What are Financial Disclosures in Divorce?

What is a Declaration of Disclosure?
California divorce law is designed to protect the transparent exchange of financial information in a divorce.  Thus, both parties must exchange full financial disclosures before a divorce can be finalized.

Will my tax returns, pay stubs, and bank accounts be public record?
Generally, no.  California law requires that each party serve his or her declarations on the other party but that these declarations are not filed with the Court.  Family Code Section 2104.  While the declarations do not need to be filed, the Court does require a proof of service that the declarations have been exchanged. 

When do I need to give the other side my financial documents?
California law requires that parties exchange financial documents within 60 days of a Petition or Response. However, this requirement can be waived by mutual agreement of the Parties.

What is a defined benefit plan and why do I need a valuation?

A defined-benefit plan like a Pension does not always have a straightforward value in the same way as an IRA or 401(k).

Instead, a pension is a promise by the employer to pay the employee a certain amount of money in retirement based on a specific formula. In order to get a value and for it to be fairly considered in the overall asset division, it needs to be valued by a professional. 

I have never worked. Can I get Social Security?

Experienced family law attorneys in the Bay Area will tell you that you may be able to collect social security. If you have been married for 10 years or more and our spouse has worked during that time, than you are entitled to one-half of your spouse's Social Security or your own, whichever is higher – even if you are divorced.  Your spouse also retains 100% of their Social Security benefit.  

My ex is living with her new boyfriend; can I stop paying spousal support?

Maybe.  

Experienced Bay Area Family Law attorneys will tell clients that In California, if a supported spouse is living with a non-marital partner, there is a rebuttable presumption that there is a decreased need for support under Fam C §4323(a).  What this means is that the burden of proof is on the supported spouse to show that, despite the cohabitation relationship, her need for support has not decreased. 

 
 In Marriage of Bower, the Court found that “[c]ohabitation may reduce the need for spousal support because ‘sharing a household gives rise to economies of scale. Also, more importantly, the cohabitant’s income may be available to the obligee spouse.'” 
To raise this issue with the Court you do not need to prove that that your ex has a boyfriend, but you must show that relationship has to be more than a roommate/boarder arrangement meaning that either there must be a sexual relationship or a homemaker-companion relationship. Marriage of Thweatt.  And while you may not be able to stop paying the entire amount of support, you could substantially decrease your monthly payments.

Do I have to pay spousal support Under Federal Immigration Affidavit of Support?

In San Francisco Bay Area, many of my clients have sponsored their spouses naturalization process or green card process in the United States. Just getting a divorce does not necessarily change your green card status, but it may impact your support obligations. 

When a U.S. citizen seeks to sponsor an immigrant (including a spouse), the sponsor is required to sign an affidavit of support that includes an agreement to maintain the immigrant at an income level no less than 125 percent of the federal poverty level. 
The Federal  statute provides that the immigrant may file a federal suit to enforce the sponsor's obligation under the affidavit of support. What this means is that even if you do not have to pay spousal support, you may have to pay support under federal law. 

 In Lui v. Mund, a federal court found that an immigrant wife's failure to seek work, which a Wisconsin court had required as a condition for spousal support, did not relieve her ex-husband of his obligation under the affidavit of support that he had signed to sponsor her as a permanent resident in the U.S. 
Speak to a family lawyer or immigration lawyer if you are considering divorcing and you recently completed the green card process.