Divorce isn’t just emotionally draining, but physically exhausting as well, especially when it comes to property division. Divvying up marital assets has all the stress of a big, cross-country move, except worse, because if push comes to shove, you can’t just mindlessly throw everything into the trailer and hope it all gets there in one piece. According to California community property law, the life you’re splitting technically belongs to both you and your spouse equally, so trying figure out a way to divide it in a way that’s fair for both parties is a delicate, precise, and stressful process.
Luckily, you don’t have to figure it out all on your own. In this article, we’ll break down the basics of California’s community property laws, including how it impacts divorce, and what you can expect when dividing up property post-marriage.
California’s Community Property Laws
First off, California is a community property state, which is a fancy way of saying that all assets acquired during the marriage belong to the spouses equally. This includes paychecks, but can also refer to physical property, and anything else you might have purchased with joint funds—regardless of whose name is on the paycheck, bank account, or title. When determining community property, anything earned, purchased, or acquired during the marriage by either spouse goes into the joint pot.
Community property laws also extend to debt acquired during the marriage, meaning whatever debts are owned by one party, are technically owned by both (again, regardless of whose name is on the loan).
California’s Separate Property Laws
Of course, people don’t usually enter a marriage empty-handed. Even poor college students living on Ramen and Cheerios can usually point to a car, bike, or laptop in their name. These items would be classified as separate property, and—since they belonged to the individuals before marriage—they would also leave the marriage with whoever brought them. This concept includes property that was purchased with separate funds—say if you sold that beat-up car to buy a nice motorcycle after graduation. Following the money backward, that motorcycle would be considered separate property, since it was purchased with funds from property you brought into the marriage.
Similarly, gifts and inheritances made out to one specific individual would also be non-divisible upon divorce—even if they were received during the marriage. And, just in case anyone is curious, California law specifically states that, as an engagement ring was technically a gift acquired before marriage, it qualifies as separate property, and would, therefore, leave with its owner upon divorce.
Dividing Community Property
Because marital property is owned equally by both spouses during the marriage, it has to be divided up equally if it ends. An easy equation to figure out if you have exactly ten pens, and can give five to each side. But how does it work when you only have one house? One lawnmower? One set of authentic, Japanese sushi dishes?
The thing is, equal ownership and equitable division don’t necessarily mean everything will be divided 50-50. We’re not splitting babies here—lawnmowers definitely won’t work as well when chopped in half. Instead, the focus of a community property split is on making sure the division is equal in spirit, so to speak. It means that each spouse will walk away with half of the total marital property value.
So, that might mean you get the sushi dishes, while your spouse lays claim to the Thanksgiving china. All you have to decide next is if you’d rather have the lawnmower or the snowblower, and what you’re willing to bargain with, if your spouse ends up wanting the same thing.
Commingled and Transmuted Property
In a perfect world, all these community and separate property labels work great. But real life isn’t perfect, and none of us are as good at keeping track of expenses as we should be. So what happens if you can’t prove who owns what? What if the separate property gets mixed into the community pot? This is where commingled and transmuted property come into play.
Commingled Property
In California, assets that are both separate and community property are considered to be commingled property. This can be anything from a bank account that contains both separate and community funds, to real property purchased with mixed money.
For example, let’s pretend you didn’t have enough money from the sale of your car to buy that motorcycle. Let’s go further, and say the price was $1,000, but you only got $700 from your car, so you decided to draw $300 from the shared, marital pot in order to pay the reaming balanced. Now you’re good to go, but because you combined separate and community funds, the motorcycle would now be considered commingled property.
When splitting the value of commingled property, courts will try to follow the asset’s history back to its origins. If the money trail is clear, they’ll usually just divide the percentage amount accordingly. In our example, 70% of the motorcycle belongs to you outright, while 30% belongs to the marriage partnership as a whole. This means we can add another 15% ownership onto the seventy you already have (since half of all community property belongs to you, too). So, upon divorce, the motorcycle would be classified as 85% your separate property, and 15% your partner’s. In order to own it outright, you would need to find some way to make up that 15% to your spouse.
The conundrum of commingled property is a cautionary tale of why you should always keep good money records during your marriage. In our example, the percentages were pretty clear cut, but in cases where it isn’t so obvious, your motorcycle may end up “transmuting” into community property, if you can’t prove where the money came from.
Transmuted Property
At its most basic definition, transmuted property is simply property that has been “transformed” from one state to another. This is usually done on purpose, through a signed contract between the two parties (such as with a post-nuptial agreement), when couples want to change the status of a property from separate to community, or vice versa.
However, transmutation can also happen on accident. For example, if you can’t prove that the money for your motorcycle came from separate property funds, a judge might be forced to rule that the commingling of assets has transmuted whatever separate property ownership you had, into community property.
California Community Property Law Attorneys
After living together for an untold number of years, it’s understandably easy for people to slip into a routine, and stop keeping track of where their assets originated, making property division one of the most time-consuming tasks of a breakup. If you or a loved one are dealing with divorce, and have questions about how California community property laws will affect your specific situation, we may be able to help. Call us at (209) 989-4425, or get in touch online to schedule your consultation today, and let our team of experienced family law attorneys make sure your property division is handled with the utmost care it deserves.
For those who aren’t familiar with divorce, it can be surprising to get there and learn that there are actually a lot of options when it comes to calling a marriage quits. From the homemade, “do-it-yourself” divorce contracts, to uncontested, collaborative, and all the way to mediation, when it comes to divorce, couples actually have a wide variety of choices, aside from just going to court with judge and gavel. And of these different avenues, mediation is a pretty attractive option for couples hoping to avoid a long, drawn-out legal battle. Both because it can save time and money, and also because it keeps people from having to do things all on their own, a good middle-ground for everyone involved.
If you and your partner are thinking about alternative divorce court options, but don’t want the headache of having to bushwhack your way blindly through a D.I.Y. process, mediation might be just the thing. Here’s what you need to know about divorce mediation in California, and how it could work for you.
Divorce Mediation in California
To kick things off, divorce mediation is a formal meeting (or series of meetings), where both sides sit down to hash out the terms of divorce, under the supervision of a specially trained moderator. This third-party individual acts as a kind of referee during the conversations, guiding the couple through all the decision-making points necessary for finalizing their divorce. These individuals are trained in the law, and some are even former lawyers themselves, making mediation a great way for couples to explore all their divorce options in a less confrontational setting.
If your relationship with your spouse has not eroded past being able to communicate and negotiate respectfully, there are several benefits to choosing mediation over divorce court.
