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F.C. § 2640 Family
Law Section 2640
Reading the actual
statute is tedious, boring and will give you a headache. In order to pass
on the information, I will translate the statute from Legaleze into plain
English, I am sure that you will appreciate it. F.C.§2640
is one of the very complicated sections of law that when you boil it down has a
simple explanation to it's purpose. Basically it is the way that court handle
reimbursements for money used as a down payment for the purchase of a piece of
property, real or personal property. It only comes up in a divorce situation,
otherwise no body give a damn who pays what for a piece of property. That being
said, let's read the entire statue in it's entirety
F.C. §2640
provides in pertinent part that: (a) "Contributions to the acquisition of property," as used in this
section, include downpayments, payments for improvements, and payments that
reduce the principal of a loan used to finance the purchase or improvement of
the property but do not include payments of interest on the loan or payments
made for maintenance, insurance, or taxation of the property.
(b) In
the division of the community estate under this division, unless a party has
made a written waiver of the right to reimbursement or has signed a writing that
has the effect of a waiver, the party shall be reimbursed for the party's
contributions to the acquisition of property of the community property estate to
the extent the party traces the contributions to a separate property source. The
amount reimbursed shall be without interest or adjustment for change in monetary
values and may not exceed the net value of the property at the time of the
division.
(c) A
party shall be reimbursed for the party's separate property contributions to the
acquisition of property of the other spouse's separate property estate during
the marriage, unless there has been a transmutation in writing pursuant to
Chapter 5 (commencing with Section 850) of Part 2 of Division 4, or a written
waiver of the right to reimbursement. The amount reimbursed shall be without
interest or adjustment for change in monetary values and may not exceed the net
value of the property at the time of the division.
Too much legaleze?
Okay, I know for anyone other than an attorney trained and experienced in Family
Law, the above passage is not only hard to follow, but may sound like absolute
gibberish. That is why you have me here to translate. Aren't you
feeling lucky now? So, let's get started: F.C.
§2640 pertains to reimbursements for contributions utilized
to acquire property. Now that's not hard is it? Let's move on to understanding
exactly what type of things are covered under the statute.
The first thing that we must look at is what is included as
covered reimbursable contributions under F.C. §2640. That means that let's see
what type of property is covered by the statute. The code says that
"Contributions to the acquisition of property," as used in
this section, include downpayments, payments for improvements, and payments that
reduce the principal of a loan used to finance the purchase or improvement of
the property." They include downpayments, payments for improvements and
payments that reduce the principal of a loan for purchase or improvements of the
property. Which means that it applies when acquiring property through one party
advancing separate property money to purchase a property or to improve the
property, thereby enriching the community. Are you still with me? I hope
so, because if you don't get it, call my office at (626) 797-5001 and I will be
glad to explain it to you personally.
The law carves out
exceptions as to what constitutes reimbursable property and what doesn't. It
provides in pertinent part that: "but do not include payments of
interest on the loan or payments made for maintenance, insurance, or taxation of
the property." Which means that items like payments of interest on
the loan are not reimbursable. Neither are payments made for insurance, taxation
or maintenance of the property, because those are recurring
expenses that are used for upkeep rather than acquisition of the property.
While they are important, they do not add value to the property to acquire.
Does the law cover
everything that can be purchased? Well with some exceptions, yes it does. If you
are trying to be reimbursed for interest on a loan, payments for maintenance,
taxes or insurance payments, you can forget about reimbursements, because
F.C. Section §2640 doesn't apply. In other words
if it is for the acquisition of property you can get reimbursements, however if
you want reimbursements for interest payments, maintenance, taxes or
Insurance payments you can forget about it. I hope that is clear.
Are there any provision for a waiver of the right to reimbursement? Yes there
is. You can waive your right to reimbursement by executing a written waiver of
the right to reimbursement.
There is am
exception to all types of expenses being reimbursable and it requires that:
unless a party has made a written waiver of the right to
reimbursement or has signed a writing that has the effect of a waiver, the party
shall be reimbursed for the party's contributions to the acquisition of property
of the community property estate to the extent the party traces the
contributions to a separate property source." What this means
is that in order for a party to assert that the other party has waived their
right to reimbursement, they must do it in writing, otherwise they had better
pay up. This is the single largest problem area surrounding waiver.
So be careful what you promise your partner, she just might try and hold you to
it.
The
final part of the section provides in pertinent part that "The
amount reimbursed shall be without interest or adjustment for change in monetary
values and may not exceed the net value of the property at the time of the
division. (c) A party shall be reimbursed for the party's separate property
contributions to the acquisition of property of the other spouse's separate
property estate during the marriage," This part is a
limitation on what type of reimbursement you are entitled to receive. One
part of this exemption limits reimbursements to the net value of the property to
the net limit of the property at the time of division.
