Articles Posted in Property Division

dividing-social-security-assets

Dividing pensions and retirement plans can be a very complicated aspect of divorce. The rules that apply to social security benefits do not make things any less complicated.

Pension and retirement plans acquired during the marriage are community property just like any other community property. Pensions and retirement plans usually need to be divided through the use of a Qualified Domestic Relations Order (called a QDRO) or Domestic Relations Order (called a DRO). What about social security benefits? How are those divided?

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retirement-social-security-benefits

There is a saying I use when talking to clients about difficult issues in Family Law Case; “The word ‘fair” only appears in the Family Code in a discussion about attorney fees.” The stark reality is this…Family Law is not fair. It can be equitable and it can be reasonable, but fair it is not. Case in point:

Imagine for a minute that you work for the federal government. This was your first and only job, and your first day was on the exact day you were married (You are a very dedicated employee.) You also separated from your spouse on the exact day you retired 30 years later. Continue reading

divorce-credit-score

A family law judge out of New Jersey made the following finding in a case involving a post judgment request to sell a residence due to one party’s failure to refinance the residence post-judgment:

“This court takes judicial notice, as a matter of indisputable common knowledge, that a positive credit rating and score is one of the most valuable and important assets a party may presently possess.” (Emphasis Added)

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furniture-divorce-property-division

I remember the first time I purchased a new couch. It cost me around $800 (which at the time was all the money in the world – I was studying for the bar) and was the first “new” and “adult” purchase my Wife and I made. I also remember when I got a new and better couch several years later. When considering my options for dealing with my now “old” couch, my thought was to simply throw it away. My Wife suggested we sell it on craigslist. I suggested we list it for free so long as the new owner came to pick it up. My Wife thought better and decided to sell it for actual money. My Wife listed the couch for $300. We eventually got about $75 for the couch and my Wife was quite proud of herself (if not disappointed in the price); I was just glad to be rid of the couch.

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couples-rightsAs divorce attorneys, it is often useful to recall the reasons that people get married in the first place. We may try not to be cynical of the union of marriage, but it is easier said than done when every day is spent helping people navigate through their divorces. And, especially in light of the monumental victories that have recently come for same sex couples and the right to marry, it may be a better time than ever to take a step back and examine some of the reasons why people may decide to get married, or why people ever fought for the right to marry.

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divorce-attorney-needed

If you are considering a divorce or are already involved in the divorce process, you have likely done some research and been left scratching your head in bewilderment. Divorce is so common these days that you may assume it’s easy to do. Unfortunately, however, it’s not the most “user friendly” process. This is especially so in California, where the judicial forms, statutes, cases, and court rules that together form our laws are wrought with nuances and deadlines that even the most intelligent person in the world is apt to miss without the proper legal training.

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Living-separate-under-one-roof.JPGIn 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.

supreme-court.jpgThe 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.

If you have questions about what the date of separation is in your case, it is important that you discuss your rights with an experienced family law attorney.
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same-sex-divorce.jpg

In recent years, same-sex marriage has undergone a radical transformation in California and in the rest of the nation. The Law Offices of Nancy J. Bickford is well aware of these important changes in the law.

On June 16, 2008, the Supreme Court of California held that California’s same-sex marriage ban was not permitted under the California constitution. On November 5, 2008, however, the California electorate amended the California constitution through Proposition 8. This reinstated the same-sex marriage ban in California.

On August 4, 2010, United States District Court Chief Judge Vaughn Walker declared that Proposition 8 was unconstitutional under the Federal (not California) constitution. However, through appeal, the order was stayed until the United States Supreme Court reinstated Judge Walker’s ruling on technical grounds in Hollingsworth v. Perry. The Hollingsworth v. Perry opinion was issued on June 26, 2013 and allowed same-sex marriages to resume in California.

same-sex-divorce-gavel.jpgOn that same date, the United States Supreme Court issued the landmark Windsor v. United States decision, striking down language in the Defense of Marriage Act (DOMA) that limited the definition of marriage to opposite-sex couples. Before Windsor v. United States, same-sex couples throughout the nation were deprived of many federal benefits opposite sex couples enjoyed. Justice Kennedy, describing some of these benefits, wrote as follows in the majority opinion:

“Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive… It deprives them of the Bankruptcy Code’s special protections for domestic-support obligations … It forces them to follow a complicated procedure to file their state and federal taxes jointly … It prohibits them from being buried together in veterans’ cemeteries.”

