San Diego Divorce Attorneys BlogPreviously, we discussed the basics of the Moore/Marsden calculations, which is how the Court determines the community interest in the home when community funds pay down mortgage principal of a separate property home. The Moore/Marsden formula provides for the community to receive not only a reimbursement for principal paydown, but an interest in the appreciation of the home as well.
Articles Posted in Property Division
Student Loans at Divorce: A refresher on assignment and potential reimbursements
It is no secret that the cost of higher education in America is HIGH. Each year, the average amount of student loans borrowed increases, as does the number of students taking out educational loans. A 2013 study done by the One Wisconsin Institute found, after surveying 61,762 people, that the average length of repayment on student loan debt is 21.1 years. And, they noted, that this is typically longer for those with advanced degrees. Unfortunately as law school graduates, we know the harsh reality of this all too well. But I digress! At any rate, although a standard federal repayment plan is 10-years, it is clear that this is not always realistic. Taking into consideration the available 20-year federal loan forgiveness option, it is becoming more and more reasonable to expect that people will bear the burden of student debt for as long as 20 years.
Divorce and Dividing Social Security Benefits
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?
But that’s not fair…Social Security Benefits and Pensions
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
Forget Save the Whales…Save My Credit
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)
The Furniture Fire Sale
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.
Couples Rights: Married Couple vs. Non-Married Couples
As 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.
Fact or Fiction: When you marry your spouse, do you really marry their debt too?
It is often said that when one marries his or her spouse, he or she is also “marrying their debt.” Is that how it works in California, too?
It depends.
DO I NEED A DIVORCE ATTORNEY?
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.
The Supreme Court Interprets “Living Separate and Apart” in Marriage of Davis
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.
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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