Your house is more than just a roof over your head… Not only does this structure act as the sacred keeper of your family’s memories, but it’s also often the most significant investment a married couple will make.
Hence, if you find yourself worried, wondering: Who gets the house? in your divorce, don’t fret. You aren’t alone.
Here’s what you need to know about who gets the house in a California divorce, and how the Maples Family Law team can help you navigate these important issues.
Who Gets the House: It Starts with Community Property
In California, a house is considered property. Hence, just like your car, bank accounts, debt, and that heirloom silverware your grandmother left you, this structure is subject to the same rules of community property, if you ever get divorced.
Community property is one of two systems that US courts use to divide marital property, which focuses on ensuring each partner gets an equal share of marital assets. Here, the timing of when you got married (as well as when you acquired the property) will be important to determining how much of your joint assets you’ll ultimately walk away with.
To make these decisions, California courts will follow these four steps:
Identify all of the couple’s property.
Classify all property as either separate or marital.
Value all marital property.
Divide all marital property between spouses.
Here’s a closer look at each of these steps, and how they specifically apply to our question: Who gets the family house?
Step 1: Identify
First thing’s first: identify all of your property.
This ‘role call’ might sound silly (after all, how hard is it to identify a house?); however, it’s not just the house you’ll need to identify. During this step, you’ll need to produce documentation on everything you own, including all assets, real property, retirement accounts, debt, loans, credit cards, and investments.
While these assets might not directly relate to your house, knowing exactly what you have will be important during the valuing and division phases. (After all, the court can’t divide a home’s value fairly, without knowing what else the couple owns.)
Identifying property also acts as an important accounting step, to ensure that neither spouse is trying to hide assets from divorce court.
Step 2: Classify
Once property has been identified, the court will need to classify everything as either separate property (a.k.a. “individually owned” property), or marital property (a.k.a. “it belongs to both of you” property).
In a community property jurisdiction, anything acquired before or after marriage is considered the separate property of whoever brought it into the marriage. In addition, gifts, inheritances, and awards of personal injury are also considered separate—regardless of when they were received.
On the other hand, anything acquired while married—be it a paycheck, loan, credit card, or winning lottery ticket—belongs to both, equally, regardless of whose name it’s in. (Which, of course, is why your date of separation is so important, and why it’s a good idea to formalize it with a legal separation.)
Hence, in an extremely general, very sanitized scenario, a house purchased prior to marriage would possibly be considered separate property, and one purchased during marriage, marital property.
However, life is never that simple, and there’s a really good chance that at least some of the home’s value belongs to the marriage—even if it was purchased prior to tying the knot. (More on that to come…)
Step 3: Value
Next, the court will assign a price tag to all of your marital property, including debt, investments, retirement accounts, and even bitcoin, too.
Pricing everything out is important to our house question, because a physical structure can’t be cut in half (sorry, Solomon!). Hence, only one spouse will be able to actually keep the house. The other will need to be compensated with a greater share of marital property, to make up the difference in value.
Step 4: Divide
Finally, it will be time to divide the house and your marital property. To this end, couples can either:
Sell the house and split the value.
Spouse A keeps the house, and refinances the mortgage to remove Spouse B from the loan.
Spouse A and Spouse B agree to temporarily keep the house together.
Typically, the simplest option is to simply sell and split the value. In California, courts can’t force lenders to remove someone from a valid contract. Hence, sometimes complications can arise with refinancing.
Then again, if kids are involved, it might be better for the custodial parent to keep the house for their emotional stability.
In the end, there are pros and cons to each option, and it will be up to the couple and the court to determine which is best for their situation.
Who Gets the House: Complications
So far, we’ve made the house dividing process sound very neat and clean, but the truth is, it’s usually anything but.
For example, let’s say Spouse B purchased a house before getting married. This structure might have started out as separate property, however, once married, it was almost certainly paid for, maintained, or upgraded using marital funds at some point. Hence, there’s a good chance Spouse A shares at least some of the value in Spouse B’s home.
On the other hand, consider the possibility that Spouse A used separate money (like… say… funds from an inheritance) to finance a major upgrade on a house purchased after marriage. In this scenario, it’s possible Spouse A owns a share of the home’s value as separate property, even if it was purchased while married.
Bottom line? Short of a valid prenuptial agreement, the question of who gets the house is not an easy one to answer. That’s why it’s so important to have an experienced attorney looking out for your interests during this process.
Divorce Attorneys in California
Your house might just be the biggest investment you made as a couple, so it’s pretty important to make sure its division is done right. That’s why we hope you’ll trust our experienced team to lend a hand in your divorce.
If you have more questions about who gets the house in a California divorce, and how these rules might affect your situation, we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and let us help fight for your best interests.
Marital property is one of the biggest offenders of a lengthy divorce. The classification, valuing, and distribution of a couple’s jointly held assets is a herculean task, even on the best of days. But this complex financial beast becomes even more interesting, once you add cryptocurrency into the mix.
