by Andy Chen | Oct 31, 2019 | California, Family Law, New York
As mentioned previously on this blog, California is in the small group of US states that use the community property method of property division when it comes to dividing items during a divorce. If you are involved in or around a California divorce case, you know that the terms “community property” and “separate property” are used frequently. As also mentioned previously, the former is divided equally during a California divorce while the latter is not. If you’re interested, community property in California is defined in section 760 of the California Family Code while separate property is defined in section 770(a) of the California Family Code. New York, on the other hand, is not a community property state, but rather uses a property division method called Equitable Distribution. New York is similar to most states in the US in that only about 10 states (mostly in the western US and southwestern US) use the community property method. Unfortunately, this distinction can become confusing to talk about because New York also uses the term “separate property” like California does. However, in place of “community property,” New York uses the term “marital property.” Terminology aside, what also makes it confusing is that the definitions for separate and marital/community property look very similar. For example, in New York, “separate property” is defined in New York Domestic Relations Law section 236(B)(1)(d) as: property acquired before marriage or property acquired by bequest, devise, descent, or gift from someone other than the person’s spouse; compensation for personal injuries; property acquired in exchange for or the increase in value of separate property, except to the extent this...
by Andy Chen | Oct 29, 2019 | California, Family Law
When it comes to marriage and divorces in California, one concept that you must absolutely understand is the idea of community versus separate property. The idea is fundamentally very simple. In a nutshell, when you are married, the items you acquire during the marriage are — with a few exceptions — “community property” (see California Family Code section 760). Think of community property as belonging to both spouses equally. In the event of divorce, community property needs to be divided equally. Property that you acquire before or after the married couple separates is “separate property” (see California Family Code section 770) and is not divided during a divorce because it is owned just one of the spouses. Applying this idea in the real world, however, can be complicated for a few reasons. When something was acquired (e.g. during the marriage, before the marriage, etc) is really important. The parties can disagree about that and there is, unfortunately, not always a clear cut way to prove when something was acquired. Sometimes, the date of acquisition is not always a single date. This often happens when, for instance, one spouse buys something (e.g. a house or car) when they are single and pays for it over time that is partly when they are single and partly when they are married. Third, most normal people do not think of assets in terms of when it was acquired, what money was used to pay for it, etc. As a result, mixing or commingling of assets is very common, especially for inherently fungible items like money. Because of these problems and those like them,...
by Andy Chen | Oct 25, 2019 | California, Estate Planning
I’ve made several posts in the past about California wills. There’s the one about how to make a will, how to disinherit your children and your spouse, as well as what happens to your will when you get divorced in California. In this post, I’m going to go over something a bit more fundamental when you make a will: is the person mentally competent to even make a will? If a person is going to make a will, I think they should make it really early. Making a will in your 30s or 40s isn’t too soon at all, I think. Human nature being what it is, though, many people wait until the last minute to make a will. By this time, they might be suffering from a variety of health problems, including but not limited to dementia. The question of ‘When is someone mentally competent to make a will?” is answered in California in section 6100.5 of the California Probate Code. The statute is phrased — for clarity and ease of understanding purposes, I’m sure — in the negative. Two criteria are listed and if either of those criteria are satisfied, mental competency does not exist. Under section 6111(b)(2) of the California Probate Code, a will is invalid if it was made at a time when the person making it (i.e. the testator) did not have mental competency. The criteria to demonstrate a lack of mental competency under Section 6100.5 are as follows: The person does not understand the nature of the testamentary act. For example, the person needs to understand that they are making a will and...
by Andy Chen | Oct 23, 2019 | Family Law, New York
Last time, I described the concept of an Automatic Temporary Restraining Order (ATROS) in a California divorce case as authorized under Section 2040 of the California Family Code. The idea of an ATROS is not unique to California, however. New York has it as well and that’s the subject of this blog post. Before I begin, my usual disclaimer for New York content applies: I have been licensed to practice law in New York since 2012, but I do not (as of the date of this post) maintain a physical office in New York state. Under Section 470 of the New York Judiciary Law, I therefore cannot practice law in the state of New York. This post is meant to simply go over a New York statute that is publicly-available for free to any member of the public. If you have a case in New York involving an ATROS, do feel free to get in touch in the event I can make a referral for you. Anyway, that said, in my California ATROS post, I described how some marriages involve a disparity in earning power. One spouse might, for example, stay at home to raise the children while the other works a job to support the family. This can, in the event of divorce, sometimes result in a situation where the spouse who works tries to exercise an unfair advantage over the spouse who stayed home in retaliation by, for example, concealing marital property or cancelling the family’s health insurance. In California, the Section 2040 ATROS is intended to prevent this. New York has a similar ATROS under New...
by Andy Chen | Oct 21, 2019 | California, Family Law
Everyone’s divorce is different. I haven’t checked every state, of course, but I would venture a guess that that applies to divorces all over. It is not specific specific to any one state in the US. One scenario that sometimes occurs is the following. Spouse A and B are married, but there is a disparity in earnings between the two. For example, only A works a job while B stays home to raise the children. Suppose that A and B then divorce. What, unfortunately, sometimes occurs is that A then attempts to exercise financial leverage to coerce B during the course of the divorce. I’ve seen this happen both in situations where A has filed for divorce and B has filed for divorce. In the former, A may feel entitled to, for instance, hide significant community property because A feels that property belongs to them since it came from their earnings. In the latter, A may feel entitled to cut B off financially by, for example, hiding assets as a way of retaliating for B filing a divorce in the first place. What is the spouse in B’s position to do to protect themselves? In California, B is protected by something called an Automatic Temporary Restraining Order — commonly called an “ATROS” — as defined in California Family Code section 2040 and that is the subject of this post. Most people have heard of the term “restraining order” which is generally a court order prohibiting (i.e. “restraining”) one party from doing something. A restraining order might be issued by a family court in a domestic violence situation, for example....
