Divorce and property division california
However, if the assets of the inheritance are commingled, perhaps in a bank account, or if both people live in an inherited residence, then it may be possible to claim that the inherited assets have become community property. In cases where a home was bought before two people married, if both people live in the home during the marriage and both contribute to mortgage payments, then the case can be made that the house is no longer separate property, but community property instead. The issues of community property vs. There are many factors that determine if, how much and how long one person will need to pay in spousal support to the other in a divorce.
How Are Property and Debts Divided During Divorce? | Nolo
Spousal support is not mandatory in California divorces. Courts have considerable leeway when deciding whether or not to grant spousal support and to decide the duration of the support as well. When spousal support is initially requested, a calculator will determine temporary spousal support, but the court must take into consideration many other things in making a final judgment regarding spousal support or when there is a request to modify support as well.
Spousal support can be a fixed term, open ended especially in marriages of long duration or can be modified or terminated in cases of remarriage or death. Few issues in a divorce are more contentious than those regarding child support.
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However, California divorce laws dictate that child support is calculated under a formula established in state Family Code In addition, the amount of parenting time spent by each parent is also an important factor as well. Part of the reason that child support is one of the more confrontational issues is that one or both of the parents may not accurately release their current financial information. When it is suspected that this is the case, significant delays can take place. In some cases, a parent may fall behind on child support payments, or they may completely disregard what the law says and what the court has put in place.
When this happens, the other spouse can seek a court order compelling the parent to pay the required level of child support. This will apply to both legal custody and physical custody. Courts will use many factors to determine this:.
Dividing The Family Home in a California Divorce
For this reason, a big part of the divorce process is coming up with a Parenting Plan and submitting it to the court for approval. A Parenting Plan will spell out which parent will have the child and on what days and times this will be the case. Although California is a no-fault divorce state, when one of the spouses has a substance abuse problem, it can impact a divorce, specifically as it relates to child custody and visitation issues.
Substance abuse can also affect a division of assets when it is determined that one spouse or the other spent considerable marital resources on substance-induced behavior. The same can be said for the impact on spousal support as well. Before it can be introduced as a factor, a substance abuse problem must be documented and proven. This can be done by testing, the testimony of other family members, representatives from social services agencies or other parties who have an interest in the outcome of the divorce and can provide additional insights.
Bifurcation means that both parties in a divorce can legally declared as a single person while the other issues in their divorce are still being worked out. It does not affect things such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized. The spouse requesting the bifurcation must ask the court for a separate trial that will deal only with the issue of marital status. A judge will not grant a bifurcation trial if the minimum waiting time for divorce in California—six months—has not passed since initial divorce papers were served.
Judges will also demand a strong reason why a spouse is requesting bifurcation. If you are granted a bifurcation, and you took the last name of your spouse, you can legally restore your name to your maiden name. Another thing to be aware of is that if a spouse maintains health insurance for the other, then he or she must continue to provide coverage, when possible.
California divorce laws stipulate that spouses must disclose to each other the type and amount of all community and separate assets and debts. This is required so that an equitable division of assets can take place.
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Each spouse will need to complete a series of forms, and each one is also required to file an income and expense declaration as well. If you submit a disclosure but later determine that you inadvertently left out an asset, you can file an amended disclosure. Doing this before a court judgment regarding assets is determined is much easier than attempting to do it after a judgment is rendered. When one partner in a marriage files a petition for divorce, the other party must file a response with the court within 30 days unless the two parties reach an agreement.
Dividing Property and Debt During Divorce FAQ
When no response is filed, it is considered either default or uncontested case. When a response is not filed, that spouse is essentially giving up their right to have a say in any of the elements of the divorce. More than likely, in the absence of a response, what is in the petition papers is likely going to be what the court orders. If there is no response, a default action is not automatic.
The spouse must fill out and file a request to enter a default, a declaration in support, and a proposed judgment, with the court.
In addition to these forms, depending on the circumstances of your divorce, you may also still need to file additional forms seeking child custody and support, spousal support, and property division, as well as any other pertinent forms unique to your case. Even after all of these actions are taken, a spouse may still appear in court and ask for a relief from default judgment. Acceptable reasons for this are excusable neglect, making a mistake and being surprised by the default action.
