Entries Tagged 'Property Issues' ↓

The “Value” of a Professional Education

One of the more esoteric issues of family law, and one about which many litigants are concerned, is the “value” of a professional education. Spouses of doctors, lawyers and engineers want to know whether the community will be compensated for their spouse’s education, which was paid for during the marriage.

The recent case of In re Marriage of Weiner, 105 Cal.App.4th 235 (2003), discusses the California statutory scheme for determining the extent to which the community can be reimbursed for the costs of a professional education paid for during the marriage but acquired prior to the marriage. Continue reading →

With Gifts, the Written Waiver Counts More than the Thought

Los Angeles Daily Journal, Vol.118, Issue 90, May 10, 2005

In a blow to romantically inclined, generous, and guilt-ridden spouses throughout California, the Legislature has amended Family Code § 2640 to make gift-giving and -receiving all but impossible for the unsavvy. Continue reading →

When in Love Make the Gift “Insubstantial”

“True Value-Court Decides Whether Diamonds Are Forever”
Los Angeles Daily Journal, Vol.114, Issue 222, November 13, 2001


2001 Cal. App. LEXIS 699; 111 Cal. Rptr. 2d 521; 2001 Daily Journal DAR 9571

“Gifts of one who loved me,— Twas high time they came; When he ceased to love me, Time they stopped for shame. It is said that the world is in a state of bankruptcy,…”
Emerson, Ralph Waldo. Essays and English Traits. The Harvard Classics. 1909-14

The rules governing the making of gifts of jewelry between spouses and the specific application of Family Code Section 852 (c) was recently commented upon and its limitations discussed and applied in the case of Marriage of Steinberger. Continue reading →

Inc. Blot - Business Doesn’t Become Community Property Upon Incorporation

Los Angeles Daily Journal, Vol.112, issue #2177, September 14, 1999

When and how does a separate premarital asset become community property? This question has been an interesting, occasionally complex and often fascinating issue in community property law for a substantial period of time. The recent case of In re Marriage of Koester (July 28, 1999) Daily Journal D.A.R. 7695 presents an excellent discussion of issues that arise when separate property changes its “form” during the marriage, but not its essential character. As the court states on page 7696, statute and case law may “easily obscure the basic principle that separate property does not change its character because of a change in form or identity”. Continue reading →

Division of Joint Bank Accounts: Application of Probate Code § 5305

Where a spouse contributes separate property toward the acquisition of community property, that spouse has a right, in an action for dissolution of marriage or legal separation, to be reimbursed for his or her separate contribution, limited to the equity in the property, and without interest or adjustment for change in monetary values. Family Code § 2640. Nothing on the face of Section 2640, or in reported decisions applying the statute, appears to limit the types of assets to which it applies. Continue reading →

Public Policy Concerns Arising Out of Failure to Exchange Final Declarations of Disclosure

All dissolution of marriage, nullity, and legal separation actions filed since January 1, 1993, are subject to the disclosure requirements of Family Code §§ 2100-2129. Among other things, the parties must exchange preliminary declarations of disclosure (Family Code § 2104) and, subject to certain exceptions, final declarations of disclosure (Family Code § 2105).

Family Code § 2107(d), as amended in 2001, seems to provide unambiguously that a Judgment of Dissolution must be set aside if the parties failed to comply with the disclosure requirements. That subdivision states:

(d) If a court enters a judgment when the parties have failed to comply with all disclosure requirements of this chapter, the court shall set aside the judgment. The failure to comply with the disclosure requirements does not constitute harmless error.

Continue reading →

Fiduciary Duty

During the last few years the relationship, nature and scope and obligations that spouses have to each other has evolved. Currently, in California, spouses hold the duty of a fiduciary to the other. This fiduciary duty between spouses can create conflicts with presumptions that arise from other areas of law. One area in which the relationship between spouses becomes significant is the issue of deed transactions.

Evidence Code 662 creates a presumption that “the owner of the legal title to property is presumed to be the owner of the full beneficial title. The presumption may be rebutted only by clear and convincing proof.” Continue reading →

Fiduciary Duty, Part II

Over the last decade, the duty and obligations owed by one spouse to another spouse has been an evolving concept in the law.  Specifically, with regards to the responsibility of the parties to each other “during the pendency” of a dissolution of marriage proceeding this duty has had a profound impact.

Until 1992, Civil Code §5125(e) characterized the standard of care between husband and wife as to their management and control of community property during marriage, and separation, in less than clear terms.  It had been described as somewhat above the good faith dealings of a confidential relationship but not quite as high a level of care as a fiduciary relationship.  (See In re Marriage of Reuling (1994) 23 Cal.App.4th 1428, 28 Cal.Rptr. 272.)  The pre-1992 version of Civil Code §5125(e) stated that the duty of good faith was to be “in accordance with the general rules that control the actions of persons having a relationship of personal confidence as specified in Civil Code §5103, until such time as the property has been divided by the parties or by a Court”. Continue reading →

Duty of Disclosure

The operative word in any divorce case in California is “disclosure”. Divorcing spouses have an affirmative duty to each other to promptly and fully disclose all assets and liabilities in which one or both of the parties may have an interest during the dissolution proceeding. Disclosure requirements are mandatory and not dependent upon the other party seeking information through discovery. This obligation is a continuing obligation that starts at the commencement of the dissolution proceeding and terminates only when the assets are divided.

In Family Code Section 2100, the California Legislature has specifically referred to this disclosure requirement as paramount, not only for divorcing parties, but for the State as well, in order to ensure fairness in the divorcing process. Continue reading →

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