Articles Posted in Division of Property

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San Francisco Family Law Attorney Discusses Property Distribution

Both divorce and the death of a loved one are difficult life events for people to cope with. Both of these situations also deal with property distribution. It becomes a more complicated situation when someone dies whom you are in a divorce with because there are competing laws regarding property distribution: estate law, and community property law. Community property law states that everything that is acquired during marriage is the couple’s community property to be split in half on divorce. However, estate law allows for a person to distribute their assets in the event of their death to any person that they choose. So what happens when the decedent dies and wants to give away community property to another person? First, the ex-spouse or current spouse of the decendent has two options when someone dies. 1. The can elect to take from the will of the decedent or 2. they can elect to take their community property share. But the surviving spouse is not allowed to elect to take both. Therefore, in this event the surviving ex-spouse or current spouse should consider which distribution gives them the most assets and elect to take the more advantageous approach.

Either way death and divorce are times of difficulty and it will be hard to discuss property and distribution in the event that these things happen. However, these events are inevitabilities that need to be considered so that one can be protected when they are faced with these difficult situations.

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San Jose Divorce Lawyer Discusses Toronto Raptors Player In Child Support Dispute

Chris Bosh, the power forward for the Toronto Raptors, is the subject of a complaint filed in the state of Maryland by an ex-girlfriend seeking child support for their four month old daughter. Mr. Bosh, through representatives, has claimed to already be financially supporting the child, and to have filed a suit in Texas prior to the child’s birth to ensure child support (and custody). The parties are likely to be engaging in a jurisdictional suit as well as a substantive one about support itself.

Why, you ask, does it matter what state support is established in? Every state has slightly different laws regarding the calculation of child support, and in this case, some states are more generous than others, especially where one parent is an exceptionally high earner such as Mr. Bosh likely is. Apparently Texas has a rule of thumb that support is usually up to and no more than $1,500 in support unless a judge decides a specific child has needs that warrant a larger amount. This is different from California, for example, where child support is calculated from a formula using income and timeshare, and leaves very little to the discretion of judges.

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Fremont Divorce Attorney Discusses Tax Time and Family Law

It’s tax season again, and for families involved in the family law court system, one of the issues is nearly always who is going to claim the child on their taxes, better known as the dependency exemption. This is a separate issue from the filing status, where one parent files as Head of Household.

Normally, the parent with physical custody of a child for the greater portion of a tax year is entitled to claim the child as a dependent for tax purposes. However, the non-custodial parent may claim the child if the custodial parent agrees and signs a declaration (an IRS form) releasing the exemption to the non-custodial parent. The non-custodial parent must include this form with his taxes.

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Sacramento Divorce Lawyer discusses divorce and dividing assets

Not all divorce cases are contentious cases where the parties are fighting over every penny of their estate. Many times, there are ways where the parties are able to resolve their issues on their own and have very amicable divorces. The California judicial system promotes both parties settling matters without the stepping in to do so for them. Therefore, the judge in a divorce case will most likely refer the parties to mediation before the court will make any decisions on the pending issues to give the parties a chance to work out the details on their own.

At the mediation session, the mediator generally gives an opening introduction of the mediator’s expertise, how the process works, what the mediator understands about the issues in dispute and asks for the commitment of both parties that they are at the mediation in good faith to try to resolve the issues in the case, and asks each side generally for a non-confrontational opening statement. The mediator generally separates the parties into two rooms and shuttles between the parties to help them narrow their issues and come to an agreement. The agreement that is made is reduced to writing and signed by the parties. The parties do not have to see each other during the mediation, which lessens the tensions between the parties and better promotes settlement.

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San Jose Divorce Attorney Discusses Date of Separation Issues

Kate Walsh, Star of Private Practice, Getting Divorced After Only 15 Months of Marriage – Dispute Arises Over Date of Separation

In December, Kate Walsh’s husband, Alex Young, filed for dissolution of marriage, citing irreconcilable differences. In her response, Ms. Walsh apparently disputes the date of separation. By 5 days.

