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Determining Who Gets the House in a Divorce

California is one of only a few states in the country that use community property rules when deciding how assets are divided in divorce. To put it simply, property gained or improved during the marriage will be split as evenly as possible; the same is true for marital debt.

For many divorces sorting through and splitting much of their property isn’t much of a problem, but once the family home is on the table, matters can escalate quickly. And it makes sense that they should. Your home is probably your most expensive asset and everyone in your family depends on it. So who is going to get it when the divorce finalizes?

Deciding Factors the Court Will Review

Unless you and your spouse worked out ahead of time who gets your family home and why – this would be a considerable stroke of luck – a California divorce court is going to have the final say in the matter. Knowing what the court is looking for when coming to its decision can help you gain an advantage and increase your chances of keeping the house you put so much time and energy into.

Some of the factors the court will consider are:

  1. Separate or community: First of all, what kind of property is your home: separate or community? And are you certain? Separate property is what belonged to just you or just your spouse before you got married, and sometimes specific inheritances and gifts. Community property is what you purchased together, or improved together while married. Your ex-spouse may have owned their home before you even met them, but if you contributed to the household significantly during the marriage, it could have been changed into community property in the court’s eye.
  2. Child custody: The divorce court’s credo may as well be “best interest of the children.” Whenever two parents divorce, each decision needs to weigh how it will affect their children. This is true for deciding who gets the family home. The parent who earns primary or sole custody rights is more likely the one who keeps the home because it eliminates the stress of moving, possibly to a new neighborhood or city, that children can experience.
  3. Practical considerations: How much money has been put towards the home so far? How much still remains before it is paid off? What is the mortgage amount right now? The court needs to consider whether or not each spouse can afford to keep the home, or if any of them can on their own. If not, it could be more practical just to sell the property and evenly divide the collected value.

Room for Explanations & Arguments

Nothing is set in stone when it comes to legal matters, no matter how serious the legalese on the paperwork. If you are worried that your family home will go to your ex-spouse instead of yourself, don’t just sit idly by and let it go away. Make an argument as to why you should keep the home, refine it, and bring it to court. You never know what will influence the judge to see things your way.

At Holstrom, Block & Parke, APLC, our Southern California divorce attorneys can help you understand your property rights and compete for your family home. With more than two centuries of total legal experience focused primarily on family law, you know you can trust us when it comes to even the most complicated of divorce cases. Contact our firm today and ask about scheduling a free consultation over the phone.

Divorce / Money, Property & Support / Property Division

Bankruptcy During Divorce: How They Interact

If you need to file for divorce, you might be understandably hesitant to see what the future holds for you. Regardless, you have it under control and you can get through it. Or maybe you need to file for bankruptcy? It is an intimidating process that can be rife with complications but, once again, it is nothing you can’t handle. But what happens if you are going through a divorce and need to file for bankruptcy? Now things are getting trickier.

How to Reduce Your Filing Costs

Many people who were in a financially stable position are actually driven towards bankruptcy as a result of divorcing. Others are already in financial straits before divorce is brought up. In either situation, going through bankruptcy before finalizing your divorce could potentially save some money.

If your soon-to-be ex-spouse files for bankruptcy with you, it can count as a joint bankruptcy filing. This will essentially save you 50% on bankruptcy filing fees because it is just one process, rather than two separate ones. Deciding to stick together one last time to complete a joint filing can also make debt division and property distribution much easier since everything that could be collected by creditors in your bankruptcy will already be gone and not pending division. On a more positive note, a joint filing often doubles the exemptions granted to the bankruptcy petition, allowing you to keep more of your property than if the both of you filed separately.

Fast & Slow Bankruptcies

You must also consider which form of bankruptcy you are going to use to resolve your debt issues. If you are filing for Chapter 7, sometimes called liquidation bankruptcy, it could be over within the year, so you could file for bankruptcy first, complete it, and then divorce without dragging things out for an extended period of time. On the other hand, Chapter 13 bankruptcy always relies on a debt restructuring plan that is paced out over three to five years. If you are planning on divorcing and need to use Chapter 13, the divorce should come first, or else youwill be waiting a couple years at least.

Passing the Means Test Due to Divorce

Chapter 7 bankruptcy is a powerful tool that can wipe out huge portions of debt entirely. In order to make certain the people who really need it are the ones who use it, a means test is required for eligibility. Petitioners who make more than the average household in their state, based on annual incomes and earnings, will fail the means test and cannot use Chapter 7 bankruptcy.

How does divorce relate to the means test? If you aren’t divorced and file a joint bankruptcy, your combined incomes may cause you to climb over the statewide average, and you may fail the means test. If you finish your divorce first, you can file separate bankruptcies and only your income will be measured; feasibly, this could cause you to drop under the average and pass the means test, enabling Chapter 7 bankruptcy.

