Tag: <span>Community Property</span>

IRAs and Divorce

April 27, 2019August 4, 2020
by Angie

Like other assets, IRAs – individual retirement accounts – are considered community property in many California divorce cases. But IRAs in a divorce aren’t always considered community property; in fact, they can be pretty complicated to sort out.

Here’s what you need to know about your IRA and divorce in California.

Related: Divorce and pension payout

IRAs and Divorce

Your individual retirement account may be yours and yours alone, or part of it may belong to your spouse. Even if it does belong to you alone, you may end up negotiating with it during your divorce. Your Stockton divorce lawyer will give you case-specific advice based on your situation.

The state of California treats IRAs the same way it treats other types of property. Your IRA can fall into one of three categories: separate property, community property, or commingled property.

IRAs as Separate Property

If you contributed to your IRA before you were married, and not during the time you were married, it’s generally considered separate property. There are exceptions, though, which you and your attorney can discuss. Separate property is property that only you have the rights to – your spouse does not have any rights to your separate property.

IRAs as Community Property

If you contributed to your IRA after you were married – such as, for example, when you started a new job as a newlywed – the state of California generally considers it community property. That means it belongs to both you and your spouse, because you made the contributions with money that belonged to both of you at the time.

IRAs as Commingled Property

If you or your partner had a pension or retirement benefit from a job you had before and during your marriage, some of your contributions to it are considered commingled. When an IRA is commingled, the contributions you made to it before your marriage are separate property and the contributions you made to it during your marriage are community property.

In cases like these, it’s sometimes beneficial to hire an expert who can help sort through all your contributions over time and zero in on what portion of your IRA is community property and what portion is separate property.

After you separate from your spouse, the state considers the contributions you make to be separate property. However, like everything else in divorce, there are some exceptions – so it’s in your best interest to discuss the specifics of your case with your attorney.

How Do You Divide an IRA in a Divorce?

When the whole situation is pretty clear-cut, such as when all your contributions are either separate or community property, dividing an IRA in divorce is just like dividing other property. You may choose to use your IRA as a negotiation point, or you and your spouse can agree to split the benefit.

No matter what you choose to do, your attorney will suggest that you work it out on your own without having to litigate it in court, though. When you and your spouse are able to reach an agreement together, rather than forcing the judge to decide who gets what part of your IRA in the divorce, you’ll both be more satisfied with the outcome.

Can a Spouse Get an Entire IRA in a Divorce?

In some cases, through negotiation, one spouse can get the other spouse’s entire IRA in a divorce. However, the judge in your case will only sign off on an agreement you make if it’s fair to both parties – and that means one spouse can’t take everything and leave the other in the poorhouse.

Do You Need to Talk to a Lawyer About IRAs and Divorce?

If you’re divorcing your spouse and you have an IRA, we can help you sort things out.

Call us at 209-546-6870 to schedule a consultation with an experienced divorce and pension attorney right now.

Divorce

What is Summary Dissolution in California?

March 27, 2019March 17, 2019
by Angie

If you’re like most people contemplating a split from your spouse, you think a regular divorce is the way to go – but instead, a summary dissolution might be right for you.

What is Summary Dissolution?

Summary dissolution is one way to end your marriage or domestic partnership. It’s not for everyone, but for some people, it’s a quicker, less complex way to bring an end to the legal contract you signed with your “other half.”

It’s kind-of a fast-track, and it’s available to all married couples and domestic partners, regardless of gender. You can also use it if you were domestic partners at one time and later married.

Who Qualifies for Summary Dissolution?

Only some people qualify for summary dissolution. You must meet all these requirements to qualify:

At least one of you must have lived in California for the past 6 months
At least one of you must also have lived in the county where you file for dissolution for the past 3 months
You both agree to terminate your marriage or partnership because you have irreconcilable differences
You do not have minor children together, and neither one of you is pregnant with a shared child
Your marriage or domestic partnership lasted 5 or fewer years from the date you were married or registered as domestic partners to the date that you separated
You don’t own any land or other “real property” (like a house or commercial building)
Neither of you has built up more than $6,000 in debt since you began your marriage or partnership (car loans don’t count)
You must have less than a certain amount in community property (the amount is subject to change, so ask your attorney about the current limit)
You both complete and sign a property settlement agreement to divide the community property that you do own together
You both agree to give up any rights you may have to spousal support
You have both read and understand California’s Summary Dissolution Information booklet (here)

There is an exception to the residency requirement: If you are a same-sex married couple who no longer lives in California, but you were married in California, you can still file in our state if the state you live in now won’t dissolve your marriage. You’ll have to file in the county where you were married to take this route.

