How many text messages have you and your spouse
sent one another over the course of your marriage? While text messaging is
still a relatively new means of communication, it has also become one of the
most common forms of communication, and spouses routinely text one another
about matters ranging from mundane day-to-day scheduling to financial concerns
and disputes that carry over from in-person arguments.
So, if you are preparing to go through a divorce, can you use your text message log to your advantage? What if your spouse has been having an affair, or simply talking to his or her friends about matters that are relevant to your impending divorce? Can you introduce these communications in the California divorce court as well?
Text Messages as Evidence in
a California Divorce
As far back as 2012, text messages were a very common form of evidence obtained from smartphones during divorce proceedings, surpassing phone numbers, phone calls, emails, app usage, and GPS histories. Given the continued prevalence of text messaging as a primary means of communication, text messages continue to be a primary form of evidence in divorce proceedings heading into 2020.
However, when it comes to presenting text
messages as evidence in divorce court, not all messages are treated equally;
and, as a result, divorcing spouses must be careful to avoid making assumptions
about what they can use to their advantage during the divorce process.
Text Messages Between
Spouses
We’ll start with the simplest and most-common
issue: text messages between spouses. As a general rule, if you have text
messages from your spouse, you can use these as evidence during your divorce.
Examples of reasons why text messages between spouses can be relevant to
divorce proceedings include (but are not limited to):
To prove admissions of having an
affair, intentionally wasting community assets, attempting tohide assets, or engaging in other behavior
that may negatively impact your spouse’s legal rights during your divorce;
To demonstrate that your spouse
has chosen work, social engagements or personal pursuits over taking
responsibility for his or her share of child rearing responsibilities; and,
To raise questions about the truth
of statements your spouse makes during the divorce process, either by
contradicting them directly or demonstrating that your spouse has had a recent
propensity for misrepresenting information.
Of course, the relevance of any text messages to
your divorce will be highly dependent on the contents of your spouse’s messages
and their relevance within the context of your unique family and financial
circumstances.
Additionally, it is important to keep in mind
that your spouse has an equal right to produce your text messages as well.
While choosing not to bring your spouse’s text messages into the picture may
not prevent him or her from trying to use your text messages against you, if
you bring up your spouse’s text messages, you can be almost certain that he or
she will bring up yours as well. While this is likely to be unavoidable to an
extent, you can mitigate this risk by ensuring that you do not send any more texts that might have unfavorable
consequences foryour divorce.
Text Messages Between
Your Spouse and Third Parties
If you have reason to believe that your spouse has sent messages to a third party that is relevant to your divorce, you may be able to obtain copies of these messages through the formal discovery process. However, as a general rule, spouses should not try to access text messages by logging into their spouses’ phones or using other forensic or “snooping” methods. Before doing anything that could harm your standing in your divorce, you should discuss your legal options with an experienced San Diego divorce attorney.
Request an Appointment with
San Diego Divorce Attorney Richard M. Renkin
If you would like more information about using
your spouse’s text messages during your divorce, please call 619-299-7100 orcontact
us online to request an appointment with San Diego divorce attorney
Richard M. Renkin.
Whether you and your spouse are willing to work
together or you are completely at odds regarding the terms of your divorce, at
some point you will have to take your divorce to court. So, what can you expect
when you are standing in front of the judge?
California divorce judges like to ask questions.
Whether simply confirming that divorcing spouses understand the implications of
their decisions or trying to discern why feuding spouses have been unable to
come to terms, divorce judges ask questions so that they can make their own
informed decisions. After all, getting divorced is a legal matter with
significant implications for everyone involved, and the California courts have
limited resources for hearing disputes between spouses who are unable or
unwilling to come to terms on their own.
What does Do California Judges ask During Divorce Hearings?
The types of questions you are likely to be
asked will be heavily dependent on the nature of the proceeding at which you
are appearing (i.e. whether you are seeking final approval of your settlement
agreement or you are involved in an ongoing contested divorce). With this in
mind, some general examples of questions California judges might ask during a
divorce hearing include:
How long were you married? This is a fairly
standard question that judges will ask for a variety of different reasons, from
simply gathering background information to trying to gain insight into the
issues involved in the spouses’ divorce.
Has the “cooling off” period expired? California has a six-monthwaiting period (or “cooling off”) period between the date that one spouse files for divorce and the date that their
divorce can become final. The judge may want to know how long you and your
spouse have been working to resolve your differences in good faith; or, if you
have negotiated a settlement, the judge may simply need to confirm that he or
she can finalize your divorce.