Sort Through the Complications with Confidence

In all the many ways that divorcing can affect bankruptcy, and vice versa, the common theme is intricacy. You will need to know what you are doing, where your end goal remains, and how it is going to affect your family. Let Holstrom, Block & Parke, APLC and our Southern California divorce attorneys be the ones to help you make sense of the complexities and make the decisions that benefit you most.

300+ years of combined legal experience can be on your side – contact us today.

Divorce / Financial Help

What Constitutes Domestic Violence in Court?

by Chandra Moss

The issue of domestic violence has been at the forefront of headlines over the past few months, especially in the celebrity world. California law provides that a court may issue a protective order prohibiting an individual from "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning . . .contacting, either directly or indirectly, by mail or otherwise . . . disturbing the peace of the other party." California Family Code §6320 (part of the Domestic Violence Prevention Act [DVPA]). As a result, abuse under the DVPA includes physical abuse or injury, as well as acts that "destroy the mental or emotional calm of the other party." In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.

Attacking, striking and other forms of personal contact and battery are clearly acts of domestic violence under the DVPA, including Johnny Depp’s alleged throwing of a cell phone into Amber Heard’s face. What becomes a little more fuzzy are claims of mental and emotional abuse, in tandem with “controlling behavior”. California Courts, have, however, noted in In re Marriage of Nadkarni, cited above, that mental abuse is relevant in a DVPA proceeding. California Courts have ruled the following may constitute domestic violence:

  • Accessing and threatening disclosure of private emails. (Nadkarni)
  • Repeatedly contacting an ex-partner electronically after being told to stop. (Burquet v. Brumbaugh (2014) 223 Cal. App.4th 1140)
  • Downloading and disseminating text messages. (In re Marriage of Evilsizor and Sweeney (2015) 237 Cal. App.4th 1416)
  • Forcing a partner to keep a telephone line open so her activities could be monitored, threats to beat a partner, practicing marital arts in close proximity. (Rodriguez v. Menjivar (2016) 243 Cal. App.4th 816)
  • Threatening over social media. (Rodriguez v. Menjivar)

Other instances of domestic violence include financial abuse/control, punching holes in walls, throwing objects (without necessarily hitting an individual), threats of violence and the like. If you are unsure whether you are the victim of domestic violence, or if you know you are, please call our offices. We can help.

Domestic Violence / General

How to Make a Prenuptial Agreement in California

Premarital agreements – sometimes called prenuptial agreements – are supposed to help married couples avoid unnecessary conflict if they ever decide to divorce. Planning out what will happen with marital assets and responsibilities ahead of time should, in theory, save time and money. However, just bringing up the idea of premarital agreements can spark heated debates and arguments that lead to serious family law disputes.

In order to try to prevent these preemptive conflicts, California adopted its own set of prenuptial agreement laws and rules based on the Uniform Premarital Agreement Act. This legal act paints a clear picture of what is and what is not allowed for a premarital agreement to be acceptable in court.

Main components of the Uniform Premarital Agreement Act are:

  1. Full disclosure: Marital assets and separate property cannot be properly divided or protected if they are not fully understood. Each spouse needs to make full disclosure of their finances, property, debt, and any other piece of property that could be pertinent in the divorce process. Hidden assets will inevitably be discovered, and the spouse that tries to hide them may lose credibility for doing so.
  2. Financial advisors: Although not necessary, in some cases involving significant amounts of finances or assets, each spouse will be advised to consult a financial advisor while drafting their prenuptial agreement. This will act as an additional safeguard against unfair or unbalanced divisions, as well as reducing the risk of inadvertently hiding an asset.
  3. No duress: Any evidence of emotional or mental duress, or even physical intimidation, cannot be present when a premarital agreement is signed. People who are under stress to may not be able to make sound decisions, even if explanations and evidence are laid out clearly in front of them. If such duress exists, the signing must be postponed pending further review.
  4. Premarital: It may seem self-explanatory but a prenuptial agreement needs to occur before the marriage becomes official. This clause is meant to clearly differentiate premarital agreements from postnuptial ones.

Retain Separate Counsel to Protect Your Best Interests

California’s own draft of The Uniform Premarital Agreement Act requires that both spouses use separate counsel when creating a prenuptial in order for many of the common provisions to be considered enforceable. With a family attorney of your own guiding you through the process of drafting the agreement, you can rest easy knowing that you won’t be making any major oversights or mistakes. As with any legal process, having a friend in the court or conference room can be a boon.

You can contact Holstrom, Block & Parke, APLC and our divorce attorneys in Southern California if you need to make a premarital agreement. We will bring more than 300 years of combined family law experience to your case, working diligently to always protect your best interests.

Divorce / General

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