Tag: <span>Family Law Attorney</span>

What is a Divorce Settlement Agreement?

April 5, 2022December 10, 2022
by Briana White

What is a Divorce Settlement Agreement?

Never, in the history of love, has ever been two relationships that were exactly the same. As a result, no two divorces are identical, either. This is why, when it comes to divorce, you’ll have options.

In California, there are several different types of divorce, and not all require a trial. Indeed, couples who can communicate and compromise need only draft a settlement agreement (and submit it to a judge for approval), in order to get divorced.

A divorce settlement agreement is an agreement couples reach on their own, which encompasses the terms of their split. Because it’s faster, less expensive, and more flexible than litigation, this method is an attractive option for divorcing couples.

Here’s what you need to know about divorce settlement agreements in California, and what the Maples Family Law team can do to help you with yours.

What is a Divorce Settlement Agreement?

A divorce settlement agreement is a legal document that represents the decisions reached by a couple during their out of court divorce negotiations. Its purpose is to document these decisions, and to outline how the couple would like to proceed, moving forward.

Some of the topics outlined in this agreement might include things like:

The division of marital property;
The assignment of debt responsibility;
The terms of child custody and visitation;
The delegation of child support; as well as,
The duration and allocation of alimony.

In addition, settlement agreements provide a way for spouses to change their last name, should they choose to do so.

Because this document is drafted outside of court, it’s much faster and less expensive than a contentious litigation process. In addition, couples have a lot more deference in determining the outcome of their own fate.

How to Get a Settlement Agreement?

In order to get a settlement agreement, you and your spouse must be able to… well… settle the terms of your divorce outside of court. (A.K.A. Without a judge breathing down your neck.)

This can be done via a couple of different options, with most popular being: uncontested divorce, mediation, and collaborative divorce. In some cases, you might even reach a settlement while preparing for divorce litigation (say, if your judge offered you one last chance to settle, before opening your trial).

Once finalized, a divorce settlement agreement must be signed and notarized by both spouses. But—while it might look, act, smell, and think in much the same way—it is not technically not the same thing as a final divorce order.

At least not yet…

Settlement Agreement Transformation

Like a wiggly, green caterpillar, a validly executed settlement agreement contains all the necessary ingredients to become a beautiful butterfly (or, in other words, your final divorce order). However, neither can reach their final destiny without one last, important step.

For a butterfly, that step is a chrysalis. For your settlement agreement, it’s judicial approval.

According to California family law, this approval is critical, and simply having a settlement agreement will not be enough to finalize your divorce. And, without finalization, the terms you so carefully negotiated will not be enforceable.

With judicial approval, however, your itty green caterpillar transforms, changing from settlement agreement into a final divorce order, with fully enforceable terms.

Will a Judge Approve My Agreement?

As a general rule, judges don’t usually have a problem approving an agreement that a couple comes up with on their own. (After all, they’re overworked and swamped, so if spouses agree, who are they to fight it?)

There are, however, a few things that could hold up this approval, and before giving blanket approval to your terms, your judge will likely pause to check for the following:

1. Residency Requirements

No matter what type of divorce you choose, couples who want a California divorce must meet the residency requirements.

At the state level, this means one of you must be a resident for at least six months; in addition, most counties will require at least three. (Although, there are a few limited exceptions.)

2. Best Interest of the Child

California family law requires that all child custody decisions be made according to a child’s best interest. Hence, your judge will be checking to make sure your proposed parenting plan is the one that will best serve your child’s long-term health and happiness.

If something isn’t right, your judge will likely send you back to negotiations with suggestions on how to revise. If you and your spouse cannot agree on the fix, then the judge will simply make the revisions for you.

3. CA Child Support Guidelines

Part of your custody evaluation will include a thorough analysis of your child support arrangements.

In California, certain minimums must be met, in order to receive approval. This is true, even if you and your spouse agree on what the amount should be. An agreement that does not meet these minimums will not be approved.

4. Property Division

California family law states that any division of marital property must be “just and right.” While there’s a little subjectivity involved in determining exactly what that means, we can say for certain that if it looks disproportionately skewed to one side or the other, your judge will not approve the split.

In addition to having to renegotiate the terms, a skewed arrangement could also arouse suspicions of undue influence, undisclosed assets, or even emotional abuse. Hence, it’s better to simply make the division fair the first time.

