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What happens to the family home after a divorce?

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What happens to the family home after a divorce?

The majority of divorces in Orange County and/or Los Angeles County include considerations of what to do with the family home at the time of divorce. There are several choices for dividing the home in the State of California which will likely depend upon several factors including 1) when the home was purchased, 2) the classification of the funds which were used to make the down payment and monthly payments and 3) whether one party wishes to remain in the home after the divorce is finalized. See California Family Code Section 2640 – http://leginfo.legislature.ca.gov/faces/codesTOCSelected.xhtml?tocCode=fam

If the home was purchased in Orange County or Los Angeles County by one spouse prior to marriage and was fully paid off prior to marriage the house will be considered to be separate property of that spouse unless the home was transmuted into community property by a written agreement and/or a deed during marriage. In this situation the spouse who paid for the entire cost of the home will be entitled to keep the home as his/her separate property upon divorce. If however the home was not fully paid off prior to the marriage there may be a right to reimbursement for any community funds which were used to pay off the mortgage and/or for the value of any improvements to the property which were paid for with community funds. A detailed analysis of the finances which were used to pay for the home and any improvements will need to be conducted including an analysis of the value of any improvements and their appreciation during the marriage. Representation by an experienced Orange County and/or Los Angeles County attorney at the Law Office of Sam Walker would be of great benefit to any parties needing to fairly determine the rights and responsibilities with respect to the family home. See https://codes.findlaw.com/ca/family-code/fam-sect-2640.html

If the home was purchased during the marriage it will be considered community property absent a transmutation agreement. If the parties will be selling the home and dividing the net proceeds from the sale equally the division of the home will not present any complicated division. If either party wished to remain in the home after divorce and obtain ownership, they will need to buy out the other spouse with either cash or some other mutually agreed upon exchange.

A final consideration is where a home is purchased during marriage and the mortgage is paid for with community funds, but the down payment was made with separate property funds. In this situation the spouse making the down payment will be entitled to reimbursement and/or reimbursement plus the net equity attributable to the down payment. Plainly stated the spouse making the down payment may be entitled to more than just a return of the funds used to make the down payment such as the applicable interest and/or net equity attributable to the down payment. See https://www.courts.ca.gov/1039.htm If any of these matters will arise in your divorce proceedings it would be best for you to obtain the services of the Law Office of Sam Walker.

Have Questions On Family Law in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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Dividing Pension Plans Through Dissolution of Marriage Proceedings

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Dividing Pension Plans Through Dissolution of Marriage Proceedings

A pension can take different forms and is basically defined as a fund into which money is deposited during an employee’s employment years and from which retirement benefits are provided to the employee after retirement. See-pension Division of retirement plan benefits is always a major concern of both parties upon dissolution of marriage and is a complicated matter which often requires a Qualified Domestic Relations Order expert (QDRO). Depending upon the type of pension plan it may also be necessary to join the pension plan administrator to the dissolution proceedings to ensure that your Qualified Domestic Relations Order is acceptable to the plan administrator. See –Property and debts in a divorce

Whether or not you are required to join the pension plan administrator there are requirements which will be imposed by the court for entering the Qualified Domestic Relations Order. Even in the case where the pension plan administrator is not required to be joined as a party to the dissolution of marriage proceeding it is advisable to utilize the services of an expert for preparation of the Qualified Domestic Relations Order prior to submitting to the Judge for approval.

The division of the pension plan benefits will be based upon the manner in which the pension benefits were acquired including a determination of what percentage of the pension benefits were earned by the employee during the marriage and what percentage of the pension benefits was acquired prior to the marriage and/or after separation. Much like the division of other tangible personal property during the marriage the division of pension plan benefits will be based on the determination of the portion of the benefits are community, quasi community or separate property. Determining the value of the pension at the date of divorce will likely depend upon whether the pension plan is a defined benefit pension plan or a defined contribution plan.

The determination of the cash value of a defined benefit pension plan is typically less complicated because the cash value of the pension benefit can be determined by a set formula based upon your salary history, length of employment and does not depend upon independent investment risk factors. See- What Is a Defined-Benefit Plan? Examples and How Payments Work  By contrast a defined contribution pension benefit plan’s value at the date of divorce and/or separation is dependent upon investment risk factors and may not be easily determinable without the assistance of financial experts. See- Defined contribution plan  Examples of typical defined contribution plans are Individual Retirement Accounts (IRA’s), 401(k) plans and the Federal Thrift Savings Plan.

