Cynthia A. Magnus

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480 St. John Street, Suite 260
Pleasanton , CA 94566
TEL : 925.846.6005
FAX : 925.846.6047

Recently Asked Questions

  1. My husband and I moved to California from Oregon two months ago. Can I file a divorce action in California?
  2. How long does it take to get a divorce in California?
  3. What is the difference between a dissolution and a legal separation?
  4. My husband and I have been married for 38 years. He is 67 years old, unemployed, and receiving social security benefits. I am 61 years old, employed and earning $32,000 per year. I realize that California is a community property state and that the community property is equally divided at time of divorce. Since most of my husband's social security benefits were "earned" during our marriage, if we divorce, will I get one-half of his monthly social security checks?
  5. My wife and I have been married for a year and a half. I am considering filing a divorce. At the time we married, she had a substantial amount of debt. Can I be forced to pay any of that debt?
  6. My husband and I have been married for 28 years. At the time of our marriage, neither of us had any money or property. Additionally, during our marriage, neither of us inherited any money or property. About 19 years ago, we started a business selling window coverings. My husband works in the business almost every day. For the past 9 or 10 years, I have been working one or two days a week in our business. If we divorce, what happens to our business?
  7. Soon after my wife and I married 8 years ago, we purchased a house together. All of the $40,000 down payment for the purchase of our house came from a savings account which my wife had acquired prior to our marriage. We have always held title to our home in joint tenancy. Our home has appreciated approximately $35,000 since we purchased it. Now that we have decided to divorce, we have agreed to sell the house. However, we haven't been able to reach an agreement as to how we will divide the sale proceeds. How would the Court divide our sale proceeds?
  8. My husband and I have been married for 5 ½ years. Throughout our marriage, he has made court-ordered child and spousal support payments to his first wife from his paychecks. His support obligations to his former wife have totaled $4,500 per month. Because of those obligations, we have never been able to save any money. Now, my husband is threatening to divorce me. He says I won't receive any money or property because neither of us have any retirement plans, we don't own our home, and we have not acquired any assets or saved any money during our marriage. If we divorce, is there any way I can recoup any of the monies my husband paid to his former wife?
  9. During our marriage, I inherited $128,000. My wife and I used that inheritance to pay for our children's college expenses, for family vacations, and for the purchase of a new car. Now, there is nothing left. In our divorce proceeding, will I be able to recoup any of the money that I had inherited?
  10. My wife and I are both employed and earn comparable incomes. We have two children, both of whom are in elementary school. We own our home. I want a divorce. We have already agreed that our children will reside with my wife, and that I will have visitation with them on alternating weekends. My wife has told me that if I will give her the house, she will never ask me for any child support. Is such an agreement enforceable?
  11. My husband and I have been married for 13 years. I have a 14-year-old son from a prior relationship. My husband and I have two daughters from our marriage. My son has never met his father, and I have never received any child support from my son's father. If my husband and I were to divorce, would the Court order my husband to pay me child support for all three children, or just our daughters?
  12. How long does a parent have to pay child support?
  13. In our divorce, how will the Court divide my husband's pension?
  14. My wife and I have been married for 28 years. A few months ago, we purchased a home in Texas with the intention of retiring there. She then moved to Texas and began residing in our new house there. Because I had another six months before I could retire, I remained living and working in California. Our marriage has broken down and my wife has told me that she has filed a divorce action in Texas. However, I have yet to be served with any divorce papers. I would like for the California courts to handle our divorce. Is there anything I can do to avoid having to litigate my divorce in the State of Texas?

1. My husband and I moved to California from Oregon two months ago. Can I file a divorce action in California?

No. Because you have not resided in California for at least six months, you are not eligible to file a dissolution (divorce) action in California. However, you are eligible to file a legal separation action in California. And, in your legal separation action, the court can make the same orders regarding property, debts, child and spousal support, child custody and visitation, and attorney's fees that it could have made in a dissolution action.

If you decide to proceed with such a legal separation action, in your Petition for Legal Separation, you should write "On satisfaction ofthe residency requirement of Family Code Section 2320, I intend to amend this Petition to seek a Judgment of Dissolution of Marriage." That way, as soon as you have resided in California for at least six months, you may amend your Petition for Legal Separation to a Petition for Dissolution.

