Art, Collections, and Community Property

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I have kids.  Young ones. They exemplify the term, “This is why we can’t have nice things.”  Our art is mostly made by them, or from a local housewares store.

In my career, I have run across several couples with collections of valuable fine art.  Every time, the fine art collection has posed a problem in the division of property.  Here are some examples of the real arguments I have heard about art and other collections:

  • “My parents bought that painting for me as a wedding gift.”
  • “I have always had a deep emotional attachment to that sculpture.”
  • “I was the one who collected all of those fine china plates from around the world.”
  • “I worked in the gallery that sold this artist, and I bought that painting  from the artist himself using my employee discount.”
  • “If it wasn’t for me, she wouldn’t even have known which Matchbox cars to collect.”
  • “He he gave me that AR-15 for my birthday.”

There are two problems with any collection of valuable items, including art, while you are dividing them in a divorce:

  1. They have actual cash value as a collection, and individually.
  2. They form a part of the emotional history of the relationship.

The simple advice in this article from the Wall Street Journal is excellent, but only really works if at least one party comes to terms with the second of these two issues: the emotional attachment to the art or collection.  The toughest part often is in finding an appraiser who can place a reliable value on the collection.  The internet is a great resource to find appraisers for just about any collection.

When you are dividing items from the household, emotional distance is key.  The more intrinsic value you place in an object, the more power you give to the other side.  Find your Zen, find an appraiser, and divide your community property.

Tips for Dividing Art in a Divorce or Death – WSJ.

DIY Divorce: How to get your California divorce started.

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Getting a divorce started is one of the simplest parts of the process.  Here is what you need, and how to get it done.

Forms:

The forms required to start your divorce in California are available online for free, and are relatively simple to fill out.  The forms include these:

  • Summons – Family Law
  • Petition – Family Law (for all MARRIAGES) (or Petition – Domestic Partnership in appropriate cases)
  • Property Declaration
  • If there are minor children of the marriage, Declaration Under Uniform Child Custody Jurisdiction Enforcement Act.

Download all four to your computer first, because they will not save with the portions you will need to type in later.

Prep Work:

Make an inventory of the things you know you bought while you were married.  While making that list, try to estimate what everything is worth.  For things like furniture, use “Craigslist” or “garage sale” values.  For cars, use Private Party value from kbb.com.

Filling Out the Paperwork:

The Summons.

Start with the easiest one: the Summons.  To fill out the Summons, put your spouse’s name in the “Notice to” line at the top.  Then fill out your name at “Petitioner’s name” line.  The court will provide the case number when you file everything.

Fill out the bottom of the first page with the address of the courthouse, and the your own name, address, and telephone number at the very bottom.  The second page does not need to be filled out.

Make three copies, or two copies and a scan.  Set the original and the copies aside.

The Property Declaration.

The series of boxes at the top of the first page is the “caption.”  It needs the following information: (a) your name, address, and telephone number; (b) the court’s address; and (c) the names of you (as Petitioner) and your spouse (as Respondent).  As before, the court will provide the case number when you file your documents.

The Property Declaration has instructions on the last page.  This is where your inventory of property comes into play.  Fill it out the best you can.  Your list of property does not need to be exhaustive, so long as you hit the most important things, like the house, cars, investments.  Also, you can lump certain things, like collections, together in one line, like “gun collection” or “women’s jewelry.”

Make three copies, or two and a sacn.  Set the original and the copies aside.

The Petition.

The Petition is pretty straightforward, too.  Fill out the caption like you did in the Property Declaration.  Check the box for “Dissolution of Marriage,” “Legal Separation,” or “Nullity of Marriage.” (I will discuss the difference in a separate article.)

Check the box next to Petitioner for paragraph 1, “Residence.”

Fill out the date you were married for line 2(a).

Fill out the date you and your spouse stopped living as a married couple for line 2(b). (I will discuss date of separation in a separate article.)

Fill out the total duration of your marriage in line 2(c).

If you have no children with your spouse, check the box for 3(a).  If you have children, check the box for 3(b), and list their names, birthdates, ages, and sexes.  At this point, you will also need to fill out your Declaration under Uniform Child Custody Jurisdiction Act if you have kids.

If any of your kids were born before you were married, and you have a voluntary declaration of paternity, then check the box for 3(d).

Under Part 4, check the box marked “below.”  In the space under “Item” write this:

“All property obtained before marriage, after separation, or by gift devise, or bequeath; and any property purchased using the proceeds of the sale of any such property.”

