One of the biggest concerns wives have when they approach divorce--and one reason they often put off the process--is worry about how they will come out financially, physically, and emotionally.

California's no-fault and community property laws often cause quite a bit of confusion about what a wife is entitled to in divorce.

In California, a wife has equal rights as a husband in divorce proceedings. This means there is no automatic entitlement based on gender, but rather, the law seeks to divide assets and responsibilities fairly based on the circumstances during and after the marriage.

At Holstrom, Block & Parke, APLC, we believe that understanding these rights is crucial for every woman going through a divorce.

Let’s explore what a wife is entitled to during a divorce in California and how these rights can be protected and enforced.

Property Division in California

In California, the division of property during a divorce is governed by the principles of community property.

Community Property

Under California's community property laws, most assets or debts acquired during the marriage belong equally to both spouses.

This includes income, real estate, and other valuable assets, regardless of whose name is on the title. The idea is that both spouses have contributed to the marriage, whether financially or otherwise, and thus should share equally in its benefits.

Separate Property

Separate property, on the other hand, refers to assets that were owned by either spouse before the marriage or were acquired by gift or inheritance during the marriage.

These assets are not subject to division in a divorce and typically remain with the original owner.

However, it’s important to note that if separate property is commingled with community property—such as using separate funds for home improvements on a jointly owned home—it can become part of the community property and subject to division.

Complexities and Exceptions

While the division of community property might seem straightforward, complexities often arise.

For instance, determining whether an asset is a community or a separate property can be challenging, especially in cases where assets have been combined. It is important to work with an attorney who is prepared to delve deep into the details to help you secure your separate property and obtain your fair share of community property.

The date of separation also plays a vital role in determining what is considered community property. Assets acquired after this date are generally considered separate.

Another area of complexity is tracing separate property contributions to community assets. For example, if a wife uses her inheritance (separate property) to make a down payment on a house purchased during the marriage (community property), she may be entitled to reimbursement.

However, this requires clear documentation and legal guidance to guarantee an equitable result..

Role of the Court

In California, the court oversees the division of community property.

Though the law generally favors an equal split, the court has the discretion to order a different division if it deems it to be more fair under the circumstances.

For example, if one spouse significantly mismanaged marital assets, the court might award a larger share to the other spouse.

Spousal Support (Alimony) in California

Spousal support, commonly known as alimony, is another critical issue in divorce proceedings.

No Automatic Right

Spousal support in California is not guaranteed and is gender-neutral. The court will consider various factors to determine whether a wife is entitled to alimony.

It’s essential to understand that spousal support is not about punishment or reward; rather, it’s about ensuring that both spouses can maintain a reasonable standard of living after the divorce.

Factors Considered by the Court

The court takes several factors into account when deciding on whether to grant alimony and how much to award. These factors include:

• Length of the marriage: Longer marriages are more likely to result in longer spousal support periods.
• Each spouse's earning capacity: The court will consider whether both spouses can support themselves after the divorce.
• Standard of living during the marriage: The goal of spousal support is to help the lower-earning spouse maintain a similar standard of living to what they were accustomed to during the marriage.
• Contributions to the marriage: This includes both financial contributions and non-financial contributions, such as homemaking or supporting a spouse’s career advancement.
• Age and health of each spouse: Older spouses or those in poor health may be more likely to receive spousal support.
• Tax implications of spousal support: It’s important to consider the tax consequences of spousal support payments, as they can impact both the payer and the recipient.
• Domestic violence as a factor: If there has been a history of domestic violence, it can significantly affect the court's decision regarding spousal support.

Temporary vs. Permanent Support

There are two types of spousal support: temporary and permanent.

• Temporary support is awarded during the divorce proceedings to help the lower-earning spouse maintain their standard of living.
• Permanent support, which is less common, is awarded after the divorce is finalized and is intended to provide long-term support.

 Understanding the 10-Year Rule

A common misconception is that after ten years of marriage, a spouse is automatically entitled to permanent spousal support.

Even though the length of the marriage is a significant factor, it does not guarantee permanent support. The court will still consider all the relevant factors before making a decision.

Child Custody and Visitation Rights

In California, both parents have equal rights to seek custody and visitation, and the court does not favor one parent over the other based on gender.

Best Interests of the Child

The court will make custody decisions based on what is best for the child.