But what is cryptocurrency? How does it work? And—more importantly for us—why does it cause so many problems for divorcing couples?
Here’s what you need to know about dividing cryptocurrency during divorce, and how the team at Maples Family Law can help ensure your interests are protected.
What is Cryptocurrency?
Cryptocurrency (also known as “bitcoin,” “digital gold,” and—our personal favorite— “magic internet money”), refers to a type of digital currency that can be exchanged for online goods and services. These transactions take place exclusively over the internet, and do not have a physical form.
Instead, digital coins are kept in an online “wallet,” which is accessed by a private “key” and password (rather than a person’s name). A wallet’s transactional information is stored in a “blockchain,” which breaks its data down into “blocks” that cannot be strung together in a “chain” without the proper passwords.
Today, there are thousands of different cryptocurrencies on the market. Some (such as “Bitcoin”) are widely accepted by many different internet vendors. Others are small company tokens, which give their owners access to the products and services exclusively tendered by that company.
Cryptocurrency’s focus on peer-to-peer business means that consumers can initiate transactions all over the world for a fraction of the cost of a traditional bank or institution. In addition, exchanges are faster, more private, and use a currency that cannot be inflated by the whims of international markets. All of which makes digital coin an attractive investment for couples looking to branch out.
Unfortunately, these same perks can also end up causing couples a lot of heartache, if they ever get a divorce.
Dividing Cryptocurrency During Divorce
California courts divide digital coin the same way as any other marital asset: by applying the rules of community property.
This process requires the court to:
Identify property.
Characterize property as either separate or marital.
Value all property (including debt).
Divide property between spouses.
The problem is, that while the process of dividing cryptocurrency is technically the same, applying these steps to digital coin can cause some unique headaches.
Here’s a closer look.
1. Identifying Property
Before cryptocurrency can be characterized, valued, ordivided, the court must first identify it.
This isn’t too hard, if both spouses are aware of a wallet’s existence, and, of course, so long as each knows the key and password. If not, however, the task of identifying cryptocurrency can quickly turn into an epic game of Financial Hide and Seek.
Cryptocurrency is specifically designed with security and privacy in mind. No names. No central database. Both great things for a consumer looking for privacy, but not when you’re trying to find your spouse’s secret piggy bank during divorce.
If you think your spouse might be trying to hide cryptocurrency assets, your attorney should pay special attention to:
Include cryptocurrency question on the financial inventory;
Review bank records for transactions involving cryptocurrency companies;
Comb through tax records for cryptocurrency references;
Subpoena all cryptocurrency records and documents;
Search computers, cell phones, and external hard drives for cryptocurrency information; and, of course,
Ask about cryptocurrency during testimony.
With any luck, your spouse will be forthcoming, and will not try to hide assets form the court (which is both difficult, and very stupid).
2. Characterizing Property
After all of your cryptocurrency assets have been identified, you will need to characterize the property as either separate, or marital.
In California, anything that either spouse acquired during marriage, belongs to both, equally—regardless of whose name is on the paycheck, card, loan, or deed. These jointly held assets are called “marital property,” and are subject to division, upon divorce.
On the other hand, assets acquired before tying the knot are considered separate property, and will (theoretically) leave with their respective owners, once the partnership dissolves.
Hence, in theory, crypto that you owned prior to marriage (as well as whatever property or increase came as a direct result of said crypto) likely belongs to you, outright. However, characterization is rarely that straightforward.
The problem is: real life doesn’t work that cleanly. While married, couples hardly ever keep track of an asset’s history as well as they should. Accounts get mixed, funds blurred, and before you know it, assets are so mixed up, that it’s impossible to tell where separate property ends and marital begins. In these situations, the judge rules the property commingled, and throws it into the marital pot for division.
On the bright side, once you have successfully constructed a wallet’s blockchain, determining its history (and exact worth) becomes relatively simple. Without it, however, it may be necessary to call in a financial expert.
3. Valuing Property
Another downside to cryptocurrency, is that its value is in a state of constant flux. A thousand dollars one day can change to fifty the next week, meaning you never know quite what you’ll take out, once you invest.
When dividing cryptocurrency during divorce, your investment will be valued based on its worth at the time of your divorce—not on your original investment.
To compensate for volatile market shifts, judges will generally order this valuation to take place as closely to settlement (or trial) as they can, in order to ensure that the division of marital property is as accurate as possible.
4. Dividing Property
Once cryptocurrency has been identified, characterized, and valued, it’s time for the actual division, which is done according to the rules of community property (unless, of course, the couple has a valid prenuptial agreement that supersedes standard procedure).
In a community property jurisdiction, anything characterized as marital is divided equally between spouses. However, this does not necessarily mean fifty-fifty, since community property focuses on giving each spouse an equal share of the marriage’s value, rather than an exact share of everything.
