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Posted on Mar 15 on 2016

You often hear people in the real estate industry say, location is everything when buying real estate. In a divorce, timing is everything. There are three preliminary questions that every lawyer must ask their clients in order to evaluate a client’s real property interests in the marital estate:

1. When was the house acquired? (Before marriage/ during marriage/ after separation)

Any property acquired before marriage or after separation is considered separate property. Anything acquired during marriage is assumed to be community. This is important because it creates an assumption of community or separate property and shifts the burden on the other party to show that they have an interest in the property.

2. What was the source of the funds used to make payments?

Even though you acquired the house before marriage, if payments were made toward the principal amount of the mortgage during the marriage, the community has an interest in the property (both in the amount contributed and the appreciation during marriage) and must be reimbursed accordingly.  If the property was purchased during the marriage with separate property funds then it is assumed to be community, and the party claiming a separate property interest will need to be able to trace the source of the funds back to their separate property. The two key cases regarding community and separate property interests in real property are explained by In re Marriage of Moore (1980), 28 Cal.3d 366, and In re Marriage of Marsden (1982) 130 Cal.App.3d 426, which will be discussed in a later post.

3. Is there something in writing that changes the ownership of the real property?

If you change title from your name alone, to both you and your spouse, this may be sufficient to transfer the interest in the property and shifts the assumption created by the date of acquisition. However, when this happens, the value of the property on the date of the transfer will be critical in determining your reimbursement claim for your separate property contribution to the property. On the other hand, if the community transfers title to one spouse, this may be considered a gift from the community to the spouse on title, unless there is proof otherwise.

Real property owners need to be meticulous in determining what how their property was acquired, what funds were used to make payments, and any changes to the property. An experienced family law attorney will be able to help you understand what documents are needed in order to evaluate your interests and help you navigate these concepts to reach your best case scenario.

-Myle Nguyen

CATEGORIZED IN:News

Posted on Feb 10 on 2016

In this month’s edition of Los Angeles Lawyer Magazine, Fred explains the state of the law as it pertains to parentage disputes, issues regarding the use of fertility treatments by unmarried partners, and control over embryos created using fertility treatments.  This new world of medical technology gives rise to a host of legal issues.  The article can be found at this link.

 

CATEGORIZED IN:News

Posted on Jan 11 on 2016

Think about this concept.  A couple separates.  Wife makes more than Husband.  Her income will enable her to live at a higher standard of living post-divorce than his will.   The court should give him spousal support, should it not?  Here’s another scenario: Wife earns the income for the family; husband is a highly educated and formerly successful corporate executive who quit work so that he could stay home with the children. They split up. He wants support.  Does he get it?

What is your gut reaction when you ask yourself these questions? Is there an automatic response saying “yes” to both hypotheticals or does something seem fundamentally wrong about the woman paying support to the man? Does your answer turn on your own gender?

You may find it of interest that in the modern age of two-income families and successful women breadwinners, only 3 percent of the recipients of what is traditionally known as “alimony” are men.  At the same time, 40 percent of households in the United States are headed by female breadwinners.  Isn’t there something wrong with this picture?  While in the last 20 years men have made great strides in winning the right to share custody of their children, they have made little headway in the area of support. It seems that support continues to be decided along the lines of “die-hard gender roles” writes Emma Johnson, personal finance columnist for Forbes magazine who did a series on alimony which you can find here.  Interestingly, despite the attention given to a woman’s right to earn equal pay, you don’t see the National Organization for Women, nor any other lobbying groups for that matter, seeking to put an end to the obviously discriminatory practice of awarding support to women, but not to men.  In her series, Johnson, obviously a woman, advocates numerous reasons why alimony should be abolished entirely.  She argues that the end of alimony would force each able-bodied person to be financially responsible for themselves and would require women to acquire what she terms “financial literacy”.  She argues further that in economic downturns, such as the one from 2007 to 2009, men lost more than twice as many jobs as women did.  Johnson also argues that “the biggest reason no alimony is great for women is that without it, each party is allowed to move on with their lives, which is the whole point of divorce.  Living off a check from an ex only keeps you emotionally embroiled in a marriage that is now over.” These arguments seem to be valid, especially considering the fact that we have moved to a nearly-egalitarian employment situation when it comes to gender.  Will the legislature ever consider these facts and re-evaluate support laws? It’s certainly food for thought.