1. Saves Time and Money
One of the obvious benefits to mediation is the amount of time and money saved. By not going to court, couples can finalize their divorce much quicker—sometimes with just one session, completely bypassing the court’s already-overloaded schedule. And of course, less time spent with attorneys means more money in your pocket, overall.
2. Greater Control Over the Outcome
With few exceptions, judges are almost always willing to sign an agreement when the individual parties have compromised on their own. This means couples who mediate can pretty much dictate the divorce agreement however they want, including the terms of hot topic items like custody, visitation, and property division. A system works, because both parties understand that if they demand something that isn’t fair, the other side can always take it to the judge to decide.
3. Helps Family Transition
Divorce is hard on everyone involved but can be especially damaging when children are involved. Mediation is great, in that it bypasses a lot of the toxic finger-pointing and senseless contention that often comes with a court-ordered divorce. Children who see their parents working through problems in a constructive way will feel more secure and have an easier time making the transition into the family’s new normal.
4. Flexible, Confidential, and Non-Binding
The nice thing about mediation is that the proceedings are both confidential and non-binding. Meaning, if you can’t reach an agreement, not only is that okay, but you also don’t have to worry about settlement offers being used against you in court.
5. Your Attorney Can Sit In
Agreeing to work with your spouse in mediation doesn’t mean you have to ditch your attorney, either. Attorneys are allowed and even encouraged to attend mediation with their clients, though, having one present is not technically required. That being said, it’s still a really good idea to bring along your trusty family law attorney, and here’s why.
Attorneys and Divorce Mediation
They’re really expensive, so if you’re not required to have an attorney at divorce mediation, then why in the world would you? Why not just pocket the extra cash, and take your chances in the ring on your own? Well, there are actually a lot of reasons, but here are the ones we think are most important:
1. Training and Experience
With their extensive education and on the job training, lawyers are almost always better at representing an individual’s legal interests than they are on their own. And this is true, even for mediation. While your mediator has passed all the certification requirements needed to hold the job, they’re not technically required to be an attorney. Some choose mediation because of their good negotiating skills, and not necessarily because they’re legal experts. Between law school, the bar, and the competitive nature of the legal industry, your attorney’s knowledge of the law likely surpasses not only yours, but the average mediator’s as well, making them a critical member of your team spirit.
2. Your Attorney Has Your Back
Here’s the thing, no matter how qualified your mediator is, their number one priority is to find a successful resolution to the conflict. It isn’t you. This means, occasionally, your best interests might get sacrificed on the altar of compromise—and sometimes that’s necessary, we aren’t arguing with that. However, with an attorney present, you have the peace of mind in knowing that whatever is being sacrificed really is in your best interest, and not just the mediator’s success rate.
3. Someone to Shield You
Attorneys also make excellent armor for couples who are struggling to play nice. Because while agreeing to mediation is a good first step, divorce is still emotional, no matter which way the cookie crumbles. If you’re worried about the conversations escalating into a fight, try having your attorney do the talking for you. They’ll be able to express your perspective in a diplomatic way that (hopefully) won’t ruffle feathers or push buttons the way only your spouse can.
Divorce Mediators in California
In the end, no matter if you choose mediation, or head straight on into a full-blown court battle, individuals are always free to represent themselves. However, there’s a reason why Miranda rights are required to be read at an arrest before anything can be used in court, and that’s because the average citizen often doesn’t even know what rights they’re entitled to, let alone how to argue for them. So, while hiring an attorney might seem expensive, not having one means you run a high risk of making a lot of mistakes against your own interest—some of which could be irreversible, and end up costing you a lot more in the long run.
If you or a loved one have more questions about divorce mediation in California, we may be able to help. Call us at (209) 989-4425, or get in touch online to schedule your consultation, and together we can help tailor a legal strategy that will best fit your unique circumstances.
Mediation can be a time and cost-saving method of resolving divorce disputes, but it can also be tricky, especially when children are involved. If you and your partner have children and are considering divorce mediation, here are ten tips for making your child custody mediation be as successful as possible.
1. Bring Your Schedules
First thing’s first, come to mediation prepared. This means having a handle on not only your schedule, but your child’s as well, including school dates, extracurricular activities, holidays, and any other information that might go into scheduling decisions. Knowing these dates in advance will make your time in mediation more productive, helping you arrive at a conclusion more swiftly and efficiently.
2. Have a Proposed Time-Share
As far as schedules are concerned, it’s not just your current calendar that’s important, but your future endeavors as well. That being said, it’s a good idea to come prepared with a proposed custody plan and visitation schedule already organized. It’s highly unlikely your plan will automatically be approved by your spouse, so be prepared to make changes. Even still, having at least a basic outline will give the mediator a good starting place from which to work.
There are many online tools and apps available to help you with this process, and with the combined aid of these resources—along with your trusty family law attorney—coming up with a plausible solution does not have to be overwhelming as it might sound.
3. Know Your Alternatives
A good plan always has a good backup. When constructing your timeshare schedule, think carefully about all the elements involved, and prioritize your requests accordingly. Know what you’re willing to give up, and what you’re not. Don’t budge on something if you’re truly not comfortable with it, but also be ready with alternative scenarios, in the event your first option gets shot down. Successful negotiations favor the prepared, and having a thoroughly vetted list of preferred alternates at the ready can go a long way toward helping you be happy with the eventual outcome.
4. Listen to Your Mediator’s Suggestions
Despite all your careful planning, the fact is, your mediator will have much more experience than you in dealing with these types of situations, and throughout the day, they will likely bring up ideas for you to consider. Ultimately, some of these suggestions might not end up working out for you. However, listening to them with an open mind can not only help broaden your perspective but also help you avoid common pitfalls of other couples who have come before you.
5. Communicate Firmly, but Respectfully
During mediation, it’s important to be clear about what you want, but try to keep your emotions in check, and to communicate respectfully. Some people find it helpful to view mediation as a business meeting. As most of us already know, in work situations, it doesn’t usually pay to treat people—even the rude ones—with disrespect. The same mentality applies here. Communicate your desires and concerns firmly, but with respect, even if you are being treated poorly. Experienced mediators can usually see through the antics, and know when a request is being made in good faith.
6. Be Willing to Compromise
All that about being firm aside, it’s important to recognize that the mark of a good compromise is when neither party leaves completely satisfied. In “mediation speak,” that means it’s pretty much guaranteed that you won’t leave with everything you want. And that’s okay. You’re in co-parenting territory now, where sharing is even more critical to success than it was during your marriage. Be honest about your own shortcomings, and enter the proceedings mentally prepared to make realistic compromises.
