Divorce is a legal process for ending a marriage. You can resolve your divorce through mediation or in court. In addition to physical separation, divorce involves separating property and determining child custody rights. This will require extreme financial scrutiny and a requirement for disclosures. With the disclosures, you can establish the assets that your soon-to-be spouse owns.
Additionally, you can separate the individual and community processes. In child custody battles, the court will assess your criminal history and other factors to determine whether you can be a custodial parent and the child’s safety when you have visitation rights.
Understanding your financial and legal interests in the divorce process protects your rights, and you receive what you deserve from the legal proceedings. If you are undergoing a divorce in Los Angeles, CA, you will need the expert legal guidance we offer at Los Angeles Divorce Lawyer.
Property Division in a Divorce
A significant part of your divorce is dividing property and debts. Even when you separate property in an out-of-court settlement, the agreement must be approved by the court and made into an order. Property, in this case, is anything that has value, and you can buy or sell it. This will include real estate, furniture, bank accounts, and the 401(k). In this case, you may not need to go to court. Instead, you can present a written agreement summary for the judge to review and approve.
Each party in a divorce must complete mandatory documents known as a declaration of disclosure. Exchanging disclosure documents is a vital part of the divorce process. Omitting an asset from these documents can result in severe legal consequences.
Income and Expense Declaration
This document informs the court and the other party’s legal counsel of your monthly income and expenses. Each spouse must make the document as up-to-date as possible. This will include up to two months of payments. Although the expenses do not have to be exact, you can give a rough estimate. After completing the document, you must make at least two copies for the court and the other party in the divorce.
Declaration of Disclosure
The declaration of disclosure is a straightforward form that indicates that each spouse has completed the property and asset disclosure forms. With this declaration, you must attach documents from your tax returns for the past two years.
Assets and Debt Schedule
The schedule of debts and assets is the most complicated document in the disclosure stage of a divorce. This document contains a lot of information that lays out all your community assets and separate property. You should attach all your supporting documents for the declarations you make. After gathering all the information, you must make a copy and combine it with other disclosure documents.
After completing all the forms needed for the disclosure, you can mail them to the court and your soon-to-be ex-spouse.
Things to Consider When Dividing Property in a California Divorce Process
You may put less thought into the type of property when you enter a marriage. This is because most people do not anticipate a divorce. Unfortunately, when the marriage ends, you must make tough, complicated decisions that will impact your well-being. Understanding your legal and financial standing during a divorce ensures that your best interests are addressed.
The following factors will determine your financial interests and property rights in a divorce:
The Type of Property You Own
Diving into property is a significant issue in divorce. Property division, in this case, is determined by the kind of property you have. Property is divided into two main categories:
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Separate Property
Separate property is a category of assets not subject to division during a divorce proceeding. Whether or not property qualifies separately depends on when and how you acquired it. An asset or property will be classified as separate property under the following circumstances:
- You acquired it before the marriage. Any item you owned before the wedding ceremony or issuance of a marriage certificate in California remains in your possession even after a divorce.
- You acquired it through the proceeds of your property before the marriage. For example, if you purchase a rental property before marriage, the items you buy from the proceeds of this investment cannot be divided with your spouse after a divorce.
- The item was gifted to you by a third party as an individual. Even when you receive a gift during a marriage, it will remain personal property after a divorce, and your soon-to-be ex-spouse cannot claim it.
- The assets were acquired through inheritance. If you receive an inheritance during your marriage, the property will remain separate and cannot be divided in a divorce proceeding. Additionally, if you sell the property and purchase something else, you can keep it after your divorce. However, you must still disclose these assets during your divorce financial disclosure.
- You acquired the property or asset after your separation. The property you gained by separating from your spouse cannot be divided during a divorce.
- Items you purchase after entering the divorce judgment. Your ex-spouse will not be entitled to anything you acquire after entering the divorce agreement.
Divorce can be a messy and emotional process. Therefore, it is natural for each party to protect their financial interests. If you have separate property to protect from the divorce, you will need expert legal guidance to navigate your divorce.
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Community Property
California is a community property state. This means all the property you and your spouse acquired during the marriage is equally owned. During property division in a divorce, California Family Code 2550 requires that all community property be divided equally.
Even when you disagree with your spouse on how the property will be divided, the court has the right to divide everything equally. In cases where you acquired the property out of state while still in the marriage, the court will classify it as community property.
Many people view the property division laws of California as unnecessarily strict. While there is minimal room for equitable property division, you do not have to leave the entire property decision to the court. Before you move to court for confirmation, you can explore other means, including mediation and litigation. This allows you to exercise ultimate control over the outcome of the legal proceeding.
When you agree to divide your community property out of court in a divorce, you must follow the state’s law on property division. Additionally, you must present the agreement before the judge for it to be signed into law. Spouses can convert community property into separate property by signing a declaration that indicates an intent to change the property's character.
Whether or not You Want to Divide Property Out of Court
Another factor that helps determine your financial interests in a divorce is how you want to divide the property. While some divorces are contentious, you could go to mediation if you and your soon-to-be ex-spouse are on good terms. The steps you will take in a division of property out of court include the following:
- List all your assets and properties. Before starting the property division process, you must list all your properties. This will include separate and community properties.
- Value your property. In addition to listing all your properties, you must agree on their value. You could consult a financial analyst for items that are difficult to value.
- Decide on the logical owner for different assets. After listing the properties and the reasonable value of each, you could go through the list and decide on the rational owner of each item. You can start with the more valuable items.
- Seek the judge’s approval. You must submit your property division agreement to the court for approval when you finalize it. The judge will review it to ensure each party represents their best interests and is informed about their decisions.