That being said, when it comes to cryptocurrency, fifty-fifty can actually work well. By dividing the bitcoin, itself, into equal shares (rather than trying to nail down a shifting value), each spouse can walk away knowing their portion is equitable, regardless of how the market might shift between valuation and trial.
Previously Undisclosed Assets
While cryptocurrency might be easier to hide than other real-world assets, nothing is impossible for a skilled financial guru, and the failure to disclose cryptocurrency (or its full value) to divorce court can have severe consequences. (Just as this lady, who was ordered to turn over a million-dollar lottery ticket to her spouse, after failing to disclose it during divorce.)
Bottom line? The consequences for previously undisclosed assets hurt a lot more than simply parting with funds in the first place, so it’s always better to simply disclose it upfront.
Cryptocurrency Divorce Attorneys in California
Dividing marital property is a complex financial beast—a task that only gets more involved, once cryptocurrency enters the mix, which is why choosing the right attorney is so important.
If you have more questions about dividing cryptocurrency during divorce, we want to hear from you. Call one of the skilled, Maples Family attorneys today at (209) 989-4425, or get in touch online, and together, we can make sure your cryptocurrency is handled properly.
For a lot of people, pets aren’t just animals, they’re beloved members of the family. These loving, loyal furry friends have the power to enrich our lives in unique and irreplaceable ways, so it makes sense that when it comes to divorce, fights over who gets to keep the family dog can get pretty heated.
Luckily for pet owners, California’s new pet custody law ensures that the needs of your pet are carefully considered during divorce, and that they aren’t just thrown around like the family couch.
Here’s a closer look at pet custody laws in California, and how the team at Maples Family Law can help you.
Pets, Property, and Divorce
We love our pets. They may not be human, but that doesn’t stop us from caring about them a great deal. At the same time, because they’re not human, dividing pet ownership in a divorce used to be a little tricky. Without specific guidelines, judges were forced to determine pet ownership according to the normal laws of community property.
Which, we should point out, is how a lot of states still operate. Take a look.
Pets of the Past
California is a community property state. This means that whatever you acquire after tying the knot—be it a house, loan, dish set, or credit card—belongs to both of you equally (regardless of whose name it’s in). Essentially, “what’s mine is yours,” and upon divorce, this jointly shared property needs to be divided.
Until recently, this is how pet ownership was treated during divorce. Judges would look to see whether or not the pet could clearly be classified as the separate property of one of the spouses. If not, the pet was deemed “community property” (or, in other words, the shared property of both partners), and the pet battle commenced.
Without specific laws to reference, though, this became a unique challenge for divorce court judges, all of whom had their own methods of trying to solve the problem. Some placed the dog in the middle of the room, and awarded ownership to whoever the pet went to first. Others might simply split the pet brood down the middle, giving each spouse half of the fur babies.
Needless to say, it was an inadequate system. And luckily, pet owners no longer have to stress that the fate of their feline friends will be at the mercy of so much guesswork.
Pets of the Present
The problem with pets being treated as straight property, of course, is that they are alive. Just like humans, they have emotions and needs (albeit more primitive than our own). Hence, the dichotomy between living thing and physical property was a conundrum that courts struggled to balance.
Lawmakers addressed this problem in 2019, by passing Assembly Bill 2274, which updated the California Family Code, giving judges the option to assign joint and sole custody to pet owners, upon divorce.
Now, instead of being bartered and fought over like a set of silverware, California pet custody is being treated a lot more like child custody.
Pet Custody Under Assembly Bill 2274
The biggest difference about California’s new guidelines is that instead of treating animals like straight property, judges are now allowed to make decisions that put the pet’s well-being at the forefront. (Remind you of anything?)
This is a lot like child custody, where a child’s best interest is the driving force behind custody and visitation. While pets are still (technically) considered property, under Assembly Bill 2274, judges can consider things like which spouse:
Has the strongest relationship with the pet;
Carries out the most day-to day care;
Plays with the pet;
Takes the pet to the vet;
Ensures that the pet stays in good health;
Can provide the safest environment;
Can handle the expense of the pet;
Whether there are other children who are emotionally dependent on the pet; and, of course,
The existence of any abuse or violence toward the pet.
Joint Pet Custody and Visitation
Under Assembly Bill 2274, pet ownership doesn’t necessarily have to be all or nothing. Indeed, when making these decisions, judges have the flexibility to award joint ownership, so that the pet can continue to enjoy a relationship with both spouses. And, of course, where there’s joint custody, there’s also visitation.
In the event you’re awarded joint pet custody, you and your spouse will need to settle on a visitation agreement. This operates in much the same way as a visitation schedule for a child, and, indeed, similar templates and schedules are often used by attorneys when drafting pet exchange calendars.
Of course, all these new guidelines do beg some interesting follow up questions. For example, if pet custody, then what about pet support? Can a judge require the non-custodial pet spouse to provide payments for a pet’s upkeep? Only time will tell how these questions will be answered.
Which Pets Qualify?
