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What to Do with Out of State Property in California Divorce Cases? In re Marriage of Safaie

If you’ve previously read this blog, you may already know that California is a community property state. That means any property obtained by one or both spouses during the course of a marriage is generally split between them upon divorce. Things can get a little tricky, however, when one spouse takes property out of the state while living outside California. The state’s First District Court of Appeals recently explained the rules of the road for this kind of

Husband and Wife had been married for roughly two decades when Wife moved from Iran to California in 1982. Husband said he would visit sporadically on 90-day tourist visas. The couple divorced in Nevada in 1987 but remarried in California five years later. Husband and Wife bought a home in Lafayette in the time between the two weddings, and Husband visited Wife in the U.S. for months at a time with tourist visas. Wife filed for divorce a second time in 1993. Wife obtained a default judgment of divorce from a California court after she explained that Husband was in the Middle East, and she was unable to locate him.

Wife went back to court in 2012, this time asking a judge to set aside the divorce judgment and alleging that Husband had committed fraud and misappropriated assets in Iran. She said specifically that Husband transferred various real estate holdings abroad – which should have been shared by the former spouses as community property – in order to evade creditors. After a hearing on the issue, however, the trial court found that Wife didn’t show that Husband was actually living in California during the marriage. As a result, the court said it didn’t have the authority to divide out-of-state property obtained by Husband during that time.

Affirming the decision on appeal, the First District explained that not all jurisdictions treat property obtained by one spouse during a marriage as community assets to be divided equally between the spouses in divorce in the way that California does. As a result, the state’s community property law generally doesn’t apply when one spouse is living in another state and obtains property that’s treated as his or her separate asset in that state. Although there are some exceptions, including when both parties are living in California and ask for a divorce there, the Court said those exceptions didn’t apply in this case.

Here, the Court said the fact that Husband visited California only a few times a year was “powerful evidence he did not intend to remain here indefinitely.” Instead, it appeared that Husband remained domiciled in Iran for most or all of the marriage. “Husband can only have one domicile, and we are hard pressed to find the family’s California residence was that domicile when he only spent a fraction of his time there and showed no interest in staying there longer,” the Court explained.

As a result, the Court affirmed the trial judge’s decision.

If you’re considering a divorce or are grappling with property distribution and other issues in California, contact San Jose divorce attorney John S. Yohanan. With more than 30 years of experience, Mr. Yohanan is an accomplished family law attorney who has helped a number of clients resolve a wide variety of marital disputes. Call our office at (408) 297-0700 or contact us online to schedule a consultation.

Related blog posts:

Pre-Divorce Agreements and Financial Disclosures in California Divorce Cases – In re Marriage of Evans

Settlement Agreement Contract Disputes in California – In re Marriage of Wintemute and Soltan

Property Improvement and Division in California Divorce Cases – In re Marriage of Mussallem