Does California Allow for Fault-Based Divorce?
Like many other states, California only allows spouses to file for divorce on “no-fault” grounds. The traditional fault-based grounds for divorce (such as adultery, abandonment, and domestic abuse) are no longer available. As explained by the California Courts:
“California is a ‘no fault’ divorce state, which means that the spouse or domestic partner that is asking for the divorce does not have to prove that the other spouse or domestic partner did something wrong. To get a no fault divorce, [a] spouse or domestic partner has to state that the couple cannot get along. Legally, this is called ‘irreconcilable differences.’”
As a spouse in California, what constitutes “irreconcilable differences” is up to you. If you are dissatisfied with your marriage and ready to end it, then you have grounds to file for divorce. Furthermore, even if your spouse wants to remain married, disagreeing over whether to get divorced in itself reflects the requisite irreconcilability to file for divorce in California.
Learn more about fault-based divorce:
How Do Adultery and Other Forms of “Marital Fault” Impact California Divorces?
How Ashley Madison Data Breach Impacts Divorces
Preparing for Your Divorce Case Evaluation
Proactive ways to handle the holidays during a divorce
How to Protect Your California Business With a Premarital Agreement
What You Need to Know about Same-Sex Divorce and Business Ownership
Why Doesn’t California Allow for Fault-Based Divorce?
If your spouse has cheated on you or treated you cruelly, it may initially seem strange – and perhaps unfair – that you cannot file for divorce on fault-based grounds. However, the reality is that California’s no-fault divorce statute is designed to make it easier to get divorced regardless of your personal and family circumstances.
The issue with California’s old fault-based divorce law was that it required proof of fault before a divorce could be granted. If you filed for divorce on the grounds of adultery, you would have to prove it, meaning that you would need evidence of your spouse’s affair and he or she would have the opportunity to challenge your divorce filing.
Both of these factors had the potential to present substantial obstacles for a spouse seeking to end an unfaithful marriage. Under the current no-fault statute, no evidence is required, and your spouse cannot seek to prolong your marriage by challenging your grounds for divorce.
How Do Adultery and Other Forms of “Marital Fault” Impact California Divorces?
While California does not allow for the filing of a divorce on fault-based grounds, marital fault can still impact the divorce process in certain ways.
For example, if your spouse used credit to fund his or her affair, you may be entitled to recoup your share of these funds out of your spouse’s overall share of community property. Evidence of adultery, abandonment, or domestic violence can impact the determination of child custody as well, as the sole focus in California custody matters is on protecting the best interests of the children involved.
So, if your spouse has committed marital fault, should you raise the issue during your divorce? It is certainly something that you should discuss with your divorce attorney, and your attorney will be able to help you choose the best path forward. While presenting evidence of marital fault can be beneficial under appropriate circumstances, it also has the potential to engender significant hostility, and this can increase the cost of the divorce process (perhaps significantly as well).
As a result, you and your attorney should discuss all the potential ramifications – both positive and negative – of raising the issue of marital fault while also giving due consideration to the potential emotional impacts for you and your children. Once you have a clear picture of all of the relevant considerations, you can then make an informed decision about if (and how) to raise your spouse’s marital fault during your divorce.
How Ashley Madison Data Breach Impacts Divorces
California is a No-Fault State for Divorce
While California is a no-fault state when it comes to grounds for filing for divorce, in many marriages there is a specific reason that one spouse chooses to leave the other. California’s no-fault divorce law was enacted in 1969, and its intent was to make it easier for dissatisfied spouses and spouses in abusive relationships to leave their partners without having to provide any specific reasons for seeking a divorce.
Of course, this doesn’t mean that all spouses seeking divorce merely have “irreconcilable difference.” Often, there are reasons for divorce beyond simply being unable to come to terms. Among the reasons that spouses file for divorce, infidelity is consistently at the top of the list. If you are seeking (or if your spouse is seeking) to file for divorce after cheating, our San Diego divorce lawyers are here to help.
Reasons to Get a Divorce: The Ashley Madison Data Breach
In August 2015, hackers who stole user information from the online “dating” side, AshleyMadison.com made good on their threat to make the users’ information publicly available online. We put, “dating,” in quotes because the site’s tagline is: “Life is Short. Have an Affair.” The site even goes so far as to “guarantee you will find the perfect affair partner.”
