When Life’s Challenges Require A Legal Response
Planning the future following a major life change can be physically and emotionally difficult. Much can be required of a person at a time when they might not be ready or able to make clear decisions.
At CC LawGroup, A Professional Corporation, we provide sensitive and sensible legal assistance to clients in the East Bay and Tri Valley areas during times of need. We offer services in family law, probate and trust administration, and estate planning areas and can assist you with a wide variety of legal concerns.
Flexible Counsel For You And Your Family’s Unique Needs
At CC LawGroup, we can assist you with difficult matters concerning:
Our firm assists couples seeking or going through a divorce and unmarried parents in resolving issues pertaining to child custody and support, property division, spousal support and payment of related attorney fees. We also draft prenuptial and post-nuptial agreements.
Probate and trust administration
Our firm has vast experience in handling the probate of a decedent’s will as well as administration of a trust including but not limited to changing of trustees, or distribution of trust assets upon the demise of the Settlor (Trustor). As a full-service practice, we can take on all aspects of your case, or just parts of it if you wish. We will sit down with you and determine the best path forward to offer you experienced service that’s within your budget.
Estate planning and administration
Our firm helps clients plan for the future through the drafting of wills and trusts, powers of attorney, and health care directives. We also represent families involved in the estate administration process.
Your marriage will officially end the day your divorce is finalized. However, your romantic relationship ended months, if not years earlier. While pinning down the exact day your marriage broke down isn’t always easy, it’s actually an important part of getting divorced in California.
State law requires you to identify your date of separation to proceed with the divorce process. Not only is it important for determining the length of your marriage, but it can also play an important role in awarding spousal support and dividing assets. Here’s why separation dates matter so much and how to identify yours correctly.
Why Does It Matter When Your Relationship Unofficially Ended?
Like many other complicated aspects of California divorce law, the importance of the date of separation can be traced back to state community property laws. In California, couples automatically receive true joint ownership of all assets each spouse earns or acquires during marriage. This includes income, bonuses, retirement benefits, investment gains, property purchased with marital funds, and debts.
Where California differs from most other states is how this joint property is divided during divorce. Community property laws require couples to split the total value of the marital assets equally unless both spouses consent to a different division. If they cannot come to an agreement, they can go to court and have a judge decide how to split their joint property in half.
The problem is that people continue to earn money and make purchases while going through a divorce. If all of these assets had to be considered during a contentious divorce, the couple might never make it out of court.
To address this issue, California instituted the date of separation. This is the day your relationship ended for the purposes of community property and asset division. State law defines community property as the assets acquired between your wedding day and your date of separation. While you are still legally married after your separation date, the money you earn and the things you purchase with it are automatically considered your separate property and exempt from asset division.
How California Defines the Date of Separation
According to state law, your date of separation is “the day when there’s a complete and final break of your marriage.” But what makes a break “complete” or “final” according to the law? It’s not enough to decide that you’re going to get divorced. You need to be able to support your claim in court.
The law defines the date of separation with two criteria: intention and action.
Your separation date is the day you inform your spouse you intend to end your relationship, or vice versa. You don’t necessarily have to ask for a divorce, either. You can demonstrate your intention with words or do something that makes it obvious you no longer want to be married, such as moving out. What matters is that you or your spouse does or says something indicating a complete break in your relationship.
This break in your relationship must also be final. As such, a day only counts as your separation date if one of you continues to act on your intention to end your marriage. This person does not need to be the same spouse who chose to end the relationship.
For example, if you ask for a divorce but reconcile later, that does not count as the date your relationship ended. In contrast, suppose your spouse moves out but tries to apologize later. Their move-out date will still count as your date of separation as long as you do not take them back. In that case, they demonstrated the initial intention to end your relationship, and your behavior is consistent with wanting to end your marriage.
Identifying Your Separation Date for Divorce
The difficulty of determining the day when the complete and final break occurred in your marriage varies. For some couples, it’s obvious. Potential evidence of a final break include:
- Serving your spouse divorce papers
- Moving out of the house or sleeping separately
- Halting intimate contact
- Opening separate bank accounts
- Updating your will
- Informing your kids that you’re getting a divorce
For example, California courts abide by the precedent set in Marriage of Manfer that even couples hiding their separation from the outside world are still officially separated if they no longer blend their funds, sleep apart, and do not seek counseling.
However, in other circumstances, the date you separated is less clear. Confounding factors include:
- Continuing to wear wedding rings
- Maintaining joint checking accounts
- Attempting to reconcile with each other
- Going on vacation together
- Making major financial acquisitions together
- Continuing conjugal relations
In cases like Marriage of von der Nuell, courts have confirmed that living separately is not enough to constitute a complete and final break if they continue to financially support each other, recognize relationship milestones, attempt to reconcile, or otherwise maintain emotional and financial ties.
If you and your spouse disagree on the date your relationship ended and there is a lack of strong evidence, the court will determine it for you. Its decision will take into account all of the factors listed above and more to determine whether your relationship ended when you filed for divorce or sometime earlier.