See-Plan for a lifetime with the TSP Although there are investment risks associated with the defined contribution plans there are benefits to these types of plans which are beyond the scope of this blog. Division of a defined contribution plan can also create risks of investment loss/gain after the divorce and the non-employee spouse may prefer a cash buyout to eliminate further risks and/or the need to make further investment decisions associated with the administration of the pension plan in the future.

Additionally, while there are tax savings which make a defined contribution plan an attractive option there are limits on the deferral amount set by the Internal Revenue Service. See- Retirement Topics

Have Questions On Divorce in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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Division of Property in California

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Division of Property in California

How property is divided through a divorce is a major factor to be considered when contemplating a divorce. The main consideration is whether property is Community Property, Quasi Community Property or Separate Property, each of which will be treated differently.

Community Property

Community property is a marital property regime under which most property acquired by a spouse during a marriage (except for gifts or inheritances), is owned jointly by both spouses and is divided upon divorce, annulment or the death of a spouse. Community property is premised on the theory that marriage creates an economic community between the spouses (who may be same- or opposite-sex); and that the marital property attaches to that interpersonal community, rather than to the spouses themselves. (https://en.wikipedia.org/wiki/Community_property)  Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property. (Cal Fam Code § 760, https://codes.findlaw.com/ca/family-code/fam-sect-760.html) Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, or as otherwise provided in this division, in a proceeding for dissolution of marriage or for legal separation of the parties, the court shall, either in its judgment of dissolution of the marriage, in its judgment of legal separation of the parties, or at a later time if it expressly reserves jurisdiction to make such a property division, divide the community estate of the parties equally. (Cal Fam Code § 2550, https://california.public.law/codes/ca_fam_code_section_2550)

Quasi Community Property

“Quasi–community property” means all real or personal property, wherever situated, acquired before or after the operative date of this code in any of the following ways:

(a) By either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in this state at the time of its acquisition.

(b) In exchange for real or personal property, wherever situated, which would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition. (Cal Fam Code § 125,  http://leginfo.legislature.ca.gov/faces/codesTOCSelected.xhtml?tocCode=FAM&tocTitle=+Family+Code+-+FAM)

Separate Property

“Separate property” is property that is separate property under Part 2 (commencing with Section 760) of Division 4. (Cal Fam Code § 130) Separate property” does not include quasi–community property. (Cal Fam Code § 2502) The Separate property of a married person includes all of the following:

(1) All property owned by the person before marriage.

(2) All property acquired by the person after marriage by gift, bequest, devise, or descent.

(3) The rents, issues, and profits of the property described in this section.

(b) A married person may, without the consent of the person’s spouse, convey the person’s separate property.

(Cal Fam Code § 770)

Once the parties determine the type of property the division of the Community and Quasi Community Property will be equal 50/50 unless there were other agreements during the marriage. While married the parties may change the character of the property by an agreement called a transmutation. Subject to Sections 851 to 853, inclusive, married persons may by agreement or transfer, with or without consideration, do any of the following:

(a) Transmute community property to separate property of either spouse.

(b) Transmute separate property of either spouse to community property.

(c) Transmute separate property of one spouse to separate property of the other spouse.

(Cal Fam Code § 850) In order to successfully transmute property the agreement must conform to the requirements of the Family Code,

(a) A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.

(b) A transmutation of real property is not effective as to third parties without notice thereof unless recorded.

(c) This section does not apply to a gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage.

(d) Nothing in this section affects the law governing characterization of property in which separate property and community property are commingled or otherwise combined.

(e) This section does not apply to or affect a transmutation of property made before January 1, 1985, and the law that would otherwise be applicable to that transmutation shall continue to apply.

(Cal Fam Code § 852) (For more information see Transmutation)

Have Questions on the Division of Property in Los Angeles and Orange County?

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Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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Domestic Violence & (Temporary) Restraining Orders in Family Court

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Domestic Violence & (Temporary) Restraining Orders in Family Court

Domestic Violence is defined under the Family Code as abuse perpetrated against a spouse, former spouse, cohabitant, former cohabitant, a person in a dating relationship, a person with whom you have had a child, or any person related by consanguinity or affinity within the second degree. (Cal Fam Code § 6211)

Abuse is also defined by the Family Code for purposes of obtaining or defending against a request for a Temporary or Permanent Domestic Violence Restraining Order as follow,

(a) For purposes of this act, “abuse” means any of the following:

(1) To intentionally or recklessly cause or attempt to cause bodily injury.

(2) Sexual assault.

(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.

(4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.