7. It’s About Them, Not You
During the divorce process, pride can often cloud good judgment, making it easy for parents to confuse their own desires with what’s best for their child. Try to leave your ego and personal needs at the door as much as possible. Instead, be honest about what your child needs, and focus on making every decision in their best interest—even if it means not getting what you want, personally. In the end, you and your spouse know your child better than anyone, and whatever agreement you can reach as loving parents is far more likely to meet your child’s individual needs than if a stranger has to make those decisions for you.
8. “Ours,” Not “Mine”
Listen. We know it’s hard not to take cheap shots at your spouse whenever possible, especially when you’re hurting. But it’s important to remember that your child is not just yours. That child belongs to both of you. And chances are, if your spouse is fighting you on custody, then they probably love that child as much as you do. During mediation, try not to be petty. Avoid referring to your child as “mine,” but rather “ours,” and do your best to empathize with your spouse. Doing so can help make it easier to accept decisions that will be mutually beneficial to the whole family, even if they wouldn’t be your first choice.
9. You Don’t Have to Agree
Sometimes, despite everyone’s best efforts, an agreement can’t be reached through mediation. And you know what? That’s okay. Take the pressure off yourself to agree. If you’re not comfortable with the proposed solution, it’s okay to let the court handle things. Even though a judge might not know your child as well as you, they do have the benefit of looking into the relationships with an unbiased perspective, and sometimes that might be exactly what your situation needs.
10. Avoid Social Media
Regardless of whether or not you come to an agreement during divorce mediation, resist the urge to talk about what happened on social media at all costs. Actually, this wisdom can be applied to the entire divorce process. Despite how secure you think your profiles are, they’re never ironclad. And the things people post on social media can—and often do—get used against them when courts make custody decisions. Err on the side of caution. Be classy. Take the high road. And avoid spilling these details into the internet void. In the end, you’ll be glad you did.
Divorce Mediation Attorneys in California
Even if your divorce is amicable, the process of splitting a joint life can be incredibly complicated. Especially when children are involved. If you or a loved one have questions about divorce mediation, and how to prepare for a child custody dispute, our California family law attorneys can help. Call us at (209) 989-4425, or get in touch online to schedule your consultation today. Together, we can help your divorce mediation run more smoothly, and ensure the best possible custody arrangement for your child.
For those who have never attended court proceedings before, the prospect of “going to court” might be a little intimidating. After all, Hollywood certainly does a fine job of making it seem like an intense ordeal. However, before your imagination can start conjuring scenes from Law and Order, take a deep breath, and relax. In real life, “going to court” isn’t nearly as exciting—or stressful—as a day in the life of Jack McCoy. Especially for family law.
Still, it’s natural to have a lot of questions about what to expect. In this article, we’ll attempt to address some of those concerns, and give you an overview of what to expect when attending family court at the Stockton Superior Courthouse.
San Joaquin Courthouse Address
If you are getting a divorce in San Joaquin County, your paperwork will be filed through the Superior Court of California in downtown Stockton. This is also the place where all of your family court hearings will occur. The Stockton California Superior Courthouse is the tallest building in San Joaquin county, and, with a huge, glass façade that looks a bit like an inverse pyramid, it’s a pretty hard building to miss. The address is:
180 E. Weber Ave. Stockton, CA 95202
Trust us, you’ll know it when you see it.
San Joaquin Courthouse Parking and Transportation
Metered parking is available in front of the courthouse and along the surrounding streets. There are also several public parking garages in the immediate area, which charge hourly and only take cash. So, if you’re planning on using garage accommodations, make sure to plan accordingly.
If arriving via public transportation, the 23, 40, 44, and 51 bus lines all have routes that stop near the San Joaquin Superior Courthouse.
Inside the San Joaquin Superior Courthouse
As you step inside the main doors, you’ll be greeted with a giant map of the greater San Joaquin County area. A right will take you to a clerk area, where you can do simple tasks—such as pay a parking ticket—without having to go through a full weapons screening. If you take a left, you’ll find yourself in the building’s main lobby.
Unlike the dark, moody courthouses of Hollywood screen sets, the four-story glass atrium of the San Joaquin Superior Courthouse has an open, airy feel that the Law and Order set technicians wouldn’t know what to do with. Inside the atrium, you will find an information desk, with an attendant who can answer any questions you might have about your visit.
Choosing the Right Floor
All family court-related services are located on the fourth floor of the courthouse, so if that’s your destination, you do not need to check-in at the clerk area of the lobby. Instead, you may proceed directly up, via either the escalators—conveniently accessible right from the main lobby—or the elevators.
Screening
On the fourth floor, you will check-in, and be screened for weapons before being allowed into the courtroom. This is a safety measure meant to keep visitors and employees separate from the public, and to keep court proceedings as secure as possible. It may sound intense, but it’s not much different from an airport security line. For the screening, you will be asked for ID and will be required to walk through a metal detector. After that, you are free to locate your assigned courtroom.
Locating Your Courtroom
Calendar screens are available on each floor to help you find your assigned room and time. These monitors bear a striking resemblance to an airport’s arrival and departure board and are populated with lists of party names, departments, times, and case numbers for each particular room. Although your attorney will likely already have this schedule, it’s not uncommon for last-minute switches to occur, and these screens will help keep you apprised of both where the judge is at in your lineup, and of any changes that may have occurred.
When to Arrive
The San Joaquin Superior Courthouse website recommends that you arrive at least ten minutes early before your scheduled hearing.
Plan For a Wait
You should budget at least four hours for your hearing. This doesn’t necessarily mean it will take that long, but the court’s schedule is flexible, with sessions running from about 8:30 a.m. to 4:30 p.m. Although you’ll have a scheduled time slot within the day, these sessions often run long, and the judge isn’t always ready for you at your assigned time, often requiring you to wait it out.
Inside the Courtroom
With few exceptions, real-life courtrooms are nothing like the dark wood, moody spaces that Hollywood portrays. Even San Joaquin’s courthouse—which is state of the art, and could have been designed any number of ways—didn’t come equipped with Victorian-era woodwork and brass fixings. Instead, your courtroom at San Joaquin family court will look a lot like a cozy college classroom, lined with comfortable seating (or benches, depending on your assigned room), and a judge’s podium similar to the kind lectern you’d find a college professor tucked behind (complete with microphone).
How events proceed once you’re in the courtroom will depend a lot on why you’re there in the first place. Your family law attorney will prepare you for the specifics, but you likely won’t be bombarded with red-faced “Objections!”, gavel pounding, and bursts of outrage from the other side. This is because, unless you’re called as a witness, the attorneys are the ones doing all the talking. And since lawyers have to maintain a working relationship with each other long after your case is closed, they generally have a pretty mellow attitude toward one another. Most are respectful across the aisle, and some are even friends. So, your family law experience at Stockton’s Superior Court will most likely be pretty ordinary.