What is the Difference Between Summary Dissolution and Divorce?

Summary dissolution is a divorce. It’s simply one that’s a bit less complex than the traditional route.

Related: Overview of divorce in California

How Long Does it Take to Get a Summary Dissolution in California?

There’s a 6-month waiting period for a summary dissolution. What that means is that your attorney will file your petition for you – and once the 6-month period is over, the court will enter a judgement that orders the dissolution of your marriage or domestic partnership. Once that’s done, you can remarry or start a new domestic partnership – your previous marriage or partnership is officially over.

Is There a Downside to Summary Dissolution in California?

While there isn’t a downside – you still get to dissolve your marriage or domestic partnership using a summary dissolution – the catch is that it’s only available to certain people. You can’t have minor children together (neither biological nor adopted) and you can’t have much community property together.

If you don’t meet the criteria, you’ll have to file for divorce rather than summary dissolution. Divorce brings about the same results.

Do You Need to Talk to a Stockton Divorce Lawyer About Summary Dissolution?

If you think that summary dissolution might be the right option for you to end your marriage or domestic partnership, we can help you. Keep in mind, though, that it’s not for everyone – you may need to end up filing for a standard divorce.

Call us at 209-546-6870 to schedule a consultation with a caring, compassionate and knowledgeable divorce attorney in Stockton right now. We’ll answer your questions about child custody and child support, property division and more.

Divorce

How is Credit Card Debt Split in Divorce in…

March 17, 2019May 24, 2020
by Angie

When you get a divorce in Stockton, you and your spouse will have to divide your property – and property includes both assets and debts.

California is a community property state, so usually, the division of credit card debt is pretty clear-cut. Here’s what you need to know.

What is Community Property?

The term community property refers to assets or income that belong to both parties in a marriage. Even if only one spouse earned or brought in the asset, the other party is entitled to a fair share of it.

The same is true with debts, in many cases.

If the debt was incurred during the marriage, by either or both parties, it’s community.

There are some exceptions that fall under separate property, though. Separate property is property that belongs to only one party. Usually, that means one party brought it with them into the marriage.

How is Credit Card Debt Split in Divorce in California?

When you have community credit card debt, you and your spouse will have to figure out how to divide it equitably and fairly. You don’t have to split it down the middle. You just have to make sure that it’s fair.

Examples of Splitting Credit Card Debt in Divorce

Let’s say you and your spouse have combined credit card debt of $10,000. You have two savings accounts between you – one is worth $30,000 and the other is worth $20,000. It would be fair to give the $20,000 account to one spouse while the other spouse gets the $30,000 account and the $10,000 debt responsibility.

In another scenario, you have combined credit card debt of $7,500. You have a joint savings account that’s worth $17,500. It would be fair to pay off the debt of $7,500 from that account and split the remaining $10,000 – or to give one party $5,000 and the other party $12,500 plus the debt responsibility.

If you don’t have savings and you’re getting a divorce with credit card debt, you’ll most likely end up having to agree to splitting the responsibility for the debt.

You can also negotiate other ways to make it fair. For example, if one of you receives a vehicle that’s paid off, a certain piece of art or anything else of value, you may choose for that person to be responsible for a larger portion of the debt.

What About Your Creditors?

Your creditors are just along for the ride in a situation like this. You need to remember that if your name is on a credit card and your spouse ends up being responsible for paying it, your name is still the one attached to it – and it’s your credit score that will take a hit if your spouse fails to pay. You will still be liable for the debt.

For this reason, it’s often best to sell property before the divorce is final and use the proceeds to pay off the debt. Another option: You can use balance transfers or refinancing to shift the debt responsibility into your spouse’s name.

The bottom line, though, is that every situation is different. You and your spouse might be able to reach a fair agreement that doesn’t match anything you see here, or you might choose to see a mediator to hammer out your differences and find fair resolutions.

