Articles Posted in Community Property

Many couples that make the decision to separate and pursue a divorce do so with the assistance of counsel. And in cases involving the custody and general welfare of children, most would strongly recommend consulting with a family lawyer first. Going through a divorce proceeding, by its very nature, will disrupt your life and require you to consider and address important, life-changing issues. Because the outcome of a divorce proceeding can have lasting financial and legal implications, it is extremely important to protect your rights. And, since local state laws apply to dissolution proceedings, you are encouraged to reach out to a nearby San Diego family law attorney as soon as possible.

Attorneys who represent parties in divorce cases before a California court are expected to follow the local State Bar Rules of Professional Conduct (the “Rules”). In a recent divorce case, the husband argued that wife’s counsel violated one of the Rules during the couple’s proceedings. Here, the court awarded wife the marital home, with the express condition that she was expected to list the property for sale immediately – in order to terminate husband’s share of the mortgage obligation (or “community debt” on the property). During the time that the property was on the market and in escrow, wife failed to pay some of the mortgage payments. The Bank recorded a default notice and initiated a foreclosure proceeding.

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One of the biggest issues in divorce that tends to affect the parties’ relative financial positions going forward is the identification and division of marital property. Determining what is separate rather than community property can become quite complicated. Consider that in many cases, as people are getting married later in life, each party may bring to the marriage an assortment of separate assets and debts. Upon marriage, the question of what happens to each person’s separate property is not necessarily clear. Much depends on the explicit actions and declarations of the parties. If you are considering a divorce, it is extremely important that you assess the state of your marital and separate property as early in the process as possible. In order to effectively address these issues, you are encouraged to contact a local San Diego family law attorney.

In divorce proceedings, parties often are unable to come to an agreement as to the character of certain assets and debts. When this occurs, courts have the authority to step in to identify and divide the marital property. In a recent California divorce case, the court of appeals was asked to decide whether the husband had “transmuted” his separate property to community property, for purposes of asset and debt distribution. There are state laws that address this very situation and must be analyzed to determine the appropriate outcome in each case.
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Under California law, community property is defined as property acquired during the marriage (with certain limited exceptions). Property acquired prior to the marriage is presumptively considered separate property. Virtually every divorce proceeding involves the division of community property, to some degree. Of course, each case is unique in terms of the extent of property subject to division and the method of valuation of the assets in question. The importance of accurately identifying, characterizing, and valuing such property cannot be overstated. Accordingly, parties who are considering divorce are encouraged to contact an experienced San Diego family law attorney who can guide you through this extremely important part of any divorce case.

In a recent, complicated California divorce case, the parties argued over many financial issues, including whether the business founded by the husband before the marriage was subject to division as marital (community property) in divorce. The trial court awarded the husband the business as his separate property and also awarded the “community” an equitable allocation under two different prior court rulings. Among other things, the wife argued that the court erred by not concluding that the community owns all or most of the business in question. She claimed that the company became an entirely new business during the marriage, thus losing its characterization as separate property.
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California law sets forth certain grounds on which parties may petition a court to set aside a divorce judgment. These grounds include actual fraud, perjury, duress, mental incapacity, mistake of law or fact, and the failure to comply with statutory disclosure requirements. The law also grants courts the discretion to determine whether one party or the other has presented sufficient evidence to set aside a judgment. In most divorce cases, spouses feel some relief when the court issues the final judgment. But in some cases, one spouse may find legitimate grounds to set aside the decision. No matter what the situation, it is vitally important that the parties each consult with their own family law attorney at the outset to ensure that their rights are protected. Couples are encouraged to reach out to an experienced divorce lawyer from the San Diego area, someone who is fully aware of the laws affecting their family.

In a recent divorce case, the husband moved to set aside the divorce judgment, claiming that he had made a mistake concerning the value of the former family home. When a married couple divorces, their accumulated community assets will be divided between them. In many cases, the family home represents the couple’s largest jointly owned asset, subject to division in divorce. Any errors, mistakes, or deliberate deception with respect to the value of a family home may provide sufficient grounds to set aside a divorce judgment.
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Every state in the country enacts its own laws governing marriage and divorce. Many people know that California is a “community property” state, which means that most assets and debts acquired during the marriage are subject to division between the spouses in divorce. Identifying and characterizing such property can have wide-ranging effects on the relative financial positions of the divorcing parties. For this reason, spouses often dispute the character of various assets when it comes time to dividing up marital property. If you make the decision to divorce, it is extremely important to protect your future and your financial rights. An experienced San Diego family law attorney would know and understand the local laws governing the division of property and would work to ensure that your rights are sufficiently protected.

In some cases, spouses may attempt to claim that separate property has been “transmuted” to community property. In a recent case, In re Marriage of Lafkas, the court issued a judgment dissolving the marriage in 2010. The husband sought a separate trial to determine the interest in a partnership that he claimed was separate property and that his wife claimed was community property. Here, the husband owned a one-third interest in a real estate partnership since 1971, prior to the marriage. The couple married in 1990. In 1995, the partnership needed a loan to purchase certain properties, and the husband asked the wife to participate in the transaction. The husband testified that, since he was married, he thought the bank required his wife to be added to the partnership and the loan application. The parties executed a modification and extension of the agreement, adding language indicating that the husband and wife together had a one-third interest in the partnership.
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The California Family Code governs various aspects of a divorce proceeding. In many cases, the Code operates to establish a fair and just process for both spouses and any children involved. One of the ways the law does this is to ensure that both parties have access to legal representation. Under the law, courts may order one party to pay the other party’s attorney’s fees and costs of maintaining or defending the proceeding. It is no surprise that the Code functions in this manner, considering the importance of being represented by an experienced family law attorney in any divorce-related action. Spouses from the San Diego area must ensure that their rights are protected every step of the way.

