Category Archives: Community Property

The Petition – Parts 7 (d), (e), (f)/(g), and (h); Part 8

January 20th, 2015

The Petition breakdown wraps up today.  The Judicial Council updated the Petition and Response as of January 1, 2015.  The information contained in the pre- and post-updated forms are (for the most part) the same.   However, in seeking to complete the task at hand (a walk-through of the Petition), the final components are briefly discussed below.

Part 7(d) (Parentage)

If a child is born after marriage, the child is considered of the marriage and the child of the two parents.  Fam. Code § 7541.  If a child is born prior to the marriage (to the parents), the Petitioner (or Respondent) can request that the court find the pre-marriage child a child of both parties.  This is in lieu of a separate parentage action.

Part 7(e) (attorney’s fees)

Payment of attorney’s fees in conjunction with a family law matter is governed by Family Code Sections 2030-2034.  The Court looks at a number of factors including the requesting party’s need and the other party’s ability to pay.  These are not the only factors, and the Court is also required to review the level of difficulty of the case as well as the spousal support factors (discussed below) as they relate to the payment of fees.

Parts 7(f), (g) (spousal support)

Temporary and long-term (or permanent) spousal support will be discussed in a separate blog post.  The Court is required to review a number of factors in determining post-judgment support.

Part 7(h) (property)

Previous blog posts described the difference between community property and separate property.  The Petitioner and Respondent can ask the Court to award community property to him/her and confirm his/her separate property to him/her.

 Part 8 (child support)

Child support will be addressed in a separate blog post.

Continue to check back to this blog for further information on support (child and spousal) as well as other news and updates as they relate to family law in California.

Property Division – 1 Billion Dollars?!

November 12th, 2014

In Oklahoma this week, a court ordered a husband to pay approximately $1,000,000,000 in “property division alimony” to his former wife.  Click here or here for the complete story.  While California does not have “property division alimony,” the case provides a good starting point with regard to property division and the valuation of party’s services to a community property business.

In an earlier post, the blog discussed community property and how it is divided equally at dissolution. Before dividing the asset, the court needs to how to value it.  In the Oklahoma case, one of the questions was how to value the community interest in an energy business started by Husband.  Husband’s argument was that the business took off because of the inherent nature of the business.  Wife countered that he made his millions because of his business skill and acumen.

In California, Husband’s tact would be known as the Van Camp approach; Wife would argue for a Pereira approach.  In general, a party argues for the Van Camp approach when it is the initial investment and not the personal efforts that grew the asset while the Pereira approach would focus on the personal efforts of a party driving the growth of a particular asset or property.  Pereira tends to favors the community while Van Camp favors the initial separate property interest (attributing the growth to that party’s separate property).

The Oklahoma case appears to have rewarded the community and based the company’s growth on the husband’s “skills and efforts” and less on luck and the increase in oil prices.  If you are facing a dissolution and either you or your spouse run a small (or extremely large!) business, be sure to talk to an experienced family law attorney to determine the best and most favorable approach to valuing that business prior to the division of community property.

The Petition – Part 5 – Community Property

May 8th, 2014

At Part 5 of the Petition, the Petitioner can identify his or her separate property.  Community property is:

Community property is subject to equal division by the Court.  Family Code Section 2550.

If you are unsure about the characterization of certain property, be sure to talk to an experienced family law attorney.

The Petition – Part 4 – Separate Property

May 2nd, 2014

At Part 4 of the Petition, the Petitioner can identify his or her separate property.  Separate property is:

  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.  Family Code Section 770(a);  and
  4. The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse. Family Code Section 771(a).

You can ask the Court to confirm your separate property to you (and the Respondent’s separate property to him/her).  Separate property is not subject to equal division as is community property (see next post).  However, your separate property will be considered if long-term spousal support is an issue.  Family Code Section 4320(e).

If you are unsure about the characterization of certain property, be sure to talk to an experienced family law attorney.

Lottery and Divorce

April 28th, 2014

An Indiana lottery winner was ordered to share some (but not half) of his lottery winnings with his spouse.  The parties had been living separate and apart for several years, but neither had filed for a legal separation or divorce.  Click here for the complete article.

This blog previously discussed what it means to live “separate and apart”.  According to the Indiana Court, during six years of separation, the Indiana couple “spoke only two or three times, never commingled assets, had separate bank accounts, and generally lived as single individuals.”  Had the parties lived in California, the lottery winner would have likely had a better chance of keeping the lottery winnings to himself (though he could have been ordered to pay support (depending on a number of other factors)).

In another lottery and divorce case from 2001, a California wife tried to hide the fact she won the lottery from her then husband.  He learned of the winnings after the divorce was finalized.  Needless to say, he returned to Court.  Because Wife intentionally withheld information regarding her winnings (in violation of her fiduciary duties owed to Husband), the Court ordered that ALL winnings be turned over to Husband.  In re Marriage of Rossi (2001) 90 Cal. App. 4th 34.

If you have a question about filing for divorce or disclosing assets, be sure to consult with an experienced family law attorney.

