Obtaining 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 Erlich 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

Life 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 Erlich 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.

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 Erlich 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.

Establishing paternity can be an overwhelming time for many parents. There are many situations in which a want or need to establish paternity arises from. One example being a child born out of wedlock, or during a time where the two parents were not married. Even if unmarried, the two can sign a voluntary declaration of parentage at the child’s birth in order to identify them as the mother and father. However, in some cases of children born out of wedlock, the mother may even omit adding the father’s name on the child’s birth certificate. When this happens, it is not hopeless to identify and establish a man as the father later on. The man hoping to establish himself as the child’s father, or even the mother, may file a petition with the court for a paternity judgment. There are many reasons why a parent may want to establish paternity.

First, it is usually, but not always, in the child’s best interest to have both a mother and father figure in the child’s life. Studies have shown that a good working relationship between mother and father are vital to a child’s emotional well-being and results in positive relationships and fewer behavioral problems. (41 Fam. Ct. Rev. 354). If the child has gone many years without knowing the identity of his biological father, it may also give him a sense of relief to finally receive this information and a part of his identity he had not known. Second, establishing paternity can hold a father of a child accountable for support, whether it be emotionally or financially. If a father has been resistant to claim a child as his, establishing this paternity judgement can ensure that he is held responsible for his duties as a father. Third, it could allow a father to be present in a child’s life when the mother is resisting. Lastly, it can allow the child to claim inheritances and social security benefits.

To enable a child to reap these benefits, parentage must be established. As noted above, there a few methods to do so. One option is to sign a voluntary declaration establishing parentage. Usually at birth of the child, the person responsible for registering live births shall offer to the mother, and to the person identified by the mother as being the child’s father, a voluntary declaration of paternity for the two to sign. (Cal Fam Code § 7571). This declaration will hold the same weight as if you had gotten a judgment of parentage in court. (Cal Fam Code § 7573). If signing a declaration at birth was not an option for you or was not done, a voluntary agreement can still be drafted and signed establishing you both as parents later on. The declaration would need to be executed on a form developed by the Department of Child Support Services in consultation with the State Department of Health Services, the California Family Support Council, and child support advocacy groups. (Cal Fam Code § 7574). It will then be signed by a judge and filed in the court.

To get a paternity judgment by a judge, you would need to file a parentage case with your local superior court. Only the child, the child’s biological mother, the presumed father of the child, an adoption agency who has the child, or a prospective adoptive parent may file an action for paternity. (Cal Fam Code § 7630). A presumed father is one who was married to the child’s biological mother when the child was born, there was a valid attempt to try to marry before the child’s birth, they married or attempted to marry after the child’s birth, or one who receives the child into his home as if the child is his. (Cal Fam Code § 7611). There are many forms to file to open a parentage case with the court, so it is advised that you reach out to an experienced attorney to help you. Once forms are filed, the other parent has thirty days to respond to the petition or else it is defaulted. If the other side does respond within that thirty days, they will likely contest the petition and ask the parties to submit to a blood test.

The court may, on its own or because of a motion to the court, order a mother, child, and alleged father to submit to genetic testing to establish paternity. (Cal Fam Code § 7551). So that both parties can feel confident about the results of the test will be accurate, it is required that the genetics testing is done by a laboratory approved by the United States Secretary of Health and Human Services. (Cal Fam Code § 7552). If it is determined that he is not the child’s biological father, then the court will resolve the matter accordingly. (Cal Fam Code § 7554). If, however, it is determined that the man is indeed the child’s father then he will have the same obligations and responsibilities to the child as if the issue of parentage was not even raised.

If you have an issue concerning issues of paternity or your rights as a parent, please contact one of the experienced attorneys at Lonich Patton Erlich 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.