Getting Divorced in California

Attorney Emily Doskow
June 2012, 4th Edition

Nolo’s Essential Guide to Divorce guides you through all stages of separation and divorce with practical wisdom and compassion. Make the process simpler and reduce your expenses armed with information that will help you:

Determine child support and make sure it’s enforced.
Work with mediators or lawyers.
Avoid expensive and painful court battles.

California Divorce Basics

If you’re a California resident getting ready to file for divorce in the Golden State, here’s the lowdown on the basics of divorce laws.

California Divorce Information

For in-depth analysis of divorce and family issues in California, check out California Divorce & Family Law, on You’ll find plenty of information on getting a divorce, child custody and support, alimony, and more.

Residency Requirement. Before you can file for divorce in California, at least one spouse must be a resident of the state for six months or 180 days. Once you’ve filed the divorce and delivered the paperwork to your spouse, you must wait at least six months from the date your spouse received the papers before the divorce can be finalized.

No Common Law Marriage. There’s no common law marriage in California—you aren’t married unless you obtained a marriage license and entered into a legal relationship, and you can’t get a legal divorce unless you were legally married. It doesn’t matter how long you’ve lived together or whether one of you took the other’s name.

Grounds for Divorce. California is a no-fault state, which means that you won’t argue for a divorce based on the other person’s wrongdoing. Most often, the basis for a divorce is “irreconcilable differences” that have caused the marriage to break down. Fault isn’t entirely irrelevant, though—if your spouse abandoned the family, committed adultery, or was violent, the court may consider those facts in dividing property or awarding alimony.

Property Division. California is one of only a handful of states that use a community property system, meaning that all of the property and debts that you acquired during your marriage are shared equally between the two of you at divorce. That includes income of all kinds, savings from income, property, and anything else that you own. However, it doesn’t include either spouse’s separate property, which includes inheritances, gifts, and property that the spouse owned before the marriage, as long as the separate property wasn’t mixed up with the marital property.

Child Custody. California courts begin with a presumption that it’s best for a child to have frequent and continuing contact with both parents after a divorce. If possible, judges want to support joint custody arrangements. However, the details of the parenting plan will be determined by the children’s best interests. If parents can agree on a parenting plan, the court will usually approve it. If you’re not able to agree, you’ll be ordered to attend mediation sessions, and if that doesn’t work, the court will take over and the judge will decide how you’ll share time with your children.

Child Support. Like all states, California requires parents to support their children, even after a divorce. The amount of child support depends primarily on each parent’s income and other resources, and how much time each parent spends with the children. Sometimes the courts will “impute” income to a parent who has the capacity to earn more than he or she actually is earning.

Same-Sex Marriage and Divorce. Same-sex marriage isn’t legal in California now, but it was for a short period in 2008, and California also offers domestic partnership registration for same-sex couples. Any same-sex couple who registered or married in California at any time can get divorced in California, even if they don’t live in the state any more.

Resources. The California Judicial Council provides a great deal of information on its website at You can get fill-in-the-blank forms and instructions there; you can also get the forms you need at your local courthouse or the local law library. Your county probably has information on its website about your local courts and divorce procedures.

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Divorce or Separation

There are 3 main ways to end a marriage or registered domestic partnership in California: divorce, legal separation, and annulment. It is not necessary for both spouses or domestic partners to agree to end the marriage. Either spouse or partner can decide to end the marriage, and the other spouse/partner, even if he or she does not want to get a divorce, cannot stop the process by refusing to participate in the case. If a spouse or domestic partner does not participate in the divorce case, the other spouse/partner will still be able to get a “default” judgment and the divorce will go through.

California is a “no fault” divorce state, which means that the spouse or domestic partner that is asking for the divorce does not have to prove that the other spouse or domestic partner did something wrong.  To get a no fault divorce, 1 spouse or domestic partner has to state that the couple cannot get along. Legally, this is called “irreconcilable differences.”

After you decide how you want to end your marriage or domestic partnership, you need to plan your case ahead of time. Think about how you are going to handle your case. Planning before you start and talking to a lawyer can save you time and money as you go through the court process. And keep in mind that, normally, it does not matter who is the first to file the divorce or separation case. The court does not give any preference to the first person to file or a disadvantage to the person who responds to the case.