Do you have children from your current marriage? Understandably, one of any judge’s top concerns during a divorce is
going to be protecting the best interests of any children involved. If you have
children from your current marriage, the judge will want to know that you are
giving due consideration toCalifornia’s
best interests factors.
Do you have children from a prior relationship? Having children from a prior relationship can potentially impact your
divorce in a number of different ways. The judge will want to know about all
children who have the potential to be affected by your divorce so that he or
she can review the terms of your parenting plan and child support payments
accordingly.
Have you consulted California’s Child Support Guidelines? As a general rule, divorcing parents must calculate child support
according toCalifornia’s Child Support Guidelines (the
“Guidelines”). The judge will want to know that you have applied the Guidelines
and not arbitrarily arrived at a child support amount.
What efforts have you undertaken to negotiate a resolution? If you and your spouse are not in agreement on the terms of your
divorce, the judge will want to know why. He or she will also need to assess
whether further negotiations (or mediation) may be fruitful, or whether
judicial intervention may be necessary.
Discuss Your Situation with
San Diego Divorce Lawyer Richard M. Renkin
Getting divorced is an involved process, and it
is important to make informed decisions before taking your divorce in front of
a judge. If you have questions and would like to speak with a San Diego divorce
lawyer in confidence, please call 619-299-7100 orrequest
an appointment online today.
Living with an alcoholic can be challenging, to put it
mildly. Whether your spouse’s alcohol dependence makes day-to-day life
unbearable or he or she is abusive toward you or your children, if you are at
your wit’s end, you do not have to subject yourself to the effects of your
spouse’s condition for the rest of your life.
So, you are thinking about divorcing an alcoholic. What do
you need to know?
California is a “No-Fault” Divorce State
The first thing you should know is that California is a “no-fault” divorce state. This
means that you can choose to get divorced for any reason or no reason at all;
and, if you have a reason, you do not have to state your reason in your divorce
filing. If your spouse’s alcohol dependence has caused you to reach irreconcilable
differences, whatever that means to you, then you have every right to choose to
end your marriage.
You Can Decide How Relevant Your Spouse’s Condition is to Your Divorce
Once you make the decision to file for
divorce, the next decision you need to make is how much of an issue (if
any) you want to make of your spouse’s alcoholism. From a divorce perspective,
there are no benefits to being an alcoholic; so, if you do not raise your
spouse’s condition during your divorce, your spouse almost certainly won’t
raise it either.
Depending on the circumstances of your divorce, there are a
variety of potential ways that your spouse’s alcoholism could be
relevant to the process. Most significantly, if your spouse becomes violent
while under the influence of alcohol, you can seek a protective
order for yourself and your children under California’s Domestic Violence
Prevention Act (DVPA). This is actually a separate proceeding from your
divorce, and you can – and should – seek immediate legal protection if
necessary.
With respect to your divorce specifically, ways your
spouse’s alcoholism can be relevant include:
1. Child Support
If your spouse’s alcohol dependence has resulted in
unemployment or forced him or her into underemployment, then his or her actual
income may not be determinative with regard to child
support. In California, a child support calculation can be based upon one
or both parents’ ability to pay, and this ability is judged based on
each parent’s education, training, job experience, and other qualifications.
2. Spousal Support
The same general principles apply to spousal support (or
“alimony”), although spousal support is calculated differently from child
support under California law. If your spouse should be earning more but isn’t
due to his or her alcoholism, then you may still be able to calculate alimony
based upon his or her earning potential.
Likewise, if your alcoholic spouse is the one who is seeking
alimony in your divorce, alcoholism generally is not justification for a higher
spousal support award. Section 4331 of the California Family Code includes provisions for obtaining a vocational
assessment to determine an unemployed or underemployed spouse’s “ability to
obtain employment that would allow the party to maintain herself or himself at
the marital standard of living” if necessary.
3. Child Custody
When it comes to establishing child custody in a divorce,
all decisions must reflect the “best interests” of the
children involved. California law requires examination of a laundry list of
factors when deciding what is in a child’s best interests, including “the
habitual or continual abuse of alcohol” by either parent. For many spouses of
alcoholics, protecting their children is understandably their top priority; and,
in many cases, this means seeking to limit their children’s time with their
alcoholic parent.
Speak with a North County, San Diego Divorce Lawyer in Confidence
If you would like to discuss your situation with a divorce lawyer, we encourage you to contact us about scheduling a confidential initial case evaluation. To request an appointment with North County, San Diego divorce lawyer and Certified Family Law Specialist Richard M. Renkin, please call 619-299-7100 or inquire online today.
