Last year, we wrote a blog post on the blockbuster case of Marriage of Davis issued by the California Supreme Court. In that case, the Court resolved a split among the lower courts and held that it was impossible for spouses to be separated unless they were physically living separate and apart. The date of separation can be the most important issue in a given case. The date of separation determines the duration of spousal support and it determines the end of the community and the end of the creation of new community property.
There are so many reasons a client wants to remain in the family home after the divorce proceedings have been filed. Often it is a custodial parent who wants to provide normalcy for their children. Other times it is for financial or emotional reasons, or a combination of the three. Whatever the reason, unless one party agrees to move out of the residence, a court order will be required to exclude a party from living in the family residence.
Deciding who will remain in the residence at the beginning of a case is a problem nearly every family law litigant will face; requiring the assistance of the court in reaching that decision is far less common. In most cases, one or both parties will decide to leave the family residence. In these situations it is important to have a written agreement about who is leaving, who is staying, and how the expenses related to the residence are going to be paid. These agreements are where most of the controversy lies, especially with regard to the payment of the expenses. That is an issue that should be addressed in a separate blog.
As a cast member of the Real Housewives of New York, Jules Wainstein is no stranger to drama. Surprisingly though, Jules’ impending divorce from husband Michael Wainstein filed in June has already been deemed the most dramatic divorce in Housewives history. And while it may be the most dramatic divorce the show and its cast have ever seen, Jules’ situation is actually not all that uncommon out here in the REAL, real world.
According to all of the press that the couple has received as of late, it would seem that Jules caught Michael cheating on her with one of her close friends. At that point Michael was prompted to file a petition for divorce after their eight year marriage. Since then, numerous accusations of domestic violence have surfaced, along with recent pictures of police outside the couples’ apartment. Continue reading
The latest Hollywood divorce drama comes as Amber Heard files for divorce after a 15-month union with Johnny Depp. Heard alleged an incident of domestic violence just days before she filed for divorce, and pictures later surfaced of her with a black eye. The media is abuzz with discussions of whether the abuse actually happened, or whether it was just a ploy on Heard’s part to gain sympathy and secure more money from the divorce.
Taxes are already complicated enough. Unfortunately, divorce makes it more complicated. Here are three rules of thumb every divorcee should try to remember:
1. Claim community income before the date of separation: In California, all property acquired during the marriage is presumed to be community property, including any property acquired derived from labor. This presumption ends at the date of separation. Any property acquired after the date of separation is presumed to be the separate property of the acquiring spouse.
Currently American investors are seeing significant losses in the market. For most Americans the effects are being felt in their 401(k) accounts or mutual funds. (Hence the 401(k) to a 201(k) joke…I know it’s not very funny). In the long term, this downturn is just part of the market cycle, but if you are nearing retirement this can be very concerning.
In a divorce, other than homes, retirement accounts are often the biggest asset to divide. Continue reading
In Marriage of Davis, the Supreme Court of California was asked to decide the following question: can spouses truly be “living separate and apart” within the meaning of Family Code section 771(a) if they share the same residence? The Court, in a unanimous decision, held that spouses cannot be separated if they share the same residence.
In Davis, the parties seem to agree that their marriage was “over” sometime around June of 2006. However, they continued to reside together, for the sake of their children, until 2011. The wife contended that the date of separation was in 2006, while Husband, relying on the fact that wife did not move out until 2011, argued a date of separation in 2011.
The Court’s decision came down to statutory interpretation. The Court held that, on its face, the plain meaning of the term “living separate and apart” required a physical separation. To the extent there was some ambiguity in the statute, the Court noted that the term “living separate and apart” had not been altered in subsequent iterations of the statute since 1870. The Court also noted that, in 1870, “living separate and apart” required that the wife establish “her own place of residence.”
The Court did not address, and therefore did not foreclose the possibility, that spouses could live separate and apart in separate residences while “they continued to literally share one roof.” For now, what this means exactly is up to the lower courts, or possibly the legislature.
Determining the date of separation can be critically important in many family law cases. As the community exists only between the date of marriage and the date of separation, it is only after the parties separate that they begin to accumulate separate property. If the parties aren’t separated, the spouse will, for instance, continue to have a one-half interest in the other spouse’s earnings. Over the course of many years, this can make a difference of tens or even hundreds of thousands of dollars. The date of separation is also important in spousal support, as the duration of spousal support heavily depends upon the length of the marriage.
When a couple decides to get a legal separation or divorce, it doesn’t necessarily mean that one party has to rush to pack up his/her belongings and leave the marital home right away. In fact, the parties can still establish a date of separation even if they are still living under the same roof. However, living together while separated might be a bit tricky and uncomfortable for most couples. There are certain things they should and should not do to make this uncomfortable situation a bit more bearable.
From a legal perspective, the date of separation is the first date when either party subjectively (i.e. mentally) decided that the marriage was over and not salvageable and their overt actions demonstrate that subjective frame of mind. Living separate and apart from your spouse is not required in order to establish a date of separation so long as the at least one spouse has the subjective intent to end the marriage and his/her actions indicate that the marriage is finished. Courts will consider a variety of things to determine the spouse’s intent.
