What is a collaborative divorce?

The traditional divorce process can be incredibly stressful. Lengthy litigation, court costs, examination, and hostile feelings between spouses can affect all involved mentally, emotionally, and physically. 

No matter how much you prepare for the process, its nature can quickly become very tiring. However, there are options available to avoid taking your separation to court. One such option is called collaborative divorce.

When spouses choose to pursue a collaborative divorce, they work out a settlement with family law attorneys while avoiding litigation. By making this agreement, they can work out every aspect of the divorce, such as division of property, alimony, and child support on their terms rather than have to make a case in court and have the result ultimately determined by a judge. 

This allows for greater flexibility and, more importantly, avoids the additional negativity a divorce trial can bring. If you’re considering a collaborative divorce, here are some essential facts you need to know.  

The Role of Attorneys

When both spouses agree to a collaborative divorce, they also agree not to pursue litigation against each other. That being the case, what role do attorneys play in the process?

Family law attorneys will help you in multiple ways. Though they aren’t making a legal argument on your behalf during a collaborative divorce, they can use their skills to work as your advocate while you and your spouse work on their settlement. 

Both parties hire separate lawyers who help negotiate and iron out the agreement’s fine details so that there are no ambiguities. Unlike with mediators, spouses cannot share an attorney during this process.

However, you may find you’ll need additional help at various points. For example, when discussing how to separate property, it may be necessary to determine something’s monetary value. For this, you’d need an expert to give an accurate estimate. Family law attorneys have these connections in place and can bring additional resources into the discussions as necessary, saving you the trouble of having to seek them out on your own.

You Have Ultimate Flexibility

When a divorce goes to trial, the final terms have to follow state law. For example, when it comes to the division of property in divorce, California state law equally divides jointly-owned property between spouses. 

The property you owned before the marriage remains yours, but anything that becomes shared may have its ownership questioned. Such items become commingling property, and if you can’t prove original ownership, it becomes a judge’s decision.

Collaborative divorce lets spouses customize the terms however they agree to, giving you greater flexibility regarding complicated issues like commingling property. It also removes uncertainty from the equation. The judge’s decision may go against what you hoped for or strike you as unfair. That’s not an issue with collaborative divorce.

While you may negotiate outside customary divorce laws, the goal should be to make both spouses satisfied with the final plan. It isn’t an opportunity to take everything you want. Doing so will stall (and potentially tank) the negotiations altogether. Be reasonable and expect some give and take.

You Don’t Have To Involve The Child

Divorcing parents have the additional complication of their child’s welfare to focus on. When a divorce goes to court, child custody disputes can be the most painful to litigate. 

Doing so involves scrutinizing the parents, which may include questioning the child to learn more about how they feel and how their parents act. It can humiliate the parents and be scary for the child, and the ultimate custody decision could cause pain for anyone involved.

Thankfully, collaborative divorce allows you to establish all the terms of your separation, including child custody. With the help of their attorneys, spouses can shape a plan without involving their children at all. Of course, they can choose to involve them if they want, but it takes some of the stress of a divorce that children experience in either scenario. 

Judges make child custody decisions based on what they believe to be in the child’s best interest. This can include any number of factors, including the employment and earnings of each parent, criminal history, and where they live. 

When you and your spouse discuss child custody, the focus should still be on what’s best for your child. However, you can use whatever reasoning you like to make your conclusion and without having your life examined by a judge. 

What If We Can’t Agree?

At the start of a collaborative divorce, you and your spouse sign a contract stating you won’t pursue litigation to resolve the divorce and instead work things out amongst yourself. 

However, it may turn out that you hit roadblocks along the way, issues that no one is willing to concede. It can happen anywhere in the process, and if it does, that initial contract becomes void as you both take the matter to court.

When this happens, your current attorneys will have to remove themselves from the case, though they may help you find other representation for your divorce trial. Keep in mind that everything they worked on up to that point will be kept confidential. 

Depending on how far along in the collaborative divorce process you were before changing to traditional divorce proceedings, you may have signed agreements relating to specific issues already, like how to divide the property. If you have, those agreements may still be binding and won’t be decided by a judge, helping to speed up the process. 

Ultimately, if you and your spouse try and fail to finalize a collaborative divorce, the work you’ve done will still affect the final determinations.

