Part 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 competency of a party in a family law proceeding can significantly affect how a case will be litigated in California.  While California is a no-fault divorce state, meaning that the parties may divorce due to “irreconcilable differences”, the law requires that a person must have the capacity to understand the basic legal and financial consequences of entering into a divorce. Under California Probate Code Section 4609, “capacity” means a person’s ability to understand the nature and consequences of a decision and to make and communicate a decision. In the case of proposed health care, capacity is defined as the ability to understand its significant benefits, risks, and alternatives. To ensure that parties with mental health and competency issues are represented fairly in divorce proceedings, the California legislature gave the judiciary the express authority to appoint a guardian ad litem or a conservator to represent the incompetent person’s best interests.

A guardian ad litem or conservator work alongside the protected person’s attorney and will make a wide range of legal decisions for the person ranging from spousal support, property division, custody, and visitation. California Family Code section 2332 (b), provides in pertinent part, that a guardian ad litem may be appointed “to defend and protect the interest of the spouse who lacks legal capacity to make decisions.”

If the spouse is already protected by a conservator, then the court will presume that a guardian ad litem is necessary and will appoint one without a competency hearing. A guardian ad litem differs from a conservator because a guardian ad litem only serves up until the conclusion of the court proceeding in question. The Latin term “ad litem” means “for the suit.” Thus, a guardian ad litem is a temporary guardian. In contrast, a conservator may persist beyond the final adjudication of a single case.

A conservator is appointed to make the day-to-day financial decisions for the protected party.  A conservatorship is governed by California Probate Code 1801(b) which provides that a conservator shall be appointed by court upon showing that a person is “substantially unable to manage his or her own financial resources or resist fraud or undue influence.” To qualify for a conservatorship, the party must submit a brief statement of facts addressing the following five factors:  (1) The inability of the proposed conservatee to properly provide for his or her needs for physical health, food, clothing, and shelter; (2) The location of the proposed conservatee’s residence and the ability of the proposed conservatee to live in the residence while under conservatorship; (3) alternatives to conservatorship considered by the petitioner or proposed conservator and reasons why those alternatives are not available; (4) health or social services provided to the proposed conservatee during the year preceding the filing of the petition, when the petitioner or proposed conservator has information as to those services; and (5) the inability of the proposed conservatee to substantially manage his or her own financial resources, or to resist fraud or undue influence. (Prob. Code § 1821.)

Competency of a party may also be an issue in proceedings to obtain an annulment. Pursuant to Family Code section 2210(c), a marriage is voidable if either party is of “unsound mind” while entering the marriage. Accordingly, a marriage can later be annulled where there is a showing that at least one of the parties was incompetent.  Just as a third-party may move for a court to order a guardian ad litem or conservator, certain third parties can also bring annulments. Some children for example may choose to bring a nullity action after their parent has died, when the new marriage results in that child being cut off from the inheritance.

If you are seeking information or counsel regarding competency issues during divorce, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri – we offer free half-hour consultations. We also offer free wills to all of 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.

California laws for property division in divorce has undergone significant change over the years. Due to its Spanish roots, California began as a community property state, in which all property acquired during the marriage is part of the community thus subject to equal division in divorce. Divorce in California really took off in 1969 when Governor Ronald Reagan signed into law “no-fault” divorce making California one of the first no-fault divorce states. The new law eliminated the need for couples to articulate spousal wrongdoing in pursuit of a divorce. In the decades that ensued, almost every state in America would follow California’s lead and enact “no-fault” divorce of its own. This legal transformation would open the floodgates to divorce in the United States. From 1960 to 1980, the divorce rate more than doubled. With the major influx of California divorce came novel legal questions on how to fairly divide property between divorced spouses. The California legislature and judiciary would create new laws to address these issues.

Perhaps the most landmark amendment to the Family Code is the addition of Family Code §2640, which requires reimbursement of a spouse’s traceable separate property contributions towards the acquisition of community property before division can commence. Under this statute, all separate property used to obtain a property with joint and equal ownership is reimbursable separate property. Moreover, Family Code §2640 states that the spouse who made a separate property contribution is entitled to interest-free reimbursement for the down payment, improvements, and principal, but not an ownership interest. This reimbursement also does not include payments towards taxes, insurance, or maintenance.

Prior to the enactment of this statute, the California Supreme Court presumed that any separate property funds (e.g. money acquired before marriage and inheritances) used to purchase an asset during the marriage was presumed to be a “gift” to the community. This presumption, colloquially referred to as the “Lucas Presumption” precluded a spouse from claiming any interest in a community asset regardless of whether the spouse spent much of his own separate property money to purchase it. In most cases today, the Lucas Presumption no longer applies, thanks to the 1984 California Legislature. However, in certain rare cases for property acquired before the statute, the court will use a two-part analysis to determine whether retroactive application of section 2640 violates due process under the Constitution. First: The significance of the state interest served by the law and the importance of the retroactive application of the law to the effectuation of that interest; and Second: The extent of reliance upon the former law, the legitimacy of that reliance, the extent of actions taken on the basis of that reliance, and the extent to which the retroactive application of the new law would disrupt those actions. (In re Marriage of Heikes (1995) 10 Cal.4th 1211, 1219).

even if the property was acquired after 1984 and either party is entitled to reimbursement under section 2640, it is vital that the necessary records are maintained so that a court can trace the funds from the community asset back to all separate funds. Burden of proof and problems arise if the monies were commingled into a joint account. These issues are especially apt in lengthy marriages where a spouse may not have kept a record of his or her separate contributions. As previously explained in other blog posts, the best way to ensure adequate accounting for separate property assets is to proactively keep an inventory of its rents, issues, and profits. In instances where a community asset is purchased with commingled funds it may still be possible to obtain reimbursement under the method of tracing by recapitulation. Under this method, a court may conclude that the asset was purchased with separate funds if the party can prove that all community funds had been exhausted by community expenses at the time of the transaction.

