Frank J. Prainito

Posts Tagged ‘divorce’

Fiduciary Duty of Spouses in a Dissolution of Marriage in California

Posted on: September 5th, 2017 by admin

Traditionally associated with relationships between business partners, a fiduciary duty is the highest duty of fair dealing and good faith. It’s important to know that a fiduciary relationship also exists between spouses under California law. A fiduciary relationship between two people is created when they enter into a marriage. These duties apply to each spouse equally. The duty continues throughout the marriage until the marriage is dissolved and all property is distributed. This means the duty can last in situations where the division of property is not completed before the dissolution of the marriage.

What Does the Fiduciary Relationship Require?

The fiduciary duty between spouses is more than just a general requirement to deal fairly and to prevent one party from taking unfair advantage of the other. California law also requires wide ranging disclosure regarding marital assets. These laws include:

  • Access to any property or financial records related to marital property
  • Prevent a spouse for selling any household items before dissolution of the marriage
  • Inform the spouse of any interest or thing of value accrued from marital property
  • Keep all records related to marital property clear and legible

What Happens if the Fiduciary Duty is Breached?

Any breach of these duties can lead to serious consequences from a court of law. This is the case whether the breach was intentional or inadvertent. Failure to disclose information required by the court can lead to monetary sanctions in the amount of 50% – 100% of the value of the asset that wasn’t disclosed or handled appropriately. A spouse can be liable for attorney’s fees and court costs on top of these steep sanctions. In the most extreme cases, a failure to disclose a marital asset can lead to a divorce decree to be set aside to allow for redistribution of the community property.

Is it Worthwhile Discussing This With a California Divorce Attorney?

Yes. The rules regarding fiduciary duties between spouses during separation and divorce in California are complicated. If you have questions Hoover Krepelka, LLP is ready to help.

Why do I Need a Divorce Attorney?

Posted on: August 1st, 2017 by admin

In our experience representing clients through one of the most difficult times in their lives, we’ve come to realize the importance of a good divorce attorney during the end of any marriage. Whether you’re a business owner looking to protect your assets, a stay-at-home parent who hasn’t worked or provided financially for the family in a decade, or a parent who simply wants the best for your children, hiring a divorce attorney only benefits you as you navigate this particularly difficult time.

Hiring an Attorney is Optional

It’s certainly not required you hire a divorce attorney to represent you during this difficult time in your life, but it’s helpful. Couples in mutual agreement to divorce often consider their amicable split cause for forgoing an attorney, but many fail to realize how beneficial an attorney is during this process.

It’s our job to be here to help you understand legal terms and the legal facets of your divorce. Our knowledge helps guide you through this journey with ease, and we can help minimize a bit of the stress you face as your life changes completely. If your spouse is looking to drag out the divorce by contesting everything, you cannot agree on child custody, or you’re fighting over the division of assets and debts, our office can help.

Your Attorney is on Your Side

It’s our job as your divorce attorney to help you make sense of the most senseless situations. Sometimes our clients face anger and rejection during pivotal moments in their divorce, and beneficial decisions become more difficult. Hiring our firm to represent you allows us to remind you what’s at stake, make suggestions, and fight for what you want during this time.

You don’t have to stand alone in the time you feel most alone. We appreciate when our clients are amicable enough to sort things out on their own, but we still want to make sure your agreement is beneficial to you and not one that benefits the other party more.

California divorce laws are strict, and there is no telling what might occur during your divorce process. Even if you think you can do this yourself, you don’t need to do this yourself. The team of knowledgeable divorce attorneys at Hoover Krepelka is here to protect you from making poor decisions, from giving up on what you want, and from being taken advantage of. The law is fickle, and our team is here to fight the battle so you can heal.

Will I receive spousal support?

Posted on: April 5th, 2017 by admin

The purpose of spousal support is to maintain a standard of living that is near that which was established during the marriage. Temporary orders are often put in place during the separation and divorce process, while ongoing orders would accompany the final divorce decree.

Many people believe California law creates an absolute right to spousal support. However, far from being an entitlement or simple calculation, spousal support is based on a set of 14 factors with the court having wide discretion over their interpretation of these factors. These factors include:

  • The extent to which each of the parties themselves is capable of contributing to the established standard of living.
  • The extent to which the lesser earning spouse supported the higher earner while they were establishing themselves and their earning capacities.
  • The supporting spouse’s ability to pay, as determined by the current situation, not past or future earnings or potential earnings.
  • The needs of each of the parties with respect to the established standard of living.
  • The parties assets and debts, including those that are not mingled within the marriage.
  • How long the marriage lasted. Generally speaking, the longer a spouse may have been out of the workforce the more likely the need for spousal support.  
  • Impact on dependent children for the supported to attain worthwhile employment.  
  • Age and health of each of the parties. This factor may also come into play as to the duration of the support order.
  • History of domestic violence between the parties.
  • Tax implications.
  • The balance of hardships between the parties, their needs and obligations, and the impact of the support order itself.
  • The goal that the supporting spouse will become self-sufficient within a reasonable amount of time.
  • The criminal conviction of an abusive spouse.
  • Any other factor the court determines to be relevant.