(b) Abuse is not limited to the actual infliction of physical injury or assault. See- FAMILY CODE – FAM

In order to obtain a Temporary and/or Permanent Domestic Violence Restraining Order it is not necessary to prove that physical or sexual abuse has occurred; a threat of physical or sexual abuse can be sufficient to establish the need for a DVRO and provide a legal basis for the Court to issue the restraining order.  Abuse is defined by Cal Fam Code § 6320 widely to include any of the following behaviors,

(a)molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party. See- 2005 California Family Code Sections 6320-6327 Article 1. Ex Parte Orders

Proof of any of these actions alone or in conjunction with any of the other factors will be considered in totality by the Court. Both parties will be given the opportunity to testify and call witnesses on their behalf to support or dispute the allegations of Domestic Violence.

The party who is successful at a Domestic Violence Restraining Order Hearing may be entitled to have the other party pay all or a portion of their attorney’s fees. (Cal Fam Code § 6344) If a proper request for attorney’s fees is made the Court will determine based upon the respective incomes of the parties and other relevant factors whether such an order is justified,

(b) In any action in which the petitioner is the prevailing party and cannot afford to pay for the attorney’s fees and costs, the court shall, if appropriate based on the parties’ respective abilities to pay, order that the respondent pay petitioner’s attorney’s fees and costs for commencing and maintaining the proceeding. Whether the respondent shall be ordered to pay attorney’s fees and costs for the prevailing petitioner, and what amount shall be paid, shall be determined based upon (1) the respective incomes and needs of the parties, and (2) any factors affecting the parties’ respective abilities to pay. (Cal. Fam. Code, § 6344)

Have Questions On Family Law in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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Child Custody & Child’s Preference in Court

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Child Custody & Child’s Preference in Court

Child Custody upon divorce will be decided by the court if the parties cannot agree to a parenting schedule. If the matter proceeds to litigation there are numerous factors that will be relevant to the court’s determination of the parenting schedule which will be in the child’s best interests.  The judge must consider the following factors to determine the best interests of the child and the parenting schedule for each of the parents: 1) each parent’s history of caregiving for the child, 2) each parent’s ability to be a fit parent, 3) the stability in each parent’s household, 4) the child’s health and safety, 5) either parent’s history of abuse or domestic violence, 6) either parent’s use of drugs or alcohol, 7) which parent is more likely to allow for and/or encourage a relationship between the child and the other parent, 8) whether either parent has made any false allegations of abuse against the other parent to gain an advantage in the litigation, 9) the residence of the child’s siblings if any, 10) the child’s preference and any other factors relevant to the child’s welfare.

CHILD’S PREFERENCE

A child’s preference should be considered by the Court in making any determination of custody or a modification of custody. A child’s preference is not determinative or conclusive but will be considered by the court in making the final custody order. If the child is over the age of fourteen the Court will allow the child to testify in open court as to their preference for living with a parent unless the court determines that testifying in such a manner would not be in the child’s best interests.  Each party will have the opportunity to present their evidence, support or opposition to either parties wishes to allow the child to testify. The court will consider any and all factors which mitigate for or against allowing the child to testify. Any and all factors which have a potential to affect the child’s well-being will be considered by the court and the court will decide the weight to be given to the child’s preference for living based upon the reasons for the child’s preference. Each case will present different facts and circumstances for the court to consider. If a child under the age of fourteen wishes to express a preference for custody the Court is not required to allow the child to testify in court but does have discretion to allow oral testimony if the child is of sufficient age and capacity to reason, so as to form an intelligent preference as to custody or visitation. Courts will be more receptive to allowing a child who is closer to fourteen years of age to testify than a younger child.

COURT MAY PROHIBIT CHILD’S TESTIMONY IF NOT IN BEST INTEREST REGARDLESS OF AGE

The Parties must keep in mind that the court may prohibit any child regardless of age from testifying if the court determines that the value of the child’s testimony is outweighed by its lack of probative value, the emotional detriment testifying may have on the child, or otherwise testifying is not in the child’s best interest. The court will likely consider the impact upon the child of testifying including any affect upon the relationship with the parents. If the court determines that allowing oral testimony in open court is not in the child’s best interest the court will provide an alternative means for obtaining the child’s preference.  If the court does not allow oral testimony the court will order that the Child’s preferences be determined through a counselor or other professional child custody evaluation.

Have Questions On Family Law in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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Family Court Live Witness Testimony

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Family Court Live Witness Testimony

In California Family Court the parties traditionally have been allowed to prove their case through written declarations. The admissibility of written declarations has recently come into question by a ruling of the California Court of Appeal for the 5th District, In Re Marriage of Swain, 21 Cal.App.5th 830 (2018).  This ruling makes the submission of written declarations without the opportunity for the opposing party to cross examine the declarant questionable.