For gay and lesbian couples, the process of getting divorced
is generally the same as it is for opposite-sex husbands and wives. However,
despite some advances in the social acceptance of same-sex marriage, there are
still some unique aspects to same-sex divorce.
Potential Challenges in a Gay or Lesbian Divorce in California
If you are preparing to go through a same-sex divorce in California, here are four issues you may face during the process:
1. Establishing Parental Rights
For opposite-sex couples, the husband is presumed to be the father of a child born during the couple’s marriage. For same-sex couples, no such presumption applies.
If you and your spouse went through the process of legally establishing parentage, then you should not have any issues when it comes to establishing parenting rights in your divorce (aside from the issues that confront all parents regarding the division of parenting time). However, if you are not currently legally recognized as your child’s mother or father, then this is a matter that you will need to address before dealing with custody and visitation in your divorce.
2. Determining the Duration of Your Marriage
In a California divorce, the duration of your marriage is important for two reasons: (i) it is a factor in determining the amount and duration of alimony (if any); and, (ii) the date of marriage establishes the dividing line between “separate” and “community” property. If you got married in California after June 26, 2013 (or in any other state after June 26, 2015), then the date of your marriage should be conclusive.
On the other hand, if you cohabitated for a significant period of time before you were legally able to marry, then there is a possibility that this could raise questions with regard to alimony and the division of community property.
3. Distribution of Retirement Assets
Due to the vestiges of the Defense of Marriage Act (DOMA), same-sex
spouses may need to take certain additional steps in order to divide their
retirement assets during their divorce (if one or both spouses’ retirement
plans qualify as community property). As explained by the IRS:
“If [a retirement plan’s] terms are inconsistent with [United States v.] Windsor or Revenue Ruling 2013-17, a retirement plan must . . . [be] amended to comply with Windsor and Revenue Ruling 2013-17. For example, a plan must be amended if it defines ‘spouse’ by reference to section 3 of DOMA, or only as a person of the opposite sex.”
4. Access to Account Records and Employment Information
Unfortunately, despite the equal protection afforded to same-sex spouses in California in Hollingsworth v. Perry and in the rest of the country in Obergefell v. Hodges, gay and lesbian spouses continue to face challenges in many practical respects.
For example, in some cases same-sex spouses may face difficulties in obtaining access to account records and employment information during their divorce. While companies are now legally-required to treat same-sex spouses equally, it is possible that you could face challenges in obtaining this information if your spouse does not disclose it voluntarily.
Preparing for the Divorce Process
From collecting important legal
documents (such as proof of parentage or an amendment to your retirement plan)
to prioritizing your assets that qualify as community property, there are
several steps involved in preparing for a divorce. For some tips on planning
ahead, you can read: 5 Steps To Prepare
for a Divorce.
Request an Initial Divorce Case Evaluation in North County, San Diego
If you are contemplating a divorce and live in the North County, San Diego area, we encourage you to contact us for a confidential initial case evaluation. To request an appointment with divorce attorney and Certified Family Law Specialist Richard M. Renkin, please call 619-299-7100 or inquire online today.
If you have decided to file for divorce, preparing in
advance will help the process go as smoothly as possible. While everyone’s
circumstances are different, there are some general steps that most people can
(and generally should) take to prepare.
With the caveat that this is not legal advice and there is
no substitute for speaking one-on-one with an experienced California divorce
attorney, here is a checklist that you may find useful as you begin the process
of preparing for your divorce:
1. Records to Collect
Income
and Taxes. In California, both spouses’ incomes are relevant to determining
alimony and child support. Collect copies of your recent tax returns and W-2s
or 1099s; and, if you have access to your spouse’s income statements, make
copies of those as well.
Account
Information. Now is a good time to make sure you know how to log into all
of your accounts. This includes online bank accounts, credit cards, investment
and retirement accounts, college savings plans, mortgage and car loan payment
portals, and any other accounts you use for personal or financial management
purposes.
Family
Budget. Where does your money go each month? If you have a family budget,
make a copy to give to your attorney. If you do not, your monthly checking
account and credit card statements should provide a reasonably comprehensive
picture of your family’s monthly spending.
Property
Records. Make copies of real estate deeds, vehicle titles, and any other
property records. This applies for any property that you (or your spouse)
acquired prior to or during your marriage.
