Month: December 2020

People who seek a fast divorce in California are often shocked by how complex the process of division of property can become. What many expect to be a simple process is complicated thanks to California’s community property laws. 

Under these laws, you may not receive the property that you believe you should. Here’s a rough outline of what you are (and aren’t) entitled to in a California divorce.

What is Community Property Law?

California law defines community property as any property you or your spouse acquire during your marriage. Courts consider such property to be owned equally by the spouses regardless of who acquired it and will divide it equally unless you and your ex-spouse agree to divide it differently. 

The list of what is considered community property includes homes, cars, businesses, bank accounts, retirement accounts, and more. 

How Does Property Get Divided Equally?

A judge won’t order you and your ex-spouse to split your home down the middle physically. Instead, the property division’s goal is to ensure that both parties get an equal portion of all the assets’ value combined. So, if one spouse receives a car purchased during the marriage, the other spouse will get assets equal to the vehicle’s value. 

The process becomes more complicated when both parties use a spouse’s assets acquired before the marriage during the marriage itself. 

Similarly, a spouse who makes payments towards property owned by their partner has invested in it and has partial ownership. You can avoid potentially messy and time-consuming situations like these by reaching an agreement with your ex-spouse as part of your divorce proceedings. This is often quite difficult, however, as divorces are rarely a tidy affair.

What About Cash?

Believe it or not, California divorce laws treat cash and similar assets much the same way as property, with a few exceptions.

Cash and liquid assets earned or acquired during the marriage become community property. However, this doesn’t apply to money given as a gift, which typically remains the sole property of the person who received them.

Accounts that you both contributed to will be equally divided, including retirement accounts. Keep in mind that a judge won’t order the funds in a retirement account dispersed and divided. Instead, they’ll typically have it split into two equal accounts. 

Remember that what you acquire before you marry will remain yours. This includes cash and liquid assets, but only if you can prove they were yours before marriage. This could mean keeping receipts and bank statements as records. If you fail to do this or you and your ex-spouse shared accounts, your property may be considered commingling. 

With commingling property, it becomes challenging to determine who the original owner is. When it comes to property division in a divorce, sorting out commingling property can consume a lot of time and resources. 

Understandably, someone may lack the foresight to keep evidence of separate property, which is another reason it’s advisable to reach an agreement with your ex-spouse rather than leave the property division up to the courts.

Am I Entitled to Alimony?

Courts do not automatically grant alimony (also referred to as spousal support) as part of California divorce law. Instead, you must request it. If you do, the court will look to multiple factors, such as income earned, and decide. If a judge grants alimony, it’s to ensure that both parties can continue their lifestyles for some time. 

In most instances, alimony is awarded to a spouse who worked less, didn’t work at all, or was mostly responsible for raising the child. Despite popular misconception, alimony rulings aren’t designed to favor one party over the other.  

It’s important to note that a judge won’t grant alimony just because it is requested. An essential factor a judge will look at is how long you were married before the divorce. The shorter you’ve been married, the less likely you’ll be awarded alimony.

Who Is Entitled to Child Custody?

Unlike division of property, the rules to determine who will get custody of a child have many variables. Ultimately the court’s ruling will be in the best interest of the child. A judge will take each spouse’s financial standing, employment status, criminal history, and relationship with the child into determination. 

If the divorce results in joint custody, it may not evenly split each parent’s time with the child. A sole custody ruling might require the non-custodial parent to pay child support separate from alimony. 

You Can Rely on Azemika & Azemika

If you are going through a divorce and are unsure how your assets will be divided, Azemika & Azemika is here to help. 

For comprehensive legal counsel on your options during your divorce or legal separation, contact Azemika & Azemika, Kern County Divorce Attorneys. We will provide the guidance and representation you need to ensure your rights are protected, and we will fight for you and your family to help you get the resolution you deserve.

In the US, individual states can allow for at-fault divorces or no fault divorce. The former requires the partner filing divorce to provide evidence of fault (such as abuse or infidelity), whereas no-fault divorce has no such requirements. 

California is a no-fault divorce state and has been since passing the Family Law Act of 1969, becoming the first state in the country to enact such a law (with many others following soon after). 

Why Would You Choose a No Fault Divorce?

Proponents of no fault divorce point out that removing the need to prove marital fault makes divorces more accessible and the process much faster. While not everyone may see this as a good thing, no one can argue that it isn’t helpful for those living in particularly bad marriages.

Under an at-fault divorce, you would need to claim irreconcilable differences and present proof to support it. Essentially, this places the blame on one person and the burden of proof on the other. Depending on the circumstance, evidence can be challenging to present, especially in instances of mental abuse. 

Merely wanting the marriage to end is enough to meet the no-fault divorce requirements, even if your partner doesn’t want to separate. If it’s what you want, you can begin the process whenever you like. 

What if You Want an At-Fault Divorce?

No matter how unfairly your partner has treated you, California divorce laws don’t allow for at-fault divorces. However, that doesn’t affect the likelihood of you getting your divorce. It also doesn’t mean that marital fault can’t play a role in the divorce proceedings.