A Better Way To Resolve Your Disputes

A divorce may be final, but what you experience during the process will remain with you for some time. One of the greatest boons of collaborative divorce is that it helps everyone stay civil as they prepare to separate. 

The hard feelings that litigation can bring up have a better chance of never coming to fruition and influencing your words or actions. Besides keeping things peaceful, it may very well help the healing once your divorce is over.

Talk to Our Attorneys Today

If you need help understanding the complexities of California divorce laws or would like an experienced attorney to help you with your collaborative divorce, call on our professionals at Azemika & Azemika

We are experts in Kern County family law who bring compassion and honesty to everything that we do. We’ll treat you and your family with respect and confidentiality as we help you achieve the best outcome possible. Contact us today to learn more about our expertise and what we can do to help you.

What Am I Entitled to in a California Divorce?

California divorce representation

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.

What Is a “No-Fault” Divorce in California?

wedding rings for No Fault Divorce

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. 

Child Custody and Visitation Facts for California Dads

Child Custody and Visitation Facts for California Dads

“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.

What are Declarations of Disclosure in Divorce Proceedings?

signing the form for California Divorce Proceedings

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.

Am I Responsible for Debts My Ex Incurred After Our Divorce?

woman doing accounting when moving out after divorce and paying spouse’s debt

One of the most common concerns for those faced with divorce is how their financial situation will be handled and affected by the separation. Among those queries is the issue of whether or not one is responsible for debts incurred by one’s spouse during the divorce.

And, most often, the answer is: It depends.

As a general rule of thumb, the state of California does not hold a person incumbent for any debts that their spouse has incurred after the separation. However, there are exceptions to this rule, which are dependent upon two factors: What the debt was for and when the debt was incurred.

In most divorce cases, a spouse’s debt can be determined to fall under one of the following three categories: Common necessaries of life, necessaries of life, and non-necessaries.

Common necessaries of life are described as essentialities, items, or services that are necessary for all people and families to sustain a fundamental standard of life. This includes items such as food, clothing, shelter, and basic healthcare.

Meanwhile, necessaries of life, though similar to common necessaries of life, are inclusive of necessities that are unique to a specific individual’s standard of living and age as well as other factors such as family, career-related, or locational circumstances. This includes items such as equipment or computers, which may not be required for all people to live, but are necessary for someone to sufficiently carry out their business 

Finally, non-necessaries are items or demands that do not fall under the first two categories and, for all intents and purposes, may be considered relative luxuries that are not required to sustain one’s life, business, or socioeconomic status.

As for when the debt was incurred, there are two crucial moments you must be mindful of during your divorce proceedings. The first is the time between the date of your separation and the date you enter your judgment of dissolution. The second is the time after you enter your judgment of dissolution.

Depending on multiple factors, you may be responsible for debt incurred by your spouse during the period between the date of your separation and the date you enter your judgment of dissolution if the debt was incurred to cover common necessaries or necessaries of life for your children. California Family Code section 2623(a) states:

Debts incurred by either spouse for the common necessaries of life of either spouse or the necessaries of life of the children of the marriage for whom support may be ordered, in the absence of a court order or written agreement for support or for the payment of these debts, shall be confirmed to either spouse according to the parties’ respective needs and abilities to pay at the time the debt was incurred.

To better understand this, let’s assume that, prior to the separation, you and your spouse enjoyed taking Pilates classes together just for leisure. After you begin your divorce filings, your spouse decides to go into debt to continue with their Pilates classes without consulting you or the court. In this case, even if your spouse insists that you pay for the classes, you are not responsible for any part of this debt, given that your spouse voluntarily chose to attend the classes despite it not being a common necessary of life or a necessary of life for them or your children.

On the other hand, let’s assume that, after the separation, your spouse lost their job and, with no savings or investments, they had to resort to loaned money to pay for food, clothing, rent, and essential utilities. If you are still employed and have a decent income, you are most likely responsible for the debt they have incurred in order to survive.

As for non-necessaries, the line seems to be fairly clear and self-explanatory. You are not responsible for the loan your spouse has taken out to purchase a new BMW or a cruise to the Bahamas.

