Who
or What are Moore and Marsden?
Moore and Marsden are two cases decided by
the California Supreme Court and the California Appellate Court in 1980 and
1982 respectively. These cases dealt with the issue of how to determine the
community property interest in a house.
Generally, a house purchased before
marriage will be treated as the purchaser’s separate property. However, during
marriage if the mortgage is paid with community funds a portion of the value of
the house may become community property. Because California is a community
property state, this means all community property is divided equally in a
divorce.
When
do I Use a Moore Marsden analysis?
The decisions of the Moore and Marsden
cases are the basis for what is called the Moore Marsden analysis. The Moore
Marsden analysis applies a formula to determine what portion of a house is
community property due to mortgage payments made during marriage with community
funds.
To apply the Moore Marsden analysis, you
need to have two key factors. First, any mortgage payments made must be made
with community funds. Second, these payments must include payment of the loan
principal and not only interest.
How
do I Apply a Moore Marsden Calculation?
If you meet the above two factors, you
must compare the market value of your home at the time of your marriage and the
market value at them time of your divorce proceedings to calculate the amount
the house has increased in value during the marriage.
You then compare the amount principal paid
during the marriage to the total purchase price of the house to calculate what
percentage of the purchase price was paid during the marriage.
Next you take the percentage of the
purchase price that was paid by the community and compare that to the amount
your house has increased in value during marriage and add to it the amount of
the principal paid by the community to calculate the total amount of the house
that the community is entitled to.
Finally, in a divorce this amount is
divided between the spouses because it is community property.
For example, if your house was worth
$100,000 at the time of marriage and $200.000 at the time of divorce, then the
house has increased in value by $100,000.
If you purchased the house for $50.000 and
during your marriage paid off $10,000 of principal with community funds, then
20% was paid by the community.
Using the above examples, you take the
percentage paid by the community, 20%, of the amount your house increased in
value, $100,000, and add the amount of principal paid during the marriage,
$10,000, which equals $30,000. This means that the community would be entitled
to $30,000 of the $200,000 house.
This would mean that in the above example,
each spouse would be entitled to $15,000 as community property is divided
equally. The remainder of the house value and the balance due on the loan is
kept by the spouse that purchased the house with separate funds before the
marriage.
Is There
Anything Else I Should be Aware of?
In a typical divorce, there are many
additional factors that may be involved in the calculation. Refinancing and
home improvements made with community funds both influence the calculation.
Further, it may simply be difficult to agree on the required values of the home
with your spouse.
Because of the complex nature of the Moore Marsden analysis, it is important to discuss your circumstances with a knowledgeable expert. If you own a home and are considering divorce, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri.
Please
remember that each individual situation is unique, and results discussed in
this post are not a guarantee of future results. While this post may
detail general legal issues, it is not legal advice. Use of this site does not
create an attorney-client relationship.
Declaration of Disclosure
/0 Comments/in Family Law /by Michael LonichWhat is a declaration of disclosure?
A Declaration of Disclosure provides a spouse with a complete and accurate disclosure of all assets and liabilities you have. The Declaration of Disclosure includes:
Do I have to fill out a declaration of disclosure?
In a proceeding for dissolution of marriage or legal separation, California law requires that parties exchange a general inventory of all assets and liabilities they may have. California requires a declaration of disclosure for many policy reasons including to avoid dissipation of the community estate before distributions, to ensure fair and sufficient child and spousal support and of course to facilitate the division of community assets.
How and when do I exchange a declaration of disclosure?
There are two types of disclosures required by the State of California, a preliminary disclosure and a final disclosure. The exchange of preliminary declarations is an interim step toward the requisite exchange of more comprehensive final declarations of disclosure before a marital settlement agreement can be reached or entry of the ultimate judgment.
The preliminary disclosure must be exchanged at the time of the service of the petition for dissolution or any time during the pendency of the action. Characterization and valuation details are not required in a preliminary disclosure.
In a final disclosure, characterization and valuation details are required. Like the preliminary declaration requirement, service of final declarations is mandatory.
Further, both spouses have a continuing duty to immediately, fully and accurately update and augment their disclosures when any changes may occur.
Will my assets and liabilities become public record?
The extensive disclosures required by California law could reveal private information which, if filed with the court, would become a public record. The threat of public access might discourage full and truthful disclosures; therefore the preliminary and final declarations are not filed with the court and will not become public record. However, while the declarations of disclosure themselves are not filed with the court, each party must file proof of service of each of the required declarations; and likewise, as to any amended declaration of disclosure.
