family law, Legal

Divorce and Real Estate Part 1: Legal Reasons #59

How is California community property divided?

Many think  you would have to divide each physical object equally.  All that the law requires is that the net value of the assets received by each spouse must be equal. Thus, it is not uncommon for one spouse to be awarded the family residence, with the other spouse receiving the family business and investment real estate, as long as each spouse gets assets that are equivalent in value. Since the total net value of the assets being received by each spouse is equal, such a division is proper.

Ordinarily, it is not difficult to determine whether a particular asset is community or separate property. However, certain types of assets can pose unique problems in this regard, including a business that one spouse owned before marriage and both spouses worked on during the marriage, or property that belonged to one spouse before marriage but was shared during the relationship.

What about a closely held business or professional practice?

Like any other asset, a business or professional practice must be considered in the valuation and division of community property. To the extent that a business or practice has been developed during the marriage, there is a community property interest that must be dealt with in the dissolution. The most difficult and time-consuming aspect of determining the value of a business or professional practice is in evaluation of “goodwill.” This is the intangible value that most businesses have, which is based on the expectation of future business, based on established name or reputation. If the business or practice is operated by one of the spouses, it has a goodwill value even if it could not be sold on the open market.

Often, a business person or professional will say, “How can there be any goodwill . . . if I stop working, the office does not make any money?” The law’s answer is that the goodwill of a business or professional practice is valued as a “going concern.” That is, the law assumes that the business will continue operating and will not lose any customers that would otherwise have been lost if it were sold to another owner.Certified public accountant and business appraisers are hired to determine the value of a business or professional practice. The accountant or appraiser who is hired reviews the books and records of the business or practice and prepares a written report.

family law, Legal

Common Myths about Divorce: Legal Reasons #57

No Fault

If one spouse has an affair, the other gets everything, right? You lose the house, the car, the kids, all of it, isn’t that how it goes? That’s great and dramatic for movies and TV, but that’s not the way things work in the real world. It might end your marriage, but infidelity doesn’t always influence the divorce settlement.

California is a no-fault divorce state, which means there’s no blame assigned for a failed marriage. Unless adultery negatively impacts your finances, it probably won’t impact the division of property. One example i if your spouse drained your savings buying expensive gifts. The same goes for child custody. If an affair impairs parenting ability, it may play a role. Otherwise, this is one of the most common divorce myths many people accept as fact.

Custody

That mothers always get custody of the children in divorce was taken as a given for years. Many husbands and fathers feel like they’re at a disadvantage right out of the gate. Though there may have been a bias along the way, times they are a changing. More than automatically going with a mother over a father, the court puts the child’s best interests ahead of all other concerns.

Increasingly, the courts recognize the importance of both parents remaining in a child’s life following divorce. From a legal perspective, mothers and fathers have the same rights when it comes to child custody. Each has identical claims. And in an ideal situation—we recognize not every case will be perfect—the parent who represents the best choice, regardless of whether it’s the mother or father, will walk away with custody.

 

 

COMMUNITY PROPERTY

California is a community property state. This means the court views all assets and debts acquired during a marriage as belonging equally to both spouses. The law presumes joint ownership. Many people think this means everything gets shared equally during the division of property. Common divorce myths like this, however, are not the case in most situations.

Many factors go into the division of property. The court’s general goal is for each spouse to emerge from divorce on relatively even footing and to maintain a standard of living similar to that enjoyed during the marriage. The length of a marriage, resources, health, and numerous other elements play into the ultimate divorce settlement.

 

family law, Legal

Divorce Threats And What You Should Know: Legal Reasons #54

I often from clients about the vindictive ex spouse who threatens to hide property or “show” the judge my client’s “loose moral nature.” Or that they will “fight to the end” or “make sure you get nothing” or “not see the kids at all.” Threats like this from an angry or abusive spouse are scary and can make some clients wonder if they should give in, however California law being a community property state (This means that everything acquired during a marriage, from wages to property, will be considered community property and will be divided equally between you and your spouse. However, any property acquired as a gift or that was part of an inheritance will be considered separate.) and one that uses the “best interests of the child” standard often protects the spouses from these kind of empty threats. The California courts will always have the children’s best interests in mind, and that means they would like both parents to see their children on a frequent and continuing basis

Divorce is an emotional process where partners often try to find ways to make deep emotional cuts that can scar, however threats about money and kids are often just that as they are not in the purview of the individual. One of the main reasons, getting representation becomes important when there is a party that threatens to hurt the other financially or cut off interaction with their children for vindictive purposes.

It is always wise to get an initial consultation just one can get clarity on their rights.

family law, Legal

When is a gift a gift? Legal Reasons #53

It is far too often I hear from estranged spouses who speak of partners who have taken back birthday gift, wedding rings or anything during their marriage because they are hurt and/or angry.When you get married, you agree to share more than your feelings and the bathroom — you also share property with your spouse.  California law defines community property as any asset acquired or income earned by a married person while living with a spouse. Separate property is defined as anything acquired by a spouse before the marriage, during the marriage by gift, devise, or bequest, and after the parties separate

Separate property belongs only to one spouse.  The most common forms of separate property are:

  • property one spouse owned before the marriage
  • gifts received by one spouse before or during the marriage

The gift or inheritance is likely to be separate property if the following are true:

1. One spouse was the intended heir or gift recipient

Property acquired during marriage by gift, will, or inheritance is separate property. (Section 21 of the California Constitution, California Family Code Section 752)

Except as otherwise provided by law, neither spouse has any interest in the separate property of the other. (California Family Code Section 770)

2. The gift or inheritance was not commingled

If separate and community property are commingled in such a manner that “the respective contributions cannot be traced and identified, the entire fund or property—including property acquired in exchange therefor—will be treated as community property. (California Family Code Section 760)

family law, Legal

Getting Divorced When Angry/Hurt: Legal Reasons #52

Making the decision to separate from your partner is a personal decision that many often struggle with before going forward. However,  I also have gotten potential clients who call seeking dissolution because they had a “huge fight” with their partner. I always caution others that matters like this cannot be done in heat of the moment.

Few months ago, someone filed then reconciled with their partner. Although I was glad to hear it, I wondered if they should have gone through that process before spending thousands of dollars and changing their mind. This is not to suggest that people don’t change their mind, but making an emotional decision while still in the throes of an argument or hurt means that once things calm down, they may regret their decision.  Making the decision to end a marriage based on irreconcilable differences is one only a couple knows about, yet it is truly a better way than to be faced with regret about starting a process that wastes time and money if one changes their decision.

 

employment law, family law, Immigration, Legal

Fear of Being Sued: Legal Reasons #48

It is always scary to get a formal email or piece of mail that announces some kind of legal incident. The scariest: a summons.  Then there is always the attorney letter with “LAW OFFICES” usually on the stationary that tells you have violated something or the other. I admit, even as an attorney, I get nervous when I receive something like this that I am not expecting. That fact is no one truly enjoys being caught up in a legal battle that will cost time or money or worse, both.

Yet many still choose to either ignore the matter or not get guidance for an attorney.  I always tell people the initial call is free.  Make the call so you know what you are in for. There are times where the matter is not significant yet will become worse if the person does nothing. I practice law to help others. I get that many worry about costs, or feeling overwhelmed. It is at those times money should not be the factor stopping you if it’s a matter that could harm you in a significant way. Like they say “penny wise, pound foolish” is not the way to go for a lawsuit.

Give someone a call. It may be the best thing you do for a legal issue.