Explaining “Fair Market Value” In a Property Division Settlement
California Divorce, Mediation, Property Division

Explaining “Fair Market Value” In a Property Division Settlement

When it comes to property division, particularly in the context of divorce or the dissolution of a partnership, “Fair Market Value” (FMV) is an essential concept. Understanding FMV is crucial for ensuring equitable distribution of assets and can significantly impact the outcome of property settlements. CA Certified Family Law Specialist Judy L. Burger breaks down what Fair Market Value is, how it is determined, and its relevance in property division settlements.

What is Fair Market Value (FMV)?

Fair Market Value is defined as the price that a property would sell for on the open market, under typical conditions, and between a willing seller and a willing buyer, both of whom are informed and not under any compulsion to buy or sell. In simpler terms, it represents what a property is worth in the current market, reflecting its true value based on comparable sales and market conditions.

In property division settlements, particularly during divorce proceedings, assets need to be evaluated and valued to ensure that both parties receive a fair share of the marital property. Considering FMV helps in:

  • Equitable Distribution: California requires the division of property to be “equitable,” meaning fair but not necessarily equal. FMV helps determine a realistic value for assets and guides how they should be divided.
  • Negotiations: Having an accurate FMV makes negotiations more straightforward. Both parties can enter discussions with a mutual understanding of what properties are worth, making it easier to agree on asset distribution.
  • Legal Proceedings: If a dispute arises and the case goes to court, the determination of FMV is often critical. Courts tend to rely on expert appraisals to establish FMV for assets involved in property division.

CA Property Division Attorney Judy Burger has a wealth of experience in dividing and valuing community assets and liabilities. With a keen eye for detail, she skillfully identifies separate property assets, ensuring that her clients’ individual assets are clearly acknowledged and legally confirmed. Judy has successfully navigated a variety of cases, specializing in the division of medium to large estates, where her expertise translates into effective and fair settlements for her clients.

How is FMV Determined?

Determining the Fair Market Value of a property may involve several methods:

  1. Comparative Market Analysis (CMA): This method involves comparing the property in question to similar properties that have recently sold in the same area. Real estate agents often conduct CMAs to estimate property values.
  2. Professional Appraisal: A qualified appraiser can provide an unbiased FMV assessment. To arrive at a value, they will consider factors such as property location, size, condition, and recent sales of comparable properties.
  3. Income Approach: The FMV of investment properties may be determined based on their income. This approach estimates the property’s worth based on its potential to produce income.
  4. Cost Approach: This method considers the cost to replace or reproduce the property minus depreciation. It’s often used for unique properties or those with few comparable sales.

Challenges in Determining FMV

While the concept of Fair Market Value may sound straightforward, various challenges can arise during its determination:

  • Market Fluctuations: Real estate markets are dynamic. Economic conditions, interest rates, and other factors can affect property values over time, leading to potential disputes over FMV.
  • Emotional Attachments: Parties involved in property division may have emotional attachments to certain properties, which can cloud their judgment regarding its FMV.
  • Disagreements on Valuation Methods: Different methods of determining FMV may lead to varying results, and parties may disagree on which approach is most suitable.

Understanding Fair Market Value is essential for anyone navigating property division settlements in divorce or partnership dissolutions. It serves as a cornerstone for equitable distribution and ensures that both parties are treated fairly based on the actual value of their assets.

Learn More About Fair Market Value in a CA Divorce Property Division

Engaging an experienced and qualified Family Law Specialist like Judy Burger can help clarify the value of properties in question, making the settlement process smoother and more just. Whether you’re planning to negotiate a settlement or are preparing for potential litigation, a solid grasp of FMV will empower you to advocate for your interests effectively.

Ms. Burger has extensive relationships with Forensic Accountants and Actuaries, Litigation Real Estate Appraisers, Real Estate Attorneys, Business and Corporate Attorneys, Title Companies, and Real Estate Professionals who assist her in determining the FMV of properties during divorce proceedings. Contact The Law Offices of Judy L. Burger nearest you for more information and assistance. 