Even in a no-fault divorce, marital fault can provide one party with certain entitlements, but only if they can prove their claims. For example, if your spouse abused you and you have a record supporting this, you are more likely to be given custody of your child or children. Likewise, if you have evidence that your partner misused any of your assets, you may be able to recoup them as part of the division of property.

Even though California doesn’t permit at-fault divorces, you should keep records of anything that you think may constitute marital fault (including those you may have committed) and go over them with your lawyer. It’s best to know what may come up as part of the process beforehand so that you can adequately prepare and set reasonable expectations.

The Impact of Fault

There are limited situations where judges will consider fault as part of no-fault divorce. When it comes to custody, courts will always do what they feel is best for the child’s wellbeing. Issues like desertion and abuse are likely to influence who will get custody and the agreement’s terms. 

Assets are somewhat more complicated. California treats property acquired during the marriage as being equally owned by both partners and orders as close to an equal division of property as possible in a divorce. One spouse can contest the division, but doing so slows down the process and doesn’t necessarily guarantee a change. 

If you didn’t establish a prenuptial agreement before pursuing a divorce, you’ve likely been commingling assets. Commingling means assets owned by two or more parties that have been mixed, making it difficult to establish who owns what. A basic example would be car payments. 

Say you owned a car before you were married and had been making payments. However, your spouse begins helping you make payments and, in exchange, is granted use of the car. They have invested in the car, and as a result, it becomes a commingled asset. 

Unless you kept records showing your investments and assets separate from your spouse’s, it could be tremendously difficult and tedious to sort these issues out, and ultimately it may boil down to a judge’s decision.

What Are the Requirements to Get Divorced in California?

While you don’t need a specific reason to get a no-fault divorce, the person filing for divorce must have been a California resident for at least six months beforehand. From there, the timetable can vary depending on the separation of assets and any complications related to the process. 

Get Help From a Family Law Attorney

Don’t tackle your divorce alone. The advice of a seasoned attorney can make all the difference, even in the case of no-fault divorces. If you’re looking for assistance in filing, let the Azemika & Azemika Law Firm help you through every step of the process. 

Our experienced attorneys work in several different aspects of Kern County family law, including alimony, child custody, and divorce. 

Our expertise can help you plan the best path forward so you can get started on your new life sooner rather than later. Reach out to us today and see how we work to help you. 

“I want a divorce.” These are the last words any husband wants to hear.

It’s inevitable. You’re getting a divorce lawyer, and you have to start considering how things will change (from your belongings to your life). You have to split the “estate,” from your shared belongings to money and other assets. 

But what about the kids? Who gets the kids and when? 

Unfortunately, according to the American Psychological Association, divorce happens to 40 to 50% of married couples in the United States. The divorce rate for future marriages is even higher. 

But only a small percentage of divorces go to court, usually due to a custody battle. 

For fathers, custody battles can be an incredibly challenging aspect of divorce, especially when considering what is best for the children. How do you know what your rights are as a father fighting for custody or visitation of your children? 

Navigating custody battles can be intimidating and a trying time for fathers, so knowing your rights and the facts will help you set any expectations for the process. 

Courts and the Law

Men aren’t legally at a disadvantage. According to California law, judges can’t make a decision regarding child custody and visitation based on gender. 

As long as both parents are fit, California courts will offer both parents an equitable chance at custody. 

Entitlement For Child Custody And Visitation

Plain and simple, entitlement doesn’t exist in the courts because judges can’t decide based on gender. 

This decision isn’t about what you want or think you deserve. The judge’s decision will be based on the best interest of the child. In most cases, the courts believe that the best situation is for the child to have both parents in the picture — known as frequent and continuing contact. 

Parenting Roles

What did your world look like before the divorce? What was your daily routine? What was your child’s? 

Considering what life was like before the divorce, the judge will decide with one goal in mind: not to disrupt the child’s life. Keeping everything as normal as possible and moving forward in the child’s best interest is the primary goal. 

The court will consider how time was used before the divorce (by both parents) and how responsibilities were divided. If you worked 60 hours a week before the divorce, do you plan to after the divorce is finalized? Will this leave a reasonable amount of time for parenting and quality time? 

Two Types of Custody

There are two lines of custody when it comes down to how the courts decide what is in the child’s best interest.

1. Legal Custody

Legal custody involves making decisions about the child regarding several things, including schooling, organizations, travel, health specialists, and extracurricular activities. 

2. Physical Custody

Physical custody refers to where the child is and when. This form of custody takes into account the child’s primary residence, visitation times, primary custody agreements, and more. 

Generally, physical custody results in the child spending more time with one parent than the other, even if a joint custody agreement is reached. It’s near impossible for time to be split exactly 50/50 in every situation. 

Four Types of Visitation 

Shared time is essential to any parent facing a divorce situation. Time with both parents is important to a balanced upbringing. California courts select one of four visitation types based on what is best for the child and other factors. 

