Property Laws

This part earlier formed a chapter in the book but was simplified and to be posted on this website for economy of space.

The poignancy of being robbed of all of the community, and all of my private property by Judge Edward Davila, his successor Judge Zayner, and his successor Beth McGowen in conjunction with the attorneys and my ex-husband can be understood only thru an understanding of how the legislation intended the property to be divided between the divorcing parties. How Judge Davila actually divided the property is outlined in the book, and is also outlined in the section titled as Facts Of The Case on this website.

The state laws related to the division of property in a marital dissolution case in USA are codified under Californian Family Code Sections 2500 et seq.

When the dissolution proceedings are first filed an Automatic Temporary Restraining Order (ATRO).  ATROS, summarized on the back of the Summons of a Petition for Dissolution,  are mutual Orders that become immediately effective upon service of a summons issued in a dissolution, legal separation, nullity or paternity action. They remain in effect until a final judgment is entered, the petition is dismissed, or there is a Court Order for termination. They prohibit the following:

  1. Removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court.
  2. Transferring, encumbering, hypothecating, concealing, or in any way disposing of, any property, real or personal, whether community, quasi-community,or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life.
  3. Parties may not take out a loan on community property.
  4. Parties may not close a joint checking account and transfer the money into your own separate account.
  5. Parties may not remove items from your safe deposit box or cash from your safe and give them to a third party to hold for you.
  6. Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile and disability, held for the benefit of the parties and their child or children for whom support may be ordered. 
  7. Parties many not cash in each other’s life insurance policy and deposit the proceeds into a separate account.
  8. Parties may not change the beneficiary to any life insurance policy.
  9. Parties may not remove your spouse or children from the health, dental or vision insurance policy.
  10. Parties may not remove your spouse from your automobile insurance policy even if you are not living together.
  11. In addition, each party must notify the other of any proposed extraordinary expenditures at least five business days prior to incurring those expenses and must account to the court for all extraordinary expenditures made after the restraining orders are effective. 

Sameer Khera was advised by his attorneys, Susan Benett, Lewis Becker, and Lenore Schreiber to violate each and every Court order made by Santa Clara and Fresno Courts from 2003 till date. According to Rule 1.2.1, Californian Rules of Professional Code (CRPCs) For Attorneys,

Advising or Assisting the Violation of Law (a) A lawyer shall not counsel a client to engage, or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal.

         In California, property division is based on the concept of community property. This means that property or income acquired during a marriage or domestic partnership (except for gifts or inheritances) are owned jointly by both spouses and is divided upon divorce, death or annulment. Community Property is everything a both partners together own. This typically includes all money earned, debts incurred and property acquired during the marriage or during domestic partnership including but not limited to Automobiles, Residences, Furniture, Clothing or any valuables, investments, bank accounts and cash, security deposits on real estate, pension plans, 401(k) plans, 529 plans or similar, superannuation plans, stocks, bonds, ESPP and other forms of derivatives, life insurance with cash value, businesses, patents, licenses etc – anything that has value and is acquired during the marriage. If a spouse can provide factual documentary evidence or a witness testimony that the any of the assets are separate property – acquired prior to marriage, a gift or inheritance, or that the couple had a marital agreement agreeing that the property would be solely owned by the challenging spouse – then the Court is required to consider that evidence and award the property to the challenging spouse. 

The Court has two options – it may allow the parties to contest the property division thru a trial, or the parties may go thru a binding arbitration. The disposition of the community estate is subject to revision on appeal [Fam 2555], and if any assets remain undivided, the parties can file a motion to divide the undivided asset and such an undivided asset may not necessarily be equally divided [Fam Fam 2556].

Following a divorce, the court must divide the property between the spouses. Before legislatures equalized property allocation between both spouses, many divorce statutes substantially favored property allocation to the wage-earning spouse. These statutes greatly disadvantaged women disproportionately because during the 18th, 19th, and early-20th centuries, the participation of women in the workplace was much less than it has become during the latter-half of the 20th century and early part of the 21st century. The statutes failed to account for the contributions of the spouse as homemaker and child-raiser.

Modern courts recognize two different types of property during property division proceedings – marital property and separate property. Marital property constitutes any property that the spouses acquire individually or jointly during the course of marriage. Separate property constitutes any property that one spouse purchased and possessed prior to the marriage and that did not substantially change in value during the course of the marriage because of the efforts of one or both spouses. If the separate property-owning spouse trades the property for other property or sells the property, the newly-acquired property or funds in consideration of the sale remain separate property.

Modern division of property statutes strive for an equitable division of the marital assets. An equitable division does not necessarily involve an equal division but rather an allocation that comports with fairness and justice after a consideration of the totality of the circumstances. By dividing the assets equitably, a judge is required to effect the final separation of the parties and to enable both parties to start their post-marital lives with some degree of financial self-sufficiency. While various jurisdictions permit recognition of different factors, most courts at least recognize the following factors: contribution to the accumulation of marital property, the respective parties’ liabilities, whether one spouse received income-producing property while the other did not, the duration of the marriage, the age and health of the respective parties, the earning capacity and employability of the respective parties, the value of each party’s separate property, the pension and retirement rights of each party, whether one party will receive custodial and child support provisions, the respective contributions of the spouses as a homemaker and as a parent, the tax consequences of the allocations, and whether one spouse’s marital misconduct caused the divorce. Most jurisdictions also give the family court judge broad jurisdiction by providing judges with the right to consider any other just and proper factor.

A clear statement in the deed or other documentary evidence of title showing that the property is separate suffices [Fam 2581(a)]. Alternately, where economic circumstances warrant, the court may award an asset of the community estate to one party on such conditions as the court deems proper to effect a substantially equal division of the community estate.[Fam 2601]. And if one party commits fraud, the court may award, from a party’s share, the amount the court determines to have been deliberately misappropriated by the party to the exclusion of the interest of the other party in the community estate.[Fam 2602].

When assigning property, judges cannot transfer the separate property of one spouse to another spouse without the legislature having previously passed an enabling statute. To my knowledge and belief, there is no enabling statute in California, and therefore, none of my separate properties could have been legally transferred to Sameer.

By law, community estate personal injury damages – all money or other property received or to be received by a person in satisfaction of a judgment for damages for the person’s personal injuries is to be awarded to the party that had suffered the injury. If co-mingled,  the community estate personal injury damages shall be assigned to the respective parties in such proportions as the court determines to be just, except that at least one-half of the damages shall be assigned to the party who suffered the injuries. [Fam 2603]. Each party receives the party’s full community property share in any retirement plan, whether public or private, including all survivor and death benefits [Fam 2610].

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