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Community Property/Separate Property Law and Its Implications (California) Part: 2

…cont’d

Practical Application of the Law:

While filing taxes as married- separate rather than jointly can effectively solve the problem in some states, it will not reduce spousal liability in a community law state, such as California. California is 100% spousal liability, meaning that any and all liability that your spouse might owe, can and will be collected from you. This includes bank accounts/bank levies, for which either you or your spouse are listed (it does not need to be both), wage garnishments (EWO), and liens (which apply automatically to your spouse’s credit, but will also be applied to any property where your spouse is listed on the deed). While a lien does not allow an agency to sell your primary residence, it does allow them a controlling interest in all refinancing or selling that you would like to do on the property. There are no such protections on other properties, not used as a primary residence. Short of life-altering decisions (e.g. moving to another state or remaining single/divorce) there is little you can do to prevent this, when living in a community law state. 

But hope is not lost completely.

My previous post discussed separate property and some ways to establish it, in case of divorce. Similarly separate property is a good way to make sure you and your spouse are secure in your future, if you know that one of you owns a business or is in some other way, more susceptible to incurring liability.

Depending on the type of liability there may be some steps you can take. One solution, is incorporating. If the debt is a business one, it is much more difficult to be held personally liable if you conducted business under a corporation or LLC. This limits the risk of you being held personally liable, but contrary to popular belief, does not eliminate it. The main concern for a corporate officer is a dual determination which is historically hard to prove and is therefore, a last resort. Dual determinations are rarely done unless the party owes a significant debt, which would make it cost-effective. (In my experience this would be considered for balances over $25,000 in some cases, but typically $50,000 and up). The other issue to overcome for agencies attempting to pursue a dual determination is the statute of limitations to complete it, which is 3 years from the determination date.

One that we have probably all heard of is over-seas, or out of state assets. This is generally true but the scope of what is considered “out of reach” depends on the jurisdiction of the agency. (i.e. state liability cannot touch assets located out of state or out of state income/employer who does not have nexus (presence in that state). It is still possible with a referral from the Attorney General, etc. but again, due to the time/work needed to meet all the requirements, it is not common that one would be pursued unless the recovery is huge.

 If you have a pre-marital agreement opting out of the community property of the spouse which you entered into before the tax liability was incurred (or could reasonably be anticipated), then your non-liable spouse’s property would be considered separate and unreachable.  However, since the collecting agency may be unaware of the pre-marital agreement, they would proceed with enforcement against your spouse, leaving you with the task of proving, after the fact, that the levied assets are not community property.

Another fact to take into consideration is that a levy against your wages, also know as an EWO or Wage Garnishment, is typically continuous; that is, one levy against your wages will continue to take the non-exempt portion of your wages until the liability is paid or you get them to stop the levy.  However a levy against your non-liable spouse, however, is not continuous.  This means that a new levy would need to be issued each time it wishes to take your non-liable spouse’s wages, and since it can take months with all the legal procedures that must be adhered to, this gives you ample plan to act/react accordingly.

There are also some cases, such as a debt which was incurred prior to marriage, which can be appealed through various programs (e.g. Innocent Spouse appeal) offered by the collecting agency which they are required to inform you of, if you request that information.

**This is not intended for advice purposes. Reader assumes 100% liability in the application/use of any information herein.

 

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Community Property/Separate Property Law and Its Implications (California) Part: 1

In the state of California, community property is any asset acquired, or income earned, by a married person while living with a spouse. Separate property is defined as anything acquired by a spouse before the marriage, during the marriage by gift, devise, or bequest, and after the parties separate. However separate property is not always as ‘untouchable’ as it is generally deemed, but more on that later.

The law requires that, after the parties legally separate or divorce, the community estate be divided equally if there is no written agreement requiring a particular division of property (a prenuptial agreement). This means that from the total fair market value of the community assets, the joint obligations of the parties are subtracted, yielding the net community estate. Unless agreed otherwise, each spouse must receive half of the net community estate.

How is California community property divided?

The law does not require an “in kind” division of the community property, which would mean you would have to divide each physical object. All that the law requires is that the net value of the assets received by each spouse must be equal. Thus, it is not uncommon for one spouse to be awarded the family residence, with the other spouse receiving the family business and investment real estate, as long as each spouse gets assets that are equivalent in value. Since the total net value of the assets being received by each spouse is equal, such a division is proper.

Ordinarily, it is not difficult to determine whether a particular asset is community or separate property. However, certain types of assets can pose unique problems in this regard, including a business that one spouse owned before marriage and both spouses worked on during the marriage, or property that belonged to one spouse before marriage but was shared during the relationship.

