Who Gets The Dog In A Divorce?

Posted by: Gerald A. Maggio, Esq.

Top Orange County Divorce Mediators; California Divorce MediatorsBy:  Gerald Maggio, Esq.

If you don’t have a pet, you might not understand how important and difficult this question can be but if you have ever felt the special bond between a person and a pet, you can imagine how custody issues of pets can be difficult in a divorce. When spouses with children divorce, the court determines whether the parents will have joint custody or if one parent will have sole custody. Courts also provide parenting time schedules for children so both parents have parenting time with the children.

The overriding factor in custody and parenting time decisions is the best interests of the child…not the best interests of the parents. Focusing on the best interests of the child makes custody decisions easier for parents and courts alike because there is enough research on what is best for children in many different situations. If the court were to treat pets like children, they would have to determine what is in the best interests of the pet and that is not something courts are likely to do because court resources are in high demand for more pressing matters. As far as the best interests of the pet, pets are generally fine as long as they have food, water, shelter, perhaps a walk, and someone to give them attention.

Just as not all parents are married, not all pet owners are married either. Roommates, partners, friends, and family might get a pet together and when they go their separate ways, the pet owners may not agree on who should have custody of the pet. For all these situations, courts do not have a process by law to award custody. Some individual courts have made rulings for custody of pets but generally speaking those decisions were left up to the court’s discretion and were not really based in state law.

Pets Are Property

Interestingly, pets are considered property by law so they are treated like property in a divorce. Property includes real property (a house) as well as items such as furniture, electronics, and jewelry. When dividing property, spouses generally each receive property of equal value. One spouse might get the big screen TV while the other spouse might get the china and glassware which has the same value as the TV. How do you put a dollar value on the family pet?

While courts will not typically decide issues regarding pets (there really aren’t any laws for courts to follow regarding pets in divorce) individuals can stipulate their own agreement in regard to family pets. Families with children sometimes decide that the pet should be where the children are. In those cases, the pet follows the same parenting time schedule that the children follow. In some cases, just like property, one spouse might negotiate a deal where he keeps the pet and he offers other types of property in exchange for the pet.

Are You A Dog Lover?

In a survey by the APPA National Pet Owners Survey 62% of households in the United States owned a pet (72.9 million homes). The health benefits of owning a pet are well-documented as pets provide security, companionship, a reason to exercise, and can even lower a person’s blood pressure simply by their presence. People form very special bonds with their pets and particularly in divorce cases where there are no children; the pet can be one of the most valued relationships the divorcing individuals have.

For further information or to schedule a consultation, please contact California Divorce Mediators at (949) 553-0911 or at www.cadivorcemediators.com.

To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”

Is My Spouse Entitled to My Inheritance In Our Divorce?

Posted by: Gerald A. Maggio, Esq.

Orange County Divorce Mediators; California Divorce MediatorsBy Gerald Maggio, Esq.

In California, assets and debts that are acquired during the marriage are generally community property, meaning that each party is entitled to one-half of such assets (or responsible for one-half of such debts).  One MAJOR EXCEPTION to that principle of law is inheritance.  If a spouse inherits money or other assets from family or others, such assets are considered to be that spouse’s separate property, and would not be divided in a divorce.

However, it is highly important to know that you must have segregated such monies and/or assets in a separate account in your own name.  In other words, let’s say that you inherited $100,000 from your grandmother.  You received a cashier’s check for such monies in your name through her estate.  If you were to deposit that check into a bank account in your own name and it existed at the time of separation/divorce, it would be hard for any court to determine that it was anything but that spouse’s separate property.  On the other hand, if you were to have deposited that check into the joint checking account with your spouse and some or all of the funds were spent on various expenses and splurges, etc., you likely have a limited ability to claim any of those spent funds without proof and dependent on what you spent the money on.  You may have a claim for any remaining monies in the joint account assuming that there was not a valid transmutation into community property pursuant to Family Code section 852, which imposes certain requirements on marital transmutations, including that a transmutation “is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” there is arguably a transmutation of those funds into community property by way of the deposit into the joint checking account.

