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transmutationTransmutation of assets and debts in a California divorce. One of the most difficult aspects facing divorcing couples, aside from issues of child support and child visitation, is the issue of division of property. Some of the most contentious aspects of divorces stem from the identification of separate vs. community property. Since California is a community property law state, the identification of property as either separate or community is critical.

Separate property is defined as any property that a spouse owned prior to marriage, received by gift or inheritance during the marriage, or acquired after the date of separation. Community property is presumed to be any property that was acquired by the couple during the marriage that is not a separate property gift or inheritance. Because California is a community property state, if the parties go to trial with no agreement as to the division of the community property, the court only has the authority to divide the community property equally between the parties on a 50/50 basis. The parties can agree to divide the community property in an unequal division, but their agreement must be in writing, signed by both parties and filed with the court. The separate property of each spouse remains that party’s separate property and will not be divided. For this reason, whether the transmutation of a property is found to have occurred during the marriage is critical to the division of property.

In divorce proceedings, under California law, the transmutation of property occurs when the character of the personal or real property at issue has been “transmuted” or changed from either separate property to community property, or vise versa. See Family Code §850-853.

Why is This Important to Know?

The issue of transmutation of property is important to know for two very critical reasons. First, transmutation may occur unintentionally, without the parties knowing it; and second, it may not seem important to the parties unless they are facing divorce and then it may be too late to do anything about it.

An Example of the Transmutation of Real Property

Say the husband purchases a piece of income property prior to marriage. After marriage, wanting to take advantage of a lower interest rate, he decides to refinance the property. Both husband and wife sign the loan documents in order for the couple to qualify for the refinanced loan. At the end of the refinance transaction, husband signs a deed transferring title to the property from himself to both he and his wife. Husband has effectively transmuted his separate interest in the real property to the community. This is only one example of how separate property can be transmuted into community property.

Family Code §852 – Requirement of a Written Declaration

Before 1985, married couples could effectively transmute their separate property to community property by “words” alone. This led to major difficulties for the court in its efforts to determine who said what and when, or who was telling the truth about the transmutation and who was not.

After the enactment of Family Code §852, the law required that any attempts to transmute the character of any property during the course of a marriage must be evidenced by a writing and signed by the party to be charged.  For more information on this issue, please consult a family law attorney. Continue reading →

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mediationDetermining Child Custody and Visitation Through Mediation. No parent wants to have to fight for time with his or her children. In an ideal world, parents would see their children as often as possible and would never disagree about what is best for them. When parents do not live together, where the children should live and when they see each parent can become a contentious issue. Whether it is part of a divorce or the parents were never married, mediation may be the best way to create a consistent and beneficial parenting plan for the children.

What is Mediation?

Mediation is a form of alternative dispute resolution that is used to avoid going to court. The parties along with their legal counsel and a third-party mediator meet to discuss the issues and come to an agreement. An attorney is not required, but having a lawyer to counsel you on your rights reduces the risk of you agreeing to an unfair settlement.

The purpose of the mediator is to have an objective person who can help the parties come to a compromise. He or she facilitates communication and keeps the conversation focused on what matters.

Once the parties come to an agreement, the final decision is put into writing, and depending on the situation, submitted to court for approval. An agreement reached during mediation is not binding, but once it becomes a court order, it is.

Mediation and Divorce

Sometimes couples choose to use mediation for their divorce. Instead of arguing through attorneys and only meeting in court, mediation allows for spouses and their legal representatives to meet in a confidential and safe environment to discuss their options. It is often faster and cheaper than taking the entire process through the court system.

Mediation for Child Custody and Visitation

In some child custody proceedings in California, a judge will require parents to work with a mediator to decide on custody. This may be after the case is transferred to family conciliation court, if the country has established one, or while the case remains with the superior court.

A judge may feel it is important for parents to sit down and talk and come to a decision about what is best for their children before he or she has to step in a decide for them. Even if it is not required by a judge, parents may find it best to go to mediation to tackle child custody issues instead of trying to do it on their own.

A mediator helps parents focus on what is best for the children, how they can maximize time with their children, and how to move past issues of anger and resentment for the children. Continue reading →

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Prenuptial AgreementWhen a couple makes the decision to get married, divorce generally is not an issue that is on their minds. That is why a prenuptial agreement may seem like a taboo topic for a couple in this position to discuss. However, a couple should not think of a prenuptial agreement as planning for the end of their relationship. Instead, it is simply a contract that both spouses enter into prior to marriage.

The main purpose of a prenuptial agreement is to establish property rights. While prenups are often thought of in the context of wealthy individuals, they have other purposes as well. One of the most common is to protect a family business. Other potential uses of a prenuptial agreement include clarifying financial rights, determining how property will be deal with if one spouse passes away or protecting one spouse from assuming the existing debt of the other. This contract is generally also a guaranteed way to avoid a long and expensive divorce process.

Are Prenuptial Agreements Valid in California?