Bird and aquatic pet owners out there might be wondering whether or not their animals qualify for protection under California’s new guidelines. And the answer probably depends on what you view as a typical pet.
While Assembly Bill 2274 doesn’t list the specific animals that do and don’t apply, it does say that the additions are limited to “pet animals,” which it clarifies as being “any animal that is community property and kept as a household pet.”
With this in mind, it seems reasonable to assume that dogs, cats, rabbits, hamsters, fish, birds, and even a turtle might qualify. However, it’s questionable whether the statute would extend to animals like pigs, goats, chickens, a pony, or even something exotic, like a tiger.
Exceptions
Regardless of whether you have a support dog or a comfort pony, these laws do not apply to service animals.
Support and service animals serve a special purpose to their human counterparts, and Assembly Bill 2274 cannot be used to separate these pairings. Instead, it is simply meant to keep pets from being used as bargaining chips, and tossed around at random to the highest bidder.
In fact, because the pet’s well-being is the driving force behind these new rules, judges even have the power to award the animal to one spouse, even if it is technically the separate property of the other. This may be needed in cases of domestic violence, where the pet is being abused, or if one spouse needs the pet for mental health reasons.
Don’t Wait for Divorce
In the end, if the future of your pet is that important to you, don’t wait for divorce to roll the dice for you. Contact your family law attorney today, and have your pet custody arrangement drafted in a marital agreement. For those who aren’t married, a prenuptial or cohabitation agreement, might be more appropriate.
These contracts can be drafted to dictate your pet custody desires, giving you the peace of mind in knowing that your pet’s future is secure, even if you break up.
Pet Custody Attorneys in California
At Maples Family Law, we understand how important your pet is to you. As pet lovers ourselves, we take the time to make sure that the needs of your pet are fairly considered in your divorce.
For more questions about how California handles pet custody, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us help you ensure a bright future for your pet in your family’s new normal.
With so many different types of plans and variables at play, dividing retirement assets in a divorce can be complicated. Especially if they existed both before and during a marriage, dashing any hopes of a clear property classification. However, considering their sizable worth, retirement accounts are one aspect of property division you don’t want to get wrong.
Fortunately, a good Stockton divorce attorney can help you get the job done without too much hassle.
Identifying Retirement Assets in a Divorce: Community or Separate Property?
When splitting a retirement plan, the first step is to identify what kind of property the account is. Like all other assets acquired by a couple during marriage, retirement funds are subject to property classification and division under California’s community property laws. Under these rules, assets are categorized as either “community” (property that belongs to both spouses equally), or “separate” (property that belong to one spouse, individually).
To classify the contents of a retirement account, timing is key. If either spouse contributed to the account while married, it is most likely community property (unless specifically addressed in a valid prenuptial agreement.) On the other hand, if the account was created before marriage—and was not added to during that time—it’s most likely separate property, and belongs solely to the participant spouse (the party who earned the benefit).
Most of the time, however, property isn’t as clear cut as “before” and “after” marriage. And when the ‘what’s mine is yours’ mentality results in blending separate and community property together, retirement division can get a little more complicated.
Dividing Retirement Assets in a Divorce
If the retirement account is classified as community property, a judge will split ownership based on the length of time the couple was married, and how this occurs will vary by circumstance. In some cases, both spouses agree to keep their own pensions and retirement accounts without taking any part of the other spouse’s. However, when one spouse doesn’t have a retirement account – or when one has a much smaller retirement asset than the other does – a judge will order the couple to split these funds another way. There are two common ways this can be accomplished.
The first, is to suspend all retirement payouts until the participating spouse actually retires. Once retirement finally rolls around, each spouse will get their share of the retirement payout for the time married. The second method, is to allow the participating spouse to keep all benefits of the retirement plan, and to offset this inequality by awarding the non-participating spouse a greater portion of community assets.
Obviously, each method of distribution comes with its own pros, cons, and risks. When assessing how to make this split, couples are always free to reach their own agreement, rather than fighting in court. One way to do this, is through mediation.
Divorce Mediation
Mediation is a non-binding negotiation process, where couples meet with a neutral third party, and try to come to an agreement on their own. This method of dispute resolution is far simpler and more cost-effective than litigation. It also gives individuals greater flexibility in determining the outcome of their own divorce terms, including the division of any retirement plans. For these reasons, a good attorney will always suggest that you try mediation before going to court.
Retirement Payout After Divorce
Once an agreement has been reached—either through mediation, or by litigation—the actual payout process will depend on what type of retirement plan you have.
For example, when dealing with a military retirement account, the length of your marriage will determine whether the participant pays out the alternate payee, or if the money will come directly from the Defense Finance and Accounting Service.
In other cases, individuals must file a qualified domestic relations order, or QDRO. A QDRO is a special court order authorizing a non-participant individual to receive a payout from a retirement account. Once a QDRO is filed, payout usually takes between 60 and 90 days, depending on how long it takes the plan’s administrator to process the documents.