If you are considering dissolution or separation and need help preparing a declaration of disclosure, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri.
Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
Spousal Support: The Basics
/0 Comments/in Family Law /by Michael LonichThe decision to get divorced can be a difficult one; especially if you are unsure of how you are going to financially support yourself after severing ties from your former spouse. Thankfully, the courts have established a system where you can still be supported by your spouse after marriage through the means of spousal support.
What is Spousal Support?
Sometimes after a divorce, there is a financial gap or disparity left between the two former spouses. Spousal support seeks to correct that by helping the supported spouse maintain the same standard of living established during their marriage.
Therefore, in its most basic definition, spousal support are payments made from one spouse to the other. In other words, the financially stronger spouse makes payments to the supported spouse that follow the amount of money and timeframe ordered by the court during the divorce proceedings.
What Types of Spousal Support Are There?
A party can ask for spousal or partner support to be paid while their case is still ongoing. This is called a “temporary spousal support order.” The goal with temporary spousal support is that the supported party will eventually become financially self-sufficient within a reasonable period of time.
Additionally, support can also be ordered by a judge once the divorce becomes final, which is called “permanent (or long-term) spousal support.”
How is Spousal Support Calculated?
For temporary spousal support, judges generally use a formula to calculate the amount.
On the other hand, judges consider a number of different factors to determine a final spousal support order for a permanent spousal support order. These factors include: the earning capacity of both parties and standard of living established during the marriage, the length of the marriage, and any evidence of domestic violence. If the court refuses to make an award of spousal support, the reason may be attributed to the dual careers of the couple and each party’s income earning potential.
How Do I Go About Getting Spousal Support?
If you or a loved-one are going through a divorce and would like more guidance through the process, including petitioning for spousal support, please contact our attorneys at Lonich Patton Elrich Policastri. We offer free 30 minute consultations with our Family Law Specialists.
Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
The Ins and Outs of Life Insurance During Divorce
/0 Comments/in Family Law /by Michael LonichLife insurance is usually not high on the list of concerns during a divorce. However, it is important to know that under certain circumstances life insurance can be an important asset.
In California, Can Life Insurance be Divided?
California is a community property state, which means that anything earned by the couple is owned equally be each partner. When life insurance is purchased with community money it is possible that the proceeds of the life insurance policy may be community property.
There are two types of life insurance: whole life insurance and term life insurance.
The first type of life insurance is whole life insurance. For whole life insurance, the policy accumulates a “cash value”. The amount of the policy that was purchased with community money is considered to be divisible property in divorce.
The second type of life insurance is term life insurance. Term life insurance is a contract providing only coverage during a specified term and has no cash value. Term life insurance purchased with community money is community property. However, the property in term life insurance is the right to have coverage during the individual term paid for with community money. Because the couple has already received the “benefit” of the policy during the marriage, the policy is not considered to be a divisible asset.
If the partner for whom a term life insurance policy is maintained were to pass away during a term in which any community funds were used to purchase the term policy, a portion of the policy proceeds would be community property and subject to division in a divorce.
Can Life Insurance be Awarded as Child or Spousal Support?
California family law provides broad discretion in matters of spousal and child support. A judge may order a parent to buy an insurance policy with the child or spouse named as the beneficiary.
California law allows life insurance to be awarded for child support because the obligations of the parent extend beyond death. A judge may order a life insurance policy as child support when the judge believes that the ordered parent may have trouble providing for the child.
Life insurance awards for spousal support allows a judge to order a spouse to purchase a policy with the other spouse named as the beneficiary. The judge’s ability to order life insurance as spousal support is directly stated in California Family Code section 4360.
Is There Anything Else to be Aware of?
It is important to remember that a life insurance policy is a separate contract from marriage. The named beneficiary of a life insurance policy does not automatically change following a divorce. The holder of the policy must contact the life insurance provider to request a change of beneficiaries.
Another item to keep in mind is that even if a life insurance policy is not discussed during divorce proceedings, it can be brought before a judge later as an “omitted asset.” The judge may then decide on whether the policy should have been divided or have been included in an award of support.
Determining the rights to life insurance in divorce can be complicated. It is important to understand your rights to a life insurance policy both during and after divorce. If you have questions about your or your partner’s life insurance policy, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri.
Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
Reverse Mortgages: How it Works
/0 Comments/in Estate Planning /by Michael LonichWhat is a reverse mortgage and why would I want it?
A reverse mortgage is a type of home loan which can be used for any purpose. Unlike a standard home loan where you make monthly payments, with a reverse mortgage, the lender makes payments to you.
A reverse mortgage provides a way to use the equity accumulated in your house without losing ownership of your house or increasing your monthly payments.
When Can I get a Reverse Mortgage?
To obtain a Reverse Mortgage, you must be at least 62 years of age and the house must be your primary home, where you live at least six months out of the year.
The amount of the Reverse Mortgage is affected by many factors, however generally the value of the Reverse Mortgage increase with your age and the value of your house.
How does a Reverse Mortgage Work?
There are two types of reverse mortgages available, Home Equity Conversion Mortgages (HECM) and proprietary reverse mortgage.
HECM are federally-insured, widely available and have no income requirements. Proprietary reverse mortgages are not federally-insured as they are borrowed through private lenders, however they allow for higher loan amounts. The choice of reverse mortgage that is best for you will depend on your circumstances and needs.
You as the homeowner get to choose how the reverse mortgage is received. The payments may be received monthly, lump sum, or as a credit line. Interest is only charged on the amount received and the interest is added to the loan balance. This means that you do not have to pay the interest up front. Additionally, as the payment from the reverse mortgage is a loan, it is not considered income and is not taxable.
Once you have received the payments, there are no restrictions on how the money may be used. The money can be used to supplement your income, pay debts, or even to buy a new home.
A reverse mortgage will continue until all borrowers permanently move out of the house, sell the house, or the last surviving borrower passes away. Once the reverse mortgage ends, the loan becomes due, which can be paid by the sale or refinance of the house.
Is There Any Cause for Concern with a Reverse Mortgage?
A reverse mortgage can provide invaluable assistance in retirement and is the one of the few ways to access the equity you have built up in your home without increasing your monthly payments. However, there are several things to be aware of and consider before you make the decision to get a reverse mortgage.
The first thing to be aware of is that reverse mortgages often have higher fees than standard mortgages. These fees are rolled into the reverse mortgage and will further reduce the amount of equity you have accumulated in your house.
Second, the loan amount becomes due when the house is sold. As the sale of a house may happen unexpectedly it is important to consider the likely hood of this happening and the impact the reverse mortgage will have on the sale.
A final consideration is the effect the reverse mortgage will have on your estate. As you continue to receive payments, the equity in your house is reduced which will affect the amount received by your heirs.
Is a Reverse Mortgage right for me?
A reverse mortgage is a financial tool available to those who understand how the loan works. When considering a reverse mortgage, it is important to understand as much as you can about the reverse mortgage process, and balance that with your needs.
If you are thinking about a reverse mortgage loan, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri. We offer free half-hour consultations.
Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
California Divorce: What is a Moore Marsden Analysis?
/0 Comments/in Family Law /by Michael LonichWho or What are Moore and Marsden?
Moore and Marsden are two cases decided by the California Supreme Court and the California Appellate Court in 1980 and 1982 respectively. These cases dealt with the issue of how to determine the community property interest in a house.
Generally, a house purchased before marriage will be treated as the purchaser’s separate property. However, during marriage if the mortgage is paid with community funds a portion of the value of the house may become community property. Because California is a community property state, this means all community property is divided equally in a divorce.
When do I Use a Moore Marsden analysis?
The decisions of the Moore and Marsden cases are the basis for what is called the Moore Marsden analysis. The Moore Marsden analysis applies a formula to determine what portion of a house is community property due to mortgage payments made during marriage with community funds.
To apply the Moore Marsden analysis, you need to have two key factors. First, any mortgage payments made must be made with community funds. Second, these payments must include payment of the loan principal and not only interest.
How do I Apply a Moore Marsden Calculation?
If you meet the above two factors, you must compare the market value of your home at the time of your marriage and the market value at them time of your divorce proceedings to calculate the amount the house has increased in value during the marriage.
You then compare the amount principal paid during the marriage to the total purchase price of the house to calculate what percentage of the purchase price was paid during the marriage.
Next you take the percentage of the purchase price that was paid by the community and compare that to the amount your house has increased in value during marriage and add to it the amount of the principal paid by the community to calculate the total amount of the house that the community is entitled to.
Finally, in a divorce this amount is divided between the spouses because it is community property.