Now, once the court has entered a judgment of dissolution, you are no longer responsible for any debts your spouse has incurred regardless of what it was for. The debt becomes the sole responsibility of the individual. California Family Code section 2624 states:

Debts incurred by either spouse after entry of a judgment of dissolution of marriage but before termination of the parties’ marital status or after entry of a judgment of legal separation of the parties shall be confirmed without offset to the spouse who incurred the debt.

Simply put, this means you are free at last from your spouse’s financial burdens.

Going through a divorce can be an extremely straining experience mentally, emotionally, and financially for all parties involved. After all, it is a process of terminating a social contract during which many confusing moments will inevitably arise. While you may always be able to find clear answers, being cognizant of your legal realities can help alleviate the pain and make the process a little less daunting and more manageable.

Furthermore, it’s important to always remember that you don’t have to go through this process alone: The Law Office of Azemika & Azemika is prepared and eager to aggressively advocate for your interests and bring you the peace of mind you and your family deserve. With a combined total of 56 years of experience handling and winning family law cases in Kern County, our attorneys will guide you through the tedious details surrounding division of property, commingling, and other contentious areas of California divorce law.

Contact us today and let us fight for you.

How Does Divorce Affect Health Insurance?

legal document about health insurance after divorce and income tax dependency waivers

During a divorce or legal separation, there are many considerations to keep in mind, like child custody, property division, and alimony/spousal support – but what about your health insurance?

Many couples forget to take into account the ramifications of divorce on their health insurance. Learning how your health insurance is affected by California divorce laws will help you be better prepared, both while going through the process of divorce or legal separation and for steps you may need to take after your divorce or legal separation is finalized.

Can One Spouse Terminate The Other’s Health Insurance During Divorce Or Separation Proceedings?

In many marriages, one spouse is covered by a health insurance policy that the other spouse receives through his or her job. This coverage extends to both the spouse and children, and during a divorce, the spouse who relies on that health insurance risks gaps in their coverage.

However, when a California divorce case is filed, immediate Automatic Temporary Restraining Orders (ATROs) are issued. ATROs are provided for under Family Code section 2040(a)(3) and they affect both parties’ health insurance policies in their ability to cancel coverage and change the beneficiaries of that insurance policy. That means one spouse may not remove the other from the policy or alter coverage, especially if the policy is employment-related coverage. These restraining orders protect the spouse and any dependents from gaps in coverage until final judgment in the case is granted.

If I’m On My Spouse’s Health Insurance, What Happens To My Coverage After The Divorce Or Separation Is Final?

The ex-spouse is no longer considered a “family member” under California family law, which means you will lose dependent status under your spouse or partner’s health insurance and will no longer be eligible for coverage under that plan. This means you may suffer a gap in coverage. It’s possible, under Family Code §2051, to continue your existing health insurance after divorce if negotiated and agreed upon during divorce proceedings. Azemika & Azemika Law can help you navigate this process. 

Children, however, remain legal “family members” and are therefore unaffected by changes in health insurance coverage unless the spouse with the insurance policy loses all parental rights.

What Protections Or Options Are Available Once I’m No Longer A Dependent On My Spouse’s Health Insurance?

In some cases, the insured spouse may be ordered to make a payment to the uninsured spouse specifically for health insurance coverage. This is more common if the uninsured ex-spouse is the custodial parent of a minor(s).

For a limited period of time (usually 18 months), the uninsured spouse may retain health insurance coverage through COBRA, the Consolidated Omnibus Budget Reconciliation Act. COBRA requires health insurance plans to offer continuation coverage under specific circumstances that would otherwise result in termination or reduction of plan benefits. This can give you enough time to secure your own health insurance plan without suffering a coverage gap. Your spouse’s employer is not required to subsidize your insurance, but they can charge you 102 percent of the cost. This is obviously quite expensive, so it’s a good idea to shop around marketplaces like Covered California for equivalent individual coverage through another plan.

If you do choose COBRA coverage, you can stay on that plan for up to three years if your former spouse or partner continues to work at the company and certain other conditions are met.

Some state and federal laws offer additional protection of health insurance benefits. Azemika & Azemika Law can help you find the best option to protect yourself and your loved ones.

What Are My Responsibilities If I Have To Remove My Spouse From My Health Insurance Policy?

If your insurance policy will no longer provide your ex-spouse’s health insurance after divorce or separation, you are responsible for notifying the plan administrator within 60 days after the date of entry of judgment of your divorce or legal separation.