In plain English, you will save a lot of headache, legal fees, and expert fees spent tracing the funds into and out of any joint account by simply keeping any inheritance segregated in your own account in your own name from the moment that you receive such inheritance.  If you do want to use such monies for joint purposes in the future, consider a transmutation agreement with your spouse.  For more information or to schedule a consultation, contact California Divorce Mediators at (949) 553-0911 or at www.cadivorcemediators.com.

To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”

What Are My Options Concerning My House In A Divorce?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediator;s California divorce mediatorsBy: Gerald Maggio, Esq.

Following the real estate collapse in the past 5 years, more people owe more on their homes than the home is worth than prior to the real estate bust.  Many have no equity in the home and some are even under water because they owe more than the value of the house.  Historically, when people divorced, it was common for people to fight over who would get to keep the house because there was equity in the house. The house was not only desirable for emotional reasons, it was also often the most valuable asset in the  marriage and was expected to increase in value.

In today’s market though, it is common for parties to fight over not taking the house.  No one wants to be saddled with a mortgage that they cannot afford for a house which has no equity, so both spouses are more likely to try to get out of the house. This has been a relatively new dilemma for divorcing parties, for attorneys and for courts.  Here are your 3 options for dealing with this increasingly common problem.

1. Sell the House.

If you can sell your house, you may be able to pay off the mortgage and start fresh. The risk in keeping a house which has no equity is the very real risk of foreclosure.  A homeowner would have to keep the home and continue to make mortgage payments until the real estate market recovers to the point that the home has more value. A homeowner may have to work with the mortgage company on a short sale in order to avoid liability for any remaining balance owing on the mortgage. Both spouses will likely have to remain on the mortgage until the house is sold but once the house is sold, both will be released from the debt.

2. Rent the House.

If parties do not want to sell the house while it has no equity, the parties can choose to rent the house until the market recovers or until there is some equity in the house. One party can assume the responsibility of caring for the home or the parties can share it. If the parties decide to rent the property, they will also have to decide if one of them will take the tax deduction and claim the rental income or if they will share the income and/or the tax deduction. Renting the home allows both parties the option to live somewhere new while still getting some income from the home until the right time to sell arises, or at least buy some time for the real estate market to fully recover. Both parties will likely have to remain on the mortgage until such time as the home is sold.

3. Stay in the House.

One party may decide to take the risk and assume possession and the sole interest in the home.  The risk is that the home may not ever be worth as much as the amount owed on it, but the potential benefit is that over time, the house will have value again and in the meantime, they will receive the tax deductions for mortgage interest and property taxes.  If one party is willing to assume that risk, the party should not owe anything of value in return for getting the house. For example, if the house had equity of $200,000, and the wife decided to keep the house, then she would have to compensate the husband for his $100,000 marital share of the equity in the house. When the house has no equity, there is no reason to compensate the other spouse.  The house may have value someday, but it might not. The person willing to assume the risk will solely assume the loss or the profit from that decision.

For more information or to schedule a consultation, please call California Divorce Mediators at (949) 553-0911 or visit www.cadivorcemediators.com.

To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”

My Spouse Wants To Keep The House Until The Children Graduate High School-Is That A Good Idea?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediator;s California divorce mediatorsTrying to keep the marital house for the sake of the children is admirable and generally intended to be in their best interests, particularly during the instability of divorce and the adjustment of their life thereafter. However, there are real considerations that have to be weighed in order to determine whether it is wise to enter into such agreement.

First, you may have difficulty in qualifying for a new property you wish to purchase since you will be listed as a borrower under the existing mortgage for the marital property, thereby affecting your debt ratio that lenders use in qualifying borrowers.

Second, if the spouse remaining in the house makes late payments on the mortgage or defaults on payments, your own credit will also be detrimentally affected and seriously affect your credit score which in turn will affect your ability to borrow or lease anything in the future.

Finally, you will need to have a clear written understanding of what each spouse will be entitled to years from now after Junior has graduated from High School and now the time h
as come to sell the house. After all, should the spouse that did not keep the house still be entitled to one‐half of the equity in the property at the time of sale, or at the time of the divorce? Having a clear agreement is vital to avoiding future, costly problems in how to divide a property sold years after the divorce was over.

For more information or to schedule a consultation, contact California Divorce Mediators at (949) 553-0911 or at www.cadivorcemediators.com.

To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”