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Dividing an Art Collection After Your Divorce

For couples going through a Santa Clara divorce, an art collection can be one of the most difficult assets to divide. Fine art can have both sentimental and financial value, and deciding who gets what piece can exacerbate the already tense process of ending a marriage.

As soon as you make the decision to divorce, you’ll need to create a detailed inventory list for your art collection. Your inventory list should include full descriptions of the art purchased before the marriage, art purchased during the marriage, and any art that was sold during the marriage. You should also take photos of any pieces currently in your collection.

Art is considered separate property if it was purchased before the marriage or received as a gift to just one person. If it was purchased during the marriage, it is protected by California’s community property laws regardless of who first suggested the purchase. The proceeds from art sold during the marriage would also fall under California’s community property laws.

If your collection includes several pieces, hiring an appraiser will be necessary. Appraisers don’t always agree on the value of a piece, however. This can create conflict if you and your spouse insist on hiring two separate appraisers. You may need to split the difference when assigning a dollar value to each item.

When dividing the collection, you’ll need to make sure you and your spouse receive assets of comparable value. If you’re a passionate collector and he or she is not, you may be able to trade your interest in the marital home, vehicles, furniture, or other assets in exchange for a larger portion of the art collection. If you have children together, you could negotiate an arrangement that keeps particularly meaningful items set aside for them to enjoy.

Although working things out between the two of you can be complicated, this is preferable to letting a judge decide the fate of a treasured art collection. If a judge does need to be involved, it’s likely that he or she might order you to sell the entire collection and split the proceeds down the middle.

If you have questions about the distribution of art and other assets during a California divorce, please contact a qualified San Jose divorce attorney.

Protecting an Inheritance During a California Divorce

Under California’s community property laws, separate property is defined as any asset that belongs solely to one spouse. This includes items acquired before the marriage and gifts given to one person alone, as well as inheritances.

If you receive an inheritance while you are married and the bequest is made solely to you, the gift is yours alone. If, for example, the bequest was made to you “and your family or kin”, this may open the door for your soon-to-be-ex-spouse to stake a claim.

During a California divorce proceeding, inheritance issues arise when the money is managed in a way that calls into question its status as separate property. For example, if you were to inherit $500,000 and deposit in a joint bank account with your spouse, the inheritance would lose its status as separate property. When assets are commingled, it becomes impossible to identify the original source of the funds. In order for the money to be considered yours alone, it must be held exclusively in your name and kept away from any general household funds.

If your inheritance came in the form of real estate, you may run into problems if you are using the home as your primary residence and have added various improvements to the property. In this case, a judge might rule that the residence is either partially or entirely classified as a marital asset.

Transmutation occurs when you’ve gifted a portion of the inheritance to your spouse and created a change in the legal ownership of the asset. This is almost impossible to do unintentionally, as you are required to provide a written document stating that you intend to have a portion of the inheritance turned into community property or the separate property of your spouse.

A postnuptial agreement can override California’s community property laws regarding the status of an inheritance. As long as both spouses sign the agreement voluntarily and with the necessary legal representation, the court will honor it in the event of a divorce.

If you have questions about how California’s community property laws will affect your divorce settlement, it is best to speak to an experienced San Jose divorce lawyer for advice that is specific to your case.

Am I Eligible for a Summary Dissolution?

If you are seeking a divorce in Santa Clara County, you may want to consider a summary dissolution. Be advised, however, that while a summary dissolution is a quicker, less complicated way to divorce, it is only available to certain couples.

California law allows married couples, domestic partners, and those who began as domestic partners but later married to pursue a summary dissolution if they meet all of the following criteria:

  • You’ve lived in California for the last six months and in the county in which you want to file your summary dissolution for the last three months.
  • You’re in agreement that the marriage or domestic partnership is ending because of irreconcilable differences.
  • You were married or in a domestic partnership for less than five years.
  • You have no children with your spouse or partner.
  • You are not pregnant or expecting children (i.e. through adoption) with your spouse or partner.
  • You don’t own any real estate.
  • You have limited debts.
  • You have limited separate and community property.
  • You both agree to give up the right to spousal support.
  • You and your spouse or partner have no disagreements about how you wish to divide your assets and debts.