San Joaquin Family Court Attorneys
As you can see, “going to court” isn’t nearly as passionate as it’s played out on your favorite legal drama. While divorce and family law proceedings can definitely be stressful, court isn’t usually too traumatic. In general, the most drama you’re likely to encounter at San Joaquin’s Superior Courthouse is the glares passed your way from your soon-to-be-ex.
If you are dealing with divorce, or another family-related matter, and need family law attorney to represent you in California Superior Court, we may be able to help. Call us at (209) 989-4425, or get in touch online to schedule your consultation today, and let our team of experienced family court attorneys help your courthouse experience go as smoothly as possible.
On its own, divorce is not an enjoyable process. However, when abuse is involved, fear and anxiety can add a new level of stress to an already tense situation. Sometimes the abuse has been ongoing, other times, it might be sparked by the divorce process, itself. Either way, it’s never okay, and if you or a loved one are afraid of retaliation during divorce proceedings, know that there are options available to help keep you safe.
One common restraining order involved with divorce is a Domestic Violence Restraining Order, which offers protection against someone you are or have been in a relationship with, specifically when domestic violence is involved. However, protective orders are not restricted to violent situations, and are also available to individuals who do not have a history of abuse in the relationship.
Here’s a breakdown of these protective measures, and what you need to know about filing a restraining order in San Joaquin County.
Domestic Violence Restraining Order in San Joaquin County
A Domestic Violence Restraining Order (or, DVRO), is directed specifically at situations where abuse is being delivered by someone you are intimately involved with. This includes a spouse, domestic partner, or someone you lived with, but it also extends to dating relationships. Indeed, living with the person is not a requirement for a DVRO in California. The abuse need only come from a person you are—or were—intimately involved with, and is not limited to just physical harm.
Under California law, abuse is classified as:
Hurting or trying to hurt someone (either intentionally or recklessly);
Any form of sexual assault;
Causing fear of physical retribution (directed at an individual, personally, or toward a loved one);
Actions that prevent an individual from coming and going freely; and,
Issuing threats, which can be verbal, but can also come in the form of harassing, stalking, and the destruction of property.
This includes all forms of emotional and psychological abuse, even in the absence of physical harm. Hence, even if you have not been physically molested, you might still be able to file a Domestic Violence Restraining Order against your tormentor.
How to File a Domestic Violence Restraining Order
Individuals wishing to file a Domestic Violence Restraining Order in San Joaquin County can find the necessary forms either online or at the Civic Center Courthouse. There is no fee to file a DVRO, and an interpreter will be provided if needed. If the forms are filed before 10 a.m., the restraining order will be available between 2:30-4:00 p.m. the same day. If filed after 10 a.m., the order will be ready between 8:30 a.m. and 2 p.m. the following day.
Types of Restraining Orders in San Joaquin County
Generally speaking, DVROs are issued either as an Emergency Protective Order (EPO), or as a Temporary Restraining Order (TRO). Permanent Restraining Orders are less common, but are also available, especially for individuals caught in cycles of long-term abuse. However, even if domestic violence is not involved in your divorce, you can still get a restraining order against your former spouse, and there is a myriad of reasons why you might want to do so.
Below, are the three main types of restraining orders issued during divorce proceedings, and what situations they usually apply to.
Emergency Protective Order (EPO)
Emergency Protective Orders are handled exclusively by law enforcement and are typically requested when a police officer responds to a call of domestic violence. If the threat of harm is imminent, or the victim is unable to file for a restraining order on their own, the officer can call an EPO in to a judge at any time of day or night. The EPO will then take immediate effect and will last seven calendar days, or five business days (whichever is shorter). Civilians cannot file for emergency orders; however similar protections can be found by filing for a Temporary Restraining Order.
Temporary Restraining Order (TRO)
A Temporary Restraining Order is an action that will restrain an individual’s abusive conduct for a limited period of time. While similar to Emergency Protective Orders, TROs do not require a police officer’s request, and also last a little bit longer. Generally, the life of a TRO is about three weeks (20-25 days), after which the petitioner will be required to attend a full, evidentiary hearing. At these hearings, both parties will have the chance to present evidence in favor or against the restraining order.
Ex Parte Hearing
Sometimes, however, the threat is too great to wait for the traditional filing period. In these situations, an individual may request an ex parte hearing, or, in other words, an emergency meeting with the judge. These hearings occur within twenty-four hours of the request, and require the individual to show proof that immediate action is necessary to prevent imminent and irreparable damage to them. Once granted, the filer need only provide informal notice to the opposing party to make the order effective.
TROs and Divorce
Aside from emergency situations, Temporary Restraining Orders are also quite common in divorce cases. Often, they are filed at the onset of a case and will last for the duration of the proceedings. A TRO can be filed even without a history of abuse and can apply to contact as well as to conduct, making it especially useful for the spouse wary of retaliation. For example, a TRO can prevent a vindictive partner from doing something like liquidating assets, emptying bank accounts, or even removing children to another location without permission.
After the divorce is final, individuals who still need continued protection can file for a Permanent Restraining Order.
Permanent Restraining Orders
The final and most long-lasting type of protective measure is a Permanent Restraining Order. In order to obtain one, an individual must show that the fear (or danger) is ongoing, and there is no reason to think it will end. It’s a highly subjective and difficult to standard to satisfy, and are usually issued to protect victims with a history of long-term abuse.
Restraining Order Attorneys in San Joaquin County
In addition to DVROs and the various types of orders found in family law, there are also a number of protective orders available to shield victims in other situations. Understanding the nuances of each category and how to file can be overwhelming, especially when you add the pressure of unseen threats and danger that usually accompany the need for such tactics. If you are experiencing these types of threats—in or outside of a divorce—we may be able to help. Contact our office today at (209) 989-4425, or get in touch online to schedule a consultation, and together we can discuss what protective order might be best for your individual situation.
With adultery clocking in as one of the leading causes of divorce, it’s no wonder people are interested in how it might affect their split. Specifically, the question many divorce lawyers get asked, is whether or not adultery is illegal.
It’s a fair question. Especially considering that over twenty states actually do attach criminal punishments for infidelity. Consequences that can range anywhere from a slap on the wrist, to a misdemeanor, and in some states, even a felony. In Idaho, for example, adulterers could face up to three years’ jail time, while in Wisconsin, cheaters might just find themselves with a hefty, $10,000 fine.