Determine Your Date of Separation With CC LawGroup
The day your relationship ended for good can shape the rest of your divorce. The best way to identify this date is to work with an experienced California divorce lawyer from CC LawGroup. Our experienced attorneys can help you understand state law and precedent and pinpoint the day things ended. Schedule your consultation today to learn more about how we can help you.
In the grand scheme of things, the right to same-sex marriage is still shockingly recent. It has only been legal in California since 2008, and it has been federally permitted since 2015. As such, same-gender couples are, on average, younger and less likely to be thinking about issues like estate planning.
However, estate planning isn’t a luxury for members of the LGBTQ+ community. It is one of the best ways people outside of traditional heterosexual relationships can protect their loved ones’ rights after they pass. Creating a comprehensive estate plan with a will, powers of attorney, and an Advance Medical Directive is invaluable for ensuring your family of choice is given appropriate legal acknowledgment.
Key Considerations in Estate Planning for Same-Sex Couples
Current state and federal law grant same-sex married couples the same rights as heterosexual spouses. However, laws can and do change. Furthermore, many LGBTQ+ people prefer nontraditional relationships or opt to remain unmarried life partners. As such, people in the community are more likely than most to benefit from estate plans.
A well-written estate plan can reinforce legal protections regardless of whether you are legally married. If you are in a same-sex relationship, your plan should account for issues like:
- Navigating legal complexities and protecting assets: If you are unmarried or federal laws change, you cannot rely on standard marriage inheritance laws to protect your partner. Your plan should explicitly name your partner as your primary beneficiary to give them legal rights to your assets.
- Tax implications and strategies for minimizing tax burdens: You can structure your plan to account for potential tax liabilities and guard your loved ones against unnecessary tax burdens.
- Planning for healthcare decisions and incapacity: Granting your partner power of attorney is crucial to ensure your medical wishes are respected, especially if your family of origin is not accepting.
- Addressing blended families: Same-sex couples are more likely to create blended families, which can lead to unique complications. You can use your plan to protect your children’s inheritance or name your partner’s kids as your beneficiaries.
- Adoption and parental rights: Adopting a child is an excellent way to ensure they are included among your beneficiaries. If you share a family with your partner, you may want to consider adopting your joint children if you are not already their legal parent.
- Protecting against family disputes and challenges to the estate plan: Many LGBTQ+ people have conflicts with their families of origin. If you are concerned that they may try to challenge your plan, you can work with your attorney to ensure that your plan offers minimal opportunities for probate disputes.
While every estate plan should account for these issues, they are especially important for people outside the legal default, as the law may not be structured to give them the necessary support.
Estate Planning Options for Same-Sex Couples in California
You can use many strategies to protect your partner when writing your estate plan. Some of the most effective tools for safeguarding assets and loved ones in California include:
- Wills: You can use your will to name your beneficiaries and define who should and should not receive your assets upon your death. A will is crucial to protect your partner, especially if you’re not married.
- Trusts: You can use trusts to avoid excess tax liability and pass on assets to loved ones beyond your legal spouse with less time spent in expensive probate battles.
- Advance Medical Directives: You may use an Advance Medical Directive, or living will, to explain what you want to happen to you if you are incapacitated and unable to make your own decisions.
- Power of Attorney: The person you grant power of attorney can make legal and medical decisions on your behalf. If you do not assign power of attorney, it will fall upon your next of kin, which will not be your partner if you are unmarried.
Does Same-Sex Marriage Matter for Your Estate Plan?
Yes, your marital status matters when planning your estate. Married couples of all genders become each other’s primary beneficiaries automatically. This provides an extra layer of legal protection that may be worthwhile even if you do not feel the need to get married as a relationship milestone.
One crucial benefit of marriage is California’s community property laws. State legislation defines all property acquired during marriage to be community property, meaning that it is automatically jointly owned. When one spouse passes, the other person already legally owns half the joint assets. No matter what disputes may arise, this ensures your partner will not lose everything.
If you aren’t married, you must rely on joint tenancy laws instead. Joint tenants co-own the property, so it automatically reverts to the surviving owner in full when the other person passes away. Joint tenancy provides more protections against debts, but fewer against taxes, which is often less beneficial for couples with significant assets. However, if you are married, you can benefit from both joint tenancy and community property laws.
Additionally, married couples are automatically granted rights to Social Security and survivorship benefits. You may also receive these benefits if you are in a registered domestic partnership in California. If your relationship is not legally acknowledged in some way, your partner will not receive these benefits.
In short, while marriage is not a requirement, it can simplify many elements of inheritance. Should you choose to remain unmarried, designing a comprehensive estate plan to safeguard your loved ones is particularly important.
Working with an LGBTQ+ Friendly Estate Planning Attorney
Estate planning is a complex matter, regardless of your family structure. If you’re in a same-sex partnership, it can become even more complicated. That’s why working with an experienced, accepting California estate planning attorney is important.At CC LawGroup, we proudly support all families in producing comprehensive and effective estate plans. Our Newark estate planning attorneys will work with you to address your concerns for the future and ensure your loved ones will be protected. Get in touch today to discuss your needs and begin your personalized LGBTQ+ estate plan.
