A marriage begins with the filing of a marriage license. In the sad event that you or your spouse choose to end the marriage, the legal union is dissolved via a divorce decree.

There are typically four significant stages in a couple’s divorce process. The first begins when one or both parties decide to proceed with a divorce. This usually leads to conversations ranging from very heated and tense to business-like and sad. The second and third stages include mediation with a family law facilitator or official court proceedings and filing the finalized divorce papers. 

After six months, if neither party contests the initial filing, the courts stamp the documents filed, and the divorce is finalized. Your receipt of the official divorce decree finalizes the third stage and launches you into the fourth – when you, your former spouse, and any children you have adjusted to the new life ahead

Included In The Divorce Decree

The papers you or your lawyer file to begin the court’s review of the divorce are the same ones you’ll get back with the official court stamp. Every divorce decree is different in some ways because no two couples or families are alike. 

However, the typical divorce decree includes the finalized agreements on how everything should proceed – from the closing of joint bank accounts and paying off certain debts to child visitation and support payments. Here are some of the most typical forms included in the final divorce decree packet.

Summary of dissolution & judgment of dissolution and notice of entry of judgment

The first form is the one you or your spouse fill out to file the request for a divorce. Because California is a no-fault divorce state, you’re guaranteed the divorce will be finalized six months after you file as long as all of the paperwork is 100% correct. 

This is why we always recommend working with a family law mediator – even in a no-conflict divorce. It’s the only way to know everything will be completed and filed without the risk of anything being kicked back by the court for a small error. When that happens, you have to complete and submit the forms all over again, which re-starts the clock.

NOTE: Do not panic if your spouse refuses to sign the paperwork in the 30-day time frame specified by the court. If this happens, you show up for your court date as stated by the court and the divorce, and the court will accept all agreements stated in the paperwork you completed. Your spouse cannot contest anything in the divorce agreement after waiving their right to respond in 30 days.

Spousal support (FL-167) 

Depending on your marriage’s employment history, income, and other factors, one of you may have to pay spousal support (formerly known as alimony). This is a temporary situation in most cases, barring any prenuptial agreements that state otherwise.

The courts no longer expect one spouse to support the other for any longer than necessary. So, while alimony of the past was often for a lifetime, until remarrying, or for ten years, the courts now expect the person receiving spousal support to do whatever is necessary to obtain gainful employment, at which point those payments stop.

If you have to pay alimony, you can petition the court to change or cease payments at any time if you feel your ex-spouse’s financial situation is healthy enough for them to live without your assistance.

Child custody (visitation and support)

If you have children together, you’ll file forms pertaining to child custody (visitation and relevant support). We highly recommend couples with children use divorce mediation rather than finalizing a DIY or lawyer-facilitated divorce. There are multiple benefits of using divorce and child custody mediation – the largest of which is the reduced tension and drama. 

Children suffer greatly during and after a divorce so the more you can do to make this part as smooth, fair, and amicable as possible, the better it is for your children’s mental and emotional wellbeing.

Name change

For many, a divorce may be a time they wish to change their name back to whatever it was before the marriage. This can be done as part of the divorce proceedings – finalized in the divorce decree – as long as you fill out the legal name change portion of the forms.

Final decisions and instructions regarding property and asset division

Finally, a divorce technically means some type of distribution of properties and assets. This part is fairly straightforward because California is a community property state. Things to think about when discussing “who gets what” include considerations around:

• Existing prenuptial agreements.
• Do you own your own business?
• Properties, assets, or other items of value acquired during the divorce as inheritances (which are separate from community property).
• Is one person buying out the other’s share of the house to keep it, or is the house being sold to pay off joint debts, splitting the remaining equity?
• Is it worth it to forgo a portion or all of a spouse’s retirement fund to gain a different asset or account?
• Other financial considerations that should be addressed now to simplify post-divorce life.

Finally, are there any debts or assets your spouse doesn’t know about? If so, it’s time to come clean, as the court does not favor those who hide assets during legal proceedings. You can wind up facing serious penalties. 