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2. How long does it take to get a divorce in California?

It is not possible for the Court to terminate your marital status, i.e., make you a single person again, in less than six months. That six-month period starts to run as soon as the Petitioner (the party filing the dissolution action) has had the Respondent (their spouse) served with a Petition for Dissolution of Marriage. Many people mistakenly assume that it is the mere passage ofthe requisite six-month period of time that terminates their marriage. This is incorrect. Marital status is not terminated until the requisite six months has passed and the necessary Judgment of Dissolution of Marriage is procured from the Court.

Oftentimes, it takes longer than six months to resolve the parties' property rights, spousal support, child custody and visitation, child support, etc. Nevertheless, if one party is intent on terminating their marital status at the earliest possible date, the issue of marital status can be bifurcated (separated) from all the other issues and a Judgment of Dissolution Marriage on the bifurcated issue ofmarital status can be procured as early as six months and one day from the date that the Respondent was served with the Petitioner's Summons and Petition for Dissolution of Marriage.

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3. What is the difference between a dissolution and a legal separation?

In both a dissolution action and a legal separation action, the Court has jurisdiction (the power) to address the issues of child custody and visitation, child support, spousal support, property division, division of the marital debts, and to issue restraining orders. Most people choose a dissolution action rather than a legal separation action because a Judgment of Dissolution Marriage terminates the parties' marital status and restores them to the status of unmarried persons. A Judgment of Legal Separation does not terminate marital status. Nevertheless, a legal separation proceeding may be an appropriate choice for parties who wish to divide their marital property but also wish to remain legally married. Occasionally, parties wish to remain married for religious or other personal reasons, for example, to maintain an unemployed spouse on a medical insurance policy for as long as possible. (Assuming, of course, that such coverage will continue to be available after a Judgment of Legal Separation is entered.) Sometimes, a party may desire a legal separation in order to qualify their spouse for derivative social security benefits or to ensure that their spouse is able to continue to receive certain benefits accorded to military spouses. At any time after a Judgment of Legal Separation is granted, either party may file a separate dissolution action and request that their marital status be terminated in that dissolution action.

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4. My husband and I have been married for 38 years. He is 67 years old, unemployed, and receiving social security benefits. I am 61 years old, employed and earning $32,000 per year. I realize that California is a community property state and that the community property is equally divided at time of divorce. Since most of my husband's social security benefits were "earned" during our marriage, if we divorce, will I get one-half of his monthly social security checks?

No. Federal laws govern the disposition of social security benefits, not California's state laws. Therefore, even though most of your husband's social security benefits were acquired or "earned" during your marriage, federal preemption prevents the treatment ofthose benefits as community property. Pursuant to federal law, your husband's social security benefits will be treated as your husband's separate property.

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5. My wife and I have been married for a year and a half. I am considering filing a divorce. At the time we married, she had a substantial amount of debt. Can I be forced to pay any of that debt?

No. California law requires that the debts incurred by a spouse prior to marriage be confirmed to the spouse who incurred them, without any right to offset. Additionally, if your wife paid off some of her pre-marital debt during your marriage by using her earnings, in your divorce proceeding, you may be entitled to reimbursement from her for one-half of those monies.

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6. My husband and I have been married for 28 years. At the time of our marriage, neither of us had any money or property. Additionally, during our marriage, neither of us inherited any money or property. About 19 years ago, we started a business selling window coverings. My husband works in the business almost every day. For the past 9 or 10 years, I have been working one or two days a week in our business. If we divorce, what happens to our business?

Because the business was acquired during your marriage, it is a community asset. California courts prefer to divide community assets "in kind" wherever possible. However, an "in kind" division is ordinarily not used when there is a family business which needs to be divided. Although the Court would have the power to divide the family business equally between you and your husband, marital actions oftentimes involve such interpersonal hostility that it is impractical for spouses to continue a business partnership. If both you and your husband have been operating the business, you both desire to be awarded the business, and you both have the financial ability to purchase it from the other, the Court will usually establish a value for the business and award it to one of you. On the other hand, if your husband has qualities that are essential to the success of the business (for example, knowledge, experience, relationships with customers, etc.), and you do not, the Court will normally award the business to the operator spouse. If you do not lack qualities crucial to the continuing operation of your business, the Court may award the business to either you or your husband. For example, in a 1986 case called Marriage of Kozen, the trial court decided to award a Burger King franchise to each spouse. Thereafter, one of the spouses appealed the trial court's decision. Upon appeal, the Court of Appeal upheld the trial court's decision because the non-operator spouse would be able to operate the franchise after attending a training program.