5. Representation

While attorneys are not required in California, the presence of them is often a good indication that the agreement was fair. Things get a little iffy, however, if neither one was represented, or, if one spouse had an attorney and the other didn’t.

Generally speaking, spouses should not be sharing an attorney during this process. (It creates a conflict of interests.) To ensure both sides are fairly and earnestly represented during divorce, each individual should be represented by their own, independent attorney.

What Happens if I Change My Mind?

Changing your mind before a settlement agreement is signed is perfectly fine; during negotiations, either side can change their mind for any reason, at any time. When this happens, spouses will simply resume discussions with the new information in mind.

If you change your mind after the agreement has been signed, however, that’s a different story.

The whole purpose of a settlement agreement is to document the terms of a negotiation; a way to lock your decisions into place, so no one can go back later and call foul. As a result, once you sign the document, it’s pretty difficult to change.

After signing, you’ll only have a limited amount of time to rescind before there’s nothing your attorney can do. This is done by filing a motion with the court, and showing your judge why changes are necessary.

Once your divorce has been finalized, though, there’s almost nothing you can do. Unless you can show undisclosed property, undue influence, or fraud. In these situations, the court may reopen the case and rescind the agreement. Otherwise, your only option will be to file a motion to modify.

Do You Need a Divorce Settlement Agreement in California?

When you get divorced, there are a lot of things you’ll be required to do. Thankfully, however, going to court isn’t one of them.

If you have more questions about divorce settlement agreements—and whether one might work for your situation—we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and together, we can figure out which type of divorce that’s right for you.

Inspiration and Hope from Dr. Thomas Maples

Dr. Thomas Maples is a business development consultant for Maples Family Law. His podcast, A Sacred Journey, Inspiration VLOG, and Blog are a free resource open to all who need a little help navigating life difficulties.

More from Dr. Thomas C. Maples

Divorce

Why Do I Need an Attorney?

March 29, 2022February 25, 2022
by Briana White

The jury results are in, and the verdict is clear: hiring an attorney is the most expensive part about getting divorced. And not just by a little, either—by a lot.

Between retainers, hourly fees, and other expenses, the price of a good divorce attorney isn’t cheap. And with no concrete way to tell exactly how much your divorce will cost (or how long it’ll take), this leaves many potential clients wondering if they’d be better off not hiring an attorney, altogether.

Unfortunately, this would be a mistake. Because while it’s impossible to tell you exactly what your attorney will cost, what we can tell you is that it will almost certainly be worth it.

For those wondering, “Why do I need an attorney?”, here’s what you need to know about representation, why it’s so important, and what Maples Family Law can do to help you with this important decision.

Why Do I Need an Attorney?

The short answer to this is: you don’t.

According to California family law, you do not have to have an attorney in order to get a divorce. You and your spouse are free to duke things out on your own, draft your own settlement agreement, and can even head to trial without backup.

However, like a lot of things in life, just because you can doesn’t mean you should.

Part legal rights advocate, part therapist, and part divorce trail guide, an attorney is a critical part of any successful divorce squad. And heading into this journey without one would be kind of like sending Frodo on to Mt. Doom without the help of trusty Samwise—or worse, Gandalf.

Hence, whether you are engaging in divorce mediation, collaborative divorce, or want to explore the treacherous path of divorce litigation, here are six reasons why you really do need an attorney.

1. Reducer of Stress

First and foremost, attorneys reduce stress.

Just like you don’t have to worry about things like speed limits when your Über driver is at the wheel, an attorney’s job is to take over legal navigation. When you hire one, you no longer have to worry about all the nitty-gritties of your journey (like deadlines and paperwork and filing fees). Instead, your attorney worries about that for you, freeing up your mental bandwidth, so you can focus on more important things.

2. Communication Buffer

Once you have an attorney, your spouse will be obligated to go through them if they want any information. This means you no longer have to feel obligated to answer your spouse’s call, or to engage with them in pointless, circular, emotional discussions.

The only exception to this, is if a judge initiates a temporary order (about, say, property or child custody), which may require you to occasionally coordinate with one another. Baring the bare minimum required by your judge, however, there’s no other reason you ever need to feel obligated to answer a call or text.

3. Divorce Law Rosetta Stone

Let’s be real, here: divorce law is complicated. The jargon is formal, stilted, and filled with enough long, run-on sentences to drive anyone insane.

