Community Property

I AM GOING THROUGH A DIVORCE. THE LAWYERS ARE ARGUING ABOUT WHO GETS WHAT PROPERTY, AND ARE CONSTANTLY TALKING ABOUT “COMMUNITY” PROPERTY. WHAT IS THAT?

Community property is pretty much any asset or debt that either spouse acquires, from the date the spouses are legally married, until the date the spouses separate.

Confused? You are not alone. The concept of community property is so confusing, that it often escapes the understanding of lawyers as well as non-lawyers.

This is probably because understanding it requires a journey into a ridiculous fiction called “California Family Law.” In this realm of smoke and mirrors, neither the term “community,” nor the term “property,” mean the same thing they do in the real world.

(1) What is a “Community?”

When two people get married, something in California Family Law goes “POOF!” and the two spouses suddenly disappear. A new and entirely imaginary person appears instead, and replaces both spouses. This new “person” is called the “community.”

The community begins when the marriage begins. It ends basically when the marriage ends, whether by death or divorce.

Notwithstanding that the community is entirely mythical, the law in many ways treats it as if it were a real person. Herein lies the ridiculous fiction.

(2) What Is “Property?”

As we travel further into the fiction of California Family Law, we discover that other words also have new or twisted meanings. For example, “property” refers not only to assets, but also to debts.
Fortunately, the words “assets” and “debts” still appear to retain the meaning they have in the real world. Assets still include such things as: money; real estate; personal items; and, just about any other right, option or thing that can be bought and sold. Debts still include such things as: outstanding loans; duties to perform under a contract; and, any other legally recognized obligation.

(3) Okay, so what is “Community Property?”

After the spouses are legally married, if one of the spouses acquires an asset, … Oops! That would be impossible, of course, because the “spouse” no longer legally exists. Only the community exists. Therefore, if either spouse acquires an asset, only the community, not the spouse, legally acquires the asset.

The same rule applies to debts or obligations acquired by a spouse. Since the spouse no longer legally exists, the community, not the spouse, legally acquires the debt or obligation.

CRAIG A. CANDELORE is the managing attorney at the Men’s Legal Center.

The above article is intended for informational purposes only, and is not to be construed as legal advice for any purpose. Due to the intense personal nature of any legal issue, it is important that you consult with appropriate legal counsel to ensure your issues are addressed appropriately.

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When CPS comes calling

MY CHILD FELL OFF OF A SWING, AND GOT A LONG GASH OVER HIS RIGHT EYE. OBVIOUSLY,  I IMMEDIATELY TOOK MY CHILD TO THE DOCTOR. AT  3:00 A.A. THE NEXT MORNING, A SOCIAL WORKER AND TWO POLICE OFFICERS MADE AN UNANNOUNCED VISIT TO OUR HOME.  THEY ACCUSED ME OF ABUSING MY CHILD AND, EVEN THOUGH THEY HAD NO WARRANT, THEY TOOK MY CHILD AWAY.  THIS IS THE FIRST OF THREE QUESTIONS I HAVE ABOUT WHAT HAPPENS NEXT.

AS YOU CAN IMAGINE, I AM HELL-BENT ANGRY, FRIGHTENED AND CONFUSED, I HAVE THE FOLLOWING QUIESTIONS:l

(1) CAN THE COUNTY DO THAT? EVEN WITHOUT A WARRANT?

Unfortunately, yes.
Even if the county has nothing more than a mere “reasonable cause for believing” that your child is at risk, the county can: (1) seize your child: (2) without a warrant; (3) without warning; and, (4) at any time of the day or night.

(2) HOW MUCH “CAUSE” IS ENOUGH TO BE “REASONABLE CAUSE FOR BELIEVING” A CHILD IS AT RISK?

Very little.

Children can be seized, based on nothing more than the unsubstantiated statements of a disgruntled neighbor or relative. Indeed, such allegations are becoming increasingly popular among separated parents, as a tool to deprive custody to one of the parents, at county expense.

Further, various professionals, including health care providers and school teachers, are required to report any basis for suspecting that a child may be at risk. They face severe legal consequences if they fail to report. Hence, when in doubt, they have substantial motive to err on the side of caution.

Therefore, you and your child risk an unpleasant visit from the county, every time: (1) your child visits the doctor or goes to school with any kind of bruise or injury; and, (2) every time you have in your life a disgruntled neighbor, relative, or co-parent.

(3) WHAT REMEDIES DO I OR MY CHILD HAVE, IF MY CHILD IS WRONGFULLY SEIZED?

Probably none.