Make Copies Of The Divorce Decree To Finalize Post-Judgment Transactions

Once the divorce is finalized, you and your ex-spouse must complete all of the necessary transactions outlined in the divorce decree within a set amount of time. In many cases, like name changes, property/title transfers, closing/accessing accounts, etc., you must provide a certified copy of the divorce decree. You can request certified copies of a divorce decree from the county clerk’s office in the county where the divorce was finalized.

Make a checklist of the items you’re responsible for and then tick through them as soon as possible to facilitate a clean break and a fresh new start.

Gerard A. Falzone Prioritizes Divorce Mediation To Facilitate Drama-Free Divorces

There is no need for drama, chaos, or unnecessarily long (and expensive) divorce proceedings. Connect with the Law Offices of Gerard A. Falzone to learn more about how you can get your official divorce decree finalized with a minimum investment and optimum integrity.

The moment you officially tell your spouse you want a divorce, and the aftermath of that conversation can never be completely undone; even if you change your mind, it’s a freeze-frame experience you’ll remember for the rest of your lives. 

If you have children, the energy and words exchanged during and after that conversation must be thoughtfully planned, as children are unwilling bystanders to an emotionally devastating change in their reality. How you approach the communication process – before, during, and after the initial announcement – can make the difference between an affordable, streamlined, and less stressful divorce – and one filled with drama, emotional harm, and lasting financial consequences.

6 Steps To Telling Someone You Want A Divorce & Simplifying The Process

After 40 years working as a family law expert specializing in divorce and child custody mediation, I believe how you tell your spouse you want a divorce is a key predictor of how the rest of the process will unfold. 

Here are six steps I advise for anyone considering or tottering over the fence around divorce.

Be very clear and 100% sure before you breathe a word

The words “I want a divorce” are weapons, and they trigger a myriad of powerful emotions and experiences for anyone who hears them – including your children. I recommend never uttering this sentiment unless you are 100% sure you want to proceed with a divorce and have a semblance of a plan in place. 

Outside of more extreme situations (unmitigated domestic abuse, addiction, unmanaged mental illness, etc.), couples can overcome and grow through incredibly challenging periods – often lasting for years – when they can let go of their personal agendas and utilize their resources. 

Ensure you’ve tried EVERYTHING:

• Is there identity work that needs to happen now that you’re in a different stage of life/relationship/family building/etc? Growing pains, rather than irreconcilable differences, can be deviously misleading. If so, giving each other permission to grow with a commitment to redefine the relationship and how you view one another can be powerfully freeing. A good therapist can help tremendously with those new agreements.
• Seeing a reputable family therapist you both like and trust (this can take a while to find, but is worth seeking).
• Review your prenuptial agreement with a family law professional. 
• Made a list of what life will look like before/after a divorce – including the pros and cons for everyone involved.
• Realizing that while the grass may not always be greener, there is no perfect person. The traits that drive us the craziest in our spouse will rear up in other ways in future relationships.

If you have no doubt this is the right move, it’s time to proceed with respect and dignity for both parties.

Decide whether a legal separation may be a good first step

The idea behind legal separation allows couples to experience what divorced life is like without the realities of divorce in play. They involve all the same features of a divorce – division of finances, living arrangements, child custody/visitation orders, child or spousal support if applicable, and so on. 

For many, this experience is a huge wake-up call, and couples find their way back to a healed and new “whole.” Others learn that separation has supported a higher-quality life for everyone and is the healthier way to proceed.

Think long and hard about your children’s needs

Children are the priority in any divorce. Perhaps it’s true that – overall – children fare better with parents who are happy and divorced than miserable and married. However, after working with hundreds of families over the years and redrafting child custody/visitation orders as needed, I can say that children are always haunted by their parent’s divorce, no matter how “good” or “bad” things were.

If you have opted to forgo therapy for yourselves, I highly advise getting family therapy for your children (again, focusing on one you all like and trust). The therapist can support your children’s emotional well-being while supporting both of you in maintaining healthy co-parenting boundaries and communication.

Review all of your divorce options

The media would have you believe that every divorce is contentious and turns into a court battle. This is only true for individuals and couples who are poorly advised by their divorce lawyers OR who don’t heed their lawyers’ advice.

These days, most people prefer to use divorce mediation or a collaborative divorce proceeding. Either way, you’ll experience far less stress, emotional upheaval, and financial drain than if you go the old-school “me vs. you” divorce battle.