Luckily, family lawyers have gone a few rounds in the ring with this type of language, and can now read legal jargon as easily as a child’s bedtime story. Which is great, since it means you don’t have to!

An attorney can help you interpret the law, and apply it to your unique situation in a way that actually makes sense. This will, in turn, save you a lot of time, money, and stress, since there will be a lot of formal information to ferry between parties along the way.

4. Divorce GPS

That education will be good for more than just translating the law… it’ll also be helpful when applying it. Because—believe it or not—when it comes to divorce, you have options.

In California, your first choice will be what type of divorce you want; but the decisions won’t end there. Indeed, your journey will be filled with crossroads, and each choice will have a different result. However, it can be hard to feel right about a decision, when you have no idea where each one leads.

This is where experience comes into play. As one who’s seen it all (or, at least, a lot of it), an attorney is like a really great trail guide—or that GPS app you can’t live without. They help you understand how each choice will affect your divorce, and guide you toward the path that will achieve the best results.

5. Top-Notch Paper Pusher

Paperwork is one of the biggest headaches about divorce—and a huge offender of delays and setbacks.

First off, there’s figuring out which divorce paperwork you need. Next there’s filling then out—which lines you don’t want to miss and what supplemental information you’ll need—and that’s not even getting into where you have to file them and how much you’ll have to pay when you do.

Hiring an attorney is a stress-free fast past to paperwork made easy. Sure, you’ll need to provide information and do the actual signing, but that’s about where it stops. Not only will your attorney make sure you’re filling out the right paperwork, they’ll also make sure it gets filed, too.

6. Risk Mitigation

When it comes to divorce, there are a lot of things that can go wrong. Filing the right paperwork is one of them, but there are also discovery deadlines, financial disclosures, service proofs, and, in some cases, even protective orders that you have to worry about.

All of these things need to be handled within a certain timeframe, and according to very specific protocol. And failure to follow these protocols will—at the very least—result in fines and delays. At most, then can result in a default judgment, the relinquishment of parental rights, or a significant loss of property.

These types of mistakes are avoidable, but only if you know what to watch out for. When you don’t, they can often be costly—sometimes impossible—to reverse. Hence, instead of playing Russian roulette with self-representation, it’s better to hire an attorney.

The right representation mitigates risk by steering you around common pitfalls, not only saving you time and money, but safeguarding your rights, as well.

Wrapping it all Up

While almost every divorce could benefit from an attorney, not everyone will need the same type of services.

For example, a couple that’s chosen an uncontested divorce certainly won’t need the same attorney involvement as a divorce trial. Similarly, spouses with a prenuptial agreement will probably be just fine with mediation.

That being said, all of these couples could benefit from attorney involvement. Just how much, however, depends on your unique circumstances.

A good attorney is the one who caters their legal strategy to fit your needs. They are one who respects your time, your wants, and—perhaps especially—your budget, fighting tirelessly for your rights within whatever parameters you set.

Do You Need A Divorce Attorney in California?

If you have more questions about divorce attorneys in California—and how one might be able to help with your situation—we want to hear from you. Start your divorce process out right by calling Maples Family Law at (209) 989-4425, or get in touch online, and let us help your divorce go as smoothly as possible.

Child Custody

Visitation Schedules

March 15, 2022February 25, 2022
by Briana White

Between school and work schedules, the modern family has a lot going on. As a result, even when both parents are qualified, it’s not always possible for California courts to split a child’s time fifty/fifty.

When this happens, the court will sometimes choose a primary residence for the child, and award the non-resident parent ample visitation.

Visitation comes in several types and can be either scheduled or not. This important parental right ensures both parents have time to cultivate a meaningful relationship with their child and to influence how they’re raised.

Here’s what you need to know about visitation schedules in California, and what Maples Family Law can do to help you figure out the plan that’s right for your family.

What is Visitation?

Visitation is a critical part of child custody, and refers to the allotted parenting time given to a non-custodial parent. This in-person time is critical to maintaining parental rights, and ensures both parents have access to their child.

When visitation is planned in advance, this is called a visitation schedule. Visitation schedules can be as detailed or flexible as parents can handle; some need everything planned out, while others work better on an as-needed basis.