Related: What is divorce mediation?

Do You Need to Talk to a Stockton Divorce Lawyer About Credit Card Debt and Divorce?

If you’re divorcing your spouse, we can help you find solutions that work out best for everyone involved.

Property Division

Community Property Basics

December 27, 2018September 20, 2019
by Angie

In California, the term community property refers to any assets or income earned by a married person – and it belongs to both parties of a marriage, not just the one who brought it in. It’s different from separate property, which only belongs to one spouse.

And during a divorce, community property must be divided equitably between both of you.

Community Property Basics

Anything that either of you contributed to the marriage during the marriage – with the exception of separate property (more on that later) – has to be divided equally when you split up. That includes:

Assets you’ve purchased, like cars and your family home
Investments you’ve contributed to or earned money from
Bank accounts
Stocks
Patents
Both of your pensions and employment benefits
Professional practices and businesses
Costs incurred from earning a college degree or professional license
Cryptocurrency
Furniture
Clothing
Debt

What is Separate Property?

Separate property can’t be divided during a divorce. That’s because it belongs to only one of you. Separate property can include things that one spouse did acquire during the marriage, but is reserved for only that spouse. For example, these things can count as separate property that you don’t have to divide:

Gifts
Inheritances
Property or assets one of you had before the marriage

What is Quasi-Community Property?

Quasi-community property is property that you acquired while you were living outside California. For the most part, this type of property is divided like community property is. It can include things like real estate, earnings and other assets, as well as debt.

What is Commingled Property?

Some things are part community property and part separate property. When property is part of each, it’s called commingled property. It can be tough to figure out how to divide it, so your attorney will give you the guidance you need. Some examples of commingled property can include:

A house you bought before you were married, but continued to live in and pay for after your marriage
A pension or retirement account that one of you owned before your marriage, but continued to contribute to during the marriage

What About Dividing Community Property During Your Divorce?

California law doesn’t require you to split everything down the middle. That would be a huge headache – and it could even force you to sell a business or do other things that are incredibly disruptive.

Instead, the law requires you to split things fairly. For example, if one of you really wants the sportscar and the other wants something of equal, comparable value, it’s okay to trade that way. Your attorney can help you negotiate with your spouse so you can divide your property equitably.

Dividing Community Debt During Divorce

Like your assets, both of you own the debt that you acquired during your marriage. That’s true even if the debt is on a credit card or mortgage with only one of your names on it. Here’s one exception, though: When you open a credit card after you separated from your spouse – that one only belongs to you.

Do You Need to Talk to an Attorney About Your Community Property and Divorce?

If you’re thinking about filing for divorce, or if your spouse has already filed, you may want to talk to a Stockton family law attorney about property division. It can be tough to categorize property as separate or community, and even tougher to value it all to make sure it’s divided fairly. If necessary, your attorney will help you find the right valuation professionals to ensure that you get what you deserve from your divorce.

Call us at 209-910-9865 to set up a consultation to talk about your case and get answers to all your questions, including those about permanent alimony, child custody and child support and more.

Divorce and Cryptocurrency: What You Need to Know

November 22, 2018August 4, 2020
by Angie

Divorce in California can be complicated – and it can be even more complicated when cryptocurrency is involved. Divorce and cryptocurrency are appearing together more frequently in court, so here’s what you need to know.

Divorce and Cryptocurrency: What You Need to Know

When you or your spouse owns cryptocurrency, your divorce requires a different type of financial valuation than other types of divorces do. Cryptocurrency value fluctuates – and it’s not just Bitcoin that surfaces in California divorces any more (though Bitcoin is the most valuable). Dozens of other types of cryptocurrency have cropped up over the past few years, including Ethereum, Dash and ZCash, and the courts have to ensure they’re valued properly to make sure settlements are fair and equitable. Bitcoin divorces – or, more appropriately now, cryptocurrency divorces, are becoming more common.

The Darker Side of Divorce and Cryptocurrency

Unfortunately, because of the nature of cryptocurrency, it’s not incredibly difficult for one spouse to acquire a significant stash of it and never let the other spouse know. It’s incredibly important for both parties to fully disclose their incomes.