Divorce mediation

With the divorce mediation model, you visit the same family law attorney together (and separately) to process your divorce fairly and equitably. This saves you thousands (or tens of thousands) of dollars while also providing a neutral opinion on your situation. So, let’s say you believe your spouse owes you spousal support and they refuse to pay, or you want to take the entirety of a particular investment or asset rather than split it. Anything you tell the mediator will be shared with the other party (and vice versa) as the mediator works with both of you and holds an informed but neutral position.

A divorce mediator will let you know what a judge is most likely to rule in that case, and you can decide from there whether it’s worth a battle or not. Research proves that mediated (or collaborative) divorces are much healthier for all parties involved.

Collaborative divorce

With the collaborative divorce model, each of you hires a lawyer to feel personally represented (rather than neutrally represented), but the lawyers work with you both to come to the most equitable outcome in the least amount of time, minimizing the emotional fall-out. The lawyers are not required to share your information with the other side, but they are not interested in contributing to escalation or drama – quite the opposite. If this model appeals, you’ll look for lawyers specializing in collaborative divorces.

Set aside a clear space without the children around

You owe it to your spouse, yourself, and your children to have this conversation in a private and uninterruptible space. The calendar should be completely clear, with nowhere to go. Turn off any phones and gadgets to avoid interruptions.

If necessary, you may choose to have this final discussion in your therapist’s office or have a therapy session scheduled ASAP afterward to process what happened and keep a bigger picture and calm perspective on what is transpiring. 

Be calm and compassionate

Regardless of the water under the bridge, telling a spouse you want a divorce is a powerful and sad moment for your spouse – and you! Some people harden their hearts and are unkind in an effort to seem “in control” or “unaffected.” I don’t recommend that approach.

Perhaps you will both be far better off after your divorce. However, at this moment, you’re initiating the death of a dream, a marriage you got into “forever,” and – if you have children – the death of your children’s security in a nuclear family. If your spouse never thought this moment would come, they may be absolutely shocked or devastated – especially if their lives and identities are largely tied to their role in the family.

This conversation should not be filled with anger, resentment, or malice. It should be calm, compassionate, and tender. If things escalate, hold a strong boundary that you must stop the conversation and return to the table when you’re both calmer.

Schedule Divorce Mediation With The Law Offices Of Gerard A. Falzone

After a few years spent in contentious court battles, it was clear that divorce mediation and collaboration were the only ways for couples to divorce with the least amount of emotional fall-out for themselves and their families. I excel at helping couples process their own experience while working together to develop the best divorce settlements and child custody agreements for all involved.

Contact The Law Offices of Gerard A. Falzone to learn more about your divorce options and for more guidance on how to tell your spouse you want a divorce. 

People don’t always realize that military divorces are somewhat different than their civilian counterparts. For example, one of the most significant differences is that divorce proceedings, including the final divorce and child custody agreements, are governed by the Uniformed Services Former Spouses’ Protection Act (USFSPA), which alters where an individual may (or may not) want to file for divorce.

We always recommend seeking pre-divorce legal counseling before officially filing for divorce. Working with a family law specialist beforehand ensures you know all of your options and professional advice on what to do – or what not to do – throughout the process.

5 Ways Military Divorce Is Different

Here are five ways military divorce proceedings are different.

Finalizing child custody and visitation proceedings may be more challenging

We’re putting this difference first because we believe the children’s best interest should ALWAYS be a top priority in any divorce – regardless of what water flows beneath the parents’ bridges. The states’ family law courts decide child support, and most states (including California) determine a service member’s portion using their total entitlement (base pay, housing allowance, subsistence allowance, and any other special pay). 

However, all military branches (excluding the Air Force) have their own rules on how much parents should pay. If you’re in the military, start there, and it may simplify things for you during the settlement process. Also, remember that once child support is set, only the family law court can change the amount. If anything about the military member’s pay will change in the near future due to deployments, base transfers, upcoming discharge, etc., speak to a lawyer about customizing the terms of the child support order ahead of time to prevent having to go back to court.