Wasteful Misconduct and Community Property Divisions
California Divorce, Property Division

Wasteful Misconduct and Community Property Divisions

Navigating property division during a divorce can be complicated in California, particularly when issues of wasteful misconduct arise. Understanding how wasteful conduct is defined and its implications on the community property division process is crucial for both parties. California Certified Family Law Specialist Judy L. Burger discusses the implications of wasteful misconduct on property divisions and how to react if you suspect it has occurred.

What is Wasteful Misconduct?

Merriam-Webster’s Dictionary of Law defines wasteful misconduct (under ‘dissipation,’ as in ‘dissipation of marital assets’) as “to use (marital assets) for one’s own benefit and to the exclusion of one’s spouse for a purpose unrelated to the marriage at a time when the marriage is undergoing an irretrievable breakdown.”

It is also called wasteful dissipation or the dissipation of marital assets. This behavior can manifest in various ways, including

  • Extravagant spending
  • Spending money on an affair
  • Taking out loans without the other spouse’s consent
  • Selling property below market value
  • Excessive gambling
  • Reckless financial decisions
  • Giving large sums of money to family members or third parties
  • Destroying property
  • Engaging in activities that diminish property value
  • Failed investments

The Cornell Law School Legal Information Institute maintains that “economic misconduct (e.g., dissipation of assets) will be considered when dividing property.”

Community Property in California

California is a community property state, meaning that most assets and debts acquired during the marriage are jointly owned and subject to equal division upon divorce. However, the characterization of assets can become contentious when one spouse engages in wasteful misconduct that affects the value of the community estate.

Possible Impacts of Wasteful Misconduct on Property Division

Keep the following aspects of this problem in mind as you approach divorce and the suspected dissipation of marital assets:

  • Reimbursement for Dissipated Assets: If one spouse can prove that the other engaged in wasteful misconduct, they may be entitled to reimbursement for the value of the dissipated assets. This reimbursement can be considered when dividing the remaining community property, potentially impacting the final distribution.
  • Increased or Decreased Share: Courts have discretion in determining how to address wasteful misconduct when dividing property. If misconduct is proven, the errant spouse may receive a smaller percentage of the community property. In contrast, the other spouse may receive a larger share to compensate for the wasted assets.
  • Burden of Proof: The spouse alleging wasteful misconduct has the burden of proof. They must provide clear and convincing evidence of the misconduct and its impact on community property. This may require detailed financial records, testimonies, and expert evaluations to substantiate the claims.

What Should I Do If I Suspect Wasteful Misconduct in My CA Divorce?

When facing issues of wasteful misconduct in a divorce, keep the following considerations in mind:

  1. Document Everything: Maintaining comprehensive records of financial transactions is vital. This includes bank statements, receipts, and any relevant communications that may demonstrate wasteful behavior.
  2. Focus on Resolution: While addressing wasteful misconduct can be important, it is crucial to focus on the overall resolution and its long-term impact on your financial future. Aim for a property division that reflects fairness and preserves your interests.
  3. Consult with a Legal Professional: California Certified Family Law Specialist Judy L. Burger can help you navigate the complexities surrounding wasteful misconduct. She can provide guidance on evidence collection, help establish a legal strategy, and represent your interests during negotiations.

Resolving Complex Divorce Property Divisions in California

Wasteful misconduct can significantly influence the division of community property in a California divorce. Understanding the implications of such behavior and the legal recourse available is essential for both spouses. If you believe wasteful misconduct has occurred during your marriage, seek legal guidance to protect your rights and interests.

Navigating the complexities of divorce is challenging, and having a knowledgeable advocate can make a significant difference in achieving a fair resolution. If you’re facing a divorce and suspect wasteful misconduct, contact The Law Offices of Judy L. Burger for support and professional guidance tailored to your situation. 

 

Revocable Trusts in a Divorce Property Division
California Divorce, Property Division

Revocable Trusts in a Divorce Property Division

One of the most critical aspects to address when navigating the complexities of divorce is property division. In California, which follows a community property system, understanding how revocable trusts impact property division is essential. California Certified Family Law Specialist Judy L. Burger sheds light on revocable trusts, how they function during a divorce, and how individuals can protect their interests.

What is a Revocable Trust?

