How to Know if Your Assets Are Being Split Fairly In Divorce

Whether you are just considering a divorce, starting the process or right in the middle of it, at some point you are going to wonder if you are getting a fair shake. An attorney can look at your particular assets and debts and tell you the best plan for you, but this article will provide general information about the landscape of asset division in California and educate you to ask the right questions about the facts of your case.

  • Why do I need to care about community property vs. separate property?

In general, California law requires community property to be split between the spouses 50/50, whereas separate property may be retained solely by the spouse who owns the separate property.  

  • What is Community Property?

California Family Code provides the general definition of community property:  “Except as otherwise provided by statute, all property, real or personal, wherever situation, acquired by a married person during the marriage while domiciled in this state is community property.”

  • What is Separate Property?

California Family Code defines separate property in several sections, but the section that is broadest is as follows:  Separate property of a married person includes the following: 1) all property owned by the person before marriage, 2) all property acquired by the person after marriage by gift, bequest, devise or descent, 3) the rents, issues, and profits of the property described in this section.

  • Commingled funds make characterization challenging:

Commingling is where both separate property and community property have been combined in such a way that the character of the property isn’t clearly apparent upon first analysis. For example:

  • Down payment or loan money for the purchase of a home came from a gift to only one spouse, but community property funds have been used to pay mortgage.
  • A premarital bank account from one spouse is used by both spouses after the marriage, so it contains both pre-marriage separate property and community property funds.  

These are just a few examples of the myriad of ways that funds can be commingled. The process of sorting these out through tracing, etc. is beyond the scope of this article, but advice from an experienced family law attorney can assist in identifying and proving the proper character of commingled assets.

  • Determining the value of assets?

A key issue in fair division of assets is assessing the value of an asset. This can be challenging for some assets, but thinking through how the value of each item will be assessed is an important step in making sure you are getting a fair division.  

  • Don’t forget about debts.

The focus of this article has been assets, but don’t forget to calculate in the value of your debts. For example, a mortgage on real property, school loans, and credit card debt should never be left out of the analysis.

This is just the tip of the iceberg to get you thinking through issues relating to identifying community property and assessing its value.  The division of money and time with the children are the two most important issues facing many couples in divorce, so a thorough analysis of these issues by an experienced family law attorney will help you understand the law and achieve a fair resolution.

 

Men:  Who to Turn To If You Can’t Save Your Marriage and Divorce Is Imminent

Men, we know that it can be rough on you when you want to save your marriage, but you feel like there are issues that just can’t be resolved. When you reach that point, you may wonder what you should do to plan for the future.  Who should you turn to? This article will help you navigate the troubles that may come your way soon.

It’s never too early to educate yourself:  Consult an attorney who is experienced in divorce law.

Knowledge is power.  So, whether you’ve made the final decision or whether you are still in the mix of determining what to do, it’s never too early to consult with someone who can give you advice about your exact circumstances and assets. Here are some things you’ll want to discuss:

  • Children: discuss with your attorney how you can plan custody to best accommodate your work schedule and other commitments.
    • For example, what is your work schedule?  What is your spouse’s work schedule or does she primarily take care of the kids? Do you plan to move out of state?
  • Assets: Divorce is expensive for both parties because the assets will be split. Talk with your attorney about the assets you have and your preferred means of managing them in a divorce.
    • For example, do you want to sell the home or keep one spouse in it? Do you have a preference on dividing the cars?  Are there assets that have sentimental value or are meaningful to you in a way that goes beyond their monetary value?
  • Debts:  If you have school loans, car loans, credit card debt, mortgage debt, or any other kinds of debts, you need to plan for the division of these debts with your attorney.
    • Consider in advance any court costs that will be involved in the divorce, mediation fees, and legal fees.

Protect Your Mental Health and Amp up Your Physical Well-Being:  Turn to friends and family and other trusted advisors for encouragement.   

Plan for a tough time ahead. No matter how bad a marriage is, a divorce can still take a toll on both parties because it is a change. Things will be different.

  • Understand and anticipate powerful emotions.  During a divorce you may experience greater emotions of isolation, discouragement, despair, anger or bitterness.  Prepare for this by bolstering your own mental toughness.
    • Reach out to old friends. Go to lunch or the gym. Remember the good times.
    • Although you may not want to tell your family that divorce is imminent, it doesn’t hurt to contact them and renew family bonds so that those relationships are close for when you need the support.
  • Amp up your physical health. It’s common for men to forego their regular exercise or to take on bad eating habits during stressful events in their lives, and a divorce is commonly a stressful event that takes its toll on men’s health.
    • Do what works for you to keep yourself feeling good. Whether that’s setting fitness or nutrition goals, or working out with a buddy, or finding more time to be in nature, or running, etc., you need to do what works best for you personally to maintain good health.

