My wife inherited property in India during our marriage and now she is divorcing me, is that property considered part of community property during divorce proceedings in ca.
As you have seen, the unequivocal answer is NO. Inherited property is always separate property under California law... UNLESS the spouse who inherited the property added the other spouse's name to the title of that property, thereby indicating, under California Law that s/he wishes to gift an interest in the property to his/her spouse.
In addition, although it would not change the character of the property (community vs. separate), if either spouse contributed funds from his/her income during marriage to improve or pay down the inherited property, the community would be entitled to a reimbursement ("to the community") of the community funds used towards that separate property asset. This means that the non-owner spouse would get 50% of any sums (from funds earned during marriage, such as wages... NOT further inherited money or gifts of funds s/he had before marriage in a separate account) contributed towards the separate property during marriage.
I hope this gives you a better understanding of this topic. There are many complexities and exceptions and technicalities in a divorce. You really should consult legal counsel experienced in this area of law for an accurate and reliable analysis of your situation.
Best of luck to you.See question
Thirty days have passed (more like fifty) since my deadline to respond to divorce petition, but I am definitely contesting (there was confusion with attorney). My question to my attorney is: "Am I in default?" and his answer is "We haven't missed ...
If you have not received a notice of request to enter default, a notice of default judgment, AND it's not appearing on the online case summary, it's very likely default has not yet been entered. When you go to file your response, they will either accept the filing (no default filed) or reject it (default filed). If the filing is rejected, at that point you could notify your spouse (or his attorney if he has one), in writing, of your request to set aside the default. If they refuse (they shouldn't), you/your attorney would then file a request to set aside the default. If you are doing so within 6 months of the default having been entered, the judge WILL set aside the default, And if the other side, despite written request, refused to stipulate (agree) to set aside the default, he could be responsible for your legal fees in having to bring a formal motion (use court time) to set aside the default (which is automatically granted if done within 6 months of the default being entered).
If your lawyer is not communicating this to you, you need to schedule a time to see him/her, or put in writing that you are concerned about the lack of communication. Often times, litigation counsel (those who appear in court) are very focused on the cases that require immediate attention ("active" - hearings, trials, and the like). This is not an excuse. It is, however, important to understand that, when the time comes, your case will also receive that same focus - it is how litigators have to balance their time: they are in court often and not always immediately available. There are also instances where they are just overwhelmed or, rarely, not interested in the case at that moment. Again, not an excuse, but definitely a call for you to be more active in your case and get in front of your lawyer to address any concerns.
I hope this helps. Best of luck to you.See question
Are selling costs and realtor commissions factored in? What about capital gains? Buy-in spouse may end up paying capital gain taxes if the house is sold at a later date, but the selling spouse gets that money tax free.
Edna is correct. I have seen spouses resolve the buyout including a reduction to the buyout count the selling costs and realtor commissions (which can be significant), but this often leads to a discussion about "necessary repairs" to make the home sellable (could be termite, could be paint, could be plumbing, etc). If the house is being bought out as is, some couples decide to just do a split based on the equity itself, not factoring in costs of sale (since the home is not being sold - this is typically the default) or the "necessary repairs". The capital gains is also not typically split in any way, since there are too many variables to calculate (what will the future sale cost be, will the owner have remarried, increasing the exempt amount, will they refi, thereby reducing the overall gains...). I would confirm with a financial/real estate professional as I do not have the information in front of me at the moment, but I also believe that the greater deduction for a married couple will also apply if the home is sold with a short period of time from the date of divorce. You might want to confirm this as well (I want to say it's two years, but I may be off on that).
What may be of far GREATER importance and impact could be the prop 60/prop 90 tax base carry over. This is only an issue if you either or both of you are over age 55. The propositions DO NOT allow for a share of this benefit if the parties divorce. And if you do not address in your judgment (most courts do not, and many parties who settle do not), it will be first come, first served - you wouldn't even know your spouse already took the carry over until your request is rejected. Again, this would only apply if either or both of you are over age 55. There are other qualifying factors, so you will want to review the propositions. I've written a blog about it and you are welcome to review it.