A revocable trust, also known as a living trust, is a legal arrangement where the trustor (the person who creates the trust) maintains control over the assets within the trust during their lifetime. The trustor can modify or revoke the trust at any time, hence the term “revocable.” Assets placed in a revocable trust generally avoid probate, ensuring a smoother transfer of property upon the trustor’s death. The trust remains private and becomes irrevocable upon the grantor’s death.

Revocable Trusts and Community Property

In California, all property acquired during the marriage is typically considered community property, subject to equal division upon divorce. However, the classification of assets becomes intricate when a revocable trust is involved.

  1. Trust Assets as Community Property: If both spouses contributed to the trust assets or if the trust was created during the marriage, the assets within the revocable trust are usually categorized as community property. This means they would be divided equally between both parties in a divorce.
  2. Separate Property Contributions: If one spouse funded the trust with their separate property (assets owned before the marriage or received as a gift/inheritance), those assets may remain separate property. To ensure this classification, it’s crucial to maintain clear documentation and delineation of these assets.

Key Considerations in Divorce Proceedings

Here are some important factors to keep in mind regarding revocable trusts during a divorce in California:

  • Transparency: Both spouses have the right to access and review the trust documents and the assets held within the trust. Full disclosure is critical, and failing to disclose trust assets could lead to complications in the property division.
  • Valuation of Trust Assets: Determining the value of the trust’s assets can be complex. It may require hiring an appraiser or financial expert, especially if the trust holds real estate, investments, or valuable personal property. Ensuring accurate valuation is crucial for fair property division.
  • Revocation and Modification: If the trustor wishes to make changes or revoke the trust during divorce proceedings, they should do so with caution. The other spouse could contest the modification or revocation, especially if they believe it affects their share of the community property.

What About Commingled Assets?

Commingling refers to the situation where separate property is mixed with community property, which can complicate the process of identifying and distinguishing between the two types of assets. When trust assets become commingled, a forensic accountant may be necessary to help trace the source of the funds and classify them correctly.

Legal Assistance with CA Property Division

Given the intricacies of revocable trusts and property division during divorce, seeking legal counsel is highly advisable. CA Certified Family Law Specialist Judy Burger can help navigate the following:

  • Evaluating the nature of the trust assets and whether they are classified as community or separate property.
  • Facilitating negotiations regarding asset division.
  • Representing your interests in court, if necessary.

Revocable trusts can significantly impact property division in a California divorce. Understanding how these trusts function within the framework of community property laws is essential for ensuring a fair and equitable division of assets.

If you are facing a divorce and have a revocable trust, contact The Law Offices of Judy L. Burger to obtain clarity and guidance through the challenges of property division. Remember, preparing for divorce involves not just emotional considerations but also strategic planning to protect your financial future. Get the professional legal help you deserve.

Is My Spouse Entitled to Half My House If It's In My Name in California?
California Divorce, Debt, Property Division

Is My Spouse Entitled to Half My House in a Property Division If It’s In My Name in California?

One common concern when navigating the complexities of divorce in California is property division, particularly regarding the family home. Many individuals wonder: If the house is solely in my name, does my spouse still have a claim to half of it? CA Property Division Attorney Judy L. Burger offers a deeper understanding of California’s community property laws to help clarify this question.

Understanding Community Property in California

California is a community property state, which means that most assets acquired during the marriage are considered community property and are subject to equal division upon divorce. This includes income, real estate, and other assets acquired while married, regardless of whose name is on the title.

If the house was purchased during the marriage, it is generally presumed to be community property, even if only one spouse’s name is on the title. This means that both spouses typically have a claim to the house, and it could potentially be divided equally during the divorce proceedings. However, there are exceptions to the community property presumption.

Exceptions: Separate Property

Not all property is community property. Any assets owned by either spouse before marriage or acquired by gift or inheritance are considered separate property and are not subject to division. If you owned the house before marriage and it remained in your name, it may be classified as separate property. However, if you made mortgage payments or significant improvements to the house during the marriage using community funds, your spouse might argue they have a claim to the increased value of the property.

