While lawyers often get bogged down in the details of family law, it is easy to forget that the concept of community property is foreign to many people. A lot of people see a marriage as a symbol of their love and commitment that might come with a few tax benefits, but in reality, it is a much bigger financial commitment than many people are aware of.

When you get married in California, you have created a "community" and both members of the community own everything equally. All property received by members of that community belong to the community and all debts incurred by members of that community are owed by the community. The only things that stay separate are 1) what you had before you joined the "community", 2) what you receive after you leave the "community", and 3) what you receive as a gift, inheritance, or bequest.

So, while you might think that because you have operated separate bank accounts and separated your billing, it doesn't matter when you get divorced. Every asset and debt incurred by the community is equally yours and equally theirs, unless you have a valid prenuptial or postnuptial agreement saying otherwise.

Thus, when you get married in California, don't take the financial aspect of the marriage lightly. Get your ducks in a row and educate yourself about what is in store for you, so that you can enter your marriage in a positive, informed mindset. Maybe even consider getting a prenup to better delineate whose property belongs to who.   

With the holidays behind us, engagement season has come to a close. Many happy couples are enjoying their newly-engaged life and planning for weddings in the near or distant future. And while it might not be the most romantic thing to do, it might be a good time to start working on a prenup.

Prenups have a lot of negative misconceptions, as newly engaged couples don't want to be thinking about divorce. But the reality is that many of these happy marriages end in divorce and outlining your assets and wishes before you get married can make things a lot easier in the future. Further, it can have benefits beyond a potential divorce, as it can help you have a clearer picture of your joint finances as you enter into a partnership with your soon-to-be spouse.

Despite what you might think, a prenup isn't really a "divorce plan." Instead, a prenup outlines who owns what heading into the marriage, and how future assets will be classified. If you have a car, a house, a large sum of money, or any other valuable assets, it would be worthwhile to make those lines clear on your prenup, so that when you get married, you don't have to worry so much about keeping things separate.

In addition, ironing out details regarding finances before you get married will give you a resolution that is fair for all. Since you're about to get married, you probably like each other, and aren't looking to screw each other over. Thus, both of you will be more reasonable in deciding how to split things later.

To add to all of that, you are about to get married, so learning about each other's finances and figuring out your life plan is beneficial for your future as a couple. You should be able to have open and honest conversations about finances in order to make your marriage work, and starting before you get married can help set you on the right path. After all. financial strain is one of the leading causes of divorce, so being open and honest from the beginning is crucial.

Finally, it is true, having a prenup will help make a potential divorce easier. Some people say that's a reason not to do it, but if you think practically, this could save you a lot of stress. Simply having a prenup isn't going to make you want a divorce, but it could help you avoid a long, drawn-out divorce that could have negative consequences for any children you might have or on your emotional well-being. So, while you are happy and in love, get a prenup and make the future easier on yourself.

While in typical lawsuits, you need to be able to locate and serve the other party in order to initiate proceedings, there is another way to satisfy service for a divorce in California. If your spouse abandoned you and you cannot reasonably locate them, you can request for the court to complete service by publication in a newspaper in the area you believe your spouse is located. In order to do so, you must convince the court that you took considerable steps to locate your spouse. This could include hiring a process server, calling your spouse's family and friends, and running internet searches. Once the court approves your request, you must publish the petition and summons in a newspaper in the area you believe your spouse is located for four weeks. After 28 days, the 30-day clock for your spouse to respond begins, and if they don't respond within those 30 days, you can request a default divorce with the court. So, if your spouse has abandoned you and you are worried about the difficulty of getting a divorce, take some comfort in knowing it might be easier than you think!

Child custody and visitation orders can be so complicated to make decisions about. In addition to trying to make the best schedule for the children, the allocation of time can have a large effect on child support payments. In addition, when going through a separation, parents are often less willing to agree about basic decisions surrounding the child and over-analyze the other parent's choices. Thus, even after the court has already created a custody and visitation order, many co-parents continue to return to court to make alterations based on the other parent's bad behavior. 

However, it is important to add some perspective before you take your ex to court to modify custody and visitation orders. There are many practical factors to consider before returning to court, because the less court involvement in a child's schedule, the better off that child will be. 
   
                      1.   Remember that your ex is a human being: While you may not like them anymore, they might not be a bad parent just because they messed up one time. Imagine if you were still in a relationship with them. Would you force them to spend less time with their child if they forgot to pack your kid's lunch one day? Would you not let watch your child overnight because they were 15 minutes late to pick up your kid from soccer practice? While these seem like giant screw ups from afar, the reality is that people make simple mistakes sometimes and it isn't always a practical idea to punish them for it.