Types of Custody

Wives have the opportunity to seek both legal and physical custody. Legal custody refers to the right to make important decisions about the child's life, such as education, healthcare, and religious upbringing.

Physical custody determines where the child will live and which parent will be responsible for the child’s daily care. Both types of custody can be shared between parents or allocated solely to the mother or father.

Factors Influencing Custody Decisions

The court considers several factors when determining custody, including:

• Child's age and preferences: Older children’s preferences may be considered, but the court has the final say.
• Each parent's ability to care for the child: This includes the parent’s physical and emotional ability to provide for the child’s needs.
• Parent-child relationship: The court will look at the strength of the relationship between each parent and the child.
• Domestic violence or substance abuse concerns: If there are concerns about a parent’s ability to provide a safe environment, this will heavily influence the court’s decision.

Visitation Rights

Even if one parent is awarded primary physical custody, the other parent is generally entitled to reasonable visitation.

The court aims to ensure that the child maintains a meaningful relationship with both parents, provided it is safe and in the child's best interests.

Child Support in California

Both parents have a legal obligation to financially support their children. In California, child support is calculated based on a formula that considers both parents’ incomes, the amount of time each parent spends with the child, and other related factors.

Child support orders can be modified if there is a significant change in circumstances, such as a change in income or the needs of the child. It’s important to seek legal advice if you believe a modification is necessary.

Additional Rights of a Wife in Divorce

Beyond property division, spousal support, and child custody, a wife in California has several other rights that are crucial to protect during a divorce.

Right to a Fair Trial

Every wife has the right to present evidence and be heard in court. This ensures that the divorce proceedings are conducted fairly and that all relevant information is considered.

Right to Legal Representation

The terms you establish during your divorce will affect your life for years to come.

It’s important to consult with a family law attorney who can advocate for your rights and guide you through the process.

Protection from Domestic Violence

If there has been domestic violence in the marriage, a wife has the right to seek legal protection.

This can include restraining orders and other measures to ensure her safety and that of her children.

Health Insurance

During and after a divorce, a wife may be entitled to continue health insurance coverage under COBRA.

Retirement Benefits

Retirement accounts and pensions earned during the marriage are typically considered community property and are subject to division.

It’s important to ensure that these assets are properly valued and divided to protect your financial future.

Preservation of Assets During a Divorce

The ATRO imposed during divorce prevents a spouse from selling, hiding, or disposing of assets without approval from the court or agreement of the other spouse. This can protect a wife from losing interests in community property during the process. However, a wife does have the right to use community assets to pay for necessary living expenses and reasonable attorney's fees.

The Importance of Seeking Legal Counsel

Divorce law is complex, and the stakes are high. It’s crucial to have the right attorney by your side to navigate the legal process and protect your rights.

At Holstrom, Block & Parke, APLC, we are committed to helping women secure their rights and achieve a fair outcome in divorce proceedings.

If you’re facing a divorce in California, let our Certified Family Law Specialists and associates protect your interests. Call us at (855) 939-9111 or contact us online at https://hbplaw.com/contact/ to schedule a consultation.

Game show winners have frequently complained about California’s “prize tax,” which applies to lottery winnings as well as prizes won in other contests such as game shows. So does the state treat lottery winnings differently from other income? How does the state deal with lottery winnings in a divorce situation? There are several factors that can affect the treatment of lottery winnings in a California divorce, and it will be important to take tax issues into consideration.

California’s Community Property Rules

Under California law, all property “acquired by a married person during the marriage” is considered community property unless it meets a specific exception. Community property belongs equally to both spouses.

So, it is important to understand what the exceptions are and what “during the marriage” means.

When property is not community property equally owned by both spouses, it is considered separate property belonging solely to one spouse. Some property can be considered hybrid, where part of the value belongs to one spouse alone and the remaining value is jointly owned as community property and divided in divorce. Property each partner owned before the marriage is generally that spouse’s separate property. However, if separate property gets mixed together with community property, it can become hybrid property or at least be very hard to trace.

Property acquired during the marriage can also be considered separate property if it is received by “gift, bequest, devise, or descent.” The last three terms refer to property received through inheritance rights. So, if someone in your family won the lottery and gave you part of the winnings or they left you winnings as a bequest in their will, those winnings would be your separate property even if you received them while you were happily married. If you put those winnings in a joint bank account and used them to pay the mortgage on a home you own with your spouse, those winnings could become hybrid or even entirely community property. So if you have separate property and want to keep it separate, you need to take careful steps to maintain the separate nature of the property.