The hackers released log-in and account information for approximately 32 million of the site’s 40 million users. They also published details of payment transactions processed through the site dating all the way back to 2008. These details include names, street addresses, and email addresses of the individuals involved in meetings arranged through AshleyMadison.com.
Was Your Spouse Using AshleyMadison.com?
If your spouse was having affairs through AshleyMadison.com and you are now considering filing for divorce, our lawyers can help you weigh your options. Whether you were already contemplating a divorce for other reasons or are seeking to file based solely on your spouse’s infidelity, there are several factors to consider and important planning steps you need to take before you file. If you live in the San Diego area and are seeking to divorce a cheating husband or wife, we can help you every step of the way.
Were You Using AshleyMadison.com?
If you were using AshleyMadison.com and your personal information was included in the data breach, you may either be:
- Facing the prospect of your spouse filing for divorce; or
- Considering filing for divorce yourself.
In either case, we can help you protect your assets and fight for the custody, property, and other rights you desire to retain after your marriage is over. While California’s no-fault divorce law prevents cheating from directly affect the outcome of your divorce, your spouse will no doubt seek to use your infidelity against you. Our divorce lawyers can make sure that your rights are protected.
Preparing for Your Divorce Case Evaluation
For many people, going through a divorce is their first experience with hiring an attorney. As a divorce attorney, I can tell you from experience that many people are nervous about going to their initial case evaluation. I can also tell you that you have absolutely nothing to be nervous about. You are hiring an attorney to help you, and the attorney should be worried about meeting your expectations – not the other way around.
Nonetheless, if you are feeling nervous – or just want to be prepared – there are a number of things you can do to get ready for your initial case evaluation with your divorce lawyer.
Documents You Will Need for Your California Divorce
You will need to collect numerous documents to provide to your attorney during your divorce. While you won’t necessarily need all of these for your initial case evaluation, it is a good idea to start the process of collecting the documents you will need sooner rather than later. This list is not exhaustive (and some of these may not apply to you), but this should at least give you an idea of the documents you will need to track down:
Real Estate and Items of Personal Property
- The deed to your primary residence and any other properties
- Mortgage documents, refinancing documents, and any other papers related to your home’s (or homes’) financing
- Your recent mortgage statements showing the outstanding balance and interest rate
- Vehicle titles and registrations
- Purchase and loan documents for your vehicles
- A list of any other items of value belonging to you and/or your spouse
Bank, Investment, and Retirement Accounts
- Current statements for your checking, savings, and investment accounts
- Past statements showing payments made toward mortgages, car loans, and other significant purchases
- Retirement account statements
- Documents relating to any loans or distributions from retirement accounts
Privately-Owned Businesses
- Corporation, partnership, or limited liability company (LLC) formation documents, including articles of incorporation or organization, shareholder agreements, operating agreements, and other governing documents
- Information about the business’s owners
- The source of funds for the business’s initial capitalization
- Profit and loss statements
Income and Tax Returns
- Personal tax returns and any supporting documentation
- Business tax returns (if filed separately)
Insurance and Expenses
- Copies of health, life, and homeowner’s insurance policies
- Recent utility bills
- Credit card statements
- Your monthly budget
Questions Your Attorney May Ask You
In addition to collecting the documentation that will be needed for purposes of your property distribution and calculating alimony and child support, your divorce attorney will need to obtain other information from you as well. As a result, it will generally be helpful if you are prepared to answer questions about things like:
- The date and place you were married
- You and your spouse’s employment history
- Information about your children (if any)
- Any history of substance abuse, domestic violence, or other issues
- Any physical or mental health issues
- You and your spouse’s lifestyle and spending habits
- Your plans for after your divorce
Again, this is certainly not a complete list of the questions your attorney will ask you. But, it should help get you thinking about the types of topics you will be discussing during your initial case evaluation.
Proactive ways to handle the holidays during a divorce
The holiday season is difficult for many people, but for those who are going through a divorce can find it excruciating. If you don’t have children you may be feeling a little lost. After all, holidays are for families to come together, not be apart. If you do have children you may be trying to decide how to divide their time between your home and your ex’s so that they can spend the holidays with both of you.
