A right of of reimbursement may arise when: (1) community property is used for payment of separate debts; (2) separate property used to pay community debts; or (3) when community property is used for payment of premarital debts. CA Family Code Sections 900-1000 governs reimbursement issues in California divorces, and Santa Barbara divorces. A right of reimbursement must be exercised not later than the earlier of the following: (1) 3 years after spouse who has the right has actual knowledge of the use of the property to pay the debt; or (2) in a dissolution action for division of community property or in proceedings for the death of a spouse. Thus, if you wait too long, you may lose your right of reimbursement. If you think you have a right of reimbursement, call Morales Law today for a free consultation. (805) 845-5405.
California Family Code Section 4057.5 (a) (1) states, "The income of the obligor parent's subsequent spouse or non marital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to the extreme and severe hardship to any child supported by the obligor or by the obligor's subsequent spouse or non martial partner." California Family Code Section 4057.5 (b) states, "For purposes of this section, an extraordinary case may include a parent who voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse's income." In my experience, it is very difficult to get the court to consider a new mate's income for child support purposes. You will most likely have to show circumstances similar to part B where a spouse intentionally reduces income. If you have questions regarding child support, call Morales Law today for a free consultation (805) 845-5405.
There is no requirement that a party must make more then their monthly expenses to be ordered to pay spousal support. Spousal support is determined by the factors in California Family Code Section 4320. Both parties income, property, debts, etc. will be taken into account in determining whether a court will award support. In regards to your children's expenses, a review of your child support order would be needed. Typically, the parties are required to pay 1/2 of most of the children's expenses, including unreimbursed medical expenses, school tuition, etc. These obligation terminates when a child finishes high school and is 18 years old or turns 19, whichever occurs first. If you have questions about spousal support or child expense reimbursements in California, call Morales Law today for a free consultation (805) 845-5405.
Under Cal. Family Code Section 760, property acquired during marriage is presumed to be community property. This includes any economic value in a business created during the marriage, even if the business was started before marriage. The parties can agree to any valuation they please. Absent agreement, California courts will most likely use one of the following methods to determine the community interest in the business. PEREIRA BUSINESS VALUATION METHOD. This is called the Pereira method because the rule was made in a case called Pereira v. Pereira (1909), 156 Cal. 1, 103 p 488. First, calculate how much money one spouse contributed before marriage or through separate property. Then, a court will assess a FAIR RATE OF RETURN on the separate property investment. The value that is left is community property, split equally by the parties. VAN CAMP BUSINESS VALUATION METHOD. This is called the Van Camp method because the rule was made in a case called Van Camp v. Van Camp, (1921) 53 Cal.App. 17, 199 p 885. Essentially, the Van Camp business valuation method in California determines what the reasonable value of a spouse's services contributed to the business during the marriage. That is deemed community property. The balance is separate property. How do you determine reasonable value? Typically, what other people are earning in similar businesses with similar job responsibilities. An expert may need to be retained. If you own a business, or your spouse owns a business, and you are getting divorced or contemplating divorce, call Morales Law today for a free consultation. (805) 845-5405.
Unless an in kind property division is awarded or agreed to, courts are obligated to determine the value of a family business upon divorce. In a Santa Barbara, California, divorce, if a business was created during the marriage or community efforts were used to grow the business, the business, or a portion thereof, will be deemed community property. Typically, one spouse will buy out the other spouse's community interest in the business. Another option is to sell the business on the open market. Yet, most family businesses are cannot be sold as the efforts of the family members are the sole value of the business. In order to determine the value of a family business, typically a CPA or business valuation expert will need to be retained. The fair market value will be determined by the experts. Alternative valuation methods, such as investment value, may be used as well. If you are considering divorce and you or your spouse owns a business, call Morales Law today for a free consultation. We will vigoursly fight to ensure your value is retained. (805) 845-5405.
What happens when a spouse dies during a divorce case? First, the marriage is dissolved on the date on death of a spouse under California Family Code Section 310. Death of a spouse automatically terminates the marriage. Second, death relieves a spouse from paying further spousal support. Under Family Code Section 4337 the obligation of a party under an order for the support of the other party terminates upon the death of either party. Although the general rule is that following the death of a party the court is deprived of jurisdiction to make further orders concerning attorney’s fees, the court retains jurisdiction to enforce a right to attorney’s fees adjudicated before the party’s death. See In re Marriage of Lisi, 39 cal app 4th 1573. If you are going through divorce, call Morales Law today for a free consultation. (805) 845-5405.
