What is a Lis Pendens?

A Lis Pendens or Notice of Pendency of Action prevents the opposing side in your divorce from encumbering real property in violation of an Automatic Temporary Restraining Order. 
Do you need a Lis Pendens? Only if you have real property that you think may be encumbered during a divorce.

To issue a Lis Pendens, you will need to a the Notice of Pendency of Action with the Court Clerk and then Record that Notice at the County’s Recorder office.  Here are some requirements, a Lis Pendens: (1) must be served on the other party, (2) must be identified in the pleading, (3) must be released at the end of the case. 

  

How do I calculate the length of our marriage?

There are two different dates to pay attention to when you calculate the length of your marriage.   

Are you trying to calculate the length of marriage for social security benefits or spousal military benefits?
For federal benefits, the date of marriage is measured from the date of marriage to the date of termination of status (the date your divorce decree is finalized).

Are you trying to calculate the length of marriage for spousal support and separate property?
California uses the date of separation as the date for the end of marriage to measure spousal support and the date on which all earnings become separate property.

What is Moore Marsden and do I need it?

Experienced San Francisco Bay Area Family Law Attorneys will tell clients about reimbursement rights for property purchased prior to marriage with separate property funds.

For example, if one spouse owns a residence or other real estate as separate property before marriage, and then community funds are used to reduce the principle owed on the mortgage, then the community estate will acquire a pro-tanto interest in the property. This is commonly known as Moore/Marsden based on two cases in the 1980s.

Stated another way, Moore/Marsden Rule provides that when community property funds are used to reduce the principal balance on a loan used to acquire a separate property residence owned prior to marriage by one of the spouses, the community acquires an interest in that property.

A different approach has been used when community property is used to improve separate property. In family law, separate property funds that are contributed to a community property are entitled to reimbursement under Family Code 2640 (without interest or appreciation). Be careful because the statute limits reimbursement to the net value of the property at the time of division.  An additional wrinkle in Moore Marsden calculations can be a refinancing - so contact a family lawyer or Certified Divorce Financial Planner if you have questions about separate property reimbursement.  

Learn more about property division:

MY SPOUSE LIQUIDATED OUR ACCOUNT DURING OUR DIVORCE, CAN HE DO THAT?

WHAT IS COMMUNITY PROPERTY?

 

 

My spouse liquidated our account during our divorce, can he do that?

Experienced California divorce attorneys will educate you about automatic temporary restraining orders or ATROs. In California, on commencement of every divorce action, certain automatic temporary restraining orders are entered. These orders prevent spouses from the following:

Removing any minor child of the parties from California or applying for a new or replacement passport for such a minor child without the other party’s prior written consent or a court order. Fam C §2040(a)(1).

Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties or their minor children. Fam C §2040(a)(3). 

Transferring, encumbering, hypothecating, concealing, disposing of, or changing the beneficiaries of any real or personal property (whether community, quasi-community, or separate) without a court order or the other party’s written consent, except in the usual course of business or for the necessities of life. Fam C §2040(a)(3).  

Creating or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the other party’s written consent or a court order. Fam C §2040(a)(4). 

During the pendency of the divorce, meaning once you have filed but before the divorce judgment is entered, a spouse must abide by these rules or be subject to consequences. In answer to question posed as to whether a spouse can liquidate accounts, the answer is probably not. 

You can contact me at Amanda@gordonfamilylaw.com for more information.

HOW TO FILL OUT AN INCOME AND EXPENSE DECLARATION OR FL – 150

Experienced Bay Area family law attorneys will tell clients that money is one of the most difficult and important aspects of divorce in California.  Your Income and Expense declaration or FL 150 may be the single most important document for your dissolution. This post explains why reporting your current earned and passive income accurately can make a huge difference in the outcome of your case.

If your case does not involve a request for spousal support or attorneys fees, there are 15 Items that you must fill out on an Income and Expense Declaration.

