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.
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.
So it’s official. The American Psychological Association has made it clear that Parental Alienation Syndrome (PAS) will not be included in the forthcoming DSM-V as a psychological disorder. Frankly, I am relieved.
I have seen some very alienating behavior over the years in my family law practice. It comes from both genders and every time it comes up, a child is harmed. Sometimes it is driven by emotional issues such as addiction, abuse or even a personality disorder. More often than not, however, it is just because someone is being mean by putting their poor emotionally defenseless child in the middle of their divorce.
PAS has not been well received in the California courts. For one thing, the science is not very good and is not deemed as sufficiently reliable for use in custody proceedings.
Here are some links to sources by skeptics of Parental Alienation Syndrome:
Bond, Richard (2008). The Lingering Debate Over the Parental Alienation Syndrome Phenomenon. 4. Journal of Child Custody. pp. 37–54.
Martindale, David; Gould, Jonathan W. (2007). The Art and Science of Child Custody Evaluations. New York: The Guilford Press. ISBN1-59385-488-9.
I have had many potential clients call me wanting to launch a legal campaign in family court based on PAS. I try to explain that the science is considered unreliable. However, these parents often feel so convinced that they are victims of PAS that they won’t hear anything else. When I start to explain that PAS is not a recognized psychological disorder, I am quickly written off.
I try to explain that the BEHAVIOR, without talking about the label, is what counts. It is universally accepted that exposing children to alienating behaviors is harmful to them. We can hang our hats on that concept in court rather than getting caught up in the label of a so-called syndrome.
As a caution, experience has also shown me that many parents who complain of PAS often miss the point that it is quite possible that the child is alienated because the alienated parent truly IS terrible for that child. It is not uncommon for an abuser to complain that the other parent is alienating. But that’s a discussion for another day.
My recommendation to all parents in difficult custody cases is to focus on the undesirable behaviorsand not assign psychological labels.
My brother, in describing how he can spot an emotional problem without being a trained psychologist, relates the story of how a mishap on a swing resulted in his own self-diagnosis that his arm was broken. How was this child able to diagnose his fracture without being an M.D.? He simply looked at his arm and noticed that it was bending at a forty-five degree angle the wrong way. No medical books required — his arm was broken! It’s not much different in figuring out that there is a serious problem in a custody battle.
I have observed that most cases where alienating behaviors occur often involve psychology that is more reliable than the very unreliable “unscience” of PAS. For instance, there is often abuse of a parent or the children. Very often substance abuse is involved. Perhaps one or both parents suffer from a personality disorder. I don’t need the en vogue diagnosis of a psychological disorder to show the court that there is a problem and that a child is suffering. Just like my brother’s childhood diagnosis of his own broken limb — Judges don’t need it either.
Here’s an idea. When there is bad behavior in a custody battle — the Judge should simply call it out and put an end to it. You don’t need a DSM diagnosis to conclude that it is bad for kids if one parent is on a campaign to alienate the other parent. It’s just rotten, nasty and mean behavior. Period. This is not about gender, because I see rotten behavior from moms and dads equally. Where I practice family law in San Diego, it is almost standard in every case that there is an order that neither parent shall speak negatively of the other parent in the hearing or presence of the child. I believe a child has a right to draw his/her own conclusions about a parent without being subjected to either parent’s mean-spirited histrionics — no DSM diagnosis required. As Bob Newhart would say, just “stop it!”
I came across this article from Time Magazine by BELINDA LUSCOMBE about a family judge in Canada that basically flipped out on a couple because their behavior during the divorce was so bad. The Judge apparently wrote his opinion having taken a very dim view of both parties. I particularly enjoyed his dark and sarcastic tone in his very unusual order. However, the opinion underscores in a humorous way a significant problem facing many family court judges. I have often heard the saying that in Criminal Court, we have bad people on their best behavior. But in Family Court we have good people on their worst behavior. I wonder how many family judges have considered making an order like this one.
I have to admit, as a divorce professional, I need a good laugh now and then. This video was terrific. I love this woman’s method that she discovered to control her anger. It’s too much!
