Unfortunately, many marriages do not end up lasting forever. Sometimes, couples realize too late that they do not belong together. No matter how much effort they put into resolving their problems and effectively communicating, they still cannot create a happy marriage. In these situations, many couples opt to file for a divorce. This way, they can end the terms of their current marriage and begin anew, in hopes of pursuing a happier or more fulfilling future. While divorce may seem like a bleak or frightening prospect, in the end it may be the best course of action for you. In order to end your marriage on fair and desirable terms, you will need the help of an experienced divorce lawyer. Contact the Oceanside Divorce Attorneys of Fischer & Van Thiel at 760-722-7646 to schedule an appointment with us.
If you and your spouse believe that you are ready to begin filing for a divorce, or if you wish to speak with a divorce attorney about your situation, then the Oceanside divorce lawyers of Fischer & Van Thiel can help. Contact us today by calling 760-722-7646.
MAKING THE CHOICE TO DIVORCE
Choosing to proceed with a divorce, or dissolution of marriage, is an often painful and difficult decision to make. At Fischer & Van Thiel, we encourage clients to seek counseling, joint or individual, and exhaust all available possible avenues before opting for a divorce. Once one is confident in their decision to divorce, our goal in our representation is to achieve the most efficient divorce while gathering direction from you, the client.
Grounds for Dissolution
California is a no fault state, which means that neither party must prove fault on the other party in order to obtain a divorce. The Court does not place importance on who cheated or caused the breakdown in the relationship. Most people cite the reason for the divorce as irreconcilable differences, but there another possible grounds for a divorce is if your spouse has incurable insanity.
Uncontested vs. Contested Dissolution
A case can be as simple or as complicated as a spouse wants to make it. A contested case is one that requires court intervention to resolve the issues in their case. In an uncontested case, the parties resolve all issues without the assistance of the Court. This route is often much more cost efficient, reduces conflict and the emotional impact, and allows the parties to move on with their life quicker.
DIVISION OF ASSETS AND DEBTS
There are many aspects to a divorce, one of which is the division of assets and debts. The general rule is that all assets and debts are divided equally (50-50) between the parties. However, it is a common misconception that this means you have to “cut the couch in half” or sell all the property and share the proceeds. This is not true. A division of assets and debts can be done by equalizing one item with another. For example, should one person take more than 50% of the assets, they can offset this by taking more than 50% of the debt as well. If the parties resolve the issues out of Court, they can agree to a division of the items in a manner other than 50-50 division. Sometimes, an equitable division is not necessarily an equal division, and often times a good settlement encompasses that principle.
The first step towards resolving the assets and debts is to characterize the property. The rule regarding characterizing, or classifying, an asset or debt is that any asset or debt acquired during the marriage is presumed to be community property. If it is acquired prior to marriage or after the date of separation, it is presumed to be separate property. The name the asset or debt is held in does not necessarily determine the characterization of that property, but can be a factor if the parties agreed for it to be held in one person’s name alone for their sole interest.
to the rule that all things acquired during marriage are community property is when an item is received by gift or bequest.
Gifts remain the separate property of the party receiving the gift. Usually this is straight forward when the gift is received from an outside source. If it is evident that the gift was provided to one party it remains entirely their separate property. Gifts between the parties to a divorce are sometimes more problematic. A family heirloom diamond given to the bride or a diamond that is bought as an investment and set so that the bride can “wear” the investment become more problematic. There are rules regarding these issues and sometime the issue needs to be argues to a judge for a final determination.
Items received pursuant to a trust or will also will remain the separate property of the receiving party so long as it can be determined that the bequest was provided to one party in particular and not the community.
Other common exceptions:
Application of the Rule
Generally, bank accounts, whether held in one person’s name or both, are to be divided as of the date of separation if the monies were earned during marriage.
Your IRA, 401k, Pension, or Other Retirement
Although usually held in one person’s name alone (the employed individual), the account will have some community interest if any portion was acquired during marriage. Many of these accounts are governed by Federal Law and a Qualified Domestic Relations Order (QDRO) will be need to be executed in order to divide the account. Dividing the retirement account into two (2) separate accounts (1 in the each spouse’s name) carries no tax penalties. However, any further withdrawals or advances will carry the normal tax penalties and consequences otherwise associated with the retirement account.
As a general rule, any community debt is divided equally as of the date of separation, whether the debt is held in one person’s name or jointly.
Generally, loans acquired during marriage are also divided one-half. However, when dealing with loans, it is important to determine what the loan is for. A loan for a car will often be designated to the person who is confirmed the vehicle. Student loans generally go to the party who obtained the education, unless the marriage received the benefit of that education, which is generally about 10 years of post-education work.
Community Residence and the Mortgage
The ever changing housing market has made this issue a hot topic. With the housing market crash, the invention of short sales, and now the rebounding of the market, the community residence can be a gift or a disease. When there is equity in the home, the parties have the option of selling the home and sharing that equity, or the party who chooses to remain in the home will have to buy-out the other spouse for their one-half of the equity. When there is no equity in the home, or the home is a negative asset, the options are limited. The person taking the negative equity asset will take the property outright, without any equalization to the other party. One common ramification is that both parties’ names will be on the loan without the ability to refinance the property and remove the “out” spouse’s name. Should the other spouse not pay the mortgage timely, this could affect the out spouse’s credit and the Court has minimal ability to rectify this situation.
The Support of a Caring Attorney
The Oceanside divorce lawyers of Fischer & Van Thiel understand how difficult and stressful it is to go through the divorce process. While even basic divorce situations may be difficult, extra complications can make them extremely complex. The division of property, decisions regarding child custody, allotment of child or spousal support, and presence of animosity can all make a divorce long and taxing. Because of this, it is imperative that you seek the help of a knowledgeable attorney to guide you through this process. With the help of a caring and dedicated attorney, you will be able to get through the divorce process smoothly and with as little trouble as possible. Call the Oceanside Divorce Attorneys of Fischer & Van Thiel at 760-722-7646 to speak with us about your situation.