While you may feel that your situation is not ideal, adjusting to life without your spouse is just a part of living with divorce. Often things will even out and become easier as you grow accustomed to your new normal. However, when the change is still fresh, you may find this advice helpful in managing the holidays while going through a divorce.
Don’t put the children in the middle of your adult issues – stay flexible.
You and your ex are getting a divorce, your children are not. Divorce is often particularly hard on children and divorce during the holidays is even harder. Planning and flexibility are key to making things as easy for them as possible. If you live near you ex you can let the children spend Christmas Eve with one of you, then Christmas Day with the other. If you are not close, you might want to alternate Thanksgiving and Christmas each year. If both parents are friends or are comfortable being around each other they may even opt to have Christmas together with the children.
Give your children a voice in part of the planning.
Don’t wait until the last minute to make plans for holiday visitation. Sometimes your divorce attorney can include provisions for holiday visitation in the divorce agreement. Whether you have done this or not, it is wise to start the conversation with your children early, at least a month before Thanksgiving. Include them in the planning as much as possible. Make sure they know the holiday schedule well ahead of time so they can prepare. Most importantly, don’t make them feel guilty for visiting their other parent. Engage in conversations with them, planning and anticipating. Let them be excited about spending time with that parent regardless of how you may feel about him or her.
Create new traditions.
As you approach the holidays you may realize that some of your holiday traditions no longer work. Don’t let it get to you; move forward by making new traditions. If you once spent Christmas Even with your ex’s family and now suddenly find yourself at home alone, find another way to fill that space. Volunteer at a soup kitchen or invite a special group of friends over for dinner. As you move forward in your new life there will be changes, but they don’t all have to be negative. Now is the time to begin making new memories and new traditions.
Make plans with other single people.
If you don’t have children or if your children are visiting their other parent, you may not relish the thought of sitting home alone while it seems everyone else is out having fun. Grab a few of your single friends and plan to do something together. If you don’t have any single friends, there are many single parent support groups that are very good. A local counseling center or even your divorce attorney may be able to help you find one in your area so you can connect with others who are going through the same things you are. It can be very healing.
Give yourself permission to “take a moment” and be sad – but don’t stay there.
Chances are, you will most likely be a little sad; that is a given. Self-care during a divorce is so important yet many gloss right over it and surrender to the depression and loneliness. Don’t feel guilty about it and don’t try to power through it or deny yourself that time to feel it. Go ahead, give yourself permission to be a little sad, but don’t stay there. Allow yourself some time to be sad, 10 minutes or a half hour, then move on and find something else to do. If you stay and ruminate on being sad or lonely you will do nothing but open yourself up or depression and despair. Fight against those feelings and do something productive. You have the power to make your holiday season good, even wonderful.
How to Protect Your California Business With a Premarital Agreement
According to the American Small Business Administration, 90 percent of all businesses are family owned. While divorce rates are actually dwindling far below the mythical quoted number of 50 percent, many family businesses are placed in jeopardy every year as a consequence of divorce. In your attorney search, be clear that you are looking for a divorce lawyer or family law attorney to assist you with divorce papers (premarital agreement).
Since California is a “Community Property” state, anything earned during a marriage can be counted as shared assets during a divorce. Even businesses started before marriage can have their earnings or increase in assets potentially divided with the spouse, according to how much the business grew during the marriage.
Since these laws can create a sticky situation, many business owners want to know “What are my rights when it comes to divorce and my business?” To help protect them either before or during divorce, here are some steps commonly taken by business owners:
Arrange a Premarital Agreement
Called a “prenuptial” agreement in many states, these documents work just like a partnership contract for a business formation would. Both parties get to state what they own and how assets will be divided during marriage. According to Inc. magazine, a sound premarital agreement is:
●Made well before the wedding day while both parties are of sound mind and not under coercion
●Signed in front of witnesses or a notary
●Created with full disclosure of assets, holdings, and intended financial moves
●Not “unconscionable” or completely unfair to one party beyond reason
Failing to meet these requirements could place the premarital agreement under suspicion or invalidate it. Parties can protect the agreement further by creating a clause that upholds the agreement even if certain sections are made invalid by one or both of the spouses’ actions.