In the space under “Confirm to” write “Petitioner.”

Under Part 5, check the box next to part 5b, and the box next to “in Property Declaration (form FL-160)

Ninety-nine point nine percent of divorces and legal separations are based upon irreconcilable differences.  If that is what is motivating you to get a divorce, then check the box under 6(a)(1) for divorces, or 6(b)(1) for legal separations. If you are asking for annulment, call a lawyer to talk about your case.

Paragraph 7 is where the trickiest parts of the Petition are located.

  • If you have kids you need to check all boxes that describe who you want to have legal and physical custody, and visitation (lines 7a, 7b, and 7c).
  • If you have children born out of wedlock, and no voluntary declaration of paternity, check the box next to 7d.
  • Check the box next to “Respondent” for line 7e
  • Check the box next to “Petitioner” for line 8a
  • Check the boxes for 7g and 7h.
  • If you changed your last name when you married, and you want to go back to your name before marriage, check the box for 7i, and write your full former name in the line at the end.
  • Check box 7j, and write “such further relief as the court deems just an proper” in the area adjacent to that line.

Sign and date the Petition.  Make three copies, or a scan and two copies.  Set them aside.

 Declaration under Uniform Child Custody Jurisdiction Enforcement Act.

If you have minor children with the other party, you must fill this form out.  The caption is filled out just like the other two documents. If you have domestic violence, child neglect charges, a contested adoption issue, or any other legal problems regarding your children, call a lawyer because things will get confusing while filling out this form.

List your oldest child first in Box 3a.  Put all prior addresses going back five years.

Assuming all your children lived with you together at the same address, write the name of your other child in box 3b, and then check the box under his or her name stating the address information is the same for all other children.

On the second page read through everything carefully.  If you can honestly answer “No” to everything under part 4, then check “No.”  If you must answer yes, then call a lawyer.  Same thing about paragraph 5.  If there is an existing Domestic Violence Restraining Order, then call a lawyer.  And same thing with paragraph 6.  If you must answer “Yes,” call a lawyer.

Sign and date this form, too.  As before, make three copies, or one scan and two copies.  Set it aside.

Assembling the final product.

Take the original Petition. Behind that, add the Property Declaration and then the UCCJEA form.  Staple them together.  Make the other two (or three) copies look the same.  Many courthouses require you to punch two holes in the top edge of the document so they can be affixed to the court’s file.  Punch all three copies.

Then staple the summons and use the two-hole punch on it.

Going to Court.

As of the date this article was written, the filing fee is $435.  Bring a check, the originals, and two copies with you down to the family law courthouse. Go to the clerk’s office.  Wait in line.  File your documents, and pay your filing fee.

You just started your divorce process!

How courts view home school in custody cases.

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Many years ago, when I first started working as a family law attorney, home school was presumed to be a haven for the fringes of society.  People who had unusually strong religious beliefs, or who were sailing around the world with their kids, or who were living in communes, all home-schooled their kids.  In those days, home schooled kids struggled to be accepted into four-year colleges, and were seen as poorly educated, possibly indoctrinated, and socially backward.

Courts back then echoed this sentiment.  They frequently would custody of the children to the parent who wanted to put the kids into a mainstream public or private school, and express openly that the reasons for doing so were exactly as listed above: home schooled kids were weird and didn’t learn to standards.

This is all changing now.  This article has a nice collection of opinions from around the nation showing the growing trend away from the previous negative presumptions about home school.

My own experience with home school has varied, but I have generally found the courts to be much more accepting nowadays.  The one big exception I have encountered was a case where the child’s pro-home-school parent was engaging in severe parental “gatekeeping,” and was using home school as a means of isolating the child from the other parent.  The child admitted during child custody recommending counseling that home school included repeated severely negative references to the non-home-school parent as mean and psychologically unstable (both untrue statements).

This is generally how home school works in conjunction with child custody nowadays.  Home school is increasingly looked at as any other school choice, unless it is causing some harm to the children that would not be experienced in other circumstances.

Here is a link to the Washington Post article:

Home schooling and child custody – The Washington Post.

5 Divorce Facts That Might Change Your Idea of Splitting Up | World of Psychology

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People ask me about divorce statistics all the time.  This article provides most of the answers you could ever need.

5 Divorce Facts That Might Change Your Idea of Splitting Up | World of Psychology.

 

Too young to consent, but old enough to pay.

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I will occasionally post stories like these, which show the upside-down logic of family court.

