This week’s question:

 

I had a house before my wife and I were married. I sold

that house before we were married and put all of the net proceeds into our

present house, more than $100,000. It may be necessary for us to sell our

present house and go our separate ways, even though the economy might not be

the best. Is my $100,000 gone through a gift to our present community or do I

get that back?

 

/s/Jack J.

Almaden Valley

 

Dear Jack—

 

You have emailed in a very interesting question, Jack. Two

short answers come to mind and then a longer one.

 

The first short answer is that you really need to see your

own attorney on this one since every case is different and very “fact

specific” as we say. The second short answer ties in with the

first—it really all depends.

 

Now for the longer answer.

 

One thing you want to consider is the status of title. If

your deed reads in your names as joint tenants then the house is presumed to

be community property under California Family Code §2581. But

don’t panic, because that presumption can be rebutted. It is not a conclusive presumption.

 

Family Code §2581 states that property generally in joint

form acquired during the marriage is presumed

to be community property but that can be rebutted.

 

Another very important Family Code provision is §2640. That

law states that the party shall be reimbursed for that party’s contributions to

the acquisition of property of the community property estate to the extent the

party traces the contributions to a separate property source. (Except

where the party has waived in writing the right to be reimbursed.)



Obviously, the above paragraph contains a very important

rule. And that pertains to tracing. So, you will want to get out all of your

paperwork and trace or track back to prove that your $100,000 came from the

prior marriage, i.e. your own separate property in this marriage. 

 

If you can trace it or prove it, you may get credit for it

in the present property division. Under Family Code §2640 it would be

“without interest or adjustment for change in monetary values”,

i.e., inflation, but those often are minor details.

 

In cases of extensive appreciation and/or loan pay-down over

a number of years, your attorney may need to set up a proportion to compute the

increased value to the community compared with your separate property

contribution. That’s why it is always best to consult with your own

attorney concerning issues of this nature.

 

Good luck, Jack. I hope it all works out OK.

 

/s/Donald J. DeVries

Almaden Valley

 

Donald J. DeVries is an attorney practicing law in the

Almaden Valley. Past Almaden Times articles

since 1986 can be accessed through his web site: www.almadenvalleylawyers.com. If

you would like him to answer your question in his next Almaden Times column, you can reach him by

email at don@almadenvalleylawyers.com,

with “Almaden Times” in the subject line, fax at (408)268-6502,

telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden

Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private,

so of course, he will not disclose your identity or any details about your

situation. Mr. DeVries writes this column to provide you with general

information about important legal matters affecting California

residents—not to give you legal advice about your specific matter. No

attorney-client relationship is created by these articles. The law is complex

and constantly changing and varies from state to state. So you should consult

an attorney before taking any action that would affect your personal or

business matters.

 

 

This week’s question:
 
My wife has threatened to leave me and I am wondering about spousal support. How does the Court look at that? Doesn’t each party have to work? Is there anything I can do to eliminate alimony or spousal support?
 
/s/David D.
Almaden Valley
 
Dear David—
 
You have emailed in a very interesting question, one that is not easy to answer because there are so many variables.
 
Many, but not all, of the variables are listed in California Family Code §4320. That law provides as follows:

    §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 to pay of the supporting party, 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) The immediate and specific tax consequences to each party.

     (j) The balance of the hardships to each party.

     (k) The goal that the supported party shall be self-supporting within a reasonable period of time. 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 and the circumstances of the parties.

     (l) Any other factors the court determines are just and equitable.

/s/Donald J. DeVries
Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawyers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with “Almaden Times” in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

This week’s question:
 
My husband and I have decided to end our marriage. Is there any way we can do without all the paperwork I have read about? It seems so silly if we agree on everything.
 
/s/Lisa L.
Almaden Valley
 
Dear Lisa:
 
I agree 100% that a lot of the paperwork seems silly, but that’s life in marital dissolution (divorce) cases, unfortunately. Much of the documentation is very important.
 
Let me give you one example of why it is important. In a recent case, the husband, Gary, appealed from a court order against him that provided for him to pay his ex-wife, Marci, $200,000 in monetary sanctions for his failure to comply with his mandatory disclosure requirements.
 
Part of the parties’ obligations in divorce cases is to fill out several pages of Family Court documents, entitled Preliminary Declaration of Disclosure. Well, Marci believed that Gary’s final paperwork was deficient and filed for the sanction order against Gary. (A sanction order is something like a monetary fine.)
 
However, the Court of Appeal ruled that Marci was at fault for not having her own paperwork done properly and decided that Gary could not be hit with the $200,000 order. So, it cost Marci $200,000 for not having her own documentation in good shape.
 
The Los Angeles case is entitled In re Marriage of Marci and Gary Fong and it was decided on March 7, 2011. The case dealt with other issues as well, but very important was the issue concerning the disclosure obligations and breach of fiduciary duties.
 