Written Declaration/Affidavit

A party to a family law matter including a divorce, custody, support or modification hearing may provide a written declaration under oath. (Reifler v. Superior Court, 39 Cal.App.3d 479 (1974)  However, that declaration may still be inadmissible at trial unless the party making the declaration is available for cross examination at the hearing pursuant to Family Code Section 217, California Rule of Court 5.113 and In Re Marriage of Swain, 21 Cal.App.5th 830 (2018).  Specifically, Family Code Section 217 requires the Court to allow either party to introduce any live, competent testimony that is relevant and within the scope of the hearing unless the Court finds good cause to refuse to receive live testimony.  In addition to the requirement for the Court to receive live testimony, a party has the right to cross examine any party or person testifying through a written declaration at the hearing. (In Re Marriage of Swain, supra)  In order to find good cause to refuse to receive live testimony the Court must consider the factors set forth in California Rules of Court 5.113 which reads as follows:

(1)  Whether a substantive matter is at issue–such as child custody, visitation (parenting time), parentage, child support, spousal support, requests for restraining orders, or the characterization, division, or temporary use and control of the property or debt of the parties;

(2)  Whether material facts are in controversy;

(3)  Whether live testimony is necessary for the court to assess the credibility of the parties or other witnesses;

(4)  The right of the parties to question anyone submitting reports or other information to the court;

(5)  Whether a party offering testimony from a non-party has complied with Family Code section 217(c); and

(6)  Any other factor that is just and equitable.

In order for the Court to refuse to receive live testimony the Court would be required to state on the record or within a written statement of decision which of these factors were relied upon by the Court to exclude any live testimony.

Live Testimony of Third-Party Witnesses

A party seeking to present live testimony from witnesses other than the parties is in addition to the requirements for party witnesses also required under Family Code Section 217 to provide and file prior to the hearing a witness list with a brief description of the anticipated testimony.  Failure to provide the witness list before trial can be considered good cause for the Court’s refusal to allow live testimony under California Rule of Court 5.113 (5) which refers back to Family Code Section 217.

Have Questions On Family Law in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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(714) 943-2336

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Family Law in California – Temp Orders – Support & More

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Family Law in California – Temp Orders – Support & More

Once you decide to file for divorce there are usually financial concerns which arise immediately and may require a temporary court order to provide either spouse with resources to pay for alternate living expenses which may include rent, utilities, auto, telephone and other life sustaining necessaries for you and any children which are under your care. A request for temporary spousal support and child support orders should be made immediately to ensure that these resources are available to you pending the ultimate resolution of these matters by order of the court.  The parties may agree to these matters without an order of the court and it may be preferable to do so to avoid unnecessary litigation.

The final determination of the parties’ rights and obligations through a family law proceeding may take months or years depending upon the level disagreement and the financial complexity of the matters involved. During that time, many couples will need a court order to determine how to handle shared parenting, who will reside in the family home (who will move out) and how much income is needed for the spouse moving to a new location. Other matters may also be determined and ordered on a temporary basis pending trial.   

It is imperative that you discuss these matters with your attorney prior to or at the time of filing your Petition for Dissolution of Marriage. A request for these temporary orders must be handled immediately in order to provide the parties with a manageable approach to divorce and ensure that an order for temporary support is forthcoming. Accordingly, either party may also request that the other party pay their attorney’s fees on a temporary basis until a final order is made by the court.  Both parties should be provided with sufficient resources to hire and retain the services of an attorney.   

The court grants temporary family law orders when either party makes the request in a timely manner and the requested orders are deemed reasonable and necessary by the court. Usually, these orders last until both parties reach an official settlement or the matters are tried before the court and a final judgment issued. Temporary orders can be ordered by a judge or through an agreement of the parties. The parties should anticipate and attempt to resolve these matters without the need for a hearing.  

The attorneys at the Law Office of Sam Walker will provide you with sensible and effective legal advice when requesting or defending against a request for temporary orders. Because the process can be so complex and have a lasting effect throughout the duration of the judicial process, it is essential to have the assistance of an experienced divorce attorney to protect your interests and ensure that you are granted all reasonably necessary temporary orders. We know how to handle temporary orders for spousal support, child support, property division and child custody and we can help you through each step of the process.

Have Questions On Family Law in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: sam@attorneysamwalker.com

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(714) 943-2336

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