Visitation—whether scheduled or not—is only really applicable in situations where one parent is assigned sole physical custody. If both parents have their child for an equal (or close to) amount of time, this is called joint custody.

In California, all custody decisions—including visitation—will be determined, according to a child’s best interest.

Figuring Out the Visitation That’s Best for Your Child

The best interest of the child is a legal standard that makes a child’s long-term health and wellbeing the driving force behind every decision made.

When applied to custody and visitation, the court will weigh a number of different individualized facts, and choose the outcome that will serve your child best.

Some of these considerations include:

The child’s age;
The child’s health;
The child’s relationship with each parent;
The child’s ties to school, home, and community;
Each parent’s ability to care for the child; and,
Any history of family violence or substance abuse.

Judges are also free to consider any other tidbits they think might be relevant to this decision—though, we should point that, that a parent’s wishes will never be one of those morsels.

Types of Visitation

Like with everything else in family law, visitation isn’t a one size fits all situation. Families are each unique, and thus, each will need an arrangement tailored to their child’s unique needs.

To accommodate all these varying needs, California family law offers four main types of visitation. These include:

Scheduled Visitation
Reasonable Visitation
Supervised Visitation
No Visitation

Here’s a closer look at each of these, and when you might use one over the other during a custody dispute.

1. Scheduled Visitation

When people think of visitation, scheduled visitation is usually what comes to mind. In this arrangement, a child’s time with each parent is planned out—often in fairly significant detail.

Often, this calendar often will include information about:

The dates and times with each parent;
Drop off times and locations;
Where the child will spend major holidays;
Who gets the child on birthdays;
School schedules, summer holidays, and family vacations; as well as,
Directions for how special events will be handled.

Contrary to popular belief, parents do not have to use the court in order to get a scheduled visitation. Parents are always free to make their own parenting plan, and can tailor it to meet their family’s specific needs. If you can’t, though, then the court will draft one for you.

This is usually done using a standard visitation schedule as a starting point. These standard schedules come in a variety of different formats, such as alternating weeks, every other weekend, and even age appropriate schedules, depending on the child’s needs. (For example, a daytime only schedule for a newborn baby.)

Scheduled visitation is often preferred over other types of visitation, since both parents know what to expect. This helps them to avoid conflict, and provides children with a set routine. However, not all parents like the rigidity of a scheduled arrangement, which is why some choose our next option.

2. Reasonable Visitation

Unlike scheduled visitation, reasonable visitation does not try to plan everything out. Instead, parents agree to allow the other a “reasonable” amount of time with the child, and get to decide—on their own—what, exactly, that means.

Reasonable visitation is essentially an open-ended, “fly by the seat of your pants” arrangement, and offers families a lot of benefits. Like flexibility, and ongoing communication. Because of this, they work particularly well for amicable divorces, unmarried parents, and those with unpredictable work schedules. However, it’s definitely not for everyone.

With no structure in place—or, even a definition of what “reasonable” might be—this type of visitation can easily lead to disagreements, requiring parents to head back to court again, later on down the road.

3. Supervised Visitation

In a supervised visitation arrangement, a parent’s time with their child is chaperoned. This can be done either by a neutral third party (such as a family friend or family member), or, in some cases, may require a paid professional (such a social worker).

Judges usually require supervised visitation, when the health and safety of the child are in question. Sometimes, this is because of domestic violence. Other times, the court might be worried about mental illness, substance abuse, or even, parental abduction. However, supervised visitation doesn’t always mean you’ve done something bad.

Supervised visitation is also used to help parent and child ease into a relationship, if the two haven’t seen each other in a long time.

4. No Visitation

And finally, there’s our least commonly used type of visitation: no visitation.

We say “least commonly used,” here, because parental rights are pretty dang important in California. Hence, in order for the court to completely restrict a parent’s access to their child, the threat of harm has to be fairly significant.

This is usually implemented in cases of known domestic violence, where the threat of physical and/or emotional harm still exists. In California, the court will not put a child in danger just to uphold a parent’s right to access. That being said, keep in mind that you (as a parent) don’t get to make that call.

In California, parents are not allowed to withhold visitation for any reason. Doing so could put your own parental rights at risk, and prompt the court to reevaluate your custody order.

If you believe your child is in danger, then you should call the authorities. Afterwards, talk to your family law attorney about filing a formal case.