For example, if your house was worth $100,000 at the time of marriage and $200.000 at the time of divorce, then the house has increased in value by $100,000.
If you purchased the house for $50.000 and during your marriage paid off $10,000 of principal with community funds, then 20% was paid by the community.
Using the above examples, you take the percentage paid by the community, 20%, of the amount your house increased in value, $100,000, and add the amount of principal paid during the marriage, $10,000, which equals $30,000. This means that the community would be entitled to $30,000 of the $200,000 house.
This would mean that in the above example, each spouse would be entitled to $15,000 as community property is divided equally. The remainder of the house value and the balance due on the loan is kept by the spouse that purchased the house with separate funds before the marriage.
Is There Anything Else I Should be Aware of?
In a typical divorce, there are many additional factors that may be involved in the calculation. Refinancing and home improvements made with community funds both influence the calculation. Further, it may simply be difficult to agree on the required values of the home with your spouse.
Because of the complex nature of the Moore Marsden analysis, it is important to discuss your circumstances with a knowledgeable expert. If you own a home and are considering divorce, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri.
Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
Aretha Franklin Did Not Have a Will
/0 Comments/in Estate Planning /by Michael LonichBut Did Aretha Franklin Need a Will?
Tragically, Aretha Franklin passed away on August 16, 2018 from pancreatic cancer. She left behind four sons but no will or estate plan. Because she did not have a will, during the court process all her assets will be made public. Aretha Franklin’s estate is estimated to be around $80 million and includes financial accounts, personal and real property, and music copyrights. The law of Michigan, where Aretha Franklin died, requires that her assets be divided equally between her four sons. While this may seem simple, it is very common when there is no will for the estate to be contested.
For example, Prince’s estate has been highly contested by the executor of his estate, Comerica Bank and Trust, and his heirs – his six siblings – over the value of his estate and how it should be divided. Prince passed away in 2016 and his $200 million estate has paid lawyers and consultants over $5.9 million while his heirs have yet to receive anything. Lawyers for three of Prince’s heirs claim that it is a “legitimate concern” whether Prince’s heirs will receive anything at all.
If Aretha Franklin had created a trust, her estate would remain private, fees would be reduced, and her heirs would receive their portion of the estate much faster.
Do I Need a Will?
Over half of Americans do not have a will. Most claim they have simply not gotten around to it and many believe that they do not own enough property to pass down.
While most Americans will not leave behind an estate as large as Aretha Franklin or Prince, a will or trust is still extremely valuable.
It is important to remember that your debts as well as your assets are included in your estate. With a will, you can dictate which debts are paid first, this could allow specific property to not be used to pay debts.
Another crucial element is guardianship of children. When there is no will, the court will appoint a guardian. The court will generally appoint the surviving spouse as guardian. However, if the spouse is unavailable the court will appoint a grandparent, and failing that, the next closest relative. With a will, you may nominate a specific guardian who you feel will be best equipped to care for your children.
One more significant factor to consider is who you want, or who you don’t want to execute your wishes. In California if you do not leave a will, your family members may petition to be the administrator of your estate. The court will appoint the petitioner as an administrator if all family members with higher priority decline to serve as an administrator. With a will, you can appoint an executor who you feel is most capable. Alternatively, you may spell out in your will who you do not want to execute your will.
There are many tangible benefits of a will, however the process of drafting a will can be complex. If you are considering a will or another form of estate planning, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri. We offer free half-hour consultations.
Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
Roses, Chocolates, and Prenups
/0 Comments/in Family Law /by Michael LonichAbout forty percent of all marriage proposals occur during the proposal season – the time between Thanksgiving and Valentine’s day – with Valentine’s day as one of the most popular days of the year. While Valentine’s day brings a romantic feeling full of roses and chocolates, February is also the beginning of another season: divorce season. February has the highest rate of divorce filings out of the year, and there is a dramatic increase in referrals for divorce lawyers the day after Valentine’s day. Valentine’s day can elicit strong emotions and the statistics show that people follow their passions this month either by beginning or ending a marriage.
Staying married is not always easy or simple. In the United States, the divorce rate is around 50% and is even higher for second and third marriages. There are many complex issues that arise during marriage that a couple must navigate, particularly surrounding finances. Money is often the number one cause of conflict in a marriage, and as many as thirty percent of couples that fight about money end up divorced.