 

Community Property Presumption

In California, there is a presumption that property acquired during the marriage is “community property,” which means the property is owned by both spouses equally (unless one spouse acquired it through an inheritance or gift).

In the most straightforward case, the spouses bought the home together during marriage (using only community property funds) and are both on the title. In this case, the home is community property, and both spouses share an equal interest.

Sometimes, however, facts regarding the ownership of a home are not that simple. For example, in some cases, the title to a home purchased during marriage is in the name of one spouse only. In this situation, the title creates a presumption that the house is separate property and belongs to the spouse whose name is on title.

The other spouse can overcome this presumption by showing that the spouses had an agreement or understanding that the house belonged to both of them, even though they were not both on title. Rebutting the presumption created by title can be very difficult, however, and requires strong evidence that the intent was for the house to belong to both spouses.

Separate Property Owned before Marriage

When a spouse buys a home before the marriage, that home is generally that spouse’s separate property. However, the situation becomes more complicated when the spouse who is not on the title contributes money to the mortgage or pays for home during the marriage. In this case, that spouse would have an interest in the home, which can be significant, especially with a long marriage. One possible remedy to this might be to designate the the spouse not on the deed pays the owner rent/living expenses which can include all expenses including utilities and maintenance, rather than paying money directly towards the mortgage or any utilities which means that the one owning the property. This distinction could be crucial when trying to preserve separate property or diminish a spouse’s ‘interest’ in a home.

**This is not intended for advice purposes. Reader assumes 100% liability in the application/use of any information herein.

 

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Borderline personality disorder (BPD)

Borderline personality disorder (BPD), also known as emotionally unstable personality disorder, is a long-term pattern of abnormal behavior characterized by unstable relationships with other people, unstable sense of self, and unstable emotions. Many diagnosed with this disorder experience an extreme fear of abandonment and a feeling of emptiness, which can result in frequent dangerous behavior and self-harm.

Symptoms (such as splitting) may be brought on by seemingly normal events. The behavior typically begins by early adulthood, and occurs across a variety of situations. Some of the most common symptoms include:

  • Intense sensitivity to rejection or criticism
  • Disturbed sense of identity/ Distorted self-image
  • Marked fear and frantic efforts to avoid real or imagined abandonment and extreme reactions to such
  • Splitting (“black-and-white” thinking)
  • Impulsivity and impulsive or dangerous behaviors
  • Intense or uncontrollable emotional reactions that often seem disproportionate to the event or situation
  • Unstable and chaotic interpersonal relationships
  • Self-damaging behavior
  • Dissociation
  • Frequently accompanied by depression, anxiety, anger/rage, substance abuse, and/or eating disorders

Overall, the features of BPD include unusually intense sensitivity in relationships with others, difficulty regulating emotions, and impulsivity. Other symptoms may include feeling unsure of one’s personal identity, morals, and values; having paranoid thoughts when feeling stressed; dissociation and depersonalization; and, in moderate to severe cases, stress-induced breaks with reality or psychotic episodes.

Untreated BPD increases the risk of self-harm and  some claim that 10% of people with BPD die by suicide.

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Splitting (Psychology)

Splitting (or thinking in terms of “black and white”, as it is commonly called) is the failure in a person’s thinking to bring together the dichotomy of both positive and negative qualities of the self and others into a cohesive, realistic whole. An individual with this type of perspective tends to think in extremes (i.e., an individual’s actions and motivations are all good or all bad with no middle ground). The concept of splitting (or the splitting of the ego) as a common defense mechanism was developed by Ronald Fairbairn in his formulation of object relations theory. This is particularly common in people with borderline personality disorder (BPD).

In this context, splitting refers to a primitive mechanism of defense characterized by a polarization of good feelings and bad feelings, of love and hate, of attachment and rejection. While splitting acts as a powerful unconscious force to protect against the ego’s perception of dangerous anxiety, it can lead to destructive behavior.

It begins in infancy, according to Fairbairn, as the inability to combine the fulfilling aspects of the parents (the good object) and their unresponsive aspects (the unsatisfying object) into the same individuals, instead seeing the good and bad as separate.  Some degree of splitting is an expectable part of early psychic development. We see it in young children who, early on, ask us to define what is good, and what is bad. Subsequent developmental advances [should] foster the ego’s ability to accept paradoxical affects, and integrate good and bad, love and hate along with the associated affects. The need for a definite “yes” or “no” decreases, and multiple possibilities and variations on a theme become acceptable.

As described by one woman, diagnosed as BPD who experiences splitting, ” Splitting feels like self-destructive behavior. I can get consumed in my anger toward people. All my memories with that person become tainted, bad and wrong. Just thinking of them fills me up with anger. Hatred builds up deep inside my body, flows through me and consumes me. I obsess over this hatred. I want it to go away. Yet, I can’t stop thinking about it at the same time.

