WHAT CAN YOU GET FROM YOUR DIVORCE?

WHAT CAN YOU GET FROM
YOUR DIVORCE?

By:

Roman P. Mosqueda, Esq.

You have endured for years living with your spouse: his or her infidelity, lack of care, attention, and love, and extravagance in spending community monies, even jealousy. Or you have simply drifted away from each other.

You can no longer take it. Counseling does not or cannot help mend the severed relationship. You decide to leave your spouse, and file divorce.

What is in it for you beside the dissolution of marriage status? You may be entitled to spousal support and community property apportionment.

Duty To Support
Spouse And Circumstances
To Be Considered:

Under section 4300 of the California Family Code, subject to certain conditions, “a person shall support the person’s spouse.” And section 4320 thereof enumerates the circumstances to be considered in ordering spousal support.

These circumstances for spousal support are:

(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage; taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retaining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interest of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be selfsupporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
(n) Any other factors the court determines are just and equitable.

Community Property
Apportionment In Divorce:

A. Personal Injury Damages:

All monetary damages recovered by a spouse in compensation for tortious injury and property purchased with proceeds therefrom including bodily injury, emotional distress, worker’s compensation benefits, disability pay, defamation, etc. are community property(s), if the injured person was married at the time of injury.

But upon dissolution of marriage, personal injury damages and property purchased therewith, even if characterized as community property, are ordinarily awarded one hundred percent (100%) to the injured spouse, or not less than fifty percent (50%).

B. Property Or Loan Acquired On Credit:

The characterization of property or loan proceeds acquired on credit depends on the lender’s reliance or recourse on the satisfaction of the debt.

If the lender relies on separate property for payment of the debt, the loan proceeds are characterized as separate property.

On the other hand, if the lender lies on community property owned by both spouses for payment of the debt, the loan proceeds are characterized as community property.

More particularly, property obtained on either spouse’s general credit during the marriage is characterized as community property. But loan proceeds procured by mortgage of a spouse’s separate property are considered separate property.

Conversely, loan proceeds secured by the purchased property itself is ordinarily community property, if the loan was obtained during the marriage.

After separation of the spouses, even before dissolution of the marriage, all acquisitions by either separated spouse are characterized as separate property.

C. Apportionment Of Interests
In Family Residence:

I. Home Acquired During Marriage:

If both spouses purchased a home during marriage with down payment from a spouse’s separate property (funds) and a purchase money loan, with deed of trust thereon, signed by both spouses, the issue is whether there is both a separate and community property interest in the home.

Ordinarily, if the title to the home is taken in joint form such joint tenancy, tenancy in common, or as husband and wife, the home is characterized as community property at the dissolution of the marriage, under the community property presumption.

Even so, the spouse who paid for the down payment has a right of reimbursement for the traceable separate property (funds) contributions to the principal as well as any equity.

But if the community property presumption is rebutted or overcome, the interests in the family house must be apportioned between the separate and community property: the separate property interest in the proportion the down payment bears to the purchase price, and the community property interest in the proportion the community loan bears to the purchase price.

If the mortgage obligation has been reduced by payment of community property (funds), the community property is entitled to equity contribution in reduction of the principal obligation.

Both separate and community property obtain proportionate shares in the increased value of the family home.

II. Home Acquired Before Marriage:
(Moore/Marsden Apportionment):

A spouse purchased a home while single, paying down payment and executing a purchase money trust deed loan for the balance of the purchase price.

At the time of the marriage, loan payments were made by the purchasing spouse to reduce the principal balance of the loan and the home has increased in value.

During the marriage and before separation, the community made payments in reduction of the principal loan balance. And post-separation, the purchasing spouse used separate earning to further reduce the loan principal.

According to the Moore/Marsden apportionment formula, the purchasing spouse is entitled to separate property cash interest, consisting of: downpayment, premarital loan payments, and post separation loan payments plus premarital appreciation and the separate property interest percentage of the during-marriage appreciation.

The separate property interest percentage of the purchasing spouse is determined by adding the down payment plus the difference of the separate property loan, less the community property payments, and dividing the total by the purchase price.

The community cash interest consists of: its loan payments during the marriage and the community interest percentage of the during-marriage appreciation. The community interest percentage is determined by dividing the total amount of community payments reducing the loan principal by the purchase price.

In addition to the cash share of the purchasing spouse, he or she is entitled to one-half of the community interest. And the other spouse is entitled to the other half of the community interest.

The purchasing spouse who has title to the home is of course obligated to pay for the balance(s) on the principal loan or loans.

(The Author, Roman P. Mosqueda, has handled numerous property divisions in divorce cases as a family law attorney. He is also a licensed California real estate broker.)