These types of details—such as how payout works and how long it takes to receive—will vary for each type of retirement account. Once your Stockton divorce attorney has all the facts of your case, they will be able to give you more specific guidance on what to expect from your retirement payout process.
Retirement Plans Covered by a Prenup
Now days, it’s common for divorcing couples in California to have prenuptial agreements. These pre-marital contracts can cover all kinds of things about property division during divorce. In your prenup, you and your spouse may have agreed to several things, including the rights and obligations you each have when it comes to property (even if it was acquired during your marriage).
If a retirement account was included in your prenuptial agreement, it’s a good idea to talk to your attorney about it. The prenup can’t be grossly unfair, and if it is, your Stockton divorce attorney can help argue that all or part of the agreement is invalid.
Divorce Attorneys in California
If you have questions about dividing retirement assets in a divorce, we’re here to help. Call us at 209-546-6870 to schedule a consultation with an experienced divorce and pension attorney. Together, we’ll answer your questions, and begin building a strategy that will get you the best possible outcome in your retirement plan division.
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.
If you’re a mother who’s considering divorce, you’re facing some unique challenges. Check out these divorce tips for moms to find out what lies ahead – and prepare yourself for a successful outcome.
7 Divorce Tips for Moms
Check out these seven divorce tips for moms, and then read on to get answers to some of our most commonly asked questions.
#1. If you need spousal support, ask for it.
Many working and stay-at-home moms are entitled to spousal support (more on that later), so if you need it, don’t be afraid to ask for it.
#2. Try to work with your spouse to reach agreements about your children.
When you and your spouse can work together – even if your children can’t see that you’re doing it – you’re setting a good example. You’re also more likely to be reasonably satisfied with the outcome when you both have a hand in creating it.
#3. Learn about co-parenting, and encourage your ex to learn about it, too.
Co-parenting is good for your kids; it’s the act of working with your spouse to continue to parent your children. (But if you can’t co-parent because your ex is too uncooperative, don’t stress it. Things will work out just fine – trust us.)
#4. Get everything in writing.
When you communicate with your ex, try to keep it in writing – especially if you two don’t get along very well. When you have a series of emails, you have a paper trail you can fall back on if your ex says one thing and does another.
#5. Don’t talk about your divorce (or your ex) in front of your kids.
Your kids know you’re getting divorced, and it’s definitely fine to answer their questions in age-appropriate ways. However, don’t call your mom, your best friend or your therapist in front of them – they’re not emotionally equipped to handle it.
#6. Don’t try to mediate between your kids and their other parent when there’s a disagreement.
If your children and your ex have a disagreement or dispute, don’t try to be the middleman. It’s between them, and you should support your children without trying to mediate.
#7. Expect your kids to feel confused, guilty, sad or abandoned.
Kids deal with divorce differently based on several factors, including their ages. It’s normal for children to feel confused, guilty, sad or abandoned – and it’s up to you to reassure them that you love them. Another thing to consider: Many children benefit from talking to a divorce therapist.
Divorce Tips for Moms: FAQ
We get a lot of questions specifically from moms, so check out these FAQ – and if you don’t see an answer to your question here, call us at 209-395-1605 to schedule a consultation with a Stockton divorce lawyer.
If you’re a stay-at-home mom who wants a divorce, you need to know that it is entirely possible for you to leave your spouse and get a fresh start. You’ll have to:
Get financial records, such as bank statements, asset statements, tax returns and other documents
Think about how you’ll divide your assets (California is a community property state)
Talk to an attorney about spousal support and having the court compel your ex to pay your legal fees
Make a concrete plan before you take any major steps
How Do You Get Divorced When You Have No Money?
For many moms who have no money, divorce seems out of reach – but there are still a couple of options. First, you can file for divorce on your own, without an attorney. You may also be able to get the judge to agree that your spouse should pay your legal fees, which can happen when one spouse was the primary earner and the other doesn’t have the financial resources to pay an attorney.
What Are My Rights as a Mother Going Through Divorce?
In California, mothers and fathers have equal rights during a divorce. With that said, you have the right to:
California is a community property state, which means everything that you and your spouse acquire during your marriage belongs equally to both of you. Some property is separate, though – if you or your ex brought it into the marriage, it’s generally yours to keep. Still other property is a mix of separate and community. Here’s an example: Let’s say you bought a house a few years before you married. You continued paying on the house even after you got married. Because you continued to pay for it once you got married, it’s part separate, part community. Your lawyer can help you figure out how to divide the house (or its proceeds, should you sell it).
Many stay-at-home mothers are entitled to alimony in a divorce. Usually, a judge will look at several factors when determining whether to award spousal support – including whether the supported spouse (in this case, the stay-at-home mom) can support herself. Usually, courts award alimony for a set period of time – typically how long it should take for the supported spouse to become self-supporting.
Can I Be a Stay-at-Home Mom After Divorce?