                   2.   Don't penalize your child for something your ex did: Maybe your ex did something really bad. Maybe it is worth reducing their parenting time. But at the same time, maybe your child really enjoys the time they spend with your ex, and reducing that time could be detrimental to them. 
                            
                      3.   Court costs time and money: Even if you don't hire a lawyer, going to court means you have to take time off of work, hire childcare, and drive to the county courthouse for the day. If you do hire a lawyer, you will spend way too much money on phone calls about the little things your ex did wrong and negotiations with your ex about pick-ups and drop-offs. It just might not be worth all of the costs.

Ultimately, you will save a lot of headaches and money if you sit down and talk to your ex. Remember that they are human and are bound to make mistakes. Don't get too upset over small failures. If you can talk with your ex and figure something out, it will be much more beneficial to you in the long run. I know that many of you are reading this and are thinking that you can do that, but your ex is too stubborn. Re-evaluate that stance. Often, both parties are being equally stubborn, and even if your ex is stubborn, it still might be worth it to put up with a bad person on minor issues as compared to the cost and time of going to court. 

Marriages are defined by two dates. First, the date of marriage and second, the date of separation. The date of separation can occur before the divorce petition is filed, and is defined as the date signifying a complete and final break in the marital relationship. So, with all of that information, you would assume that you would be free to do whatever you wanted after the date of separation, right? Wrong! 

In California, Automatic Temporary Restraining Orders (ATROs) go into place as soon as you are served with a Summons. You can find the ATROs listed on the second page of your summons. This prevents you from doing a lot of things with your property and money until your divorce is finalized.

First, you cannot take any of your minor children outside of the state and you cannot apply for a new or replacement passport for any minor children, unless you have the other party's written permission or a court order.
Basically, the court doesn't want you travelling and attempting to flee the state with your children. 

Second. you cannot alter any of your insurance policies held for the benefit of your kids or your spouse. Altering these policies would include cashing them, borrowing against them, canceling, transferring, disposing of, or changing the beneficiaries of the plan. This includes life, health, automobile, and disability insurance. So, while you would think it makes sense that you should remove your soon-to-be ex-spouse as your life insurance beneficiary, you are unable to do so until the divorce is finalized.

Third, you cannot transfer, encumber, hypothecate, conceal, or dispose of any property, real or personal, whether community, quasi-community, or separate, without the written consent of your spouse or a court order. This does not include the usual course of business or the necessities of life. This provision is broad and tricky. Essentially, the court wants to prevent you from hiding and destroying assets. But at the same time, the court is allowing you to use your property (i.e. money) in the usual course of business and for the necessities of life (food, shelter). So, you will want to avoid using any money on expensive purchases until the divorce is finalized, and even though you might want to sell the furniture that reminds you of your ex, you'll have to wait until the divorce is final.

Finally, you cannot create a nonprobate transfer or modify a nonprobate transfer without the written consent of the other party or a court order. You may revoke a nonprobate transfer or eliminate a right of survivorship, but you muse file notice of the change with the court and serve the other party. This section essentially deals with trusts. You cannot create a trust and put any property in it or modify an existing transfer of funds to a trust. Basically, this is another method for the court to prevent you from trying to hide assets and prevent your spouse from having access to property. You can revoke transfers and eliminate rights of surviviorship, but you just have to provide notice. 

In conclusion, when you are in the middle of a divorce, it can be difficult to move on until the divorce is finalized, as you are prevented from changing many things before that date. Thus, it could be important for your mental health, well-being, and long-term finances to work hard and get your divorce finalized as quickly as possible, so that you'll know that your property belongs to you, you can do whatever you want with it, and you can finally move on with your life.

Most co-parenting plans revolve around the idea that both parents can spend time in their children's lives. Usually, co-parents live relatively close to one another and are able to exchange children fairly easily. However, oftentimes, one parent moves away, whether it be for a job, a school, or for family reasons. In these situations, it can be tough to determine a child custody plan, as both parents are far away from each other. 

In California, the non-custodial parent has the burden of proving that the move will be harmful to the child. If the move is determined harmful, then the non-custodial parent could be awarded custody. However, in cases where the parents have joint custody, the court must determine what is in the best interests of the child to come up with a new custody arrangement. Since the parents are so far away, frequent exchanges are not likely to be in the best interest of the child, so one parent is likely to have the majority of parenting time.

The court will likely look to many factors to determine what is in the child's best interest. The first factor the court will consider is which outcome provides the most stability and continuity for the child. If the child has spent the majority of their time with the moving parent since birth and is most comfortable with the moving parent, that could be a factor in favor of the moving parent. Conversely, if the child has laid many roots in the current area, has friends and family locally, and would benefit from staying in that environment, that could be a factor in favor of the non-moving party. The court could also examine the child's relationships with both parents, the parents' ability to co-parent, the age of the child, the distance of the move, the reasons for the move, and where the child wants to live. 