Hard times are an inevitable part of a man’s life, and many guys will confirm that a divorce can be challenging.  If you prepare yourself with knowledge, protect your mental health, and amp up your physical well-being, you will be in a strong position to make the most out of the divorce process.

 

How Do We Divide Our Assets and Debts in Divorce?

Your attorney can help you with a plan for dividing property and debt, but here are three important steps to help you on the path to a successful division of assets and debts:

  1. Write down all property and all debts.

Making a list is the first step of dividing everything fairly. Here’s a list to get you started thinking through your own finances:

  • Real property – your home, land, investment properties
  • Other property – Furniture, jewelry, cash, technology, automobiles, recreational vehicles
  • Wage earnings
  • Investments – stocks in an individual account, Roth IRA, 401K
  • Health Saving Accounts
  • Pensions
  • Mortgage
  • Student Loans
  • Credit Card Debt
  • Automobile Loan
  • Loans from family members
  1. Label each as community property or separate property
  • Community property – assets, income, or debts earned or acquired during the marriage.
  • Separate property – property owned before the marriage, property inherited or gifted to one part during the marriage, money from the rent or sale of a separate property, money earned while legally or physically separated from the spouse, and items given from one spouse to the other with the intention of designating it as separate property.
  • Common question: What do we do with an asset that can’t be divided physically? For example, do we have to sell the house in order to divide the money?  The answer is that each spouse has to get assets equivalent in value, so in lieu of selling the house, one spouse may keep the house and the other would get the value of half of that asset.
  1. Place a value on each asset and debt.

In preparing for a divorce, it may be helpful to see if you and your spouse have the same estimation of the value of assets and debts or if there is a large disparity. For your list, make an estimate of the value of each item.

  • Be aware that some items may have more value than you realize. For example, a pension plan can be very valuable and special rules apply to pension plans. In this situation, consulting with an attorney on the value and division of the pension plan can be important.

5 Questions Almost Everyone Asks About Divorce

Divorces range from simple to complex, but almost everyone who is considering a divorce will ask some basic questions.  This article will walk you through five common questions, and provide the answers you need to start thinking about the best way to approach your divorce.

  1. What are the options for ending a marriage in California?

Divorce, legal separation and annulment are the options for changing a marriage or domestic partnership relationship.

  1. Does the person who gets to the courthouse first have an advantage in a divorce?

Know that the officer will write down everything you say, so don’t admit to wrongful conduct if it’s not true.  At the same time, you do not want to get into a heated debate with the officer.  Express yourself politely.  For example, if an officer asks you if you know you were speeding, you could respond with “No, I did not know that,” or you could say, “Thank you for letting me know why you pulled me over, but I did not believe I was speeding.”  You have a right to remain silent, and it is often the best course of action to avoid talking as much as possible.

  1. Does the other person have to agree to a divorce? Do I have to prove they did something wrong?

California is a “no fault” divorce state, so you do not have to prove that the other person did something wrong. The spouse or partner does not have to agree to the divorce. If that person refuses to participate, you can still get a default judgment which will allow the divorce to be final.

  1. Will a divorce affect my immigration status?

The answer to whether a divorce will affect your immigration status is very case specific.  The short answer is that it may or it may not, so it would be wise to consult with an attorney on the specifics of your situation.

  1. What types of issues typically arise in a divorce?

Each case is different, but these are the issues that often arise in a divorce situation, so you’ll want to discuss these topics with your attorney:

  • Division of your money, real property, investment accounts, etc.
  • Responsibility for paying debts
  • Spousal or partner support
  • Child custody and visitation
  • Child support

 

 

 

 

How to Go After a Noncustodial Parent for Child Support

We’ve all heard of child support, which is the amount of money a court orders one or both parents to pay to support their children’s living expenses.  A common complaint is that one parent is not fulfilling his or her child support obligations.  This article will explain the procedure for enforcing child support and provide information on free resources to assist in the process.

