5 - 2024 - Azemika & Azemika

Navigating Property Division: Divorce and Your Mortgage in California

May 31, 2024 by wpadmin

woman consulting with a lawyer about divorce and mortgage in california

Deciding to divorce can be one of the most challenging decisions a couple can make. Divorce is complex and involves the couple deciding what will happen to assets if there will be spousal support, child support, and custody, to name a few. One of the most common concerns is what will happen to their shared home and mortgage when they divorce in California.

Understanding how a mortgage is handled in a California divorce can help couples navigate this challenging time more smoothly. Here’s what happens to a mortgage when couples in California decide to part ways.

California: A Community Property State

California is a community property state. That means that during a divorce, couples must split all assets the couple acquired during the marriage equally. The only exception is if the couple signed a prenuptial agreement before the marriage. In that case, the prenup overrides community property laws.

On the other hand, you have separate property. Assets and debts are considered separate property when one spouse enters the marriage with them. Some types of separate property include property, financial gifts, or an inheritance received by one spouse, even if they received it during the marriage. Each spouse retains the total amount of their separate property in a divorce.

Is a Mortgage Community Property?

This is where things get a bit tricky. It is considered community property if you purchased your house after marriage or with funds you earned during the marriage.

The mortgage would be considered separate property if you purchased the house with your own money before marriage. However, a couple of circumstances could make the home considered community property.

Mortgage payments made jointly after the marriage would be considered a community interest in the property and evenly split in a divorce.
If you change the title to include your spouse, it will be considered marital property.

What Happens to a Mortgage in a California Divorce?

Regardless of what is stated in your divorce decree, if you and your spouse share a mortgage, you’re both still responsible for paying for it. While this may seem unfair, the mortgage lender is a separate entity, so the terms of your divorce don’t apply.

If you’re the spouse leaving the home, it can be concerning to continue making mortgage payments for a house you no longer live in. Fortunately, you have options.

Buyout

In a buyout, the spouse who remains in the home buys out the other spouse’s share of the equity in the house. To do this, the buying spouse must refinance the home in their name and pay the selling spouse their share of the equity. Since the buying spouse must independently qualify for a new mortgage, it can be challenging if their income alone is insufficient.

Sell the Home

One of the easiest solutions is to sell the home and divide the proceeds. This allows the mortgage to be paid off, and the remaining equity can be split between spouses. However, selling a home takes time and may not be in both parties’ best interest, especially if children are involved.

Co-Ownership

Some couples choose to continue to co-own the home after the divorce, especially if they want to maintain stability for their children. This arrangement requires a clear agreement on how expenses and mortgage payments will be handled and often involves setting a future date or event (such as children finishing school) when the home will be sold.

Defer Sale (Birdnesting)

Sometimes, couples may choose to defer the home sale until a later date. This can involve one spouse living in the house while the other maintains a different residence or both spouses rotating in and out of the home to minimize disruption for their children. This arrangement required detailed planning and cooperation.

Turn to the Award-Winning Team at Azemika & Azemika During Your Divorce

Divorce is a challenging life event, and dealing with a mortgage can add to the complexity. Because California is a community property state, it’s essential to understand your options and the legal framework clearly. By carefully reviewing the information in this article, you can navigate this aspect of your divorce with confidence and greater financial security.

Azemika & Azemika has been handling family law cases for over three decades. We understand the emotional toll divorce can have on you, so our dedicated team is here to help you every step of the way. We have handled some of the most challenging and high-asset family law cases in Kern County. We are here to provide that same aggressive, knowledgeable, and affordable representation to you in your case.

Our firm has been selected as Best of Bakersfield for Divorce and Family Law attorneys for two years running. Contact us today to work with our award-winning team.

Joint Custody vs Shared Custody in California: What You Need to Know

May 24, 2024 by wpadmin

photo of a child. Joint Custody vs Shared Custody in California

Divorce is challenging for any couple, but when you add children to the situation, things can get even more complicated. Sometimes, parents may need clarification on joint and shared custody terms. Understanding the difference between joint and shared custody in California is essential to coming to a fair agreement.

