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.
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.
If you’ve never experienced it before, divorce can be an intimidating process. Between filing the correct forms, locating documents, and keeping track of deadlines, there’s a lot to remember, and, without help, the journey can quickly become overwhelming.
To help you out, this article will walk you through the basic steps of how to get a divorce in California, and how the lawyers at Maples Family Law can make this process easier for you.
Residency Requirements
If you want a divorce, one of the first things you’ll need to do is make sure you meet the residency requirements at both the state and county levels.
In order to file in California, you will need to have lived in the state for at least 6 months. For residents of San Joaquin county, the requirement is three.
If you’ve fallen short in either of these categories, you don’t need to worry. There is a lot of busy work that needs to happen before you file, anyway. While you wait, discuss your situation with a family law attorney, who can make sure you have all the necessary information on hand to hit the ground rolling.
Important Dates
Regardless of what documents are required for your, individual case, two important dates you will certainly need are your: 1) date of marriage; and, 2) date of separation.
These dates are important, because they’re used to help determine your interests in marital property.
California is a community property state. This means that all assets acquired after marriage belong to both of you equally—regardless of whose name is on the paycheck, account, or card. Unless you have a valid prenup saying otherwise, this shared interest continues up until the time of separation.
Determining your date of separation is much simpler, if you and your spouse had a legal separation. Those couples who didn’t make separation official will need to comb through emails, texts, and other informal documents to prove this date to a judge.
Immediate Orders
Another thing to consider before filing, is whether or not you’ll need a temporary order.
Temporary orders are provisional (meaning, they have a set expiration date), and can be used to prohibit certain behaviors or dictate responsibilities while your divorce is pending.
These can be tailored to meet your individual needs, but are often used to:
Outline living arrangements and the bill-paying responsibilities of each spouse.
Temporary orders can be especially useful for those who might be worried about spousal retaliation. In these scenarios, a temporary order can prohibit your spouse from emptying bank accounts, destroying property, and fleeing across state lines with your children.
If you are experiencing abuse or domestic violence of any kind, remember that keeping yourself and your children safe is paramount to everything else.
File Documents
After your paperwork is complete, you will need to take your documents to your local family court to file them, and to pay the associated fees. In California, the filing fee for an original petition of divorce is $435.
If you are trying to execute a D.I.Y. divorce, this fee will be your responsibility. Those who utilize an attorney, however, do not need to worry about these technicalities. When you hire a lawyer, they are in charge of making sure all the necessary paperwork is filed on time, and that fees are paid (the amounts of which will be deducted from your retainer).
Serve Your Spouse
Once divorce has been initiated, the next step is to notify your spouse—and this cannot be done with a simple phone call or text message. Proper notification (or “service,” as is the legal term), is done by giving physical copies of all paperwork to your spouse, in person.
As a party to the case, however, you are not allowed to serve divorce papers on your spouse. Other than that, though, the requirements are pretty open, meaning it’s usually not necessary to hire a professional process server.
For service to be proper in California, your server must be:
Deliver the Proof of Service to you, so that your attorney can file it with the court.
Failing to complete proper service could put your case in danger of dismissal.
If you are unable to meet the sixty-day timeframe, your attorney can request more time. This extension is often needed by spouses who have been abandoned, and don’t know how to locate their partner. In these situations, the court will sometimes make an exception to in-person delivery, and allow you to utilize another method of service.
Waiting for a Response
Assuming you have executed proper service, your spouse will then have thirty days to respond to your petition. To this end, their options are:
True Default—do nothing, by not engaging or responding to your petition at all;
Uncontested Divorce—do nothing, because you already have a written, notarized agreement outlining your terms;
Respond in Agreement—file a response with the court, confirming agreement with your proposed terms; or,
Respond in Disagreement—file a response with the court contesting your proposed terms.
It is almost never a good idea to allow your case to default—even if you do not want the divorce to happen. Refusing to engage will not stall out proceedings. Instead, the court will simply grant the divorce as though you had agreed to all the terms.
Needless to say, this is almost never in your best interest.
During this thirty-day period, you and your spouse are also free to work out a settlement—either between yourselves, or through mediation. If successful, you can submit a marital settlement agreement with the court, which will then become your official divorce order.
When Issues Can’t Be Resolved
Those who are unable to reach an agreement must engage in litigation.
Divorce litigation is a traditional court trial, where both sides are represented by an attorney, evidence is presented, and the issues are decided by a judge. Litigation is by far the most expensive, time-consuming, and least flexible way to secure a divorce. So it’s usually a good idea to at least try to settle, before proceeding to trial.
Single Status
If you are planning to remarry after your divorce, keep in mind that in California, you are not considered to have reached “single status” until six months and one day from the time of service.
If your divorce has not been finalized within this time, you can file a Single Status Affidavit with the court, which will allow you to proceed, in lieu of a final judgment.
Naturally, you are not automatically divorced, just because six months have passed. In all cases, you will still need to either resolve issues amicably with your spouse, or through the court.
Divorce Lawyers in California
Divorce isn’t simple, which is why so many people choose to hire personal representation. Armed with education and experience, an attorney can guide you around major pitfalls, handle tedious paperwork, and ensure your best interests are being protected at all times. Freeing up your mental energy, so that you can channel it where it’s needed most: your family.
If you have more questions about Divorce in California, and how this process might apply to your situation, we want to hear from you. Call us at (209) 989-4425, or get in touch online, and let the team at Maples Family Law help make this process a little easier for you.