In this case, a 14 year old boy had sex with a 20 year old woman.  Under Arizona law, the boy was too young to consent to the sexual encounter, making him a victim of statutory rape.

The relationship produced a child, but the boy did not know this fact.

The boy grew up, trained for a career, and started his own life.  He did not find out about the child until eight years later, when the state started proceedings against him for child support.

Arizona statutory rape victim forced to pay child support.

Deployed submariner loses a round in custody battle | Navy Times | navytimes.com

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Deployed submariner loses a round in custody battle | Navy Times | navytimes.com.

I have been tracking this case since it started.  The father is a submariner in the US Navy.  That means one or two times a year, he will get into a submarine and disappear for months at a time. He does not see or speak to his family during that time.  It is rough life.  I am glad he is willing to do this job.

He has a daughter from his first wife, and he is remarried.  During the divorce his first wife was convicted of assaulting the daughter.  The courts gave sole legal and physical custody to the father.  He moved to the Seattle area with his daughter and wife.

Last year, the ex-wife asked the court to award her custody of the daughter. The court then started making orders that appear to violate the Servicemembers Civil Relief Act.  One order threatened this deployed submariner and father with sanctions for his failure to appear at a hearing.  Think about this: while deployed, submariners are functionally gone from planet Earth.

Even now, the family court seems to be ignoring the Servicemembers Civil Relief Act.  The father is still deployed on a submarine, and yet the court is entering orders modifying child custody.

I have encountered judges in my own practice who make light of the SCRA.  Since then, I have seen a larger emphasis placed upon the relief the SCRA offers, but this news article is not the only case of a parent taking advantage of the deployed status of a service member.  It is my hope the pending legislation aimed at preventing this kind of result in the future.

Imputing income to a nonworking spouse.

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In family  court, sometimes a higher wage earner will defeat his or her own reported income by quitting a job to become “self employed” or to work “under the table.”  Other times, a lower wage earner who is qualified to do work will avoid looking for work, or will remain intentionally under-employed.  In cases like this, it would not be fair to require the spouse who is working at his or her capacity to bear the burden of the other parent’s failure to find work or to maximize earning potential.

In such cases, California will “impute” income to the party who is not working to full capacity, or who is unwilling to embark on a career.  In a manner similar to this article from Florida, below, California courts will determine (a) what the party’s qualifications and training are; (b) whether there are jobs available in the area; (c) which available jobs the target spouse would qualify to work in; and (d) the amount the target spouse would earn if he or she sought such employment.  This number will then be used to determine child and spousal support.

The downside of imputed income is this: the non-working spouse may have a higher amount of support to pay based upon imputed income, but may still never pay the full ordered support.  Arrears in the tens of thousands may build up.  Interest may blow that figure up significantly. But nothing can create income where there is none.  At times imputed income can be cold comfort.

 

It’s The Law: Income can be imputed for alimony or child support – Marco Eagle.

How to Plan for a Divorce – WSJ

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Though this article is written for people generally and needs some fine-tuning for California, it is the best I have seen in years related to pre-divorce planning.

In addition to these steps, someone wanting to prepare for or initiate a divorce in California needs to consider several other issues, including establishing the date of separation, temporary arrangements post-separation (including co-habitation agreements or arrangements where the parties continue to live in the same home, only separately) and dealing with regular expenses.

In cases where nothing is urgent, I often give clients advice to put off filing for divorce to allow them to prepare other aspects of their lives, including preparation for separate living, arranging estate plans, or other similar issues.

Review the article carefully.  If you have questions about how to prepare for your divorce, call us for a free 20 minute consultation.

How to Plan for a Divorce – WSJ.

Financial dos and don’ts when divorcing – Fidelity Investments

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I stumbled across this while I was doing some research for a client regarding her 401k account.  It offers a lot of solid financial advice for those facing divorce over the age of 50.

Financial dos and don’ts when divorcing – Fidelity Investments.

The Sacramento Bee: EDD Denies Valid Unemployment Claims

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From the Sacramento Bee.

According to an auditor, the EDD has been denying unemployment benefits in thousands of cases where the employees’ claims were fully justified, only to have the California Unemployment Insurance Appeals Board overturn the agency’s decision to deny benefits later.

What does this mean for parties involved in an unemployment claim? It means employers should always challenge unemployment claims, and that employees should always appeal when their benefits are denied.

Read the story at the link below.

California auditor says jobs agency wrongly denied benefits – The State Worker – The Sacramento Bee.