If both parties are staying in the marital home while they are separated and pending resolution of their legal separation or divorce, there is likely going to be a lot of tension. To mitigate the tension, it is recommended that the parties adopt some or all of the following tips:
1. Don’t bring a new girlfriend/boyfriend into the mix. The cause of your divorce or legal separation might be due to your newfound love for another person. There is no need to put salt in the wound. But if you are adamant about dating someone new while still living with your spouse, be discreet about it
2. Create Guidelines for Interaction. If you’re still living with your spouse while separated then you need to discuss items of daily living and interaction. This means that you two need to sit down and discuss how bills will get paid, whether or not you will share groceries, who will clean the house, etc. To the extent possible, many couples choose to just maintain the status quo of how things were handled during the marriage.
3. Consider going to a therapist. Having a neutral third party mental health professional help walk you through the stages of divorce can help you process things both emotionally and logistically.
4. Consider a nesting arrangement. Sometimes the tension and awkwardness is just too much too handle. If so, consider a nesting cutody arrangement as described in my previous blog entitled “Is a Nesting Custody Arrangement Right for Me?”
As one would reasonably expect, not everyone can file for divorce in California. In fact, California has strict residency requirements that each person filing for divorce must meet. Although there is no way of getting around these requirements, it doesn’t mean that you absolutely can’t get divorced in California.
California’s residency requirements for married couples to file for a divorce, also known as a “dissolution of marriage”, are quite clear. One of the first steps in filing for divorce is to file a Petition for Dissolution of Marriage. On Page 1 of the Petition (Form FL-100) the person filing for divorce, the Petitioner, must check the box under oath stating that either the Petitioner or Respondent (other spouse) has been a resident of California for at least six months and a resident of the county where they are filing for at least three months preceding the filing of the Petition. The form notes that at least one person of the marriage must comply with the residency requirement. Thus, if you don’t meet the residency requirement but your spouse does, then you can still file for divorce in California.
If neither you nor your spouse meets the residency requirement, then this doesn’t mean that you can never get divorced in San Diego. You actually have a few different options. First, you can simply decide to wait to file your divorce action until you meet the residency requirement. If you are pretty close to meeting this requirement then it might not be that detrimental to hold tight in the marriage for a bit longer. You can even establish a date of separation without actually filing the petition for divorce. Talk to an experienced family law attorney to learn how you can establish a date of separation.
Another option is to file a petition for legal separation instead of a petition for dissolution of marriage. As discussed in my earlier blog entitled, “Changing Your Mind from Legal Separation to Divorce,” there are no residency requirements for a married couple to file for a legal separation in California. If you intend to satisfy the California residency requirements, then once time has passed and you meet the residency requirement, you can file an amended petition and ask the court to convert the petition for legal separation into a petition for divorce. This strategy is advantageous because it will give you immediate access to the Family Law Court to ask for temporary orders. Additionally, if the case involves domestic violence then the same judge can hear both the domestic violence issue and the divorce case. Additionally, since there is a 6 month waiting period in California to terminate marital status, by filing for legal separation, the clock will start ticking on the 6 month countdown even though you filed for legal separation instead of dissolution of marriage.
We often blog about the statutory requirement in all California divorces for divorcing parties to exchange complete financial disclosures. The required disclosure documents consist substantially of an Income and Expense Declaration and a Schedule of Assets and Debts. Through the completion of these documents, the parties are obligated to provide all material facts and information regarding their income, expenses, assets and debts. Failure to complete these forms in accordance with the highest duty of good faith and fair dealing may result in severe sanctions imposed by the court. Considering these strict requirements, the California Court of Appeal surprised family law attorneys in a recent case, In re Marriage of Evans, in which it held that the parties could reach enforceable divorce settlements prior to the exchange of the financial disclosure documents.
In Evans, prior to filing for divorce, the parties negotiated and signed a “pre-divorce agreement” which divided their interest in the marital residence. After a Petition for Dissolution was filed, Mr. Evans filed a motion to set aside the parties’ pre-divorce agreement. Mr. Evans argued that the agreement was invalid because the parties did not exchange their disclosure documents prior to its execution. The trial court disagreed with Mr. Evans and held that the pre-divorce agreement was valid and ordered its terms to become part of the Judgment of Dissolution. Mr. Evans appealed the trial court’s decision and lost again. The appeals court held that the financial disclosure statutes only were intended to apply after service of a divorce petition.
With the Evans ruling now a published opinion, there is a loop hole for parties who wish to enter into property agreements prior to exchange of disclosure documents. It is important to note that Evans does not extinguish the requirement for both parties to abide by the disclosure statutes once a divorce has been filed; it only addresses agreements made prior to filing for divorce. In addition, pre-divorce agreements made in contemplation of divorce may be set aside for various other reasons. If you and your spouse would like to enter into a pre-divorce agreement, but are not yet ready to file for divorce, it is important to consult with an experienced family law attorney prior to executing any agreement. The right attorney can help you draft an agreement that will be enforceable in the event of divorce.