The Petition – Part 2 – Statistical Facts – Date of Separation

February 14th, 2014

In Section 2 of the Petition, the Petitioner lists the Date of Marriage and the Date of Separation (“DOS”).  These dates are important and can impact spousal support and the division of community property.  Most people can agree on the Date of Marriage.  But what is the DOS?

Before we answer that question, why is it important to know that date?  A longer marriage is a factor to consider in the length of time that a party may have to pay spousal support.

Also, property acquired (i.e. money earned) during marriage is community property (subject to some exceptions that are beyond the scope of this entry) and therefore subject to equal division.  However, money earned after the date of separation is that person’s separate property.  “The earnings and accumulations of a spouse … while living separate and apart from the other spouse, are the separate property of the spouse.”  Fam. Code § 771 (a).  (emphasis added)

But what does it mean to live “separate and apart”?  The Court’s have said that separation requires not only a parting of the ways with no present intention of resuming marital relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship.  In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730, 736.  A court must look at both a subjective and objective component.  In re Marriage of Norviel (2002) 102 Cal.App.4th 1152, 1158–1159.

The subjective component examines whether either of the parties harbors the subjective intent to end the marriage.

The objective component examines whether there is objective conduct evidencing and in furtherance of that intent.  Id.

The California Supreme Court will address this very issue later this year in In Re Marriage of Davis (2013) A136858.  Click here for an article on this case.

What objective conduct is the Court looking for?  In In Re Marriage of von der Nuell (1994) 23 Cal. App. 4th 730, though the parties physically separated years before, they a) maintained joint checking accounts, b) acquired joint title in a car, c) spent significant time together, d) went on vacation together, e) sent cards to each other, and f) maintained sexual relations.  Thus, though Wife subjectively decided the marriage would not work, the objective conduct was insufficient to find a date of separation matching that subjective intent.  Even returning to the family home to do one’s laundry may extend the date of separation.  In Re Marriage of Bagary (1977) 73 Cal. App. 3d 444.

Before entering your Date of Separation on your Petition (or Response), talk to an experienced family law attorney.

 

 

 

Engagement Rings – Mine, yours, the devil’s?

December 5th, 2013

Engagement rings are in the news this week.  The Huffington Post reports on one gentleman’s attempt to sell a used ring.  That angry seller got his ring back – but is that always the case?

It depends.  Are the parties disagreeing about the ring before the marriage takes place or after the parties have married and are now getting divorced.

Before Marriage

If one person gives a ring to his intended betrothed (and women can give rings to men; and with same sex marriages men can give to men and women to women), and the wedding is called off, there is a law for that.  California Civil Code Section 1950 says that if the recipient calls off the wedding, the ring giver can get it back.

After Marriage

In dissolution (divorce) proceedings, the parties divide their community property, and each party keeps his own separate property.  A ring, received as a gift before marriage (and thus before there is a community), is likely to be considered the recipient’s separate property, because it was received prior to the date of marriage.  See Fam. Code Section 770(a)(1).  That is not to say the parties cannot negotiate for a different outcome.

If you have questions about rings or pre- or post- nuptial agreements or the division of community property, be sure to speak to a qualified family law attorney.

Post-Judgment: do’s and don’t’s

November 19th, 2013

After parties reach a Judgment in their dissolution (divorce) either by trial or settlement agreement, they may not necessarily be done dealing with each other.

DO’s

Modification:  Parties may return to Court if circumstances change.  If a party’s salary changes and the parties cannot reach agreement on a new support amount, one party can file a post-Judgment Request for Order to modify support.  One party may want to move from the area and will file a Request for Order to modify the visitation schedule and/or custody.

Appeal:  A party that is unhappy with the Judgment can also appeal a decision if the party feels the Court erred in deciding the facts or applying the appropriate law.

Enforcement/Contempt:  If one party will not comply with the Court’s order, the other party can file a Request for Order to enforce the terms of the judgment (i.e. have the Court sign a legal document as an elisor) or ask for the party to be found in contempt (i.e. for failing to pay court ordered support).

Co-parenting or Support or Follow-up:  The parties need not return to Court.

  • Parties may have minor children that they will continue to co-parent.
  • One party may be ordered to pay the other child support or spousal support on a monthly basis.
  • Parties may need to sign subsequent legal documents (i.e. inter-spousal transfer deed) to comply with the Judgment and the division of the community property.

Be sure to talk to a qualified family law attorney if you have questions or concerns related to a post-judgment matter.

Don’t

Giving your ex- “the finger”:  The ex-husband in this story from Michigan likely did not speak to his attorney.  In California, he may not be violating the terms of his divorce judgment.  However, he may be violating California law against spite fences.  Whether legal or not, permanently giving your ex- “the finger” may not be the best way to fully extricate yourself from your ex-spouse’s life and allow you to get on with your own life.

A House Divided – Literally

September 14th, 2013

A family law judge in Spain has ordered parents to divide their family home in half.  The judge found that dividing the family residence in half was in the best interest of the parents’ two daughters, ages 6 and 7.   Click here to read in today’s New York Times.