Many people assume these are two different names but mean the same thing, and in several states, that is true. However, these terms in California refer to two different ways to address child custody. This article will explain joint custody vs. shared custody in California and discuss the differences.

Physical vs. Legal Custody

Before we explore joint and shared custody, we must understand that two matters are involved when discussing child custody: physical and legal.

Physical custody addresses who and where the child lives with.
Legal custody addresses the parent’s right to make significant decisions for the child.

What is Joint Custody?

Joint Legal Custody

Joint legal custody is an arrangement that requires both parents to agree on important decisions for their child. When parents have joint custody, they are responsible for making significant decisions about their child’s welfare, including education, medical care, and religious upbringing. Parents must collaborate and communicate effectively to agree on major decisions affecting their children.

Joint Physical Custody

Joint physical custody aims to ensure the child spends a significant amount of time with both parents to ensure they maintain a close and continuous relationship with both parents. However, this doesn’t mean that equal time is spent with each parent. Instead, the child’s time is divided in a way that supports their best interests, which may not always result in an equal split.

What is Shared Custody?

Shared custody is often used interchangeably with joint custody, particularly joint physical custody, but it emphasizes equal time and responsibilities between parents. This arrangement requires careful planning to maintain the child’s routine and stability.

It also requires a high level of cooperation and flexibility from both parents. The court typically aims for a schedule that minimizes disruption to the child’s schooling, social life, and overall well-being.

Key Differences Between Joint and Shared Custody in California

While joint and shared custody can overlap, especially concerning physical custody, their differences lie in the specifics of time division and decision-making responsibilities. Let’s examine some of the differences.

Decision-Making (Legal Custody)

Joint Legal Custody — Both parents share the decision-making responsibilities. This doesn’t impact the child’s living arrangement but requires joint participation when making significant life decisions.
Shared Custody — Although shared custody implies joint physical custody, it can also encompass shared legal custody, in which both parents have an equal say in decisions.

Living Arrangements (Physical Custody)

Joint Physical Custody — The child lives with both parents, but not necessarily equally. Depending on the child’s best interest, one parent may have the child during the week and the other during weekends or holidays.
Shared Physical Custody—The child spends approximately equal time with each parent. This requires detailed scheduling and cooperation to balance the child’s needs with the parents’ capacities.

Flexibility and Practicality

Joint custody offers more flexibility. It allows arrangements that fit the child’s and parents’ specific circumstances. It’s less rigid about equal time division but emphasizes the involvement of both parents in the child’s life.
Shared custody strives for a balanced time split, which can be challenging for parents who have demanding jobs or live far apart. It requires a commitment to maintaining a structured schedule that benefits the child.

Factors the Court Considers When Determining Custody Arrangements

The court’s primary concern is the child’s best interests. Here are some factors the court considers when determining custody arrangements in California.

Child’s Health, Safety, and Welfare — The court evaluates which arrangement best supports the child’s well-being.
Parental Cooperation — Parents who demonstrate effective communication and cooperation are more likely to receive joint or shared custody.
Child’s Preference — Depending on the child’s age and maturity, the court may consider the child’s preference.
Parental Involvement — The court assesses each parent’s involvement in the child’s life, including their ability to provide a stable environment.
History of Abuse or Neglect — Any history of abuse or neglect by a parent can significantly impact custody decisions.

Turn to Azemika & Azemika for Your Child Custody Case

Navigating custody arrangements in California requires a clear understanding of joint and shared custody differences. While both aim to keep both parents involved in the child’s life, they differ in terms of decision-making responsibilities and physical time division. By prioritizing the child’s best interests and fostering cooperative parenting, parents can create a nurturing and supportive environment, regardless of the custody arrangements.

When children are involved in a divorce, they become the priority. At Azemika & Azemika, we understand how important it is to protect the best interests of your children while protecting your rights as a parent during a divorce.

Our team of attorneys will help you understand the laws and procedures for navigating child custody issues in California. We actively engage in settlement in negotiations or litigating your child custody case.