When it comes to child custody, the courts now tend to do what’s best for the child. However, unless there is something compromising or dangerous with remaining with the non-active duty spouse, it’s rare for active duty military personnel to get full child custody due to the upheaval and disruption in a child’s life if/when a parent is deployed. 

You have a choice about where to file your divorce

Typically, couples living in California for six months or more must file their divorce in California. This is not the case for couples where one or both people are in the military. Adults in many military couples have residency in two different states, which means you can choose which state you want to file your divorce. 

However, you’ll want to choose carefully. The USFSPA dictates that the state of legal residence of the military member always has the power to divide the military pension in a divorce. So, let’s say your spouse is in the military, and you are not. You live in California, and she lives in Tennessee. Usually, California is a community property state, which means all of your assets – including any retirement savings or pension funds accrued during your marriage – are split evenly. 

However, Tennessee is not a community property. It adopts something called equitable distribution, which means the state divides things equitably – but only sometimes equally. You want to file your divorce in the state that is most likely to distribute assets in your favor if there is a difference.

Active military personnel can file for a “Stay” through the SCRA

In California, the person filing for a divorce is called the “Petitioner,” and the person being served the divorce papers is the “Respondent.” Once served, the Respondent has 30 days to respond. If they don’t respond or sign the papers in 30 days, the Petitioner can continue moving forward by taking some extra steps. If you or your spouse is on active duty, you can request this time be extended.

The Servicemembers Civil Relief Act (SCRA) was designed to prevent active military members. This gives them up to 90 days to respond, and they can request more time on top of that. The “stay” is intended to keep active military members focused on their jobs so they aren’t consumed by the stress and steps required to move forward with a divorce. The military court will not continually grant extensions without good reason, but it’s worth being prepared. 

A non-military may be able to keep their healthcare plan

If you’ve been married for 20 years or more to an active duty member of the military, you may be able to keep your spouse’s TRICARE coverage at no cost. The military calls this the 20/20/20 rule (20 years of marriage, including 20 years of active duty and 20 years of overlap. If you have medical coverage available through your employer, TRICARE becomes the secondary form of insurance.

If you don’t meet the 20/20/20 rule, you may be able to pay for something called “conversion coverage” through the military’s Continued Health Care Benefit Program (CHCBP). There are several qualifying stipulations, but qualifying ex-spouses can have this coverage for at least 36 months, eventually allowing you to migrate onto your non-military insurance plan.

Dividing retirement plans can be tricky

Military pension and retirement plans can be tricky to divide in a divorce. In some cases, it makes more sense to trade retirement benefits for current assets to keep things streamlined. However, that isn’t always possible. If and how a military pension can or will be divided in a divorce varies according to multiple factors. 

Also, know that If a portion of your pension will be paid to your ex-spouse after retirement, you’ll probably be mandated to pay for something called the Survival Benefit Plan. This means that if you die before your ex-spouse, they’ll continue receiving their portion of your pension for the rest of their life. 

Gerard A. Falzone Provides Mediation & Collaboration For Military Divorces

Mediated or collaborative divorce are both smart options for navigating a military divorce efficiently and with the least amount of stress or contention possible. In addition to keeping you out of the courtroom, these variations in divorce proceedings can save you thousands of dollars.

Working with a family law specialist with experience handling military divorces is always best to ensure everyone’s best interests are honored during the proceedings. Contact Gerard A Falzone to schedule your military divorce consultation.

Adults should always be careful about what they post on social media because the record is there for all to see, including prospective employers. Now, family law judges pay closer attention to social media posts when making decisions about pending divorce, child custody, visitation, and child support/spousal support hearings.

As people become more impulsive and less thoughtful about posts – or don’t think to check peers’, family, or friends’ posts – social posts admitted as evidence in court are increasingly used as evidence against petitioners/responders in your divorce or child custody hearings.

Do NOT Do This On Social Media During Divorce Proceedings

Everyone should be mindful of their public image and how it can affect them, but this is especially true before, during, and after divorce proceedings. Depending on the evidence copied and pasted to be used against you, you may find yourself:

• In contempt of court or facing perjury charges.
• Losing child custody or visitation rights.
• Paying more in child or spousal support.
• Owing backpay for child/spousal support (paid with 10% interest to the recipient).
• Facing criminal charges.

