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Divorce in CA, division of community and separate property under CA state law

Los Angeles, CA |

My father wants to divorce my mom - except they've been married for over 30 years and he bought and paid for the house. He has also paid for all the debts she has incurred / been sued for over the years. They still live together but he's they've been separated for probably 15 or so years(they also sleep in different rooms). They tried getting a divorce when I was a child, but my mom realized she would get less in child support since I wanted to live with my father, so she stopped the proceedings. Now it appears she'll come out on top. They both live in the house he's paid for - she does not contribute anything to the household (she does work, but we don't know where the money goes-definitely not to any house payments or bills - even HER bills) he pays for her insurance, he buys/cooks his own food. She's constantly being called by collection agencies (no idea how she continues to get loans) - and is getting sued. She says she wants to be removed from the deed of the house, since she knows she doesn't deserve any interest in it. Since this is CA, we don't know whether or not that will matter,we're afraid he's basically screwed for the rest of his life paying her alimony, giving her half of everything he's work his entire life, and of course a big chunk of his income - which we know she will quit her job to get more income if he does file for divorce. Is there a way they can simply part ways without screwing my father?

Attorney Answers 3

Posted

I'm not clear from your question which parent wants the divorce at this point. The one who does should speak to an experienced family law attorney in your community. If your two parents both want the divorce and are willing to work out a settlement agreement together, they are free to negotiate an agreement that they both deem to be fair.

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Posted

Much of this question will hinge on whether or not your parents really have been separated for the last 15 years. If they filed a legal separation, then the answer likely will be yes. If they did not, then the answer may be no.If they have actually been separated, then an argument could be made that your mother's community property interest in the home is only that which was aquired prior to the separation. After the separation, the added equity that your father continued to put into the home is arguably seperate property. Incidentally, it will not matter who' spaycheck was used to pay for the real property and other assets during the marriage. Dad's money earned during the marriage (and before separation) is community income. Same for mom's money earned during the marriage (and before separation). Debts incurred during marriage are also community debts. Thus, if your father was paying these debts of your mother's during the time that they were still "together", then he was actually just paying his own debts. If they were married for 15 years prior to separation, that will be considered a long term marriage under California law. This means that spousal support will be a huge issue. If your mother quits her job to get more spousal support, then your father should ask the court to impute income to her. That is, the court will look at what she was earning prior to quitting her job and calculate spousal support as though she was still earning it. This will usually only happen, however, if someone calls the judges attention to the fact that your mother could be and should be earning income. Your father needs to get a family law attorney and see if it is possible to get a settlement agreement in place with your mother. Best of Luck.

David C. Beyersdorf
Lee & Beyersdorf, Llp
2110 North Winery Avenue, Suite #101
Fresno, CA 93703
(559) 252-7000

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In order to keep costs down, you may want to seek an attorney mediator to help your parents resolve. I am currently handling a matter in which the parties were married for over 30 years but have lived separately for over 1 years. The problems here is going to be agreeing on a date of separation. Date of separation is the date when one party communicates (orally or in writing) to the other that the marriage is over - they want out. This date is important because under California law it sets the cut off date for community property and debts. Community property and debts are those that are acquired or incurred during marriage. There are various exceptions, such as property that is acquired by gift or inheritance, and there are "co-mingling" issues such as the case where one party has a property from before marriage but maintains it with salary earned during marriage (community property funds). Absent an agreement as to date of separation, it will be a matter of proof, which can become a "he said/ she said battle, or can be done through documentation and also how your parents presented to the outsider - if people still thought they were married, odds are, so will the court. Because this is considered a long term marriage, it is possible that the higher income earner will have to pay support for a very long time. But more and more judicial officers (judges and commissioners) are employing a "step-down" policy when it comes to spousal support. The short of it is that they each need to seek individual legal counseling so someone can advise them as to their rights and best legal interests. Staying out of court, will help them keep most of their money, save time, keep their private matters private, and keep them in control. Once in front of the judge, the judge's hands are tied by the law. In a resolution setting, they can create whatever agreement they want, including waiving spousal support if that is what they both want to do. With regard to the real property, if there is any money owed on it and they are both on the loan, one or the other will have to refinance to remove the other person from the loan. They can "quit claim", thus removing any interest the other party may have in the property, but that does not remove them from liability under any loan where their name appears. Depending on their situation (upside down on the house, ability to qualify for a refinance, etc), there may be a number of options here. Again, you will need someone to review the specifics of the situation. I hope this helps.

All my best,

Diana L. Martinez
Collaborative Attorney & Mediator
West Coast Mediation
3100 Chino Hills Pkwy, #1426
Chino Hills, CA 91709
(909) 548-2171

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