Do You Need Help with a Visitation Schedule in California?

As a divorced or unmarried parent, your allotted parenting time is a critical part of establishing and maintaining a relationship with your child. That’s why it’s so important to have the right attorney fighting for your rights during a custody dispute.

If you have more questions about visitation schedules in California, and how one might work in your situation, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us fight for the arrangement that’s in your child’s best interest.

Divorce

Proper Service

March 1, 2022March 29, 2022
by Briana White

Marriage involves a shared legal interest in things like property, debt, and child custody, which is why when you file for divorce, you can’t just cross your fingers and hope your spouse gets the memo about when and where to show up.

Instead, California courts will require you to notify your spouse of your actions through a specific set of steps known as “proper service.” This ensures both sides have ample time to prepare for divorce, and are given the opportunity to be fully involved.

Here’s what you need to know about executing proper service in California, and what our team at Maples Family Law does to help you with this important step.

What is “Proper Service”?

You might have already heard, but in the U.S. legal system, due process is kind of a big deal. This important personal right ensures your interests are properly represented, and that you have a chance to defend yourself in front of a judge, when someone takes legal action against you.

That’s why when you file for divorce, you have to notify your spouse—and not just any old text message will do. Instead, you have to execute this notification properly.

“Proper service” (or “service of process,” as it’s sometimes called), is the formal notification method for telling your spouse that you’ve filed for divorce. This info alert is a required part of filing for divorce in California, and is typically accomplished by hand delivering copies of divorce paperwork to the other party.

Proper service is mandatory. Failure to follow the correct process puts your case at risk of being thrown out, and can cause frustrating delays. Which is why it’s best to make sure it’s done right the first time.

How to Execute Proper Service in California

In California, executing proper service involves delivering copies of divorce paperwork to your spouse. However, in order to be valid, things have to be done “properly,” including:

Proper paperwork
Proper server
Proper process
Proper proof

Here’s a look at each of these, and how to make sure they’re done… well… properly.

1. Proper Documents

First, you’ll need to make sure you’re delivering the right documents. In California, this usually means copies of all your divorce paperwork, such as your:

Petition for Divorce
Summons
Property Declaration
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act
Child Custody and Visitation (Parenting Time) Application

You’ll also want to throw in a few blank divorce forms, including:

Response—Marriage/Domestic Partnership
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act

With these documents collected, you can then move on to the next step: choosing your courier.

2. Proper Server

Naturally, proper service can’t be carried out by just anyone—you need the right one.

Luckily, the qualifications aren’t very strict, so you’ll have a lot of options to choose from; however, there’s one very important person who cannot serve papers: you. That’s right. In California, you cannot be the bearer of your own bad news.

Instead, the notification must be carried out by someone who is:

Over eighteen;
Not a party to the case; and,
Is identified by name and address on the return of service form.

Servers in California do not need to be licensed. Hence, you can choose just about any adult friend or family member to deliver paperwork for you. (Just make sure they’re responsible enough to complete and return proof of service.)

3. Proper Process

California has several delivery options to choose from; however, the most common—by far—is hand delivering documents to your spouse.

To do this, your courier simply needs to:

Meet with your spouse at any location;
Identify their purpose (to deliver divorce papers);
Leave paperwork with them; and,
Return proof of service to the clerk.

If a spouse refuses to accept paperwork, servers are permitted to leave documents on the ground in front of the person.

Other methods of executing delivery include:

Mail—must be done via certified mail, and include two blank copies of Notice and Acknowledgement of Receipt.

Substituted Service—occurs when a process server leaves papers at the person’s residence or workplace.

Publication—carried out by printing a notice of the divorce in a major newspaper in the responding spouse’s last known location for four weeks.

Posting—when notice of the divorce is posted at the courthouse.

Generally speaking, hand-delivering divorce papers is the best and most widely used method of delivery. Alternative methods shouldn’t be used unless you have no other option.

4. Proper Proof

Finally, don’t forget to have your server return proof of delivery to the court.

In California, this proof comes in the form of a completed Proof of Service form. This written affidavit tells the court how, where, and when divorce documents were delivered, and must be signed and returned by your server, in order to conclude proper service.

After Proper Service

Your spouse will have thirty days to respond to your divorce paperwork. However, even if they don’t, your hearing will still go forward as planned. (Since, you know, California isn’t going to make you stay married, just because your spouse refuses to engage.)

