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What is "community property" in California?

When a California couple decides to end their marriage, they must face the question of how to divide their property. Most states use the "equitable division" method in which the property is divided in a way that is fair to both parties. California recognizes two kinds of marital property: community property and non-marital property. Community property must be divided equally between the spouses, whereas non-marital property is awarded to the spouse who owns it. The rule is simple enough, but its application can be complex.

Property is anything of value. It may include tangible items, such as a house, an automobile, furniture and works of art, and intangible items, such as bank accounts, pension plans, 401(K) plans, life insurance and stock in a business. Non-marital property means all property owned by a spouse before the marriage is formalized. Non-marital property also includes property received by one spouse by way of gift or bequest. Community property is all property acquired by the couple during the marriage. Community property includes income earned by the spouses, assets acquired jointly, such as a house and the cumulative value of shares in a pension plan or other retirement plan.

3 ways to protect your credit in a divorce

Getting a divorce forces you to deal with new responsibilities. Suddenly, you need to consider dividing assets, figuring out support payments and living on a single income. While figuring all these things out, it is vital to take some steps to safeguard your finances, including your credit. 

If you ignore your new financial obligations or fail to take joint credit and debt into consideration, your credit may take a significant hit because of the divorce. Here are some actions you can take to protect and rebuild your credit during and after your divorce.

What is the "Brown Rule" in California divorces?

One of the most difficult questions to answer in any California divorce is the treatment of accumulated benefits in retirement plans belonging to one spouse or the other. If the benefits are fully vested, that is, the spouse who earned the benefits owns 100% of all benefits to which he or she may be entitled, the couple can include the fully-vested amount in their calculations of the property division. But what happens to benefits that are not fully vested?

A California Supreme Court decision in the case In re: Marriage of Brown, from 1976 has cast a long shadow over division of pension plans ever since the decision was handed down. The court began its analysis by observing that courts must divide accrued but not vested retirement benefits equally between the divorcing spouses.

What is a QDRO and how does it work?

In most Sacramento divorces, the largest or second largest asset is the retirement plan of one or both spouses, and dividing the assets in a plan can become complicated. All income earned by a retirement plan after the marriage took place is deemed community property, and state law requires that it be split equally between the divorcing spouses. Many retirement plans are governed by the Employee Retirement Income Security Act ("ERISA"), and distributions may trigger harmful tax consequences for the person that is the beneficiary. The most effective method of dividing pension benefits is the use of a Qualified Domestic Relations Order ("QDRO").

ERISA allows a state official, usually a judge, to divide a plan that is qualified under ERISA between two parties. The plan must be made a party to the divorce so that the court can have legal authority over the plan. The QDRO must recite certain information about the parties, including their addresses, social security numbers, dates of birth, and other information that may be required by the plan guidelines. The QDRO must name the plan (or the plan's representative) as a party that is subject to the court's jurisdiction.

California woman wins 50 years of child support from ex-husband

California laws contain several remedies for women whose ex-husbands do not pay child or spousal support. The state has an agency that helps locate ex-spouses and assists in seeking court enforcement of an existing order for child or spousal support. Unfortunately for women of an earlier generation, these remedies did not exist, and many women were forced to get along without the support payments that had been ordered by the court. One California woman who found herself in that situation was able to find her former husband and persuade him to pay what he owed her. She was successful in recovering child support payments from her ex-husband 50 years after they had been divorced.

The woman and her husband were divorced in the 1970s, and he was ordered to pay child support for their 3-year-old daughter. The woman took the first support check in the amount of $160 to the bank, and it bounced. The husband then failed to make the next support payment. Weeks became months, months became years, and the woman lived and raised her daughter without receiving a single dime of support. The woman told a reporter that she struggled a lot and was forced to work two jobs at once to earn enough to support her and the child. Then she had a life-changing insight: California law does not have a statute of limitation for support payments.

Understanding temporary alimony in a California divorce

Most divorcing couples in California choose to live apart while the divorce is pending. Living apart may reduce the level of acrimony, but it may also cause financial headaches for one or both of the parties. For this reason, California courts are frequently asked for and frequently issue orders for spousal support during the pendency of the divorce, otherwise known as temporary alimony.

A party who wants the other spouse to pay alimony during the divorce process must make a motion to the court for such an order. The moving party must demonstrate the existence of circumstances that justify the order. The court will first examine the age, physical condition and financial condition of the parties. Each spouse's earning ability will also be taken into consideration. Another important factor is the standard of living that the couple enjoyed during the marriage. If the couple enjoyed a high standard of living while they were together, the court will endeavor to set temporary alimony at a level that allows both spouses to approximate this standard. In this regard, the court will take into account the ability of each spouse to be self-supporting. If the couple owns real estate other than the family home, the court will endeavor to ensure that one or both parties are able to contribute to the maintenance of the property.

New app aimed at helping divorced parents communicate

The end of a divorce proceeding does not always signify the end of acrimony between the divorced parents. As many divorced residents of Sacramento have learned, anger at the former spouse may often disrupt post-divorce efforts by the parents to tend to the welfare of their children. A California judge and a California entrepreneur are attempting to combine their experiences to develop and market an app named coParenter that is intended to assist divorced parents communicate about their children and make necessary child rearing decisions.

The judge served on the Superior Court in Riverside for 20 years and also taught family law. She came away from these experiences convinced that the existing legal system provides little, if any, concrete assistance in resolving disputes. She says that she saw countless families torn apart as they attempted to move through the family law system. The entrepreneur has recently gone through his own divorce, and he shares the judge's feelings about the system's flaws.

Revisiting "the best interests of the child"

One of the most important legal concepts in California divorce law is embodied in the phrase "best interests of the child." Whenever a divorcing California couple has one or more minor children, issues such as child support, child custody and visitation will be resolved based upon the court's judgment about how a proposed solution will affect the best interests of the child. Any parent who is facing a potential divorce may wish to become familiar with the factors that determine a child's best interests.

The phrase can be difficult to define, but several factors are included in almost every judicial formulation of the test. The age and sex of the child are critically important. The court will also listen to the child's preferences if the child is old enough to capably express an opinion. The mental and physical health of each parent is also a crucial factor. If a child has special needs, the ability of each parent to attend to those needs will be included in the calculation. Religious and cultural considerations are also important.

Order barring Facebook posts by ex-husband is unconstitutional

The advent of social media has added a new dimension to divorces in California and elsewhere. Some angry ex-spouses have used platforms such as Facebook and Twitter to post harshly critical comments about the other party to the divorce. Courts have been crafting remedies to limit harmful comments without improperly limiting the First Amendment rights of ex-spouse who is doing the posting. The California Court of Appeals recently issued a ruling that reversed the order of the trial court that barred all use of Facebook by the ex-husband because the prohibition was unconstitutionally broad.

The case arose from a domestic violence restraining order issued by a Los Angeles Superior Court judge against a lawyer from Encino. The order applied to both parties, and it said "Neither party is to discuss any aspect of the case with the minor children until further order of the court―including Facebook postings [about the] subject case matter."

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