Unfortunately, as satisfying as it would be to bring a cheating spouse to court on criminal charges, if you live in California, it’s not an option. While adultery is, undoubtedly, a morally questionable decision, it’s not actually a crime in the state of California.
However, just because California doesn’t make adultery illegal, doesn’t mean there aren’t consequences for cheating. Here’s what you need to know about adultery laws in California.
No-Fault Divorce and Adultery
First off, California is a no-fault divorce state, which means that couples do not have to state a reason for the dissolution. In fact, there are only really two grounds available for getting divorced in California: 1) irreconcilable differences; and 2) incurable insanity. So even if an individual wanted to make adultery their grounds for divorce, it’s just not an option.
Things weren’t always this simple. In the state’s early days, if a couple wanted to split, the law basically required a showing of fault (usually adultery). Which—far from actually deterring people from divorce—ended up spawning an environment that encouraged lawbreaking. Because what’s a little perjury when faced with an eternity of marital hell, right?
This blatant flaunting of the law is what eventually drove lawyers and judges to advocate for a simple, straightforward process of securing a divorce. And not long after, the modern-day, no-fault system was born. The upside of this being that divorce is now simple and does not require one to commit perjury to secure a split. The downside, however, is that a slighted individual hoping to benefit from their spouse’s wandering ways will find themselves out of luck, as cheating does not directly affect how courts split marital property.
Still, that doesn’t mean adultery doesn’t matter at all in California, and here’s why.
Adultery Laws and Marital Property in California
Marriage is, at its most basic function, a contract. An agreement, in which two people decide to join their lives—and belongings—under a single umbrella. So, from that point forward, all assets acquired are considered community property. In layman’s terms, this means that everything belongs to both individuals—regardless of which spouse earned the paycheck. And this is where an adulterer might get dinged.
Since all the money in the pot belongs to the spouses equally, an adulterer who spends marital property on an affair is essentially spending cash that doesn’t belong to him—or, at least not just to him. Which means payback will be in order. Sometimes, this means replacing the money into the account before the assets are divided. Other times, the cheater might end up with a smaller piece of property pie, in order to compensate for erroneously spending marital property on an affair.
The catch is, that it can sometimes be difficult to prove how much money was wasted outside the marriage, as the savvy adulterer might not leave a paper trail. Gathering as much information as possible will help your divorce attorney give you the best chance at being fairly compensated for these losses.
Adultery Laws and Custody
In California, adultery does not affect child custody, which is always decided under the Best Interest of the Child standard. This precedent operates under the assumption that a child’s best interest is to have a loving relationship with both parents whenever possible. And, regardless of an individual’s personal feelings toward their cheating other half, infidelity does not actually mean someone is a bad parent.
The only way adultery would affect custody in California, is if the affair had an adverse effect on the individual’s parenting. For instance, leaving a child home alone to meet up with a lover, having sex in front of the child, or exposing the child to drugs or abuse. Short of putting the child’s mental and physical well-being at risk, though, adultery does not come into play for these decisions.
Adultery Laws and the Third Wheel
In contrast to adultery laws, Alienation of Affection suits, are charges which assign damages to the home breaker in the adulterous duo. This is done on the assumption that, without the individual’s interference, the marriage would not have failed.
However, just as adultery is not against the law in California, Alienation of Affection suits have similarly been done away with. In this state, you cannot sue your spouse’s lover for damages, though, that’s not the case for every jurisdiction. For example, in 2019, a North Carolina man won a $750,000 suit against his spouse’s lover. These antiquated laws—which hail back to the day when women were considered property—are understandably controversial, and it’s questionable how much longer they’ll remain in the books. For now, though, Alienation of Affection suits are not something couples in California have to worry about.
Adultery Laws and the Military
Finally, while there are no specific adultery laws in California, those in the military might still want to be careful. Under the Uniform Code of Military Justice (UCMJ), adultery is, in fact, a criminal offense, based on the premise that the act undermines order and discipline. Thus, military personal caught committing adultery could earn themselves a dishonorable discharge, not to mention the forfeiture of any future payments, and up to one year’s confinement—regardless of whether or not their specific state criminalizes the act.
Furthermore, even couples who are legally separated might want to avoid romantic relationships until their divorce is final, as the military does not recognize legal separation as a defense to adultery.
Divorce Attorneys in California
Even though there are no specific laws prohibiting adultery in California, infidelity still can still muddy the divorce waters. If you or a loved one have more questions about how adultery might affect your California divorce, we may be able to help. Call us at (209) 989-4425, or get in touch online to schedule your consultation, and let our skilled team of California divorce attorneys help secure the best outcome for your unique circumstances.
If the idea of splitting a shared life overwhelms you, you’re not alone. While all divorces come with their fair share of difficulties, longer marriages can be even more challenging. After all, when you’ve shared more of your lives together than you have apart, where in the world do you start when trying to divide that all up? Who gets all nine thousand pencils in the junk drawer? What about the china you bust out only twice a year? How do you split that extra property you bought, and what about debt?
As a community property state, California law dictates that all property accumulated and monies earned during a marriage belong to both spouses equally. But how does that apply to all your questions? Here’s how community property breaks down when getting divorced in California.
Is California A 50-50 State When it Comes to Divorce?
California’s community property laws grant equal ownership of marital property to both spouses, but that doesn’t necessarily mean everything will be divided 50-50 in a divorce. Instead, the focus is on what is fair.
Say you and your spouse own a house and condo, both of relatively equal value. Rather than split both properties in half and divide the proceeds, the courts might decide to simply award one spouse the house and the other, the condo. Similarly, one party might agree to take on debt in exchange for an item both individuals want. In the end, there are no set rules about division. The point is simply to split the assets fairly so that each spouse walks away with half of the total marital property value.
How Long Do You Have to Be Married to Get Half of Everything?
In California, anything accumulated during the marriage—whether that’s five months or fifty years—is considered community property, and subject to an equitable split. The only exceptions to this are inheritances and gifts (even gifts from one spouse to another), which would fall under separate property.
What is Separate Property in California?
Separate property is whatever you bring to the marriage, which will arguably leave with you after a split. This would also include property that was purchased with separate funds—say, if you sold your really nice pre-marriage car, and then used that money to buy a boat. The boat, arguably, would belong to you as separate property. This is why it’s a good idea to keep track of what money was used to purchase items.
In California, any property (including paychecks) that are earned between the date of separation and the finalized divorce, are also considered separate.
Are Separate Bank Accounts Marital Property in California?
It depends.
To start, the name on the account means nothing. Rather, it’s all about what kind of property it contains. Remember, all funds acquired during the marriage are considered community property. Full stop. Regardless of how the couple has set up names, or if the account is joint or separate.