It is not uncommon for parties to seek an award of attorney fees as part of a divorce case. There may be times when it is justified and supported by the evidence or circumstances. And there are also situations where the court will refuse to issue an award of attorney fees, in accordance with California law. In a recent case, the wife sought an order to set aside the divorce judgment, claiming that her husband owned a great deal of property in Iran while they were married, which she claimed to have discovered after the end of their marriage. She further alleged that her husband transferred the proceeds of the land sales to his brother and his son, Majid Salim.
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Dividing up marital assets, or “community property” as it is known in California, is an extremely important part of any divorce proceeding. In addition to identifying, characterizing, and valuing such assets, both spouses must be confident that they have tallied the entire lot of marital property. In some cases, either intentionally or otherwise, parties may fail to disclose certain assets during this stage of the proceeding. Unfortunately, it is not uncommon for spouses to try to conceal or disguise would-be marital assets, thereby depriving the other spouse of their rightful financial interests. For this reason in particular, if you are considering a divorce, it is critically important that you contact an experienced San Diego family law attorney as soon as possible who will work diligently to assess your case and protect your rights.

California law serves to protect spouses from the concealment or non-disclosure of marital property. Under Section 2556 of the Family Code, a party may file a post-judgment motion or action with the court to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment. This means that once a court issues a divorce judgment, the parties have a continuing right to ask the court for help if they find or become aware of community assets that should have been (and were not) allocated in divorce.
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If you are thinking of initiating a divorce proceeding, be sure to understand how the state family code could affect your case, particularly how the provisions apply to property division. Each state has the authority to enact laws affecting marriage and divorce. California is a “community property” state, which means that any and all assets and debts accumulated during the marriage are likely to be divided evenly in divorce (with a few exceptions, such as gifts and inheritances). Identifying and characterizing property in a divorce proceeding can affect the couple’s settlement, in terms of how the assets and debts are allocated. If you are going through a divorce, it is imperative that you contact an experienced family law attorney from the local San Diego area, who will be fully familiar with the laws affecting your case.

State laws certainly vary with respect to the division of property. A recent, widely publicized case from Oklahoma underscores that state’s unique laws pertaining to the division of wealth accumulated during a marriage. According to news reports, oil-man Harold Hamm will pay his ex-wife nearly $1 billion as part of one of the biggest divorce settlements in history. The Hamms were married in 1988 and have no children together. Mrs. Hamm filed for divorce in 2012.

One of the controversial issues in this case was how Mr. Hamm made his fortune: through expertise or sheer luck. Interestingly enough, under Oklahoma law, the money a spouse earns during a marriage can be included in a divorce settlement if it is earned through skill. But if the earnings can be attributable to something beyond the party’s control, such as a change in the economy, the money may not be included in the ultimate settlement.
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Often when people think about the division of marital property in divorce, they consider mainly the couple’s accumulated assets, such as the family home, bank accounts, investments and other property. But because California is a “community property” state, all of a couple’s marital property – including their collective debts — will be divided equally in divorce. If you are considering a separation or dissolution of marriage, it is important to take stock of everything you two own together as well as what you owe. Courts in San Diego and throughout the state will endeavor to divide all of the assets and debts evenly between the parties. To protect your financial rights in divorce, it is important that you contact an experienced family law attorney who is familiar with the local courts and procedures.

While spouses are free to come to an agreement about the division of their assets and debts, the court will still be required to sign off on the agreement to ensure the fairness of the distribution. Some parties may not realize the relative worth of one item versus another, such as the future value of a pension plan as compared with a set amount of finances in a bank account. Further, complications may also arise with respect to the type of debt each party agrees to take on, such as credit card debt, mortgage payments and others. It is important to note which party is legally obligated to satisfy these debts, despite any agreement between the parties to actually pay off the amounts owed.

Courts will often get involved with the valuation of assets and debts. In a recent case, which we discussed in an earlier blog post covering spousal and child support, the parties both disputed the trial court’s assigned value of the couple’s various assets and financial obligations. The couple was married in 1998; they had two children in 2000 and 2003, and sought a divorce in 2007. At the time of their marriage, the husband had his own real estate development company and later, the couple created a jointly owned real estate company as well. Many of the issues on appeal in this case related to allegations that the court failed to divide the property and debts equally.
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In some cases after a divorce judgment has been handed down, and a marriage is officially dissolved, one party may discover that an “ex” has fraudulently concealed marital property, something that should have been divided equally under community property principles. Fortunately, under California law, the family court maintains jurisdiction so that parties may attempt to recoup property and other assets that are rightfully theirs. There are many nuances and legal interpretations to sort through when attempting to recover property and assets that are due. If you are facing a divorce or any legal issue related to the division of marital property, it is imperative that you contact an experienced San Diego family law attorney as soon as possible. A local attorney can proactively seek to protect your rights to property in divorce.

As described above, under section 2556 of the state code, the court has continuing jurisdiction to award community estate assets or community estate liabilities that have not been previously adjudicated by a judgment in the proceeding. In a recent case, the wife sought relief from a trial court, claiming that her ex-husband fraudulently concealed the community property character of the house in which they lived during the marriage. In this case, the court found that exclusive jurisdiction lay with the family court, which had retained jurisdiction over the issues concerning the division of property.

Here, the couple got married in 1981 and separated in December 1986. In the spring of 1986, prior to the separation, the wife went to Alabama for eight weeks for Army basic training. When she returned to California, her husband told her that he rented a house for them, when in fact he had purchased the house. The documents related to the purchase later revealed that he bought the property as an “unmarried man.” When the husband asked for a divorce, the proposed marital settlement agreement listed various items of property that they owned, but it failed to include the residence. The wife relied on the husband’s representation of assets and signed the agreement.
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