How Does Legal Separation In California Affect Health Insurance?

Some couples choose legal separation instead of dissolution of marriage in order to avoid one spouse losing health insurance coverage. However, most health insurance plans treat legal separation in California the same as dissolution of marriage, meaning that one partner is no longer considered the dependent of the other for the purposes of health insurance coverage.

If your partner has a government health insurance plan, you may be able to remain a dependent, but this must be confirmed with the plan. If you do find yourself facing a coverage gap, COBRA, as discussed above, is an option for continuing health insurance coverage after separation is finalized.

Azemika & Azemika Law Is Here To Help You

Azemika & Azemika Law specializes solely in California family law services. Over the past 22 years, our partners have successfully handled the most difficult and high asset family law cases in Kern County. Our Bakersfield divorce lawyers can help you navigate California divorce laws to protect your financial stability and your loved ones. Don’t let stress and uncertainty over your future health insurance coverage add to the already difficult emotional toll of this phase. Let Azemika & Azemika help you find customized solutions to every aspect of your divorce case, including how health insurance coverage is handled, and set you on a path to a better future. Contact us today online or by calling (661) 322-8166

Divorce and Division of Property

kern county family law for Division of Property in California and claim of domestic violence

When a couple decides to divorce or legally separate, there are many critical issues they must address. One such issue is the division of property and marital assets.

Determining who gets what is often one of the most stressful parts of a divorce. Because the division of marital property can be such a tense issue, understanding California divorce laws can help you be prepared and ensure your rights are protected.

Distinguishing Marital Property and Separate Property

To determine the division of property in a divorce, there are two types of property that must be established; marital property and separate property.

California is known as a “community property” state, meaning that all property, assets, and debts acquired during the marriage are considered marital property, and are subject to an equal division between spouses or domestic partners if they divorce or legally separate.

Separate property refers to any property one spouse owned before the marriage or acquired by gift or inheritance during the marriage. It belongs to the individual spouse and is not typically divided in a divorce.

Separate property also usually includes items purchased with or exchanged for separate property, earnings on separate property, and any increase in the value of separate property, as long as the owner can verify the claim with financial records.

California law also states that property spouses acquire before a divorce is finalized, but any property acquired after the date of separation is considered separate property.

To clarify, the date of separation is not necessarily the date one spouse moves out of the marital home. Rather, it is the date that one spouse decides to end the marriage and it requires some act of physical separation combined with other actions clearly showing that the spouse has decided to end the marriage.

The date of separation can be a big issue in cases where one spouse earns or spends a significant amount of money right before the divorce. If a couple is unable to agree on a date, a court will decide after considering all the evidence.

Changing Separate Property Into Marital Property

Marital property and separate property can change from one to the other through a process known as transmutation. There are several ways this can happen.

First, a couple can agree, before or during marriage, to change an asset that was originally separate property into marital property, or vice versa.  A simple change of the title for the property is not enough. These agreements must be in writing and must clearly state the intention of the parties.

It is also possible for a spouse to unintentionally convert a separate asset into a marital asset by “commingling” separate property and marital property together. For example, a premarital bank account belonging to one spouse can become marital property if the other spouse makes deposits into it or a house owned by one spouse alone can become marital property if both spouses pay mortgage or other expenses.

There are many types of assets that can be partially marital and partially separate including retirement accounts one spouse contributed to before and during the marriage, or a business one spouse started before marriage and continued running after marriage.

Distinguishing marital property from separate property can be rather complicated, especially in situations where there is a lot of commingling involved or one spouse owns a business. Couples who cannot decide what belongs to whom will have to let a court determine whether the commingled property should be considered marital or separate.

Determining Property Value

During the division of property in a divorce, the spouses will usually assign a monetary value to each item of property. If the spouses are unable to agree on an item the court will determine its value.

Naturally, some items are more challenging to value than others. You may need professional assistance to determine the value of antiques, artwork, or retirement accounts.

Division of Property in California

California divorce laws require that the net value of the marital assets be split equally between both spouses.

Spouses can divide assets by assigning specific items to each spouse, allowing one spouse to “buy out” the other’s share of an asset, or by selling assets and dividing the proceeds.