The internet has made getting accurate information about a subject easier than ever. So why are incorrect rumors about divorce still so common?
Two factors make misinformation and misconceptions about a topic more likely to spread: complexity and frequency. Divorce is both complicated and incredibly common. As a result, there are plenty of chances for people to misunderstand the process and spread incorrect information to other people.
Unfortunately, these misconceptions can make people delay or avoid getting divorced when it would be for the best. Below, we’ve debunked five of the most common rumors about divorcing in California and explain the truth about the process.
1. Divorce Is a Battle
The most common but inaccurate belief about getting divorced is that it has to be a big, messy court battle. After all, the splits that make the news always seem to be fueled by anger, jealousy, and bitterness.
However, these cases are the minority. Most divorces are settled before going to court. California law incentivizes couples to work together and draft their own divorce settlements instead of having a judge make every decision for them.
Many Alternative Dispute Resolution (ADR) methods exist for settling your split out of court. You could use collaborative law practices to work directly with your partner and your lawyer to draft an agreement. You could attend mediation if you need a neutral third party to keep negotiations on track. You could even consider arbitration if you need an outside party to make a ruling but don’t want to wait to go to court. Your lawyer can help you choose the best ADR method for your divorce.
2. Men (or Women) Get Better Treatment During Divorce
Depending on who you talk to, you might walk away with the impression that one gender always “wins” during a divorce. Some people claim that men always get better deals for asset division and spousal support, while others argue the same about women. Similarly, fathers’ rights advocates often point to historical inequalities to claim mothers always get child custody. However, none of these claims are true anymore.
State law requires judges to ignore a couple’s genders when deciding matters in a divorce. In other words, the judge cannot use either spouse’s gender as a deciding factor for spousal support, asset division, or child custody. While there are occasional instances of bias in the court system, California penalizes those heavily. If you’re concerned that you’ll “lose” your divorce because of your gender, you can trust that your lawyer will ensure you receive fair treatment.
3. The Person at Fault Loses Out
This is less of a misconception than an old belief that’s no longer true. Until the introduction of no-fault divorce laws, couples could only end their marriages if one person committed one of a few strict “violations.” These faults could include adultery, abandonment, or abuse. Not only did this force people to stay in unhappy marriages against their will, but it also hurt the person “at fault” in the divorces that occurred. Spouses found at fault for the split were often penalized by receiving a smaller portion of the marital assets.
This is no longer the case. Today, California no longer recognizes fault divorces. All splits are held to the same equal property division requirements, regardless of cause.
The only exception is if you have a specific clause in a prenuptial agreement that addresses infidelity or abuse. These clauses may award the injured spouse a greater share of certain assets or relieve them of the responsibility to pay spousal support. However, these clauses must be carefully structured to be considered enforceable. Furthermore, even with a prenup, you cannot be penalized for requesting a divorce.
4. You Have to Divide Every Asset Equally
You may have heard horror stories about people being forced to sell their homes to split the profits equally in their divorce. Rest assured that is the exception, not the rule.
California’s community property laws are not intended to force couples to split each asset down the middle. Instead, they are designed to protect both parties’ rights to a fair division. Assets only need to be divided down the middle if no other solution exists.
The most common alternative is for couples to split the value of the total marital assets in half rather than splitting each item. For example, one spouse could take full ownership of the house, while the other person would receive a greater share of liquid assets in exchange.
Furthermore, splits do not always have to be exactly 50/50. California permits couples to set the terms of their divorce settlement, including the exact division of assets, as long as both parties freely consent. If spouses choose a division that is not exactly equal but is still reasonable and fair to both parties, the court will likely approve it.
The only time a court will interfere and require spouses to split an asset down the middle, or worse, sell assets and divide the profits, is when they absolutely cannot agree on any other solution. This is unlikely to occur outside of the most adversarial and drawn-out splits.
5. Legal Counsel Isn’t Necessary for Divorce
You are not legally required to hire an attorney to end your marriage. However, unless you are childless, have minimal assets, and have only been married a short time, you should still work with a lawyer during your divorce.
Your lawyer is more than just legal representation if your divorce goes to court. They will also explain your rights, provide legal counsel if you negotiate your settlement, and ensure all appropriate documents are drafted correctly and submitted on time. Without a good attorney, you risk making mistakes that could drag out the process for months.Don’t let myths and misconceptions prevent you from starting a new life. Reach out to the skilled Newark divorce attorneys at the CC LawGroup about your situation and take the first step toward your future today.
Sensible Solutions, At A Value That’s Hard To Beat
Whether you are going through a divorce, dealing with the aftermath of a broken marriage or planning for a future after your death or incapacity, we have the legal experience and tools to assist you in meeting your personal and financial needs.
We also understand the importance of avoiding costly litigation when it’s unnecessary for your case. We always try to resolve your legal challenges as effectively as possible outside of the courtroom, yet are still prepared to take your case to trial when it’s best for you or your family.