Articles Posted in Property Division


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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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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pets-divorce-custody.jpgPets are members of our families, and we would be horrified if something happened to them. For example Johnny Depp’s dogs face being euthanized when he flew them to Australia without permission. Most of us will not face this type of situation with our pets, but what happens to your furriest family members during a divorce proceeding?

California law is surprising silent when it comes to your pets considering how important they are to our lives. Generally, the law still considers pets something that you own and treats them as property. This means custody would be decided in a civil court, not the family court.

However, it is not unheard of for your pet to be involved in your family law matter. For example, Family Code section 6320 allows you to include your pet in a Domestic Violence Restraining Order. If you have taken care of your pet since before you were married they will likely stay under your care post separation, but if you became pet parents together it can be more complicated. For some families it may make sense for the family pet to say with the parties’ children due to the bonds that develop between children and pets, but every case is different.

The court will likely sign any agreement regarding pets reached by two pet parents. However, heavily litigating these issues is not advised. In order to resolve any possible disagreements over a pet, people should put their wishes in writing via a pre-nuptial agreement or a post-nuptial agreement to avoid heartache later on.
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co-parenting-dog.jpgFor many couples, worrying about who will get custody over the family pet is just as important as worrying about custody of the children. This is because pets are like family for many people. Although pets are treated like personal property under the eyes of the law in California, they shouldn’t be treated like just any other piece of personal property (like a piece of furniture) after the divorce is finalized and custody of the pet is determined. If your divorce results in joint custody of your family pet, it is important that you put the same time and effort into co-parenting your pet as you would for your children.

The first step of co-parenting is to have a clear custody plan in place. If your divorce judgment states that you and your ex shall share joint custody but does not outline a specify custody arrangement, it is important to quickly put one in place. Many of the same principals used for custody/visitation of children can be applied to sharing custody of a pet. If you have children and are sharing joint custody of the children as well, then perhaps the pet can go to the other parent at the same day/time that the children are exchanged. The important thing to remember is that routine and consistency is vital. Just like children, changing a pet’s living situation can cause a lot of stress and trauma to the pet, which can result in an array of behavior issues. Thus, once a custody arrangement is agreed upon, it is important that both “parents” stick to it.

co-parenting-pets.jpgIn addition to divvying up custody and visitation of your pet, co-parenting requires cooperation in a variety of other aspects: food, grooming, medical care, expenses etc. With regard to the pet’s food, you should work with your ex to choose the same brand of food for each household. As far as grooming, it is suggested that you and your ex decide to keep your pet groomed in a standard way or at least have a selection of acceptable “looks” so that there is less room for conflict when it comes to grooming day.

A big aspect of pet co-parenting is dealing with the sharing of costs related to the pet. Costs may include medical care, daycare, training, toys, travel, or accessories. You should divide the pet related costs into two categories, one for basic costs and another for extraordinary costs. Typically basic costs are covered by the “parent” who has custody of the pet at the time. Bigger purchases for your pet may require a more detailed agreement. For instance, you might want to base the payment division on each parent’s income level, percentage of custody, or simply cap one parent’s contribution and agree that the other parent will cover costs outside that cap.

Another hot topic of pet co-parenting involves medical treatment. First there needs to be an agreement, ahead of time, not only as to who will pay for medical treatment, but how far to go with treatment, compliance with the medication plan, and potential changes in custody/visitation due to the pet’s recovery time. Properly co-parenting your pet can help ensure your animal companion’s happiness and well-being. Although it may be difficult to not always have your pet in your custody, try to remember that your pet will benefit by having the love of both “parents” in its life.
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inherited-money-divorce.jpgMost parents want to ensure their children have every advantage and opportunity they can afford to provide to ensure they are successful and happy. Many parents also want to leave a financial legacy for their children after they pass away in the form of trusts or inheritances. These gifts of money or inheritances are fairly straightforward. Under California law, any property received either by gift, bequest, devise, or descent, including the income derived therefrom, is considered the separate property of the party receiving the money. Like I said, it’s pretty straightforward. The complications arise when the receipt of this property or money is commingled (mixed) with community property money. Unraveling the rat’s nest of commingled funds can not only be expensive, but is often impossible. This is especially true when the parties have been married for a long time.
So how can you ensure you keep your inheritance after a divorce? While not bullet proof or exhaustive, the following items can help you to keep this property separate.

Don’t Co-mingle your funds
This is probably the most important thing you can do to ensure that your separate money stays that way. If you expect an inheritance, or received one prior to your marriage, keep that money in a separate account in your name only. Never put income earned during marriage into that account for any reason. Once you comingle community and separate money, you will be required to perform a tracing using a forensic accountant to unravel the transaction. If that sounds expensive, you’re right. Depending on the amount of transaction, and the span of time involved, tracing separate and community funds can costs tens, if not hundreds, of thousands of dollars.

Do a Pre-nup or Post-Nup
A prenuptial agreement (before marriage) and a post-nuptial agreement (after marriage) are one way to define what property or money is separate and what property or money is community. These agreements can be very helpful if a marriage ends in divorce, but they are not fool proof. Even if you have a bullet proof pre-nup, that does not stop the other party from contesting it. Just ask Donald Trump. About Ivana’s challenge to Donald Trump’s prenuptial agreement, Trump wrote, “[w]e needed a bus to get Ivana’s lawyers to court. It was a disaster, but I had a solid pre-nup, and it held up.” More importantly, even with a prenuptial agreement, if you commingle your separate property funds with community property, you could end up spending thousands of dollars just to unravel the mess.