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Fremont Divorce Attorney Discusses Division of Assets

Besides matters relating to children, the division of assets is often the most hotly contested issue that arises during divorce proceedings. Over the course of a marriage, a couple’s finances become intimately intertwined and separating finances can prove time consuming and frustrating. Divorcing spouses must split all of their finances, property and assets and this can be a long and arduous process that must be mediated by an outside entity such as the courts and a judge.

Each state has its own laws about how people are to divide their property. In California, we are a community property state and determining who owns what can be a very complicated process. The first step in dividing property is determining what community property is and what constitutes separate property. Separate property usually includes gifts, inheritance, and personal injury settlements, pensions acquired before marriage and a separate property or business. Sometimes separate property can become mixed with community property, which complicates an already complex situation.

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San Jose Divorce Attorney Discusses Community Debts

Debts incurred during marriage are sometimes very sensitive topics. Sometimes, one spouse is unaware of the debts that the other spouse incurred, and yet they are still made to pay for it. Therefore, it is good to know about how debts are divided on divorce.

In Tracy Achen’s article regarding credit debt on divorce, she cautions that if both of the parties applied for credit together, then each party is responsible for repaying the debt. Since creditors are not bound by a divorce decree, if the account goes into default because of non-payment, both parties are held liable for the debt. Therefore, if you think that charging up the credit card and not paying is going to stick it to the other person, you are wrong. It only makes matters worse because you will be also be charged with that debt. Your credit score will also go down based on the default and non-payment.

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San Jose Divorce Attorney Discusses Retirement Plans and Settlement

Many people who are in a divorce are faced with many issues regarding division of assets and settlements. One of those problems is the division of a retirement account. If some of the portion of your settlement consists of retirement assets, you should be aware of the tax ramifications and potential penalties involved. William Donaldson and Adam Westphalen in their article state the penalties involved when parties are subject to divorce and must divide their retirement assets.

West phalen and Donaldson advised that most of the time, distributions from a retirement plan prior to age 591/2 are considered “early distributions” and are subject to a 10% penalty tax as well as ordinary income tax. There is an exception to this rule. It is a transfer to an ex-spouse as part of a divorce settlement. A Qualified Domestic Relations Order (QDRO) is used to affect this transfer. Income taxes still apply, so any assets you receive from a “qualified plan”, such as a 401(k), will be subject to a mandatory 20% tax withholding. This means that, if you are awarded a $100,000 distribution from an ex-spouse’s 401(k) you will actually receive only $80,000.

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San Jose Divorce Attorney Discusses Community Property:

Equal ownership of community property assets has never been dependent upon a determination of labor or talent. Men and women are considered equal partners in a marriage in California. Each shares marital property equally regardless of whether their assets were earned by one or the other. For example, if the wife is a highly paid attorney and the husband is unemployed, the differential in actual earnings is irrelevant to the ownership rights of each.

Both marital parties are an equal agent of the partnership, binding it if acting within the scope of his or her authority and if acting for the joint benefit of the family. The California community property system adds to joint ownership the right of equal management and control. In dissolution of marriage, the court is empowered to allocate assets of comparable value to the former husband and wife to make the overall division of the gross marital estate substantially equal, and each asset does not have to be divided.

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Monterey Divorce Attorney Discusses Community Property Declaration

If you are considering filing for a divorce in California or you have spoken to a Monterey Divorce Attorney, then you probably have some idea how community property laws will affect your property division after a divorce, however, you may not realize how much or your property is considered community property. Anything accumulated during your marriage is considered community property in California unless it was a gift or an inheritance. Anything that is community property must be divided during the divorce and your spouse is entitled to one-half.

Most people realize that community property laws will impact how bank accounts are split and whether a house must be sold but there are other assets that people often overlook. A good example of this is in the case of John Moores and his wife Becky who are going through a very public divorce. Mr. Moores is owner of the baseball team the San Diego Padres and his wife filed a motion with court over access to the owner’s box at the stadium. Of course most couple do not have such expensive items like a luxury box at a professional stadium to worry about but they may have two season tickets to a professional sports team. This is a community property item. Also most people overlook other items like frequent flyer miles and vacation time accrued during marriage.