While the best way to protect your investments in divorce starts long before the divorce ever becomes an issue, i.e., through a prenuptial agreement, trust, estate planning, or other pre-divorce strategy; many people do not have such plans in place. In the absence of a pre-divorce plan, the burden is on you to prove that your investments are separate property not subject to division.
Depending on the state you live in, there are generally two basic methods of dividing assets in a divorce: equitable distribution and community property. California is a community property state, which means the court will divide the couple's community assets equally. Any asset obtained or income earned during the course of the marriage is considered community property unless other agreements have been made, such as a prenuptial agreement, or some particular exception to that characterization exists in the law. However, certain assets, called separate assets, that are obtained during the marriage will typically not be included in the community property estate. Two common examples of separate assets acquired during the marriage that are generally not considered part of the community estate include gifts and inheritances. In addition to gifts and inheritances, anything acquired or owned before the marriage and anything acquired after the parties separate are also separate from the community estate.
Here's a nightmare scenario. Imagine divorcing from a spouse and then being diagnosed as HIV positive. Such a scenario would be a nightmare because of both the disease and the fact that it was transmitted by someone you loved and someone with whom you might have believed yourself to be in a monogamous relationship. Fortunately, should this kind of event occur, there is something you can do about it. Legally, you can seek restitution against your partner by filing a claim known as a domestic tort.
In the thick of a divorce, tensions often run high. Each spouse may wish nothing but pain and misery for the other. Such feelings, though unfortunate, may be unavoidable. Even the most agreeable people can become petty and mean in the midst of divorce.
A child whose parents are divorcing may feel as if he needs his own lawyer-someone to articulate his feelings of confusion and sadness, someone to make his parents aware of what he needs to grow into a healthy, well-adjusted adult. While minor's counsel may be appropriate in certain situations, their job is to represent the children's best interests to the court, not the best interests of the parents. Therefore, parents must take it upon themselves to understand their children's fears and wishes and then be prepared to address them in a compassionate and child-focused manner.
Are you dealing with a spouse who is telling lies to your children? If you are, you are not alone. Unfortunately, some divorcing spouses engage in dirty, underhanded tactics. A husband, for example, may lie in court, claiming that his wife is a drug addict and incapable of looking after their children. A wife, in turn, may falsely claim that her husband abused her during the marriage and he continues to stalk her. In both cases, the spouses resorted to false claims as a means of hurting each other and advancing their own agendas. Whether a court ultimately believes either spouse is open to debate.
One key to being a successful parent after divorce is to clearly and directly follow the law. It is never a good idea to sneak around or do anything that a court would consider illegal. Sneaky, underhanded actions can result in penalties for the parent, ranging from fines to losing custody. In an effort to understand how to act transparently, consider a post-divorce scenario where the court order (typically the Judgment) provides that the son will live with mom. He is, however, actually living with his father, even though father does not have court-ordered custody. In this case, the father is technically in violation of the divorce judgment; the new arrangement is, after all, not what the judge ordered. Even if Mom approves of the child living with Dad, the situation still lacks a judicial "stamp of approval."
Picture this: Your ex-spouse takes the children without warning and moves to a foreign country. This nightmare becomes reality for all too many parents. What do you do if your children are now thousands of miles away with your ex? Fortunately, parents are not entirely powerless in this situation. International child abduction is a serious problem that the international community has taken steps to address. Abduction is principally addressed by an international treaty titled "The Hague Convention on the Civil Aspects of International Child Abduction." This treaty is a formal agreement between 73 member nations, including the United States and other nations such as the U.K., Korea, and Brazil.
Life insurance can be a key component of a divorce settlement. This type of insurance is often used to ensure that there will be enough money to support the children if the parent paying child support dies. It is a means of supporting one's children that even death cannot stop. But in order for life insurance to work one parent must have a life insurance policy. If neither parent has life insurance, there may not be a fund from which such support can be paid. Courts can work to avoid this situation by ordering parents to maintain, even after divorce, a life insurance policy that names their children, the other parent or even a testamentary trust as beneficiaries.
The updated 2013 Fourth Edition of The Essentials of California Family Law by Marshall W. Waller, CFLS, is available for purchase just in time for the upcoming October 2013 California Certified Family Law Specialist Exam.