Prior to considering divorce, you generally should consult with at least one divorce attorney so that you know what your legal rights are and also what you can except to either pay or receive in terms of child and/or spousal support. It is helpful to bring a basic written breakdown of what the assets and debts of the marriage are for the divorce attorney to review, as well as your last 3 years of income tax returns.
Once your divorce case has commenced, both parties in a California divorce case are required by California law to complete and exchange their own financial disclosures known as “Preliminary Declarations of Disclosure.” These disclosures are comprised of 2 main documents: (1) an Income and Expense Declaration, and (2) a Schedule of Assets and Debts. Your divorce attorney will help prepare those forms and organize the supporting documentation for that disclosure. These disclosure are signed under penalty of perjury, and each party is held to a high fiduciary duty to the other party to disclose all known assets and debts and to be transparent in such disclosures.
Determining All of the Marital Assets
Creating an inventory of all the marital assets is necessary for the financial disclosure and also in preparation of the filing for divorce. In addition to the marital home, cars, bank accounts, and other main assets, there are also secondary items that need to be accounted for such as furniture, jewelry, artwork, and other more personal belongings. Determining values of all such property is necessary, and for homes and vehicles, obtaining such values will usually involve getting a professional appraisal. Furniture and furnishings should be valued at “garage sale value,” not what you paid for them, the reason being that if they were to be sold or disposed of, the court would either order them sold by garage sale or perhaps by consignment. The divorce attorney will guide you through this process of evaluating the marital assets.
It is important to understand that California is a community property state, which means that generally, all assets acquired during the marriage is generally presumed to be community property, i.e. each party is entitled to a one-half interest in the assets. The exception is an asset acquired by inheritance or by gift, which is generally considered the receiving party’s separate property. An experienced divorce lawyer will help determine what should be considered community property and what should be considered separate property.
Establishing The Marital Liabilities
Your divorce attorney will help ascertain how your marital liabilities and debts should be divided and what is community debt. Like marital assets, marital debts incurred during marriage are generally presumed to be community debt, meaning each party is responsible for one-half thereof. However, your divorce lawyer will work with you to determine a proposed division of property that takes the big picture into consideration factoring in all of the assets, debts and income of the parties to determine an equitable division.
Only until the parties have completed and exchanged their Preliminary Declaration of Disclosure can any marital settlement agreement for the division of assets and debts as part of a divorce judgment be an enforceable one under California law.
For further information or to schedule a consultation with Orange County divorce attorney Gerald Maggio of The Maggio Law Firm, please call (949) 553-0304 or visit www.maggiolawfirm.com. The Maggio Law Firm is an experienced Orange County divorce and family law firm serving the Orange County and Riverside areas and neighboring counties, serving clients with legal issues including divorce, legal separation, prenuptial agreements, divorce mediation, and other family law issues.