I hope this is helpful to you. Best of luck in your resolutions.See question
Note: I asked this question yesterday, but I didn't word it in a way to get the answer I was looking for. I don't like the idea of strangers staying at my house, using my things and engaging in intimate activities with my husband in our home w...
I don't think you're going to get the answer you seek in this forum. My colleagues who have replied are speaking from both a practical and (primarily) a legal perspective. Legally, for any property to which you both hold title, you are both entitled to use the property in any way you wish (so long as it does not violate the LAW). From a practical perspective, the same holds true - it is his property just as it is yours. You may not like who he invites to the property, just as he may not like who you ride-share with in your car, for example.
From a moral perspective, it's really a personal judgment call: you may find it improper, he may feel that it is entirely proper if he feels the relationship with you is over (just a guess... based on years of experience working with couples facing these difficult circumstances). Either way, it will not feel better to you, it will, likely, increase the conflict between you both, which will, very likely, result in a more volatile relationship moving forward, higher legal fees in a divorce, and really bad decisions made by either or both of you that can ultimately cost you the property itself and much more.
Please understand, this is not a judgment of you or him. I have seen truly wonderful and well-meaning people, do really hateful, vengeful, and downright stupid things, because of the emotional tornado in which they find themselves when a relationship ends. For this reason, back in 2007, I started incorporate marriage and family therapists and child specialists into the legal services that I provide for separating and divorcing couples. It has made all the difference for the families with whom I work.
For your own health and well-being, and to avoid creating more regrets moving forward, I would strongly encourage you to consult with a therapist who can help you manage the extreme emotional trauma that you are under, and will continue to experience during this chapter of your life. And it is just one chapter - it may feel never ending, but you do have the ability to bring it to conclusion sooner rather than later.
You may also want to consult a lawyer who is aware of, and able, to assist you through the legal and practical impact of this process, and also work with your therapist to make sure you are making sound, forward-looking decisions. There are a number of excellent workshops that you an attend for no charge or very little charge throughout the state. Divorce Options Workshops provides education about the legal, financial, and emotional aspects of a divorce/separation. And you get to meat the professionals (legal, financial, and mental health) who do this work regularly.
I know this may not be the affirmation you seek. I hope it is, none-the-less helpful to you.
Best of luck for a speedy and meaningful resolution.See question
My husband wants to end our marriage of 40 years and he wants to provide for me with survivor benefits from PERS if he were to die first even if it means remaining legally married. As I understand it Cal Pers does not pay survivor benefits to divo...
My colleague is correct. And, if the pension is not yet in pay out status, you will want to consider what the survivor benefit does to the amount paid out - if there is a big age difference, there could be a significant reduction. And I cannot stress enough making sure you work with a reputable lawyer who specializes in Qualified Domestic Relations Order - if there is an error, if it is not properly done, this is not one of this situations that can be corrected later on.
Good luckSee question
I have less than 5 years of marriage, no children, no assets. We want to do it by mutual agreement My question is how to do a summary divorce, forms, fees, etc. We live in Los Angeles, CA area Thank you
The process is quite simple. If you go to the court house, you can request the summary form. The court also has the necessary forms online: http://www.lacourt.org/selfhelp/divorceorseparation/SH_DS002.aspx
You will both file a joint petition, complete the financial disclosures, and they even have a sample agreement you can use. The court fee is $435.
It is always recommended that you have a lawyer assist you - the completion of the forms, the specific information required, filing the forms property, etc, can be challenging and confusing for many people. It is a wise investment to make sure it is done correctly. Many lawyers charge a between a few hundred dollars and $1,000 for a summary dissolution - it really is the simplest way to divorce... if you qualify.
I hope this is helpful to you. Good luck.See question
My ex was doing really bad she always was at the clubs or with different guys in her house wile the kids were in there she was always drinking and on datting apps dheusedto disappear for 3 days and wont answer her phone,wile i was taking care of t...
