In a previous post, I gave you a simple introduction to a complex topic: cryptocurrency, and specifically, how cryptocurrency may be divided in a California divorce. In general terms, cryptocurrency is divided essentially the way any other digital asset such as gift cards, airline mileage, and downloaded media might be divided. However, because the value of crypto can fluctuate dramatically and frequently, and because this is a fairly new area, there is still a very small body of related case law upon which to draw, which means there are no hard and fast rules about how the court may choose to handle your case. In one notable California divorce between Erica and Francis deSouza, the question of how to divide the millions of dollars of value in crypto became pretty complicated. The deSouza case is widely considered the first “big” crypto divorce case, and it’s worth looking at. If you find yourself feeling overwhelmed by the details, just push through—I promise the ending is worth it! January 2013: Erica Is Granted a Temporary Restraining Order When Erica filed for divorce in January 2013, she was also granted a temporary restraining order that prohibited Francis from “[t]ransferring, 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.” In other words, Francis was required to obtain permission from Erica if he wanted to—among other things—buy or sell cryptocurrency or anything else. April 2013: Francis Violates the Restraining Order and Buys Bitcoin Just three months later, over the course of less than a week in April 2013, Francis purchased bitcoin in three separate transactions through a Japanese
Divorce often brings out the worst in people. Emotions are running high—anger, disappointment, sadness, confusion, and countless other feelings may be part of your experience. And while you’re dealing with emotional fallout and turmoil at the end of your marriage, there are very real logistical and practical matters that must be attended to—not the least of which is finalizing the terms of the divorce settlement. To make matters worse, you may be experiencing new financial strain, struggling to get used to a new living situation, settling into a new home or apartment in a new neighborhood, juggling more responsibilities with your children or aging parents, and overall adjusting to being alone. It’s very easy to allow feelings of overwhelm and resentment take over. You may feel that the situation isn’t fair and that your ex got the better end of the deal. You may find yourself fighting with them over things that aren’t intrinsically valuable or important because you’re letting emotions take over. The best advice I have for you in this situation is to stop, breathe, and ask yourself some grounding questions: Is this really worth it? Am I trying to win? Am I being cheated out of something that is rightfully mine? Is it really important that I get my way? Am I allowing my emotions to take over when being more measured and rational would be well-advised? Recently a friend of mine shared a story about her divorce that I think illustrates something I see all too often with separating couples who are angry and resentful with one another. They often fight about something that doesn’t matter while avoiding conversations about the things that do matter. When Robin and Jay (their names have been changed of course) decided to divorce, it was mostly driven by Robin. They were more
Couples who are willing to start off their marriage with a prenuptial agreement are not people who expect to be divorced someday. Often they’re not even thinking that a prenuptial agreement helps them plan for the worst. This may surprise you, but many couples see entering into a prenuptial agreement as a gesture of love—a separation of finances from affection—a way of saying, “I choose you for you, and not for any financial gain or advantage.” At times, I have had couples come to me to create a prenuptial agreement with such open hearts and pure intentions that one or both parties have been eager to be generous as a gesture of pure intent. For example, the lesser-earning party may be willing to sign away the right to collect spousal support should the marriage end. I have seen this in situations where both parties earn a similar income and in situations where there is a great disparity in income and separate assets and property. I typically try to dissuade couples from including language that eliminates or limits the obligation of spousal support. The reason for this is that we really never know how a court will rule with regard to this issue, no matter how carefully we craft the agreement. The California divorce of Peter and Debra Last is one that illustrates why most attorneys are very hesitant to include such language. Instead of Spousal Support, They Agreed to Anniversary Payments When Peter and Debra married in 2002, they entered into a prenuptial agreement wherein Debra completely waived her right to spousal support should the marriage end. The agreement included a deal that many of us would find interesting. The equity Peter had in his separate property was made community property immediately, and then there was a payment schedule of sorts. Peter agreed
If you have questions about how cryptocurrency (sometimes called simply “crypto”) and NFTs (short for non-fungible tokens) are handled in a divorce in California, you’re not alone. These relatively new investment vehicles are increasing in popularity and that means it sometimes takes time for laws to catch up. But there are some basic principles that guide how courts decide on division of property, and those principles apply to digital assets like crypto and NFTs in the same way they apply to real property and tangible assets. Cryptocurrency and NFTs Are Digital Assets Cryptocurrency is digital or virtual currency that can be used to pay for goods and services and can even be invested. It is encrypted and decentralized using cryptography. You may have heard of Bitcoin and Ethereum, but there are thousands of other cryptocurrencies as well. Crypto is fungible, meaning each unit is exchangeable for another unit—just like one dollar bill is replaceable by and equal in value to another dollar bill. NFTs are unique digital assets, often collectibles like artwork or music. Like cryptocurrency, NFTs are secured using blockchain technology, but each NFT is non-fungible, which means it is unique and not exchangeable with another NFT, just as one painting is not directly exchangeable with another painting. There are other digital assets that you may not necessarily think of as having value, or at least not until you go through a divorce. Downloaded e-books, video games, music, movies, websites and domain names, online business, airline miles and gift cards—all of these are digital assets. Some can be duplicated so both parties get to keep a copy, while some must be split or awarded to one party in a divorce. I recall a friend of mine telling me about the thousands of songs she and her husband had downloaded
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