In your attorney search, be clear you need a contract expert to evaluate the premarital agreement. This can help prevent vague language or stipulations that are difficult to uphold. Post-marital agreements can also be made, but these documents usually do not hold as much water because the stakes are different once people are married.
Structure Your Business to Be Insulated from Internal Conflict
Much like a premarital agreement, the business charter can reflect the company owner or owners’ assets in the future should the situation become rocky. Forming an LLC or a corporation to make the business holdings separate from personal holdings is one of the easiest ways to protect yourself. A partnership agreement can also take into account dispute resolution and have provisions for members being able to buy out owned shares to protect the rest of the business.
Keep in mind that just like premarital agreements, the partnership agreement can be invalidated if partners do not act according to the letter of the document. Furthermore, if assets like company cars are purchased out of personal accounts, the line between corporate and community assets becomes blurred and the charter may be discredited based on such evidence.
Charters should be reviewed by a contract law expert, and business owners should exercise diligence to track expenses and keep personal and professional boundaries separate.
Reach an Agreement
Even if a business falls squarely under community assets, there are still steps an owner can take to prevent it from unraveling. While California law generally splits joint assets down the middle, it does not obligate spouses to split every asset in such a way. In other words, someone can use a tradeoff to pay the equivalent value of the business owed without having to parcel up the business or sell the business to a third party altogether.
Entrepreneur magazine recommends raising needed capital by selling minority stakes through employee stock ownership plans. Alternatively, the owner could form a trust to prevent business assets from entering the table during divorce proceedings.
Another recommendation they make is not placing all of your earnings back into the business where they will be harder to extricate. Instead, business owners should always pay themselves a “competitive” salary to simplify matters.
What Happens To the Family Business In A Divorce? An Interview with SuperLawyers.com
A divorce is a stressful time for any couple or family, but in the event that both parties own a portion of the same business, many questions regarding what actually happens to the family business in a divorce will inevitably arise. These questions may include:
- Who gets the business?
- What are the circumstances of ownership?
- How can ownership be negotiated for (or against) myself?
The answers to these questions would ideally be reached peacefully, but the unfortunate reality is that if both parties are unwilling to negotiate the terms of ownership, the ensuing legal battle could be prolonged for a lengthy period of time and result in a loss of productivity, emotional distress, and hefty legal fees.
Our founding attorney, Richard M. Renkin, recently sat with Trevor Kupfer of Super Lawyers to discuss the nature of family businesses during divorce proceedings. Thanks to Richard’s 30+ years of experience in divorce proceedings and family law, he was able to provide great insight as to how the state of the family business after a divorce most often comes down to just one thing—a willingness to cooperate.
“These things don’t have to be contentious if everyone acts in good faith and has a reasonable expectation. Everything is negotiable. Problems arise when someone insists on winning, or is out to hurt the other party.”
Richard goes on to discuss other aspects of the state of a family’s business following a divorce, including how careful pre-divorce planning can help make all the difference in determining next steps. To read the full text of Richard’s Super Lawyers interview, please visit their blog here.
Renkin & Associates Hosts Ribbon Cutting for Encinitas Chamber of Commerce
Our firm recently hosted a ribbon cutting ceremony for the Encinitas Chamber of Commerce. We are proud of our affiliation with the Encinitas Chamber of Commerce, and we are excited to partner with the organization as well as other leaders in the local business community.
About the Encinitas Chamber of Commerce
The Encinitas Chamber of Commerce has been supporting local businesses for more than 50 years. The chamber hosts regular networking events and business classes, and it offers a variety of unique opportunities for local business owners to connect with one another while also promoting their businesses to the local community. As discussed on the chamber’s website, it also helps local businesses with “legislative issues, licensing concerns, and compliance requirements,” with the goal of “advocat[ing] and promot[ing] a healthy and prosperous business environment [that] improves and preserves the quality of life in the Encinitas community.”