Timing is Everything

Inherited winnings received while you are married may be separate property, but if you or your spouse win assets directly “during the marriage” then those winnings are community property jointly owned by both, even if one spouse bought the lottery ticket without the knowledge of the other. “During the marriage” means after the wedding and before the “date of separation.” So determining the official date of separation becomes crucial in any California divorce because it establishes the date at which community property accumulation ends.

Sometimes the date of separation is obvious, but many times it is not. Living apart is often a key indication, but it must be followed by actions that indicate an intent to end the marriage. For instance, in one case, a man who moved out of the family home to live with his girlfriend but who still came back to have dinner with his wife and kids most nights was not considered to be separated from his wife, so income earned while he lived with his girlfriend was still treated as community property. It was not until he filed for divorce that he was considered to have separated from his wife.

So, lottery winnings acquired before the date of separation are community property while winnings acquired after the date of separation are that spouse’s separate property. It is unclear what would happen if the ticket was purchased before the date of separation but the drawing was held after the date of separation. There is also a case to be made for treating lottery winnings as separate property if they were purchased with funds acquired before marriage (or by gift or inheritance) that had been kept scrupulously apart from marital funds.

Even if lottery winnings do not have to be divided as community property, it is important to be aware that they can impact decisions regarding child support and alimony.

Take Taxes into Consideration When Allocating Lottery Winnings

When couples need to divide lottery winnings during a divorce, they need to be aware of the tax consequences. If the divorce is not yet final before the end of the year, they may want to file a joint tax return to simplify the process of allocating the tax burden. Otherwise, it will be necessary to calculate the likely tax impact on the spouse who holds the winning ticket and divide that liability as well as dividing the winnings.

No Matter How Complicated Divorce Becomes, Holstrom, Block & Parke is Prepared to Protect Your Interests

The challenge of allocating lottery winnings in a California divorce is pretty rare, but it is important to work with a divorce lawyer who is ready to protect you in every complex situation that could arise. With 300+ years of collective experience, the team at Holstrom, Block & Parke APLC understands how to develop the best strategy to safeguard your interests regardless of the issues that surface during your divorce. Contact us today for a confidential consultation to learn how we can help.

No one likes to pay for things they don’t need, and many people feel like they don’t need a lawyer to help them with divorce. They don’t realize how an attorney can protect their financial interests and save them considerable money and headaches in the long run. Some personality types, such as those with narcissistic personality traits, believe they know more than a lawyer and wouldn’t listen to one anyway.

Regardless of the reason, if your spouse doesn’t want an attorney, what does that mean for you? The good news is that it does not prevent you from seeking legal advice and hiring the best possible legal representation to guide you through the complexities of the divorce. It also does not mean that you have to share an attorney. But there are some implications and issues to deal with if your spouse is going through the divorce process without a lawyer. Based on our 300+ years of collective experience, here’s what you may need to expect when your spouse doesn’t have a lawyer during a California divorce.

The Divorce Process is Likely to Take Longer

In the early stages of divorce in California, parties need to file official paperwork and comply with official deadlines. If your spouse is not working with a dedicated divorce attorney, it may take time for them to understand the requirements and comply with them. Reading legal documents can seem like trying to read a foreign language to those who are not used to the terminology and legal meaning attached to each phrase.

In addition to figuring out how to respond to petitions, your spouse will also be required to provide certain information and this process is also usually delayed when someone is working without professional legal guidance.

Mistakes and Repeated Efforts are More Likely

Someone trying to rebuild the transmission on their car by following along with a free online video is probably not going to get the job done correctly the first time through. There will be mistakes, and the need to undo and redo steps, possibly many times over.

Taking a DIY approach to a California divorce can be just as painful. Without an attorney, your soon-to-be-former spouse may not understand the implication of choices. They may spend quite a bit of time vacillating, make a choice, and then want to change it a week later. They may agree to terms and then get conflicting legal advice from another free online video and decide the terms will no longer work. They may reject perfectly reasonable terms based on advice from a friend or colleague or even something they read in an online forum. Without a solid source of authority, spouses who are meandering through the divorce process often make repeated mistakes or treat and reasonable action as if it was a mistake.