I hope that this
explanation is useful for you. I got the idea for the question from looking at
the log of questions that you folks type into the website. I noticed that
several of you have typed into the website the same question. When I notice that
I try and answer your question despite the fact that you didn't send me a
written question asking me to do so. If you would want me to answer your
question personally, all you have to do is click the feedback button at the top
of this page and ask your question. I will answer you right away. I invite you
to take advantage of this service.
FREEMAN ORDERS
Freeman Orders refer to a Holding
in a Case known as Freeman. It has to do with Custody and visitation orders. It
really doesn't refer to only one type of order, rather it refers to a class of
orders that depend on the age of the minor children and current visitation order
that the parties are following immediately following the separation.
Your Parenting Plan:
Take the time to sit down with your
ex-spouse, and your respective attorneys if need be, and try and work out a
parenting plan. Have a written out
plan for custody and visitation to discuss with your ex-spouse and their
attorneys. Be prepared to substantiate your plan with reasons for each and every
single one of your suggestions. Make sure your reasons make sense. For example,
if you and your ex-spouse live 60 miles apart, a mid week visit might not be
feasible. Other things to consider:
-
Don't get hung up on labels.
The term "Primary Physical Custody" is an example of
a label, it is not a parenting plan. Discuss actual time sharing and
not labels. Do not disrupt the children by suggesting a major change in what
you are currently doing (Status Quo) without an
"extremely"
good
reason. On the other hand don't think of the plan as being set in
stone. Don't be afraid to try out the plan and see how it works with an
understanding that you both reserve the right to make modifications to
fine tune the orders.
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Never, ever, suggest splitting up
the children. Minor children need the company of their siblings as much as
they need their parents. Courts are loath to split up children. There are
two exceptions to this rule. (1) Both of you agree on this situation (2)
Sometimes older children require special situations. For example, one
child has hurt the other or has mental, sexual or substance abuse problems.
This usually refers to one child being much older than the other.
-
Be realistic and recognize the
reality of the situation. You should remember that the no one is going to recommend
or accept an unrealistic parenting plan. For example,
if you only want to spend 2 to 3 hours a week with the children, don't
ask for primary physical custody. It makes you look stupid, or worse than
stupid.
Always be honest.
-
Some attorneys counsel
mentioning negative things your ex had done, such as: abortions, affairs and shacking up. I would be very careful before
bring up something as controversial as an abortion. It could backfire on you
big time, especially if it was long ago or before you two married.
Remember that not everyone is against abortion or extremely religious.
-
You should both discuss
who is going to care for the children when they are sick. Be honest. If you never took
care of them say so, because the children will and you will look like a
liar. Tell the truth. Moreover be able to try and work things out with
your spouse, its the greatest gift that you can give to both of you and most
of all, to your kids. .
-
Bring a calendar to show
the advantages of your plan. In fact I usually recommend that each parent
prepare a calendar. Your plan should show an understanding of the other
parents needs and the child's desires. Listen to the other parents
reasons for their plan and consider their reasoning. If you can get past the
dislike that you have for each other you just might find common ground on
which to agree. Remember to put in any plan that you may agree upon
that you both have the right to revisit the plan after the passage of some
time. It's the smart move, and you won't be sorry if you are very flexible.
Above all else, before committing to
any parenting plan of be sure that you completely understand every
aspect of the plan and that you are ready to do it. Both parents have their
strength and weaknesses, if you are not committed to parenting your
children on a daily basis, asking for primary physical custody doesn't make
sense, don't do it.
Once you have
agreed on a plan, write it up and have it made an order of the Court. Do
not rely on your memory or the good faith of the other party. Above all else
stick to it. If you say that you are going to visit the children on a particular
day be there. Everyone will appreciate it, especially the kids.
Nothing is more disruptive to your children's lives than last minute
cancellations or a request to swap weekend custody "just this once".
Unless there is a very good reason for doing so, try not to alter the dates
agreed upon in the parenting plan. No one likes surprise or selfish
behavior, least of all your children and your ex spouse. The courts don't
happen to look too nicely at it, either.
Someday, you may
be rewarded by seeing that child graduate college, marry, have children and have
the successful marriage that you were not able to achieve. Remember that you can
be quite happy as a grandparent if you try. If you can
successfully raise your children in spite of the divorce, then your
marriage was a success after all. You did your job and were a success. It
doesn't get any better than that .
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