  1. Get an Order. An Order is a written document by the Court that shows entitlement to child support.  A verbal promise from one spouse to another is not an Order.
  • If you and the other parent agree. If you do not have an Order, but you and the other parent can come to an agreement about the amount, then you memorialize that in writing and then the Judge will approve it if he or she feels it is in the best interest of the child.
  • If you and the other parent do not agree. If you do not have an Order, and you and the other parent cannot come to an agreement, then you will have to file an action for child support.
  1. Motion for Contempt. The next step, once you have the Order in hand, is to file a Motion for Contempt.  You have probably heard of being “in contempt” of court in a criminal matter.  In a civil matter, such as a divorce, a Motion for Contempt basically asserts to the Court that the other party has not obeyed the Court’s order.  If the Judge grants the Motion for Contempt, then the other parent can be ordered to pay fines or serve jail time.
  • Time limit. Timing is very important!  Be sure to file your Motion for Contempt within three years from the payment is due to avoid having the statute of limitations run.
  1. Driver’s License Penalties. If the payment is more than 30 days late on child support, the DMV may refuse to issue or renew a drivers’ license.  If the payment is more than 120 days late for child support, the State of California can revoke the non-paying parent’s license.
  1. Can interest be charged on missed support payments?  Yes, interest accrues at the rate of 10% per year.
  1. Available Resources.
  • If you are looking for other government resources relating to child support, visit childsup.ca.gov. This website is run by the California Department of Child Support Services and may have helpful resources to assist you.

 

3 Things You Need to File For Divorce with the Court in California

If you are ready for a divorce, you may wonder about the essentials needed to get the process rolling and the steps that must be taken to reach your goal.  This article will discuss three essentials for getting a divorce in California.

  1. Time. There is a mandatory waiting period in California that prevents any couple being divorced in less than 6 months. The divorce can take longer, but it can’t take shorter.  The starting point is the date the person officially notifies the spouse or domestic partner about the divorce.  You can get your paperwork in sooner and get the judgment approved, but the divorce will not be final until the waiting period has run.
  • Summary dissolution. You may be wondering if you can avoid the waiting period by obtaining a summary dissolution instead of a divorce.  The answer is no, a summary dissolution does not have a shorter waiting period than a divorce.  Y
  1. You will have to pay a fee to file the divorce papers with the court, unless you qualify for a fee waiver.  You can qualify for a fee waiver if 1) you are receiving public benefits, 2) if you household income before taxes is less than the minimum amounts designated by the court, or 3) if the court finds that you don’t have enough money to pay for your household’s basic needs and the court fees.
  1. Residency in California. A court has to have jurisdiction to hear your case, which is why residency is important.  It would not make sense if you and your spouse both resided in New York, and you asked a judge in California to have jurisdiction over a California divorce.  Either you or your spouse must have lived in California for the last 6 months and the county where you plan to file the divorce for the last 3 months.  If you and your spouse have lived in different counties for the last 3 months, then you can file in either county.  You can still file for a legal separation if you haven’t been in California for the last six months, and then you can file for divorce when the time has expired.

The essentials are fairly straightforward:  time, money and residency.  The details of the divorce can be more complex, so consult with an attorney on your specific facts.

 

3 Things to Know About the Discovery Process for a Divorce Case

If you are going through a divorce, you may hear terms that you don’t understand.  One of the terms that is heard often is “discovery.”  This article will explain the basics of discovery – what is discovery, what types of methods, and what types of information are produced– so that you can understand the procedures and terms that will be used in your divorce.  

1. What is discovery?

  • In legal cases, both parties need information.
  • The process for obtaining this information is called “discovery.”  
  • One question clients often ask is whether you can hide information or lie about it or say that it’s too private to disclose?  
    • In general spouses are under obligation to make a full and accurate disclosure and failure to do so can result in a Motion to Compel and ultimately sanctions.  However, your attorney is in the best position to assists you in properly responding in the discovery process.

2. What are the different means of discovery?  Here is a sample of some of the most used methods of obtaining information in the discovery process for a divorce case:

  • Depositions – interviews with parties or non-parties.
  • Interrogatories – written questions to the other party.
  • Requests for Admission – similar to an interrogatory because it is in writing, but with these you are not asking for information, you are asking for it to be admitted (i.e. confirmed or ratified).
  • Inspection Demand – where a party wants an opportunity to review certain documents or things.
  • Request for an Income and Expense Declaration. If support has been ordered (child, family or spousal support), then one party can use this to obtain production of a current income and expense declaration and income tax returns.

