It’s no secret that divorces can get expensive. The divorce between Dodgers owners Frank and Jamie McCourt exceeded $20,000,000 in fees! There are three fairly simple steps that every single person can take before and during marriage to make any potential divorce less expensive.
1.Keep your separate money separate. One of the most common myths about California community property law is that once couples are married, all of their property, even property they held before marriage, becomes community property. However, pursuant to Family Code section 770, the following property is the separate property of a spouse:
“(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.”
In other words, all property a spouse owns before marriage remains their separate property and any property they receive via gift or inheritance (even during the marriage) is still their separate property. Easy so far, right?
Not so fast. People start running into very serious and expensive problems when they commingle separate and community money in the same deposit accounts. Once separate and community funds are commingled together, absent a few exceptions, the spouse claiming the separate property interest must trace each separate dollar to the present or to the acquisition of a specific piece of property they are claiming is separate. This usually involves hiring experts to do this important, but tedious work. If the tracing cannot be completed, the Family Code section 760 presumption (that all property acquired during marriage is presumed to be community) prevails and the property will considered to be all community.
The way to prevent this problem is obvious. Keep your separate property separate! Don’t ever mix community money with separate money in the same bank account. The simple act of getting a separate bank account for your separate property could save you tens of thousands of dollars in attorney fees.
2.Encourage your wife or husband to become self-supporting during the marriage. While the public is aware that spousal support exists, few lay people understand the nature and extent of spousal support obligations in California. The ability of a spouse to become self-supporting is one of the biggest determinants of spousal support duration (along with the length of the marriage).
Picture the following scenario: Spouse A and Spouse B are married for 30 years. Spouse A has an education and a great job. Spouse B never went to college and, during the marriage, Spouse A asked Spouse B to stay home and take care of the children. After the children reached school age or even after the children left home for college, Spouse B did not work and was not encouraged by Spouse A to work. The parties are now getting a divorce. Spouse B is now 57-years-old, hasn’t worked in 30+ years, and has no education. In other words, Spouse B is completely dependent on Spouse A for support. In these types of scenarios, which are not uncommon, Spouse A will likely have to pay considerable spousal support to Spouse B for the rest of his/her life.
If Spouse B were to get an education during the marriage and accrue job experience, Spouse B would have a much greater chance of becoming self-supporting. Encouraging your spouse (or yourself) to become self-supporting will not only affect the amount of spousal support you might have to pay or need, but it will also likely lead to lower attorney fees as you will not have to return to court as often.
3.Get a prenuptial agreement. Prenuptial agreements allow spouses to opt out or limit their participation in California’s community property system. Prenuptial agreements also generally allow spouses to waive or limit spousal support if they are well-educated and self-sufficient. They also allow spouses to set strictly defined rules on the division of property and support. Strictly defined rules generally mean lower attorney fees.
The divorce attorneys at Bickford Blado & Botros are here to help. We practice exclusively in the area of family law and have extensive experience in all aspects of divorce litigation and related issues. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.