It’s important to consider contributions made by your spouse. If your spouse contributed financially to the house, even if it’s solely in your name, they might have a valid claim. For instance, if they helped with mortgage payments, upkeep, or renovations, these contributions could afford them rights to the property or increase their share during division.

Protecting Your Family Home

If you suspect a divorce is in your future, you can take steps to ensure that your home remains distinct from marital assets to safeguard it from being considered communal property. When possible, refrain from using communal assets to upgrade the home or make mortgage payments. Be sure to maintain thorough records if you inherited the home.

Individuals can also consider signing a prenuptial or postnuptial agreement to safeguard a family home from property division during a divorce. These legal agreements provide clear guidelines for property division and outline how homes, real estate, and other properties will be handled in the event of a divorce. By defining the property statuses and the rights and responsibilities of each spouse, these agreements can protect a family home.

Seek Legal Guidance from an Experienced CA Property Division Attorney

Given the intricacies of property division laws in California, it’s wise to consult a seasoned property division attorney like Judy Burger. She can provide personalized advice based on your specific situation, ensuring your rights are protected. Judy Burger can also help evaluate whether your house is community or separate property and guide you through the divorce process.

In California, whether your spouse is entitled to half or another portion of your house largely depends on factors like the property’s title, when it was acquired, and any contributions made during the marriage. If you’re facing divorce and have questions about your home and property rights, reach out to CA Certified Family Law Specialist Judy L. Burger today.

 

Top Tips for the Smoothest Property Division
California Divorce, Property Division

Top Tips for the Smoothest Property Division

Dividing property during a divorce can be one of the most challenging and potentially problematic aspects of the process. Disagreements and misunderstandings can lead to serious mistakes and costly court battles. However, with careful planning and guidance, you can achieve a fair and equitable property division.

California Certified Family Law Specialist Judy L. Burger offers ten essential tips to help you navigate property division smoothly.

Property Division Top 10 Tips

Property division is typically the most problematic aspect of any divorce, but it doesn’t have to be like that; get informed and equipped for negotiations with these simple tips.

1. Know What Property is Marital vs. Separate

Because California is a community property state, separate and marital property is handled differently during a divorce:

  • Marital Property: Generally includes assets and debts acquired during the marriage. Familiarize yourself with your state’s laws regarding marital property to understand what will be subject to division.
  • Separate Property: Typically includes assets owned before the marriage or received as gifts or inheritances during the marriage. Clearly identify what qualifies as separate property.

2. Create a Comprehensive Inventory

List all assets and liabilities, including real estate, bank accounts, investments, retirement accounts, vehicles, inheritances, and personal property. This inventory will serve as the foundation for discussions and negotiations. Be honest and thorough to avoid complications later.

3. Assess the Value of Your Property

Get accurate valuations for significant assets. Consider hiring professionals, such as appraisers or financial experts, to provide credible assessments of property values. Knowing exactly what your assets are worth will aid in fair negotiations.

4. Understand the Impact of Debts

Property division is not solely about assets; consider debts too. Outstanding mortgages, credit card balances, and loans must also be addressed. Decide how to equitably divide the debts alongside the assets to avoid future financial burdens.

5. Prioritize Open Communication

Honest and respectful dialogue with your ex can lead to smoother negotiations. Discuss your priorities and concerns regarding property division directly. Aim for a collaborative approach rather than an adversarial one to create a more amicable environment.

6. Consider Mediation or Collaborative Law

If negotiations are challenging, consider using mediation or collaborative law services. These alternatives to traditional litigation can help both parties reach a mutually acceptable agreement with the support of professionals. Mediation can often lead to quicker resolutions and reduced stress.

7. Be Realistic with Your Expectations

Understand that compromise is often necessary in property division. Be willing to negotiate and prioritize what is most important to you, which can facilitate smoother discussions. Focus on equitable, not necessarily equal, division based on your specific circumstances.

8. Keep Emotion in Check

Property division can bring up strong emotions tied to relationships and memories. Strive to keep emotions separated from negotiations to make rational decisions. Take breaks if necessary and seek support from friends, family, or professionals to help manage stress.