Here are five things you should never do when using social media.

Disparage your spouse/child’s parent or post info about proceedings

Judges frown on immature, disparaging, or slanderous behavior from petitioners or respondents. No matter how mad or hurt you are by your spouse, never disparage them on social media. It automatically casts you in a poor light, which can continue to haunt you throughout the divorce proceedings. If your children have social media access, disparaging their other parent(s) may come back around to them, and that can be disastrous. 

Secondly, keep the details of the case private. While much of the information about the court proceedings becomes part of the public record, posting things publicly is considered uncivil and also casts a shadow on your integrity. If you’re dating someone new, and there are inappropriate posts about the two of you (partying, drinking, using drugs, etc.) this can also get you into trouble – including restrictions around your new partner being around when you have the kids.

Post or be part of a post that depicts you drunk, partying, participating in illicit activities, etc.

Yes, everyone deserves a night out; there is nothing illegal about going out and having a good time (unless you’re caught on film/post doing something illegal). However, these images and posts can be detrimental in a battle around child custody or visitation rights. 

While the court does its best to support 50/50 custody – or close to it – whenever it can, first and foremost, family law courts support children’s best interests. If your ex’s lawyer supports evidence from your own social media posts or those from your network, they could cost you time with your children, which also adds up to more child support you’ll have to pay.

Lie about the reason you’re postponing/canceling a visit with your child

If you tell your child’s other parent you can’t honor the visitation agreement due to a work event or family emergency, make sure it’s the truth. Because if they see a post anywhere online that you were actually doing something else, that can be used against you. Remember that while you can control what you post, you have no control over what your friends and outer-layer acquaintances post.

Things come up, life happens, and the ideal is that parents can work together on (in writing) trades/makeups, etc. However, honesty is always the best policy, or you could find yourself with less time available with your children. And, as we mentioned in #1, children with access to social media also find out you’re lying, which sets a horrible precedent and can destroy their trust in you.

Post pictures of work or side jobs if you’ve claimed unemployment

It’s not uncommon for people who work under the table or pick up side jobs to be dishonest about their income to avoid maximum child support payments. This is a huge mistake. First, it’s dishonest and illegal. Always be honest about your employment situation and income, as digital records can come back to haunt you, and penalty payments are staggering.

Second, anyone can hire a private investigator to follow you and find out otherwise. But these days, P.I.s are needed less and less due to irresponsible social media posting. A single post that shows/mentions you at work, boasting about things you’ve bought for yourself or your new partner (when you claim to have no money), or otherwise indicates you have an income you didn’t report (or lied about) is evidence and can be used to collect back-owed support with hefty interest. 

Post anything with your children that makes you look irresponsible

Were you and your kids swimming in a river clearly stating “no swimming due to strong current?” Did you take your child on vacation out of the state – or country – without prior written permission from their other parent? Is there a post showing you and your children at a celebration with people who are clearly drunk, high, or with paraphernalia in the background?

Anything that remotely hints that your children are not safe or are at all at risk while in your custody is solid grounds for stripping you from custody or visitation without supervision.

Tips For Social Media Posts During & After Divorce

If you’re in the process of getting divorced or fighting for child custody, there are things you can do to keep social media from working against you:

Clean up the account

Delete any posts that could be remotely incriminating, or that cast you in a negative light. Ask friends and family to do the same. 

Take a break or keep things very professional

If you wouldn’t want prospective employers, your grandmother, or a police officer to see the post, don’t post it.

Google yourself with parentheses, using any potential names, nicknames, or initials, and see what shows up. You may be surprised to see photos you never knew were public. If anything could count against you, try to get it removed.

Keep all digital communication in line

We’re discussing social media in this post, but all digital communication can be used against you. That includes texts, emails, voicemails, websites, internet history, etc. 

The Law Offices of Gerard A. Falzone Keeps Social Media Out Of It

Pursuing mediation, rather than litigation, is the best way to avoid social media being used against you during divorce or child custody proceedings. Mediation can save you thousands of dollars, months of wasted time, and unnecessary negative energy, and keep things on the higher road.

Contact The Law Offices of Gerard A. Falzone to learn more about moving through your divorce or child custody proceedings with as little tension, angst, or negativity as possible.

