There are three important questions to ask when determining what rights you have regarding the family home.
1. When was the home purchased?
If the home was purchased during the marriage and before the date of separation, it is presumptively community property which will be split equally unless either party has a right to reimbursement under Family Code section 2640. The community property presumption can be rebutted by one spouse claiming the property is separate property based on how title to the property is held.
2. How is title to the property held?
If title to the property is held by one spouse, the title presumption will trump the date of purchase presumption and the property will be deemed the separate property of the spouse who is on title. However, if the spouse took title in his or her name alone during the marriage and used community property to buy the property, the spouse who holds title must demonstrate that he or she took title with the other party’s knowledge and consent. Likewise, if one spouse acquired title during the marriage by the other spouse transferring his or her interest to the titled spouse, the spouse who holds title must demonstrate there was a valid transmutation of the character of the property from community property to separate property and that there was no undue influence in the transaction. A presumption of undue influence arises when a spouse gains an unfair by the change in character of the asset and the spouse who gained the unfair advantage must prove that the transfer was entered into knowingly, voluntarily and intelligently otherwise title will be restored to community property.
3. What can you do to protect your interest in the family home?
It is important to understand the consequences of taking title or changing title to a property during marriage. Before agreeing on how title will be held or signing a document transferring title to your spouse, you should seek legal advice so you can protect your interest in the family home.
There are four primary benefits to mediation:
- The parties can control the outcome of their case.
- Reduced Cost
- Less antagonism and emotional drain.
- Mediation is confidential.
In addition to the cost savings detailed above, mediation is a way for the divorcing couple to control the outcome of the case. When a case is not mediated and the parties have the court decide issues, the court is bound by certain rules and cannot deviate from those rules. In mediation, the parties can be creative in dividing property, continuing to hold property jointly, payments of spousal support and developing parenting plans. The mediator should assist you in achieving both parties’ goals for your family post-divorce. For instance, in certain cases it might be important for a spouse receiving spousal support to receive a lump sum at the outset of the divorce rather than receiving payments over time. Mediation allows a divorcing couple to agree on a one-time lump sum buyout of spousal support (aka alimony) while a court can only order monthly, ongoing payments if there is no agreement by the parties.
Mediation generally decreases the cost of getting divorced as an efficient mediator will usually help the parties resolve matters in a few two-hour sessions. Thus, the parties are incurring the cost of one mediator, rather than paying two attorneys to prepare documents to submit to the court.
Unlike the litigation process which often requires parties to submit filings to the court, which can create a lot of stress and cause the parties to make public very private matters, the mediation process enables parties to exchange information in a more informal way. Thus, the exchange of information is less anxiety provoking.
Finally, mediation is confidential. That means that you can discuss matters freely during mediation without worrying that the mediator will be called to court to testify about what was said. The open lines of communication allow for a more honest and family centered approach to mediation.
Not only is going through a divorce emotionally draining and time-consuming, it can also be very expensive. Being efficient while also obtaining ample information that will help you resolve your case is critical to managing the costs of divorce. Mediation generally offers a lower cost alternative to divorcing couples. Since the parties are paying the cost of one mediator rather than two lawyers, the parties generally agree on a cost sharing mechanism for payment of the mediator’s fees. If the parties have joint funds, they will often agree to use the joint funds to pay the mediator’s fees. If one party has more resources than the other party, that party may advance the cost of mediation fees.
In the event that mediation is not the path that you choose, fees and costs can be split equally by agreement of the parties or, if there is no agreement, the Court can order one party to contribute to the other party’s reasonable attorney’s fees and costs based on the disparity in each party’s access to assets and income from which to pay fees. (Cal. Fam. Code § 2030 et. seq.) Additionally, the court can order one party to pay the other party’s attorney’s fees and costs as a sanction for frustrating the policy of the law that encourages settlement. (Cal. Fam. Code § 271.) Just another reason to engage in mediation to try and resolve your case amicably.
Note, there are other code sections that allow for recovery of attorney’s fees circumstances (i.e. enforcement of child support orders, domestic violence cases etc.) Those will be addressed in a separate blog post.
Are you going through a divorce and want to do it in a way that minimizes the anxiety, emotional turmoil and expense? If so, mediation is the right option of you.
Mediation is an alternative dispute resolution process that both parties agree to participate in rather than proceeding through the “court process” which requires the court to decide how to divide property, draft a parenting plan, and establish spousal and child support orders. During the course of the mediation, the parties will meet with the mediator to develop child custody parenting plans, divide assets, establish temporary support or income sharing arrangements and assist the parties in obtaining information from each other that is critical to the resolution of the divorce. As agreements are reached, the mediator memorializes the agreements in writing so that each party has an opportunity to review the terms with counsel prior to signing the documents.
Generally, it is recommended that each party consult with independent counsel to ensure that each party is comfortable with the terms of the agreement and that they fully understand the rights that they have with respect to the agreement. Though each party may consult with independent counsel, the cost associated with mediation is generally much lower than proceeding with court intervention where independent counsel is much more heavily involved.
Mediation allows you and your soon to be former spouse to control the outcome of your case rather than letting the court control the outcome. It also allows you openly and freely discuss issues that arise without fear that what is said in mediation will be used against you as the process is confidential. Thus, if you want a safe place to control the outcome of your divorce, mediation is the right choice for you.
Learn more about Mediation