9. Document Everything

Keep a record of all communications, agreements, and transactions regarding property division. This documentation can be invaluable if disputes arise later. Ensure that any agreements are formalized in writing and filed with the court if applicable.

10. Consult a CA Certified Family Law Specialist

Engage with CA Certified Family Law Specialist Judy Burger. She can provide valuable advice specific to your situation and ensure your rights are protected during the process. She can also help you understand state laws and guide you through negotiations and court proceedings if necessary.

Navigating the complexities of property division during a divorce doesn’t have to be overwhelming. By following these tips and seeking professional guidance throughout, you can work towards a fair resolution that sets the stage for your new beginning. Remember that clear communication and a focus on mutual interests can lead to a smoother process overall.

Contact The Law Offices of Judy L. Burger today to get seasoned guidance with your California divorce property division.

 

Default Divorce and Property Division
California Divorce, Debt, Property Division

Default Divorce and Property Division

In California, a default divorce occurs when one spouse files for divorce and the other fails to respond or participate in the proceedings. This situation can arise for various reasons, including lack of communication, avoidance of the divorce process, or even ignorance of the filings.

Certified California Family Law Specialist Judy L. Burger believes both parties should understand the implications of a default divorce, as it can significantly affect property division and other legal matters.

Reviewing the Default Divorce Process

When one spouse initiates the divorce process by filing a petition with the court, they must serve the other spouse with divorce papers. Once served in California, the recipient has 30 days to respond. If the non-filing spouse does not respond within this period, the court can proceed with the divorce and may grant a default judgment. This means the filing spouse can request the court to rule in their favor without input from the non-responsive spouse.

Property Division in Default Divorce

California is a community property state, meaning that nearly all property acquired during the marriage is considered joint property and is subject to equal division upon divorce. In cases of a default divorce, the court may divide property based on the information provided by the filing spouse.

This includes a Request to Enter Default (form FL-165) formally asking the court for a default divorce because your spouse didn’t respond.

You may also need to submit a Property Declaration (form FL-160) that informs the court about the community property you share with your spouse and how you want it divided.

  • Community Property: This includes all assets and debts acquired during the marriage, such as income, homes, and joint bank accounts. Community property is typically divided equally between both spouses.
  • Separate Property: This includes assets one spouse owned before the marriage, gifts or inheritances received during the marriage, and anything specifically designated as separate property in a prenuptial agreement. Separate property is not subject to division in a divorce.

In a default divorce scenario, the court relies heavily on the accuracy and completeness of the information provided by the responding spouse. If the filing spouse fails to disclose certain assets or debts, the court may unknowingly grant a division that does not reflect an equitable outcome. This emphasizes the importance of thorough documentation and honesty during the divorce process.

A default judgment can result in unintended outcomes. For instance, the non-responding spouse may ultimately lose rights to certain community assets or may not receive fair consideration of their financial contributions to the marriage.

NOTE: A default divorce does not automatically forfeit rights; the non-responding spouse still has legal options, such as filing a motion to set aside the default judgment within a certain period.

Protect Your Rights

If you find yourself in a situation involving a default divorce, it’s vital to seek legal advice as soon as possible. Judy Burger is an experienced family law attorney who can provide insights into your rights and options. She can help you understand your legal standing and whether it is beneficial to contest the default judgment.

  • Document Assets and Liabilities: If you believe you are at risk of a default judgment, gathering an accurate account of all community and separate property will be invaluable in negotiations and court proceedings.
  • Respond to Divorce Papers: If you have been served with divorce papers, it’s critical to respond promptly within the timeframe provided. If you have concerns about the divorce or property division, discuss your options with attorney Judy Burger; she can help you negotiate a fair outcome.

Get Help with a Default Divorce and Property Division

Default divorce can present significant challenges for both parties, particularly regarding property division. Property Division Attorney Judy L. Burger can help you understand California’s community property laws and the implications of a default judgment so you can protect your rights in the divorce process.

If you are facing a divorce, whether you are the filing party or the one served, contact The Law Offices of Judy L. Burger. We have eight locations throughout California, and we can guide you through the complexities of divorce to ensure a fair resolution.