Divorcing couples can also agree to hold property together even after the divorce. This is most common with spouses who want to keep a family home until their children are out of school.

The spouses must also assign all debts accrued during the marriage including car loans, mortgages, and credit card debts to one of the spouses. You should be aware that a divorce or separation agreement is not binding to creditors. This means they may continue to collect any jointly owned debt from either spouse even after the marriage is over.

If the court assigns a debt to one spouse, the other can request the court to put a lien on that spouse’s separate property as security for the payment of the debt.

Contact Azemika & Azemika Law

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.

What‌ ‌is‌ ‌the‌ ‌Difference‌ ‌Between‌ ‌Dissolution‌ ‌of‌ ‌ Marriage‌ ‌and‌ ‌Legal‌ ‌Separation?

family law lawyer bakersfield ca presenting the process of dissolution‌ ‌of‌ marriage in court

In California, there are multiple ways couples can alter or end their marriage. Spouses who wish to terminate their marriage permanently can file for dissolution‌ ‌of‌ ‌ marriage‌, commonly known as divorce. If they have the proper grounds, they can annul their marriage by filing for annulment of their marriage. Couples who are looking to separate without legally ending their marriage can file for legal separation.

If you are considering ending your marriage, you’ll want to understand the different options available to you. Every marriage is different and the best choice for you will depend on your given circumstances.

Divorce

In California, divorce is defined as the legal termination of a marriage. In a divorce, spouses seek to dissolve their union and end all legal and financial ties. To be eligible to file for divorce in California, you must have been a California resident for at least six months as well as a resident of the county in which you want to file the petition for three months.

Both spouses don’t need to agree to the divorce. If one spouse initiates a divorce and the other doesn’t take part in the process, a default judgment will likely be placed on the resistant spouse. In other words, it takes two people to say “I do,” but only one to say that “I no longer do”. One spouse cannot stop the other spouse from getting a divorce if they want to get a divorce. Because of California’s absence of a fault law, the spouse filing for divorce doesn’t need to prove any fault of the other party.

When filing for divorce, couples will try to reach reasonable compromises on important issues such as division of property, child custody and visitation, and child and spousal support. If the spouses are unable to come to an agreement, the case will go to court where a judge will decide the outcome of these issues.

Dissolution‌ ‌of‌ Marriage (Summary Dissolution)

In the state of California, a dissolution of marriage is a simpler divorce process. If couples are eligible for a summary dissolution, they can save time by avoiding court proceedings and filing less paperwork. To be eligible for a summary dissolution, couples must meet all the following requirements:

  • Have been married for five years or less
  • Neither spouse owns a home or other real estate
  • The couple did not have any children during the marriage and the wife is not pregnant
  • Community debt is less than $6,000 (excluding auto loans)
  • The couple’s combined property doesn’t exceed $43,000
  • There is a written division of assets and debt
  • Both spouses agree to waive alimony

A dissolution of marriage is a good option for couples who want to end their marriage in its early years before building financial and personal entanglements.

Legal Separation

Legal separation allows couples to physically separate but it does not end the marriage and does not permit spouses to marry others. This allows couples to live in separate residences and neither party is required to communicate with the other for decisions on finances and assets.

While many legal separations ultimately lead to divorce, many couples prefer to legally separate first when they are unsure if a divorce is really what they want. It can serve as a trial run for a divorce in many instances. If the couple is able to work out their differences, it will be much easier for them to return to normal compared to if they had filed for divorce. 

A legal separation is also a viable choice for couples who cannot get divorced due to religious reasons. Another reason why people do legal separation is because of health insurance coverage. If one party is uninsurable, then legal separation allows the other party to continue to carry them on their employer-provided health insurance plan whereas if the parties are divorced, they are no longer each other’s dependents and thus, cannot carry each other on their health insurance plan.

There are no residency requirements to enter into a legal separation in California whereas divorce requires you to be a resident for six months before you file. Because of this, many couples who are ineligible for a divorce will opt for legal separation until they meet the residency requirement to get a divorce.

Annulments

Annulments are quite different from legal separations, summary dissolutions, and divorces. Whereas the other methods of ending or altering a marriage recognize the legal validity and clear start and end date to a marriage, an annulment treats the marriage as if it never happened.

