by Andy Chen | Jun 26, 2021 | California, Family Law
In a prior post (from 2019, apparently. Didn’t realize it was that long ago), I went over the Automatic Temporary Restraining Order (i.e. the “ATROS”) that applies in California divorce cases. The governing law there was basically Section 2040 of California’s Family Code. I also have a similar post on New York’s ATROS which I also put out in 2019. In this post, I’m going to over a more minor aspect of California’s ATROS, but a very important one nonetheless: When is a California ATROS effective? The answer to that question is, conveniently, also in California’s Family Code. It would make sense if it was in a section close to Section 2040 since you would assume code sections that go over similar topics would be grouped together. You would assume that… but you’d be wrong. The governing law that answers the effectiveness question is actually Section 233 of the California Family Code. Because of course it’s in Section 233. Why would it not be? Anyway, the answer is specifically in Section 233(a), which states: “Upon filing the petition and issuance of the summons and upon personal service of the petition and summons on the respondent or upon waiver and acceptance of service by the respondent, the temporary restraining order under this part shall be in effect against the parties until the final judgment is entered or the petition is dismissed, or until further order of the court.” As usual, I’ve bolded and underlined the important part of the statute, which in this case is basically the first half. The ATROS is effective on the petitioner — in other words,...
by Andy Chen | Jun 6, 2021 | California, Family Law
On my Youtube channel, I have some videos in which I go over how prenuptial agreements in California work. In one of those videos, I go over how an unrepresented party to a prenuptial agreement has to have at least 7 calendar days to review the agreement prior to signing the agreement. In addition to the 7 days, the unrepresented person also has to be told to go get legal counsel. Failure to provide this admonition or provide the unrepresented spouse the 7 days means that the prenuptial agreement can be invalidated on that basis alone. The goal, of course, is to not force or coerce any person in to a prenuptial agreement that they would other wise not agree to freely. If you need California legal authority for that, it’s section 1615 of the California Family Code. In the real world, this 7-day waiting period often poses a problem if you have a wedding date set and you’re rushing to get a prenuptial agreement done before that and at least one of the parties to the prenuptial agreement is not represented by an attorney. The purpose of this blog post is to describe at least one major update to Section 1615 of the California Family Code that took place for calendar year 2020. The update is found in section 1615(c)(2) (B) of the California Family Code which states: “For an agreement executed on or after January 1, 2020, the party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the final agreement and the time the...
by Andy Chen | Mar 29, 2021 | California, Family Law, New York
I live and practice law in California. When it comes to divorces, California is one of nine US states that follow the Community Property system when it comes to dividing property. In theory, community property is a simple idea — namely, the general rules are that (1) whatever the individual spouses acquire on their own prior to the marriage is their own property and is not split up during a divorce, and (2) whatever the individual spouses acquire during the marriage is generally “community property” and, thus, needs to be divided 50/50 in the event of a divorce. To be clear, though, (1) and (2) are just the general rules under the California community property system. There are exceptions under which, for example, an item acquired during the marriage is still the separate property of the spouse acquiring it due to the manner in which the item was acquired. In practice, though, applying the community property system can be quite involved. Over on my Youtube channel, I put out a video a few months back going over some common problems that occur when you try to apply the idea of community property in the real world. Here is the video. If you haven’t seen my Youtube channel, I encourage you to take a look at it as I go over community property as well as various other ideas related to California law also. What I am going to do in this post, though, is try to compare Community Property to the other system — Equitable Distribution — that is in place in the other 41 US states. By the...
by Andy Chen | Jun 9, 2020 | California, Family Law
Most people are probably familiar with child custody in the context of a divorce. For example, one parent has the child (or children) these days and these times while the other parent has them these other days and other times. In California, child custody can also be described via another option, namely the Caregiver’s Authorization under section 6550 of the California Family Code. What a Caregiver’s Authorization allows another adult — called the “Caregiver” — to assume certain authority over a minor child without court involvement. This authority, however, is limited to that related to the child’s schooling and medical care. All that’s required is that the Caregiver sign a declaration stating, among other things, that the minor child is now living with them for whatever reason. The amount of authority the Caregiver gets is dependent on factors such as their relationship to the minor child and the contents of the declaration signed. A sample declaration is provided in section 6552 of the California Family Code. For instance, if you’re the Caregiver and you only fill in sections 1 through 4 on the sample declaration provided in section 6552, section 6550(a) only allows you to “enroll a minor in school and consent to school-related medical care on behalf of the minor.” If you’re interested — as I was when I saw the term — “school-related medical care” is defined in section 6550(h)(3) to be “medical care that is required by state or local governmental authority as a condition for school enrollment, including immunizations, physical examinations, and medical examinations conducted in schools for pupils.” On the other hand, if you’re...
by Andy Chen | Nov 3, 2019 | California, Family Law, Torts
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...
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...