1. Scheduled Visitation

Visitation on a schedule prevents any miscommunication or confusion regarding who sees the child and when. Specific dates and times will be agreed upon by the parents and the court. 

2. Reasonable Visitation

This open-ended form of visitation allows for the parents to agree on their own. This type of visitation requires solid co-parenting skills from each parent.  

3. Supervised Visitation

Supervised visitation requires that the visitation with one parent be monitored by the other parent or an agency professional. This type of visitation is typically used for the child’s safety and well-being when one parent is not deemed fit to be alone with the child. 

4. No Visitation

Suppose time with one parent would be physically or emotionally harmful to the child. In that case, the child’s best interest is for the parent not to contact them. 

Consult with an Attorney For Advice

When facing a custody battle, you need the best representation possible — a lawyer that knows the judge and court as well as one who can help you fight for your rights as a parent who wants what is best for their child. 

Azemika & Azemika Law in Bakersfield has helped families navigate divorce and child custody and visitation cases for more than 30 years, providing strong trust behind their legal guidance. 

For a family-oriented firm at an affordable cost, contact Azemika & Azemika Law today.

Divorces are complicated — there is a lot of paperwork, major life changes, and emotions that all combine to make things challenging for everyone involved.

It’s important to understand what your obligations are in California divorce proceedings. The declarations of disclosure are part of your duties.

The declarations serve to provide evidence that both parties have the same information with regards to the facts and liabilities surrounding liabilities and assets. These documents protect and preserve your community liabilities and assets starting on the date of your official separation.

Additionally, these documents also make sure that sufficient and fair spousal and child support are awarded, assets are divided fairly, and conflicts are resolved through disclosure and discovery.

We’re going to walk you through your duties in the disclosure of California divorce proceedings and what is required of you along the way through to your divorce being finalized.

What Are Your Disclosure Duties in California Divorce Proceedings?

From the date of your separation through to the finalizing of your divorce, you and your spouse have a financial duty to each other. You are both supposed to remain honest and act in the best interests of the other party.

This part can get complex, but said plainly, your specific duties include:

• Providing each other with complete and accurate disclosure of your liabilities and assets. This includes all earnings, expenses, and accumulations.
• You both must disclose any income-producing opportunity that arises after you are separated but that resulted from any investment made from the date of your marriage until your separation date.
• You must provide each other with an accurate and complete disclosure of any management or operation of a business that you have an interest in.

What is a Preliminary Declaration of Disclosure?

A preliminary declaration of disclosure must be served on the other party within 60 days of filing for divorce. It has to state that a person of “reasonable and ordinary intelligence” would be able to ascertain:

• The identity of the assets that you interest in and the liabilities that you may or may not be liable for.
• Your percentage ownership in each asset and percentage obligation for liability when you are the not sole owner of the property.

You provide that information through a document called a Schedule of Assets and Debts.

Additionally, you will also need to complete an Income and Expense Declaration and provide copies of your tax returns from the two years before the date of your preliminary declaration of disclosure.

Furthermore, you will certify that everything you have said is true to the best of your knowledge — under penalty of perjury — with a Declaration of Disclosure form.

What is a Final Declaration of Disclosure?

Your final declaration must include the following:

• All of the information and facts with regards to the characterization of your liabilities and assets.
• Any and all information and facts with regards to your assets and their valuation — in particular, assets that are community property or are contended to be community property.
• All information and facts pertaining to the amounts of your obligations — in particular, obligations that are contended or considered to be community property.
• All information and facts pertaining to your accumulations, earnings, and expenses that were provided in your Income and Expense Declaration.

You will provide this information using a Schedule of Assets and Debts. You will also need to provide any supporting documentation for any contentions in the Schedule of Assets and Debts. Additionally, you will also need to complete a supporting declaration that contains the required information.

Furthermore, you must provide a current and complete Income and Expense Declaration and again, you will testify under penalty of perjury that the information you provided was accurate by using the Declaration of Disclosure form.

When is the Final Declaration Due?

This final declaration and your Income and Expense Declaration are required to be served to the other party before or at the time you are ready to enter into an agreement regarding support or property issues. If your case goes to trial, then you have to provide your documents no later than 45 days before your trial date.

Are There Exceptions to Completing the Final Declaration?

There are three exceptions to disclosure requirements.

• If the other party accepts your default, or you accept theirs, then final declarations may be waived.
• Declarations may be waived if you both mutually agree to waive them — this must be done using a waiver, and again, this document is signed under penalty of perjury.
• Finally, if either party has sought a summary dissolution, the final declaration can be waived.

Let Us Help You Comply with Your Disclosure Requirements

You don’t want to be the party that fails to comply with your obligations regarding disclosure requirements. The other party can impose financial sanctions against you. The amount imposed will be sufficient to discourage this conduct — including reasonable attorney fees and costs.

For comprehensive legal counsel on your options during your divorce or legal separation, contact Azemika & Azemika, Kern County Divorce Attorneys. We will provide the guidance and representation you need to ensure your rights are protected.