It was stated by the Court of Appeal that each party to a proceeding for dissolution of marriage or legal separation is required to fully disclose in the early stages of the proceeding all assets and liabilities in which he or she may have an interest, whether community or separate, and must fully disclose his or her income and expenses.
 
Periodic updates of the information are also required to be filed immediately and fully upon any material change of circumstances. Preliminary Declarations of Disclosure are mandatory but the Final Declarations of Disclosure may be waived or excused if both sides agree.
 
So, you can see, Lisa, that the paperwork is very important. Almaden Times readers can read the case for themselves by entering the case name in their online search box: In re Marriage of Marci and Gary Fong. It may also be under: Marci Kington v. Gary Fong.
 
As in all cases, you will want to consult with your own attorney to see how this and any other case may apply to your specific situation.
 
/s/Donald J. DeVries
Almaden Valley
 
Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawyers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with “Almaden Times” in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

THIS WEEK’S QUESTION:
 
I have in mind to do my own divorce. My wife and I have agreed to have no lawyers involved at any time. Do I still need to fill out all the paperwork, listing all of our property? I have been doing a little reading in this area and it really looks like an invasion of our privacy. My wife totally agrees.
 
/s/ Jack J.
Almaden Valley
 
Dear Jack—
 
You certainly may do your own divorce (i.e. dissolution of marriage), Jack, but you and your wife still must follow the rules. This includes filling out all of the paperwork that is required under the Family Code, even though it seems like an invasion of privacy.  There are many rules of disclosure that pertain to a full and complete disclosure of all debts and assets.
 
Many of these rules of disclosure are found in California Family Code Sections 2100-2113. For example, our state Legislature has found that it is the policy of this state to marshal, preserve, and protect community and quasi-community assets and liabilities that exist at the date of separation so as to avoid dissipation of the community estate before distribution.
 
Also, our public policy is to ensure fair and sufficient child and spousal support awards.
 
So, in order to promote this public policy, a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties.
 
California Family Code Section 2101 spells out many important fundamental terms. “Assets” are defined to include any real or personal property of any nature. “Earnings and accumulations” includes income from whatever source derived. 
 
“Expenses” includes all personal living expenses. “Income and expense declaration” includes the Income and Expense Declaration forms approved for use by the Judicial Council. “Liability” includes any debt or obligation, whether currently existing or contingent.
           
Of course, there are many remedies that are available to the other party if the first party violates the rules of disclosure, including attorney’s fees and costs of the proceeding.
 
You can read these rules of disclosure by going online with your favorite search engine and entering California Family Code Section 2100. I did just that and several possibilities for further information were up on my screen in a fraction of a second. You may find www.findlaw.com to be helpful, with a relative minimum amount of distracting advertising.
 
Good luck in the process, Jack. Just try to remember that you need to follow the rules.
 
/s/ Donald J. DeVries
Almaden Valley
 

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawyers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with “Almaden Times” in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

This week’s question:

My husband and I are having marital problems and he keeps threatening me with all kinds of things. Can you give your Almaden Times readers and me a few tips on how to handle threats?

/s/Rachael R.
Almaden Valley

Dear Rachael—

Threats are often different, depending upon the people and the circumstances, but there are a few common ones as well.  Your own attorney can probably help you sort them out.

Here are a few common threats in marital dissolution (divorce) cases with a few comments after each one:

1. “You will never see the children again.” Try to get a witness to this one since it may result in a greater time share for you.

2. “Sign this paper or the judge will order us to sell everything.” Adequate grounds need to exist for an asset is ordered to be sold. And there are usually ways around that drastic step. 

3. “I will quit my job before I will pay you support.” Try to get this one in writing, since that may make a contempt of court case easier—with possible fine or jail sentence—plus an award for attorney’s fees.  Rules on child support and spousal support are quite clear and must be followed.

4. “Why are you trying to take my money?” A proper response here is that community property is shared equally, it’s not “his” or “hers” or “yours” or “mine.” Each spouse owns one-half.

5. “I will tell the judge so-and-so and after that you will never get to see the children.” Chances are good that “so-and-so” has noting to do with the best interests of the children.

6. “Your attorney is a jerk, so my attorney can draw up the paperwork.” Chances are that both attorneys can work together in drafting a settlement agreement.

7. “We can reconcile once you have signed this agreement.” The dangers here are obvious. It is usually best to not sign anything without your own attorney’s input.

Many, many more threats could be listed that come up all the time. If they do, make a list as they occur along with specific details as to the date, location, and other circumstances. It will come in handy later. Do not secretly tape record anything since that could get you in trouble.

Threats in a marital dissolution context are very common, Rachael. Try not to be intimidated by them. Report them to your own attorney if concrete action appears imminent. Some spouses are used to calling the shots and those days may be over.

/s/Donald J. DeVries
Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawyers.com.  If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with “Almaden Times” in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation.  Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.
 