Your Attorney Works Only for You

Even if you wanted to let your spouse ask your attorney for advice, your attorney would not be allowed ethically to give them any advice. Your attorney is focused on representing your interests and getting you the best terms for your divorce, and it would be a conflict of interest for them to give any advice to the other party to the case.

If you hired an attorney to serve as a mediator rather than as your personal legal counsel, then the attorney would be neutral, but still not able to provide legal advice.

Court Appearances Can Be Embarrassing and Frustrating

The judges who handle divorce cases have a tremendous workload to get through and they have no time to waste on those who are ignorant of proper procedures. When you work with a lawyer, your lawyer will have presented the judge with all the necessary information about the background of the case, narrowing down the issues to the critical points so the judge knows what to focus on. Your attorney will explain what to expect, and your legal counsel will speak briefly and effectively on your behalf to move the case along.

Your spouse, on the other hand, probably will not have presented their side of the issues succinctly in writing for the judge to prepare. They will probably not understand what information is irrelevant, and they may waste the judge’s time with excuses or useless explanations. You may feel the need to answer some of the ridiculous assertions of your spouse, and it can be difficult to keep silent. Rest assured that if your spouse says anything that is relevant that requires an answer, your attorney will make that answer. Otherwise, your spouse is probably just making the judge frustrated.

Holstrom, Block & Parke, Works to Keep the Divorce on Track Even if Your Spouse Does Not Have an Attorney

The Certified Family Law Specialists and associates at Holstrom, Block & Parke, APLC have such a broad range of experience that we have encountered almost every conceivable condition that could impact a California divorce. We know how to keep the process on track when the other spouse is trying to represent their own interests during the divorce process. We work to insulate you from frustration and minimize any negative impacts. Schedule a confidential consultation with our team today to learn more about the ways we can protect you in divorce.

Because of California’s community property laws, your retirement plan is also your spouse’s retirement plan. If your spouse has a plan of their own, part of it belongs to you. Everything you earned during your marriage, including employer contributions to your plans and interest earnings over time, is considered community marital property. Both spouses own an equal share.

Amounts you accrued before you got married may be considered your separate property, but unless you had a pre-or postnuptial agreement specifying that retirement benefits would remain as one spouse’s separate property, then you share your interests in both spouse’s plans. Chances are the amounts in the plans are not exactly equal, so one spouse will be receiving funds out of the other’s retirement plan. This can be complicated and requires special handling.

If your divorce attorney is experienced in handling complex and significant assets, they should understand the specific needs and be able to guide you through the process. At Holstrom, Block & Parke, APLC, our Certified Family Law Specialists and associates protect our clients’ interests in retirement plans regularly. But if your attorney is not comfortable with the process or you’re looking for background information, here are the basics.

What Makes Retirement Plans So Complicated

Unlike dividing up funds in a checking account, the process of dividing benefits in a retirement plan involves a lot more issues. You need to understand not just the value on the books today, but also the potential future value and tax consequences. In addition, the companies that manage retirement plans require your legal team to jump through some extra hoops before they will release funds to someone other than the employee who earned the benefits.

The types of retirement plan benefits can vary widely. Sometimes benefits may be accrued but not fully vested, which means the employee might only have the right to a percentage of those benefits if they were to leave today employment, but at some point in the future, they will have full right to those accrued benefits.

When a retirement plan is considered “qualified,” that adds another layer of complexity. The federal Employee Retirement Income Security Act (ERISA) allows certain plans to be funded with pre-tax dollars and these must be managed carefully in divorce to avoid triggering an immediate bill for the deferred taxes. Plans such as 401(k) plans, profit-sharing plans, 403(b) plans, and Keogh plans are considered qualified plans. You generally need a special type of court order to divide qualified retirement plans in divorce.

Obtaining a Qualified Domestic Relations Order (QDRO)

A domestic relations order from the court is usually required before the administrators of a retirement plan will hand over funds to a spouse in divorce. When you are dealing with assets in a qualified retirement plan, you also need a Qualified Domestic Relations Order or QDRO. This is a specialized document that must contain certain features to meet government requirements. Once the QDRO is prepared to incorporate the legal terms and explanations of the assets involved, then the order is presented to the court. If the judge approves, it will be signed and the spouse obtaining the distribution will present the QDRO to the retirement plan administrator. Then the plan itself needs to approve the QDRO. The bottom line is that it takes considerable time and effort to obtain funds from a qualified retirement plan. If the terms of division in the divorce decree do not align with options offered by plan administrators, then it may be necessary to redraft the order, which will further delay payment and add to the expense.