 

Joint Bank Accounts and Divorce
Property Division, California Divorce, Debt

Joint Bank Accounts and Divorce

Divorce can be a complex and emotional process, especially when it comes to finances. One important aspect that many couples need to address during a divorce is the status of their joint bank accounts. Understanding the implications of joint accounts can help ensure a smoother transition for both parties. Certified California Family Law Specialist Judy L. Burger reviews this issue and offers some guidance.

Understanding Joint Bank Accounts

A joint bank account is a financial account shared by two or more individuals. This type of account enables both parties to deposit, withdraw, and manage funds. While joint accounts can simplify finances during marriage, they can lead to complications during divorce.

Here are some critical factors to remember regarding divorce and joint bank accounts:

  • Ownership of Funds: California follows community property laws, so most assets and debts acquired during the marriage are considered community property. This means both spouses typically have equal rights to the funds in a joint account, regardless of who initially deposited the money.
  • Access to Accounts: Upon filing for divorce, it is essential to understand that both parties generally retain access to joint bank accounts until a court order dictates otherwise. This can lead to potential conflicts, particularly if one spouse withdraws a significant amount of money. To mitigate this risk, closing joint accounts or agreeing on a set amount each party can withdraw may be advisable.
  • Financial Records: Accurate financial records of transactions from joint accounts are important. This documentation can be crucial during the divorce process, especially when determining the division of assets. Consider keeping copies of bank statements and transaction receipts.
  • Risk of Seizure: Funds in a joint account may be subject to seizure by the government to fulfill any outstanding obligations. This can include back taxes, child support payments, or other court-ordered garnishments.

You should note that these factors do not just apply to bank checking and savings accounts. They also apply to joint investment, retirement, and other accounts. Get more advice about joint financial accounts from Certified Family Law Specialist Judy L. Burger before your divorce.

Steps to Take When Navigating Joint Accounts in Divorce

Don’t wait until divorce proceedings are underway or disagreements arise before considering how to handle marital assets. CA Property Division Attorney Judy Burger offers the following recommendations:

  1. Communicate: If possible, communicate clearly with your spouse about the handling of joint accounts. Establishing open lines of communication can help reduce misunderstandings and conflicts during the divorce process.
  2. Open Separate Accounts: If you haven’t done so already, it may be wise to open individual bank accounts. This allows you to establish financial independence and manage your funds separately from your spouse moving forward.
  3. Seek Legal Guidance: Consulting with CA Divorce Attorney Judy L. Burger can clarify your rights regarding joint accounts. She can guide you through the process and help ensure that your interests are protected.

When dividing joint accounts during divorce, the court typically aims for an equitable distribution of community property. This can include splitting the funds into joint bank accounts and determining how any debts associated with these accounts will be handled. However, this is not as straightforward as it sounds. Some funds in the joint account may not be community property, and a spouse may request that those funds be separated and given to them.

Property Divisions with Joint Bank Accounts

Navigating joint bank accounts during a divorce can be challenging. Being informed about your rights and responsibilities is crucial. You can better manage the complexities of joint accounts during your divorce by communicating openly with your spouse, maintaining thorough financial records, and seeking professional advice.

If you are facing a divorce and need assistance with financial matters, reach out to CA Divorce and Property Division Attorney Judy L. Burger. She can provide the support and guidance necessary to protect your financial interests during this transitional period. Contact one of our eight California offices directly by phone or request a consultation through our contact form.

 

Exploring Inheritances and Community Property Rules in a CA Divorce
California Divorce, Property Division

Exploring Inheritances and Community Property Rules in a CA Divorce

Navigating the complexities of community property and inheritances in a California divorce can be challenging. Understanding how these assets are treated under California law is crucial for anyone going through a divorce involving inheritances and community property.

Certified Family Law Specialist Judy L. Burger explains how community property rules affect inheritances in a California divorce.

Community Property

California is one of the few community property states in the United States. In community property states, most assets and debts acquired during the marriage are considered community property, belonging equally to both spouses, regardless of who acquired them.

Community property includes income earned during the marriage, real estate purchased during the marriage, other assets acquired, and debts incurred by either spouse during the marriage. In the event of a divorce, community property is typically divided equally between the spouses, although there can be exceptions based on specific circumstances.

