Been separated for almost 2 years now and as part of the debt/property settlement she wants me to pay for half of the CC debt. The card is under her name and I was not linked to it in any way and currently do not own/have property bought with...
I have written some articles on this topic that you may want to review. The general answer is that any debts incurred, or assets acquired, between your date of marriage and your "date of separation" (legal term) are community property - belong to each spouse 50/50 absent certain exceptions (fraud, misuse of funds - again, must meet specific legal requirements). Your date of separation is the date one of you communicated to the other that you want out of the marriage AND takes an affirmative step to live separate and apart (moves out of the house). If the debts were incurred after date of separation AND were not to pay community obligations, they may very well be the separate obligation of the spouse who incurred the debt. Otherwise, they may be a joint debt that the law requires be split equally.
In your divorce, you can co-create agreements that may offset the debts - you do not have to follow the law, if you agree on a division the is more valuable for each of you. But this does require agreements. Otherwise, you will each have to prove to the judge under which law, given the evidence, the judge is allowed to grant your request.
I would strongly encourage you to have a lawyer review your documents so that you have more reliable information upon which to rely.
I hope this is helpful to you.See question
Its a simple divorce. No custody battles, no splitting of assets or real estate. Joint equal custody and no alimony or child support needed. Just reviewed the form packet and seemed overwhelming. Wondering if it's worth getting divorce attorney.
There are so many factors that go into the legal fees you will ultimately pay to complete your divorce. First, hourly rates will vary by attorney experience and location. Some attorneys, who may be very inexperienced or very hungry for work may charge as low as $150/hour. Some attorney with far more experience (and perhaps in the West LA, Beverly Hills area) charge upwards of $700/hour. In your area, anything between $200 and $400 is probably reasonable, but you really should contact local attorneys to confirm the going rate.
In addition, the level of conflict and the complexity of the issues in your case, may require a more skilled attorney and/or more court time (court hearings) and/or discovery. All of this can add up. The state average in 2010 was $50,000 per person, according to some statistics. That's the last time I researched the average cost of a divorce - that's 6 years ago.
You will have greater control of your divorce legal fees if you and your spouse are able to resolve most of the issues yourselves and/or through a collaborative or mediation process. There are a number of talented practitioners in your area who are experienced in these out of court processes. Contested court battles tend to be far more expensive. There are also many attorneys who will prepare the documents for you for a flat fee, if you are both in agreement on all issues.
I hope this helps you in your research. You may want to consider attending a "Divorce Options Workshop" - there are a number of these throughout the state, at low cost or no cost.
Good luck.See question
My ex spouse has filed a motion for enforcement and reimbursement for payments he has made on joint private student loans dated 2004, and 2005 (payments made from 2009-now). The uncontested divorce was granted in 2008 [married in 2000] in Califo...
It is not clear from your statement why these debts were omitted. If they were not disclosed or included in your judgment, the court can make the appropriate orders now. Typically, student loans go with the student regardless of when they were incurred. There are issues of reimbursements where the community paid for the debt but did not receive the benefit of the degree (higher income).
Most people enter a court battle convinced they are right. We tend to focus on information (statutes and cases) that support our own belief, rather than focus on the actual current state of the law and the relevant, documentary evidence. I would caution you both in this regard. I would also strongly caution against handling this yourself, given that your own mistake or ignorance of the law is not typically a defense to an adverse ruling - once the gavel comes down, that's pretty much it, unless the Judge made a mistake in law. If, however, you feel confident in your legal knowledge on this issue, best to arrive prepared, which includes having filed and served your reply in a timely fashion, and having included your points and authorities.
This does tend to be (not always) a fairly straightforward issue that really shouldn't require court intervention. But if either of you is mistaken about the facts and/or the law, you will likely not be able to resolve on your own.
I hope this information is helpful to you. It would be good if you can consult a reputable lawyer in your area to assist you further in analyzing the law and your evidence. Good luck.See question
she has also incurred $12,000 of credit card debt on a joint card that she has used after the divorce where I am the primary party. I want to use the proceeds of the house sale to pay off the CC debt.
It really depends on the terms of your Divorce Judgment. When you say the property was "given to my ex-wife in our divorce", but you are still on the loan, what was ordered regarding removing you from the loan? Typically, a court would order the property sold, or would, based on evidence presented, determine the property belongs to one party and that any debt would also belong to that person OR would be divided equally, and would also include an order that the parties will cooperate in the transfer of title. It really depends on your orders (your Judgment). But, in general, you cannot unilaterally sell property that was awarded to someone else. As for the credit card debt, if this was something that existed prior to your court orders, but not known, not disclosed, and/or inadvertently missed, the court will still have jurisdiction (authority) to make orders on this item. If it was something that was known by one party, but intentionally not disclosed, judgments often reference such debts are the responsibility of the party who incurred the debt (check your orders). If it was something she incurred after your divorce was completed, again, the judgment may reference that such party is responsible for that debt, but you may have to go to court to get her to pay it. The creditor will likely not care that you are divorced and did not personally incur the fees. I would strongly recommend that you review your judgment and, if the card was awarded to you, you close the account immediately. BUT ONLY IF IT WAS AWARDED TO YOU. If you are the authorized user and just added her, you can probably remove her.