Prenuptial
Agreement. If you and your spouse entered into a prenuptial agreement, your
divorce attorney will need to review the agreement to determine (i) if it is
enforceable, and (ii) if so, how it will impact your divorce.
2. Issues to Consider
Property
Division. In California, “community” property is subject to equitable
division, while “separate” property is not. Most assets acquired during the
marriage will qualify as community property. Which community assets are most
important to you? To your spouse?
Child
Custody. If you have children, what are your goals with regard to custody and visitation? Do you
have a plan in mind that would work for you (and your spouse) while serving
your children’s best interests?
Spousal
Support. Will you (or your spouse) need to seek spousal support? If so, in
what amount and for how long?
For
Military Officers. Divorcing military officers must address important issues
related to their pensions and retirement benefits, Tricare, and other
military-specific issues. Learn
more.
For
Same-Sex Spouses. Gay and lesbian spouses will face some unique
considerations during the divorce process. Learn more.
For
Business Owners. If you own a business, protecting your business will be a
critical aspect of your divorce. Learn
more.
Request a Confidential Initial Divorce Case Evaluation in North County, San Diego
For more information about getting divorced in California and the steps you should be taking to prepare based upon your individual circumstances, please contact us to request a confidential initial case evaluation. You can reach our North County, San Diego law offices online or by phone at 619-299-7100.
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.
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.
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.
The process of getting divorced involves many potential
challenges. While some divorcing spouses are able to work together to reach an
amicable solution relatively quickly, others can face challenging legal and
financial issues, contentious disputes, and difficult questions that can impact
the rest of their lives.
Preparing yourself to avoid mistakes is a critical part of the divorce planning process, no matter how good or bad your relationship with your spouse is. From making rash decisions in the heat of the moment to making decisions with incomplete information, the risk for these mistakes exists at all stages of the divorce process, and they can impact all of the major aspects of your divorce.
If you are preparing
to get divorced in California, here are five important mistakes to avoid:
Mistake #1: Failing to Identify Your Separate Property
California is a community
property state; and, among other things, this means that while most of the
assets you and your spouse acquired during your marriage are subject to
distribution, most of the assets you acquired before your marriage are not. These
“separate assets” are yours to keep, and failing to identify separate assets is
a common mistake people make when going through the divorce process.
Note that we said most assets acquired during the marriage are community assets subject to
distribution. In some circumstances, assets acquired during the marriage will
quality as separate property. Likewise, assets owned prior to the marriage can transform into community assets, and some assets – such as retirement accounts and
private-held businesses – may have both separate and community property
components.
Mistake #2: Failing to Obtain an Accurate Valuation of Key Assets
How much is your retirement
account worth for purposes of your divorce? What about your business?
What about other assets such as vacation homes, collections, jewelry, boats,
and antique vehicles? With respect to community property assets, obtaining an
accurate valuation is key. If you don’t know the true value of these assets,
you will simply be guessing as to what constitutes an equitable distribution in
your divorce.
Mistake #3: Being Careless with Documentation
From establishing the value of community property assets to
dealing with alimony and child support, you will need various forms of
documentation for your divorce. At the outset of the divorce process, spouses
in California also have a legal obligation to make certain financial
disclosures to one another. Not only can being careless with documentation
lead to inaccurate (and potentially undesirable) results; but, if you are
accused of attempting to conceal financial information, this can have negative
repercussions for your divorce as well.
Mistake #4: Assuming that Key Issues Will Resolve Themselves
You will play a central role in determining the outcome of
your divorce. Going through a divorce is not a passive process, and issues do
not simply resolve themselves. You need to make informed decisions with your
long-term best interests in mind, and you need to ensure that you are not
unknowingly giving up too much in your divorce.
Mistake #5: Overlooking Important Financial and Family Considerations
In California, the distribution of community property, the
calculation of alimony and child support, and the determination of child
custody are all subject to established legal standards. Dealing with each of
these aspects of your divorce requires consideration of various financial and
family-related factors. When going through a divorce, it is important to ensure
that you have as much information as possible, and you need to give due
consideration to all of the various factors involved.
Request an Initial Case Evaluation with a North County, San Diego Divorce Attorney
Richard M. Renkin is a North County, San Diego divorce attorney and Certified Family Law Specialist who has been practicing law in California for more than 25 years. If you are considering a divorce and would like more information, you can call 619-299-7100 or contact us online to request a confidential initial case evaluation.