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7. Soon after my wife and I married 8 years ago, we purchased a house together. All of the $40,000 down payment for the purchase of our house came from a savings account which my wife had acquired prior to our marriage. We have always held title to our home in joint tenancy. Our home has appreciated approximately $35,000 since we purchased it. Now that we have decided to divorce, we have agreed to sell the house. However, we haven't been able to reach an agreement as to how we will divide the sale proceeds. How would the Court divide our sale proceeds?

Because title to your home is held by the two ofyou jointly, and because the $40,000 down payment came from your wife's separate property, the Court would order that she be reimbursed for her $40,000 down payment at the time of sale of the house. Any other net sale proceeds would then be equally divided between the two of you. If the net proceeds from the sale ofyour residence are less than $40,000, your wife would be entitled to all ofthe sale proceeds.

Your wife's right of reimbursement of her $40,000 down payment is governed by California Family Code Section 2640. That Section does not limit itself solely to down payments. Rather, it states that a party is entitled to reimbursement for any contributions that were made to the acquisition of community property to the extent that that party can trace the contributions to a separate property source. Reimbursable contributions include any payments that reduced the principal of a loan used to finance the purchase. Reimbursable contributions do not include payments for things such as loan interest, property maintenance, homeowner's insurance premiums, or property taxes.

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8. My husband and I have been married for 5 ½ years. Throughout our marriage, he has made court-ordered child and spousal support payments to his first wife from his paychecks. His support obligations to his former wife have totaled $4,500 per month. Because of those obligations, we have never been able to save any money. Now, my husband is threatening to divorce me. He says I won't receive any money or property because neither of us have any retirement plans, we don't own our home, and we have not acquired any assets or saved any money during our marriage. Ifwe divorce, is there any way I can recoup any of the monies my husband paid to his former wife?

Possibly. California Family Code Section 915(b) provides that if community property (in this case, your husband's earnings during your marriage) was applied to satisfy a child or spousal support obligation that your husband had to his former wife, you may be entitled to reimbursement from your husband for one-half ofthose support payments. However, you would only be entitled to reimbursement if your husband had separate income available to pay his support obligations at the time of payment. For example, if your husband had rental property which he had acquired prior to your marriage and, during your marriage, he received rents from those properties, that would constitute separate income. However, if the only income your husband had during your marriage was his earnings from employment, you probably won't be able to recoup any of the support he paid to his former wife.

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9. During our marriage, I inherited $128,000. My wife and I used that inheritance to pay for our children's college expenses, for family vacations, and for the purchase of a new car. Now, there is nothing left. In our divorce proceeding, will I be able to recoup any of the money that I had inherited?

You probably can't recoup any of the money (because it's all been spent), but you may be able to get the car which was purchased with your inheritance awarded to you. Specifically, if you can prove that the car was purchased with the monies you inherited, then the car would be awarded to you as your separate property pursuant to Family Code Section 2640.

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10. My wife and I are both employed and earn comparable incomes. We have two children, both of whom are in elementary school. We own our home. I want a divorce. We have already agreed that our children will reside with my wife, and that I will have visitation with them on alternating weekends. My wife has told me that if I will give her the house, she will never ask me for any child support. Is such an agreement enforceable?

No. A child has the right to support from both parents. Public policy prohibits a parent from waiving or limiting their child's right to support. Thus, even if your wife signs an agreement saying that she'll never ask you for child support, that agreement is not binding on her. Consequently, at any time in the future, your wife could file a motion and request child support. If she did so, the Court would be required to award her child support if your income and the amount of time you spent with the child warranted a child support order.

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11. My husband and I have been married for 13 years. I have a 14-year-old son from a prior relationship. My husband and I have two daughters from our marriage. My son has never met his father, and I have never received any child support from my son's father. If my husband and I were to divorce, would the Court order my husband to pay me child support for all three children, or just our daughters?

