I Really Have to Disclose Everything?

The Mindful Divorce Support Group

Alexandra Baron, Esq. | 949-514-8600themindfuldivorceoc.com

Disclaimer

• I am not a therapist. This support group is not intended to be therapy. It is simply a forum to meet with other similarly situated individuals.

AGENDA

• Introductions• Introduction to Positive Psychology and Mindfulness• Mindfulness Meditation (15 minutes)• Positive Psychology Exercise (15 minutes)• Family Law Topic: That Credit Card Debt is Mine too?!• Questions

POSITIVE PSYCHOLOGY

• Introduced by Dr. Martin Seligman in 1998 in his APA Presidential Address to the American Psychological Association.

• In the past 15 years, there have been 1,336 peer reviewed articles published in English academic journals.1

• Evidence based research on cultivating happiness, strengths, self-esteem, and optimism.

• Contrasts with traditional psychology that focuses on pathology—alleviating neurosis, anxiety, and depression—Positive Psychology focuses on cultivating happiness, strengths, self-esteem, and optimism.

• “There are moments–maybe ongoing periods of time–when you are aligned with your strengths, immersed in the actions that bring you fulfillment. The goal should not be to change you, but to help you more consistently become the person you already are at your best."

1. Stewart I. Donaldson, Maren Dollwet & Meghana A. Rao (2015) Happiness, excellence, and optimal human functioning revisited: Examining the peer-reviewed literature linked to positive psychology, The Journal of Positive Psychology: Dedicated to furthering research and promoting good practice, 10:3, 185-195, DOI: 10.1080/17439760.2014.943801

POSITIVE PSYCHOLOGY

EVIDENCE BASED RESULTS OF POSITIVE PSYCHOLOGY STUDIES• Robert Emmons and Michael McCullough published "Counting Blessings

Versus Burdens" showing that a consistent practice of gratitude increases wellbeing.

• The "Does happiness lead to success?" study shows broad range of benefits, from physiological health to financial and career success and greater social engagement.

• Barbara Fredrickson publishes her 3:1 positivity ratio finding in Positivity.• Maintaining a 3:1 positivity ratio of positive thoughts to negative emotions creates a

tipping point between languishing and flourishing.

TOPICS IN POSITIVE PSYCHOLOGY

• Altruism, Gratitude and Forgiveness• Optimism and Hope• Wisdom and Courage• Meaning making and Benefit Finding• Resilience and Hardiness• Character Strengths• Mindfulness, Flow and Spirituality

POSITIVE PSYCHOLOGY RESOURCES

• Notable books: • Authentic Happiness by Dr. Martin Seligman• Flourish by Dr. Martin Seligman• The How of Happiness by Dr. Sonja Lyubomirsky• Uncovering Happiness by Dr. Elisha Goldstein• Happier: Learn the Secrets to Daily Joy and Lasting Fulfillment by Tal Ben-

Shahar• The Happiness Advantage by Shawn Achor

• Notable Magazines• Live Happy

MINDFULNESS

• For several thousand years in the Buddhist tradition, mindfulness has been known as the seventh element of the Noble Eightfold Path to liberation and enlightenment. • Mindfulness allows one to release any attachment to automatic

thoughts and negative patterns that sabotage happiness. • In 1998, there were zero studies on mindfulness funded by the

National Institutes of Health. Currently, there have been over 70 studies done on mindfulness.• Mindfulness successfully combats the symptoms of stress by rewiring

the brain.

MINDFULNESS MEDITATION

• Please follow the instructions of the guided meditation• Duration: 15 Minutes• Benefits:• Even thirty minutes a day may improve attention and focus of people with

heavy time demands• After 40 minutes of meditation a day for between two to fifteen years the

regions associated with attention and sensory processing were thicker in meditation participants than controls.• Long term meditators were shown to have an outstanding ability to regulate emotion

and allow for well adjusted responses to whatever life throws

Positive Psychology Exercise

Expressive Writing: Writing about a traumatic experience for 15 minutes over the course of three to four days has been shown to emotional and physical health benefits.Studied by: James W. Pennebaker• Long term benefits include:• Fewer stress-related visits to the doctor• Improved immune system functioning• Improved mood/affect• Feeling of greater psychological well-being• Reduced depressive symptoms, • Fewer post-traumatic intrusion and avoidance symptoms

EXPRESSIVE WRITING INSTRUCTIONS• Duration: 15 minutes – For greater benefit do this again for the next

2-3 days.• Instructions: Write your very deepest thoughts and feelings about the

most traumatic experience of your entire life or an extremely important emotional issue that has affected you and your life.• Once you begin writing, write continuously. Don’t worry about

spelling or grammar. If you run out of things to write about, just repeat what you have already written.• No feedback will be given on the writing, the writing is completely

confidential.

I Really Have to Disclose Everything?

• Priming Question: How can I begin to organize and assess my financial picture?

• What is Priming?Priming is an implicit memory effect in which exposure to one stimulus influences a response to another stimulus.