Realistically, it would be difficult for a person to be a stay-at-home mom after divorce. When the courts award spousal maintenance, it’s with the intention of the supported spouse becoming self-sufficient within a reasonable period of time. That means you would need to take the time you’re receiving alimony and work toward earning a degree or learning new job skills so that you can support yourself. However, if you can get your ex-spouse to agree to pay you a significant amount of spousal support with an agreement that you’ll remain a stay-at-home mom, it may be possible.
Do You Need to Talk to a Lawyer to Get More Divorce Tips for Moms?
If you’re a mom considering divorce, or if your spouse has already filed, we may be able to help you. Call us at 209-395-1605 to schedule your consultation with an experienced Stockton family law attorney today.
If you’re like many people, you know California is a community property state – but what does that mean when you’re getting a divorce? Here’s what you need to know.
Community Property FAQ: Answers to Common Community Property Questions
Here you’ll find answers to our most common questions about community property questions, which might help you with your case. If you have more questions, or if you don’t see the answer you need here, feel free to call us at 209-395-1605.
What is an Example of Community Property?
Any property that you and your soon-to-be ex-spouse acquired during your marriage is considered community property in California. Some of the most common examples of community property include:
What is the Difference Between Community Property and Joint Tenancy?
Joint tenancy is a type of co-ownership that allows a property owner to keep property in the event that the other property owner dies. Joint tenancy is different from community property – but most married couples hold property as joint tenants with the right of survivorship. The biggest thing to be concerned about? Tax consequences. There might be capital gains issues that you need to know about, so talk to a tax consultant if this applies to your situation.
It’s not uncommon for separate property to become partly community property (such as when one person has a house before the marriage but continues paying on it during the marriage). This is called transmutation. If it went the other way, it would also be called transmutation. The only way community property could become separate property is if there was a mistake in classifying the property to begin with. Separate property includes only the property one spouse obtained before a marriage, after separating, and property received as a gift or inheritance during the marriage.
When you acquire assets or debts during your marriage, they’re community property. That means you and your soon-to-be ex-spouse own them equally. Even if only one spouse signed up for the debt, it belongs to both of you. You’re both legally responsible for the debt, but you can negotiate with your spouse over debts during the divorce. If you have marital debt, talk to your Stockton divorce attorney about what to do next.
If you brought a vehicle into your marriage and it was paid for before the wedding, it’s your car – your husband can’t take it. However, if you bought the vehicle (or even continued paying on it) during your marriage, your husband has the same right to the car that you do. Likewise, if he gave you the car as a gift, it’s separate property. You may be able to negotiate with your husband, or you might be able to get the court to issue an order that says you’re entitled to continue using the car during (and possibly after) the divorce. You should talk to your attorney if you’re concerned that your husband will take your car when it’s in your name.
In California, which is a community property state, both parties to a divorce are entitled to a fair and equitable distribution of their marital assets. One spouse might also be entitled to spousal maintenance (commonly called alimony), depending on that spouse’s ability to provide for him- or herself. All marital assets – and marital debts – are divisible in divorce. However, if you came into the marriage with property you owned, that remains separate and your wife is not entitled to it in the divorce.
Wages are considered community property in a divorce in California, provided that you earned them during your marriage. However, the wages you earned the week – or even the day – before you physically got married are separate property and your spouse isn’t entitled to a fair and equitable distribution of them. It’s worth noting, too, that community income isn’t only about money. It can include real estate, payments you receive for services, or payments you receive in rents, as well as other forms of income.
In real estate, community property is typically a home or piece of property that a couple purchased during a marriage. This real estate is divisible in a divorce. Sometimes a house or piece of property is separate (meaning that it belongs to just one spouse), such as when that spouse bought and paid for it prior to the marriage. However, everything the couple purchased or acquired during the marriage is community property – including real estate.
Is Cash Considered Community Property?
Cash holdings, such as paper money, savings accounts, checking accounts and investment accounts, are considered community property if the money was acquired during the marriage. For example, if you opened a checking account (even if it was just in your name) during your marriage and put in money that you acquired during the marriage, that money is community property. As community property, it’s divisible during divorce.
How Are Assets Divided in a Community Property State?
In a community property state, assets are divided fairly and equitably. That doesn’t necessarily mean 50-50, though. When it comes to how assets are divided in a community property state like California, each spouse is entitled to a fair share of everything. That means you’re free to negotiate if you’d like. You might trade two antique vehicles for an empty piece of property in the country, for example, or you might agree that your spouse will pay off your joint marital debt while you get to keep the paid-off house. As long as your agreement is fair to both of you, the judge assigned to your case is likely to sign off on it.
Is an Inheritance Considered Community Property in a Divorce?
In California, an inheritance is not considered community property in a divorce unless it was left to you and your spouse. If it was left to only one of you, it belongs solely to that person – it’s separate property.
Do You Need to Talk to a Lawyer About Community Property?
If you still have questions about community property in California, or if you need to talk to an attorney about dividing your property in a divorce, we’re here to help. Call us at 209-395-1605 to let us know what’s going on – we’ll be happy to schedule a consultation where you can talk to an attorney and get the answers you need.