The only way an account would be considered separate property is if it dates back before the marriage, and was kept independent from community property. If it hasn’t (for example, if community property funds were deposited in with separate funds), then the account might be subject to a community property split.
Who Gets the House in a California Divorce?
So long as the house is community property (and not separate), it would be divided the same way as everything else in California: equitably. For one couple, that might mean selling the house and splitting the proceeds. For another, maybe one keeps the house while the other gets the business. The ultimate goal is simply to divide the home—and all other assets—equitably between the parties.
Does it Matter Whose Name the Property is in?
No. Just as with bank accounts, the name on the property is irrelevant. What matters, is how the property is classified.
If the property was brought into the marriage (and community property was not used it the upkeep or maintenance), then the property would remain separate. If not, the property would be subject to an equitable division under the rules of community property.
Sometimes, the division isn’t always straight forward, though. A property that starts out as separate might end up “commingled” (one that is both separate and community property at the same time), or else “transmuted” (separate property that has become so entangled in community property, that is impossible to determine what is separate and what isn’t). In these instances, the best thing to do, is to document payments, interests, and equity in the property as best you can, and then hire an attorney to ensure the end agreement with your spouse is as equitable as possible.
How is Debt Divided in a California Divorce?
California’s community property laws treat debt the same way as assets. This means anything acquired during a marriage will be divided equitably when it ends. Similarly, debt brought in by a single party will also leave with the one who brought it.
The goal, as always, is to make things fair. As such, debt can sometimes be used a useful negotiating tool, if there’s something both parties want.
How Do I Protect Myself Financially From my Spouse?
As with most things in life, the best defense is a good offense! If you have the foresight to think ahead, a prenuptial agreement (or “prenup”) is a really great way to keep yourself financially secure from a divorce.
However, if you’re getting divorced, and don’t have a prenup in play, here are a few things you can do to protect yourself from further damage:
Make the separation date official;
Get a credit report;
Close joint accounts;
Change information, so direct deposits go into a separate account;
Stop investing in retirement accounts;
Inventory all major assets;
Track down proof of separate property (such as inheritances or gifts);
Figure out what is most valuable to you, personally;
Do not sign anything without consulting an attorney; and, of course,
Hire an attorney to make sure your half of the property is, indeed, equitable.
Getting divorced is stressful, even in a community property state like California—especially if the property has been comingled or transmuted. If you’re not sure what might be considered separate or community property in your separation or have other questions regarding California divorce laws, call us at (209) 989-4425, or get in touch online to schedule your consultation today. Let us help ensure that your half of the property division is fair.
Most people are probably already familiar with the term, but to kick things off right, let’s start with the legal definition of adultery, which is: any consenting sexual relationship where at least one of the parties is married to someone else.
Historically, punishments for this behavior were swift and harsh, ranging anywhere from torture to mutilation, and in some cases, even death. Not to mention a hefty dose of social isolation and religious shunning for many. The brunt of all which was—unsurprisingly—borne by women. While men occasionally faced fines or punishments, as a whole, their consequences were relatively minor.
Luckily, over the past century or so, most countries have done away with such extreme measures. However, while relationships and sexuality are seen much differently than they were in the past, it may be surprising to hear that adultery is still a criminal offense in some states, including Idaho, Mississippi, Virginia, Oklahoma, North Carolina, and others. And while these laws aren’t often enforced, it still makes adultery a pretty valid concern for those individuals dealing with divorce.
Here’s what you need to know about how the law handles adultery in California.
What is the Law on Adultery in California?
Adultery is not against the law in California, neither is it technically “illegal,” since divorce is a civil proceeding, not a criminal one.
As to how it affects divorce, California is a no-fault state. This means, that a couple doesn’t have to do anything more than cite “irreconcilable differences” for a dissolution. Being a no-fault state also means that courts can’t consider fault when making major decisions about property and child custody.
The only way adultery might affect the financial outcome of a divorce proceeding, is if the injured party can prove that the cheating spouse blew through shared income or marital property on the affair. If they can, a judge would probably order that money to be reimbursed to the family pot before divvying it out. Proving this can sometimes be tricky, though, especially if the cheating spouse didn’t leave a paper trail.
Can I Sue My Spouse for Cheating in California?
As satisfying as that would be, the short answer is: no.
In days gone by, there used to be ways for an injured party to bring a suit against the homewrecker in the adulterous duo. These were usually filed by the husband against the wife’s lover for compensation of lost affection. While there are some exceptions, most states have done away with these “alienation of affection” or “heart balm” suits, and the closest you can get to suing a lover in California is if the situation was so bad, that there was actual harm. (Say, if Handsome Homewrecker was stalking or threatening you.) But even then, those wouldn’t so much be “adulterous homewrecker” charges, as they would be a case of simple battery and assault.
Who Pays for Divorce if There’s Adultery?
For this question, we again refer back to California’s status as a no-fault divorce state. Remember, in these jurisdictions, cheating isn’t grounds for divorce, and neither can it be used to determine the split of assets. So, as you might guess—regardless of who was unfaithful—both parties are required to fit the bill for their own attorney’s fees.
Can a Cheating Spouse Get Alimony?
Absolutely.
Alimony, or “spousal support,” is basically financial aid given by a “supporting spouse” to a “dependent spouse” after a divorce, upholding the idea that financial reasons shouldn’t be the reason people stay in an unhappy marriage. Ergo, cheating doesn’t really come into play here. This situation most often arises with women, who frequently put careers and personal pursuits on hold in order to support a family, which of course, then hinders her marketability for jobs post-divorce.
The only way adultery might come into play in regards to alimony, is if the cheating spouse is living with his or her lover, or getting other financial help from the new relationship. In that situation, the savvy attorney might argue there’s less need for financial support, thus possibly reducing the price tag of alimony.
How Long Do You Have to Pay Spousal Support in California?
Since spousal support is based entirely on a couple’s individual situation, it’s difficult to say exactly how long alimony payouts will last. When deciding amount and length, courts will look at a few factors, including:
Duration of the marriage;
Standard of living during the marriage;
The supporting spouse’s ability to pay;
Age and health of the respective parties; and
What marketable education and job skills the dependent spouse has.
Obviously, these factors rely heavily on personal circumstances, and as a result, the verdicts will vary. While they are being determined, a judge will often order temporary support payments, which are made to the dependent spouse while the case is pending.
Does Infidelity Affect Child Custody in California?
As a no-fault divorce state, California does not consider adultery when determining the best interest of a child. This is because courts recognize the importance of children having healthy relationships with both parents, and want to facilitate that whenever possible. Hence, the only way an affair might hurt a custody arrangement is if the cheating spouse’s actions are somehow detrimental to their parenting. (Say, if they were neglectful, or the new relationship was causing harm to the child in some way.) Otherwise—however unsavory—adultery doesn’t mean you’re a bad parent.
