Is Property Acquired After the Date of Separation Still Community Property?

Posted February 25, 2011 in Family Law by Julia Lemon.

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February 25, 2011
Is Property Acquired After the Date of Separation Still Community Property?
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In California, the legal date of separation occurs when (1) at least one spouse has the subjective intent to end the marriage and (2) there is objective evidence of conduct that reflects that intent.

California is a community property state.  This means that under California law, most property acquired by married persons during their marriage while living in California is presumed to be community property.  Property that is acquired prior to marriage, or during marriage by gift, bequest, or devise, or as income from property owed prior to marriage is presumed to be separate property of the receiving spouse.  After the date of separation, the earnings and assets acquried by one spouse are generally considered that spouse’s separate property.

For more information on legal separation (property division?), please contact us.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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What is Summary Dissolution?

Posted February 25, 2011 in Family Law by Eric Despotes.

Summary dissolution is a California divorce procedure that allows couples meeting certain qualifications to divorce quickly and simply.  Some of the qualifications for a summary dissolution are discussed below.

In order to qualify for summary dissolution, the couple must have been married for no more than five years.  Prior to filing for summary dissolution, at least one of the spouses must have been a resident of California for at least 6 months and a resident in the county where the dissolution was filed for at least 3 months.

In addition, “irreconcilable differences” must have caused the breakdown in the marriage.  The couple must have no minor children.  This means that no child of the relationship was born before or during their marriage.  Also, the wife (to the best of her knowledge) must not be pregnant, and the couple must not have adopted any children during their marriage.  However, the couple may have adult children.

In order to qualify, the couple also must not have any real property interests other than short term leases.  Therefore, couples who own homes are not eligible for summary dissolution.  The couple may only have a maximum of $6,000 in unpaid debts incurred by either or both parties during the marriage.  This number, however, does not include the balance left on a debt from an automobile purchase.

If a couple qualifies for summary dissolution, they can proceed with a divorce without having to appear in court.  However, because there is no trial or hearing in a summary dissolution, couples do not have the right to appeal the case or to ask for a new trial (since there was no trial).  For couples who do not qualify for summary dissolution, they may proceed to obtain a divorce through the regular dissolution process.  Under the regular dissolution process, couples may ask for a court hearing or a trial.  If either party is unsatisfied with the judge’s final decision at trial, he or she may appeal the decision to a higher court.

For more information about California divorce or to find out about all of the summary dissolution requirements, please contact our San Jose divorce attorneys at Lonich & Patton.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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What is a California Emergency Protective Order?

Posted February 24, 2011 in Family Law by Eric Despotes.

Note: People can tell what internet sites you have visited on your computer. Be safe, and use the internet at a local library, friend’s house, or at work!

An emergency protective order (EPO) is a court order that protects victims from domestic violence by prohibiting the victims’ abusers from coming within a certain distance of the victim.  You can obtain an EPO by calling 911 and reporting domestic violence to the police.  You can ask for this order at any time – day or night.  An EPO may also grant the victim temporary custody of his or her children.  However, an EPO and other restraining orders do not guarantee the safety of you and/or your children.  If you continue to fear for your safety after the issuance of an order, the California Bar suggests you consider moving into a domestic violence shelter or the home of a friend or relative who is not known to the abuser.

An EPO remains in effect for five court days or seven calendar days, whichever is shorter.  For a longer-term restraining order, you must apply for a Temporary Restraining Order (TRO) at the local courthouse.  If a TRO is granted, it will take effect as soon as the restrained party is served a copy of the court papers.  The TRO will stay in effect for a period not exceeding three weeks, pending a court hearing.  At the hearing, the judge will decide whether a “permanent” restraining order is warranted, which can stay in effect up to three years.

It is important to note that under California law, a wide variety of activity can constitute grounds for a domestic violence protective order.  California law defines domestic violence as abuse towards an intimate partner or family member.  Domestic violence stems from the abuser’s need to control.  It includes threats, annoying phone calls, stalking, unwanted sexual touching, hitting, the destruction of personal property, and other actions.  Victims may be a spouse, dating partner, someone you lived with, or a relative related by blood or marriage.  It affects same-sex partners as well as heterosexual couples.  Both children and adults can be the victims of domestic violence.

For more information about emergency protective orders and temporary restraining orders, please contact the San Jose family law attorneys at Lonich & Patton.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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An Action to Establish Parentage Might Help You Obtain Child Support from Your Child’s Other Parent

Posted February 23, 2011 in Family Law by Mitchell Ehrlich.

A parentage action is a court proceeding in which the court makes a determination of child’s legal parents.  Quite often this is not in dispute, but sometimes parentage is disputed for various reasons. Where the parents are not married, a parentage action or at least a determination of parentage is required as part of any effort to obtain child support, visitation, or custody.  Either the mother father (even if disputed) of the child can file this type of action.

It is important to know that the legal parents of a child have an obligation to financially support their child.  A legal parent also has the right to obtain custody and/or visitation rights in relation to the child.

For more information about how you can establish parentage of your child, please contact our family law attorneys at Lonich & Patton for more information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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Marital Debts: What You Need to Know

Posted February 22, 2011 in Family Law by David Patton.

The community estate (i.e. a married couple’s community property and quasi-community property) is generally liable for either party’s premarital and pre-separation debts.  This rule applies regardless of which spouse has management and control of the property, and regardless of whether the debts were incurred to benefit both spouses.

The community may be liable for child support and spousal support obligations arising from one spouse’s prior marriage even though the other spouse did not personally incur the original obligation.  The community, however, may be reimbursed when community property is used to pay the other spouse’s child/spousal support if the obligor spouse had separate property income available to use to satisfy the debt.  The community estate is generally not liable for debts one spouse incurs while the spouses are living separate and apart from each other.

For more information about California divorces, please contact the Santa Clara divorce attorneys at Lonich & Patton.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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