The initial anger and bitterness fades eventually. In the meantime, I perceive everything that person does as being meant to hurt me further because that person is not a good person. They don’t care.

It’s like you can be my best friend or my worst enemy. There is no in between. There is no middle ground. 

Actions speak far louder than any words ever can. After all, most communication is nonverbal. As someone with BPD, it is so easy to start perceiving things as an insult or slight when they were never really meant that way at all.

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Kuru: The Cannibal’s Disease

Kuru is an incurable degenerative neurological disorder endemic to tribal regions of Papua New Guinea. It is a type of transmissible “spongiform encephalopathy”, caused by the consumption of a prion found in humans.

Kuru causes brain and nervous system changes similar to Creutzfeldt-Jakob disease. Similar diseases appear in cows as bovine spongiform encephalopathy (BSE), or “mad cow disease”. The main risk factor for kuru is eating human brain tissue, which can contain the infectious particles.

The term “kuru” derives from the Fore word “kuria/guria” (“to shake”), referring to the body tremors that are a classic symptom of the disease; it is also known among the Fore as the “laughing sickness” due to the pathological bursts of laughter people would display when afflicted with the disease. It is now widely accepted that kuru was transmitted among members of the Fore tribe of Papua New Guinea via funerary cannibalism. 

The symptoms of kuru are divided into three specific stages.

The first, ambulant stage, exhibits unsteady stance and gait, decreased muscle control, tremors, deterioration of speech, and dysarthria (slurred speech).

In the second, sedentary stage, the patient is incapable of walking without support and suffers ataxia (loss of muscle coordination) and severe tremors. Furthermore, the victim is emotionally unstable and depressed, yet has uncontrolled sporadic laughter. Interestingly, the tendon reflexes are still normal at this point.

In the final, terminal stage, the patient is incapable of sitting without support, suffers severe ataxia (no muscle coordination), is unable to speak, is incontinent (unable to restrain natural discharges/evacuations of urine or feces), has difficulty swallowing), is unresponsive to his or her surroundings, and acquires ulcerations (sores with pus and necrosis). An infected person usually dies between three months to two years after the first symptoms, often because of pneumonia or pressure sore infection.

So if you were to say, find yourself stranded with a group of strangers; food for thought… 😉

Arachne: The Woman Who Spoke the Truth

In Greco-Roman mythology Arachne was a mortal woman, who was challenged by Athena, goddess of wisdom and crafts, to determine which of them was the better weaver. There are three versions of the story.

**Spiders are called arachnids after Arachne.

Ovid’s Version

In this version, Arachne was a shepherd’s daughter who began weaving at an early age. She became a great weaver, boasted that her skill was greater than that of Athena, and refused to acknowledge that her skill came, in part at least, from the goddess. Athena took offense and set up a contest between them. Presenting herself as an old lady, she approached the boasting girl and warned: “You can never compare to any of the gods. Plead for forgiveness and Athena might spare your soul.”

“Ha! I only speak the truth and if Athena thinks otherwise then let her come down and challenge me herself,” Arachne replied. Athena removed her disguise and appeared in shimmering glory, clad in a sparkling white chiton. The two began weaving straight away. Athena’s weaving represented four separate contests between mortals and the gods in which the gods punished mortals for setting themselves as equals of the gods. Arachne’s weaving depicted ways that the gods had misled and abused mortals, particularly Zeus, tricking and seducing many women. When Athena saw that Arachne had not only insulted the gods, but done so with a work far more beautiful than Athena’s own, she was enraged. She ripped Arachne’s work into shreds, and sprinkled her with Hecate‘s potion, turning her into a spider and cursing her and her descendants to weave for all time. This showed how goddesses punished those who were mortal.

Athena wins

In this version, someone asked Arachne how she learned to weave so well and suggested that Athena taught her and she didn’t know it. Arachne dismissed this and boasted that she could teach Athena a thing or two in weaving. Athena then appeared in the doorway, wrapped in a long cloak, and asked if she really didn’t believe that Athena had taught her to weave. Arachne repeated her boast and Athena challenged her to a contest in which Zeus (Jupiter) was to be the judge. Whoever lost must promise never to touch spindle or loom again. Arachne wove a web thin yet strong with many colours. This was no match for Athena’s weaving, made up of the gods and their glory, shining with their beauty.

Arachne acknowledged Athena’s triumph, but despaired at the loss of her craft. Athena saw that Arachne could not live if she could not weave, so she touched Arachne with the tip of her spear, turning her into a spider so she could weave without spindle or loom.