If you want to end a registered domestic partnership, domestic partners must also file for dissolution (divorce), legal separation, or annulment to end their relationship.  There is a limited exception where domestic partners can end their relationship in a summary process through the Secretary of State if they have been registered for less than five years and they have no children, no real property, very few assets or debts, and a written agreement on dividing their property, in addition to other restrictions. Click to learn more about this shorter process to see if you are eligible to end your domestic partnership that way.

Federal law does not recognize domestic partnerships for most purposes, such as Medicare, immigration law, veterans’ benefits, and federal tax laws. Domestic partners may be recognized for some federal purposes, such as Social Security. In addition, domestic partners may not have the same rights if they leave California because other states may not recognize domestic partnerships.  Talk to a lawyer if you are ending a domestic partnership and any of these issues may apply to you. You may also want to talk to an accountant who is knowledgeable about these issues. Click for help finding a lawyer.

The family law facilitator or self-help center in your court may be able to help you with the divorce or legal separation process and help you understand what your options are, decide what you want to do, and get started with your paperwork. You can also talk to a lawyer to get legal advice.

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10 Tips for Surviving the Post-Holiday Divorce Season

By Joslin Davis


After the ball drops on New Year’s Eve, there is a trend most matrimonial attorneys have become very familiar with — a post-holiday season surge in divorce filings. Marriages end for many reasons all throughout the year, but when the phone rings for a family lawyer after January 1st, the voice at the other end is often someone who is resolved to move forward with a divorce. Whether you are the spouse who wants out of the relationship or the one who might feel blindsided by the news of a filing, you should consider the following items:

1. Keep the peace.
Divorce usually sets off a firestorm of emotion for everyone involved. Do not make matters worse by inflaming your spouse with hurtful words or spiteful comments. This is especially true in custody disputes when the focus will be on what is in the best interest of the children.

2. Don’t move out of the house.
The marital home is often the biggest asset negotiated over in divorce. Unless there are issues of personal safety for you and your children, do not put yourself at a disadvantage in the settlement process by moving out of your home before you speak with a lawyer about the risks involved.

3. Maintain the status quo.
Do not make any drastic changes to your lifestyle or with your finances. If you have been planning a major trip or purchase, hold off on making any firm commitments. If you are the bread winner of the family, do not abruptly shut off the stream of income to your spouse.

4. Keep the kids out of it.
Divorce ends your relationship with your spouse; it does not end your child’s relationship with their parent. Do not make this process more difficult on your children than it already is by involving them in this process. Do not belittle, swear, or yell at your spouse in front of the kids. Keep your focus on what is in the best interest of the children and co-parent accordingly.

5. Stay off of social media.
Be careful about what you post and who can view it. Adjust your security settings so that your social media accounts are private and not accessible to the public. If you feel the need to post on social media, do not post anything you would not want a judge to read when deciding who gets custody.

6. Don’t destroy potential evidence.
Embarrassing texts and emails are never as bad as having to admit to the judge that you tried to delete them in anticipation of trial. Do not erase data, do not delete emails or social media accounts, and do not throw away anything that you think might be relevant in court. Not only is this illegal, but it prevents your lawyer from representing you effectively.

7. Prepare for an arduous process.
Although an actual divorce is quick, reaching an agreement on property division, alimony, and custody can take years. If you have young children and child support is an issue, then it may be over a decade before this process is finally over. Hopefully everything goes smoothly, but if it doesn’t, at least you are prepared.

8. Get to work.
Start collecting documents and information relevant to your relationship with your spouse and your children. Gather as much financial information as you can. Get these documents to your lawyer and let her decide whether something is important.

9. Consult with a lawyer.
Whether it is you or your spouse who wants a divorce, you need to speak with a lawyer to learn your rights and to learn about the marital dissolution process. Each state has different laws when it comes to divorce and the information you find online may be wrong or inapplicable to your particular case. A consultation with a lawyer who specializes in family law can help you understand your case and can make you aware of potential issues that may be raised or contested by your spouse in settlement negotiations.

10. Keep your lawyer in the loop.
Once you retain an attorney, use them to your advantage by providing any documents or information they request and keeping them informed of any changes involving you, your spouse, or your children. The more your lawyer knows about the facts of your case, the better.