In short, while being an at-fault state does make some things simpler, divorce is almost always messy and complicated. If you have more questions about how infidelity affects alimony in California, or want to talk about your specific situation, please reach out to us at (209) 989-4425, or get in touch online to schedule a consultation. Divorce is emotional, especially when infidelity is involved, but together, we can help give you the best shot at rebuilding a bright future.
Glossing over the fine print of a contract is an oversight most people have probably done at least once in their life. And nowhere is this party foul more common, than in a marriage contract. After all, between wedding day snapshots and cake cutting, most people don’t have the foresight to sit the happy couple down for a serious pregame speech about what might come after their marriage.
Which brings you here. Years later. Stressed. Hurt. Confused. Probably more than a little angry, and likely overwhelmed. Maybe realizing—for the first time—that there’s actually more than one type of divorce, and wondering where to find answers to all those questions you never thought to ask.
The first thing to know is, that despite their differences, all types of divorce serve the same, basic function: the dissolution of a marriage contract. Or, in other words, the formal division of assets, finances, and children accumulated during a marriage.
The focus of this piece isn’t to spend a lot of time talking about the different kinds of divorce—there are other articles for that. Instead, this feature will strive to answer some of the most commonly asked questions related to these different divorce types.
What is a Friendly Divorce Called?
First off, “friendly divorce” isn’t actually a legal term. That being said, “amicable” is often the word used to describe a dissolution in which both partners go their separate ways on relatively good terms.
An Uncontested Divorce (one in which one party does not contest the terms set down by the other), as well as a Collaborative Divorce (one in which both spouses agree to work together to find solutions to all major issues), are both good examples of amicable divorces.
Similarly, couples who decide on Pro-Se/Pre-Suit mediations, often do so on cordial terms. In this type of setting, both parties agree to delay filing an official lawsuit in favor of trying to work things out with a mediator.
However, whether filing a traditional suit or trying for mediation, it’s important to realize that divorce does not have to be an ugly process.
Yeah, but How DO You Divorce Nicely?
Of course, it’s all well and good to say divorce doesn’t have to be ugly, but how, exactly does one achieve that? While every relationship is different (and lawyers are by no means therapists!) the single greatest tool in helping the process go smoothly is to remember life’s golden rule: treat your partner how you want to be treated.
Granted, it’s a little cheesy, but it’s also true. Hurt and anger are a natural part of the divorce process, and under those circumstances, it isn’t easy to treat someone kindly. However, any effort you can make, will go miles toward helping your divorce proceed amicably.
Is Dissolution the Same as Divorce?
The short answer: yes.
The longer answer is, that in ye olden times, divorce was the term for what we’d think of today as a “fault-based” parting. (Like, if a spouse got caught with their knickers down, and was accused of infidelity, for example.)
Today, however, California—like most other states—operates under a no-fault system. Which basically means no one has to bear the blame in order for it to end. Couples can simply cite “irreconcilable differences” and call it a day. In fact, “dissolution” and “divorce” are now used almost interchangeably.
Can You Have an Uncontested Divorce with Children?
Theoretically? Yes. An uncontested divorce is simply one in which one party does not contest the terms laid down by the other. Ergo, if both parties are happy with the arrangement (and all other issues can be agreed upon), then the divorce is uncontested.
How Can I Get a Secret Divorce?
Sorry to be the bearer of bad news, but a “secret divorce”—one in which a spouse files for divorce without the other party knowing—is not allowed the United States. This is for the simple fact that marriage is, at its most base function, a contract. And to allow one party to break that contract without the other’s knowledge, would be a blatant denial of that person’s rights under the agreement.
What if I Want a Divorce, but my Spouse Doesn’t?
Well, unfortunately for your spouse, one cannot force one to remain inside a marriage contract—that tradition died in the 1800s. The very best an uncooperative spouse can do in this situation is extend the process. As long as documents have been properly served, and a pattern of non-cooperative behavior can be established, an individual wishing to divorce can still do so by filing for a “default divorce.”
A default divorce gives the court power to make decisions, in the event one party refuses to engage with the other.
How Do I Know if I Really Want a Divorce?
The variables for and against divorce are extremely complex, interwoven—and above all—personal. So, while no one can make this decision except you, it might help to remember that divorce doesn’t actually break up relationships—people can and do achieve emotional distance from a partner all on their own, without going to court. A divorce is simply the legal dissolution of a marital contract. The process by which property, assets, and children, are divided between two parties who no longer wish to be seen as a joint entity in the eyes of the law. So, when you think about it that way, divorce is actually just the last step of a breakup. The formalization of what has—very likely—already been decided emotionally.
That being said, try to view the situation as impassively as possible. In the end, a logical, straightforward analysis of the facts, might be just the thing to help you decide if divorce is the right course for you.
Do You Have More Questions About Types of Divorce?
Unfortunately, even the most amicable divorce can still be laced with a tremendous sense of loss, confusion, and hurt. Knowing and understanding all the options can, however, give a person some small sense of comfort and control over a situation that no one ever anticipates. If you have more questions about the different types of divorce, and how they might apply to your situation, call us at (209) 989-4425, or get in touch online to schedule your consultation today.
Various Agreements that can be Made to Lower the Cost and Reduce the Conflict in Dissolution or Separation
As discussed in our article “Legal Options for Ending Marriage in California: Summary Dissolution, Dissolution, and Separation” [Link to Article] there are three (3) methods of ending your relationship with your spouse: (1) Summary Dissolution, (2) Legal Dissolution, and (3) Legal Separation:
Summary Dissolution – This form of quick dissolution is only available to a small number of married couples and has the following requirements: (1) You Have Been Married Less Than Five Years; (2) Your Wife is Not Pregnant, and There are No Children from the Marriage;(3) You Do Not Own, or Have an Interest in, Any Real Property; (4) You Do Not Owe More Than $5,000 in Debt That Was Acquired After Marriage; (5) The Marital Community Has Not Acquired More Than $25,000 of Property; (6) Neither Spouse Owns More Than $25,000 in Separate Property;(7) Neither Spouse Will Receive Spousal Support; (8) Both Parties Agree to Sign the Joint Petition; (9) At Least One Party Must Have Resided in California For At Least SixMonths; and (10) Prior to Filing the Joint Petition for Summary Dissolution of Marriage, an Agreement Relating to the Division of Property and Debts Must Have Been Signed.
