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Oakland CA Divorce Law Blog

Property division in California

California spouses may benefit from learning more about the laws governing property division in the state. Divorcing spouses should be aware that until a judge approves an agreement and provides a final order, all assets and debt will remain community property, regardless of any mutual agreements that have already been made. Spouses are advised to split property, assets and debts as fairly as possible.

Some spouses are advised to use debt to balance out against those receiving more of the property. For many, the focal point of property division is to reach shares that are relatively equal for all parties involved. In order to achieve a comprehensive and equal division of assets, spouses should identify and list everything the couple owns, including both community property and separate property. Divorcing and separating couples are typically required to complete such a list when submitting the Schedule of Assets and Debts form.

California child custody and the child's true wishes

People who go through child custody disputes each year in California often have questions about how the courts make custody decisions and whether or not their child will have input. Like most other states, California law, while allowing judges to consider a child's true wishes, puts a minimum age requirement in the statute before the child's wishes are given much weight.

Children who are 14 years old or older do have a say in where they would prefer to live in custody cases. Judges may also take into account the preferences of children who are younger than 14 if they are sufficiently mature and informed enough to express their preference.

What types of restraining orders are there?

When a person in California, whether male or female, has been a victim of domestic violence, one of the initial steps that can be taken in order to gain some protection from their abuser is to get a restraining order from the courts. There are several different types of restraining orders that a victim is able to get.

When a person has been abused or threatened by another, they are able to obtain a domestic violence restraining order if they are a close family member of the abuser or if they have lived together in the past while in an intimate relationship with the abuser. People in other types of relationships, such as roommates or neighbors, can seek a civil restraining order instead if warranted.

How does the court calculate child support?

In California, child support payments are determined using guidelines that apply statewide. The amounts set forth by the guidelines are presumed to be correct and a judge may deviate from them only in limited situations. They take into account a number of factors related to finances and family circumstances.

For example, among the most important factors in the guideline analysis are the earnings of the parents and any other income each of the parents receives. In this regard, the court may in some cases consider potential earnings. Such a consideration is more likely in a situation where one of the parents is voluntarily unemployed or underemployed. Income is determined on the basis of net disposable income, which includes adjustments for such things as federal and state taxes paid by the parent. Income from certain sources is not considered in the analysis, such as certain forms of state or federal assistance.

What property is eligible in a divorce?

In California, a divorcing couple must account for their separate and community property in the Schedule of Assets and Debts. Community property, also known as marital property, will be divided equitably by the courts if the couple does not reach their own agreement.

Property can include bank accounts, homes and anything else with financial value or equity. To determine the division of property, each spouse in a divorcing couple may create a list of personal and marital property and compare lists with the other spouse. Separate or personal property will not be divided, but to avoid a trial, divorcing couples must agree on what assets are actually separate.

Property division in California may be complex

California residents who are contemplating divorce may be interested in how marital property is divided. In a community property state, all property including assets and debts are divided between the parties. Spouses might take several steps to make the process easier.

Each spouse fills out a form, FL-142, a schedule of all joint and separate debts and assets the couple has at the end of the marriage. The filers indicate the market value of all property and how much is owed on it. This includes real estate, bank and pension accounts, and other assets. Both parties list all debts they share or hold separately including credit cards, loans, student loans and taxes.

Domestic violence in marriage and divorce situations

California residents may be aware of domestic violence issues in the marriages of friends, families or public figures. In many cases, there may be an interest in the implications if an abuse victim desires to leave a marriage. Domestic violence includes both physical and emotional actions that harm an individual in a family environment. In a marriage, one spouse suffering such actions from another spouse may be viewed as a reason for divorce.

Although most states allow for no-fault divorces, enabling spouses to leave a marriage without giving a specific reason for the desired dissolution of marriage, the issue of cruelty is considered grounds for divorce, making domestic abuse a viable option in filing for a fault divorce. In some cases, the harm caused to one spouse by another may affect the division of marital assets, but this is not necessarily the case in all states. The determination of the impact of domestic violence on asset division may vary based on the view and decision of the judge overseeing a case.

49ers defensive end facing domestic violence charges

Officers detained a professional football player, Ray McDonald, on Aug. 31 on suspicion of felony domestic violence, according to the San Jose Police Department. Police booked McDonald, who plays defensive tackle for the San Francisco 49ers, into the Santa Clara County Jail.

The circumstances that led to McDonald's detention were not immediately clear. Police indicated that officers had probable cause to take McDonald into custody but declined to comment any further on the incident, which is still under investigation. Furthermore, McDonald reportedly declined to expound on the incident, stating only that 'the truth will come out." He was released from the Santa Clara County Jail upon posting bail.

The true value of a forensic accountant

When a California couple decides to go their separate ways, the divorce process serves to effectively divide all that they own. Decisions are made regarding community property, if there will be support payments and where the children will reside. In some cases, this process is relatively straightforward, but it can become complicated when a couple's assets include stock options, deferred compensation, businesses, retirement plans, rare collectibles and other assets that are difficult to appraise.

In addition to taking great care with the valuation of assets, the failure to account for future potential values or losses can result in problems down the road. There may also be concerns about one or both spouses attempting to hide or undervalue assets. Forensic accountants are often able to provide assistance with the proper valuation of assets and looking for signs of fraud. In cases where one spouse has been hiding income or assets for several years, the forensic accountant may be able to uncover the truth through a detailed investigation.

Child custody and visitation in California

Parents in California who are divorcing will also have to decide on issues surrounding custody, visitation and support. These issues may be complex and may be agreed upon by both parents or decided by the court if they cannot agree.

There are two kinds of child custody. Legal custody deals with making important decisions for the child relating to school, religion and health care among other matters. Physical custody is awarded to the parent with whom the child will live.