For many spouses who waited until after the holiday season to file for a divorce, they had been patiently delaying the inevitable in order to have one last gathering together as a family. It is important to try and maintain this spirit of cooperation as you move forward with, along with many other spouses throughout the country, a very carefully timed New Year’s resolution.

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How Hiking Helped Me Move Past The Pain Of Divorce

By Brittany Wong
If there’s ever a time you need a little distraction in your life, it’s during the divorce process. That’s why we launched our Divorce Care Package series. With each post, we’ll show you what things — books, movies, recipes — helped others relieve stress in the midst of divorce, in the hopes that a few of their picks will serve you well too. Want to share what got you through your divorce? Email us at or tweet @HuffPost Divorce

When her marriage ended in divorce after 10 years, Carol Schaffer wasn’t eager for a fresh start. Still shaken up by the split, Schaffer said she held tight to the people and pastimes she loved and only introduced new things into her life (hiking, “Seinfeld” binge-fests) if they helped her heal in some way.

“You can’t change everything about your life right away after a separation,” Schaffer, who lives in California, recently told The Huffington Post. “Some people are tempted to make all kinds of changes to themselves and their lives right away, but I took the most comfort in the things that stayed the same like cooking big dinners and having sit-down meals with my kids.”

Below, Schaffer shares five things (some tried-and-true, some new) that made life a little more bearable during her divorce.

The Hobby
“There were two things that I could count on feeling after my divorce: exhausted and weak. One day when the kids were with their dad a friend invited me on a group hike. My first reaction was to laugh like a lunatic at the thought of removing myself from the couch when I didn’t have to. But once I realized that accepting the invite meant I wouldn’t be home alone doing laundry, I dug up my old Doc Martens and it was on. And thus began a year-long relationship with hiking. At first I could barely keep up. Eventually I could go for hours straight, traveling many miles, climbing, walking and navigating up and around big and small rocks. I night-hiked. I angry-hiked. I sad-hiked. Mostly I was just silent and focused on each step ahead. I gained toned legs and great cardio stamina walking those hills. What I left behind was my sense of failure and lack of confidence. I haven’t hiked in a while but I am positive that when I do go back to the trails, it won’t be quite the same as it was for that one year post-divorce.”

The Comfort Food
“I’m the type of person whose appetite matches their degree of happiness. When I am happy I eat… a lot. When I’m upset, I find it hard to keep anything down. It’s like my sense of smell and taste are directly attached to my heart. But there was one food that was I able to get down: French onion soup from Mimi’s Cafe. The rich, dark broth full of thick, sweet onions and topped with perfectly melted, bubbly cheese became my comfort food during an incredibly uncomfortable time in my life. I had my favorite meal at least once a week and each time, I had the distinct sensation of being under a magic spell. I felt nourished and satisfied and couldn’t stop smiling.”
The TV Show

“I loved ‘Seinfeld’ because it spurred on unexpected, minute-long laugh attacks but I also appreciated the fact that not one of the characters was married. I couldn’t bring myself to watch lovey-dovey sitcoms and dramas portraying the all-American family. It wasn’t that I didn’t believe in the concept of marriage and happy endings anymore. It was simply that at that particular moment in my life, I desperately needed to know that I wasn’t the only one in the world who was living a life more cynical and a little less happily ever after. More importantly I needed to see that it was still possible to be happy outside the security of a nuclear family. Jerry, Elaine, George and Kramer reminded me of all the interesting things that life had to offer — damn good soup, friends that hate the same thing as you do — outside of romantic relationships. And laughing through the ‘Seinfeld’ gang’s antics made me a better, happier mom. Years later, my oldest daughter bought me the the complete series on DVD — such a great Christmas gift!”

The Splurge
“I discovered retail therapy during my marriage. Shopping till I dropped never did solve any of my marital problems, but it momentarily shifted the focus away from the dingy and sad to the new and sparkling. When I left my husband my urge to shop lessened but I still bought candles. I was particularly obsessed with peach scented candles from Wicks ‘N’ Sticks. The flickering dancing light from the candles mixed with the delicious scent of peaches was seductively intoxicating. I was allowing myself to take pleasure in things and life again. I had not realized how far I had retreated into my own personal misery until I started literally letting the light back in with candles!”