Is California a community property state? Here’s what you need to know if you’re getting divorced in San Joaquin County or elsewhere.
Is California a Community Property State?
California is considered a community property state – but to many people, that doesn’t mean exactly what it sounds like. Under California law, the property a couple acquires during a marriage is community. That means it belongs equally to both parties, and when the couple divorces, they must divide it fairly.
What Counts as Property Under California Law?
Property is anything you can buy or sell, like:
Houses
Vehicles
Furniture
Clothing
Household goods (like dishes, pots and pans, televisions and other items you use around your home)
It’s also anything that has value, even if it’s not something you’d buy or sell, such as:
Bank accounts
Cash
Pension plans
401(k) plans
Stocks
Life insurance that has cash value
Businesses
Patents
When you divorce your spouse, you’re free to come up with an agreement that gives you both your fair share of the property. However, even if you agree, the judge in your case will still have to sign off on it. If the settlement you and your spouse work out is unfair to one of you, the judge can tell you to come back with a different plan.
If you and your spouse can’t agree, you’ll either have to go to mediation or ask the judge to rule. If you ask the judge to rule, you’ll have to provide an accurate valuation of all the property you own – and that can be tricky for assets like businesses. (In that case, you’ll most likely have to hire a professional to value the business.)
Is California a Community Property State When it Comes to Debt?
California law treats debt just like it treats assets. If you accrued the debt while you were married, it most likely belongs to both of you. (There are some rare exceptions, though. For example, if one spouse racked up a bunch of credit card debt because he or she was spending money on a paramour, you can let the judge know – that kind of debt may only belong to the party who created it.)
As a general rule, the assets and debts you brought into your marriage belong to you alone. The same is true for your spouse.
For example, if your spouse had a paid-off car, furniture and money in a bank account before you married, those assets will most likely still belong to your spouse when you divorce.
Sometimes these things get tricky, though. If your spouse had partially paid off a car when you married and continued to make payments on it after your marriage, it’s neither community property nor separate property. Likewise, if your spouse has a pension or retirement benefit that he or she paid into before and after your marriage, the same is true. In these cases, the property is commingled.
In California, the property you divide has to be equal. But that doesn’t mean you need to chop your toaster oven in half or sell the house and split the proceeds (although you absolutely can do that if you wish). Instead, the total net value of the assets each spouse receives has to be pretty close to equal. That means it’s okay for one spouse to get the house and the other to get the family business. As long as the assets end up being equivalent in value, you have a fair agreement.
Do You Need to Talk to a Lawyer About Community Property?
In the end, what’s most important is that you know California is a community property state and that means you and your spouse have to divide your assets (and debts) equally. You may find that talking to a Stockton divorce attorney can help you sort through the situation you’re in.
We live in a community property state, which means the things you acquired during your marriage belong to both you and your spouse. But what is community property in California, and how will it impact your divorce settlement?
Here’s what you need to know.
What is Community Property in California?
Figuring out property division can be incredibly difficult, and when a couple has many assets or debts, it’s often necessary to hire professional help. However, in order to understand property division, you have to know what the term “property” means when it comes to divorce.
Property is anything that can be bought or sold, or that has value. Examples of property include:
Houses
Vehicles
Furniture
Clothing
Bank accounts and cash
Pension plans and 401(k) plans
Stocks
Life insurance that has cash value
Businesses
Patents
If you acquired any of these things while you were married, they’re usually considered community property. That means they belong to both you and your spouse – even if only one of you made it happen.
For example, if you bought a house a year into your marriage, the law considers it community property. That’s true even if only your name (or only your spouse’s name) is on it. Likewise, if you bought a car, invested money in stocks or even started a business, you have community property.
You and your spouse are free to come up with your own agreements on dividing community property. You might trade one thing for another, or you might choose to each keep things that primarily belong to one of you (such as your own vehicles).
If you arrange trades, you might offer your spouse the china cabinet you purchased in exchange for the dresser in your bedroom. Perhaps you and your spouse agree that one of you gets the sofa and one of you gets the bar stools and dining table.
What About High-Value Assets and Businesses?
In some cases, particularly when it comes to high-value property (like a business), one spouse offers to “buy out” the other. For example, if you opened a candle shop in downtown Stockton while you were married, you’d probably hire a valuation expert to find out how much it’s worth. When the valuation expert gives you a dollar figure – say $150,000 – one spouse might offer to pay the other $75,000 to give up any control of the business.
What if You Don’t Have Cash Lying Around?
Sometimes these buyouts occur without actual cash changing hands. The buying spouse may offer the other spouse items of an equal value, such as a house or a vehicle in trade. As long as the judge agrees that it’s a fair trade, and provided that you both agree to it, the trade can become part of your divorce settlement.
What if You And Your Spouse Can’t Divide Your Community Property?
