Making the difficult decision to get a divorce is complicated enough, but when you factor in the complex process of division of assets, it is critical that you have a strong attorney by your side to help you weigh the pros and cons of every division. There are rules inherent for all parties during a divorce that provide a roadmap of how all assets and liability need to be divided. The San Jose Division of Assets Lawyers at Feak & Revelo, LLP can help you make the best decisions for your family regarding the division of your assets.
Overview of the Duty of Good Faith Between Spouses
It is very important to understand that during a dissolution proceeding each spouse owes to the other a fiduciary duty, which is defined in Family Code §§ 721, 1100 and 2102. This means, among other things, that each spouse must act in the highest good faith and may never take any unfair advantage of the other. This fiduciary duty includes, but is not limited to, the duty to disclose “all material facts and information regarding the existence, characterization and valuation of all assets in which the community has or may have an interest and debts for which the community is or may be liable”, as well as all material facts and information relating to the income and expenses of each party. Moreover, each spouse must “provide equal access to all information, records, and books that pertain to the value and character of those assets and debts, upon request.”
Family Code §2102 imposes a fiduciary duty, as defined in Family Code §721, upon both spouses as to assets and liabilities from the date of separation until the date the asset or liability in question is actually distributed. Similarly, a fiduciary duty applies to things like support and professional fees until a binding resolution is reached on these issues. The requirements of Family Code §2102 are far-reaching and important to understand and the Feak & Revelo, LLP have San Jose Division of Assets Attorneys available to help you understand your responsibilities during a divorce.
Duty of Good Faith: What does the duty require of me during a divorce?
Both parties are required to act in the highest good faith and may never take any unfair advantage of the other as it relates to “all activities that affect the assets and liabilities of the other party” and “as to all issues relating to the support and fees.” The duty set forth in FC §2102 is sua sponte (voluntary). This means that no request need be made by your spouse with respect to the duty set forth in FC §2102. Hiring an experienced San Jose Division of Assets Lawyer, like Feak & Revelo, LLP is key to making sure you are complying with these orders.
Duty of Good Faith: When does the duty begin?
The duty of good faith commences at the date of separation, not the date an attorney is hired or the date a petition for dissolution is filed. Thus, by the time you reach out to the court or to an attorney, it is likely that the duty was in place as to you and your spouse. Call Feak & Revelo, LLP and speak to one of our San Jose Division of Assets Attorneys to discuss whether this duty applies to you.
Duty of Good Faith: When does the duty end?
The duty continues “until the asset or liability has actually been distributed.” There is presently no case law interpreting what constitutes a distribution of the asset or liability. This duty continues even after we have signed a settlement agreement as it relates to assets and liabilities.
As to spousal support and professional fees, this duty continues “to the date of a valid, enforceable and binding resolution of all issues relating to spousal support and professional fees.” This normally occurs when the case is settled. Both parties are required to act in the highest good faith and may never take any unfair advantage of the other as it relates to “all activities that affect the assets and liabilities of the other party” and “as to all issues relating to the support and fees.”
Standard Family Law Restraining Orders
The Standard Family Law Restraining Orders are automatically ordered by the court when parties are going through a divorce proceeding in California. These orders are also known as Automatic Temporary Restraining Orders or “ATROs”.
As soon as an action is filed for dissolution, legal separation or annulment, automatic restraining orders restraining both you and your spouse become effective. These restraining orders are found on the second page of the Summons which is usually filed at the same time at the Petition for Dissolution. These orders contain some very specific rules for individuals going through a divorce and the San Jose Division of Assets Lawyers at Feak & Revelo, LLP are experienced in helping divorcing spouses navigate the nuances of these orders.
Standard Family Law Restraining Orders: Order Prohibiting Changes in Insurance
California has a strong public policy to dissuade individuals going through a divorce from making any significant changes to insurance without both parties consenting to those changes. Specifically, parties are prohibited from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage. This court order applies to life insurance, health insurance, automobile insurance, and disability insurance, for both your spouse as well as any minor children presently covered by the policies. Hiring a San Jose Division of Assets Attorney at Feak & Revelo, LLP can help you make the changes in a manner that does not violate this standard court order as we are well versed in the nuances of insurance policies during a pending divorce.
Standard Family Law Restraining Orders: Order Prohibiting Changes or Disposal of Any Property
A common concern we hear from clients and prospective clients are concerns about one spouse hiding or destroying community property in order to prevent equitable division. However, any divorcing individual needs to be aware of the prohibition regarding major changes to assets. Specifically, parties who are going through a divorce are prohibited from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property. This also includes community property, quasi-community property, and even separate property. If you need to make a change to some property, you are going to be required to get their consent before doing so. Best practice would be to get their consent in writing and in advance of any changes to property of any kind.
There is one major exception to this rule contained within the rule specifically designed to allow parties to still have the authority to make routine financial decisions while the divorce is pending. This exception allows divorcing spouses to make changes to property so long as it is “the usual course of business or for the necessities of life.” The dedicated San Jose Division of Assets Attorneys at Feak & Revelo, LLP want to help you secure your financial future by avoiding common pitfalls during a divorce including prohibited changes in property.
Standard Family Law Restraining Orders: Order Prohibiting the Removal Minor Children from California
If your divorce action includes minor children, chances are that this will be among the most hotly contested issues during your divorce. Likewise, California has an interest in making sure the wellbeing of the children are secure during the action and thus requires prior written consent before a party can remove a child from the state or obtain a passport on their behalf. If you are in the middle of a divorce case with minor children, the San Jose Division of Assets Attorneys at Feak & Revelo, LLP are among the top attorneys for custody disputes within the Bay Area.