For many people, the main appeal of a summary dissolution is that it does not require a court appearance. Unfortunately, you still have to wait six months before your divorce becomes final, even if you meet all of the criteria for obtaining a summary dissolution. This means that while a summary dissolution allows you to skip many of the procedures required in a regular divorce, it does not technically speed up the process.

The purpose of the six-month waiting period is to give couples a chance to reconcile before permanently ending their marriage. If you and your spouse decide that you no longer want to get a divorce, you can stop the summary dissolution at any point in the six-month waiting period by simply filing a Notice of Revocation for Summary Dissolution.

If you are interested in ending your marriage through a summary dissolution, an experienced Bay Area divorce lawyer can explain the process in greater detail.

Why Men Shouldn’t Think Twice About Seeking Alimony

Men are often reluctant to seek alimony during a Santa Clara County divorce because of the potential stigma attached to being supported by a woman, but this is not the time for foolish pride. The law does not take gender into account when determining eligibility for alimony and these payments can be a vital tool for helping you establish your post-divorce life.

According to the Bureau of Labor Statistics, 38.1% of households have a wife who earns more money than her husband. When these couples divorce, there is no reason for the husband not to seek alimony.

Some common reasons men decide to seek alimony in a divorce include:

  • You and your spouse mutually agreed that it would be best if you stayed at home to care for the children and attend to household responsibilities so she could focus fully on her career.
  • You’ve continued to work full time, but have made sacrifices such as relocating or turning down promotion opportunities in order to advance her career.
  • Your own earning potential is limited because of a lack of education and/or medical conditions that make working difficult.

The length of your marriage plays a significant role in how long you are eligible to receive alimony. If your marriage lasted less than ten years, the standard length of time you can receive alimony is one half the length of the marriage. If your marriage lasted ten years or more, it is considered a marriage of long duration under California law and not subject to automatic time limits. However, if you were to remarry or your ex’s income were to drastically drop during this time, alimony payments could end sooner.

San Jose divorce lawyers often find that many high earning women would prefer to make a larger settlement payment in lieu of ongoing alimony payments. If you are awarded alimony and your ex-wife refuses to make the payments, you can enforce the action through a contempt proceeding or earnings assignment order. If necessary, the court even has the authority to jail those who are deliberately refusing to pay.

Will My Child’s Wishes Be Considered When Determining Custody?

Parents who are seeking a San Jose divorce are often under the misconception that a child is allowed to decide where he or she wants to live. Ultimately, the judge must decide custody based on what is in the child’s best interests. There is no guarantee that the judge’s findings will match the child’s personal preferences.

California does not state any specific age at which a child’s wishes must be considered, since children develop at different rates. However, children aged fourteen and older must be given the opportunity to address the court regarding custody and visitation. Younger children may be allowed to address the court if the judge permits it.

A child’s wishes regarding custody and visitation will be considered if the child is determined to have formed an intelligent, reasonable opinion on the issue. The judge will not honor the child’s wishes if there is reason to believe the child simply wants to live with the more lenient and permissive parent. The judge will also refuse to honor the child’s request if there is reason to believe that the child has been coached or manipulated into requesting a specific custody and visitation arrangement.

In addition to the child’s personal preference, the court will consider the following:

  • Any relevant health and safety concerns, such as previous allegations of child abuse or mental health conditions that would limit a parent’s ability to safely care for the child
  • The importance of stability in the child’s life, including protecting emotional bonds with a primary caretaker and the value of keeping siblings together
  • Which parent is most likely to encourage a continued relationship between the child and his or her other parent

If both parents agree to it, California law generally favors joint legal and physical custody after a divorce. When sole custody is awarded, the court has the authority to require visitation with the child’s other parent even if the child has expressed a preference to avoid visitation entirely. In this circumstance, the court may also require counseling and other remedial measures intended to repair the relationship between the child and the parent he or she wishes to no longer visit.

In any contested child custody case, it is strongly recommended that you seek the assistance of a qualified San Jose family law attorney.

Thinking of Filing for Divorce? Here’s What You Need to Do

The decision to file for a Santa Clara divorce should be carefully considered. The worst thing you can do for yourself is to angrily demand a divorce before you’ve done any of the necessary prep work.

