Family Law Center attorneys focus on family law and specialize in dissolution, legal separation, divorce mediation, custody and child/spousal support in Sacramento, Placer, Yolo, and El Dorado counties.
A divorce action plan should include many things but most of all it should be well thought through.
Divorce Action plan One: Determine if your marriage is really over. This is the time to take heart with your spouse to ask have both of you done all you can do or all you are going to do to save or work on your marriage. Are you in marriage counseling or have you tried marriage counseling? Once the decision is made make it clear to your spouse that this is what needs to take place. An open communication about your intent to move forward will make the path much smoother.
Divorce Action Plan Two: Begin to gather information for the divorce about your assets, debts, income and expenses. Compile all your bank statements, credit card statements, retirement statements and any other financial asset and debt information that is available to you. As you gather these statements take time to review and determine if either of you received or have any separate assets (such as separate inheritances, debts etc.). To determine if you are still entitled to a separate interest will most likely require help from a family law attorney. Make a note that when you seek a consultation with a family law divorce attorney to ask for their advice on the issue of separate versus community interest in assets.
Divorce Action Plan Three: Determine the divorcing options available to you. Are the two of you candidates for Divorce Mediation? Or better suited for a Collaborative Divorce? Is the conflict such that the two of you need separate family law attorneys? Ask for referrals for a good divorce family law attorney or mediator. Referrals are the best source for obtaining a family law attorney. Ask friends you know have been divorced about who they used.
Divorce Action Plan Four: Filing the first divorce papers with the court. This starts with filing of a Petition for the Divorce. The first divorce papers are primarily to open the case in the court and obtain a case number from family court. It is important to understand that the statements made in the petition for divorce are not an agreement but can cause conflict if not done properly. This is why having the right divorce attorney to help you begin this process is so important. A good family law attorney will be able to help you complete these forms without increasing the conflict.
Divorce Action Plan Five: Completion of Declaration of Disclosure including a Schedule of Assets and Debts and an Income and Expense Declaration. Much of the financial and historical information you gathered in the divorce action #two will be used for this next step. It is important to make a complete and full disclosure to your spouse and ask that your spouse make a full and complete disclosure to you. The family court has created forms for the two of you to make your Declaration of Disclosure. The obligation in a divorce to make a full disclosure has serious legal significance and it is well worth the investment to seek the advice of a divorce attorney to help you complete them or to review your work.
Divorce Action Plan Six: Building the Marital Settlement Agreement (MSA). It is best to seek the help of an experienced family law attorney to prepare your Marital Settlement Agreement also known as MSA. This agreement will include how you intend to share your children’s time including your child custody: physical child custody and legal child custody provisions. (See our blog on Legal Child Custody versus Physical Child Custody to learn more about the meaning and impact of custody determinations). The MSA agreement will also state how you want to divide your assets and debts. If there is a retirement account you may need to use a a Qualified Domestic Relations Order QDRO to divide it. A QDRO will allow you to divide the retirement account without having to pay any taxes on the transfer or have to pull the money out of retirement to reach an equal division of property. The MSA will also include any support agreement for both spousal support and child support if you have children. To be sure that you have a legal binding agreement and have covered all the marital issues in the MSA you need to seek the help of a divorce or family law attorney with preparation and processing of the MSA.
Divorce Action Plan Seven: Processing the MSA and the other necessary final family court documents is the last step. It seems only reasonable that after completing an MSA you could just send it to the court. This is not so. In order to send an MSA to the court it must be accompanied by other court required documents including but not limited to; Judgment; Notice of Entry of Judgment; Declaration re: Service of the Declaration of Disclosure; an Appearance Stipulation and Waiver; and a Declaration of Uncontested Divorce. These documents need to be prepared based on local rules. I recommend that you seek the advice of a family law attorney and to be sure this is done correctly.At Family Law Center we can provide you with the legal help to process your divorce papers in an inexpensive and efficient manner. We will do our best to make the divorce process as seamless, easy and low conflict as we can for you. Call us at Family Law Center for a consultation with one of our divorce family law attorneys.
When going through a divorce, you and your spouse will be required to complete a preliminary and possibly a final "declaration of disclosure". Sometimes, the final declaration of disclosure may be waived. At some point during the divorce process (usually very early in the process), at least the preliminary Declaration of Disclosure will need to be prepared by each spouse and exchanged between them.
A declaration of disclosure (whether preliminary or final) is comprised of an asset and debt schedule, an income and expense declaration, and a one-page declaration of disclosure form. The asset and debt schedule is where you each will list ALL of your assets and debts, whether you think the asset or debt is your separate property or community property, and regardless of whether you feel there is no dispute about the property and who will receive it in the divorce. The income and expense declaration you will both need to complete will list your income and expenses as of the time you complete this form. This will be important in the divorce process, particularly in relation to child and spousal support (alimony). Even if you have no children and do not expect to ask for spousal support from your spouse, you will still need to complete this form and exchange it with your spouse.
Over the last number of years, California law has placed a "fiduciary duty" on both spouses to deal with each other fairly, to not take financial advantage of the other, and to fully disclose finances – whether separate or community. In fact, the fiduciary rules are similar to those which apply to business partners. Breaching that duty can result in significant penalties in a divorce, and non-disclosure can actually lead to the other person being awarded 100% of the non-disclosed asset! Also, the forms will be signed by you under penalty of perjury – so these forms need to be accurate.
Correctly completing the documents for your declarations of disclosure should be with consultation of a family law attorney, and Family Law Center attorneys can help you, whether you are going through your divorce in mediation, using the collaborative process, or litigation. A correctly completed declaration of disclosure greatly enhances both of your ability to settle a divorce case quickly, saving both spouses time and money.
Written by Mark Johannessen
For more information contact Mark at Family Law Center
When couples 2640. (a) "Contributions to the acquisition of property," as used in this section, include downpayments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of the property but do not include payments of interest on the loan or payments made for maintenance, insurance, or taxation of the property. (b) In the division of the community estate under this division, unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, the party shall be reimbursed for the party's contributions to the acquisition of property of the community property estate to the extent the party traces the contributions to a separate property source. The amount reimbursed shall be without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division. (c) A party shall be reimbursed for the party's separate property contributions to the acquisition of property of the other spouse's separate property estate during the marriage, unless there has been a transmutation in writing pursuant to Chapter 5 (commencing with Section 850) of Part 2 of Division 4, or a written waiver of the right to reimbursement. The amount reimbursed shall be without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division.
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Family Law Center represents clients throughout California including, but not limited to: Sacramento, Antelope, Auburn, Cameron Park, Carmichael, Citrus Heights, Davis, El Dorado Hills, Elk Grove, Fair Oaks, Folsom, Granite Bay, Placerville, Rancho Cordova, Rocklin, Roseville, West Sacramento, Woodland and the Counties of Sacramento, El Dorado, Placer, Yolo and more.