The Music
“I’ve always loved music but my taste swayed toward the loud, defiant and meaningful during my divorce. I had anger and I had pain, but I definitely did not want to carry it with me all day long. I had to put those emotions on hold if I was going to function around people who weren’t experiencing divorce alongside me. That said, I made sure to give myself the time I needed to experience and just sit with my feelings, usually with the help of music. Many of the bands I found myself drawn to were grunge bands with a lot to say and hot lead singers sporting long, greasy hair (what can I say, I could relate!). In particular, I listened to a lot of Pearl Jam, Nirvana, Soundgarden and Alice in Chains. Alanis Morissette’s ‘You Oughta Know’ was very close to becoming my very own ‘Star Spangled Banner.’ I sang it out loud and proud. I sang it in the car and shouted it in the shower. It soothed and satisfied my soul.”

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Avoiding a Costly Cohabitation ‘Divorce’

By Joslin Davis

As an increasing number of couples agree to live together rather than marry, attorneys are seeing more and more cases involving break-ups leading to the courtroom. According a recent survey of the American Academy of Matrimonial Lawyers (AAML), 45% of the members find that legal disputes between unmarried couples who had previously lived together have been on the rise during the past three years. In all, 26% have cited an increase in cohabitation agreement requests from unmarried couples.

It is important to remember that not being married does not prevent a partner from attempting to make a claim on your assets once a live-in relationships ends. Even without marriage, a growing number of live-in relationships are producing a wide range of legal complexities that consequently require the involvement of legal counsel. If cohabiting partners do not have a mutual understanding of their financial obligations to one another during their period of cohabitation, and at the time it ends by separation or death, the legal consequences may lead to financial devastation for one of the partners. It could also produce significantly complex property disputes that cause both sides to incur substantial legal fees to address.

Cohabitation Agreements are designed primarily to protect financial interests, provide for financial support, and help with property division. Unmarried parties can enter into cohabitation agreements that address child custody and child support, but such provisions may not be controlling if either party ever brings a court action for custody or child support.

Before moving in with a partner, a previously signed cohabitation agreement can serve as an effective tool to ensure that your finances and assets are adequately protected. In all too many circumstances, unmarried cohabitants are putting their labor and own money into a live-in relationship, many of which are long in duration, because they ultimately expect that they will receive benefits from the other party arising from the commitment to be in a long term relationship. In many cases, those expectations are dashed when the relationship ends without the benefit of a cohabitation agreement.

For example, one of the cohabitation partners might decide during the period of cohabitation to stop working and focus on the home and be the primary caregiver for the couple’s children. There are often unstated expectations that both parties have under these circumstances. The stay-at-home partner may expect some financial support for himself or herself only to discover at the end of a long relationship that under the state’s common law, there is no duty of support to an unmarried cohabitant. Another example is when one partner may imply that he or she will include the other as a beneficiary upon death. If that partner fails to do so, then there may be no rights of inheritance of unmarried cohabitants, or receipt of benefits upon death of the other, without a written cohabitation agreement setting forth those rights.

In order to minimize doubts and to ensure that both parties understand each other’s expectations arising from their cohabitation, it may be wise to secure the protection of a legal cohabitation agreement. Otherwise, your resident state’s common laws will apply by default.

As long as both sides have a mutual understanding about their financial circumstances, having a cohabitation contract clarifies the expectations arising from the live in relationship and makes the mutual promises contained in the agreement easier to enforce. Having a written contract is a way to memorialize the mutual agreement which will provide legal protection for the parties to the agreement in the event the relationship ends by separation or death.

Some general tips to consider before moving in with someone, include:

• Consider the possibility of have a cohabitation agreement drawn up if you are bringing funds and assets into the live-in arrangement or if you will be devoting time and labor to the relationship.

• Consult with an attorney to discuss items the cohabitation agreement can and should cover. There are some unique tax rules that apply to unmarried cohabitants that do not affect married couples such as gift tax concerns. Estate and inheritance issues are also unique regarding unmarried cohabitants. Because of the very important implication of these matters, it is highly recommended that a trusts and estates and tax expert be consulted.