The date of separation has also undergone significant change in California. The date of separation in a California divorce can play a very important role in determining the division of assets and debts. It can be the difference between whether an asset is community or separate property and whether a marriage is of “long duration” or “short” for purposes of determining spousal support. Initially, the rule was that the date of separation occurred when either spouse did not intend to continue the marriage and their conduct was consistent with the complete and final breakdown of the marriage. Then in July 2015, the California Supreme Court abrogated that rule in a decision called Marriage of Davis. This decision created a bright-line rule making physical separation a necessity to separate. This meant that parties who could not afford to live out on their own were precluded from legal separation. Many family law lawyers, judges and the California legislature did not like this decision. Thus, in 2016 Governor Brown signed into law Family Code section 70 defining separation as the date that a complete and final break in the marital relationship has occurred, as evidenced by (1) a spouse’s intent to end the marriage and (2) conduct of the spouse that is consistent with his or her intent to end the marriage. The law requires courts to take into consideration all relevant evidence.

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 wills to all of 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.

Debating on whether or not to present your future spouse with a prenuptial agreement can be a hot button issue. Nothing is more romantic than planning for the possibility of divorce before your wedding day. If you are the type of person that would like to have protections regarding your property, but do not want a full-fledged prenuptial agreement, there are many options available to you. Since in California we run a community property system, acting upon these options are necessary to ensure that your separate property stays separate.  Community property is all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state. (Cal Fam Code § 760).  Separate property is all property acquired before marriage or during marriage by gift, bequest, devise, or descent, including the rents, issues, and profits of the separate property. (Cal Fam Code § 770).  As a married person, however, you can generally maintain your own “separate property” by making sure it literally stays separate and doesn’t mingle with anything community.

Separate Property Inventories: the best way to ensure you have adequate accounting for your separate property assets is to keep an inventory of them. You would identify the property you are bringing into the marriage and identify the rents, issues, and profits from them. Think of this as a proactive tracking and accounting of what you have.  While this task is time consuming, it would be helpful to identify the fair market value of each item you are listing as well. In case there is any appreciation in value of your property, your spouse may have a claim to some reimbursement to that appreciation, discussed more later. This inventory does not need to be limited solely to property you acquired prior to marriage. You can update this list during the marriage by identifying any property you received as a gift, devise, bequest or descent. As noted above, property in these categories are also your separate property whether or not you are married at the time you receive it. Id.

Separate Funds: Keep your non-marital funds separate. The best way to generally ensure your marital funds are separate would be to keep any money you earned before marriage, or inherited at any time, in a bank account separate from your spouse’s. Obtaining a sole account in your name gives only you access to the funds in the account and the ability to obtain information from the account. (Carillo, supra at 38-39). Any earnings you receive during marriage should go into another account, either another sole account or a joint account with your spouse. Any earnings you receive during marriage are community property barring an agreement between you and your spouse.  This includes any expenditures of time, talent, and labor. (In re Marriage of Dekker, 17 Cal. App. 4th 842, 850, 21 Cal. Rptr. 2d 642, 647 (1993)). When your community property earnings are combined with you separate property earnings it results in “commingled” funds. (Carillo, supra at 79). Courts would need trace the funds back to both separate funds and community funds to determine their contribution to the purchase and thus their entitlement to reimbursement. Keeping funds separate saves a lot of time and confusion and is more likely to result in those funds being treated as your separate property later than if the funds have to be traced.

Real estate: Keep your real property separate from your spouse. One example: purchasing a home before you met or were married to your spouse. If you want that property to remain solely your separate property then you would refrain from adding your spouse’s name to the title of your home. Having joint title on the deed of your home raises a presumption that the property is community property. (Cal Fam Code § 2581). In addition, you would also need to maintain the home solely with non-marital funds. This could be done with money you earned before marriage or an inheritance because these are your separate property, as defined above.

Separate Business: Obtain a valuation of your separate business prior to marriage. The value of your business at divorce will likely be higher than before marriage and would be subject to the community property presumption. Any community contributions to this increase will be entitled to some reimbursement at divorce. (In re Marriage of Dekker, 17 Cal. App. 4th 842, 851, 21 Cal. Rptr. 2d 642, 647 (1993)). The problem is, if you did not obtain the value of your business before marriage, your spouse may receive more than he or she is actually entitled to receive or actually contributed to the business growth. For example: your business was valued at $100,000 on the date of your marriage and worth $500,000 on the date of your divorce. Your spouse would be entitled to $200,000 which is half of the appreciation (or difference between the two valuations). If you did not receive that initial valuation, the court could end up valuing it at less than its actual value at the time, and your spouse would receive more.

If you have an issue concerning your separate property rights, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri. We offer a free half-hour consultations.

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.