Articles Posted in Division of Property

California is a community property state, which means that any property acquired by either spouse during a marriage is considered to be owned by each party equally. Either spouse can identify property as separate, though, and it will remain their sole property if they divorce. Certain actions can transmute or modify separate property into community property, though, and anyone with separate property must take care not to take actions that will impair their rights. In 2015, a California appellate court issued a ruling explaining how and when the character of a property is defined and how to determine if transmutation occurred. If you or your spouse own separate property and you are contemplating ending your marriage, it is prudent to speak to a seasoned California divorce attorney about your rights.

Facts of the Case

Reportedly, the husband purchased a home prior to his marriage. By the time the couple married in 1993, the husband had paid off the mortgage. He also had a retirement account that he contributed to prior to getting married, which he stopped paying into at the time of the marriage. The couple lived in the home but after a few years decided to move to a town called Westlake. The husband retained the separate home, however. He made the down payment for the Westlake home from the separate retirement account and took out a mortgage loan in his name only. The loan application stated that the title to the house would be in the husband’s name, and the deed stated it was granted to him and his sole and separate property.

It is alleged that the husband sold his separate home and used the mortgage proceeds to pay for the Westlake home. The wife filed for divorce twelve years later. A prime point of contention was whether the Westlake home was community or separate property or a combination of the two. The court ultimately ruled that it was community property, and the husband appealed. Continue Reading ›

Recent changes in technology and currency have not only altered the global economy, but they have also modified settlements and property division in divorce cases. This was demonstrated in a recent California case in which the court found that the husband violated the fiduciary duty he owed his wife as well as her interest in the community estate by failing to disclose information regarding his cryptocurrency investments. If you are in the process of determining whether to end your marriage, it is important to understand how the investments you and your spouse own may be evaluated, and you should consult a knowledgeable California divorce attorney regarding your rights.

Facts of the case

It is reported that in January 2013, the wife filed a petition for divorce and, along with the petition, served her husband with a restraining order that prohibited him from transferring, concealing, or disposing of any property, whether community or separate. In April 2013, the husband made three bitcoin-related transactions. Ultimately, most of his $45,000 were tied up in a bankruptcy action. He eventually recovered a small amount, and in his financial disclosures in February 2014, disclosed ownership of 1,062 bitcoins.

Allegedly, the court found the bitcoins to be community property and divided them equally between the spouses. Only after the wife sought to collect her half of the bitcoins was it disclosed that the remaining coins were tied up in bankruptcy. The value of the bitcoins had increased greatly at that time, and the original investment of $45,000 was now worth $8 million. The wife filed a motion to have half of the value of the bitcoins transferred to her and to grant her attorneys’ fees. The court granted the motion, finding that the husband breached the fiduciary duty he owed his wife. The husband then appealed.

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California business owners face a unique set of challenges when they divorce. By law, a divorcing business owner may be required to hand over up to 50% of their interest in a business to their ex. Several factors determine the division of a business during divorce, even in a community property state like California. So to understand who gets what when it comes to business and divorce, here’s what you need to consider.

Is The Business Community or Separate Property?

In simple terms, the assets and property acquired during marriage are community property. While assets and property acquired before or after the marriage are separate property. So, when a spouse or couple acquires or starts a business during the marriage with community resources, courts will consider it to be community property and divide the asset equally between both ex-spouses.

Accidents can happen at any time—house fires, car accidents, worker’s compensation claims, and injuries to life and limb, to name a few. A civil lawsuit or claim may continue for years after the injury. Sometimes civil claims arise while a couple is in the middle of a divorce. Which raises the question: How do California courts handle personal injury claims and insurance proceeds during a divorce?

If an ex-spouse has to file an insurance claim or personal injury lawsuit because of the mishap, it’s not easy to determine which spouse is entitled to a payout or where to turn to figure it out. If you have questions about how the court will divide your accident proceeds, here’s what you need to know about accidents, insurance, and divorce. For purposes of this article, an “Injured Spouse” and a “Personal Injury Award” includes injuries to property, such as houses and vehicles, as well as injuries to life and limb.

Automatic Temporary Restraining Orders Ensure that Upon Service of a Divorce Case, Neither Spouse Is Permitted to Remove or Cancel Their Spouse’s Insurance Policies.

In California, one of the most common questions that arises when it comes to divorce is, who gets the house? When couples divorce, they often tie deciding who gets to house to child custody, financial arrangements, and negotiations for other marital property. So if the ex-spouses do not agree, things can escalate quickly. And so can the legal bills.

If you and your ex-spouse are trying to decide what to do with your family home, here are some money-saving tips to consider:

Tip #1: Figure Out Who Owns What

In a divorce proceeding, Family Code 2104 tells us what each party must disclose to the other party in order to advance the divorce case to a settlement conference or a trial:

(1) Each party shall serve on the other party a preliminary declaration of disclosure, executed under penalty of perjury on a form prescribed by the Judicial Council.  The commission of perjury on the preliminary declaration of disclosure may be grounds for setting aside the judgment, or any part or parts thereof, pursuant to Chapter 10 (commencing with Section 2120 ), in addition to any and all other remedies, civil or criminal, that otherwise are available under law for the commission of perjury.  The preliminary declaration of disclosure shall include all tax returns filed by the declarant within the two years prior to the date that the party served the declaration.

(2) The preliminary declaration of disclosure shall not be filed with the court, except on court order.  However, the parties shall file proof of service of the preliminary declaration of disclosure with the court.

Under California law, any property obtained during a marriage is presumed to be community property. The California Family Code allows for parties to change community property to separate property in certain circumstances, however.

Recently, an appeals court in California held that an interspousal transfer grant deed contained the necessary language to constitute a transmutation of the character of marital property. If you intend to seek a divorce, you should meet with an experienced California divorce attorney to assess the nature of any property obtained by you or your spouse during the marriage.

Ownership of the Property in Question

The husband and wife married one another in January 2010. In May 2010, the wife reportedly purchased a condo. The deed from the seller allegedly transferred the condo to the wife as “a married woman as her sole and separate property.” That same month, the husband signed an interspousal transfer grant deed (ITGD) granting the condo to the wife as her sole and separate property. The money used for the down payment on the condo was from the husband’s separate bank account. The husband filed for divorce in August 2011. The wife claimed the condo was her separate property based on the ITGD. The husband insisted the condo should be his separate property, however, because he paid for the down payment.

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