After the Windsor decision, same-sex married couples did not face these burdens in California or other states that allowed same-sex marriage. However, it was not until June 26, 2015 that the Supreme Court ruled that all same-sex marriage bans were unconstitutional in Obergefell v. Hodges. This has a practical effect for same-sex couples in California that were already married: they can now freely move to any other state and that state will be required to recognize the marriage. This was an unsettled issue until Obergefell.

There are still unique issues that same-sex couples face. For example, what happens when a same-sex couple had a domestic partnership and then married after it became legal to do so in California? Does this couple have to both terminate the domestic partnership and dissolve the marriage? In cases like this, what is the length of the “marriage” for purposes of spousal support?
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bobby-flay-stephanie-march.jpgThe divorce battle between celebrity Chef Bobby Flay and his Wife of a little over 10 years, Stephanie March, have been anything but civil. At the heart of the divorce is a premarital agreement executed by the parties before they said their nuptials. The agreement clearly lays out what Stephanie is entitled to receive with regard to property and support. The jury is still out on whether the premarital agreement will hold up, but that is a blog for another day.

The most recent fight (of which there have been many) revolves around a racehorse named “Dad’s Crazy” which Bobby allegedly purchased for Stephanie back in 2009. Stephanie alleges the horse was purchase as a 4th anniversary gift. Apparently the horse was quite successful, raising in excess of $130,000 in winnings, which according to Stephanie, Bobby kept to himself. The horse has subsequently sold for $60,000 and, again according to Stephanie, Bobby kept the sale’s proceeds as well.

If you have followed our blog for any amount of time, you will know that any property acquired during marriage that was acquired by way of “gift” is the separate property of the recipient of the gift (Family Code §770). Seems pretty simple, right? Bobby (allegedly) gave the horse to Stephanie as a gift and therefore it is her separate property. It would then follow that the winnings and the sale’s proceeds would also be her separate property.

You know if it were that simple I would not be writing this blog. You see gifts between spouses do not work the same as gifts to a spouse from a third party. Gifts from third parties are almost always the separate property of the recipient. I say “almost always” because this is family law after all, and nothing is ever perfectly certain.

When you have a gift between spouses you need to have writing transferring the property from either the separate property or community property of the giver of the gift to the separate property of the recipient for there to be a valid transmutation; which is just a fancy word for changing the character of the property. The simple reason (and yes, I am simplifying this a great deal – I could spend several blogs discussing transmutations) is that you need to be able to prove intent. Generally this comes in the form of a writing of some kind.

The exception to the requirement for a valid transmutation is found in Family Code §852(c) which says:
“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.”

This short code section is the reason why parties, almost without exception, keep their engagement and wedding rings, jewelry, personal property and clothing acquired during marriage. These items are easy to distinguish, because they are specifically mentioned in the statute. The analysis becomes more difficult when you get to the line “or other tangible articles of a personal nature.”

This is one of those sentences that absolutely defies a precise definition, but as Justice of the Supreme Court of the United States, Potter Stewart, said when he was asked to describe the threshold test for obscenity, “I’ll know it when I see it.” That’s just it, it will always be a case by case basis.

As an example, in the case Marriage of Buie and Neighbors, Husband argued that Wife’s gift of a Porsche given to him for his birthday was his separate property under the exception in Section 852(c). The court disagreed holding that an automobile is not an article of a personal nature within the meaning of the section. Though it probably would not have changed the court’s holding, it is worth noting that Husband purchased the car with Wife’s separate property as a birthday gift, without first asking Wife if that was okay.

So, how will “Dad’s Crazy” be worked out? If I was a betting man (and I am…I was raised in Las Vegas after all), I would bet on the horse being deemed community property, and Bobby will be entitled to recoup any money he put into the horse’s purchase. As for the money that was earned by “Dad’s Crazy,” that will also be community property subject to reimbursement by Bobby. This all assumes there is no provision in the premarital agreement about purchases made during marriage and how they are treated upon dissolution.
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