If you suspect your spouse has cryptocurrency that he or she isn’t disclosing, it’s a good idea to talk to your Stockton divorce attorney about your concerns. Your attorney will be able to explain your options and work with you to determine how to ensure your spouse isn’t hiding cryptocurrency during your divorce. There are tools available to trace cryptocurrency, and courts are generally used to tackling cases that require tracking assets.

How Courts Value Cryptocurrency in Divorce

Your attorney may suggest that rather than valuing your shared cryptocurrency assets during divorce, you split the cryptocurrency itself. You can divide it fairly, regardless of what it’s worth, and it can simplify the property division process.

The issue is that cryptocurrency’s value fluctuates – sometimes wildly – and that makes it hard to assign it a dollar value. If you have your cryptocurrency valued today and you agree on a dollar amount that needs to change hands, it may not be worth the same amount by the time the judge signs your divorce decree. That can benefit you, or it can hurt you.

Generally speaking, you’ll use two copies of California’s Schedule of Assets and Debts to agree on how much cryptocurrency you have between you. You and your spouse are supposed to trade documents before the property division process begins – it’s sort-of a checks-and-balances system. If you and your spouse agree that everyone’s told the truth about his or her assets and debts, then you can begin dividing your property.

Is Cryptocurrency Separate Property or Community Property?

In a divorce, cryptocurrency can be separate property or community property. Typically:

If you entered the marriage with your own cryptocurrency, the courts will most likely consider it separate property. In many divorce cases, each person is entitled to his or her own separate property without sharing it with the other spouse.
If you acquired the cryptocurrency while you were married – even if one spouse had no idea the other was buying cryptocurrency – it’s usually considered community property. California law requires you to divide most community property equally. An exception may be if you acquired the cryptocurrency as a gift or inheritance that was intended only for you.

There’s no guarantee on how a judge will rule, however, and no attorney can make promises about the outcome of your case. Every case is different, and while these rules on separate and community property may apply in many cases, they may not exactly apply to yours.

Do You Need to Talk to a Lawyer About Divorce and Cryptocurrency?

We can help you if you’re dealing with a divorce and cryptocurrency division. It’s our mission to help you reach a fair and just settlement, so please call us at 209-910-9865 or contact us online to schedule an appointment with an attorney.

While you’re here, you can also learn more about:

Divorce

California Divorce: Who Gets the House?

November 6, 2018November 12, 2019
by Angie

In a California divorce, who gets the house?

This is one of the biggest questions many people have about splitting up, but the answer isn’t as simple as you may hope.

California Divorce: Who Gets the House?

Your marital home – what the court calls your house when you’re divorcing – might be one of the toughest issues in your divorce. For some people, it’s right up there with child custody. In most cases, it’s the family’s most valuable asset, and everyone’s emotionally attached to it. When you have children, there’s even more to consider.

For the most part, who gets the house is up to you and your soon-to-be ex. However, there’s one exception: When the house is separate property.

What Happens When the House is Separate Property in a California Divorce?

If the house is separate property, which occurs when one party owned it prior to the marriage, the spouse who owns it is entitled to it. This can get pretty confusing, though, because if the house wasn’t paid off when the two parties married, or when one party contributed money to mortgage payments or pitched in for improvements during the marriage. In a situation like this, it’s best to check with your Stockton divorce lawyer to find out whether the courts will consider the house separate property or community property.

What Happens When the House is Community Property in a California Divorce?

If your home is community property, you have several options, including:

A buyout
Deferred sale
Sale

A Buyout During Divorce

You and your spouse may agree to a buyout. A buyout occurs when one spouse takes full ownership of the house – and takes on the mortgage payments, if there are any – while paying the other spouse his or her share. Typically, that means the buying spouse needs to refinance so that the other spouse isn’t on the new mortgage.

In some cases, the court might order that the selling spouse make the mortgage payments as a form of spousal support. If that’s something you’re interested in learning more about, talk to your divorce lawyer so she can give you guidance.

There are always tax implications when you’re dealing with a buyout of a home during divorce, which your lawyer will also talk to you about. In some cases, a buyout isn’t the best option.