• Compile a complete and accurate outline of all your assets, finances, and debts.

• Specificity is crucial, so it is important to have detailed information. The document will accurately reflect the intentions of the parties and is drafted to avoid any ambiguities that could cause a future dispute.

• Discuss expectations with your partner before cohabiting and do not make assumptions about any implied financial arrangements.

If you are considering living together with someone, you and your partner may want to look into obtaining a cohabitation agreement to protect your financial interests, provide for financial support, and effectuate property division. These agreements are highly effective tools that minimize misunderstandings and disputes, which can then potentially save significant amounts in future legal fees if a contract is in place at the beginning of the live-in relationship.

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GRAY IN L.A.: EAT, PRAY, SPLIT? Do Marriage And Success Ever Work?

By Sabine Reichel

Elizabeth Gilbert (46), the brilliant and immensely successful writer who turned domestic desperation into gold by making her inspiring self-help road-trip into a worldwide phenomenon has split up with her dreamboat of a husband after 12 years!

This must be shocking news to her millions of fans that devoured Eat Pray Love and the fairy-tale ending where once heart-broken Liz fell in love with a sexy and wonderful Brazilian named “Felipe” (really Jose). She, who had her strong reservations about marriage — she wrote an entire book called Commitment about that topic — even married Jose.

It was such a great, romantic, enviable story we all could have used in our own pedestrian lives: Rich, intelligent, funny, super-successful woman finds happiness. “See, it’s possible, you can have it all!” The women cheered.

I bet a lot of Gilbert’s many fans feel a tiny bit betrayed now, too. I’m not one of them. I’m actually not surprised. Saw it coming. Sorry to say but female artists — and real writers are artists, too — and marriage aren’t a match made in heaven. Successful artists (even worse) combined with marriage just doesn’t work in the long run. Too many restrictions, too many boring duties. Too much playing “the other half.”

I know something about being a writer — someone who is a creative creature driven by curiosity, the hunger for adventure, self-expression, truth and the never-ending search for the Self. Women, having been the suppressed sex for too long, have always been yearning for just a snippet of their own creative authenticity in a man’s world that wouldn’t let them roam freely. No wonder that given half a chance to choose between doing what you love to do and doing what you’re supposed to do — the choice is a no-brainer.

What’s usually in the way of unleashing your creative forces and doesn’t mix well with success — I think you know that already — is motherhood, men and marriage. It sounds selfish, and it probably is, but for ambitious women the more interesting commitment isn’t to the institution of matrimony but to yourself because you are your very own artwork in progress. Look at certain very strong and very successful artists of a different kind — and see if they have a hubby tagging along, God knows, some of them tried that in vain.

The fantastic Cindy Sherman? Single. Gloria Steinem, divorced, single. Joni Mitchell, twice divorced, single. Madonna, twice divorced, single. All seem lost to the world of domesticity and husbands, most are not looking for new ones. Regardless of their individual personality — from charming to bossy and bitchy — what they all have in common is that they didn’t want to give up on their vision, their journeys and therefore their careers. The men in their lives couldn’t take not being the center of attention and felt like an appendix.

The artistic personality likes the word “compromise” as much as Dracula likes seeing the sunrise. But without compromise no marriage, any union, can survive. Falling in love, being in love and staying in love are the hardest things to maintain in romance and partnership, even if you don’t have a big career but just a meager job. So think hard before you jump in.

Here are some pointers from a pro:

1. If you are an artistic and creative woman, are successful and have your very own agenda and see yourself as the captain of your ship, forget about marriage!

2. Being an artist is not just a special life — it’s a certain road, a destiny, and a very risky endeavor if you want predictability and permanent peace at home. It’s not going to happen!

3. Equality between the sexes hasn’t arrived yet. So someone or something’s got to give (up). We all know who that is. Not him. Never him. So think twice before you tie the knot.

Bold Elizabeth Gilbert, I think, is breaking the mold, and I’m excited.

Traditionally, it’s always about men on the road and their all too tall tales, exploring all there is waiting for them: the rock musicians, explorers, innovators, cowboys, adventurers, and especially male writers. The image of the tortured Hemingway-like lone wolf behind the typewriter, drowning in whiskey and consumed by some bitter thoughts about a treacherous bad girl is old and strong. He’s still the rumpled hero. Female counterpart? None. Someone like poor Dorothy Parker — seen as just a brilliant drunk, living and dying alone in a New York hotel. Sad, not glorious.

