A man recently approached us with a complicated situation. Though he and his wife mutually agreed that divorce was in their family’s best interest, her reaction was negative to say the least when he served her with divorce papers. She promptly threatened to give 30 day notice to dissolve the lease agreement on the condo the couple rent, which, problematically for the husband, is leased only in her name. After those 30 days, she plans to move to another town, into an apartment where she has already cosigned a lease with her new boyfriend. To add fuel to the fire, the couple share a 12 year old daughter who wishes to remain with the father because she is afraid of her mother’s boyfriend. Of course, the mother wants custody of the daughter. This man states he can’t afford the rent on his own, and he believes his wife is trying to put him on the streets. His questions: Can she just throw him out? Can she just end the lease?
The leasehold interest, although hers as far as the landlord is concerned, is community property, so it therefore belongs to both the wife and the husband. Legally, her ability to evict him as a subtenant is exceedingly dismal. If she proposes to stop paying the rent and move out herself, that might be prohibited under the automatic restraining orders printed on the second page of his petition, because she’d be disposing of community property without his consent. However, we of course had to give him the honest truth about this situation. This type of discrepancy is highly technical and academic; dealing with it in a divorce case would be time consuming, and the result problematic. The reality is that if no one is paying the rent, he’ll have the landlord evicting him, no matter the status of his wife. The best thing for this man to do for himself and his daughter is to find a place to live that he can afford. That way, he isn’t dependent on the actions of his soon to be ex wife.
For more information on community property, as well as tenant protection, please visit their following respective pages on our website: http://stanprowse.com/community-property and http://stanprowse.com/real-estate-law/landlord-tenant-law
Going through a divorce is never fun. There’s no sense in denying that. The best thing you can do is work hard to succeed in other aspects of your life. For example, a potential client recently came forward with some good news despite his in-process divorce. He’s been promoted, and starts a new job with a signifciantly higher salary next week. His concern regards alimony. When he filed for divorce earlier this year, he was making considerably less money. The couple has yet to go before the judge and finalize their divorce; the date is set for later in the month. So, will alimony be calculated from his reported earnings when he initially filled for divorce, or will it be based on the higher salary he is about to receive?
We started by informing this man that he is under a fiduciary responsibility to inform his soon to be ex-spouse regarding his change in income. The question of whether his new income will be the exclusive number considered in setting spousal support is another matter. The average of the last twelve months earnings is statutorily presumed to be a proper basis. Some judges stubbornly stick to that even under situations such as the one this man is in. Since he will have already started his new job, and if it is likely to be a long term position, I expect his judge will probably use his prospective income when it comes to his ability to pay, one of the factors the judge must consider. However, the primary factor is the standard of living during the marriage, which was undoubtedly based on this man’s previous income. There is no computer formula used for spousal support awarded in a final judgment, so there is in fact no “calculation” to be made by the judge. It’s a matter of weighing a number of factors set forth in Section 4320 of the Family Code.
For more information on calculating alimony and spousal support, please visit our website: http://stanprowse.com/spousal-support-california
Is a piece of paper sufficient protection? Are words signed in ink adequate defense against an ex-spouse going against his or her word?
Let’s take a look. A woman recently approached us with the following question: can a spousal support ruling be reversed despite the fact that both parties signed the waiver? In her specific case, she and her ex-husband signed that they “voluntarily, knowingly and intelligently” waived their rights to spousal support. It was specifically stated that neither party could change his or her mind, even if circumstances changed. But then, the issue of child support arose. This woman’s ex-husband threatened to return to court for spousal support if she seeks out child support for their children. Is this threat a water gun spray painted black, or can he actually reverse their agreement?
When this couple mutually agreed to forever waive their rights to spousal support as part of their divorce agreement, the court’s ability to order spousal support was terminated. This woman need not fear; the court would not be able to grant her ex-husband’s request if he files a Request for Order.