About Encinitas, California
Encinitas is a coastal municipality in the North County area of San Diego County. Situated between Carlsbad to the north and Solana Beach to the south, it is just a short drive from downtown San Diego. As described by the City of Encinitas:
“Located along six miles of Pacific coastline in northern San Diego County, the city of Encinitas offers a unique blend of old-world charm and sophistication, and new-world culture. Incorporated in 1986, the city brought together the communities of New Encinitas, Old Encinitas, Cardiff-by-the-Sea, Olivenhain and Leucadia to create a single city rich in history and steeped in tradition.”
With an estimated population of 60,000, Encinitas also plays host to countless visitors every year. While the city’s population has grown slightly since 2000, officials anticipate that the local population will exceed 68,000 by 2020.
Other notable statistics about Encinitas include:
- Age Distribution: The majority of Encinitas residents are between the ages of 20 and 64, with roughly equal numbers of residents in the age groups 20-to-44 and 45-to-64.
- Income Distribution: More than two-thirds of Encinitas residents (68 percent) earn more than $50,000 per year. Nearly one-third (30 percent) make between $100,000 and $200,000, and 14 percent earn more than $200,000 annually. More than half of all Encinitas households (56 percent) are above the Area Median Income for San Diego County.
- Areas of Employment: While Encinitas’s employment figures are largely comparable to those of San Diego County as a whole, the city has above-average numbers of residents in finance, insurance, management, the sciences, and other professions.
- Home Values: The median home value in Encinitas is approximately $700,000. As you might expect, home values are highest along the Pacific Coast and the city’s eastern edge. The vast majority of homes in the area were built between 1970 and 1989, with very little new home construction in the past decade. Most homes in Encinitas are owner-occupied.
Renkin Law Wins San Diego Top Attorney Award
It was recently announced that Richard Renkin of Renkin & Associates was awarded the top attorney award for 2011. According to Richard, “This is truly an honor to be awarded by my peers in my chosen profession.”
Richard has been handling Family Law cases for over 24 years includingfinancial issues, child custody, child support issues and domestic violence cases as well as divorce litigation. Additionally, he has tackled high-end financail cases resulting in postive outcomes for his clients.
The process to become a San Diego Top Attorney is extensive. First, he must be nominated by a peer. Once nominated and oncethe semi-finalists have been carefuly selected, his attorney peers vote for the candidates.
Richard has an extensive background in real estate andbuiness as well in civil litigation.This experience has enchanced his family practice. Beginning in 1991, he began his practice as a sole practitioner with the passion and the necessary focus of helping many people through some of the most difficult times in their lives.
Some of his accolades include being a distingusihed member of the California State Bar Association, the San Diego County Bar Association, a member of the Certified Family Law Section of the SDCBA, Settlement Congference Judge Pro Tem for the San Diego Superior Court as well as Judge Pro Temfor the Small Claims Division of the San Diego Superior Court.
On a personal level, he has been married to Paula Renkin for 28 years. Together, they have two children, Allyson and Robert and two grandchildren, Taylor and Victor. In his spare time, he is an avid golfer and racquetball player. In his own words, he states he “uses exercise to developand maintain his patience, clarity and focus.
Having served as president of the Downtown Lions Club from 2010 to 2011, he is now the past president and assistant chair of the Welfare Foundation for the Downtown Lions Club. Additionally, he is on the board of directors for Kid’s Turn and is currently teaching Community Property at Thomas Jefferson School of Law. Furthermore, he has been an umpire and umpire-in-chief in Little League, president and member of the Men’s Club for Congregation Beth Israel and fundraiser for Hannah’s House.
Richard M. Renkin posts San Diego Family Resource Guide
Nearly half the nation’s marriages are disrupted by separation or divorce prior to the 20th anniversary, and almost nine out of 10 separations become divorces within five years. These federal government figures are from the National Center for Health Statistics.
There may be any number of reasons for the volume of unhappy endings. But there is one virtually universal outcome: divorce can be emotionally painful for every family member. Former spouses often need support during and following this stressful process – a place to turn for information on how to cope.
There are plenty of support groups out there, including in Southern California. For instance, DivorceCare is an organization that holds weekly group meetings nationwide. Some of its local organizations hold support groups for children as well.
Meetings dealing with how to deal with the holiday season are scheduled in the San Diego area and elsewhere in Southern California. No matter the time of the year, such meetings can be helpful because divorce can be an event from which one must recover, not merely accept.
