San Diego Divorce Lawyer Blog
Courts are often called upon to interpret or construe assorted statutory provisions. When an appellate court is faced with an issue of statutory construction, it is considered a question of law and subject to an independent review. In a recent case, In re Marriage of Evans, the court of appeals reviewed an issue of “first impression” in California, namely whether the Family Code should be interpreted to require the exchange of disclosure declarations before the parties enter into a pre-petition (for divorce) agreement resolving their rights to property. When an issue is of “first impression,” it means that the courts in California have not yet addressed the specific issue presented, and by virtue of the decision, will be issuing new case law. Therefore, it is imperative that parties seeking a divorce consult with an experienced family law attorney from the San Diego area who is fully familiar with all of the recent court decisions and applicable laws affecting divorce cases.
In this case, the court examined the provisions of Chapter 9 of the Code and determined that the law does not apply to pre-petition agreements. Here, the parties were married in 1985 and separated in March 2007. Their home was the only significant asset in their marital estate. The spouses agreed that the husband would buy out the wife’s interest in the residence, and the wife even typed up a “Pre-Divorce Agreement” reflecting their wishes. They both signed the document on May 5, 2007. The agreement explicitly provides that it was made in contemplation of divorce. Before they signed the agreement, however, neither party served the other with a preliminary or final disclosure declaration. Once the agreement was signed, the husband paid the wife accordingly.
In 2009, the wife filed for divorce and in early 2010, both parties served disclosure declarations on each other. Under Chapter 9 of the Family Code, parties seeking to divorce are required to prepare and serve both preliminary and final disclosure declarations of assets and liabilities on each other. The husband argued that the agreement was unenforceable under Chapter 9 because the parties did not exchange disclosure declarations before they signed the agreement. He claimed that the statute should be interpreted to require such an exchange of information before they entered into the pre-petition agreement resolving their property rights. The trial court disagreed and held that the pre-petition agreement was enforceable. After reviewing the statute and the legislative intent behind its construction, the court of appeals affirmed, holding (among other things) that service of a preliminary disclosure is not required before a petition for divorce is filed. Instead, the filing of the petition is what prompts the requirement for an exchange of such information. The court held that Chapter 9 and its requirements for exchanges of disclosure declarations do not apply to pre-petition agreements.
The court’s holding in this matter will apply to other divorce cases with similar facts, arising throughout the state of California. As we can see from the decision, the law is continuously evolving. For this reason alone, if you are considering divorce, it is imperative that you contact a local family law attorney who is fully up to date with the most recent law applicable to such matters.
Roy M. Doppelt is an experienced divorce attorney representing families for more than 20 years in Southern California. Doppelt and Forney, APLC serves clients in Linda Vista, Encinitas, Scripps Ranch, San Diego, and throughout Southern California. For a free consultation with a dedicated and experienced family lawyer, contact Doppelt and Forney, APLC through the law firm’s website or give us a call toll-free at (800) ROY IS IT (769-4748).
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