The great thing about the lucid, sane, savvy, optimistic almost chirpy Liz is that she is perfectly equipped for the proud and happy life of the Road Warrior, all by herself. I don’t see her fall by the roadside or hanging out in some dingy bar ranting about worthless men. That’s so retro.

I’m with you Liz! You’re going to keep having a rich, authentic, fabulous, independent life with or without a new marriage (which I doubt you will have), or maybe even a new significant man. So, on to new shores, Liz! Many women are waiting for your new tales of freedom. Good, to have that kind of a role model, too. A Woman — By Herself.

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Can I get back my down payment?

If you bought a home in San Jose, it probably came at a hefty price.  The down payment may come from the money you and your spouse saved together, the money one of you or both of you saved before you got married, or the money you or your spouse received as a gift from family. Or, the down payment may be the money you saved together plus your pre-marriage savings or gifts from family. There are a lot of scenarios. This is when a San Jose divorce lawyer deals reimbursement issues. If you dipped into the savings account you had before you got married to buy a home with your spouse, can you get your money back after your home is sold as part of your divorce?
Family Code 2640 addresses reimbursement of a separate property down payment. Family Code section 2640(a) states: “(a) “Contributions to the acquisition of property,” as used in this section, include down payments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of the property but do not include payments of interest on the loan or payments made for maintenance, insurance,or taxation of the property.”

First, tell your San Jose divorce lawyer how much was the total down payment. Second, identify the source from which your separate funds came, whether it is the savings account you had before you got married, investments you had before you got married, sale of property you owned before you got married, or a gift from a family member. Third, give your San Jose divorce lawyer the proof that part of the down payment came from a separate source. Show bank statements from your account that you had before you got married which prove the money was transferred to make a down payment.  Or, show proof of a check or a bank transfer by a family member into your account together with proof that this money was used for a down payment. The person who gave you the money can also sign a declaration under penalty of perjury that he/she gave you a gift. However, showing bank statements is always best to trace the source of the money you used as a down payment.

The money you had in your account before marriage, the money that you got when you sold property you owned before marriage, and money you got as a gift is your separate property. If you can prove that you contributed your separate property funds toward the down payment for a community property home, you can get these funds reimbursed to you when the home is sold.  For example, you bought the home for $400,000.  The home is sold for $600,000.  The mortgage is $300,000.  Your parents gave you $50,000, which you used as a down payment. After the loan is paid off, you have $300,000 left.  You get reimbursed $50,000. The remaining $250,000 is community property that is divided 50/50.  You and your spouse get $125,000.

While reimbursement claims may seem straight forward, they are not.  There are many factors that affect whether you can make a Family Code 2640 claim.  The reimbursement claims are most common when it comes to a house in a San Jose divorce.  Family Code section 2640 can apply to other property too. If you bought a home with your spouse and used your separate property funds for a down payment, I encourage you to consult my office for a full analysis.

Written by Ekaterina Berman, a San Jose divorce and family immigration lawyer.  My goal is to provide experienced and caring representation in family law matters to every client.

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Date of Separation Revisited

The date of separation is a critical issue in characterizing property and the length of marriage for the purposes of spousal support duration. In a previous post, I talked about In re. Marriage of Davis, a 2015 decision that defined the date of separation. Davis held that spouses are not separated if they live in the same home. Under Davis,living in different homes became a requirement for separation. California legislature passed Family Code § 70, which will be effective on January 1, 2017 to deal with the “date of separation” issue.
Family Code § 70 reads:
(a) “Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:
(1) The spouse has expressed to the other spouse his or her intent to end the marriage.
(2) The conduct of the spouse is consistent with his or her intent to end the marriage.
(b) In determining the date of separation, the court shall take into consideration all relevant evidence.
(c) It is the intent of the Legislature in enacting this section to abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.
Family Code § 70 makes living in separate homes a factor in the “date of separation” analysis. Consult a San Jose divorce lawyer for more information on this topic and how your “date of separation” will play a role in your case.