Do an Irrevocable Trust

If you anticipate receiving an inheritance, setting up an irrevocable trust can separate and protect the principal of that inheritance. If the trust pays out income to you, that can still be considered for spousal or child support, but the trust will protect the principal assets and money.

inheritence-live-moderately.jpgLive within your means
In California, using your separate property to pay community property bills is generally considered a gift that you cannot get back. Regular gifts of income from family that are used to pay community bills can also be considered part of the marital standard of living, so be careful how this money is spent. This is not to say that you cannot use your separate property for your family, just know that if you do, it is unlikely you will get it back.

By considering the items above and speaking with a financial planner who specializes in divorce, as well as a qualified family law attorney, you can set in place a plan to protect your separate property assets in the event of a divorce.
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dividing-house.jpgDealing with what to do with the family home is a big issue for divorcing couples. Typically one spouse will buy out the other spouse’s interest or the house will be sold and the proceeds divided between the parties. However, when the parties have a minor child, another option that might be preferable would be to keep the house in joint names and allow one of the parents to stay there for a limited period of time until it is sold at a later date. If this is an end result that the parties want to achieve, then they will need a deferred sale of home order, also known as a “Duke order” (named after the case In Re Marriage of Duke).

Codified in Family Code Section 3900, a Duke order is an order that will delay the sale of the family home and will temporarily award exclusive use and possession of the home to a custodial parent. It doesn’t matter whether or not that custodial parent has sole or joint custody of the child. The purpose of the Duke order is to minimize the adverse impact of divorce on the child’s welfare.

Getting a court to actually order award a Duke order, or deferred sale of home order, might be a bit difficult as the court can only make the order under limited circumstances. The court must find that it is economically feasible to even do so and the court needs to balance the hardship on the child and parent staying in the home with the economic hardship that the deferment could have the on the parent living outside the home.

Specifically, Family Code section 3801 specifies that the court must first decide whether during the time when the home would be deferred for sale, that it would be “economically feasible to maintain the payments of any notes secured by a deed of trust, property taxes, insurance for the home” and also to maintain “the condition of the home comparable to that at the time of trial.” To determine the economic feasibility, the court is required to consider the income of the parent who would stay in the home, the availability of spousal support, child support, and any other funds available to make the payments on the home. The reason the court looks at these factors is because the court does not want to make an order that could result in defaulted payments (i.e. a foreclosure), inadequate insurance coverage, or deterioration on the condition of the home which would jeopardize the parties’ equity in the home when it is sold at a later date. (See Family Code Section 3801(c)).

dividing-house-divorce.jpgWhen deciding whether a Duke order is necessary to minimize the impact on the child, the court will consider things such as the length of time the child has lived in the home, the school grade the child is in, how convenient the home’s location is to the child’s school/child care, whether the home has been modified to accommodate a child’s physical disabilities, the emotional detriment it would cause the child to change homes, whether the home would allow the parent living there to continue employment, each parent’s financial ability to get suitable alternate housing, the tax consequences, the financial detriment to the parent who would not being staying in the home, and any other just and equitable factors. (See Family Code Section 3802(b)).

If a Court awards a deferred sale of home order, then it will also need to specify the conditions upon which the period of deferment will end, such as the child reaching the age of majority or the child graduating from high school.
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beaniebabies-divorce.jpgIf you grew up in 1990s, chances are you are familiar with the Beanie Babies fad. However, if you somehow missed out on that craze, Beanie Babies were the extremely popular stuffed animals made by Ty Warner, Inc. (later renamed as Ty Inc.). They were so popular and “valued” that in 1999 a divorcing couple actually went to count to divide up their Beanie Baby collection. No, I am not kidding! Apparently, the couple was unable to figure out how to divide up their Beanie Babies by themselves, without court intervention, so they literally took them all to court and divided them one by one in front of the judge.

While the family law court provides individuals with their “day in court” to allow a judge to make a decision about their case, most people will agree that it seems pretty ridiculous to go to court to have Beanie Babies divided. Even as a family law attorney, I am a big proponent of helping my client resolve as many of their issues outside of court as possible.

Going to court can be very costly for both parties. They are not only paying their attorney’s hourly fee, but there are other costs involved such as paying for a court reporter. Additionally, going to court means that if you are a working individual, you will have to take time off work to attend the hearings. Also, the divorce process will likely take much longer. The courts are extremely backed up and hearings are typically set months out. The longer your divorce goes on, the more anger, resentment and frustration seem to build up. Is it truly worth the time, attorney fees and emotional impact?

tug-of-war-divorce.jpgSo many issues can be dealt with outside of a court room. This includes division of your precious collection of Beanie Babies with your soon to be ex-spouse. If the value of your precious items is at issue, then bringing in a third party appraiser might be helpful. Also, when negotiating division of assets outside of court, it is important to carefully consider the item’s current and future value. It may be a huge risk to assume that items, like Beanie Babies, will have a significant future value. If you let your spouse keep a $20,000 vehicle at no charge or offset, in order to keep your beloved collection of Beanie Babies, you might be highly disappointed when years down the road you find out that Beanie Baby is still only worth less than $10. It’s a significant risk when you don’t know the item’s future value, but it’s a risk you might have to take to move the negotiating process forward and stay out of court while proceeding with your divorce.
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