You can obtain an annulment when there are grounds that the marriage was never legally valid. For example, a bigamous marriage is never valid in California and can be nullified. Other legal grounds for receiving an annulment include situations when:

  • The marriage was the result of force or fraud
  • One spouse was underage
  • One party was of “unsound mind” to consent to the union
  • One spouse had a previous marriage or domestic partnership that was still legally valid.

If you can prove any of these conditions, you can obtain an annulment in California at any time. Unlike divorce or legal separation, you cannot get an annulment for “irreconcilable differences”. Be aware that since the marriage is considered to never have been valid, you may not have rights to any assets of your former spouse if you receive an annulment. If there are children from the marriage, you may still be eligible to have child support and custody terms included in the annulment so long as you can prove parentage.

Contact Azemika & Azemika

The experienced divorce attorneys at Azemika & Azemika Law understand that every case is unique and can help you protect your interests in a divorce or legal separation. For comprehensive legal counsel on your options during your divorce or legal separation, contact Azemika & Azemika Law, Kern County Divorce Attorneys. We will craft fast and effective solutions for your unique circumstances and needs. We will fight for and protect you and your family during the separation and divorce process.

Trial Court in Bakersfield Was Ruled Wrong by Appellate Court

trial court room used for hearings and trials about kern county family law attorneys

In reversing a Trial Court in Bakersfield, Kern County, California, an Appellate Court has ruled that Trial Court was wrong by allowing depreciation deductions taken on equipment and other assets used in the self-employed Father’s businesses, as listed on his income tax returns, to reduce the amount of his income available for child support and by assuming that the income and expenses reported on Father’s tax returns were correct and thus, placing the burden on Mother to show that Father’s tax returns were incorrect. In the case of In re Marriage of Hein, Mother earned $9,086 per month as a physical therapist working three days a week during the marriage. Father was self-employed as a farm owner and manager and was the sole shareholder and president of two corporations. The assets of the corporations included four ranches totaling 110 acres and Father managed more than 6,000 acres of trees and vines. Father also owned other companies and real estate. He reported wages and salaries of $7,760 per month on his income tax returns.

Mother filed for divorce in May 2003, and their divorce judgment was filed in November 2004. Itincluded provisions for joint custody of their two daughters and did not order either parent to paychild support.

On February 28, 2014, Mother filed a request for modification of child custody and child support and for attorney’s fees and costs. After several days of trial, Trial Court issued a statement of decision that, among other things, determined that it was appropriate to reduce from Father’s gross income depreciation deductions taken by the two corporations on equipment and other assets used in the businesses, that Father’s federal tax returns were presumed correct, and that Mother had the burden of showing that the returns were incorrect. Trial Court also rejected Mother’s request for attorney’s fees, finding that an award would not be appropriate because there was no disparity in the parties’ incomes.

Claiming that Trial Court erred by allowing depreciation deductions to reduce Father’s income available for child support and placing the burden on her to rebut the presumption of correctness of Father’s tax returns, Mother appealed, and in a partially published opinion, California Court ofAppeals has now reversed Trial Court’s decision and has sent the case back to Trial Court for further proceedings consistent with its decision.

The Court of Appeals has ruled that (1) there is no reason to depart from treatment of depreciation deductions in Asfaw (2007) 147 Cal.App.4th 1407, [deduction for depreciation of rental property

is not appropriate] and Rodriguez (2018) 23 Cal.App.5th 625 [deduction for depreciation of motor vehicles is not expenditure required for operation of business and not deducted from income available for child support] in determining whether depreciation for equipment and other assets used in self-employed parent’s businesses should be deducted from income available to Father for child support purposes; (2) Trial Court erred in reducing Father’s available income for child support purposes by allowing depreciation deductions taken on his income tax returns; (3) Trial Court also erred by placing burden of proof on Mother to show that Father’s tax returns were incorrect (Father has greater knowledge of the facts regarding his businesses and expenses and has control over his business financial records); and (4) on these facts, the presumption that Father’s tax returns were correct does not apply. Therefore, the Court of Appeals has reversed and remanded the case back to Trial Court for further proceedings in line with this opinion.

In the unpublished parts of the opinion, the Court of Appeals has vacates Trial Court’s denial of attorney’s fees for Mother and declines to decide Mother’s other issues.