The divorce process is started by one spouse or partner filing a Petition, either requesting legal separation or dissolution of marriage, and usually containing attendant property division, child or spousal support and/or attorneys fee requests. The person who files the Petition is called the Petitioner.
The Petition must be served on the other spouse or domestic partner in order for the Court to have jurisdiction over the marriage and to potentially make decisions affecting property, division of assets, and support. Once the Petition is served on the other spouse or domestic partner that person has 30 days to file a Response. The person filing the Response is known as the Respondent.
- Orders Pending Trial
Many times people involved in a dissolution of marriage or domestic partnership need what is generally referred to as interim orders so that the status quo can be kept. Bills have to be paid, visitation and timeshare arrangements with children must be made, support is sometimes needed and one party may need money to hire an attorney. In order to obtain any of these remedies early in the dissolution process, one party either tries to reach an agreement with the other party or if an agreement cannot be made, a party can make a motion to the court requesting a temporary order.
- Preliminary Declarations Of Disclosure
The law requires spouses and/or domestic partners involved in a dissolution to exchange what is known as Preliminary Declarations of Disclosure. Preliminary Declarations of Disclosure generally consist of two Judicial Council forms-- Schedule of Assets and Debts and an Income and Expense Declaration. The Schedule of Assets and Debts identifies every type of property (separate or community) the party completing the document has an interest in, and the estimated fair market values of real property, household furnishings, jewelry, art, antiques, motor vehicles and boats, bank accounts, credit union accounts, stock and mutual fund accounts, retirement plans, 401k plans, profit sharing plans business interests, promissory notes, and any and all other assets; debts (secured and unsecured), credit card debts, taxes due, and the like are stated. Current statements identifying every asset—i.e. a checking or savings account—and/or debt—i.e. credit card--must be attached to the Schedule of Assets and Debts. An Income and Expense Declaration is also required as part of the Preliminary Declaration of Disclosure. If a spouse is employed, he or she must attach to the Income and Expense Declaration copies of his or her two most recent pay stubs. A spouse who is a business owner or partner will be required to produce profit and loss statements, and most likely tax returns, for the past two years.
A fiduciary duty exists between spouses who are proceeding through dissolution of a marriage or domestic partnership. This requires each spouse to honestly and truthfully disclose all assets and debts and income and expenses. If either spouse or domestic partner fails to identify an asset or debt or misstates his or her income and dissolution of a marriage or domestic partnership is obtained notwithstanding the inaccurate disclosure, the other spouse or domestic partner may move to set aside the judgment of dissolution and potentially obtain one-half of the assets that were not disclosed.
A well known California case related to Preliminary Declarations of Disclosure and the requirement that both spouses disclose all assets and debts is the Marriage of Rossi, where Mrs. Rossi suffered the strictest penalty of all for failing to disclose an asset.
Ms. Rossi purchased a lottery ticket with community property monies before her and her husband separated, and won $2,000,000. She did not disclose the winnings in any mandatory disclosure documents signed under penalty of perjury by each spouse. About two years later following their divorce, Mr. Rossi learned his ex-wife had won $2,000,000 in the lottery.
Under California law one half of the lottery winnings belonged Mr. Rossi because the lottery ticket was purchased with community property funds. But as a punishment for being dishonest, breaching her fiduciary duty and not disclosing the lottery winnings in her Declarations of Disclosure, the court ordered Ms. Rossi to pay to Mr. Rossi all of the lottery winnings. Ms. Rossi was also required to pay her ex-husband’s attorneys fees.
The moral of the story is to be honest and upfront.
Once Declarations of Disclosure are exchanged it is then possible for the parties to attempt to resolve the issues raised in a dissolution of marriage through what is known as a Marital Settlement Agreement or a Stipulation for Judgment.
- Marital Settlement Agreements
Marital Settlement Agreements (hereinafter “MSA”) are agreements spouses or domestic partners going through a divorce enter into if they settle some or all of the issues pertaining to their dissolution of marriage or domestic partnership. The MSA can cover issues such as child and spousal support, child custody and visitation, property division, debt division, and any other issue that the divorce raises. An MSA should be prepared by an attorney representing one of the spouses or domestic partners and the other spouse or partner should have an attorney representing him or her in the negotiation of the MSA.
As stated above the MSA should be entered into only after the spouses or domestic partners complete and exchange Preliminary Declarations of Disclosure.
If the case does not settle then a court can decide many issues related to the dissolution of marriage.