Archive for November 2012

Love and Real Estate: If I bought a house a week or two before we were legally divorced does she still get half?

Shawn Weber, Attorney at Law

www.bravewebermack.com

Love and Real EstateIn California, the question that should be asked is not when the divorce is legally finalized, but when you were separated. California law defines your date of separation as that day on which it was clear to both parties that the marriage was irretrievable. That could be the date a spouse moved to a separate residence or the date a Petition for Dissolution of Marriage was filed at court. If the house was acquired after the date of separation, it will be considered separate property. (Beware: if you use community property funds to purchase the house or to make a down payment, you run the risk of giving your ex-spouse an interest in the property or – at the very least – a right to reimbursement.)

BE CAREFUL! Adding a spouses name to the title for a piece of separate real property (i.e., a deed) will turn the property into a community asset. However, a right to reimbursement of the separate property investment will still stand.

Thanksgiving Divorce (A Joke)

I found this joke on the internet here: http://zimmer.csufresno.edu/~sasanr/Funny-Stuff/thanksgiving.htm

I am not sure who authored the joke because it’s all over Google.  But, I thought I would share it to possibly give you a much needed laugh for Thanksgiving.  Enjoy!

A man in Phoenix calls his son in New York the day before Thanksgiving and says,”I hate to ruin your day, but I have to tell you that your mother and I are divorcing; forty-five years of misery is enough.”

“Pop, what are you talking about?” the son screams.

“We can’t stand the sight of each other any longer,” the father says. “We’re sick of each other, and I’m sick of talking about this, so you call your sister in Chicago and tell her.”

Frantic, the son calls his sister, who explodes on the phone. “Like heck they’re getting divorced,” she shouts, “I’ll take care of this.”

She calls Phoenix immediately, and screams at her father, “You are NOT getting divorced. Don’t do a single thing until I get there. I’m calling my brother back, and we’ll both be there tomorrow. Until then, don’t do a thing, DO YOU HEAR ME?” and hangs up.

The old man hangs up his phone and turns to his wife. “Okay, honey ” he says, “they’re coming for Thanksgiving and paying their own way.”

Happy Thanksgiving

Love and Real Estate: In the State of California, if I own the property before we get married does she still get it if we break up?

By Shawn Weber, Attorney at Law

No. In California divorce law, it is important to distinguish “community property” from “separate property”. §761 of the California Family Code provides that “except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.” But, §770 of the California Family Code provides that separate property of a married person includes the following: (1) all property owned prior to the marriage; (2) all property acquired after the marriage by gift or inheritance; and (3) all rents, issues and profits of any separate property asset.

When a couple divorces in California, the court will divide all of the community property in half and award 100% of the separate property to its respective owner.  This means that if you own property prior to getting married it remains your separate property even after you break up. However, there are some exceptions to this rule. For instance, if you commingle your assets you can make an asset community property. Also, if you make a down payment on a piece of real estate with separate property funds prior to the marriage, but throughout your marriage you make mortgage payments from your community wages, your spouse will have a community interest in that property known as a Moore-Marsden interest, which is calculated with a formula based upon the amount of loan principal paid from community funds. However, you will get your separate property down payment back.

For a free consultation about your property and family law, call San Diego Attorney Shawn Weber at 858-410-0144.

I am in a custody battle in California. My ex left an awful and damning voice mail message on my home answering machine. Can I use the recording in court as evidence?

By Shawn Weber, CLS-F*

In short, yes. While there are strict rules regarding the use of unlawful recordings of telephone conversations, there is no prohibition against recording a voice mail message. Ostensibly, the person who left the message knew that the message would be recorded, so you do not run afoul of the rules on unlawful wiretapping.

Some attorneys may attempt to object to the admission of the recording because it is hearsay. In other words, it is an out of court statement offered to prove the truth of the matter stated.  (See California Evidence Code section 1200.)  Normally, such statements are prohibited to be used in evidence.  However, in some cases, there are exceptions.  This is one such case.

Voice Mail Message

Statements made by a party to the action are excluded from the hearsay rule.  Because the statements made on the voice mail message are made by a party opponent (your ex) there is no concern about hearsay. It is admissible as an exception to the hearsay rule under California Evidence Code section 1220. See also People v. Horning (2004) 34 Cal.4th 871, 898 n5.

The only other concern you may have in getting the recording admitted is the issue of “authentication”. In other words, you have to show that the recording actually is what you purport it to be. You can probably take care of this by presenting your own testimony that you are familiar with your ex’s voice and that it was he or she who left the message. Also, you will want to indicate that you are familiar with the workings of your voice mail system and that this was left by your ex on your voice mail system. You can also get an admission from your ex by use of a document called a “Request for Admission” asking your ex to admit that it is an authentic recording of his or her voice left on your voice mail.

You should have an attorney work with you on how best to present the recording to the court as evidence. There are rules about how something must be presented. The rules are technical and a screw up could cause the evidence to be excluded.  However, getting something like a recording into evidence can be very effective.  A judge actually hearing the voice of the person can be very powerful and persuasive evidence.

The corollary to this post is that a person leaving a voice mail message, email or text message should be very careful.  A person should just assume that any communication made with his or her ex or child could end up in front of the judge.  Beware of social media posts as well.  Many custody battles are lost over stupid communications.  Just don’t give yourself the hassle.  In my own cases, I often recommend that my clients have me review their email messages BEFORE they are sent to make sure that they have the intended effect and to ensure that there are no unintended consequences.

Here’s an AWFUL voice mail message left by actor Alec Baldwin on his daughter’s phone.  This unfortunate message was a demonstration that Baldwin had SERIOUS anger management issues.  Needless to say, it caused him a lot of problems.  Now the recording is infamous.  Sadly, this kind of thing is not unusual.  Just follow my mother’s advice, “If you can’t say something nice, don’t say anything at all.”

(Just a warning, the language is strong.)

If you need help in preparing evidence for family court or with coparenting communication concerns, contact San Diego child custody attorney Shawn Weber at 858-345-1616 or see our website at www.bravewebermack.com.

*Certified Specialist – Family Law

The State Bar of California Board of Legal Specialization.

Love and Real Estate: Radio Appearance

Last Thursday, November  8, 2012, I was very pleased to appear on the local radio show, Real Estate Radio, on San Diego AM 1700 ESPN Radio. The topic was “Love and Real Estate.” I enjoyed the opportunity to have a conversation about how California Family Law can affect relationships as it relates to questions of real estate.

Listen to to the podcast here: http://nxtgrp.com/podcast/realestateradio/?p=episode&name=2012-11-10_rer-ep121108.mp3

I was also very pleased to have a chance to spread the word about Collaborative Divorce as an alternative to litigation at court.

Thanks to Real Estate Radio for having me on!