Once people understand more about the true nature of this type of agreement, they often want to know if it is something that is valid in the state of California. The answer to that question is yes. And for couples who do not have a prenuptial agreement, state law will determine how property is divided if marriage ends in a divorce. This means that property, as well as other assets and debt, will be split in a way that neither spouse will have as much control over as they would probably like.

Can You Get a Prenuptial Agreement After a Wedding?

As previously mentioned, the most common reason that couples who are planning to get married are hesitant to visit a family law attorney in Northern California to discuss a prenuptial agreement is they think it will create negative feelings about their wedding. But even if a couple is not worried about that aspect of a prenuptial agreement, they may not be at a point where they can make fully informed decisions about this type of contract.

Making legally binding decisions about property and other assets after a wedding can be done through a postnuptial agreement. This document can be created at any time after a couple is married. Not only does a postnuptial agreement have many similarities to a prenuptial one, but it may even be able to address a greater number of topics. For example, if a couple accumulates assets together, a postnuptial agreement can be used to designate a specific split instead of having it labeled as community property by the state.

With both prenuptial and postnuptial agreements, it is important for documents to be created properly. Any mistakes with an agreement can result in part or all of it being thrown out in the event it is ever put in front of a judge. Continue reading →

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MarriageThere are no doubt people in this country who believe the institution of marriage is dead and should now be buried, that there is no longer a need or a use for marriage as it use to be described in our society.  Marriage has traditionally been the bulwark, the foundation upon which the family unit was built. Marriage vows were usually taken in a religious ceremony where the couples vowed their commitment to each other “until death.” That was until society “came of age” so to speak. To some it seems that marriage no longer takes the place of importance it use to have in our society. Whether you believe this to be a good thing or a bad thing, it is a reality.

Divorce is on the Rise

We now live in a society where people change their spouses often. It seems like it was an exception to talk to a person who has been married two, three, or four times. As in many jurisdictions, divorce in California has been made quite simple. California is a “no-fault” divorce state. Prior to the 1970s, in order to get a divorce in California, and many other jurisdictions, one spouse had to plead and prove that they were entitled to a divorce because of the actions or misdeeds of the other spouse. They had to prove that there were “grounds” for the divorce. One of those “grounds” would be infidelity (adultery) or cruelty.

Fast forward to today, when adultery within a marriage seems to some to be more of the norm instead of the exception. It appears to be as inevitable as “death and taxes.” Perhaps it is the result of the advances made by social media and Facebook, Instagram, and Twitter accounts. Perhaps it is as a result of the ease with which couples can get married and the ease with which they can get a divorce. Whatever the reason marriage vows are taken so lightly, it has had an acute effect on how society looks at the “institution” of marriage. Since there are no grounds to be proven in a divorce proceeding, evidence of adultery is no longer relevant.

Society used to view marriage as the first step in starting a family. Today, you can start a family, including having children without a marriage. Couples seem to be in agreement that marriage is archaic in the sense that no one marries anymore and if they do get married, they do not stay married for very long.

Marriage, Commitment, and a Safe Place to Raise a Family

There are some good things about a family unit that are missing from today’s view on marriage and relationships, and that is “commitment” to the family unit. Humans are gregarious by nature. Families that commit to the well-being of each other are important for the advancement of our species. With that said, it is important to choose your life partner carefully. However, when you make a misstep and find yourself in a relationship that is not conducive to the making of a strong family unit, divorce is the best option.

When Divorce is the Best and Only Option

The family unit cannot always withstand the onslaught of infidelity and cruelty from either spouse, especially when children are involved. Sometimes, the protection of the family unit requires that a “cancerous” portion of that unit be incised so that the family can be restored to a productive and committed whole. Divorce then becomes the process by which this is done. Continue reading →

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Quasi-Community PropertyQuasi-community property, what is it and what effect does this classification have on the distribution of the marital estate during divorce proceedings?

Marital property, no matter what jurisdiction you live in, is any property that was acquired during the marriage. There are exceptions to this rule, however, but for purposes of determining what “quasi-community property” is, we will start with the premise that the property was acquired during the marriage and is not subject to any exception.

Community Property Law States vs. Equitable Distribution Jurisdictions

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step parenty rightsStep parent rights. Many families today are bit less traditional than they were a few decades ago. It is not uncommon for parents to remain unmarried while raising their children or for divorced individuals to remarry and blend two families. Biological and step-parents usually share the daily responsibilities for raising the kids, including changing diapers, helping with homework, attending ballet recitals, and enforcing the rules. But under California law, biological and step-parents do not share the same rights, no matter the arrangement at home.

Step Parent Rights During the Marriage

Unless a court grants step parent rights to custody or they legally adopt the children, step-parents have few rights regarding their step-children. Biological parents retain all physical and legal custody of the children. In reality, families often include step-parents in the decision or rulemaking processes, but legally, biological parents have the final say.

What are step parent rights if the step-parent and biological parent divorce? There may be cases in which a court grants a step-parent custody or visitation but the step-parent must motion the court for custody or visitation. In other situations, the biological and step-parents create a parenting agreement outside of court, which includes visitation for the step-parent.

