com

(714) 943-2336

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