When it comes to filing for divorce, knowledge is power. To take full advantage of California’s community property laws, you need to understand your income, assets, and debts. You should gather copies of tax returns for at least the past three years as well as insurance documents, loan documents, and employee benefit information. If you own valuables such as jewelry, art, or antique collectibles, take photos of each item and/or move them to a safe location to prevent your spouse from selling them as a form of revenge. Track your expenses and develop a realistic budget for your life as a single person. Pull a copy of your credit report to make sure all of the information is accurate and that your spouse has not opened any accounts that you are unaware of.

It’s natural to have an emotional attachment to the family home, but think carefully about whether or not it’s in your best interests to fight to keep this asset. If your budget was based on having two incomes, it may be difficult to keep up with a mortgage, taxes, maintenance, and insurance on your salary alone. Downsizing may be the best choice to ensure a secure financial future.

If you’re debating about the timing of the divorce, keep in mind that filing when you’re earning less money generally results in a more favorable settlement. Having a recent decrease in your earnings may lower your liability for future alimony and child support payments.

To protect your privacy, change your passwords and security questions on your email, social networking accounts, and any individual bank accounts that you might have. Avoid using any information for these accounts that would be easy for your spouse to guess, such a password using your child’s birthday and the name of a favorite pet or a security question regarding your mother’s maiden name.

Before you sit down with your spouse and ask for a divorce, you’ll want to meet with an experienced San Jose divorce attorney to discuss any concerns you have regarding issues such as the division of assets, child custody, child support, or spousal support. A skilled attorney can advocate for your interests throughout the divorce process.

Are Child Support Payments Needed When Parents Have Joint Custody?

After a Santa Clara County divorce , some parents push for joint custody thinking that this will ensure they do not have to make child support payments. However, this is not always the case.

First, it is important to realize that there are many interpretations of joint custody. Depending upon parental work schedules and the travel time between homes, it may not be physically possible for the child to be in the care of each parent exactly 50% of the time. A 60/40 split is fairly common with joint custody arrangements. However, depending upon the incomes of each parent, child support may be necessary even if the parents have a precise 50/50 split in the amount of time they are caring for the child.

Child support in California is calculated according the formula CS = K[HN - (H%)(TN)].

The components of the formula are as follows:

  • CS = Child support amount
  • K = Amount of both parents’ income to be allocated for child support
  • HN = High earner’s net monthly disposable income
  • H% = Approximate percentage of time that the high earner has primary physical responsibility for the children
  • TN = Total net monthly disposable income of both parties

If the high earning parent’s net monthly disposable income is significantly greater than the lower earning parent’s net monthly disposable income, child support may be ordered even if the parents are each physically caring for the child fifty percent of the time.

Deductions may also come into play when determining if child support would be ordered in a joint custody situation. Net disposable income is defined as actual gross income minus allowable expenses, including state and federal income tax liability, deductions for mandatory union dues and retirement benefits required as a condition of employment, deductions for health insurance for the parent and any child the parent is obligated to provide coverage for, and child support or spousal support being paid by court order for someone who is not the subject of the current child support order. Job related expenses are allowed as deductions under the court’s discretion.

Even if child support is not ordered, parents with joint custody may be required to share in the expense of employment-related child care costs or uninsured medical costs for the child. An experienced San Jose child support attorney can explain this in greater detail.

Back to School Tips for Divorced Parents

After a Santa Clara divorce, back to school season can be particularly complicated. Juggling a school schedule with custody and visitation agreements requires careful planning on the part of both custodial and noncustodial parents.

Before the year starts, consider sitting down with your ex to discuss how you’d like to divide supervisory responsibilities for school projects and special events. Dividing the labor based on your individual strengths makes more sense than forcing the parent who hates science to help with the science fair project and having the parent with no ear for foreign languages practice Spanish vocabulary words.

Custodial parents usually pay for school supplies and back to school wardrobes, unless the couple has worked out an agreement that says otherwise. However, a custodial parent is well within his or her rights to ask for help paying for expenses that are out of the ordinary — such as the cost of a special school field trip or a private algebra tutor for a child who is struggling with math.

If a noncustodial parent’s budget allows it, buying duplicates of basic school supplies like crayons, markers, glue, index cards, and notebook paper will make sure the child has access to learning materials regardless of the custody and visitation schedule. Noncustodial parents may want to set up a corner to use as a study area or keep everything in a box so it can be pulled out as needed.