Prenuptial agreements have evolved over the past thirty or so years. Once used primarily by wealthy – or higher earning – individuals to protect certain assets in the event of a divorce, we see them more often these days in middle-class unions – often to protect one or both partners’ business assets.

The role of prenuptial agreements (prenup) in divorce varies depending on an individual’s situation, and they do not make sense for everyone. Also, if they are poorly drafted, or both parties do not have equal access to sound legal advice before signing a prenup, they can be void in a court of law. So, working with a reputable, licensed lawyer specializing in premarital legal counseling and prenuptials is essential if you want your prenuptial agreement to stand the test of time.

Do You Need A Prenuptial Agreement Before Marriage?

The definition of a prenuptial agreement (also called a premarital agreement) is: 

…a written contract created by two people before they’re married. Typically, a prenup lists all of the property each person owns and debts they owe, and it spells out each person’s property rights during the marriage and in the event that they later get divorced (Nolo).

Topics Covered By PrenuptialAgreements In California

California is a community property state, which means that anything you owned before you were married is yours; anything your spouse had before the marriage is theirs; anything you acquire together during the marriage (outside of personal inheritances or gifts) is split between the two of you.

Prenuptial agreements are a way to create firm boundaries around things that may be more difficult to discern between individual or community property if you decide to dissolve the marriage in the future. Some of the most common topics covered by prenups in California include:

• Property management, payment, or tax liability after the divorce.
• Spousal support limits
• Separating or specific divisions of properties, finances, or other assets that would have been community property otherwise.
• Protection from the other person’s debts. This is a big one. Most debt acquired after marriage is split – whether a spouse knows about it or not. Your prenuptial can protect you from your spouse’s debt in certain cases.
• Specifics around how a person’s (or the couple’s) business(es)/business assets will be divided, sold, or otherwise handled.
• Provisions for children from a prior marriage, including which property/assets they will inherit – even after a divorce.
• And more.

There are pros and cons to using prenuptial agreements, and, as with any legal documents, you should never take their creation lightly.

Topics NOT Covered In Prenuptial Agreements

Some topics or potential areas of concern are not part of prenuptial agreements. 

• Personal preferences or requests. For example, you can’t specify how holidays will be chosen or paid for or who will do what chores. Prenuptial agreements only cover topics and areas that come into play during a divorce.
• Child support or visitation. The court has the ultimate say on what’s in the best interest of the child(ren) in a divorce. So, any discussion of child custody, support, or visitation won’t hold any weight in a prenuptial. If you get divorced, the court will dictate who pays who what for child support – if any is to be paid at all.
• Anything already determined as illegal. Any clauses dedicated to illegal activities or enterprises threaten the entire agreement.
• Provisions to strike spousal support rights. While prenuptial can limit spousal support amounts, they cannot be waived entirely. The courts can counter that depending on the situation at the time.
• Anything that encourages divorce. Marriages (and divorces) should be genuinely desired. You shouldn’t marry someone for financial gain (including tax breaks); nor should you divorce for that reason. Courts can negate or strike certain clauses if the premarital agreement seems to include terms that make it financially lucrative for a couple to divorce.

Ultimately, prenuptial agreements are designed to keep things as fair as possible in a divorce, protecting everyone’s best interest.

Seek Independent Or Collaborative Legal Counsel To Create A Prenuptial Agreement

Prenuptial agreements require that both parties understand what they are agreeing to. If it appears later on that one party or the other didn’t have all of their faculties, did not have time to properly review the document, or that were rushed or coerced in any way, the courts can terminate the original agreement and make their own judgments.

We recommend all couples seek independent or collaborative counsel when creating a prenuptial document. When doing so, lawyers will ensure the document is:

• Meets all of the current legal family law criteria.
• Reviewed by both parties.
• Understood by both parties.
• Free of any errors or discrepancies that could threaten its legitimacy down the road.
• Signed with complete willingness and without reservations (never sign any legal document until you are 100% confident with its wording and implications).
• Properly filed.

Meeting with lawyers to thoroughly discuss the pros and cons of any decision or statement finalized in the document is the best way to ensure it serves the best interest of both parties.