In addition to the above factors, it should be noted that it is a stated goal of California that each of the parties makes a good faith effort to become self-sufficient.

If you would like to learn more about your individual situation, or to schedule a free consultation contact the offices of Hoover Krepelka Family Law Attorneys at (408) 389-7099 to speak to one of our skilled professionals today.

Travis Krepelka Talk – Divorce: Who Gets The House?

Posted on: March 28th, 2017 by admin

Watch as Travis Krepelka of Hoover ♦ Krepelka, LLP speaks on divorce, and one of the most common questions, “Who gets the house?”

Am I Entitled to Spousal Support?

Posted on: February 28th, 2017 by admin

Spousal support, the term used nowadays for what was once called alimony, is fairly simple as a concept. The idea is that if you get divorced, and you do not have the skills or abilities to take care of yourself and live at the same standard you were accustomed to, your spouse must make regular payments to help if they can afford to do so.

If you’re getting divorced in California, you may be wondering if you’re entitled to this kind of support. The answer is that it depends on the court. (more…)

What is a Marriage Settlement Agreement?

Posted on: February 3rd, 2017 by admin

A marriage settlement agreement is a written agreement between divorcing couples detailing their mutual agreement on the terms of their divorce.

The vast majority of divorces are able to be settled without a trial, and most courts will encourage, possibly even order the couple to attempt an agreement through such means as negotiation or mediation. Once reached, the agreement can then be reviewed by the court for fairness and either merged with or incorporated into the divorce decree. (more…)

Three Major Elements That Can Make Divorce Very Nasty

Posted on: January 26th, 2017 by admin

Watch as Travis Krepelka of Hoover ♦ Krepelka, LLP speaks about the three major reasons divorce can be a very expensive decision. Tune in for the next bit of advice Travis gives, or visit hooverkrepelka.com to speak with a Hoover ♦ Krepelka, LLP. attorney.

Divorce Filing Spikes in January – Travis Krepelka’s First 2017 Blog Post

Posted on: January 12th, 2017 by admin

Travis Krepelka of Hoover ♦ Krepelka, LLP shares his first blog video of 2017. In this video, he shares information on divorce spikes in January, consistently.

Family Law Mediation In California

Posted on: October 15th, 2016 by admin

Family law mediation plays a significant role in courts all across California. When spouses decide that filing for divorce is the best option for them, mediation may play a role in the outcome of the divorce. If the couple cannot agree on material issues in the settlement of the divorce they may attend mediation in an attempt to resolve the disagreements. When parents, whether married or not, cannot come to an out of court agreement regarding the custody of their mutual children, family law mediation will be ordered by the court. (more…)

Ashley Madison Members Information Hacked

Posted on: July 21st, 2015 by admin

“You’ve likely read the recent news in which hackers seized the clientele database for Ashley Madison, aka the “online affair store”, and threatened to publish the contact information of its clientele.  Whether such publication will give rise to the rate of divorces is to be determined.  The question is:  is it relevant in family court?  Legally, perhaps.  Practically, absolutely. 

 Of course, one does not need to prove infidelity to obtain a divorce.  You’ve likely heard that California is a no fault state, wherein all one needs to claim is “irreconcilable differences” as grounds for a divorce and thereby eliminating the need to prove “fault”, no matter how nefarious that fault may be.  However, it is not rare that one party raises the other spouse’s infidelity in the pendency of a divorce, much to the shock, anger and objection of the other spouse and counsel.

 While infidelity is legally irrelevant as to grounds for divorce, it is legally relevant with respect to claims of alleged breaches of fiduciary duties owed between spouses, including but not limited to the duty of loyalty, care, candor and management of community funds.  It is not a stretch to make the argument that community funds (money earned or received during the marriage) were unilaterally  used for separate purposes (payment for use of the Ashley Madison affair website, gifts made to the “colluding” party, et cetera) without the knowledge of the other spouse and certainly not for the benefit of the community.  Such conduct may be considered a breach of fiduciary duty of loyalty, management of funds, disclosure, candor and related matters under Family Code Sections 721, 1101 and relate case law.  The remedy for such breaches include reimbursements of such funds to the non-offending party, attorney’s fees and costs as sanctions, and possibly more.

 And that’s just the legal side.  On the practical side, infidelity is very relevant.  It comes as no shock that an aggrieved party may wish to seek justice, revenge and retribution, even if not allowed under prevailing authority.  Indeed, I often tell our clients that most questions of cost and duration of a case can be answered by addressing:  (i) the facts; (ii) the law; and (iii) the personal dynamics.  Infidelity may greatly weigh on personal dynamics of who is the aggrieved party who seeks justice, revenge, retribution or other relief not necessarily found in the black and letter law.  For example, a simple fact and law case without infidelity as a personal dynamic may be resolved at low cost in short time.  However, that same simple fact and law case with infidelity as a personal dynamic may cost more and take longer, as the offended spouse may not be so forgivable and willing to come to the settlement table in a marital dissolution.

 At Hoover Krepelka, LLP, we educate, advocate and act in our clients’ best interests on all issues, including the one of infidelity now raised by Ashley Madison.

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