California law states that a noncustodial parent can’t be denied access to records and information about his or her minor child based solely on custody status alone. This includes access to medical, dental, and school records. If you are a noncustodial parent who doesn’t have the greatest relationship with your ex, it may be best to simply request that the school provide separate, duplicate notifications regarding your child’s academic progress, participation in school activities, and any other relevant issues.

To help make sure everyone is on the same page, create a calendar that lists important school events as well as your custody and visitation schedule. Make four copies: one calendar for each parent’s house, one for the child’s backpack, and one to provide the teacher.

Remember that schools assume that both parents have an equal right to pick up and drop off the child unless they are told otherwise. If you have sole legal custody and do not want your ex picking up your child from school, make sure you provide the school with a copy of your custody order and a written request that your child only be allowed to leave school with you. Your San Jose divorce lawyer can provide assistance with this, if needed.

Unmarried Fathers: What You Need to Know

In recent years, San Jose family law attorneys have seen a dramatic increase in child custody and visitation cases involving unmarried fathers.

If a couple is married when a baby is born, it is automatically assumed that the husband is the father of the child. For unmarried couples, however, there is no assumption of paternity. To establish paternity, the father’s name can be listed on the birth certificate or the father can sign a Voluntary Declaration of Paternity form. If the child’s mother denies the paternity claim, a DNA test can be used to establish paternity.

Once paternity has been established, an unmarried father has the same rights as a father who was married to the child’s mother and later divorced. Custody and visitation will be determined based on your individual circumstances. Some fathers choose to give the mother full custody and seek periodic visitation rights, while others opt to ask the court for joint or shared custody. No matter what option you decide, you’ll be asked to establish a parenting plan that outlines the roles and responsibilities of both you and your ex.

If paternity has been established, the mother of the child is not allowed to place the child up for adoption without your consent. This includes efforts to have her spouse formally adopt the child. The court is only allowed to terminate your parental rights if you have failed to fulfill your parental duties or been found guilty of child abuse.

In addition to granting the right to custody or visitation, establishing paternity creates an obligation for an unmarried father to pay child support. However, visitation and child support are considered two separate issues. Your child’s mother can not legally prevent you from exercising court-ordered visitation rights even if you’ve fallen behind on your child support payments. You are also not allowed to refuse to pay your child support because you’ve been denied the right to see your child.

Because the court has been slow to recognize the problems faced by unmarried fathers, it is important to have an experienced San Jose family law attorney advocating for your needs. A skilled attorney can help you better understand your options for maintaining a relationship with your child.

What Happens After You’ve Been Served with a Petition for Divorce?

If you’ve been served with a Petition for a San Jose divorce, you have four options.

  1. True Default: If you choose to do nothing, your spouse will most likely be given everything that he or she has requested in the Petition. This is called a true default because you are giving up your right to participate in the process. The judge will make all decisions regarding issues such as the division of assets, child custody, and the payment of child support and/or spousal support based solely on the information your spouse has provided. Most people do not choose a true default because they want to actively participate in the divorce process.
  2. Default: A default occurs when you are not filing a response, but you have created a written, notarized agreement with your spouse taking care of all the issues relevant to your case. You are considered to be defaulting because you have not filed a response, but your notarized agreement allows you to still have a say in the outcome of your case.
  3. Uncontested: In an uncontested divorce, you are filing a response to the Petition. However, you and your spouse are not disagreeing about any issues relevant to your case. This is what most of us refer to as a “friendly” or “amicable” divorce.
  4. Contested: If you disagree with the terms your spouse has listed in the petition, you can contest them by filing your own response outlining your terms. The court will then make the final decision regarding the disputed issues.

It is important to consider that none of your options will prevent your spouse from being granted a divorce. Since California is a no-fault divorce state, anyone who wants a divorce will be granted one regardless of whether or not their spouse wants to attempt to save the marriage.

You only have thirty days after being served the Petition to file your response, so it’s vital that you consult with an experienced San Jose divorce attorney as soon as possible to discuss all of your options. Having a skilled attorney on your side will ensure that your interests are protected throughout the divorce process.