Domestic violence can be a particularly ugly part of a divorce proceeding, and as such, law enforcement officials have strong safeguards in place when the appearance of domestic violence is present. Studies show that domestic violence is the largest single cause of injury to women in the United States, with an act of battery on a woman taking place every 9 seconds.
Community Property in California
California family law states that you can be considered a victim of domestic violence if you had or have one of the following relationships:. If you are a victim of domestic abuse, the first thing you must do is take your children and leave the residence where you and the abuser are living. If you are in immediate danger, call the police. You should document any injuries you or your children have sustained, and then seek a domestic violence restraining order DVRO from a family law court.
Temporary restraining orders are granted on an emergency basis and take effect immediately.
High Asset Divorce Attorneys Explain Complex Property Division in California
They are short in duration and are put in place until a hearing can take place to determine if a permanent restraining order should be granted. Once put in place, this legal action will prevent the alleged abuser from taking any actions, such as assault, stalking or making any threats against you. It will also remove the alleged abuser from the residence, prevent them from buying a firearm and require them to pay for any abuse-related medical bills, lost wages, and possibly child and spousal support.
When there is documented domestic violence in a marriage, it will definitely have an impact on divorce proceedings in California, especially as it relates to custody, child support, spousal support and visitation right, among other things. If you are the spouse who will be losing health insurance coverage , then you should disclose the cost of what a plan will be for you so that they may be figured into any spousal support ruling. If your spouse keeps working for the employer and they have at least 20 employees, then you can stay on COBRA for up to 36 months maximum.
Evidence of infidelity or adultery has no bearing on whether or not a divorce will be granted by the courts. However, adultery can have an impact on a divorce in California if it can be shown that the adulterous spouse spent community financial resources on his or her lover. In this case, a judge can order the offending spouse to be held accountable for reimbursing the marital community resources. In general, adultery does not have an impact on child custody, unless it can be shown that the adulterous relationship has a severe negative impact on the children. There are special laws in place when it comes to one spouse or the other who is currently in the military and who will be going through a divorce.
These are special rules that supersede state law in many instances as part of the Servicemembers Civil Relief Act. The Act was put in place to ease the legal and financial burdens of military personnel and their families who face the challenges of active duty.
A spouse or the active military servicemember must have been a resident of California for at least six months and a resident in the county where they will file a petition for divorce for at least three months. The divorce can also take place if the spouse or the servicemember is stationed in California. The servicemember does not need to be in California when the petition is filed, but they will need to be personally served or be notified by certified mail no matter where they are stationed.
If they choose not to contest the divorce, they will not need to be served as long as they sign and file a waiver acknowledging the divorce. In a contested divorce, under the Soldiers and Sailors Civil Relief Act, a California court may choose to postpone the divorce proceeding for the entire time the servicemember is on active duty, and for up to 60 days following discharge. For military divorces, the grounds are the same as non-military divorces in California. All that is required is to claim irreconcilable differences. The same guidelines and calculations that are used for non-military divorces are also used when a servicemember is involved.
The main requirement for a retirement distribution to a spouse is that the couple must have been married 10 years or long while the service member has been on active duty. Looking for more great tips to help you get through divorce in California? Here are a few of our favorite resources:. Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. You can email him at jason survivedivorce. Please leave this field empty.
An Overview of Divorce Laws in California California divorce laws are governed by the California Family Code, a series of legislative acts that cover the complete spectrum of legal issues surrounding divorce in the state. Debts California is a community property state which means that any debts or assets acquired by one or the other spouse during a marriage belong equally to both spouses.
Division of Assets in California Because California is a community property state, there is a great deal of emphasis placed on making sure assets are divided equitably among divorcing spouses. Put the real property on the market for sale, if that is your decision. Upon the sale, pay off any outstanding mortgage. Divide the proceeds from the sale, 50 percent to each spouse. Address any imbalance that occurs in the overall property division scheme if one spouse keeps the property.
In other words, some other asset or debt is set aside for a spouse to balance any benefit or cost that the spouse who keeps the real estate obtains.