For more information on spousal support and possible modifications to spousal support, please visit our website: http://stanprowse.com/modifying-child-support
A woman recently approached us with an inquiry regarding the annulment of her marriage. She has been married to her husband for 13 years. However, one couldn’t call this a “happy” union, as it isn’t much of a union at all other than on paper. Though the couple do share a child, he was born before their legal marriage. According to the wife, her husband lives with another woman if she is his wife, and the two share multiple children. The woman asks us to determine whether this is enough to receive a marriage annulment.
The short answer to her question is simply no. However, if we were provided with more information regarding the marriage, we would be able to provide more insight. For example, did the couple live together AT ALL (even one night) after the marriage ceremony? Did the couple have sex AT ALL after the marriage ceremony? Was the husband already sleeping with someone else when the couple was officially married? There’s a case called Marriage of Johnson, (1993) 18CA4th 499, 502, which suggests that a spouse’s intent to ignore his/her marital obligation of fidelity may support a finding of fraud, which is one of the few grounds for a voidable marriage, and thus an annulment. If this is indeed the scenario for this woman, she could possibly obtain an annulment. With that being said, she should consult with an attorney to see if she is able to avoid a formal divorce, or if she will need to file for dissolution of marriage.
For additional information on marriage, divorce, and family law, please visit our website: http://stanprowse.com/family-law-2
You’re recently remarried after divorcing your first husband or wife three years ago. You’re happy and excited to be starting fresh. You decide to buy a new house with your new spouse, and the lender asks for a copy of your divorce decree, but you can’t find it in your documents at home. No big deal, you’ll just go to the court house and get a copy. Shockingly, when you arrive, you’re told that there is no divorce decree on file. Surprise! Your divorce was never finalized, and according to the court, your case is still active. Imagine going home to the person you just married, and having to tell him/her that on paper, they’re not the only wife or husband you are legally married to. Talk about cutting the honeymoon period short!
That’s the exact situation a potential client was in when he went to buy a house and along the way discovered his dissolution of marriage was never finalized. He was the respondent, and currently pays child support every month as ordered by the judge. His question was whether or not his lawyer had the responsibility to “see the case all the way through”, especially considering the fact that he was given the impression that everything was taken care of. And, if so, what recourse could he take considering the economic and emotional stress this newfound discovery places upon his and his new wife’s head.
Now, despite the considerable carelessness of this man in his divorce and remarriage, a lawyer has a fiduciary duty to his/her client. That being said, he should contact his lawyer and demand the situation be remedied. A threat to report the incident to the State Bar should grab their attention. Of course, the nature of the last communication between this man and his lawyer could be of importance. It’s possible there is a letter in file asking for him to contact his attorney and he failed to do so, or something along those lines. No matter the circumstance, the first step is to meet with his lawyer and find out how this colossal mistake occurred. Going from there with the legalities, from now on he should remember to dot his i’s, cross his t’s, and double knot his shoelaces.
For more information on divorce, please visit our website: http://stanprowse.com/divorce
A man recently approached us with questions regarding the financial steps that should be taken before marriage. This man is engaged to a woman with over $40,000 in student loan debt. He does not want to become responsible for this financial burden once they’re married, but doesn’t know whether a prenup or a postnup would better serve his situation.
First, it needs to be understood that the separate property of one spouse is not liable for the premarital debts of the other spouse. Community property, however, is liable for the premarital debts of the parties. Therefore, money placed in a joint checking account after marriage is considered community property, which in turn can be accessed by the creditors of this man’s future wife. The solution is to prevent community property from arising in one’s marriage through a premarital agreement.
This can be arranged in a prenup which provides that all earnings during the marriage remain separate property, and that any business you may own when you marry will remain separate property. We advised this man to carry out a prenup rather than a postnup, as the validity of the latter might be questioned as a fraudulent conveyance. Plus, spousal support can be waived in a prenup, but not in a postnup. Of course, obtaining a bullet-proof premarital agreement is extremely difficult due to relatively new statuary requirements. A good place to start would be with both spouses hiring separate lawyers, and look at the situation holistically.
For more information on premarital agreements, please visit our website: http://stanprowse.com/premarital-agreements