Property Division in a High Net Worth Divorce
The division of property and debt can be complicated, especially when one spouse owns valuable assets or has a high income. Property and financial interests in your high-net-worth divorce will be complicated in the presence of:
- High-value residential and commercial real estate.
- Ownership interests in family and non-family businesses.
- Partnership interest.
- Investments.
- Inheritance.
- Offshore accounts.
- Trusts.
- Retirement benefits.
- Qualified domestic relations orders.
You will need the insight of a divorce attorney if the following complications arise during your property division after a divorce:
- A disagreement on how you divide the property or business you own.
- You or your spouse have accumulated huge debts or are facing bankruptcy. The issue of divorce and bankruptcy is complex. When you file for Chapter 7 bankruptcy, most of your assets may be liquidated to pay creditors. You must agree on how and when to file for bankruptcy to ensure that your best interests are addressed.
- You signed a prenuptial agreement. Under California divorce law, prenuptial agreements allow each spouse to leave the marriage with the assets they brought with them. However, the terms of each prenuptial agreement are different. Property division could bring complications if you agree to nullify the contract after several years of marriage.
- Your spouse took out a debt without your knowledge. Debts are divided like assets in a divorce. Therefore, you may have to pay some debts accumulated by your spouse. This will bring immense and severe complications to the diverging agreement.
Child Custody Issues in a Divorce
Child custody is a significant legal issue in divorce. Divorce proceedings are more complicated when minors are involved. You must decide on legal and physical custody of the child. Child custody issues are sometimes resolved out of court through mediation or an agreement between you and your soon-to-be ex-spouse. If the divorce is contentious, you can take the custody case to court and allow the judge to decide.
Every parent wants to be close to their child and make decisions in their life. Unfortunately, there are circumstances under which the court could deny you custody and visitation. There are two main types of child custody:
Physical Custody
In California, physical custody refers to where your child will reside after the divorce. Additionally, physical custody determines which parent will be responsible for the child’s daily care and routine. If you are awarded sole physical custody of your child, the minor will reside in your home full-time. The court can go ahead and award visitation rights to your ex-spouse.
The family court judges want to maintain a good relationship between children and both parents. Therefore, if you do not have a criminal history and are not a drug addict, the court can award joint physical custody of the child. This means the child will reside in your home on some days and in the other parent’s home on different occasions.
Legal Custody
The legal custody of a child includes the right to make decisions about important issues in the child’s life. This will include decisions on education, healthcare, and religion. Joint legal custody is often preferred to ensure both parents are involved in the child’s life. The judge will spell out the specific terms of a joint custody agreement to avoid conflict.
When a custody case goes to court, the judge will consider the following factors before making a custody agreement:
- The child’s safety and welfare. The family court considers the child’s best interests after a divorce. The judge understands that children are more affected by a divorce. You could be denied custody if considered a threat to the child’s safety and well-being. The judge will check your fitness for custody by assessing your criminal history and mental state.
- The nature of your relationship with the child before the divorce. If you have not kept in touch with your child after a separation, you may find it challenging to convince the court to award you custody of the child.
- History of substance abuse. Being a drug addict or having a history of drug crimes may make you unfit to care for a child. In this case, the court may award custody to the other parent.
- Child's age. The court will award physical custody of young children to the parent who is more involved in their daily routine. The other parent could have supervised or unsupervised visitation, depending on the circumstances.
While you may want the best for your child, custody issues are a complex part of a divorce. Having an experienced divorce lawyer is critical to ensuring that your interests in the custody battle are well represented.
Divorce and Spousal Support
In California, spousal support, or alimony, is awarded when a significant discrepancy exists between the spouse’s income. If one spouse earns less than the other, they may be entitled to receive alimony as part of the divorce settlement. Spousal support is available for low-income and high-net-worth divorces.
If you request spousal support, the judge could order temporary support while your divorce case is pending. This allows you to maintain your living standards before the divorce is finalized. The court could order permanent spousal support based on the following:
- The financial circumstances of each party in the divorce.
- The ability of the paying spouse to provide the amount ordered.
- The needs of each party.
- The standard of living enjoyed by each party during the marriage.
The court will mostly determine whether you deserve spousal support and the amount you will receive. Some of the factors that will determine the duration and amount of support you will receive include:
- Whether or not you contributed to your spouse’s training, education, and career position.
- Whether or not you can maintain the standard of living you enjoyed in your marriage. The court wants to ensure that each spouse can continue living within the same means they enjoy.
- The separate property that you and your spouse own. Separate property is not divided during a divorce. Therefore, the amount you retain in separate property may dictate your ability to receive a permanent order of spousal support after finalizing the divorce proceedings.
- The duration of the marriage. The court is more likely to award alimony if your union lasted more than ten years. Others may receive custody until you can obtain a job or relevant training to support yourself.
- Your health. If you are battling disease conditions that prevent you from working and supporting yourself in a divorce, the court will award you permanent alimony.
The best way to ensure that your rights and interests in alimony are protected is by consulting with a knowledgeable divorce lawyer.
Find a Competent Divorce Attorney Near Me
Divorce is a complicated emotional, financial, and legal process. In addition to breaking a relationship and physical separation, property division and children's rights in marriage are critical to divorce. Property division could be complicated, especially in unions where one person has a high net worth. When you are undergoing a divorce, you must understand your legal and financial rights. This ensures that your interests and those of your children are protected.
California divorce laws are diverse and complex. Therefore, hiring and retaining a knowledgeable divorce attorney throughout your divorce process is critical. Your attorney will ensure that all your spouse’s assets are documented for a fair division. Additionally, they will guide you through the divorce negotiations for a favorable outcome.
At Los Angeles Divorce Lawyer, we offer expert legal guidance and representation for all our clients undergoing a divorce in Los Angeles, CA. Contact us today at 310-695-5212 for a consultation and much-needed legal insight.