In a California divorce you will most likely hear the term 'Epstein Credits.' Epstein credits are credits in the division of community property give to a spouse who has paid community debts post separation or by using separate funds. This rule comes from a family law case, Marriage of Epstein, (1979) 24 Cal.3d 76, 84-85. For example, if you and your spouse separate, one party may continue to make payments on credit card debt incurred during the marriage for living expenses. The spouse making the payments would be entitled to a credit in the amount of 1/2 of the payment made. Even if the debt was incurred during the marriage, if the debt was it incurred for the benefit of the community, it may deemed a spouse's separate debt and no Epstein credit will be awarded. See Family Code Section 2625. If you are thinking of getting divorced, call Morales Law for a free consultation at (805) 845-5405.
In a California divorce case, divorcing couples are often mystified by the term 'community property.' In its core definition, community property is a simple concept. Yet, there are many nuisances which make community property rules complicated. In short, community property is all property and income received by either spouse during marriage, unless it is separate property. Upon divorce, community property will be divided equally between the parties. Separate property is property acquired before marriage, after separation, by gift or by inheritance of a single party. Separate property will be awarded solely to the spouse who acquired the property. Wihtout getting into the issue of Epstein Credits, Watts Credits, or other community property rules, the above rules apply. Be aware that the community may have gained interest in separate property. For example, a separate property mortgage may have been paid during marriage, entitling the community estate to a reimbursement credit in the amount of the principal payments made during marriage. If you would like a divorce free consultation and to learn more about California's community property rules, call Morales Law today for a free consultation. (805) 845-5405.
Unless you have been living under a rock, you've heard of the Ashley Madison hack. Ashley Madison is a website which connects married persons looking to cheat on their spouses. The site was recently hacked, exposing famous people, politicians, sports stars and possibly your next door neighbor! Since the hack, our office received calls saying their spouses were exposed. Many were under the misconception that if a spouse cheats or the divorce was caused by infidelity, then the non cheating spouse is entitled to benefits. This is inaccurate. California is deemed a "no fault state" meaning the law does not favor a non cheating spouse or penalize a cheating spouse. In short, California divorce law does not care why the divorce failed, with limited exceptions. Courts will make child custody rulings that are in the best interest of the children, will award spousal support pursuant to the factors listed in CA Family Code Section 4320, and award child support pursuant to the statewide formula. Yet, circumstances of the infidelity may have an impact of child custody. For example, did a spouse neglect the best interest of the child in order to cheat? Did your spouse pay for the services of a prostitute, thus breaking the law? Does the new mate have a criminal history and will continue to be around the children? All of these examples could factor into a child custody analysis. If you have been affected by the Ashley Madison hack, call Morales Law today for a free consultation into your divorce, child custody, child support, spousal support or community property division matter. 805-845-5405.
The goal of Spousal Support in California is to make both spouses self-sustaining. With that being said, a marriage lasting longer then then years is deemed a long-term marriage, and spousal support can be awarded for an indefinite period of time. Spousal support is determined by reviewing the factors listed in California Family Code Section 4320. Temproary spousal support can be determined be running a dissomaster calculation, pursuant to Local Rule 1418. This is determined by both parties income, tax filing status, allowable deductions from income, etc. Below is a list of the spousal support factors listed in Cal. Fam. Code Section 4320. Call today for a free consultation regarding spousal support. CALIFORNIA FAMILY CODE SECTION 4320 In ordering spousal support under this part, the court shall consider all of the following circumstances: (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. (2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties. (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. (c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. (d) The needs of each party based on the standard of living established during the marriage. (e) The obligations and assets, including the separate property, of each party. (f) The duration of the marriage. (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. (h) The age and health of the parties. (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. (j) The immediate and specific tax consequences to each party. (k) The balance of the hardships to each party. (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties. (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or4325. (n) Any other factors the court determines are just and equitable.