Santa Barbara Divorce Attorney Explains Property & Finances During a Divorce
When it comes to divorce, California is a “no fault” state. Unlike other states, this means that an individual may file for divorce from their spouse without having to prove there was any wrongdoing. Divorce legally ends a marriage, unlike separation. A judge is required to review and approve all divorce settlements and child custody. If spouses cannot agree on a settlement, the judge has the power to decide how property and parenting will be divided. Obviously it is much better to use a Santa Barbara divorce attorney so that an agreement of sorts may be reached instead of leaving it up to a judge.
Filing for Divorce
Filing for divorce can be somewhat complicated. At a minimum, an individual seeking divorce will file a summons, petition, and Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act form, if there are children. Filing documents and going to court have associated fees, though an individual can apply to have them waived if they cannot afford them.
When all the necessary forms are filed, they will be stamped and copied. A copy of each relevant document must be delivered to the other spouse as soon as possible.
Establishing Financial Standings
After the divorce case begins, each spouse will have to provide information regarding the state of their finances. There are many documents that may need to be filed including:
- Declaration of Disclosure
- Income and Expense Declaration
- Expense Declaration
- Financial Statement
- Schedule of Assets and Debts
- Declaration Regarding Service of Declaration of Disclosure
With the above documents, each spouse discloses the full extent of their financial standings such as employment, assets, liabilities, and monthly expenses. Some individuals may be required to attach tax returns and pay stubs, depending on their financial situation. It is important for each spouse to give accurate and complete information regarding their financial standing as it is taken into account when deciding alimony, child support, and the separation of assets. This part of the divorce can get tricky so it’s always best to run down the items with your Santa Barbara divorce attorney for help.
Determining Property (and debt) Ownership
California has community property laws which determines that the assets and debts spouses acquire during a marriage are equally owned by both spouses and thus must be equally divided in a divorce. Sometimes it is much more complicated than that and may require months of discussions with lawyers to determine who should get what (including the debt).
Property or debt one spouse acquires before the marriage or during the marriage as a gift or inheritance is the sole property of that spouse. Anything that arises from the sale or exchange of this separate property or any increase in value of this property belongs to the spouse that can prove separate ownership.
Separate property begins when the couple decides to split. This does not have to be established by an official separation, but can be established by an act of physical separation, such as sleeping in separate bedrooms, combined with other actions clearly demonstrating at least one spouse intends to end the marriage. Obviously this can be a serious point of contention between a divorcing couple as there is no hard line that establishes this separation. If a spouse earns or spends a large amount of money before the divorce, the other partner might do whatever is possible to manipulate the date of separation. If a couple cannot decide, the court will and courts usually lean towards a later date of separation. It’s best to consult with a California family law attorney for advice.
A couple may intentionally combine an asset that was originally separate property or separate a community property during the marriage. These agreements must be writing clearly stating the intentions of each party in order for the combination or separation to be guaranteed to be recognized by the court. Simply changing the title of the property is usually not sufficient.
One spouse may accidentally convert a separate asset into a community asset by commingling the property unintentionally. This can be done, for example, if a spouse deposits money into the other’s separate bank account, if both spouses make mortgage and other payments on a home that was purchased by a single spouse, etc.
There are many assets that may be considered partially community or separate, such as retirement accounts, the marital home, a business, etc. when both spouses contributed to the upkeep of these assets even if one spouse was initially the primary or sole owner.
There are three main steps in the process of property division:
- Determining whether the property is marital or separate – this is also done for the debt
- Discussion on the value of the marital property and debt
- Division of the property and debt
Finances, at many times, have been a primary issue in marriage and even more so in divorce. The problem mostly arises in spouses having different money styles, which at times can accumulate to large amounts of debts depending on a spouses spending habits. During marriage, it is thought that each person’s money style or interest would remain in line and respect of a couple’s future. One would assume that mentality remains the same going into the divorce. However, one spouse is usually surprised to see the other’s common interest in money radically change. For this reason alone, it is imperative to speak to a California family law attorney.
Suddenly the spouse who was never concerned with money is now digging into all files to locate account details, terms and conditions and other legal matters. You may find that your partner, who never managed money, all of a sudden is putting together a detailed financial budget. Or claiming that they don’t want anything from the beginning to wanting everything but the debt at the end. However, it’s important to keep in mind that money styles do not change. So while the partner may have taken on a different level of interest in the divorce, it is motivated by other factors. Always make sure to consult with a skilled California family law attorney who understands the tricks some spouses and other lawyers may make.
Divorce can become very complicated when trying to distinguish community from separate property and debt. Spouses can change their minds or become very hostile when the reality of the situation sinks in and emotions become involved. It’s important to protect your assets by seeking experienced legal representation from a California family law attorney that will work on your behalf to ensure you aren’t taken advantage of.
Contact a Santa Barbara Divorce Attorney For Consultation
The decisions you make regarding you and your family in legal proceedings can affect you for the rest of your life. Divorce is no easy matter to deal with and it gets even more complicated when children and assets are involved.
Speak to our Santa Barbara divorce attorney at (805) 879-7523 for any legal needs you and your family are facing.