“Longstanding family traditions are upended by separation and divorce, creating the potential for loneliness, depression, and stress,” DivorceCare founder Steve Grissom said. “We’ve designed this material to help restore hope and optimism to Thanksgiving and Christmas, even in the midst of the deep pain. The information is not complicated—it consists of simple steps a person can take to make the holidays manageable and even enjoyable.”
DivorceCare is one of the support groups that one may find at a new online resource. This wellspring of useful information is the San Diego Family Resource Guide, which the San Diego divorce law and family law firm of The Law Office of Renkin & Associates provides.
A One-Stop Shop
The San Diego Family Resource Guide is comprehensive. In addition to support group links, it contains information on apps that parents can use to plan activities. Included among the apps are programs that provide dining options as well as those that have interactive maps for fun places to take the children.
There are plenty of ideas for destinations children might enjoy, such as playgrounds, places to roller skate, and gymnastics spots.
Kid-friendly dining, regular dining, party venues and various entertainment destinations are linked from the online resource guide.
Sometimes children want to volunteer. The San Diego Family Resource Guide is even a place to seek out links to volunteer opportunities for youth.
If museums are your cup of tea, then such places to see are a click away on the resource guide. And so are places that serve pet needs.
What You Need to Know about Same-Sex Divorce and Business Ownership
As a same-sex spouse in California, you are subject to the same divorce laws as opposite-sex spouses. This includes the laws governing division of assets and debts, and these laws treat business interests similarly to other tangible and intangible assets owned by one or both spouses.
Unfortunately, as a business owner in California, or as the gay or lesbian spouse of a business owner in California, this does not get you very far. California’s community property laws are complicated in their own right, and the complexities pile on when you introduce a privately-held business into the divorce process.
That said, if you or your spouse owns a business, this business is likely to be one of the most important assets involved in your divorce. As a result, it is well worth taking the time to learn about some key considerations and options you may have available.
Key Considerations and Options for Distributing a Divorce in a Same-Sex Divorce
For purposes of this article, we will assume that the business is yours. But, if your spouse owns and operates a business, or if you own a business jointly, the following points will be relevant as well:
1. Separate vs. Community Property
When did you start or acquire the business? If you started or acquired the business before you got married, the default rule is that the business would be your “separate property,” and, as such, would not be subject to distribution. On the other hand, if you started your business after you tied the knot, then the business is likely to be considered “community property” regardless of what the company’s ownership documents say.
But, while these are the general rules, there are a number of exceptions. One clear exception is the existence of a prenuptial agreement. If you signed a prenuptial agreement stating that your pre-existing business should be treated as community property (or that any business you start during the marriage will be deemed your separate property), then the terms of your agreement will control over the default rules.
Another exception exists where both spouses contribute – either financially or operationally – to a business owned by one spouse prior to the marriage. In this type of scenario, the joint contributions may be sufficient to transform all or a portion of the business into community property.
2. Business Valuation vs. Valuation of Other Property
If your business qualifies as community property, a key early step in your divorce will be to obtain a business valuation. If your divorce is on the table, you need to know what it is worth so that you can make informed decisions about the most-advantageous approach to dividing your community estate. For many business owners, the ideal scenario is to have a large enough community estate so that they can retain exclusive ownership and control in exchange for giving up rights to other assets (perhaps a second home or investment account). But, if your business represents the majority of the value of your community estate, you will need to evaluate the other options you have available.
3. Retention vs. Sale of the Business
In some cases, divorcing spouses may be forced to choose between retaining or selling their business. In this scenario, it is important to carefully weigh all of the options that are on the table. Are you willing to sell (and, if so, can you find a buyer)? Is it feasible to continue joint ownership or operation of the business after your divorce? These are not easy questions to answer; and, before you make a decision, you should discuss all of your options with an experienced attorney.
Contact the Law Office of Renkin & Associates in North County, San Diego
If you have questions about filing for divorce in California and would like to speak with an attorney, we encourage you to contact us for a confidential initial case evaluation. To request an appointment with North County, San Diego divorce attorney Richard M. Renkin, please call 619-299-7100 or inquire online today.