CATEGORIZED IN:News

Posted on Dec 8 on 2015

When we think of a family we think of a child or children and two parents.  Historically, children did not have more than two parents under the law; the law originally contemplated a child have a mother and a father.  In more recent times, a child could have two mothers and no father, or two fathers and no mother.  In the present day, at least in California, a child could have three or more parents.

This came to pass some time ago when the Second District Court of Appeal ruled on a case from dependency court known as In re M.C. 195 Cal. App. 4th 197.  In M.C., two married women had a child who was conceived by one of the women with a man before the two married.  One of the women is the biological mother, the other what we call the “presumed mother” because she was married to the biological mother at the time of birth and there is a legal presumption that a child born during marriage is the legal child of both parties.  The sad facts of this case included a history of mental illness and abuse on the part of the biological mother.   At one point the mother’s new boyfriend (whom she took up with after leaving her wife) attacked her ex-wife with a knife causing severe injuries. This led to the Department of Children’s Services taking the child into protective custody.  While in custody, the biological father requested that he be given custody of the child.  The dependency court found that it could not give parental status to all three parties based on the law which then existed, which it invited the legislature to change.

In response, the legislature enacted SB 274 which amended various sections of the Family Code to state that while most children have two parents, in rare cases the court has the ability to determine that more than two people are the parents of a child, especially where separating a child from a parent can have a devastating psychological and emotional impact on the child.  Circumstances under which these situations could arise vary.  In the case of a step-parent who ends up divorced from the biological parent, that individual has the right to seek a parentage order if he or she can meet the requirements of the California version of the Uniform Parentage Act.  That act requires that a party “receive a child into his home” and “hold the child out as his own”.  Given that many children reside in the home of a biological parent and step-parent this standard should be relatively easy to meet, especially if the step-parent acknowledged to others the child as his or her own.

The ability for a child to have more than two biological parents has ramification beyond the finding of parentage alone. Once a parentage finding is made, the opportunity to obtain a custody order is present. In addition, the third or fourth parent has the potential of being ordered to pay child support as well.  It is conceivable that in these situations, one or more parents may be receiving child support from more than one other parent.

While at this point the number of cases where these issues have been raised has been small, with the ongoing expansion of the definitions of a family in modern times the number of these cases that come up is expected to increase.

-Fred Silberberg, CFLS

CATEGORIZED IN:News

Posted on Dec 8 on 2015

If you are thinking of divorcing from your spouse, the thought of what is going to happen to your property has probably crossed your mind. While many people are familiar with the idea of separate property and community property, people fail to consider the significant reimbursements that may affect the division of the marital estate. Below is a brief overview of common reimbursements:

1. Contribution to Separate property from Community- If you own property prior to your marriage and payments are made on that property from earnings during the marriage, the community is entitled to reimbursement for those payments.

2. Contribution to Community from Separate property- Alternatively, if you owned property before marriage and transferred title to the community, you would still be entitled to the value of your property at the time you transferred it to the community.

3. Use of Community Funds not for the benefit of the Community- Another example of reimbursements that are often overlooked are the use of community funds which are not for the benefit of the community. This would include spending money on an affair. Although California is a no-fault state, an affair would not be seen as an expense paid for the benefit of the community and the offending spouse could be liable to the community.

4. Exclusive use and enjoyment of marital property after separation- If you and your spouse own a house but your spouse moved out upon separation, you may be charged with one-half of the rental value of the marital residence. Whereas if you separated and lived together in the same home, there would be no reimbursement.

5. Payments made to maintain the marital estate after date of separation.

6. Student loans- Unless there is a substantial benefit to community, the community is entitled to reimbursement for payments made during the marriage.

7. Payment of alimony for prior marriage- Payment of spousal support to a prior spouse is often not considered a payment for the benefit of the community and will remain the separate debt of the debtor spouse.

There are a lot of factors and variations that may affect the above outcomes, including but not limited to, changes in property value, mixed contributions, changes in title, and waivers. To help you understand what your property rights are, contact Fred Silberberg, Esq. to discuss your potential exposure.

-Myle Nguyen

CATEGORIZED IN:News