Instead, your judge will simply enter a default judgment in your favor.

A default divorce grants a petitioner everything they asked for in their original complaint, and essentially operates as though the other party had agreed to everything.

Obviously, this is not a great situation to be in. Hence, if you’ve been properly served with divorce paperwork, it’s best to simply speak to a family law attorney about what your options are, moving forward.

Do You Need Help with Proper Service in California?

Improper service can cause expensive time delays in your divorce process that no one wants; which is why it’s so important to get it right the first time. Luckily, an experienced family law attorney can help you do just that

If you have more questions about how to execute proper service in California, and what that might look like in your situation, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us worry about the filing logistics so you don’t have to.

family-law

Who Gets the House?

September 17, 2021
by Briana White

Your house is more than just a roof over your head… Not only does this structure act as the sacred keeper of your family’s memories, but it’s also often the most significant investment a married couple will make.

Hence, if you find yourself worried, wondering: Who gets the house? in your divorce, don’t fret. You aren’t alone.

Here’s what you need to know about who gets the house in a California divorce, and how the Maples Family Law team can help you navigate these important issues.

Who Gets the House: It Starts with Community Property

In California, a house is considered property. Hence, just like your car, bank accounts, debt, and that heirloom silverware your grandmother left you, this structure is subject to the same rules of community property, if you ever get divorced.

Community property is one of two systems that US courts use to divide marital property, which focuses on ensuring each partner gets an equal share of marital assets. Here, the timing of when you got married (as well as when you acquired the property) will be important to determining how much of your joint assets you’ll ultimately walk away with.

To make these decisions, California courts will follow these four steps:

Identify all of the couple’s property.
Classify all property as either separate or marital.
Value all marital property.
Divide all marital property between spouses.

Here’s a closer look at each of these steps, and how they specifically apply to our question: Who gets the family house?

Step 1: Identify

First thing’s first: identify all of your property.

This ‘role call’ might sound silly (after all, how hard is it to identify a house?); however, it’s not just the house you’ll need to identify. During this step, you’ll need to produce documentation on everything you own, including all assets, real property, retirement accounts, debt, loans, credit cards, and investments.

While these assets might not directly relate to your house, knowing exactly what you have will be important during the valuing and division phases. (After all, the court can’t divide a home’s value fairly, without knowing what else the couple owns.)

Identifying property also acts as an important accounting step, to ensure that neither spouse is trying to hide assets from divorce court.

Step 2: Classify

Once property has been identified, the court will need to classify everything as either separate property (a.k.a. “individually owned” property), or marital property (a.k.a. “it belongs to both of you” property).

In a community property jurisdiction, anything acquired before or after marriage is considered the separate property of whoever brought it into the marriage. In addition, gifts, inheritances, and awards of personal injury are also considered separate—regardless of when they were received.

On the other hand, anything acquired while married—be it a paycheck, loan, credit card, or winning lottery ticket—belongs to both, equally, regardless of whose name it’s in. (Which, of course, is why your date of separation is so important, and why it’s a good idea to formalize it with a legal separation.)

Hence, in an extremely general, very sanitized scenario, a house purchased prior to marriage would possibly be considered separate property, and one purchased during marriage, marital property.

However, life is never that simple, and there’s a really good chance that at least some of the home’s value belongs to the marriage—even if it was purchased prior to tying the knot. (More on that to come…)

Step 3: Value

Next, the court will assign a price tag to all of your marital property, including debt, investments, retirement accounts, and even bitcoin, too.

Pricing everything out is important to our house question, because a physical structure can’t be cut in half (sorry, Solomon!). Hence, only one spouse will be able to actually keep the house. The other will need to be compensated with a greater share of marital property, to make up the difference in value.

Step 4: Divide

Finally, it will be time to divide the house and your marital property. To this end, couples can either:

Sell the house and split the value.
Spouse A keeps the house, and refinances the mortgage to remove Spouse B from the loan.
Spouse A and Spouse B agree to temporarily keep the house together.

Typically, the simplest option is to simply sell and split the value. In California, courts can’t force lenders to remove someone from a valid contract. Hence, sometimes complications can arise with refinancing.

Then again, if kids are involved, it might be better for the custodial parent to keep the house for their emotional stability.

