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California Legal Protections for Reservists and Active Duty Servicemembers

If you are in the military in any way, you’re likely entitled to various legal protections under California law that — at least in theory — are meant to make it easier for you to perform your military service. These laws allow, for instance, may allow you to resume your old health insurance when your active duty service ends. It may allow you to enjoy a reduced interest rate on loans and other debts when you’re on active duty. There are housing-related benefits as well related to rental agreements and mortgages. In this post, I’m going to describe California’s laws in this area in a very general or high-level way. There are a lot of laws so I can’t go over all of them because if I did, this post would be enormous. As I make follow-on posts over time, however, I will probably hit a lot of these topics anyway. I am going to start this process by describing some common themes or ideas that all of these laws have that hopefully make it so all who are entitled to these benefits actually receive them. When working on cases in this area of California law, the first thing I ask is what kind of military member am I working with? By that, I mean is this person an active duty service member (e.g. Lance Corporal in the Marines), a member of the California National Guard, or a member of the Naval Reserves who has been called to active duty? As with anything in the law, technicalities and definitions like this can be important. The benefits provided are similar,...

Personal Injury Damages in a California Divorce

In a prior post, I went over the definition of “separate property” in New York. Under that definition (Section 236(B)(1)(d) of New York’s Domestic Relations Law, if you need to look it up), one of the things that is separate property in divorce in New York is damages received by a spouse for their personal injuries. In this post, I’m going to go over that same question — namely, is money received for personal injuries separate or not — for California. California and New York are similar politically, but remember that when it comes to divorces, California is a community property state and New York is not. Does that affect the answer? In short, yes. Money received for personal injuries sustained during the marriage is community property in California, but it is not automatically subject to division in the way community property typically is in a divorce. There are three California statutes that apply here, all of which are in the California Family Code. The first is section 780 of the California Family Code which provides the following. This entire statute is important, but I’ve put the super important parts in bold. “Except as provided in Section 781 and subject to the rules of allocation set forth in Section 2603, money and other property received or to be received by a married person in satisfaction of a judgment for damages for personal injuries, or pursuant to an agreement for the settlement or compromise of a claim for such damages, is community property if the cause of action for the damages arose during the marriage.” From this, the general rule...

Comparing and Contrasting New York and California Property Division Methods

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...

Transforming California Separate and Community Property (CA Family Code section 852)

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,...

Mental competency to make a California will (CA Probate Code section 6100.5)

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...