I hope this helps. Really, you need to look at the orders. If there is anything missing, you will need to go back to court, or try to reach an agreement with your ex, on those missing items.
Good luck.See question
We have 2 children together and got our partnership in CA 4 years ago. We were married recently but only for 2 months. With a dissolution of the partnership and 2 month marriage would I still have to pay or be held liable for her credit card debt?...
Most likely, yes. If the debts were a fraudulent misuse of funds (you would have to prove this), you may not be held responsible. If the debts were incurred for the benefit of the community, or during the partnership and/or marriage, AND if you left it up to the judge, then yes, the judge MUST order that your are both equally responsible for those debts.
On the other hand, you could both agree that each will take those debts in that person's own name, and will hold the other person harmless therefrom. You can agree to almost anything, so long as it is not illegal or against public policy. Once the judge signs your agreements, those agreements become the court's orders, binding and fully enforceable. But it does require that you both AGREE.
I would encourage you both to consider an out of court resolution process that will allow you to have more of a voice in the outcome of your dissolution. You may also be able to complete your process faster than if you go through a contested process in court. It would require cooperation, but it tends to yield far more satisfying, and customized, results.
Just something to consider. I hope this information is helpful to you.See question
Married 6.5 years, I work full-time and pay for everything, he goes to graduate school using his GI Bill. My husband is a former Marine and does not work as he goes to school. My parents own the house we live in; in lieu of rent I pay utilities as...
There are two different types of spousal support: Temporary and Permanent. Temporary is what the court orders while you are going through the divorce process. The goal is to maintain a level of status quo so that the lower income earner is not harmed or put at an extreme disadvantage during the divorce process. Well, that's the goal although it is still typically quite difficult for BOTH spouses. This support is based on a formula (most courts use either DissoMaster or ExSpouse) that factors in your gross incomes and few other deductions. The permanent is what the court orders at the end of your divorce case. Because you were married less than 10 years, it's possible that IF support is ordered, it could be for half the duration of the marriage - this is not a hard and fast rule, but a general rule of thumb. When ordering permanent, the court is required to consider the factors listed in Family Code Section 4320. These include ability to earn, ability to pay, health, age, history during the marriage, education, how assets and debts are divided, etc. The last factor is whatever the judge deems just and equitable. This last factor is what makes the permanent support one of the most contested issues in a divorce, and one of the least predictable. The intent behind the laws governing spousal support is that both spouses work towards becoming self-supporting, independent of the other party. It is also important to consider different sacrifices that spouses make when they marry and take on different tasks as a result of, or dependent upon, that union; such as, sacrificing career to stay home and take care of children, or, as in our case, taking advantage of the fact that one spouse earns enough to manage the expenses, so that the other can secure an education (thereby sacrificing short term employment) with the expectation of being able to earn more in the future. This latter circumstance is challenging because one spouse sacrifices work history (needed for gainful employment) for the education, and thereby becomes dependent upon the other spouse. The divorce hits, and suddenly they can no longer afford that education, nor do they have (possibly) the work history to jump back into gainful employment. On the other hand, the spouse carrying the burden of paying for all expenses, now has to pay for two households (or a portion of an additional household) on the same income??? It's a struggle even under the best of circumstances. Unfortunately, if you are not able to reach agreements on spousal support, it can get very expensive preparing to convince the judge to order no, or low, support if you are the higher income earner. One of my colleagues referenced a vocational evaluation to determine what income your spouse should be earning. That can help or hurt you, depending on the result. Either way, as the higher income earner, you will likely be ordered to front, if not pay in full, the costs of the evaluation (in addition to the legal fees).
As it relates to the domestic violence, California Family Code Section 4325 requires a conviction of domestic violence within the 5 year prior to filing the divorce. If such is the case (doesn't sound like it from the facts you gave), there is a rebuttable presumption that the convicted spouse should not receive a spousal support award. Based on what you have shared, this does not apply.
I hope this information is helpful to you. There are no easy answers when it comes to spousal support. If you have the children full time, you may get child support, unless your income is so high, and his is so low, and/or he has the children a significant amount of time - you could end up paying him child support as well. You should have a lawyer take a look at your specific case.See question
My ex is about to remarry, our divorce is not final yet. In my custody plan I am asking for 4 hour Right of First Refusal. So if I understand correctly, if Father is unable to care for the children, then I get Right of First refusal before anyone ...
If you are not yet divorced, he cannot remarry. I would suggest you make sure any agreements you create spell out your intent so that your concern is addressed (add that it includes leaving the children with a new spouse). It is perfectly reasonable for a person to leave his/her children with their step parent. If you have an agreement that any period of absence for 4 hours or more would require a call to the other parent to exercise the right of first refusal, then that is your agreement, and it is a binding agreement. The big question is enforceability - will you be taking your ex to court to request a change in the orders if your ex leaves the children with the step parent? What would a court, realistically, do? Courts, as a practical matter, really do not like these agreements - it clogs the courtrooms.