Typically, a premarital agreement is intended to create conditions that will encourage the growth and health of a marriage. The traditional agreement tends to focus on property owned before marriage by the couple as well as property that may be earned during the marriage. Although it seems like a premarital agreement would be counter-intuitive to romance, discussion of these important financial issues can help a couple grow. It can benefit the confidence in a relationship for couples to openly discuss their concerns and to plan together for the future.
Because of the cost, a premarital agreement may not be for everyone. The traditional factors a couple should consider include the total amount of wealth they possess, and whether there is an un-equal amount of wealth between the couple. Additionally, premarital agreements are gaining popularity with young people who have pursued careers that may lead to a lucrative profession. Protecting their personal efforts is an increasing concern amongst people who might rather not have the state determine their financial future.
If you are feeling swept up by Valentine’s day romance and are planning to propose, considering a premarital agreement may be a great benefit to your future. For more information and advice, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri.
Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
Who Dunnit: Playing the Blame Game in a Divorce
/0 Comments/in Family Law /by Gina PolicastriObtaining a divorce can be time consuming and expensive, especially when one spouse blames the other for the marriage’s end. Will the court take into consideration who behaved badly or caused the divorce? Although courts in England will be concerned with who is at “fault” before granting a divorce, California courts will not take “fault” into consideration.
In California, a couple may obtain a “no-fault” divorce – neither spouse must prove the other is at fault for the marriage’s breakdown. In the 1800s, however, England only allowed divorces where one spouse could prove the other was at “fault.” This rule remains in effect today, in part.
In England, courts will grant a divorce only if the party seeking the divorce can prove the marriage has irretrievably broken down by establishing one of the five following facts: (a) adultery, (b) unreasonable behavior, (c) desertion, (d) two years of separation with consent, or (e) five years of separation with or without consent. While the last two grounds for divorce do not require one spouse to prove that the other spouse was at fault, proving adultery and “unreasonable behavior” often requires spouses to play the blame game.
On July 25, 2018, the Supreme Court of the United Kingdom ruled Tini Owens, an English wife, must remain married to Hugh Owens, her husband of 40 years after she failed to prove her husband was at fault for the breakdown in their marriage. Tini contemplated divorce in 2012 and moved out of the couple’s home in February 2015. Tini argued her husband engaged in “unreasonable behavior” such that she could not reasonably be expected to continue their marriage. Hugh argued if the marriage had broken down, it must have been because Tini had an affair or was “bored.”
While many progressives and lawyers hoped for the court to grant the divorce, the court refused. One Supreme Court judge stated that Parliament had “decreed” that being in a “wretchedly unhappy marriage” was not a ground for divorce. Thus, the Supreme Court rejected the modern trend toward the “no-fault” divorce system in the United Kingdom and United States.
Fortunately, in California, grounds for divorce range from “irreconcilable differences” to “permanent legal incapacity to make decisions,” formerly known as “incurable insanity.” Moreover, evidence of specific acts of misconduct are not admissible in dissolution or separation proceedings, except for history of domestic abuse in cases involving child custody or restraining orders. If you are contemplating divorce, regardless of who is at “fault,” contact the experienced attorneys at Lonich Patton Ehrlich Policastri for a free half-hour consultation.
Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship
GAVRON WARNING – BE SELF-SUPPORTING OR RISK LOSING SPOUSAL SUPPORT
/0 Comments/in Family Law /by Alexis ReveloPart of the divorce process will require both parties to divide the assets acquired during the marriage, and one spouse is often required to support the other after divorce. How long will the support order last? Will the court allow the supported spouse to remain supported for the rest of his or her life? In cases where support is ordered, the court will likely issue a “Gavron Warning” to the supported party. This warning may have a significant impact on the spousal support order, and the supported spouse may risk having income imputed to him/her.
A Gavron Warning is a notice issued by the court to a spouse receiving support that he or she is expected to become self-supporting. Typically, a Gavron Warning will be issued at the time the spousal support order is made. Under certain circumstances, including marriages of long duration, the court may decide that a Gavron Warning is not necessary. Unless the supported spouse has been warned by the court, he or she cannot be penalized for not becoming self-supporting. Once the court issues a Gavron Warning, the court expects the supported spouse to make all reasonable efforts to become self-supporting within a reasonable period of time.