Inheritances and Separate Property

Inheritances and gifts received by one spouse are considered separate property in California. This means that if one spouse receives an inheritance or gift during the marriage, it is generally not considered community property and belongs solely to the recipient.

However, commingling separate property with community property can complicate matters. For example, if an inheritance is deposited into a joint bank account or used to purchase a marital home, it could lose its status as separate property and become subject to division as community property.

Transmutation is the process by which separate property becomes marital or community property. This can occur when separate property is mixed with community property or when both spouses agree to treat certain separate property as community property. Transmutation can also happen through a written agreement signed by both spouses.

How Can You Protect An Inheritance?

It’s crucial to ensure that an inheritance remains distinct from marital assets to safeguard it from being considered communal property. This may require placing the inheritance in a separate account, refraining from mixing it with communal assets, and maintaining thorough records of the inheritance and its utilization. Another way to protect an inheritance given to one spouse is to place it into a trust.

Individuals can also consider signing a prenuptial or postnuptial agreement to safeguard inheritances from property division during a divorce. These legal agreements provide clear guidelines for property division and outline how inheritances will be handled in the event of a divorce. By defining the property statuses and the rights and responsibilities of each spouse, these agreements can protect inheritance rights.

The court may exercise its own discretion in cases involving fairness and equitable distribution. Even if an inheritance is considered separate property, the court has the power to modify the allocation of assets to ensure a just outcome. This may involve assigning a more significant share of other marital assets to the spouse who did not inherit to achieve a balanced division of property.

Seek Legal Guidance from an Experienced CA Property Division Attorney

Given the complexities of inheritances and community property rules in California, seeking guidance is advisable. Certified Family Law Specialist Judy L. Burger is experienced in handling complex divorce and property division cases. She can provide valuable insight into how to protect separate property, navigate the division of assets, and ensure that your rights are protected throughout the divorce process.

Understanding the treatment of inheritances and community property under California law is crucial for individuals going through a divorce. Get informed and seek legal counsel to protect your separate property. Contact The Law Offices of Judy L. Burger in California to get seasoned help navigating the complexities of divorce involving inheritances and community property.

 

How Are Trusts Handled in a Divorce Property Division?
Property Division, California Divorce, Mediation, Property Division

How Are Trusts Handled in a Divorce Property Division?

Divorces routinely involve property division questions. Some may be simple and straightforward, but determining marital and separate assets is often complicated. One common question is how trusts are handled in a divorce property division. Certified Family Law Specialist Judy L. Burger explains more about trusts and property divisions in California.

What Is a Trust?

“A trust is a legal entity with separate and distinct rights, similar to a person or corporation. In a trust, a party known as a trustor gives another party, the trustee, the right to hold title to and manage property or assets for the benefit of a third party, the beneficiary.”

A trust is a useful tool for managing and distributing a person’s finances both while they are alive and after their passing. It can help an estate avoid taxes and the probate process, protect assets from creditors and specify how inheritance should be handled for beneficiaries.

Married couples may establish one or more trusts for various reasons:

  • Tax planning
  • Medicaid planning
  • Retirement or inheritance planning
  • Providing for a special needs child or family member
  • Charitable giving
  • Securing business assets

Different types of trust have varying rules that govern how they are used, protected, and divided in a divorce property division.

Trusts and Property Division

Under California law, trusts are separate property of the named beneficiary spouse. Trust assets are then not considered “community property” and, therefore, are not subject to equitable distribution. Moreover, any income and principal paid from a separate property trust to a beneficiary spouse remains their separate property as long as it is not comingled with marital funds.

For example, a trust that is funded by a third party or source (not the beneficiary) through a gift or bequest and is governed by a separate trustee is the sole property of the beneficiary and not considered community property.

  • A trust created with assets before the marriage
  • A trust given to one spouse by a gift or inheritance

Irrevocable trusts are also better protected during a divorce property division. The beneficiary spouse is not in control of the assets, and they are not considered community property.

Depending on the type of trust, other special circumstances may apply. It is best to discuss your situation with a seasoned California Property Division Attorney like Judy Burger to ensure you fully understand your rights and options.

