LegalMatch: Family Law

Community Property Divorce.

Much is made in the United States about how to best protect your property before, during, and after an unsuccessful marriage.  Part of this has to do with the high rate of divorce in the United States.  While there are contracts that one can sign prior to marriage called prenuptial agreements, many people do not know what will happen if no such agreement is entered into.

In a state such as California, which is considered a community property state, there are very specific rules in determining what is community property and how it will be divided. In general, community property is any property acquired during marriage. Several considerations are common to almost all divorces taking place in a community property state.

First, many people wonder what becomes of inheritance and investments made prior to marriage. For the most part, if this property is maintained in a clearly separate account, then this property will remain what is called separate property.  Commonly, the following are considered separate property in a community property state:

• anything the owner had prior to marriage
• anything inherited or received as a gift during marriage, and
• anything earned after the divorce.

Plus, there are extra considerations if you and your spouse continue to do business together during the divorce.

Another common question arises when the spouses maintained property in a non community property state prior to divorce, but were married in a community property state.  In states like California, in the event this property was merged through common accounts or used by both parties, this property might be considered quasi-community property.

Another complicating aspect of divorces in a community property state is what to do with outstanding creditors who are owed money.  People wonder what will happen to their share of the community property if the other spouse has outstanding debts or judgments against them. While it may not seem fair to some, it is the general law that while these creditors cannot touch your separate property, they can freely access that property which is shared by both.

So how is the community property separated once all of the marital property has been designated one way or another?  It is the common rule that separate property will be maintained by the owner, and community property will be divided equally between the spouses. Because states that adopt the community property distribution do so in an attempt to provide the most equitable solution for marriages in which one partner may have not been working, it is unusual that a court in these jurisdictions will consider distributing more favorably to a party simply because of their tangible contributions to the financial health of the marriage.

By Evan Anderson

The Importance of the Parenting Plan Process.

Many states now require parents to go through a process called Mediation.  Mediation offers parents a controlled environment in which to discuss and establish child custody and visitation arrangements that are in the “best interest of the child.”  The mediators, or “ringleaders” of this whole process, are to be neutral, listen to both parents, help you decide important decisions regarding your child/children, and ultimately make suggestions to the judge.

During a divorce, there often is so much resentment and anger that parents don’t realize that every comment and action is picked up by the child/children involved and ultimately have a negative effect on their lives.  Despite your anger you need to start thinking about the feelings of your child/children.  Right now you absolutely HATE your soon to be ex-spouse but your child/children don’t feel the same way.  To them your ex is their best friend, confidant, and biggest fan.  Do you really want to be the one to try and convince them otherwise?

Prior to entering Mediation think about the type of arrangement you would like to establish.  Who will have Physical Custody?  Will you both share Legal Custody?  Think about where your children will go to school, church or daycare.  Will you and your ex-spouse be living in the same town?  What are your work schedules like?  How will you split transportation expenses from one parent to the other?  How will holidays be divided?  These are all questions that you will want to have answered during the Mediation process.  Your parenting plan should be detailed enough so it is understood and enforceable.  If you have your sights set on making this process work you may even want to read a great book that I recently came across.  It is called The Co-Parenting Survival Guide.  You can read an excerpt here.  This book spells out a dozen golden parent agreement rules that I think all parents should agree to and sign.

What should you bring with you to mediation?  You should without a doubt have a calendar for the current year and maybe even the following year.  This way there will be no question regarding specific days for visits, holidays, etc.  You and your ex-spouse should also bring any and all information you have about your child/children including medical and school records.  I guess the most important thing to bring with you to Mediation is a positive attitude.  Remember you are establishing a Parenting Plan for your children to adjust properly and become productive members of society.  It is hard enough for them to realize that mommy and daddy are no longer going to be in the same house.

I believe that Whitney Houston sums up the importance of our children in her song “Greatest Love of All.”  I will leave you with the following lyrics:  “I believe the children are our are future.  Teach them well and let them lead the way.  Show them all the beauty they possess inside.  Give them a sense of pride to make it easier.  Let the children's laughter remind us how we used to be.”

By Lisa Zanassi