Ultimately, a move-away case is a very complicated case, as both parents could be great parents and could be amazing at co-parenting, but frequent exchanges just simply wouldn't be possible. Unlike typical custody cases, the court cannot create an equal timeshare, as such frequent exchanges at a long distance would not likely be in the child's best interest. 

In California, spousal support can be ordered based on the extent to which the earning capacity of each spouse is sufficient to maintain the standard of living during marriage. One of the factors in determining this is each spouse's earning capacity. Essentially, if you are able to work and earn enough to support yourself but choose not to and just receive support, that isn't good enough. You have to show that you are unable to earn enough to maintain the standard of living during the marriage.

In the case of David Hasselhoff and Pamela Bach, Bach claims that she is unable to find work due to a 2003 motorcycle accident. But after seeing recent videos online that show Bach playing basketball and being very physically active, Hasselhoff is claiming that Bach's claims are bogus, and that she should no longer be receiving spousal support. If Hasselhoff's claims that Bach is able to work are true, his spousal support payments could be lowered or even terminated. This serves an important reminder that court orders in family law can often be modified, so while you might think something is over, it can always come back around.

There are likely more details than have been made public about Bach's ability to work, but nevertheless, this goes to show the grand effects that social media can have on our divorce disputes (see our blog from October about social media: http://www.eastbaydivorceattorneys.com/blog/divorce-and-social-media-be-careful-what-you-post ). 


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Taxes are pervasive in every field of law and family law is no exception. Tax laws play key roles in shaping how family law attorneys tackle property division, child support, spousal support, retirement plans, and other issues. Recently, Congress proposed a new tax plan that will change the way many families calculate their taxes. In particular, one proposal will have a large impact on how divorced couples will be taxed on spousal support payments.  

Under our current tax laws, spousal support is deductible for the paying spouse, and taxable income of the receiving spouse. The proposed plan would flip this, causing the paying spouse to pay spousal support in their after-tax income and allowing the receiving spouse to earn spousal support tax-free. Essentially, this change would further increase the burden on the paying spouse and alleviate the tax bill for the receiving spouse. 

However, it's not quite that simple to say that paying spouses will suffer the most under this new tax law. It is possible that courts would order lower spousal support payments, knowing the changed tax consequences. Nonetheless, the new proposed tax plan will have an effect on divorcing couples. We will just have to wait and see what those effects will be.

When going through a divorce, social media might seem like a person's best friend. Social media can be used as a way to re-connect with friends that you didn't talk to during your marriage a way to prove to nosy people that you are doing just fine, or just as an outlet to talk to the world.

While these uses can help you get through your divorce, they could come back to bite you in court. Family law attorneys are frequently using social media evidence as proof in divorce, child custody, support, and domestic violence cases. Posts found on your social media accounts can be used as proof of your state of mind, proof of communication and time spent with particular people, proof of spending income, evidence of time and place of certain actions, and various other things. While you might think these posts are harmless, even the most simple post can go a long way to dismantling your legal arguments.

For one example, in order to request more time to look for a job before altering a spousal support arrangement, you might tell the court that you have been extremely depressed since your spouse filed for divorce and you recently hurt your back while taking care of your children. However, if you posted a picture on social media two days ago of you smiling with friends at a volunteer event with a heavy box in your hands, this post could be used to show that you are happy and able to work.

While you might be able to explain away your social media posts, it might be best to not put yourself in these positions in the first place. Be careful what you are posting on social media when you are going through a divorce and consider deactivating your accounts until everything is finalized. It might seem extreme, but your social media posts provide clues into what you are doing with your life and how you are spending your time, and those little clues could be enough to put you in some real hot water.

October is Domestic Violence Awareness Month, so we thought we would shed some light on the legal effects that Domestic Violence can have on child custody orders. Domestic Violence can have long-term emotional and developmental effects on children beyond a custody order, but a finding of domestic violence can have large effects on child custody arrangements.

In California, the preferred child custody arrangement is joint custody to both parents. (Cal Fam Code §3040.) However, when the court finds that one parent has perpetrated domestic violence against the other during the past five years, this creates what is called a “rebuttable presumption” that it is not in the child’s best interests for the perpetrator to have sole or joint custody. (Cal Fam Code §3044.) This means that in order to receive sole or joint custody, the abusive parent has a burden to show that it would be in the best interest of the child. Basically, a finding of domestic violence makes it more difficult for a perpetrator to have custody of their child.

It is important to keep in mind that custody arrangements can change overtime, as the courts still generally favor joint custody. So, if the perpetrator shows demonstrable improvement in their behavior, they may be able to “rebut” the presumption and regain custody. But, it can be comforting to know that at least in the initial stages, California courts recognize the harmful effects of domestic violence on children.