3. What types of information are typically discoverable in a divorce case?  The range of information that can be gleaned from discovery is very large.  In general, it covers any unprivileged information that is relevant to the case. In layman’s terms, it’s relevant if it could be admitted as evidence in the case or if it could lead to relevant evidence in the case.  Here are a few examples of the types of information that could be requested in discovery:

    • Employee payroll information – since this is important to proper division of community property and to determine child support and spousal report, this information is typically part of the discovery process.
    • Business Records or tax returns — If one of the parties has a business, then the information about the value of the business and its assets will be important to determine.
    • Information about where the child is – If one parent does not know the whereabouts of one or all of the children, this information can be obtained in discovery.
    • Domestic violence convictions – This type of conviction impacts the safety of the child.  Often one parent is aware of the history of child abuse or domestic violence of the other parent, but if not, this information could be found out through discovery.

 

5 Things You Should Know About Domestic Violence

If you are facing domestic violence charges or if you are a victim or a witness in a domestic violence case, you may have some basic questions.  

Can the victim “drop the charges”?  No, in a criminal case the victim is not the person bringing the charges.  In a civil suit, the plaintiff can choose to dismiss the case.  In a criminal case, the charges are brought by prosecutor, and the judge has the power to dismiss the case. The prosecutor has to have enough evidence to be able to convict the defendant, so the victim’s testimony may have an impact on the prosecutor’s ability to convict.  However, in many domestic violence cases, the prosecution has pictures, statements from the victim which may be admissible due to the particular circumstances, or other types of evidence that can be used in spite of a victim’s reluctance.      

Do the defendant and the victim have to be married for the crime to count as domestic violence?  No, the defendant and the victim just have to be in an intimate relationship (which includes but is not limited to marriage).  For example, domestic partners, currently or previously dating, living or lived together, have a child together can all qualify as an intimate relationship for a domestic violence charge.

Is domestic violence a felony or a misdemeanor level crime?  Each case is unique and the prosecutor determines the charges.  There are multiple different types of specific crimes relating to domestic violence.  In general, the extent of injury involved is one factor the prosecutor uses in determining how to charge, and the second factor is previous criminal convictions.  

Are there any possible defenses to a domestic violence charge? Yes, there are many potential defenses, and you should seek legal advice on the facts of your specific case. Self-defense is one common defense, where the defendant claims that he/she reasonably perceived an imminent threat, had a proportional response and was not the initial aggressor.  False allegations for manipulating child custody or divorce proceedings.  Here, the defendant shows that the witness has a motive to lie about facts, and did in fact lie about them.  Another tactic for winning these types of cases is to attack the level of proof presented.  The prosecutor must prove the crime beyond reasonable doubt and many domestic violence cases leave room for significant doubt about what was said and done. Another common defense is to show that the conduct was not willful, in the instances where a true accident occurred.

Is a domestic violence allegation a big deal? Yes, it can be, and it’s likely that you are going to want to hire an attorney to vigorously defend you.  Fines can be up to $6,000, and on rare occasions with enhancements even higher.  Penalties can include up to a year of jail for misdemeanors and several years for felonies.  Convictions can have consequences for your career as well, so it’s important to take a domestic violence allegation seriously.

 

3 Most Common Financial Questions When Hiring a Divorce Attorney

It has been said that there are no right answers to the wrong questions, so the first step in making your divorce process work for you financially is to ask the right questions.  This article will outline a few of the most important financial questions when hiring a divorce attorney.

1. What is the structure of the fee agreement?

Your lawyer should have you sign a fee agreement that lays out how you will be billed.  Understanding this agreement is extremely important.

Ask about the retainer.  The retainer is like a down payment that you pay up front, and it will be used to cover the fees as your case progresses.  

Ask whether you will be billed hourly or flat fee.  If you are billed hourly, then you will obviously be billed for the attorney’s time, but what isn’t obvious is how this can add up and how you can work with your attorney to keep costs down.  

Ask about who will work on your case, and how you will be billed for each attorney or staff member’s time.  Find out how much you will billed for the paralegal or other support staff.  If you want only a particular person or group to work on your case, you need to put that into the agreement because otherwise the default is that firms may utilize various people to work on your case and you may be paying to re-educate one attorney about issues another one has covered.

2. What kind of cost estimates can be anticipated?

Your attorney will very likely be unwilling to get pinned down to a definitive cost estimate of the overall divorce because your ex-spouse is a wild card that can lead to lower or higher costs depending on what they decide to do.  However, if you push for specific answers to smaller questions, you may be able to get a reasonable understanding of the costs that will be involved.