This week’s question:
 
I have had an uneasy feeling during our marriage that my husband was married at the time that he and I were married. We have been together for many years and have accumulated a house in Almaden, a rental property at Lake Tahoe, and several retirement accounts. If it turns out that he was married when we got married, how is our property divided?
 
/s/Maria M.
Almaden Valley
 
Dear Maria—
 
It if turns out that your husband was already married at the time of your marriage, you may have a problem of bigamy on your hands.
 
A case that dealt with this kind of a situation was decided by our Sixth District Court of Appeal in San Jose in November, 2009. The case is entitled In re Marriage of Tejeda. The case came to the Court of Appeal from Santa Cruz County Superior Court.
 
In the Tejeda case, Petra and Pablo Tejeda were married in 1973. The court found that at the time of their marriage, Pablo was already married to another woman. This fact was unknown to Petra who thought she was legally married to Pablo for over 30 years.
 
In that case, Petra discovered the truth when Pablo sued her for divorce in 2006, some 33 years after they went through a sham marriage ceremony.
 
Of course, the State of California requires that a man and a woman can only be married to one spouse at a time. Otherwise, we have a case of bigamy on our hands.
 
But then the question arises as to how the couple’s property is going to be divided, assuming it’s a bigamous marriage. This is the question that was addressed in the In re Marriage of Tejeda case.
 
The Tejeda court found that Petra had, for more than 30 years, formed a good-faith belief that they were legally married, as shown by many things, such as filing joint tax returns. Since she had this good-faith belief, Petra qualified as a putative spouse.
 
The court also stated that in a putative marriage, California Family Code §2251 applies. If a putative  spouse status is found by the court, the family court is required to divide the property is divided as if it were community property. It is then called quasi-community property. The “innocent” spouse cannot “opt
out” of the putative spouse status and obtain a greater share of the couple’s property. “Guilt” and “innocence” are not considered.
 
Almaden Times readers can read the In re Marriage of Tejeda case for themselves by going to their favorite search engine and entering the name of the case. It makes for very interesting reading! As always, you will want to consult your own attorney to see how that case applies (or may not apply) to your particular situation.
 
/s/Donald J. DeVries
Almaden Valley
 
Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawyers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with “Almaden Times” in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.
 

This week's question: It looks like my husband and I are going to part ways soon. We do not have a lot of property but what we do have is very important to both of us. And we do not have a lot of money to hire attorneys to represent us. Do you know of an inexpensive way for us to divide up our household goods?

/s/Jessica J., Almaden Valley

Dear Jessica- Sorry to hear about your marital situation, Jessica, but there is an inexpensive way to divide up your household goods. Of course, the cheapest way to divide up everything is to reach an agreement with the other side. Very often people can do this when they simply use their heads. Think about the cost of arguing, going to court, and related proceedings. It doesn't make any sense to spend hundreds of dollars arguing about a $5.00 garbage can or an old sofa worth $50 at the flea market.

Let us assume that you have both gone the last mile and have been reasonable in your discussions and still have not reached an agreement. If you have a case pending in Family Court in San Jose, chances are that at some point in the proceeding you will have a Settlement Officer Conference with a good settlement professional. This is usually an experienced attorney serving as a pro-tem (temporary) judge for the day. At your Settlement Conference, you would be strongly encouraged to reach an agreement on the household goods.

Part of that agreement may be to have the right to inspect, photograph, and inventory the items in the other party's possession. An appraisal report may later be done as well. Each of you may want to have one neutral witness present during the inspection. If there is any request to do so, you may be required to have a private security person to supervise the inspection at joint expense. After the inspection, if you come to an agreement, fine. If not, the next step is often binding personal property arbitration in Family Court.

You could reach an agreement with the help of a private arbitrator or with the assistance of the Family Court, following the rules for binding personal property arbitration. An informal meeting would be set up with the Arbitrator and you would both attend with your documentary evidence and all other pertinent information. At the personal property arbitration, the experienced Arbitrator would not represent either side. All matters are confidential as to outsiders. The primary issues would be the valuation, characterization, or disposition of all community property items in dispute. The Arbitrator's role is to help the parties reach an agreement through effective communication. If that is not successful, then the Arbitrator would make a decision about the various issues in dispute.

After the arbitration, a report is filed with the court by the Arbitrator. The report would support the issuance of a binding Court judgment. In this process, each party would agree to exercise good faith, fully disclose in advance all relevant facts and supporting documentation to the other party. If they wish, either party could consult with professionals prior to the arbitration, such as attorneys, appraisers, certified public accountants, and/or other professionals. Generally, the arbitration sessions are from one to one and one-half hours long. The sessions are usually held on Friday mornings and are scheduled through the Calendar section at Family Court.

Other issues are usually not discussed, such as child and spousal support, real estate, and/or other issues. Having assisted clients in this process over the years, I can say that the program is an excellent one. It helps people come to an agreement or fair decision about their household goods at the lowest possible cost.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.