Courts will aim to issue Gavron Warnings for a reasonable period of time. A reasonable period of time is generally one-half the length of the marriage, except for marriages of long duration (over 10 years). (Fam. Code, § 4320.) However, the Court has discretion to order support for a greater or lesser length of time, based on other factors and the specific circumstances of the case. Spouses who need further education or training to become employable “will usually need more advance warning than spouses who already possess job skills and only need to find suitable work.” (Marriage of Schmir (2005) 134 Cal.App.4th 43, 48.) If the supported spouse does not make reasonable good faith efforts to become self-supporting, the supported spouse risks having income imputed.
If the court issues a Gavron Warning to the supported spouse, and the supported spouse fails to become self-supporting, the court may treat the supported spouse as if he/she is earning an income within his/her earning capacity, or impute income to the supported spouse. Moreover, the court may use this imputed income to justify a modification or termination of spousal support. For example, if a party receives a warning to become self-supporting, and the party’s earning capacity is $60,000 per year, but the party fails to become self-supporting after receiving a warning, the court will treat the party as if he/she is earning $60,000 and no longer needs the existing amount of spousal support. The court may choose to reduce the spousal support order or terminate it altogether.
If the court issues a Gavron Warning, the court can impute income, and reduce or terminate spousal support if the warned party fails to make reasonable good faith efforts to become self-supporting. Spousal support and divorce are complicated processes, and an attorney can help you navigate through both. If you are seeking help with a Gavron Warning, obtaining spousal support, or divorce, contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri – we offer free half-hour consultations.
Each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
THE EFFECTS OF A LITIGANT’S DEATH DURING A DIVORCE PROCEEDING
/0 Comments/in Family Law /by Lonich Patton Ehrlich PolicastriLife is unpredictable and sometimes one of the parties dies before the final judgment is made in a divorce case. Naturally, the salient question is: “How will property be divided when one spouse dies during the divorce?”
Assuming the death of the spouse was not criminally expedited by the other, the answer to that question hinges on whether the parties obtained a bifurcation of marital status. A party seeking bifurcation of marital status is essentially asking the court to separate or “bifurcate” the issue of marital status from the rest of the other issues such as property division, custody, and spousal/child support. Because a typical divorce can take over a year and a half to finalize, a bifurcation might be desirable when one party wants to terminate their marital status early and be pronounced single again.
The termination of marital status can affect the division of property in two ways. On one hand, if a party dies after their marital status is terminated, then the family court maintains jurisdiction over the property and the decedent’s personal representative continues to represent the estate’s interests. The community property presumption applies so that property held in joint tenancy will be divided between the surviving spouse and the estate of the deceased spouse. The surviving spouse will have no right of survivorship. In the other scenario, if a party dies before the marital status is dissolved, then the family court loses jurisdiction of the property division and the case is moved to the probate court for further adjudication. Unlike the first scenario, the community property presumption does not apply meaning that property held in joint tenancy will pass, by right of survivorship, to the surviving spouse. (Estate of Mitchell (1999) 76 Cal.App.4th 1378,1386.) These two vast differences illustrate why dissolving marital status and severing joint tenancies can be critical in protecting a litigant’s property interest.
A distinctive feature of joint tenancy, as opposed to other interests in land, is the right of survivorship. This means that when one joint tenant dies, their interests vests automatically to the surviving joint tenant. When a party severs the joint tenancy, the parties will no longer hold title as joint tenants, but rather as tenants in common thereby extinguishing the right of survivorship. This alternative form of property ownership means that each party has a distinct, separate ownership share in the property thus allowing for a party to bequeath (transfer via will) his or her property interest to another person other than the surviving spouse if he or she so chooses. A joint tenant may sever a joint tenancy in real property unilaterally by: (1) executing and delivering a deed to a third person, (2) executing a deed to him or herself, (3) executing a written declaration of severance, or (4) executing any other written instrument evidencing an intent to sever. (Civ. Code, § 683.2, subd. (a); Mitchell, supra, 76 Cal.App.4th at p. 1385.) The simplest of the options is executing a written declaration of severance and recording it. These written instruments must be recorded before the party dies for it to become effective.
Another important consideration to protect one’s property interest in the event of an untimely death is to create a new will. Although the California Family Law Summons contains automatic restraining orders (“ATROS”), the ATROS do not prevent either party from creating a new will. The new will enables a party to decide an alternate inheritance plan excluding a former spouse. It is likewise important to destroy the old will.
If you are seeking information or counsel regarding estate planning or protecting your property during divorce, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri – we offer free half-hour consultations. We also offer free simple wills to all our family law clients during the process of their divorce.
Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.