What Happens if You Don’t Pay Child Support in California?

May 6, 2024 by wpadmin

In California, both parents are legally obligated to support their children financially. The amount of support each parent contributes is determined by a child support order issued by the court. Failing to make these required payments can result in serious consequences.

Along with the legal ramifications, failing to pay child support can affect the children involved, the custodial parent, and even the delinquent parent. This article will explore the consequences of failing to pay child support in California.

Child Support in California

When parents are divorced or unmarried in California, the parent with primary custody of the children typically receives child support payments from the other parent. Child support payments are intended to cover expenses for the child, such as:

Food, clothing, housing, and other basic needs
Education
Medical
Other reasonable expenses

The court will issue a child support order that includes a schedule of payments. Child support payments should be paid for the specified amount on the dates listed in the order. Failure to do so could result in negative consequences.

Warrants for Failing to Pay Child Support

If a parent fails to make one or more child support payments, the court could issue a warrant for their arrest. The warrant can be civil or criminal.

Civil warrants are issued when a parent fails to comply with a child support order. Failure to pay child support is considered contempt of court. Civil warrants can result in the parent being fined or sentenced to less than a year in jail, sometimes both.
Criminal warrants are issued when child support payments haven’t been made for an extended period and the parent is significantly behind in support payments. A criminal warrant can be issued regardless of where the parent resides in the U.S. Criminal warrants can result in fines, a year or more in jail, and sometimes both.

Other Consequences for Failing to Pay Child Support in California

Along with a warrant being issued, there are other legal consequences for failing to make timely child support payments in California. Here are some other consequences non-compliant parents may face.

Wage Garnishments — The Family Support Act of 1988 allows for the garnishment of wages of the non-compliant parent.
Health Insurance — If the noncustodial parent is responsible for paying health insurance for their children, the amount they owe for insurance may be deducted from their wages.
Property Lien — Liens can be placed on the noncustodial parent’s home, property, bank accounts, or retirement accounts.
Denied Tax Refund — If back child support is owed, the amount the non-compliant parent would have received as a tax refund will be used to catch up on their child support payments.
Driver’s License Suspension — A parent behind on child support payments faces a driver’s license suspension. To have their license reinstated, they must set up a payment plan.
Boating and Hunting License Suspension — If these licenses are lost, they will be reinstated without a suitable payment plan.
Professional License Suspension — When this occurs, it can make it even more difficult for the parent to make child support payments consistently.
Passport Revocation—A parent who owes child support may try to flee the country to avoid paying. The government can legally revoke their passport. This can also negatively affect their immigration status.
Credit Score Implications — When you fail to pay child support, the child support agency can report this to the credit bureaus. This can negatively affect your credit score, making it difficult to obtain credit.

Child Support Order Modifications

Circumstances change, but failing to make court-ordered support payments isn’t the best approach if you struggle to make child support payments. Instead, you can petition the court for a modification. However, it’s essential to understand that the court doesn’t have to rule in your favor.

Typically, the court will only order a modification once qualifying circumstances exist. Some of these circumstances include:

Job loss
Disability
A significant decrease (or increase) in income
A new child, you have to support
Changes in physical custody

The only way to avoid presenting a material change in circumstances is if you and the custodial parent agree to modify the child support order. The other way to avoid having to show a change in circumstances is if the amount of your support order is below the state guidelines amount.

Not Receiving the Child Support Payments Owed to You? Azemika & Azemika Can Help

Failing to pay child support not only has legal penalties but also affects your children. Parents must prioritize their children’s welfare and honor their financial responsibilities. By fulfilling child support obligations, you can ensure that you uphold the law and contribute to their family’s stability, resilience, and success.

At Azemika & Azemika, our experienced partners understand the complexities of California’s child support laws and are dedicated to advocating for the rights of custodial parents. We will work tirelessly to ensure you receive the financial support you and your children are entitled to.

If you are still waiting to receive the child support payments owed to you, we can help. Contact us today for a consultation.