Before you start to fill this form out you should gather the following documents: (1) recent pay stub, (2) tax returns, (3) retirement accounts, (4) income from any rental properties, (5) monthly budget or expenses.  

1.    EMPLOYMENT INFORMATION:  Take this information directly from your pay stub. 

2.    AGE AND EDUCATION: Basic personal identifying information.

3.    TAX INFORMATION:  Take this information directly from your tax return.

4.    OTHER PARTY’S INCOME: It is best to be as accurate as possible. Ask for your ex-spouses pay stub.

5.    INCOME:

a.     Salary – Gross salary is what you make before taxes.  This is your immediate prospective earnings. You should put the amount per month and the average amount over the past 12 months. Remember to use gross figures (before taxes).  

b.    Overtime --- Any income earned over your assigned duties.

c.     Commissions or bonus income --- Click on this text for my post about bonus income. You will want to be very clear about how your commission scheme works and may want to speak with an attorney to optimize your outcomes.

d.    Public Assistance – This includes social security income.

e.    The remaining questions are self explanatory and specific to each situation – we recommend that you speak with an attorney if your questions are in these categories.

6.    INVESTMENT INCOME: Rental property income is income reduced by expenditures (which includes property taxes, maintenance, and hours managing property). Family Code Section 4508(2). Click on this text for my post on rental income in a divorce. 

7.    INCOME FROM SELF EMPLOYMENT: If this applies to your case, the information can be found on Schedule C of your tax returns. 

8.    ADDITIONAL INCOME: Lottery income, consistent payments from family, and income from Uber are all reportable.

9.    Change in income: If your financial situation has changed, use this section to explain why.

10. DEDUCTIONS: This information is found on your paystub. Many employers have discretionary retirement contributions, such as 401k contributions. Don't include your 401k contributions here, only include mandatory contributions such as a government pension. 

11. ASSETS: This information is found by looking at your bank statements, stock holdings, and real estate.  NOTE: You must fill out Section 11 correctly if you are going to request attorney's fees. 

12. PEOPLE LIVING WITH ME:  Spousal support can be impacted based on who lives with you. For example, if you are the supporting spouse and you have a new dependent, then you may have to pay less in support. The same goes if you are a supported spouse and you do not pay rent because someone else is paying your expenses in your home. That may impact your spousal support amount.

13. AVERAGE MONTHLY EXPENSES:

a.     Mortgage: If you have an adjustable rate mortgage, indicate what you expect the payments will be for the next 6 months. Determine the amount of principal and interest included in the monthly payment – this impacts tax deductions and net spendable income. Make sure you are including property taxes and property insurance. You may need to estimate the reasonable amount for repairs and upkeep (remember to include your gardener, pool service, and housekeeper).

b.    Health care: These are costs that are not paid by insurance. Include here your monthly prescriptions.

c.     Child care:  This includes aftercare, preschool, nanny, summer child care.  

d.    Groceries:  An average family spends $600 a month on groceries.

e.    Eating out: An average family spends $300 a month on eating out.

f.      Utilities: Use your bills to make this entry.

g.    Telephone:  Do not include business related telephone expenses.

h.     The second half of the categories are self explanatory and are not necessarily strategic with the exception of “n” savings and investments. There are some spousal support cases, which establish that the marital standard of living must be calculated by looking at the pattern of saving. The types of expenses that can go in “other” include hair cuts, pet care, memberships.

14.  INSTALLMENT PAYMENTS: Use your loan and credit card statements for this step.

15. ATTORNEY’S FEES: Enter the total amount you have paid thus far to an attorney. You must fill section 11 and 15 out correctly to get attorney's fees. 

If any of the following situations apply to your story, consider speaking with an attorney: (1) you have received gift income, (2) there are non-income producing assets, (3) one spouse is not working but they have a high earning capacity, (4) you or your spouse are able to generate income from investments, (5) there is a great disparity in income such that the other spouse’s lifestyle far exceeds that of yours. 

Contact amanda@gordonfamilylaw.com for more information.