Does your attorney anticipate fees from any other professionals?  What are the typical ranges for these people– i.e. counselors, investigators, accountants, appraisers, etc?

What has been your attorney’s experience in terms of costs in prior cases that he or she has handled?  For example, you can ask about cases where the spouse was cooperative and where the spouse was uncooperative, where custody was an issue, where certain types of assets were involved, etc.

3. How can I keep costs down?

You are the person who will be in touch with your attorney the most.  Find out your attorney’s preferences and how to save his or her time.  

Find out whether your attorney feels that it will be more cost effective to communicate with him or her via email, text, calls or in person.  Focus on the most cost-effective ways of working together. 

Find out what kind of document organizations works best for your attorney.  If you make sure that any documentary evidence you have is assembled and summarized in an organized manner then you will save your attorney time and therefore save yourself money.

Are there things you can do yourself to save attorney time?  You may want to find out if there are tasks relating to your case that your attorney can delegate to you to save on cost. Your attorney may have staff set up to do non-legal tasks, but it never hurts to ask whether there are things you can do to keep costs down. 

You can expect that your divorce will have a significant financial effect on you, your ex-spouse, and your children.  Don’t be afraid to ask questions about the process and educate yourself on how you will be billed, what you can anticipate, and how you can minimize the impact to your financial bottom line. 

What Is the Typical Legal Procedure for a Standard Divorce

When you are embarking on a journey, it is important to have an overview of where you are now and where you are going.  Similarly, with a separation, divorce or an annulment of a marriage or domestic partnership, an overview of the system will help you plan ahead.  This article will give you a view of a big picture, but be aware that this is a generalized summary that will certainly vary depending on the unique facts of your case, your assets and your family.  

1. Petitioner Files Paperwork.  The Petitioner is the person who files the paperwork to get the divorce process started.  The forms needed to start your case in California can be found at this site:  http://www.courts.ca.gov/1229.htm

2. Serve the Forms.  The other party (Respondent) needs to know what paperwork is filed.  To accomplish this, a person serves the forms to the Respondent.  The Petitioner can’t serve the forms themselves because the Petitioner is a party in the case.

3. Respondent Responds.  The Respondent has 30 days to reply to the paperwork that is served.  There are 4 possible scenarios here:

  • Respondent Doesn’t Respond.  The Petitioner waits 30 days and files the appropriate paperwork for a Judgment.  
  • Respondent and Petitioner Work Out a Written Agreement. Respondent doesn’t respond but the Petitioner files the written agreement between Respondent and Petitioner and the paperwork for a judgment.   
  • Respondent Files a Response and Written Agreement (“Uncontested Case”).  This is the “uncontested case,” where one of the parties files and Appearance, Stipulation and Waiver and a Proposed Judgment.
  • Respondent Files a Response (“Contested Case”).  The Respondent files a response, but the parties can’t agree, so it proceeds to the next step toward trial.  

4. Disclose Financial Information.  Both parties are required to fill out disclosures of financial information within certain timeframes. This is where you submit information, and you must not withhold information or be dishonest about any information.

 

5. Orders.  During the process, either party can request temporary orders relating to child support, spousal support, custody, etc.

 

6. Mediation.  Mediation is where an attorney or an arbitrator assist the parties in seeing whether they can come to an agreement on important issues such as dividing the assets or time with the children.

 

7. Trial Preparation and Trial.  There are various steps that can lead to trial.  The discovery stage is where parties are trying to get more information from each other.  They can do this with interrogatories, which are questions posed that are required to be answered.  Requests for admissions is where you submit a statement to the other side that they have to affirm or deny.  There are also requests for production, where certain documentary evidence can be requested.  Deposition is sworn testimony where a person is asked questions while they are under oath.  These steps help the parties prepare for a trial, where the judge will make a decision on the issues presented.

 

8. Final Judgment and Timing. Your divorce will be finalized by a document that is signed by a judge.  This is when the proposed Judgment that was filed by one of the parties is signed by the Judge and becomes a Final Judgment.  Be aware that in California, you have to wait until 6 months after the case is filed and the Respondent has been served before the Judgment is Final.

 

9. Additional Resources.  This is just a primer on the divorce process, but there are many resources for more information.  One very helpful resource can be found at http://www.courts.ca.gov/1225.htm.