The county is virtually immune from lawsuit in this situation. And, therefore, virtually immune from accountability.

(4) SO, WHAT SHOULD I DO WHEN THE COUNTY COMES KNOCKING?

Cooperate fully.

As suggested above, the county has vast power to take your child away, and virtually no accountability. Hence, resistance is futile.

And probably counterproductive. When government workers have this much unbridled power, opposing them is unlikely to get any favors from them. Indeed, some forms of resistance will be an invitation to the county to send badges and guns to come take you away, as well.

Your best bet, therefore, is unfettered cooperation while the county is present. And an immediate phone call to your lawyer thereafter.

CRAIG A. CANDELORE, the author, is a California Certified Family Law Specialist attorney who has been practicing law since 1986.

The above article is intended for informational purposes only, and is not to be construed as legal advice for any purpose. Due to the intense personal nature of any legal issue, it is important that you consult with appropriate legal counsel to ensure your issues are addressed appropriately.

Dividing Property

iStock_000018435449_SmallQUESTION:

I am going through a divorce. I always heard that property gets split 50/50, but my Ex’s lawyer is saying that my Ex should get more than 50%. If we go to court, could that happen?

Answer

Yes it could.

The general rule is that assets and debts acquired by either spouse during the marriage are usually community property owned equally by both spouses, and are therefore split between the spouses evenly when they divorce. However, all rules have their exceptions. Here are some of the major exceptions to this rule:

A. When one of the spouses acquires an asset or debt during the marriage, the asset or debt belongs exclusively to that acquiring spouse, if:
(1) The asset or debt is acquired before the spouses were legally married; or,
(2) The asset or debt is acquired after the spouses begin living separate and apart forever, in anticipation of divorce, whether or not the divorce has become final; or,
(3) The asset is a gift or inheritance, from someone other than one of the spouses; or,
(4) The asset is a gift from one spouse to the other, the asset is of a personal nature, such as jewelry or clothing, and the asset has a relatively small value; or,
(5) One of the spouses signs a document which clearly reflects that spouse’s intent to convert that spouse’s share of an asset into the separate property of the other spouse.
B. One spouse’s separate property is assumed to be community property owned by both spouses, if:
(1) The separate property assets are mixed with community property assets, such as inherited funds which are placed in the same bank account as are community funds; or,
(2) Title to a separate property asset is changed to title in the name of both spouses, such as title to a house acquired before the marriage that is placed in the name of both spouses in order to get refinancing.

There are many other exceptions. However, these are the exceptions that are the most common.

CRAIG A. CANDELORE is a Certified Family Law Specialist in California.

The above article is intended for informational purposes only, and is not to be construed as legal advice for any purpose. Due to the intense personal nature of any legal issue, it is important that you consult with appropriate legal counsel to ensure your issues are addressed appropriately.

Support without Court Order

Question: I am an active duty Navy and I recently moved out of the house. We have two kids. We have not started court proceedings. I don’t have a court order for support but I have been giving her money. She is complaining it is not enough. She has also complained to my command. What should I be paying her?

ANSWER: First, you have a duty of support of your dependents. In the absence of a Family Court order for a specific support amount, or without a signed agreement between you and your wife, the NAVY has guidelines as to what is the appropriate amount of support.

According to the NAVY guideline, you should be paying your Wife and 2 minor children 3/5 of your gross pay.

Gross pay includes your base pay and your housing allowance. Your gross pay does not include sea pay, hazardous duty pay or basic allowance for subsistence.

This amount is not an absolute amount. The amount can be more or less depending on your particular circumstances. If you are paying the mortgage or your Wife’s car payments, the command may allow you to pay less.

The best advice is to set up an appointment with your local Legal Assistance Office.

CRAIG A. CANDELORE, the author, is a California Certified Family Law Specialist attorney who has been practicing law since 1986.

The above article is intended for informational purposes only, and is not to be construed as legal advice for any purpose. Due to the intense personal nature of any legal issue, it is important that you consult with appropriate legal counsel to ensure your issues are addressed appropriately.

Emotional Stages of Divorce

PREDICTABLE EMOTIONAL STAGES OF DIVORCE

QUESTION: My wife told me she wants a divorce. We have been married for nine years. It caught me by surprise. I am going through a roller coaster of emotions. I am a little embarrassed. Is this normal?

ANSWER: Divorce is hell. You feel emotional pain and hurt. You are disorientated. You are in a fog. One day you wake up and you are fine. Why?

The emotional stages of a divorce are predictable. Unfortunately, the bad news is you cannot skip over the phases. You have to go through the stages to get your life back to normal.