In the end, there are pros and cons to each option, and it will be up to the couple and the court to determine which is best for their situation.

Who Gets the House: Complications

So far, we’ve made the house dividing process sound very neat and clean, but the truth is, it’s usually anything but.

For example, let’s say Spouse B purchased a house before getting married. This structure might have started out as separate property, however, once married, it was almost certainly paid for, maintained, or upgraded using marital funds at some point. Hence, there’s a good chance Spouse A shares at least some of the value in Spouse B’s home.

On the other hand, consider the possibility that Spouse A used separate money (like… say… funds from an inheritance) to finance a major upgrade on a house purchased after marriage. In this scenario, it’s possible Spouse A owns a share of the home’s value as separate property, even if it was purchased while married.

Bottom line? Short of a valid prenuptial agreement, the question of who gets the house is not an easy one to answer. That’s why it’s so important to have an experienced attorney looking out for your interests during this process.

Divorce Attorneys in California

Your house might just be the biggest investment you made as a couple, so it’s pretty important to make sure its division is done right. That’s why we hope you’ll trust our experienced team to lend a hand in your divorce.

If you have more questions about who gets the house in a California divorce, and how these rules might affect your situation, we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and let us help fight for your best interests.

Divorce

The First Step in Divorce: Filing a Petition for…

February 22, 2017June 8, 2020
by Anna Maples

Before you can begin the divorce process, which includes negotiating property division, child custody, and, in many cases, spousal support, you must first file a petition for dissolution.

What is a Petition for Dissolution?

A petition for dissolution is the first step in any divorce proceeding in Stockton or elsewhere in California. When your divorce lawyer files the petition, the court will assign you a case number and stamp it on the document. Once this happens, you officially have an open divorce case.

Remember, though: filing a petition for dissolution is not the same thing as a summary dissolution (that’s an expedited form of divorce that not everyone qualifies for).

What’s Included in a Petition for Dissolution?

The petition for dissolution needs to include quite a bit of information. Your contact information, the court’s name and mailing address, and details about the legal relationship you’re dissolving are all required.

The petition also includes other important information, including:

Your date of marriage or the registration date of your partnership
Whether you have children, and if you do, how old they are
Your custody plan (whether you intend to share legal and physical custody, and which parent will get visitation)
Child support and spousal support information
Information about your separate and community property
Whether you have other requests, such as changing your or your spouse’s last name or whether one person should be responsible for the other’s legal fees

Simply writing something on the petition for dissolution doesn’t mean the judge is automatically going to grant your request. Some things, such as child custody, are contentious issues that may require more thought than checking a box on a pre-made form.

Does it Matter Who Files the Petition for Dissolution?

On a personal level between you and your spouse, the one who actually files for divorce may look like “the bad guy.” While that’s not true, it can feel like it — and that causes many people to wait to file for divorce, even when they know the marriage is over.

Legally speaking, there may be an advantage to being the one who files the petition for dissolution in a California court.

If you file first, you’re the petitioner. If your spouse files first, he or she is the respondent.

Venue for Your Divorce Case

In some divorce cases, jurisdiction is important (such as when one party to the divorce lives in Stockton and one lives in Modesto). If you file for divorce in San Joaquin County, chances are good that this county will have jurisdiction over your case.

Serving the Petition and the Divorce Summons

After filing the petition and some of the other documents necessary to complete a divorce in the state of California, your attorney will most likely hire a registered process server to deliver the documents to your spouse.

This delivery is commonly referred to as serving.

For the most part, it’s not a good idea to serve your spouse (or to ask family or friends to do it) these documents yourself. This helps protect you and ensures that the papers are served exactly in the way the law requires.

Do You Need to Talk to a Family Law Attorney in Stockton?

For most people, it makes sense to work with a skilled team of family law attorneys in Stockton, CA. In addition to providing you with case-specific legal advice (no two cases are the same, so there’s no one-size-fits-all answer for divorce), your lawyer will go to court and fight hard for your rights as a spouse and as a parent if necessary.

Your attorney will also be there when you have questions, fill out and file all the appropriate paperwork, and get you the best possible outcome during this difficult time.

If you need to talk to a family law attorney in Stockton, call us at 209-910-9865 for a free divorce case review. We’ll evaluate your situation and provide you with the legal advice you need right now — and we’ll help you start moving forward with your life.