Deferred Sale of the House in a California Divorce

Sometimes courts make orders that temporarily delay the sale of a home because it’s in the children’s best interests. (It’s technically called a deferred sale of home order.) If this happens in your case, both you and your ex will stay on the title of the home; you’ll own it jointly, but only the custodial parent gets exclusive use and possession of the home. These orders are fixed for a set period of time, and in making this big decision, the court will consider:

How long the kids have lived in the home
How old the kids are
How close the home is to school, child care and other amenities the kids need or use
Whether the home has been modified to accommodate the custodial parent’s or a child’s physical disability
What kind of emotional impact moving would have on the kids
How the location of the home helps the custodial parent maintain employment
Whether each spouse can obtain suitable housing
Tax consequences for each party
Whether a delayed sale will have a negative financial impact on one parent

Selling a Home During Divorce

In a lot of cases, both spouses agree to sell the house and split the profits from the sale. This usually happens when neither spouse can financially handle owning the home on their own.

Do You Need to Talk to a Lawyer About Who Gets the House in Your California Divorce?

Call us and schedule your consultation with a Stockton custody lawyer today – we may be able to help you. While you’re here, you can also explore our articles on:

Call us at (209) 989-4425 or get in touch with us online to talk to a lawyer who can help today. We’ll help you with every aspect of your divorce, from child custody and child support to alimony and property division.

Divorce

The Bitcoin Divorce: How Do Courts Divide Cryptocurrency?

February 27, 2018January 17, 2019
by Angie

Bitcoin and other cryptocurrencies are treated like property in a divorce – but how does division of these assets work in California? So far, it’s been a little bit tricky, so here’s what you need to know if your divorce involves Bitcoin or another cryptocurrency.

The Bitcoin Divorce: How Do Courts Divide Cryptocurrency?

When you’re talking to your Stockton divorce attorney about property division, make sure she knows that you have assets in Bitcoin. More separations involve cryptocurrencies than ever before, and in some cases, the values held in those currencies is exceptionally high. Like in any divorce, it’s imperative that both parties fully disclose the extent of their assets; if one doesn’t, the search for the funds can be time-consuming and expensive.

There are tools available to trace Bitcoin, according to Forbes, but many attorneys aren’t familiar with how to use them (or even familiar with the currency itself). However, courts are used to handling cases that require tracing assets – including those that are held offshore, which is a little similar to the types of Bitcoin holdings that are appearing in divorce court today.

Valuing Bitcoin During Divorce

Bitcoin’s value can fluctuate dramatically, which means it’s tough to pin down a dollar figure during divorce. What it’s worth when you file the papers isn’t necessarily the same as what it’s worth when the judge signs your divorce decree, so it’s not as straightforward as traditional investments are. You can’t count on the currency’s worth until the day your judge signs the final papers.

In some cases, it’s best for the partners to skip valuation and divide the Bitcoin itself. That way, it’s a fair split – and it causes fewer logistical problems throughout the divorce.

How is Bitcoin Divided in a Divorce?

Whether you and your ex-spouse choose to divide your Bitcoin assets or you value them and use them in the settlement, the courts treat the currency like it treats other types of property and assets. Each party will list their assets and the values of each on a Schedule of Assets and Debts (Form FL-142), and then exchange copies with the other party. If each party is satisfied that community assets and debts are fully disclosed, the property division phase of divorce can begin.

Community Property vs. Separate Property

If one or both parties to the divorce obtained Bitcoin or another cryptocurrency during the marriage, it’s likely to be considered community property. Under California law, spouses are supposed to divide community property equally.

If one or both parties came into the marriage with his or her own cryptocurrency, it’s likely to be considered separate property. It’s also likely to be considered separate property if one party inherited it or received it as a gift. Usually, separate property belongs to the same spouse throughout the marriage and during the divorce; it’s not typically subject to equal division like community property is.

Do You Need to Talk to a Stockton Divorce Lawyer About Bitcoin in Your Divorce?

We can help you if you’re dealing with a divorce that involves Bitcoin or another cryptocurrency. It’s our mission to help you reach a fair and just settlement, so please call us at 209-910-9865 or contact us online to schedule an appointment with an attorney.

Divorce

Filing For Divorce? Common Questions Regarding Divorce and Separation.