When Is a Trust Considered Community Property?

When trust funds are placed into a joint account, used to purchase a marital asset, or used for regular marital expenses, these funds are no longer considered separate property and become community property.

An exception exists if separate property contributions are used for a down payment on or for improvements to an asset; they will retain their separate property status as long as documents trace that contribution. Any funds remaining in the trust or a separate account will continue to be considered the separate property of the beneficiary spouse.

California Property Division Attorney

The rules governing California property divisions and trusts are complex, so you need an experienced CA Property Division Attorney to help you understand them and how they apply to you. Certified CA Family Law Specialist Judy Burger can examine the assets in trusts and determine how they fit into a divorce property division. Her role is critical to ensure an equitable legal division and protect your assets and rights.

If you are considering a divorce in California and have assets in a trust, contact The Law Office of Judy L. Burger as soon as possible. We have eight convenient offices throughout the Golden State to give you the personal attention you deserve. 

Is My Retirement at Risk in a CA Divorce Property Division?
Property Division, California Divorce

Is My Retirement at Risk in a CA Divorce Property Division?

People are living and enjoying the fruits of their labor longer than ever before. Planning and investing for retirement are some of the wisest decisions married couples can make. But what happens to your retirement assets in the event of a divorce? Handling retirement funds in a divorce is complex, and without the right help, you could make serious mistakes and lose most of your assets. CA Certified Family Law Specialist Judy L. Burger shares what you need to understand about retirement and a divorce property division.

Sharing Pensions and Retirement Plans

All kinds of pensions and retirement plans exist. They all share a common factor: a person and/or an employer pays into the account, which accumulates with interest over time to provide a living after retiring from active employment. Your spouse may also pay into the same pension or retirement plan, or have one of their own.

Some of the most common plans in California include:

  • Employee benefit plans
  • Defined Benefit Plans
  • Defined Contributions Plans
  • 401(k)s
  • CalPERS
  • LACERA
  • LACERS
  • CA State Teachers’ Retirement System
  • LA City Employees’ Retirement System
  • Federal Employees’ Retirement System
  • Military pensions
  • 457 plans
  • 403b plans
  • 401a plans

Retirement and Community Property

California is a community property state, meaning any assets or debts obtained from the date of marriage to the date of separation, except for gifts or inheritances to the individual, are considered to be community property and are divided equally between the parties in a divorce. 

This means that any retirement accounts that received marital funds are considered community property and are subject to the 50/50 asset division. Even if only one spouse contributed to the pension or retirement plan, depending on when the payments were made, both spouses may have a right to the money in the plan.

California law may allow interest earned on pre-marital contributions to be considered separate property and not subject to division with the other spouse. Therefore, you may be able to claim a retirement account opened before your marriage as separate property.

Protecting Your Rights and Assets

Dividing a pension or retirement plan between spouses in a divorce property division requires a special order called a Qualified Domestic Relations Order (QDRO) or a Domestic Relations Order (DRO). QDROs are utilized for private retirement plans, while DROs are used for state and federal public retirement plans. This legal order specifies how much each spouse receives. Unless there are separate agreements that apply, the funds qualify as community property and will be divided equally.

A QDRO/DRO takes time to prepare, file, receive a court signature, and be served on the retirement account holder. Before this order becomes binding, a spouse participating in the plan could withdraw some or all of the funds without notifying the other spouse. You may be able to contest this action, but that will take time and money.

Also, without a QDRO/DRO in place before the divorce is granted, someone else may inherit the retirement or pension assets in the event of a death because you are no longer the rightful heir.

Get Seasoned Help for Your Divorce Property Division

The Law Offices of Judy L. Burger helps Californians negotiate the rocks and shoals of divorce and its many details. Among the most complex is dividing marital property—especially pensions and retirement accounts. Judy Burger is a Certified Family Law Specialist with notable experience in property divisions who can help you ensure a fair and equitable distribution of assets in your divorce.

Don’t risk everything you’ve worked for – contact us right away for guidance and representation in your California divorce. We have eight locations throughout North, Central, and Southern California to serve you.