Your options are quite limited if she is not responding/cooperating. Whether you need to file for divorce (if you were married) or parentage (if you were not married), getting her served in Mexico will probably be the first big challenge you will face in the legal process. I would strongly recommend that you consult with a lawyer who can assist in this. Once she is served, if she contacts you, that may be the opportunity to attempt to resolve the mutual agreements. If you are successful in this, the rest of the process is fairly simple (from a legal perspective) in terms of disclosing required financial information and filing the correct judgment documents. If you are not able to co-create agreements, the process is a bit more complicated, requiring notices, disclosures, proofs of service of same, hearings, and, ultimately, either a default judgment or a trial, depending on how involved she is in the contested hearing. Ultimately, it will be up to the judge to grant your requests or order something different. The Judge will consider recent history (who has taken care of the children the majority of the time) and the safety and wellbeing of the children. The goal is that children have equal access to both parents, and that they have a suitable living environment and are safe. Note, however, that if Mom every wants to reestablish her relationship with the children, a court can, at any time in the future, order reunification therapy.
I strongly encourage you to seek the assistance and counsel of a lawyer experienced in family law. This is not a situation where you can afford to make a mistake.
Good luck.See question
Too much arguing in front of kids, tried therapy, counseling, etc. Im just tired of it. I have one child who is mine and the other a stepson. Wife seems too unreasonable and I pay the bills and her way for everthing and am underappreciated. We...
The way you start your divorce process will set the tone throughout. recognize that there will be a great deal of fear, distrust, anger, sorrow, and a tornado of emotions happening for both of you, and your children. Before you make any unilateral decisions, consider how it would be experienced by your spouse. If you were the stay at home parent, no income beyond child support for one child, and your working spouse, upon whom you rely, serves you with divorce papers and moves out with one child. You absolutely need to take steps to reduce the conflict and allow everyone to prepare for the transition.
This is the key: prepare. Think about how you envision your transition in a best case scenario. Identify how you can make that happen. Divorce does not HAVE to destroy. When actions are based on emotion (anger, fear, sense of entitlement), made unilaterally, and/or to the detriment of the other spouse, you better budget and prepare for a long, expensive divorce.
I always recommend researching not only the process (legal steps) but also your options and suitability for doing it in an uncontested way - this tends to be healthier for all involved, and far less expensive. Ginita Wall does a Second Saturday Workshop and there are a number of Divorce Options workshops that provide this information in/around your community. Take advantage of these, and invite your wife to attend one as well.
As far as the legal steps:
1. File Petition Documents (the court will hand you the packet, but I recommend you have a lawyer assist you with all legal forms);
2. Complete financial disclosures - this will require that you gather financial documents such as tax returns, pay stubs, bank statements, credit card statements, and much much more;
3. File and serve petition documents and financial disclosures - you may also want to consider preparing a proposed judgment and give it to your spouse to get her feedback - parties who co-created their own agreements tend to spend less time, if any, requesting modifications later on (oh yeah, even when the divorce is finalized, people still go back to fight in court);
4. File your judgment documents (there are quite a few, and if anything is missing, the judgment won't even make it in front of a judge, since the judgment clerk will reject it as incomplete);
If you are not able to co-create agreements:
4. Request your trial date and go to trial.
In between each of these steps, if you are in a contested case, there will, likely, be request for orders (hearings to set temporary orders for things like support, attorney fees, child custody and visitation) and discovery (depositions, subpoenas, interrogatories). This is a huge expense in a contested divorce.
While you research your information to determine how best to proceed, you may want to sit down with your wife, preferably when neither of you is tired, when the kids are not around, some place comfortable, and plan out how best to manage your financial and child responsibilities while you transition through this uncoupling. You can always locate a local therapist who practices in collaborative divorce as a communications coach or a child specialist as a possible safe environment to have that discussion. They can facilitate the discussion, managing the emotions and keeping you both focused. There is a wonderful collaborative practice group in San Diego that can probably provide you with some excellent resources. Those professionals also tend to be trained in mediation.