• Example: Students in one study were read a list of words that described old age. After being read this list, they walked more slowly down the hallway.

I Really Have to Disclose Everything?

Common Question: If my spouse is not on title and I owned the property before marriage, do I really have to list it?

• Family Law Principles: • Fiduciary Duties married spouses owed to each other• Disclosure Requirements• Ramifications for Failure to Disclose

• The problem: A spouse does not think listing the item is necessary or wants to covertly hide the asset from the Family Law court

FIDUCIARY DUTIES OWED BETWEEN SPOUSESCAL. FAM. CODE §720• Spouses contract toward each other obligations of mutual respect, fidelity, and support.

CAL. FAM. CODE §721(a) Subject to subdivision (b), either spouse may enter into any transaction with the other, or with any other person,

respecting property, which either might if unmarried. (b) Except as provided in Sections 143, 144, 146, 16040, and 16047 of the Probate Code, in transactions between

themselves, spouses are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of non-marital business partners, as provided in Sections 16403, 16404, and 16503 of the Corporations Code, including, but not limited to, the following: (1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying. (2) Rendering upon request, true and full information of all things affecting any transaction that concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions. (3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse that concerns the community property.

FIDUCIARY DUTIES OWED BETWEEN SPOUSESCAL. FAM. CODE § 1100• (a) Except as provided in subdivisions (b), (c), and (d) and Sections 761 and 1103, either spouse has the management and control of the community personal property,

whether acquired prior to or on or after January 1, 1975, with like absolute power of disposition, other than testamentary, as the spouse has of the separate estate of the spouse.

• (b) A spouse may not make a gift of community personal property, or dispose of community personal property for less than fair and reasonable value, without the written consent of the other spouse. This subdivision does not apply to gifts mutually given by both spouses to third parties and to gifts given by one spouse to the other spouse.

• (c) A spouse may not sell, convey, or encumber community personal property used as the family dwelling, or the furniture, furnishings, or fittings of the home, or the clothing or wearing apparel of the other spouse or minor children which is community personal property, without the written consent of the other spouse.

• (d) Except as provided in subdivisions (b) and (c), and in Section 1102, a spouse who is operating or managing a business or an interest in a business that is all or substantially all community personal property has the primary management and control of the business or interest. Primary management and control means that the managing spouse may act alone in all transactions but shall give prior written notice to the other spouse of any sale, lease, exchange, encumbrance, or other disposition of all or substantially all of the personal property used in the operation of the business (including personal property used for agricultural purposes), whether or not title to that property is held in the name of only one spouse. Written notice is not, however, required when prohibited by the law otherwise applicable to the transaction.

• Remedies for the failure by a managing spouse to give prior written notice as required by this subdivision are only as specified in Section 1101. A failure to give prior written notice shall not adversely affect the validity of a transaction nor of any interest transferred.

• (e) Each spouse shall act with respect to the other spouse in the management and control of the community assets and liabilities in accordance with the general rules governing fiduciary relationships which control the actions of persons having relationships of personal confidence as specified in Section 721, until such time as the assets and liabilities have been divided by the parties or by a court. This duty includes the obligation to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest and debts for which the community is or may be liable, and to provide equal access to all information, records, and books that pertain to the value and character of those assets and debts, upon request.

DISCLOSURE REQUIREMENTS

CAL. FAM. CODE § 2100 (c) In order to promote this public policy, a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties. Moreover, each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the relevant underlying facts.

RAMIFICATIONS FOR FAILING TO DISCLOSURECAL. FAM. CODE § 2122• The grounds and time limits for a motion to set aside a judgment, or

any part or parts thereof, are governed by this section and shall be one of the following:

…(f) Failure to comply with the disclosure requirements of Chapter 9 (commencing with Section 2100). An action or motion based on failure to comply with the disclosure requirements shall be brought within one year after the date on which the complaining party either discovered, or should have discovered, the failure to comply.

Translating § 721, § 2100 and § 2122 into Plain English

• Failure to disclose may lead to a set aside of the entire agreement you have just spent time, money and emotional fortitude trying to reach.• In the case of In re Marriage of Rossi (2001), 90 Cal.App.4th 108, Ms.

Rossi failed to disclose her $1.3 million in lottery winnings. The trial court ruled that Ms. Rossi had intentionally breached her fiduciary duty to Mr. Rossi by concealing the winnings from him and awarded Mr. Rossi 100% of the winnings.

PREPARING FOR FINANCIAL DISCLOSURE1. Begin preparing a list of your assets and debts early 2. Begin organizing all of your financial documents in one, easy to access

location3. Be sure to include statements for your bank accounts, retirement

accounts, pensions, credit cards, mortgage etc.4. Begin determining the value of tangible assets including artwork,

jewelry, antiques, furnishings, cars, boats etc.5. If the value of your home is in question, hire a neutral appraiser to

determine the value6. Use Kelley Blue Book (kbb.com) to determine the value of your vehicle.

Questions

• Please let me know if you have any further questions on this or another family law topic!

• E-mail address: alexandra@themindfuldivorceoc.com