Law Blog
Friday, October 5, 2007
Can I take money out of our joint account?
What are the funds normally used for? If they are necessary for maintaining the CP business, then you need to take that into account. But if they are just savings, then you can take them before you file or are served with the Petition for divorce.
LEGALLY, there is no prohibition against doing this. Prior to filing the Petition, there are no ATROS in effect. My argument would be that taking the money is simply to preserve the CP assets until properly adjudicated by the court. There are fiduciary duties owed to the other spouse (which ARE effective prior to filing a Petition) under Family Code section 721 which require each to deal with the other in the highest duty of honesty, good faith, and fair dealing. The location of the money must be DISCLOSED immediately to the other spouse.
FC section 721 requires each spouse to 1) provide access to the BOOKS, 2) disclose all INFORMATION about the transaction, and 3) HOLD AS TRUSTEE any CP money inhis/her control.
ETHICALLY, there is no problem with such a transfer, based upon a reasonable belief that he/she is preserving a CP asset (as opposed to the unethical goal of "bleeding him dry.") the spouse can preserve MORE THAN HALF of the money if, for example, there is $25,000 in CP credit card debts that need to be paid off.
In conclusion, I do not see anything illegal, or unethical, about grabbing control of the "disputed" CP money. There should be enough left in the account that is "reasonably" not in dispute as being a part of the other spouse’s share. Then immediately disclose in writing the transfer, including the bank information, account number, and balance, and advise husband that the money will be preserved until the court can adjudicate division of same. And finally, inform in writing that $10,000 of the money was paid to her attorney as a retainer toward anticipated attorney's fees.Labels: Marriage tips
posted by Susan Jeffries at
Wednesday, October 3, 2007
Property division procedure
Divorce starts by filing the Petition, and filing the Response. Then you start working on the financial issues to determine spousal/child support and property division. (Child custody and visitation issues are resolved separately from the property and support issues) First you make a list of what assets you have, then you add the current value for each asset, and any related debts. Then you list all the debts, the creditor and what the money was for.
The court requires full and complete disclosure of all financial information before any settlement is signed and will not issue the final judgement without full disclosure by each party.
We have special forms and worksheets to make this simpler for our clients.
Working with an attorney, you determine what is legally separate or community property. The separate property belongs to the owner and is not divided. The community property must have a current value (by agreement or appraisal) before it can be divided.
Finally, the community property is added up, divided by two, and then distributed so each person gets half of the value.
As long as no one stalls the process, the disputes may be small and can be resolved by a joint meeting of the parties and their advisors.
You can bring disputes to a mediator, a private judge or even a trusted neighbor. If you agree, the "mediator" drafts a "Memorandum of Understanding" to put your agreement on paper. The MOU is NOT a legally binding document. One attorney drafts the legal agreement for the other party to review and approve. It becomes legally binding when it is approved by the court.Labels: Procedure Tips
posted by Susan Jeffries at
What is Mediation?
Mediation is a process you can use to resolve disputes. If you have no dispute, you do not need mediation.
Mediators do not have to be attorneys. A mediator can be anyone you trust who can help you resolve your dispute. However, you do need to know the legal basis for your position before you start the process or any negotiation.
A Mediator is not working as an attorney and should not prepare legally binding documents on the disputed issue.
The best way to mediate is to have a neutral mediator manage the negotiations while each party consults privately with their own attorney who helps them understand the issues, the facts and the law and helps develop a negotiation and settlement strategy.
My firm works with parties in mediation all the time. Often the client represents him/her self and we only "consult and counsel" them as they request. This saves client's money because we do not work directly with opposing party at all.
If you have questions about mediation, we can help you with them.Labels: Mediation
posted by Susan Jeffries at
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