Normally, a Court has no power to order that a stepparent pay child support for a stepchild in a divorce action. However, there have been instances where the Court in a divorce action has ordered a stepparent to pay child support for their stepchild, but only if: 1) the stepparent represented to the child that he or she was the child's true parent with the intent that the child rely on that representation; and 2) the stepchild, ignorant ofthe truth, relied on the representation and treated the stepparent as a parent, giving love and affection to the stepparent. When those conditions are met, the stepparent is said to be "estopped" to deny a child support liability. When the estoppel applies, the Court can order the stepparent to pay child support just as if he or she were the child's biological parent.

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12. How long does a parent have to pay child support?

With respect to California's child support orders, a parent who has been ordered to pay child support generally has an obligation to pay such support until the child attains the age of 18. However, child support for a full-time high school student who is not self-supporting will continue until the child either graduates from high school or reaches the age of 19, whichever occurs first. The obligation to pay child support will terminate when the child dies, or becomes emancipated, i.e., enters into a valid marriage, is on active duty with the armed forces, or receives a declaration of emancipation.

There are only two circumstances under which child support may continue beyond the aforementioned termination dates, i.e., when the parties agree that child support will continue beyond the aforementioned date, or, when the parties have an adult child who is incapacitated from earning a living and is without sufficient financial means.

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13. In our divorce, how will the Court divide my husband's pension?

It depends upon whether your husband's pension is a "defined benefit plan" or a "defined contribution plan".

A defined benefit plan is a pension that will pay the employee a monthly payment upon their retirement. If your husband's pension is a defined benefit plan, then the Court will use the "time rule" to divide the pension. Your interest in a defined benefit plan will be a percentage of the monthly benefit your husband will receive once he becomes eligible for retirement. That percentage is calculated by a fraction, the numerator of which is the number of years your husband participated in the pension plan during your marriage, and the denominator of which is the total of years he participates in the pension plan. For example, if your husband participated in his pension plan during 8 years of your marriage, and, at the time ofhis retirement, he's been participating in his plan for a total of 20 years, the community property interest would be 8/20, or 40% of his pension benefit. As his spouse, you would be entitled to one-half ofthat community property share, or 20%. Consequently, if he has a defined benefit plan, you would receive 20% of his retirement payment each month.

On the other hand, if your husband's pension plan is a "defined contribution plan", you would be entitled to one-half of the contributions to the plan during the marriage plus one-half the interest and accruals on those marital contributions. Defined contribution plans are plans such as 401 (k) plans and 403(b) plans.

In dividing both types of plans, the duration of the marriage is defined as the period between the date of marriage and the date of separation.

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14. My wife and I have been married for 28 years. A few months ago, we purchased a home in Texas with the intention of retiring there. She then moved to Texas and began residing in our new house there. Because I had another six months before I could retire, I remained living and working in California. Our marriage has broken down and my wife has told me that she has filed a divorce action in Texas. However, I have yet to be served with any divorce papers. I would like for the California courts to handle our divorce. Is there anything I can do to avoid having to litigate my divorce in the State of Texas?

Yes. All states have residency requirements. It just so happens that Texas, like California, requires that a party reside there for at least 6 months before they can file a dissolution action there. Thus, because at the time she filed that action, your wife did not meet Texas' residency requirements for filing a divorce action, the Texas court does not have jurisdiction to go forward.

Nevertheless, assuming that your wife had met the Texas residency requirements and thus had properly filed a divorce action there, if you file a divorce action in California and get your wife served before she can get you served, your divorce will proceed in California. It's the first party to serve the other, rather than the first party to file a divorce action, which determines which state will have jurisdiction to proceed with a divorce action. Thus, if you are intent on having California's courts handle your divorce, you need to file a Summons and Petition for Dissolution of Marriage in California as soon as possible and have your wife served with that Summons and Petition before she gets you served with her Texas divorce pleadings.

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The Law Offices of Cynthia A. Magnus is located in Pleasanton, CA and serves clients in Alameda and Contra Costa Counties, including the communities of Alamo, Berkeley, Blackhawk, Castro Valley, Concord, Danville, Diablo, Dublin, Fremont, Hayward, Lafayette, Livermore, Martinez, Moraga, Newark, Oakland, Orinda, Piedmont, Pleasant Hill, Pleasanton, San Leandro, San Ramon, Sunol, Union City and Walnut Creek.

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