I hope this help. Good luck.See question
Back in November I hired a mediator for the both of us, he helped me ( petitioner )fill out the petition and submit it to the courts. For the last 6-7 myself, the mediator and my ex Have been going back and forth working out an arrangement f...
Did anyone, other than you, hand your spouse the filed petition documents? Some mediators do this, sometimes they have their staff serve by mail (which requires an addition form signed by your spouse). Either way, if it was done by personal delivery, you just need to have the person who served complete a proof of service, and indicate the date they personally handed the documents to your spouse.
If he was never served, or was served by mail but did not accept service (by signing the additional form), you will have get your spouse served, or s/he can just file the response. Response documents are not filed in every case. Some cases proceed by default, and some of those include agreements between the parties that are binding and enforceable.
The effect of service of the petition documents is that it starts the clock for the earliest date you can be divorced: 6 months and 1 day from the date the respondent was served. This has nothing to do with the response having been filed. If the response is filed and there is no proof of service of petition documents, then that 6 month clock starts when the response is filed.
Once your spouse is served, s/he has 30 days to file a response. If s/he does not, you can request that the court enter default. Make sure your petition documents contain everything you want the court to order (support, parenting time, assets, debts, etc). If it does not, you will have to amend, serve, and wait another 30 days from service so the court has everything it needs to be able to process your divorce. This includes the required financial disclosures.
If your spouse does respond, you can request a hearing to resolve the parenting plan. The court will require you to attend conciliation court (mediation for the topic of child issues only), before you can see the judge. Alternatively, you can seek out another mediator or move into a collaborative divorce process.
I have written quite extensively about these two processes. In a nutshell, mediation is handled differently by different professionals. My suggestion if you chose to give mediation a 2d chance is that you seek a co-mediation: two professionals, a lawyer mediator and a child specialist mediator. The latter is extremely useful, in my experience, in helping parents co-create parenting plans that work for them and the children. Because there are legal implications, it's good to have a lawyer mediator working with the child specialist, as well as your own lawyers providing you with individual legal counsel.
In a collaborative process, each parent has his and her own lawyers who commit in writing to help them resolve without going to court. Each parent also has a coach working with them (either one shared coach or two individual coaches) to manage the communication and emotions. The parents share a financial neutral professional to help with financial education, co-creation of budgets and financial goals, and a better understanding of tax implications of possible options for resolution. The lawyers are ever present for guidance, advice, brainstorming options for resolution, and drafting of agreements and court documents. The lawyers are also very useful when it comes to setting realistic expectations when the discussions become more challenging. If one parent is convinced he/she will get full custody in court, his/her lawyer can walk that parent through what would be required to succeed on that request and what a realistic outcome would be given the facts of his/her case.
You don't have to go thermal in court over a custody battle. I would strongly suggest you speak with lawyers experienced in both mediation and collaborative practice, as well as those who handle contested cases so that you have a better feel and understanding of what is required, financially and in terms of your time and the impact to your children. You can also attend a divorce options workshop where you can meet professional who do this type of work. Best of luck.See question
Due to receive a sum of $$ from business value in divorce settlement, wanting to know if I will have to pay taxes on it or not if its a prop split. If I'm correct it doesn't count as alimony income, I just don't want to be screwed in the end, not ...
The tax implications, if any, really depends on your judgment and how this was identified. If it was identified as a property equalization, meaning one spouse is receiving a greater value of assets and is paying the other spouse an amount to equalize that imbalance, it is typically not a taxable event. However, if the payout is identified "as and for additional support", as a lump sum support and asset buyout, or something that links it to support, that would normally be taxed, unless your judgment specifies that it will not be taxable to you nor deductible to your ex. There are other circumstances that could make it taxable. Again, it depends on your judgment document.
I would strongly recommend that you have a lawyer review your judgment so that you have a clear answer. A CPA should also be able to provide the information. Unfortunately, there may be very limited options, if any, if the deal has already been signed and entered.
This really is both a tax and divorce question, but I recommend re-categorizing it to Divorce because it really does depend on the language in your judgment. You will likely get more input under the divorce category. But still check with your CPA as well.
I hope this is helpful to you.See question