The phases of divorce are as follows: 1st denial, 2nd anger, 3rd bargaining, 4th depression, and 5th acceptance.

Quiz: In what phase is the person making each of the following statements? 1. “I want to kill her. How could she sleep with Joe Blow?”. 2. “Give him everything. I want it over right now.” 3. “I will do anything, please come back!” 4.“ I don’t believe this is happening.”

The easiest phase to detect is the “anger phase”. The hardest phase to detect is the ‘depression phase”. During the “depression phase” a person drops out of life, society and their circle of friends. The depressed person may not return telephone calls.

The acceptance phase is emotional indifference. The opposite of love is indifference. It takes a person up to 3 years to “emotionally recover” from a divorce.

Most people do not have the inherent skills to emotionally “cope” with a divorce and its phases on their own. The good news is that you can “accelerate” the process, by seeking counseling from a mental health professional skilled in family issues.

Some form of professional counseling is healthy and advisable. Think of it this way: If you had a broken arm, would you try to fix it yourself? Of course not. You would seek a medical specialist to treat the problem. If you are going through a divorce, the same analogy applies. The wounds from divorce may not visible, but they are no less real.

A mental health counselor can literally help you “condense” the phases you must go through. The counselor will help you “move through” the emotional phases much more quickly than you would on your own. You will avoid getting “stuck” in one phase. Getting through the phases quickly allows you to get on with your life faster. Usually, five to ten sessions is appropriate.

An alternative to seeing a counselor is attending a support group for people going through divorce.

The San Diego Superior Court provides a list of some excellent mental health professionals in the San Diego area.

CRAIG A. CANDELORE, the author, is a California Certified Family Law Specialist attorney who has been practicing law since 1986.

The above article is intended for informational purposes only, and is not to be construed as legal advice for any purpose. Due to the intense personal nature of any legal issue, it is important that you consult with appropriate legal counsel to ensure your issues are addressed appropriately.

Custody in Divorce

QUESTION: My wife and I have two children. We disagree over custody and visitation. She thinks I should only visit with the kids on alternating weekends. Is this fair?

CHILD SHARING: The most important issue here is your children’s emotional and psychological needs during your divorce.

Mom and Dad bring different benefits to the family unit. Each can provide the children with different help and guidance at various stages in the children’s lives. This is why a child should have frequent and continuous contact with both parents, and should have more contact with one parent depending on that child’s psychological needs at that particular time in that child’s life. Unfortunately, the children’s emotional and psychological needs often get lost in the warfare between the parents in divorce court.
Hence, the ideal custodial arrangement should be fluid enough to allow a shift in the custodial “child sharing” as and when one parent is better able to meet the needs of the child under new circumstances as they arise. A simple example will illustrate the point:

A two-year-old boy may need the mother’s nurturing skills more than those of the father. However, when the boy reaches 9 to 10 years of age, the opposite may be true, in that his father, as a role model, may be more important to his emotional and social development. Both parents who are sensitive to the child’s needs should realize this.

Of course, this fluid child sharing rarely happens, much to the child’s great loss. More often, the initial custody arrangement that is set up at the time of the dissolution judgment remains in effect throughout the rest of childhood, regardless of changes in the child’s needs and other circumstances. This happens for several reasons, such as: (1) Custody of the child becomes a “control issue” by the custodial parent over the non-custodial parent; (2) under California law, time-share is a factor in determining the level of child support, giving the custodial parent a strong financial incentive to oppose relinquishing any custody time; (3) the child’s life gravitates around the custodial parent’s life and the child gets comfortable with the routine, thereby making changes to the child’s status quo disruptive for all concerned; (4) the law promotes permanent orders for stability of the child, which cannot be changed without a “change of circumstances, ” and the law does not recognize mere passage of time as a change of circumstances; and, (5) studies have shown that, unless a non-custodial parent makes a substantial investment of time and effort to be part of the child’s life, the non-custodial parent’s time with the child diminishes over time.

Both parents need to realize they and their children have a compelling interest in cooperating in the custody and visitation arrangements for their child’s long-term mental and emotional well-being. However, this often does not happen. Therefore, a non-custodial parent must fight for as much custodial time with the child as possible at the time of divorce, even though the child may be small. This is sometimes the harsh reality of divorce court.

 

CRAIG A. CANDELORE, the author, is a Certified Family Law Specialist in the State of California.

The above article is intended for informational purposes only, and is not to be construed as legal advice for any purpose. Due to the intense personal nature of any legal issue, it is important that you consult with appropriate legal counsel to ensure your issues are addressed appropriately.