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.
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 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.
Hiding assets during divorce is a major problem – and if you’re caught doing so (or if your ex is caught doing so), you’ll face big problems in court. Here’s what you need to know.
Hiding Assets During Divorce
When your marriage is ending, your spouse may decide to hide some of his or her assets so you can’t get them. That’s because property in California falls under specific categories – it can be community property or separate property (and in some cases, it’s a hybrid of both).
If you weren’t active in your family’s finances, or if you aren’t up-to-speed on your spouse’s income, it may be fairly easy for him or her to hide assets during your divorce. Some spouses do this so they don’t have to share – but doing so is more than unethical. It’s illegal.
During a divorce, you must both file forms with the court that truthfully disclose all your assets. That includes bank account balances, real estate and other types of income, such as pay and support from previous relationships. If you fail to do so, or if you lie on the forms, you could be held in contempt of court or be charged with perjury.
Devaluing Assets
Sometimes the value of an asset isn’t obvious without an appraisal, and in cases like those, it’s sometimes easier for a spouse to “devalue” them. That happens when one spouse says something is worth less than it really is in an attempt to share less of its worth with the other spouse. The courts don’t allow this, and in many cases, judges require professional appraisals on things that could be intentionally devalued (like houses, jewelry, businesses and other high-dollar assets). Nobody is allowed to deliberately devalue an asset for the purpose of defrauding the court.
Usually, people hide assets during divorce to prevent their spouses from getting a fair share. Unfortunately, it’s not always easy to tell if your spouse is hiding assets. Usually, if you suspect that he or she is doing so, it’s your job to track them down so you get your fair share of the community property.
What Happens if You Hide Assets?
The judge in your case can hold you in contempt of court if you hide assets – or, even worse, charge you with perjury. Perjury is a crime, and it involves deliberately giving false information while under oath. You’re subject to prosecution for perjury if you’re testifying in court or being deposed, or if you signed an affidavit or declaration that contains information you know is false. Perjury is a felony, and it’s punishable by up to 4 years in California State Prison. It’s safe to say that perjury is something you should steer clear of, particularly when it comes to disclosing your assets during divorce. It’s just not worth the risk.
Where to Look for Hidden Assets During Divorce
If you suspect that your spouse is hiding assets, you can do a little detective work of your own. You should start by taking an inventory of your property – especially if you notice that things are disappearing from your home, like jewelry and other high-dollar items. Check for safety deposit box registrations, look in your home safe and see if you can find evidence that your spouse is investing money without your knowledge. Other than that, though, it can be difficult to tell if your spouse is squirrelling away things that belong to you – and you may need to work with a Stockton divorce attorney who has the resources necessary to help discover hidden assets.
Do You Need to Talk to a Lawyer Because Your Spouse May Be Hiding Assets During Divorce?
If you suspect your spouse is – or will in the future – hide assets, it’s important that you get legal guidance. We may be able to help you, so call us today at (209) 546-6870 or get in touch with a Stockton divorce attorney online to schedule a consultation.
Like other assets, IRAs – individual retirement accounts – are considered community property in many California divorce cases. But IRAs in a divorce aren’t always considered community property; in fact, they can be pretty complicated to sort out.
Here’s what you need to know about your IRA and divorce in California.
Your individual retirement account may be yours and yours alone, or part of it may belong to your spouse. Even if it does belong to you alone, you may end up negotiating with it during your divorce. Your Stockton divorce lawyer will give you case-specific advice based on your situation.
The state of California treats IRAs the same way it treats other types of property. Your IRA can fall into one of three categories: separate property, community property, or commingled property.
IRAs as Separate Property
If you contributed to your IRA before you were married, and not during the time you were married, it’s generally considered separate property. There are exceptions, though, which you and your attorney can discuss. Separate property is property that only you have the rights to – your spouse does not have any rights to your separate property.
IRAs as Community Property
If you contributed to your IRA after you were married – such as, for example, when you started a new job as a newlywed – the state of California generally considers it community property. That means it belongs to both you and your spouse, because you made the contributions with money that belonged to both of you at the time.
IRAs as Commingled Property
If you or your partner had a pension or retirement benefit from a job you had before and during your marriage, some of your contributions to it are considered commingled. When an IRA is commingled, the contributions you made to it before your marriage are separate property and the contributions you made to it during your marriage are community property.
In cases like these, it’s sometimes beneficial to hire an expert who can help sort through all your contributions over time and zero in on what portion of your IRA is community property and what portion is separate property.
After you separate from your spouse, the state considers the contributions you make to be separate property. However, like everything else in divorce, there are some exceptions – so it’s in your best interest to discuss the specifics of your case with your attorney.
How Do You Divide an IRA in a Divorce?
When the whole situation is pretty clear-cut, such as when all your contributions are either separate or community property, dividing an IRA in divorce is just like dividing other property. You may choose to use your IRA as a negotiation point, or you and your spouse can agree to split the benefit.
No matter what you choose to do, your attorney will suggest that you work it out on your own without having to litigate it in court, though. When you and your spouse are able to reach an agreement together, rather than forcing the judge to decide who gets what part of your IRA in the divorce, you’ll both be more satisfied with the outcome.
Can a Spouse Get an Entire IRA in a Divorce?
In some cases, through negotiation, one spouse can get the other spouse’s entire IRA in a divorce. However, the judge in your case will only sign off on an agreement you make if it’s fair to both parties – and that means one spouse can’t take everything and leave the other in the poorhouse.