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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,...

New York Automatic Temporary Restraining Orders in Divorces

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...

California Automatic Temporary Restraining Orders in Divorces (CA Family Code section 2040)

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....
California Divorce and Powers of Attorney

California Divorce and Powers of Attorney

I had a post before about what happens in California to your will after you get divorced. Many people have their spouses named in their will in some way (e.g. to be executor). In nearly all cases, I would imagine you don’t want your ex-spouse to have control over your estate when you’ve died. Today, though, I’m going to go over a similar question: what happens in California to your Power of Attorney or Durable Power of Attorney document after you’ve gotten divorced? As with wills, many people name their spouses as their power of attorney agent or durable power of attorney agent and, as with divorces, most people likely don’t want their ex-spouses having control over them once the divorce is finally over. The relevant law here is going to be Section 4154 of the California Probate Code, section (a) of which states: “If after executing a power of attorney the principal’s marriage to the attorney-in-fact is dissolved or annulled, the principal’s designation of the former spouse as attorney-in-fact is revoked.” Section 4154(b) then goes on to say that if divorce or annulment of the marriage was the only reason why the power of attorney was revoked, then remarriage of the principal and attorney-in-fact will reinstate the power of attorney and the attorney-in-fact’s authority under it. If, however, the power of attorney was revoked for other reasons too and the principal and attorney-in-fact just happened to get divorced at the same time, then them remarrying does not reinstate the power of attorney and the attorney-in-fact’s authority. If you compare what happens to a will under section 6122 of...
California Divorce: Undisclosed Assets

California Divorce: Undisclosed Assets

This post is going to be about what happens to assets that were not previously disclosed during a California divorce case. This failure to disclose could be intentional, such as your soon-to-be ex-spouse purposely trying to hide bank accounts and other property from you. For instance, suppose you were a stay-at-home mom and your husband was the one who worked outside the home. Even though all the property the two of you acquired during the marriage is likely going to be community property to which you would be entitled to half, he might view it as all rightfully belonging to him because he was the one who went out to work for it. He might, for example, try to hide it by putting it all under his brother’s name, his elderly mother’s name, etc. The failure to disclose could also be accidental. People can be forgetful, even when they intend to be honest. Depending on your level of wealth, the length of the marriage, etc, it is possible that your soon-to-be ex-husband, for example, might forget that he had a 401K from a job he worked 20 years ago that he has never touched. Theoretically, all assets and debts should be disclosed during a divorce and each party should — in theory — have total access to all information regarding the couple’s finances. The reality, of course, is never that perfect. The fact that financial disclosure during a California divorce is voluntary and on the honor system doesn’t help either. Bottom line: if you’re involved in a California divorce and you believe your soon-to-be ex-spouse is trying to hide...