Draft Your Prenuptial At The Law Offices Of Gerard A. Falzone

Are you interested in using a premarital agreement before you get married? Do you have questions about whether or not a prenup makes sense for your needs, goals, and situations? Schedule a premarital legal counseling session with Gerard A. Falzone. We’ve helped Bay Area couples make sound legal decisions for more than thirty years.

In a community property state like California, divorce law handles assets and debts acquired during the marriage as a 50/50 responsibility. In some marriages, the allocation of who is paying what is more complicated than any other part of the divorce agreement, especially if there isn’t any property or significant assets to speak of.

Splitting Debt In A Divorce: Who Pays What?

Assuming there was no prenuptial agreement, any and all debt incurred prior to the marriage belongs to the individual who incurred the debt. Any debts acquired during the marriage are shared by both parties. This includes credit cards that are only in one or the other spouse’s name, debt one of the spouses may not have known about, and so on.

If determining who pays what is causing more tension or escalating emotions as you plan to divorce, I recommend scheduling a divorce mediation session ASAP. Working with a neutral third party who can review all of the debts and hear both sides can go a long way toward de-escalating the situation. Together, we can work on agreed payment plans that make sense based on your stories.

Are Any Debts Considered “Separate?”

Some debts are considered “separate:” 

Debts brought into the marriage

If you had credit debt, an active car loan, a mortgage, etc., that was in your name before the marriage, they are held separately from the community property debt. Now, with something like a mortgage, there may be some gray area – especially if your spouse moved into the home and you made payments together. In that case, the courts may use a mathematical algorithm to determine how that property is divided.

In almost all cases, any debt brought into the marriage is considered separate, and the remaining payments are the responsibility of the original debt holder.

Debts in a divorce incurred after you legally separate

If your spouse is not good with money or has more debt than you do, we recommend pursuing a legal separation before you get divorced. This protects you from any spendthrifty ways that continue throughout the divorce proceedings. From the date of your legal separation, the court views any future debts or property acquisition as an individual and not part of the community property state. 

So, for example, let’s say that your spouse moves out of the master bedroom and into a spare room or couch because you can’t afford separate places yet. In the meantime, s/he takes out a new credit card or purchases a new car in their name. You will be responsible for 50% of that debt, even though, as a couple, you’d agreed to be “separated.” 

If you get legally separated, even if you have to live in the same house, their debt remains their debt, just as your new debt remains yours. There are some gray areas if that debt was used to pay share expenses or to purchase necessities for the children. However, common sense prevails when the court reviews expenditures either party balks at having to pay.

Am I Responsible For My Spouse’s Student Loan Debt In A Divorce?

Any student loans taken out before you were married remain separate from the community property pot. However, any new student loans taken out by either of you after marriage are considered shared debt. So, if you took out a loan to complete your undergraduate degree prior to getting married, you are 100% responsible for the remaining portion.

If you decide to pursue a higher education level and take out more student loans during the marriage, that portion of the debt is split 50/50 between both of you. 

What If My Spouse Had Credit Cards I Didn’t Know About?

This happens all the time and can be earth-shattering for the spouse who was kept in the dark. Unfortunately, even hidden debts are your responsibility if they were taken on during the marriage and before legally separating. In some cases, judges may rule that traditionally shared debt will be handled as separate debt. 

It could happen if there was a different p.o. Box or mailing address used or if the debt was used to pay for elicit content or illegal or nefarious services. Again, judges review this on a case-by-case basis. Remember that the same type of people who hide spending from their spouse often try to hide assets in the divorce. This is a big no-no. Hiding assets is illegal, and judges do not take it lightly.

If you suspect something like this has happened in your marriage, you may want to consider hiring a private investigator to run a complete asset search. If you find hidden assets and bring that evidence to light through your attorney, the judge is more likely to also rule in your favor on the hidden debts.

Work With A Divorce Attorney In Contentious Debt Situations

If there is a dispute about who should pay what when it comes to community debts, it’s best to work with a divorce attorney. Together, we’ll work to minimize the tension and come to a joint agreement that is in the best interest of both parties. Contact The Law Offices of Gerard A Falzone to learn more about divorce mediation services or to schedule a consultation.