Arachne wins but hangs herself

In this version of the myth, Arachne was a blessed weaver of Greece. People asked her if she had been taught weaving by Athena herself, the goddess of wisdom. Although this was meant as a compliment, Arachne became angry. She thought that her skill was greater than the goddess’s. Hearing of her attitude, Athena appeared on her doorway disguised as an old woman in a dark cloak. She asked her to respect the gods and goddesses, but Arachne just laughed, and said that even if Athena herself challenged her, it would be an easy win. Athena then revealed herself and challenged Arachne to a competition. The loser would promise never to weave again.

Athena wove a tapestry of the people of Greece, with Poseidon and Athena over them, deciding whose name should be given to the city of Athens. Arachne wove a tapestry about Zeus, and his seduction of Europa and others. Athena saw that although Arachne had insulted the gods, her work was so beautiful that Athena herself was awed. She realized that Arachne couldn’t live without weaving. To make Arachne realize her mistake and also to teach her to respect the gods and their works, she touched Arachne’s forehead with the tip of her hand. The magic worked only partially, filling Arachne with guilt for her insolence, and she hung herself. Out of pity, Athena brought Arachne back to life as a spider, so that she and her descendants could weave all their lives.

And what did we learn?

Arachne’s story teachs us the risks women, even extraordinarily talented women, take when they speak out against the established order, the patriarchy in particular. Even if it is the truth. Rather than speaking boldly, Arachne, as a woman, should have shown “modesty” when discussing her skills. Or not have spoken at all.

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Nephilim

What are they?

Most consider them to be the offspring of the “sons of God” and the “daughters of men” before the Flood.  The name is also used in reference to giants who inhabited Canaan at the time of the Israelite conquest of Canaan according to Numbers 13:33.

The majority of ancient biblical versions, interpret Nephilim to mean “giants”. Many  interpretations are based on the assumption that the word is a derivative of Hebrew verbal root n-ph-l “fall”. Those interpretations include “those that cause others to fall down”, “ones who have fallen”, equivalent grammatically to “one who is appointed” (i.e., overseer), asir, “one who is bound”, (i.e., prisoner), or simply “fallen” “apostates”. Symmachus translates it as “the violent ones” and Aquila’s translation has been interpreted to mean either “the fallen ones” or “the ones falling [upon their enemies]”. According to the Brown-Driver-Briggs Lexicon, the basic etymology of the word Nephilim is “dub[ious]”, and various suggested interpretations are “all very precarious”. What all the interpretations seem to agree upon is that the Nephilim were superior to average humans, and dangerous.

The New American Bible commentary draws a parallel to the Epistle of Jude and the statements set forth in Genesis, suggesting that the Epistle refers implicitly to the paternity of nephilim as heavenly beings who came to earth and had sexual intercourse with women. The footnotes of the Jerusalem Bible suggest that the biblical author intended the nephilim to be an “anecdote of a superhuman race”.

Where do they come from?

While the  consensus seems to be that Nephilim are the offspring of angels and men, some early texts suggest that they are actually the offspring of Seth and the “daughters of Cain”. Once such text is the Qumran (Dead Sea Scroll) fragment 4Q417  which contains the earliest known reference to the phrase “children of Seth“, stating that God has condemned them for their rebellion. Other early references to the offspring of Seth rebelling from God and mingling with the daughters of Cain, are found in rabbi Shimon bar Yochai, Augustine of Hippo, Julius Africanus, and the Letters attributed to St. Clement. It is also the view expressed in the modern Ethiopian Orthodox Bible.

Nevertheless, most agree that the Nephilim were indeed the offspring of angels: A number of early sources refer to the “sons of heaven” as angels. The earliest such references to this also appear in the Dead Sea Scrolls, Greek, and Aramaic Enochic literature, and in certain Ge’ez manuscripts of 1 Enoch and Jubilees used by western scholars in modern editions of the Old Testament Pseudepigrapha. The earliest statement in a secondary commentary explicitly interpreting this to mean that angelic beings mated with humans can be traced to the rabbinical Targum Pseudo-Jonathan and it has since become especially commonplace in modern-day Christian commentaries.

Some Christian commentators have argued against this view, citing Jesus’s statement that angels do not marry. Others believe that Jesus was only referring to angels in heaven.

Evidence cited in favor of the “fallen angels” interpretation includes the fact that the phrase “the sons of God” (Hebrew, בְּנֵי הָֽאֱלֹהִים; literally “sons of the gods”) is used twice outside of Genesis chapter 6, in the Book of Job (1:6 and 2:1) where the phrase explicitly references angels. The Septuagint manuscript Codex Alexandrinus reading of Genesis 6:2 renders this phrase as “the angels of God” while Codex Vaticanus reads “sons”.