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.
After 23 years of marriage, Kris Jenner filed for divorce from Bruce Jenner. Sources say that Bruce “celebrated” his upcoming freedom by dropping $50,000 on a new NASCAR-approved UTV race car. Although the Jenners’ divorce documents allege that their date of separation was back in 2013, a significant impulse buy before their divorce is even close to final could potentially cause some problems, when it comes to division of their property.
When couples go through a divorce, the court (or the parties via settlement) will make decisions about how to divide their assets and debts. Since California is a community property state, assets acquired during marriage are considered community property and thus subject to 50/50 split between husband and wife. Assets acquired before marriage or after the parties’ date of separation, on the other hand, are considered separate property of the spouse who acquired it. However, issues can arise when a significant asset is purchased after the couples’ separation but before their divorce is finalized. For instance, purchasing a new vehicle after separation may complicate a divorce as it relates to disclosure of assets and determining whether the new vehicle is indeed separate property.One potential issue with purchasing a new car after separation is inadequate disclosure. Once a spouse files for divorce each spouse will be required to draft and exchange Preliminary Declarations of Divorce (“PDODs”). One aspect of the PDODs is the Schedule of Assets and Debts, which outlines all of the parties’ assets and debts, including vehicles. If you have already exchanged your PDODs and then later purchase a new vehicle (before the divorce has been finalized), then you will need to disclose this new purchase to your spouse. You will likely need to augment your Schedule of Assets and Debts to reflect the new asset. The new vehicle will also need to be addressed in your Martial Settlement Agreement. It’s important not to omit any of your assets from your final divorce paperwork, even if you are sure that the asset is your separate property.
Another potential issue with purchasing a new car after separation is determining whether it truly is separate property or not. If the date of separation is a contested issue, then determining whether the new car was purchased “during marriage” or “after separation” may be quite a problem. If you and your spouse cannot agree on a date of separation then it may need to be litigated in court. Once the date of separation is decided and it is clear that the vehicle was purchased after that date of separation, it does not mean that you are home free. You then need to look at the source of the money that was used to buy the vehicle. If you used your earnings that you acquired after separation then the source of the money was separate property. But if you used money from a joint account that you and your spouse acquired during marriage or if you traded in a community property car, then the new vehicle might not be your separate property.
It may be best to simply avoid buying any significant assets before your divorce is final. Unfortunately, divorces are often dragged out over a couple of years or more and thus it is unrealistic for parties to avoid making new purchases. Luckily for the Jenners, sources say that the couple has already reached an amicable settlement regarding the division of all of their assets, so it doesn’t look like Bruce’s recent vehicle purchase will pose that much of a problem.
It comes as no big surprise that Katharine McPhee, American Idol finalist and actress in Smash and Scorpion, is divorcing her husband, Nick Cokas after six years of marriage. The couple became estranged about a year ago when McPhee was photographed kissing Smash director, Michael Morris, after the two of them had lunch together in Los Angeles. At the time, Morris was married, and actually still is married, to actress Mary McCormack.
TMZ reports that in McPhee’s divorce documents she claims that she was separated from Cokas at the time of the kissing incident with Morris. Cokas, on the other hand, is claiming in his responsive divorce documents that the separation was actually in May 2014, seven months after the kissing incident between McPhee and Morris. The couple’s date of separation is a significant point of contention because it will determine what portion of the money that Katharine has recently made will be considered her sole and separate property, rather than community property. McPhee has approximately $700,000 owed to her from Columbia/Epic records, so this isn’t exactly a small chunk of change that we’re talking about.
Although the public might assume that kissing someone other than your spouse means that the married couple is separated, this isn’t necessarily true. From a legal perspective, a couple’s date of separation is the first date when either party subjectively decided the marriage was over, and not salvageable, and their overt actions demonstrate that subjective frame of mind. Physical separation is not sufficient to show that you are separated because some people live separate but do not intend to end their marriage. The Court will look at your conduct toward each other to determine when the marriage “ended” for purposes of choosing the date of separation.
An instance of infidelity is also not sufficient to determinatively set the parties date of separation. Since the kissing incident, it was reported that McPhee and Cokas were working on their marriage and that Morris and McCormack had also reconciled. McPhee and Cokas were even see walking their dogs together and smiling. Cokas also claims that he has plenty of evidence to show that they didn’t separate until May 2014. He claims that he has emails and texts evidencing their relationship. Other sources also claim that the couple was in marriage counseling after the kissing incident in an effort to save their marriage. So just because McPhee was caught kissing another man, doesn’t mean that was their date of separation.
If you and/or your spouse are contemplating divorce, one of the initial considerations is whether you should file for divorce or wait for your spouse to file first. Specifically, is there an advantage or disadvantage to filing for divorce first? In a typical divorce proceeding, it does not make a big difference whether you are the petitioner (first to file) or respondent in your case. In the court’s view, both parties are on a level playing field. The petitioning party is not penalized for filing first, but he or she is also not rewarded in any way. In addition, the San Diego Superior Court charges the same filing fee ($435) for filing the Petition for Dissolution and the Response to Petition for Dissolution. Combined, the parties will spend $870 just to make their appearances in a divorce proceeding.
There can be a slight advantage to being the first to file for divorce if you and your spouse reside is different zip codes. Your divorce case will be assigned to a particular courthouse based on representations made in the Petition. If you would like your case heard at the courthouse near your home, you should file a Petition before your spouse. If you believe there may be some advantage to you if the case is heard at the courthouse your spouse’s zip code is assigned to, you can file a Petition and have the case assigned to that courthouse. The petitioner will decide which courthouse his or her divorce case is assigned to. Consulting with an experienced family law attorney who has worked in the different courthouses throughout San Diego County can help you make the decision regarding where to file your case.
In a small number of cases, the first party to file can have a significant outcome on the divorce proceedings. If you and your spouse live in different states or even different counties within California, you should consider filing for divorce as soon as possible. When two spouses live in different counties, the responding spouse will be required to travel to a different county to attend court hearings. This has the potential to be an inconvenience and makes communication with a local attorney slightly more difficult. However, if you and your spouse live in different states, you will want to compare the laws of that state to family code statues and cases in California. It is imperative that you consult with a divorce attorney immediately to determine if you could be greatly disadvantaged if your spouse files for divorce out of state.
If you and your spouse share minor child(ren), the jurisdictional issues involved in your case may be even more complicated. Becoming informed of your options is the first step you can take towards protecting your rights.