January 4, 2016June 8, 2020
by Anna Maples

What is a divorce? California is known as a “no fault” divorce state, which means that if you are asking for divorce, you do not have to prove that the other spouse did something wrong. To get a divorce in Stockton you simply have to state that you and your spouse cannot get along or are having “irreconcilable differences”. Let assume that it is your spouse that filed for divorce, and you have been served with the divorce papers. You will have thirty days to respond, and file your response with the court. Simply ignoring the paperwork will not help the situation because you will eventually deal with the default that your spouse may file once the time period to respond has come to an end.

Filing for divorce? How can I file for divorce? In order to begin the divorce process with the court, you have to complete a Petition for Dissolution. Make sure that all necessary information was put in the Petition. If you have minor children from this marriage, you also will have to fill out Declaration under Uniform Child Custody Jurisdiction Enforcement Act. Once you complete the paperwork, bring it, together with extra copies to the court clerk to file.

Are there special requirements before I can file for divorce? There are number of requirements that you have to satisfy before you can file for divorce with the court in California. First, you have to be the resident of the State of California for at least 6 months prior to filing the divorce papers; second, you have to be a resident of the county you are filing the divorce paperwork in for at least 3 months. However, if you do not satisfy those requirements, you still can file for a Legal Separation. Court Fees apply to process your paperwork unless you qualify for a Fee Waiver.

What happens after I file for divorce? If all requirements are met, you will be issued a Summons. Someone over the age of eighteen and not a party to the action will serve the Summons and the Petition on your spouse by personally delivering the paperwork to him/her. That puts your spouse on notice that the divorce paperwork is filed with the court, and he/she has thirty days to respond to the Petition for Dissolution. Once your spouse has been served, the person who served him/her should sign a special form called the Proof of Personal Service, and you should file this form with the court.

What if my spouse and I have an agreement? This is a good sign that you and your spouse decided dissolve your marriage amicably. The agreement is usually called Marital Settlement Agreement. This Agreement may reflect various provisions you want to agree to with your spouse with a few exceptions prescribed by law. The Marital Settlement Agreement will be attached to your Final Judgment, and will become a court order after the judge signs the Judgment.

Do I have to wait before I can remarry again? Yes; there is a waiting period, usually of 6 months and one day from the date that your spouse has been served with the Summons and the Petition. However, there are certain counties in California where the time period is shortened. Please check with your local family law court clerk before filing the Petition for Dissolution.

What happens with the house, cars, and other property we have? Once the Summons is issued, there are automatic restraining order for both spouses regarding their rights and obligations; property; insurance, etc. California is a community property state which means that all property acquired by the parties during marriage is community property. Each spouse has a right to one half of the community interest. However, if the property was acquired prior to marriage; after separation of the parties, or during marriage by gift or inheritance, that property is called separate property of the parties.

What happens with the credit cards and other debts? Community property interest consists of both rights and obligations. This means that each party will be responsible for the half of the community debt.

What happens with kids? This is the toughest question of all. Obviously, children cannot stay with both parents; this means that you and your spouse have to share custody and visitation time for the children. Usually, the parties will have joint legal and physical custody. The parties with or without court assistance will develop a visitation schedule for the children. In a case of court assistance, numerous factors will be taken into consideration. Please see the “Custody” section of our website for further details.

Can I make my spouse pay me before the divorce is final? And how much can I receive? Yes, you can ask the court to order temporary spousal or child support. However, the amount of the support depends on numerous factors that the court takes into consideration when awarding the support amount. Please see the “Support” section of our website for further details.

Do I have to go to court to get a divorce? It depends on whether you and your spouse have an agreement. If you have Marital Settlement Agreement in place, then that agreement will be attached to a Final Judgment for Dissolution of Marriage. That means you do not have to go to court unless some special circumstances arise. However, if you and your spouse cannot agree on issues such as custody, property division, child/spousal support, etc., you will appear and present your arguments to the Judge. The Judge will make the final decision on the issues that are litigated.

What happens after the divorce is finalized? You will receive the Final Judgment for the Dissolution of Marriage. Congratulations! You are eligible to marry again if you decide to do so. Most importantly it means that you can move on with your life, and put the divorce experience behind your back! Let our Divorce Attorneys at Maples Family Law divorce education provide you competent understanding of the nuances that affects your family law case.