Are community contributions to the improvement of Separate Property reimbursable?

Are community contributions to the improvement of Separate Property reimbursable?

Maybe.  In re Marriage of Wolfe (2001) and In re Marriage of Allen are instructive.  In Wolfe, the Court found that when community contributions are made to improvements to one spouse’s separate property, the community is entitled to reimbursement.    While we generally do not have many cases on this, the Court in Allen suggested that the Moore Marsden pro-tanto calculation that looks at contributions to the principal would be instructive in determining whether the community would have any value.

What if you refinance your community property house to make improvements on your spouse’s separate property home. In Bono vs. Clark, the court held that if the capital improvements funded by community contributed to an increase in value, than the community would be entitled to a pro tanto interest in the property.  If the improvements do not enhance the property’s value – then a spouses recovery would be limited to reimbursement of one-half of the community funds spent on improving the separate property.

Premarital Agreements In California

Are your client's getting married? Time to talk to them about considering a Premarital Agreement. Having a conversation about finances and assumptions about money is part of every relationship - even if talking about that feels taboo. The failure to communicate about money issues is a classic reason for divorce and a properly drafted collaborative Premarital Agreement is one way to avoid those communication breakdowns.

Here are some reasons why you would consider a Premarital Agreement in California:

1) Premarital Agreements are not always about protecting the wealthier spouse and their pre-marriage or inherited assets. When a spouse has significant inherited assets are assets acquired before marriage, there may be very little community property or shared assets created during marriage. Premarital Agreements often protect the spouse with less money and can ensure that choices like relocation, raising a family, and supporting your spouse during grad school are recognized the event of divorce. Planning for what happens to shared and separate resources if the marriage dissolves give clients the opportunity to agree on how they are going to spend and save money during marriage – and we as family lawyers like to think this reduces the likelihood of money being the main reason for divorce.  

2) There are some complicated rules in California about property that may not seem fair to everyone regarding employment equity (stock), business interests, and real property. For example, did you know that if you are employed before marriage, that your stock that is unvested as of the date of marriage has a partial community property component when it vests during marriage? If you want to maintain all of your pre-marriage employment equity as your separate property that needs to be agreed upon before you get married. For example, a Premarital Agreement can ensure that property acquired before marriage stays with that person, even if the default law says otherwise.  

3) California already has a default Premarital Agreement called the Family Code. If you like the laws of California, you can sign a document that provides for what will happen with your premarital property (separate property) and community property in a divorce, even if you move to another state.

Talking about money to your clients is hard - family lawyers can help with these conversations. If your client is getting married this year, consider recommending that they schedule a conversation with a family lawyer to learn more about Premarital Agreements.

What is Gatekeeping?

When a child refuses or resists contact with one of the parents, many things may be going on and it’s important to get the right professionals involved to investigate and determine how best to help.  

Family Code §3028 states that "The court may order financial compensation … when a parent has been thwarted by the other parent when attempting to exercise custody or visitation rights contemplated by a custody or visitation order.

There are three types of gatekeeping:

Restrictive gatekeeping is when a parent puts barriers to facilitating the other parents time and involvement not for good cause or in bad faith.

Protective gatekeeping is when a parent restricts parenting time and involvement for good cause – such as abuse, neglect, or instability

Facilitative gatekeeping is when a parent actively promots the involvement of the other parent in parenting.

Can my child tell the court where they want to live?

Maybe.

If your child is over 12, the Court is required to provide a method for their voice to be incorporated into the Judge’s decision. The court must provide an alternative for a child address the court outside of the presence of the parties (their parents0 in order to obtain input directly from the child.

Calley's Law

Starting January 1, 2023, "Calley's Law" adds §6323.5 to the California Family Code. This provision authorizing a court to include an order that prevents restraining a party from accessing records and information pertaining to the health care, education, daycare, recreational activities, or employment of a minor child of the parties.

The new law requires an essential care provider, as defined, to develop protocols relating to compliance with that order on or before February 1, 2023, and will require a discretionary services organization, as defined, to develop those protocols within 30 days of receipt of the first order.