For more information, take a look at

Written by Ekaterina Berman, a San Jose divorce and family immigration lawyer. My goal is to provide caring and experienced representation in family law matters to every client. 

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another reason why you must understand the difference between separate property and community property; a few more words about tracing

In re. Marriage of Bonvino was decided in 2015.  This case highlights the importance of tracing in property characterization. I already talked about how understanding separate property and community property can mean the difference between financial ruin and keeping your money.  The Bonvino case shows why property division is not so straight forward as you might think and how a San Jose divorce lawyer can point you in the right direction when dealing with property division.

In Bonvino, husband bought a home in 1986 in Long Beach. Husband paid off the mortgage on his Long Beach home with his separate property funds (the money he earned before he got married).  Husband got married in 1993.  In 1996, husband and wife bought a home in Westlake Village and rented out husband’s Long Beach home. Husband again used his separate property funds (the money he earned before he got married), to make a downpayment for the Westlake Village.  The title to the Westlake Village home was held in husband’s name as “married man, as his sole and separate property.”  Wife did not sign the loan documents.  Wife signed a quitclaim deed to the Westlake Village home. Wife was not added to the title during the marriage, though, according to her, husband promised to add her to the title at some point.  The mortgage payments for the Westlake Village home were made from husband’s salary earned during the marriage, which was community property. Eventually, husband sold his Long Beach home and paid off the Westlake Village home loan with the sale proceeds.

Husband and wife started the divorce in 2005.  Characterization of the Westlake Village home was an issue.  Wife argued that the Westlake Village home was “presumed” to be community property because it was purchased during marriage. Wife also argued that the quitclaim deed she signed should be set aside because husband used undue influence to make her sign it.   Husband argued that the Westlake Village home was his separate property and the community interest should be calculated based on the interest community acquired as the result of lowering the mortgage balance. This is the Moore/Marsden formula which is used to calculate community interest in separate property when community property funds are used to pay the mortgage.  The Moore/Marsden formula will be discussed in detail in a separate post as this topic deserves a post of its own.

The trial court found that the Westlake Village home was community property because it was purchased during the marriage and husband had to be reimbursed for the separate property funds that he contributed towards the purchase (Family Code section 2640).  The trial court also found that the quitclaim deed should be set aside because husband did not show that he dealt with wife in good faith. Husband appealed.  The Court of Appeal affirmed in part and reversed in part the trial court’s decision.

First, the Court of Appeal acknowledged that property acquired during marriage is presumed to be community property unless it is traceable to a separate property source.I have explained that separate property is property acquired before marriage, by gift or inheritance, or earned/accumulated during the time spouses are living separate and apart.  The downpayment for the Westlake Village home was made with husband’s separate property funds but the loan was paid with community property funds.  The Court of Appeal explained that Family Code section 2640 applies when separate property funds are used to purchase community property, not when separate property funds are used to purchase separate property.  The Court of Appeal concluded that the Westlake Village home was husband’s separate property because it was purchased with husband’s separate property funds even though it was purchased during the marriage.  Therefore, Family Code section 2640 reimbursement did not apply.  The Court of Appeal further explained that husband’s payoff of the Westlake Village loan with the money he received after selling his Long Beach home gave husband an additional separate property interest.  The trial court was left to figure out husband’s separate property interest in the Westlake Village home and the community property interest based on the Moore/Marsden formula.

Here are the points to keep in mind: 1. The characterization of funds used to purchase property play an important role in characterizing the property as separate or community; 2. The presumption that property was purchased during marriage is community property can be overcome by tracing the source of the purchase funds to a separate property source; 3. When community funds are used to pay down the loan on a separate property home, the correct way to determine community property interest is the Moore/Marsden formula; and 4. Family Code section 2640 reimbursement is appropriate when separate property funds  were used to purchase community property.  In cases like the Bonvino case, the advice of a San Jose divorce lawyer becomes important to help you protect your interests.

Written by Ekaterina Berman, a San Jose divorce and family immigration lawyer. My goal is to provide caring and experienced representation in family law matters to every client.