Common Types of Division of Assets and Liabilities Issues
After the preliminary declaration of disclosures are completed by both parties, the usual course of action includes settlement proposals about not only what assets are subject to division, but also how the division shall occur. It is critical to have a competent attorney to help navigate these division of assets issues and the San Jose Division of Assets Lawyers at Feak & Revelo, LLP are available to help you avoid common mistakes while dividing community assets and liabilities.
Division of Assets and Liabilities: Real Property
As property values in the Bay Area continue to soar, one of the more common issues is the division of the interest in real property assets like a martial residence. Because California is a community property state, that means that the equity remaining in your real property purchased during your marriage is subject to division between the divorcing spouses. However, a couple of common pitfalls we see revolve around how the property is held and how the downpayment was financed on a property. These can change and modify how the equity is divided between the two parties. Feak & Revelo, LLP understands that your home is a major financial investment for most families and are experienced in navigating the challenges in dividing real property assets.
Division of Assets and Liabilities: Student Loans
Another common form of liability that spouses discuss during a divorce is who is going to be responsible for student loan debt. It is a well-known that higher education costs continue to increase and are a significant financial burden during a marriage and in some cases for significant periods of time thereafter. Unlike other types of liability, California takes the approach that student loans should be considered separate property (not subject to equal division) because the education the individual received will presumably benefit them for the remainder of their life. However, the spouse who incurred the expense can sometimes request a contribution from their non-student spouse when the community substantially benefited from that education. The San Jose Division of Assets Lawyers at Feak & Revelo, LLP understand the financial burden that student loans pose and can help you determine if a reimbursement for those expenses can be requested in your divorce case.
Division of Assets and Liabilities: Retirement Accounts
Retirement assets are among some of the most valuable assets that sets up each spouse for future stability. Unlike Stocks or bonds which have an immediate cash out value, the value of retirement assets like 401k and pensions occasionally requires a separate valuation so that each party can make informed settlement decisions. Assuming that each party is informed as to the value of every retirement asset, they need to be divided according to a “Qualified Domestic Relations Order.” If you are currently going through a divorce and struggling to determine how to divide your retirement asset, contact Feak & Revelo, LLP to discuss your options for asset division.
We Also Focus on the Following Areas in San Jose, CA:
Alexis helped me get through the worst time in my life and I was very grateful to have her as my attorney. She has a very approachable personality which made me feel relaxed and comfortable. Not only is she very bright, but she also genuinely cared about my case. She was always very responsive and engaged. I highly recommend her and I could not have asked for a better attorney.
Michael
I just want to say how much I appreciate Alexis and all she has done for me over the year. It felt like it was never going to end, but I'm so happy this is now finally closed out and I can move on with my life. I can't imagine having survived it without you!
Thomas
Samantha Feak was my attorney and she worked her butt off for me! I am proud to say that as of today I am finally divorced, and I couldn't have done it without her. She fought for me when I felt like I didn't have the strength to fight for myself any more, and she got it done. She made sure my divorce included a much needed restraining order to keep me safe from the physical and emotional abuse, and harassment from my ex husband. I cried tears of happiness when I got the call this morning it was finally
Natalie
I am thankful for Samantha, she is so calm yet impactful whereas I felt totally overwhelmed. I admire her abilities, and I’m very thankful for guidance in court.
Renee
Alexis was an amazing attorney in my divorce case. I had a highly litigated and contested case. She has been in my corner since the beginning, and assisted me every step of the way. I could not imagine what my situation would be like if Alexis was not leading the ship!
Ally
Samantha is the best thing to happen to my daughter and I. She helped me understand the crazy tactics of my ex and helped the court understand why I needed custody of my daughter. I am so lucky to have her as my lawyer.
Emil
Attorney Revelo is professional, thorough, and smart. She understands all the nuances of the law regarding Divorce and Separation and I am grateful she took my case. She is efficient and caring all at once. I was able to get my divorce finalized in a little over six months. She made a court date and personally oversaw the final judgement. She is trustworthy, fair, and ultra-competent. I would recommend her to anyone seeking a divorce or separation. Attorney Revelo embodies excellence in her field of law.
Rosella
From the very beginning of reaching out for a consultation I have felt so at ease, the response back from everyone is so fast and relieving. Alexis Revelo has been by my side every step of my case, I cannot say enough positive things about Alexis!! Her knowledge and compassion has made this stressful time for me a lot more manageable.
Melissa
Samantha was great to work with on my case. Her attention to detail and legal advice every step in the process helped considerably in the final six months of my case.
Brett
Latest Blog Posts
Navigating Business Disputes: Strategies For Resolution
Business disputes are an inevitable part of running a company. Whether it’s a disagreement with a partner, a contract dispute, or issues with employees, understanding how to handle these conflicts...
Feak & Revelo, LLP: Your Trusted Divorce Partners in San Jose
Divorce can be one of life's most challenging experiences, impacting every aspect of your life. At Feak & Revelo, LLP, we specialize in guiding our clients through the complex process...
Understanding The Legal Process: A Step-by-step Guide For New Clients
Navigating the legal system can be daunting for those unfamiliar with its processes. At Feak & Revelo, LLP, we believe that knowledge is empowering. This guide will walk you through...
