Tuesday, March 15, 2011

WILL OUR DIVORCE COST LESS IF WE HAVE AGREED TO DIVORCE TERMS?

Here is a question which the inquirer agreed may be publicly revealed, and my answer to the question:

QUESTION: If my wife and I have agreed to divorce terms, will our divorce cost us less? We live in California. My wife and I have been married less than 10 years. We do not have children, and have separate property. In addition, we have no joint bank accounts. Does this equate to a less expensive divorce? Also, is this a straight forward process?

ANSWER: What you propose may be less expensive, but may also be less fair.

Merely because a bank account is in one party's name doesn't make the funds in that account the separate property of that party.

Income earned by each party during the marriage is community property (unless a valid and enforceable Prenuptial Agreement states otherwise).

Merely because you don't have joint bank accounts doesn't mean that funds in your or your wife's bank accounts are separate property.

Separate property is property owned before the marriage or acquired by way of gift, inheritance or distribution from a 3rd party trust.

To the extent you or your wife had separate property, and kept separate property separate, i.e., did not commingle it with community property (such as earnings), it can be confirmed as separate property. If commingled, it becomes problematic, requiring tracing to determine whether the monies that remain in the account are separate property or community property based on what was used, when and for what, and if can't be adequately demonstrated that the funds that remain are separate property, those funds could be held to be community property.

Unfortunately, few divorces involve straightforward processes. Each of you is required to provide to the other a Preliminary Declaration of Disclosure and a Final Declaration of Disclosure, updating the information to ensure that when the case is resolved, each party has current updated information to enable the case to be resolved on the real facts. A divorce can be set aside (within certain time limits) if it can be demonstrated that a party defrauded the other or committed perjury in his or her Declaration of Disclosure.

You didn't address whether both parties earn substantially the same income. If they don't, one party may be entitled to receive Spoual Support (alimony) from the other.

The best way to resolve a case where the parties don't know or understand California law regarding Dissolution of Marriage is for each party to retain an experienced Family Law Attorney to advise and represent the party to seek and obtain a fair result in the case.

This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net

2 comments:

Lena said...

I believe divorce is a very sensitive issue and it is always wise to take professional divorce advice. Although these things are materialistic but are detrimental to how to recover emotionally after the divorce

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