Community property, in California (and many other states), must be divided fairly. Fair doesn’t always mean 50-xdr50. The judge in your case can take several other factors into account when determining what’s fair, such as whether one spouse earns a lot more money than the other does.
But if you and your spouse can’t agree on dividing your property, your attorney might suggest that you work with a mediator. A mediator is an impartial third party who can help you and your soon-to-be ex-spouse find solutions you can both live with.
If you’re able to eventually reach an agreement, the judge will determine whether it’s fair to both parties. In the event that the judge finds it fair, it’ll become part of your divorce settlement.
Do You Need to Talk to a Lawyer About Community Property in California?
If you’re not sure how to divide your property, or if you need help negotiating a fair settlement, we’re here for you. Call us at (209) 395-1605 to schedule your consultation today.
If you’re divorcing your spouse in California, you’ll likely consider mediation – many people do. In fact, mediation is the smart choice when you and your soon-to-be ex-spouse just can’t see eye-to-eye. And in some cases, the courts actually order mediation to help people resolve disagreements (particularly when it comes to parenting plans for their children). Check out these 17 divorce mediation tips if you’re headed that way – you’ll find them tremendously helpful.
17 Divorce Mediation Tips You Need to Know Before You Start Mediation
Some of these tips may not apply to you – but read through each to determine which ones you can put into practice to make your entire experience with mediation go more smoothly.
1. Agree to come to the table in good faith. Mediation requires both you and your ex to decide that you’ll both do your best to find common ground – even if you don’t feel like getting along.
2. Do your homework, and ask your ex to do the same. Create a master list of all your assets and debts, and pull together records for all your income sources (both yours and your spouse’s).
3. Be realistic. Mediation is about finding common ground, not about bending your ex to your will (or about your ex bending you to his or her will), so don’t walk into it thinking that you’re going to “take it all.” Instead, expect to walk away reasonably satisfied with the outcome. That’s what mediation is designed for, so go into it with the right expectations.
4. Don’t be shy, but avoid making demands. Be prepared to say what you want from the divorce and back up your reasoning with facts. The mediator can help you and your ex come together based on facts when you can’t see eye-to-eye emotionally. (This is a key divorce mediation tip that many people miss. It’s really important, because you have to speak up for what you want!)
5. Put your kids first. Remember that although children are resilient, divorce is tough on them – and the things you ask for in mediation should be in their best interest.
6. Be comfortable with making your own decisions. Your mediator won’t tell you what to do; instead, he or she will present you with options after identifying and discussing issues.
7. Participate actively in the process. If you don’t actively participate, or worse, if you don’t cooperate, mediation won’t be successful. You’ll both have to put in some work and participate in give-and-take.
8. Stay flexible. Mediation is all about compromise, so skip the “my way or the highway” mentality and be ready to give up some things to gain others. If you can only implement a few of these divorce mediation tips, make sure this one is high on your priority list.
9. Know what you’re willing to give up before you begin. There are some things you’d like to get out of your divorce, but there are others that you could do without. Know what you want (and what you can give up) before you start mediation
10. Know your best alternatives. When you think about your agreements with your spouse, consider what your best scenario would be if you don’t get exactly what you want – and be ready to accept them if they’re presented. This requires pre-planning, so make sure you walk into your mediation with an idea of what you’re really willing to accept (and what’s worth fighting for).
11. Decide whether you’re bringing your attorney or flying solo. Your attorney can come with you if you wish, but that’s something you should discuss prior to your appointment; in some cases, it’s best if you go alone.
12. Don’t try to mediate if your spouse is abusive. If your spouse has been physically or verbally abusive, mediation may not be the best choice for you. Talk to your attorney about other options. Rather than divorce mediation tips, you likely need an alternative method.
13. Be honest. You have to be willing to come clean about what you have and what you want – otherwise, your mediation might be doomed from the start. You certainly can’t hide assets; doing so will get you into serious trouble in court.
14. Know that it’s okay to take a break. Mediation isn’t the most fun you’re going to have. In fact, it can be fairly difficult and even frustrating. It’s okay to tell the mediator you need to step outside to clear your head if things are getting too tough.
15. Know what your spouse is angling for. You know your spouse better than anyone else does, so when you go into mediation, you probably have a good idea about what he or she wants. It’s in your best interest to sit down and seriously think about what your spouse would like to get from mediation; that way, you can negotiate better.
16. Check your emotions at the door. It’s hard, but you have to look at mediation like a business negotiation – otherwise, you might not get very far.
17. Keep an open mind. You may really want to get your marital home in the divorce – but would you be okay if you didn’t get it? Be prepared to explore alternative solutions to get what you want (or to come close to getting what you want).
Do You Need to Talk to a Lawyer About Divorce and Mediation Tips?
If you’re contemplating divorce, or if your spouse has already filed, we can help you (and we can give you more divorce mediation tips if you need them). Call us right away at (209) 546-6870 or get in touch with us online to schedule a consultation.