When going through a divorce, it is important to have as
much accurate information as
possible. Unfortunately, over the years, flawed assumptions and faulty
information have proliferated across the internet, and this has resulted in the
establishment of a number of common and widely-dispersed myths about getting
divorced in California.
The Myth: You Can File for a Fault-Based Divorce if Your Spouse Cheats on
You.
The Truth: California
is Purely a “No-Fault” Divorce State.
While some states still allow spouses to file for divorce on
fault-based grounds, California is purely a “no-fault” divorce state. Under Section 2310 of the California Family Code, there are only
two grounds on which spouses can file for divorce: “(a) [i]rreconcilable differences, which have
caused the irremediable breakdown of the marriage[; or,] (b) [p]ermanent legal
incapacity to make decisions.” The vast majority of divorces are filed on the
basis of “irreconcilable differences.”
However, this does not mean that your spouse’s cheating is
entirely irrelevant to your divorce. For example, if your spouse used community
assets to pay for gifts or trips, then these expenditures may be deductible
from his or her share during the equitable distribution process. Of course,
evidence of cheating can add to the overall contentiousness of the divorce
process as well.
The Myth: In California, Divorcing Spouses Must Split Their Assets 50/50.
The Truth:California Requires an “Equitable,” But Not
Necessarily Equal, Distribution of Community Property.
While California is a community property state, it does not
require divorcing spouses to divide their assets equally. Instead, what
California law requires is an “equitable distribution” of community property. Assets
that qualify as one spouse’s separate
property are not subject to distribution, and community property assets
must be divided based upon a determination of what is “equitable” under the
facts and circumstances involved. While this could mean a 50/50 split, it is not uncommon for divorcing spouses
to agree to an unequal distribution of community property.
The Myth: The Wife Always Gets Alimony in a California Divorce.
The Truth: Alimony is
Not Always a Part of the Divorce Process in California, and Husbands and Wives
Have Equal Opportunity to Seek Alimony.
Alimony is
not awarded in every divorce. In California, awards of alimony are generally
reserved for cases where there is a significant disparity in the spouses’
current incomes or their earning capacity. But, when determining whether an
award of alimony is warranted, the analysis goes both ways: Either spouse can
potentially receive an award of alimony depending upon which spouse has the
greatest earning power.
Specific factors considered in determining whether an award
of alimony is appropriate include:
The length of the marriage
The spouses’ respective financial needs
The spouses’ respective abilities to pay
The spouses’ respective education levels and
work experience
The spouses’ respective ages and health
conditions
The Myth: The Mother Always Gets Primary Custody in a California Divorce.
The Truth: Just Like
Alimony, Both Parents Start on Equal Ground When It Comes to Determining
Custody in California.
In California, as in other states, child custody
determinations are always made based upon a determination of what is in the
“best interests” of the couple’s children. Just like the factors that apply to
alimony, California’s best
interests factors do not inherently favor either spouse.
Contact Richard M. Renkin, North County Divorce Attorney and Certified Family
Law Specialist
If you live in the North County, San Diego area and have questions about divorce, we encourage you to get in touch. To request a confidential initial case evaluation with attorney Richard M. Renkin, please call 619-299-7100 or send us a message online today.
In today’s world, social media accounts can play a central
role in the divorce process. From deciding who gets to keep certain accounts to
making use of the information your spouse posts online, there are various
issues to consider with regard to social media and your divorce – as well as
some critical mistakes to avoid.
If you are preparing to get divorced in North County, San Diego, or if you are even considering the possibility of
getting divorced, here are some important issues to keep in mind with regard to
your (and your spouse’s) social media accounts:
1. Any Information You Post Publicly is Fair Game in Your Divorce.
If you post information online, your spouse can use it against
you in your divorce. This is true for any photos, videos, and text you post on
public accounts, and potentially for information you post to private accounts
as well. If your spouse follows your private account, or if he or she is able
to view your private posts through a friend or family member who follows you,
then anything you post could
become evidence in your divorce.
2. This Means that Anything Your Spouse Posts is Fair Game, Too.
Of course, if your social media posts are fair game, then your spouse’s posts are fair game, too. With this in mind, if you have access to your spouse’s social media posts online (but not through logging into his or her account without authorization), it may be worth monitoring his or her social media activity for anything you may be able to use to your advantage.
For example, from photos of recently-purchased luxury items to posts about being too busy to spend time at home, there are various ways that posts which may initially seem innocuous can have a significant impact on divorce proceedings in California.