As a practical matter, the best thing you can do, to relieve your stress and the stress your children will feel, and to avoid constant trips back to court to enforce your orders, is make nice with this new person in your children's lives (as best as you can). Like it or not, this person is going to be in their lives. I would strongly encourage you to take a look at the series of books called "Ex-Etiquette". These books were written by ex-wife and current wife who were experiencing conflict with each other, and seeing the impact it had on the kids. They got together, for the kids' well-being, and that effort resulted in this series of books. It can be done. Every case is unique, and some situations may make this more difficult than others. But reducing conflict in your life, reduces stress, for you and for the children. I know this is beyond your question, but I hope you find it useful, none-the-less.See question
We are having an uncontested divorce.
The time it takes to get to an agreement in mediation depends on a number of factors. These include the complexity of the issues that need to be resolved, the level of conflict between the participants, the knowledge each participant has as to financial and family matters, the participant's ability to communicate with each and with the mediator, and, not least of which, is each participant's motivation to complete the process. Generally speaking, the higher the conflict, the more strained the communication, the more complex the issues, and/or the less motivated even on of the participants may be the get divorced, the longer the mediation will take, and the more financially, physically, and emotionally draining the process will be (whether you mediate or fight in court, it is still a direct correlation).
I have a form that I hand out to my clients before we start the mediation process (well, one of several forms) that identifies common cost inflators and obstacles to resolution. These include not providing needed documents, not reviewing those documents and/or not preparing for the mediation itself; fighting over small items that may even easily be duplicated (family albums and portraits are a common one); not dealing with the emotional trauma (this is especially true when there is infidelity or a new romantic relationship started by one of the participants during the divorce). This last one often shows itself in unexpected ways. I had one case (changing the facts slightly to maintain confidentiality) where the two participants spent 2 hours debating reimbursement for the new set of tires on one of the cars (one spouse had his/her's replaced before they separated, and the other after). They spent more money debating this one item than they did on the item itself. This was a very high conflict, emotionally charged case. And no matter what I did to refocus them on the big picture, they just couldn't move forward. We did eventually resolve, but it took me as the legal neutral, a financial neutral mediator, and a mental health professional acting as a family coach to manage communication and emotions, and 2 years before they finally reached agreements. That is probably the most extreme example, in mediation, that I have ever experienced.
On the other spectrum, I have resolved divorces in mediation in less than 3 hours. Those folks were motivated, emotionally ready, and prepared to reach agreements.
Best recommendation: Prepare, Prepare, Prepare, and make sure you are looking forward rather than living in the past. Any solutions you propose need to have value not only for you but also for your spouse. If both of you limit any proposed solutions AND you both keep that notion as a guide, you will like co-create agreements much faster than if you each try to pull for as much as you can get.
Finally, make sure you find a mediator who is well trained in mediation, and continually trains in new techniques (this is an ever evolving process), has resources for financial and communication assistance if you need it, and is well versed in Family Law. And, it needs to be someone with whom you BOTH feel comfortable and confident.
I hope this is helpful to you. Good luck!See question
Bought our home in 2006, had third child so we outgrew home. We had a first and 2nd loan. We did a modification of our loan in 2009. Then our 2nd loan was forgiven. We rented out the property in Jan 2012. Rented from 2012 until 12/31/14. I sold th...
You should consult a tax professional if you believe you are getting incorrect information on that end. As it relates to transfers of property as a result of a divorce (for example, you keep the family home only in your name, or your spouse pays you $100K to equalize his keeping the family home), such transfers are not taxable events. But, if you sell the house, even if ordered to do so by the judge in your divorce matter, you are subject to capital gains taxes. If you received money as your share of the community assets (RSU, bonus), depending on how your divorce decree is worded, these could be a non-taxable or a taxable event. I am careful to have this conversation with my clients BEFORE we draft, to make sure they understand the tax impact - I often refer my clients to tax professionals to make sure they are getting accurate and current information. If the wording says that the funds were for an "equalization" of the marital estate, this would, likely, be a non-taxable event. If, however, you are receiving it, pre-tax, and that tax liability was given to you, you would pay that tax. Also, if you received stocks, or retirement funds, and you liquidate (sale or pull the funds out early), even thought it was part of a divorce settlement, once you pull the funds out, this creates a taxable event.
As for the debt forgiveness, this is not my area of practice. You should consult a tax expert to give you the most updated information. There was a lot of back and forth in the news about this (that it would be forgiven, but the amount forgiven would be taxed as income, then it wouldn't, then only under certain circumstances, etc).
I hope this information is helpful to you. You really should have a family law lawyer review your judgment so that you have a clear understanding of what was ordered and the practical impact such orders have on you, as well as what, if any, options you have for modifying the orders to address your concerns.See question
Just filed for divorce against my wife. It's been 35 days since she's been served and she hasn't filed or served a response. In my dissolution petition, I asked the court to terminate its jurisdiction to award alimony to either spouse.
Yes. The court will reject your request if you have not served her with your disclosures and filed your declaration re service of disclosures. If you look at your Declaration for Default, you will see that you must declare you have served her and that you waive receipt of her disclosures.See question