Step Parent Visitation Following a Divorce

Under California law, a court can grant a step-parent visitation rights if it is determined to be in the best interest of the children. However, this visitation cannot conflict with a biological parent’s right to custody or visitation.

A court may find it pulls children in too many directions to have visitation with two people, or to live under a joint custody schedule and have visitation with a third adult. However, if no other biological parent has joint custody or visitation, a step-parent with a strong bond with the children may be able to prove visitation is best.

Step Parent Custody Following a Divorce

There are certain circumstances in which a step-parent can gain custody following a divorce. First, if the step-parent legally adopted the child, he or she retains the right to legal and physical custody whether or not he or she is married to the biological parent.

If the children were physically or severely emotionally abused by the biological parent or if the biological parent abused drugs or alcohol – and the other biological parent is not available – a step-parent could potentially gain custody. This is a narrow and rare situation.

Legal Guardianship

If neither biological parent is able to take care of the children due to death or the court taking away parental rights, a step-parent can petition for legal guardianship of the children.

Ultimately, the court will implement a custody and visitation arrangement that is best for the children – not any of the parents. If step-parents want to remain involved in their stepchildren’s lives, it is best to work out an arrangement with the biological parents. Continue reading →

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file for divorce, californiaWhere should I file for divorce? When contemplating a divorce, there are many things to consider, both practical and emotional. Taking on the financial and logistical aspects of a divorce alone can be an enormous burden. Issues such as child custody and division of possessions are hard enough, but one must also consider alimony, paperwork, fees, and everything else that comes with taking apart a marriage. The good news is that seeking help from a qualified attorney can make the process much easier.

All states have their own regulations as to what is required in order to get a divorce in their jurisdiction so one of the the first things to evaluate is where to file the divorce paperwork.

File for Divorce In California

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supervised visitation, santa rosa supervised visitation attorney, supervised visitation attorneySanta Rosa supervised visitation attorney blog. According to California law, parents should have frequent and continuous contact with their minor children during the separation process and after their divorce is finalized. However, the law also provides that the court should make decisions regarding visitation and custody, based on what is in the best interest of the child. One factor that is considered when determining the best interest of the child is their safety and well-being. Accordingly, the court must order visitation and/ or custody arrangements that protect the child’s safety and well-being.

In some circumstances, the court may order supervised visitation to protect the child’s safety and well-being while preserving the parent-child bond. One example of a situation in which this may occur is when allegations of domestic violence exist against one or both of the child’s parents. In such a situation, the parent who was a victim of domestic violence may request a restraining order against their spouse or former spouse. If granted the restraining order limits contact between the individual who is charged with domestic violence and their spouse or former spouse, and in some situations, their child as well.

Supervised visitation may be overseen by a professional or nonprofessional.

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spousal support payments, spousal supportHow are spousal support payments calculated in a California divorce? Ending a marriage can affect almost every aspect of your life, including your financial stability. In many relationships, one party chooses to forgo education or pursuing a career in order to support the other person’s ambitions. Even if this is not the case, some couples fall into “earner” and “caretaker” roles, particularly when there are children involved. This may result in significant economic inequality between the parties to a marriage, and may leave one spouse without any income absent judicial intervention.

Fortunately for some who people seeking a divorce, California law allows a court to order spousal support payments (or partner support payments, in the case of a domestic partnership) in order to provide for the financial needs of the party unable to support themselves financially. Spousal support payments can significantly impact both parties: the one ordered to pay and one receiving spousal support payments. Consequently, it is important for anyone involved in a divorce or other legal proceeding in which spousal support is at issue to discuss their case with an experienced lawyer as soon as possible.

How Are Spousal Support Payments Awarded?

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same-sex divorce residencyCertain California same-sex divorce residency requirement exceptions. Though the right to marry for same-sex couples is quickly expanding throughout the country, there are still a significant number of states that refuse to recognize same-sex marriages. In order to legally marry, many same-sex couples travel to states like California for their official wedding ceremonies, and then return to reside in their home states.

While this plan works well for couples who remain happily married, it does cause significant complications for couples who wish to get divorced. This is because states maintain a residency requirement for any couple seeking to dissolve their marriage, meaning that family courts generally lack the jurisdiction to grant divorces for out-of-state couples. However, if a same-sex married couple lives in a state that does not recognize same-sex marriage, the courts will likely refuse to grant a divorce because, in the eyes of that state, there is no marriage dissolve. In fact, in many states, same-sex married couples are engaging in lengthy legal battles challenging state laws simply to get a divorce.

Instead of challenging state laws, many same-sex couples in such states decide to simply live separately, though remain legally married. While this may work for some time, it can cause problems down the line. For instance, if one of the spouses is suddenly injured or falls ill, the other spouse may be asked to make important medical decisions. One spouse may continue to hold a growing interest in the others retirement accounts or other benefits, and they may retain rights to inherit property upon the others death. Certain debts accrued during the separation may still count as marital debt if the couple never obtained a divorce. For these reasons and more, it is not always wise for unhappy couples to live separate lives while remaining legally married.

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