Divorce 101: Divorce Process Overview – Part Two

divorce adviceDivorce process overview part two. In our last post, Divorce Process Overview – Part One, we discussed how the divorce proceedings begin by filing and serving a Petition, Summons and a Response. Once that phase of the process is completed, the parties are required to exchange documents which detail the financial state of the community.

Divorce Process Overview – Part Two

Under the California Family Code Sections 721, 1100, 2100 and 2102, spouses owe a fiduciary duty to each other. In transactions between spouses, they are “subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other,” which “imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.”

California Family Code Section 2103 provides that parties to a dissolution or legal separation are required to provide full and accurate disclosure of all assets and liabilities in which one or both parties may have an interest and they must serve their disclosures on the other party. Although a final declaration of disclosure may be waived by the parties, preliminary declarations of disclosure must be exchanged between the parties or the court will not enter judgment for the divorce or legal separation.

Under California Family Code Section 2104, the preliminary disclosures to be served by the Petitioner either with the Petition and Summons or within 60 days after filing the Petition. The Respondent has 60 days after filing a response to serve their declarations on the Petitioner.

The preliminary declarations of disclosure are comprised of the following four documents: Declaration of Disclosure (FL- 140), Income and Expense Declaration (FL-150), Schedule of Assets and Debts (FL-142), and the Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration (FL-141).

The Declaration of Disclosure (FL- 140), Income and Expense Declaration (FL-150), Schedule of Assets and Debts (FL-142) are not filed with the court. So how does the court know the parties made the exchange? To provide the court record of the exchange, the parties must file and serve the Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration (FL-141). Again, this is critical because if the court does not have record of this document on file, the court will not enter a final judgment on the parties’ divorce or legal separation.

In addition to the information requested to be filled out on the forms themselves, the parties are required to produce and exchange other documents which support and evidence the information entered on the forms such as: copies of pay stubs, bank statements, credit card statements, deeds and tax returns.

Depending on the extent of the community estate, these forms can be complex so it is a good idea to have the assistance of an attorney to assure they are prepared properly.

Once the preliminary declarations are exchanged, the next step is to either use them as a basis for resolving the issue of community property division.  Division of the community property estate can either occur through settlement discussions and execution of a Marital Settlement Agreement, or if the parties cannot agree, by judicial intervention requesting the court order equal division.

In our next blog, “Divorce 101: Divorce Process Overview Part Three”, we discuss the options of dividing the marital estate either by Marital Settlement Agreement or by equal division by the Court.