Articles Tagged with santa rosa division of property attorney

Published on:

Hiding AssetsHiding assets in a California divorce? Divorcing couples are required to divide their assets in order to go their separate ways. Since California is a community property state, anything accumulated during the marriage must be divided equally. Sounds simple, right? What if you suspect your soon-to-be ex is hiding assets to which you are legally entitled? It happens more than you might think, and that is precisely why effective legal representation is a must.

Dirty Tricks

The higher earning spouse may have a number of sneaky maneuvers planned in order to keep more than his or her fair share of your accumulated earnings:

Published on:

community property divisionCommunity property division in a California Divorce. There is no question but that divorce can be ugly and difficult, or amicable and seamless. Here is something not everyone thinks about right off the bat: divorce can be expensive! Just look at some of these celebrity settlements:

  • Rupert & Anna Murdoch: Rupert forked over $110 million in cash as part of a $1.7 billion settlement;
  • Mel & Robyn Gibson: The couple decided an even split of Mel’s $850 million net worth was fair;
  • Michael & Juanita Jordan: In what appeared to be an amicable settlement, Michael agreed to a $168 million settlement.
  • Steven Spielberg & Amy Irving: Amy walked away with $100 million after four years of marriage;
  • Madonna & Guy Ritchie: Madonna paid Ritchie somewhere between $76 and $92 million.
  • Kevin Costner & Cindy Silva: Costner parted with $80 million.

It is guaranteed that none of these celebs took on a divorce without competent legal help, and neither should you.

Community Property Division in California

While you may not be a millionaire, you should be clear about the fact that every penny of your shared marital assets is fair game in a divorce. California is a community property state. That means that all assets and debts accrued during the marriage are evenly divided between the divorcing spouses. Whether you own a mansion or are renting an apartment, here is some legal lingo with which you should be familiar:

  • Marital Property: This includes any earnings that occurred during the marriage, and items obtained with those earnings.  The same goes for debt.
  • Separate Property: This refers to assets accrued prior to the marriage, as well as inheritances, gifts, pension proceeds that were vested prior to the marriage, and items purchased with separate funds. These monies stay with the person who had them to start with.
  • The Marital Home: Generally the home may stay in the hands of the custodial parent if there are children involved. That parent would be responsible for the mortgage and associated costs, barring a huge income disparity between the parties. Once the children are no longer minors, the house could be sold and the proceeds divided.
  • Retirement Benefits: Depending on the type of plan, one party may choose to cash-out another, or benefits may be shared as they are paid out.

What About Community Property Division and the Engagement and Wedding Ring?

What if the engagement ring was a family heirloom that had passed through the giver’s family for generations? Does the giver have any hope of getting it back? The courts say no—rings purchased and exchanged prior to the I do’s count as personal, separate property, regardless of sentimental value (California Civil Code 1590).  

Continue reading →

Published on:

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 →

Contact Information