Legal Dissolution/Legal Separation – This is the standard Dissolution and requires: (1) At Least One Party Must Have Resided in California For At Least Six Months; The Filing Party Has Filled Out, Filed, and Served the Proper Documents (FL-105/GC-120, FL-100,110,140,141,142,150,160, and 311), and (3) the Filing Party Has Completed the California Divorce Waiting Period of Six Months. Read the article discussing these requirements here [Link to Article].
For purposes of this article, a Legal Dissolution can only end one of two ways: (1) The initial party files for dissolution, and the other party does not contest the divorce; the parties reach an agreement as to all the important questions, and the Court grants a dissolution pursuant to the terms of that agreement – this is known as a “Marital Settlement Agreement” or “MSA”, or (2) The initial party files for dissolution, and the other party contests the divorce; the parties engage in protracted litigation, and the Court ultimately enters an order granting dissolution and resolving all the important questions for the parties. This article focuses on the first option, and what issues should be resolved in your Marital Settlement Agreement, or MSA.
The benefits of a Marital Settlement Agreement are substantial. A Marital Settlement Agreement is a contract, and is treated as such; thus, your MSA could address virtually any issues that might come up in the future. In contrast, if the Court is required to resolve critical issues, the Court will only address major issues, which leaves several issues that could become major issues in the future – bringing both parties back into Court long after they have moved on.
As a contract, MSAs generally include clauses pertaining to nearly every conceivable event, and frequently exceed forty (40) pages. As such, it is incredibly important to have a skilled attorney assist you in drafting every aspect of the agreement. While it is entirely possible for individuals to draft their own Marital Settlement Agreement, it is likely that many critical issues will remain unaddressed, The attorneys at Maples Law Firm have years of dedicated experience assisting individuals in drafting Marital Settlement Agreements that will resolve any, and all, issues that arise once your divorce has been finalized for years. While this article will not address every single provision that can be included in a Marital Settlement Agreement, it will address five (5) components that you cannot afford to omit.
Make the Terms of Alimony Clear
In many circumstances, both parties to a dissolution are making a similar income. In those cases, alimony is unlikely to be an issue. However, this is not always the case. Life circumstances change, and sometimes one spouse has a higher earning capacity or obtains a higher paying job as a result of the efforts made during the marriage. As a general rule, everything done during the marriage belongs to the marital community. Thus, if your spouse attended school during your marriage, while you paid the bills and took care of the home, the marriage increased their earning potential and belongs to the marital community.
In these circumstances, it is important to detail alimony obligations, when those obligations arise, and how those obligations can change.
EXAMPLE: Wendy and Harry were married 6 years. During this period, Harry attended school for a psychology degree, and Wendy covered most of the bills. Shortly after graduation, but before Harry obtains employment in his field, Wendy and Harry divorce. At that time, Harry and Wendy both make $50,000 per year. A MSA could state that until Harry obtains a higher paying position (either in his chosen field or elsewhere) he will not pay any alimony. The MSA can further state that once Harry obtains a higher paying position, he will pay alimony based on the difference in income and pursuant to a preset equation.
Failing to address every potential issue is likely to create “Post Judgment Litigation” or “PJL.” If the issue isn’t addressed, one spouse might make the very same argument underlying the example above, and the parties will be forced to litigate the issue in Court. An ironclad MSA can avoid unnecessary frustration.
Make the Terms of Custody Clear
When the marriage resulted in children, through birth or adoption, it is imperative that you resolve every possible issue pertaining to custody and visitation in your MSA. In addition to this being common sense, nothing invites PJL more than disputes over children. To that end, it is critical that every minute detail of custody and visitation be addressed in your MSA.
It may seem silly, and even asinine, but important questions include: (1) What days and hours does each parent get their child? (2) Which holidays will the child spend with which parent? (3) Which school district is the child’s primary address? (4) What rules will be uniform through both households? (5) How will the parents resolve parenting disputes? (6) Where will the child spend their vacations? (7) What, if any, contributions will the parents make to their child’s college fund? (8) Who will pay for what extra-curricular activities? (9) How much child support will be paid? (10) How did the parties reach that number? (11) What will the parties do if they can’t agree on a particular course of action to avoid litigation?
The list above is not even close to exhaustive, but the point is that no detail is too small to include in your agreement if you want to avoid PJL.
Clarify How Post-Divorce Disputes Will Be Resolved
Naturally, an MSA cannot resolve every single issue, no matter how hard the parties try. Thus, it is important to include language describing a procedure for resolving disputes, rather than engage in PJL. This could include mediation, therapy, or any other option that is invariably cheaper than going to Court and arguing a nuanced interpretation of the MSA one way or the other. Avoiding Court is preferable for another reason, preparing an MSA takes a lot of resources: time, stress, money, etc., An agreement of this nature should not fall apart simply because the parties cannot come to an agreement about how to disagree without incurring even more costs.
Make the Division of Property Clear
Many married couples have acquired substantial assets throughout their marriage. Further, the nature of property tends to become incredibly complicated over the course of a long marriage. Taking the question of asset and liability division in front of the Court will necessarily require an incredible amount of time, discovery, and litigation. The more time parties spend in Court, the more expensive litigation becomes. The more expensive litigation becomes, the less property is left for the parties to divide at the end of the litigation.
To avoid wasting your own resources, the MSA should discuss every piece of propertyyou own, and it should describe how it will be divided. When drafting the terms of an MSA pertaining to your assets and liabilities, it is incredibly important to have a skilled attorney review the terms of your agreement; some property’s value has the capacity to appreciate in a significant way, and you could inadvertently receive the short-end-of the stick if you are not diligent.
Make the Allocation of Retirement Accounts Clear
Many couples have individual, and marital, retirement accounts. As mentioned above, everything acquired during marriage belongs to the marriage; retirement benefits are no different. If both spouses agree to keep their own individual requirements to themselves, the MSA should clearly reflect that intention. This agreement should be set forth in extreme detail, including the account number and the last 4 digits of the account holder’s Social Security Number (“SSN”).
Alternatively, the parties should set forth a procedure for how each retirement account will be disbursed (this is generally done through something known as a “Qualified Domestic Relations Order” or “DQRO”). Most companies have their own policy and procedure for creating a DQRO, and those procedures and policies should be researched thoroughly before executing your MSJ.
At this point, it should be clear that while an MSA is preferential to obtaining a Court Order, it can be incredibly complicated. To that effect, the attorneys at Maples Family Law are ready, willing, and able to assist you in drafting an MSA that will avoid PJL, and adequately represent both parties’ interests. At the end of the day, both parties want to move on with their lives, and Maples Family Law is here to assist you with that goal.