3. Deleting a Post Does Not Necessarily Mean that it is Irretrievable.
If you made a post that was inadvisable, deleting it does not necessarily mean that it is gone forever. There are various ways to retrieve deleted social media posts during the divorce process, from forensic computing methods to gaining access through the formal process known as “discovery.”
As a result, it is important to think twice before posting on social media while contemplating a divorce, if you post anything at all. Due to the potential for negative consequences, it is generally advisable to stay off of social media prior to and during your divorce if you can force yourself to do so.
4. Hacking Your Spouse’s Social Media Accounts Can Get You in Trouble.
While you can certainly view anything that your spouse posts
publicly online, hacking his or her social media accounts can get you into
trouble during the divorce process. From privacy concerns to property rights, gaining unauthorized
access to social media accounts is fraught with legal issues; and, even if you
know your spouse’s password, you should seek legal advice before you do
anything that could potentially have a negative impact on the outcome of your
divorce.
5. Social Media Accounts May Be Assets that are Subject to Equitable
Distribution.
Social media accounts are a form of intangible property;
and, as such, they are potentially subject to equitable
distribution during the divorce process. There are a number of complex
issues that can arise here as well; and, to ensure that you have a clear
understanding of your legal rights, you will need to discuss the history of
your (and your spouse’s) social media accounts with an experienced divorce
attorney.
Request a Confidential Initial Case Evaluation with a North County, San Diego Divorce Lawyer
If you live in the North County, San Diego and are thinking about filing for a divorce, we encourage you to contact us for a confidential initial case evaluation. To request an appointment with divorce attorney and Certified Family Law Specialist Richard M. Renkin, please call 619-299-7100 or inquire online today.
Establishing a 529 savings account is a responsible choice for many parents. Having a 529 savings account not only provides tax benefits for any money put into the account, but for many parents it also provides a structured way to put away money for college on a monthly or yearly basis.
But, many parents have misconceptions about 529 savings accounts as well. For example, did you know:
Money in a 529 savings account belongs to the parent, not the child. Note that we said parent, not parents: Even if parents jointly contribute to an account, the account still only has a single owner.
Money can be withdrawn from a 529 savings account for non-college-related expenses. In fact, parents can still use money in a 529 savings account for anything they want – they just have to pay a 10% tax penalty.
The beneficiary of a 529 savings account (i.e. your child) can be changed by the account owner (i.e. to a child from your former spouse’s second marriage).
With these considerations in mind, if you (or your spouse) has a 529 savings account for your child, how should you handle the account during your divorce?
Important Considerations for Addressing a 529 Savings Account During a California Divorce
Although a 529 savings account may belong to a single parent, for purposes of a divorce, an account started during the marriage will generally be considered community property just like any other physical or financial asset purchased or accumulated after the spouses said their vows. An account started prior to the marriage may qualify as separate property; however, if additional contributions were made during the marriage, then at least a portion of the account would generally qualify as community property as well.
As community property, a 529 savings account is subject to division in a California divorce. This means that the account – or at least its value – must be divided equally. While splitting a 529 savings account is an option, more often, divorcing spouses will agree that one parent (usually the custodial parent) will keep the entire 529 savings account in exchange for giving up his or her rights to other community property.
However, while this may be the simpler approach, it has the potential to lead to some undesirable consequences. For example, once the divorce is over, there is nothing to stop the sole owner from liquidating the account or changing its beneficiary. Although this may seem unlikely, it has happened before, and financial strain (or undue influence from a new spouse or partner) can lead people to make choices that most would consider inadvisable.
To address this issue, divorcing spouses can either go back to splitting the 529 account, or they can include terms regarding the use of 529 assets in their settlement agreement. A third option is to incorporate both of these elements – agreeing that each spouse will control a portion of their children’s college savings and that both spouses will only use 529 funds for their children’s tuition and college expenses. Whichever option spouses choose, the key is to make sure that they have a clear understanding of the implications involved.
What if We Still Need to Save More to Put Our Children Through College?
If you and your spouse are still saving for your children’s college, it may be desirable to address future 529 contributions in your settlement agreement as well. Child support typically does not cover the costs of higher education, so divorcing parents must make specific provisions for college savings and expenses as part of the divorce process.
Contact the Law Office of Renkin & Associates in North County, CA
If you live in the North County area and would like more information about how to ensure that your divorce does not impact your children’s ability to go to college, we encourage you to contact us for a confidential initial case evaluation. To request an appointment with divorce attorney and Certified Family Law Specialist Richard M. Renkin, please call 619-299-7100 or inquire online today.