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why understanding the difference between separate property and community property can mean the difference between a favorable outcome and financial ruin

Husband bought his home in San Jose in 1993. He bought it together with his parents. Husband and parents used their money for the down payment. Husband and parents were on title to the home. Husband got married in 2001. His San Jose home significantly grew in value from 1993 to 2001. Husband refinanced the loan a few months after he got married and added wife to the loan and to the title. The title to the home was held by husband, wife, and husband’s parents as of 2001. Husband and wife separated in 2013. Between 2001 and 2013, the house grew in value even more. Husband thought that because wife was now on title, she was entitled to half of the equity that was accumulated from 1993 (date of purchase) until 2013 (date of separation). However, with the sound advice of a San Jose divorce lawyer, husband was able to keep his home and negotiate a fair buy-out.

The following principles are important to understand when dealing with “mixed property”—property that is part “separate” and part “community.” California Family Code section 760 reads: “Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.” California Family Code section 770 reads: “(a) Separate property of a married person includes all of the following: (1) All property owned by the person before marriage; (2) All property acquired by the person after marriage by gift, bequest, devise, or descent; (3) The rents, issues, and profits of the property described in this section. (b) A married person may, without the consent of the person’s spouse, convey the person’s separate property.”

Another family code section that came into play here was Family Code section 2640, which reads: “(a) Contributions to the acquisition of property,” as used in this section, include downpayments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of the property but do not include payments of interest on the loan or payments made for maintenance, insurance, or taxation of the property;(b) In the division of the community estate under this division, unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, the party shall be reimbursed for the party’s contributions to the acquisition of property of the community property estate to the extent the party traces the contributions to a separate property source. The amount reimbursed shall be without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division;(c) A party shall be reimbursed for the party’s separate property contributions to the acquisition of property of the other spouse’s separate property estate during the marriage, unless there has been a transmutation in writing pursuant to Chapter 5 (commencing with Section 850) of Part 2 of Division 4, or a written waiver of the right to reimbursement. The amount reimbursed shall be without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division.” Family Code section 2640 is very important when we are dealing with “mixed” property.

Now, let’s apply these principles to this case. Husband purchased the home before he got married. Husband made a down payment with the money he earned before marriage. The down payment was husband’s separate property. Part of the equity husband acquired in the home from 1993 until 2001 was his separate property. To figure out the husband’s separate property interest, we looked up the property values in the loan documents related to the purchase in 1993 and the refinance in 2001. The home was appraised at the time of purchase and at the time of the refinance, and, luckily, the appraisals were not lost. This also speaks to the importance of keeping all loan documents when you buy or refinance. Next, we had to figure out the present value of the home, which we did by ordering an appraisal. Wife’s interest was determined as follows. First, husband’s separate property claim under section 2640 was calculated. Second, the equity of the property was determined by subtracting the mortgage balance from the appraised value. Third, the total equity was divided by half since husband and wife were 50% owners and husband’s parents were 50% owners. From the equity that husband and wife owned, we subtracted husband’s section 2640 claim. The result was the “community” equity. Husband and wife were entitled to half of the community equity. This is how husband was able to negotiate a buy-out and keep his home. When you are dealing with “mixed” property, advice of a San Jose divorce lawyer who is experienced in dealing with these issues is critical. This is how understanding the difference between separate property and community property, with the help of a San Jose divorce lawyer, can mean the difference between a financial ruin and a favorable result.

It would have been a good idea for husband and wife to sign a prenuptial agreement before husband added wife to the title. But, in this case, it did not happen. Getting a prenuptial agreement is a very personal matter, and the decision to enter into one is driven by personal and cultural values. In this case, husband would have sold his home and paid wife $150,000 had it not been for advice of a San Jose divorce lawyer and a forensic accountant who traced husband’s downpayment to a separate property source and calculated husband’s Family Code section 2640 separate property reimbursement claim. Because husband could prove his section 2640 separate property reimbursement claim, wife received $60,000 as opposed to half of the total equity. This case is an example when hiring an expert was necessary and justified in terms of cost and the outcome achieved.

If you are going through a divorce and you owned real estate before you got married, it is important that you consult with a San Jose divorce lawyer about property division. Understanding separate property reimbursement claims is critical to keeping your property and to your success.

Written by Ekaterina Berman, a San Jose divorce and family immigration lawyer. My goal is to provide caring and experienced representation in family law matters to every client. 

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