In some cases, the plan administrator actually needs to be added as a party to the divorce through joinder before a QDRO can be established, which adds still further delays. Finally, when all is complete and funds have finally been released, the spouse receiving funds from a qualified retirement plan may need to be prepared to take quick steps to reinvest the funds appropriately to avoid a tax bill.

Protect Your Interests in Retirement Assets by Working with the Experienced Team at Holstrom, Block & Parke, APLC

Retirement assets are one of if not the most significant source of assets for many couples facing divorce. You don’t want to risk losing out on any value that should rightfully be yours, and you don’t want to waste resources on administrative mistakes. The skilled team at Holstrom, Block & Parke understands how to handle and divide retirement assets of all types, including qualified retirement plans. Schedule a consultation with our team today to learn about the protection we can provide in your particular situation.

If your divorce is taking too long to finalize because you have not reached an agreement on issues such as property division, alimony, or custody, California law gives you the option of splitting your divorce case into two sections. This is known as bifurcated divorce.

When you bifurcate a divorce, you can regain single status while you work to resolve the remaining issues. This process can be highly beneficial, but there are some factors you should be aware of before you embark on a bifurcated divorce.

How Bifurcated Divorce Works

In a typical divorce process, one spouse files for divorce and serves paperwork on the other spouse, that spouse then responds, and then parties are required to start providing financial information to each other. After sharing information, the parties try to negotiate agreements on how they will divide debts and assets, amounts for alimony and child support, and other issues. This can take considerable time, and when parties cannot reach agreement on their own, they ask the court to make decisions. This takes even more time. While all this time passes, the parties remain married. They remain married until all decision-making is complete and the court issues final orders.

In a bifurcated divorce, one party asks the court to hold a separate legal proceeding that focuses only on marital status. This simple, single-issue proceeding can be completed much more quickly than a divorce case with multiple issues, so you can change your marital status to single much more quickly. However, you will still need to complete the legal process to determine all other issues.

Benefits of Bifurcation

A bifurcated divorce can have significant emotional benefits, and sometimes financial benefits as well. Knowing that you are no longer married to an abusive, controlling spouse can enable you to move forward with more confidence. It can also stop a spouse from continuing to engage in delaying tactics with regard to finalizing the divorce.

If you want to remarry, a bifurcated divorce allows you to do so legally.

With regard to financial issues, a bifurcated divorce allows you to file your taxes as a single, rather than married taxpayer, and for some people, this is preferred. If either spouse files for bankruptcy, bifurcation can allow the divorce to continue at the same time that bankruptcy details are in progress.

Requirements for a Bifurcated Divorce

If you want to ask the court for a bifurcated divorce, you need to wait at least six months after the responding spouse (the spouse who did not file for divorce) was served with divorce papers. Generally, if you file a request sooner than that, it will likely be denied, and even if it is granted, it will not take effect until the six month waiting period has ended.

You must also demonstrate a good reason for asking the court for bifurcation. If your spouse is trying to prevent you from remarrying and is dragging out the process of resolving issues in your divorce, for example, your attorney should be able to argue effectively for a successful bifurcation.

Since other issues have not yet been resolved when a divorce is bifurcated, California law imposes some additional requirements. If one spouse has health insurance through the other spouse’s employer, the spouse providing insurance is obligated to continue to do so in some way. The spouse requesting bifurcation will need to reimburse the other spouse for tax consequences and losing the right to claim a probate homestead or family allowance. If either spouse has a pension plan or retirement account, one spouse may be entitled to receive compensation for the loss of death benefits and the court may need to issue an interim order to preserve one or both spouse’s rights to retirement plan benefits. Essentially, the court needs to ensure that each spouse retains the same rights as they would if the case had not been split, so a judge may order additional conditions if necessary to protect the spouse that did not request bifurcation.

An Experienced Divorce Attorney Can Help You Determine Whether Bifurcated Divorce is Your Best Option

With over 300 years of collective experience, the legal team at Holstrom, Block & Parke, APLC has assessed the advisability of bifurcated divorce with many clients in California. We can help you determine if it is the right move in your situation, and if it is, we know how to successfully justify your rationale to the judge. If your spouse is requesting bifurcation, we can ensure your rights remain protected. To learn more about how bifurcation might work in your situation, just schedule a consultation.