Don't be a Meanie, Be a Friend

co-parenting-be-nice.jpgAt this point almost all of America has seen the video of the adorable 6 year girl talking to her mother about divorce. (If you have not seen it yet, take a few minutes and watch it HERE.) With advice such as "Don't be a Meanie, be a friend" and lines like, "What if there is just a little bit of persons and we eat them? Then no one will ever be here. Only the monsters in our place. We need everyone to be a person" the viewers can't help but stop and take notice - plus this wisdom is coming from a little girl so sweet you want to eat her...but in a figurative way of course.

We here at the San Diego Divorce Lawyers Blog have often blogged about successful co-parenting strategies and this is another one of those blogs. I know what you're thinking, another blog about co-parenting...yes, another blog about co-parenting. The truth is, co-parenting is an important issue, and in some cases the most important issue, so it felt like a good time to have another discussion about ways some parents have found success co-parenting. Don't get me wrong, there is no hard and fast rule for co-parenting. Every family is different; every child is different and no two situations will ever be exactly the same. But of all the issues you face in a divorce if you have children, this is the one issue that will follow you long after you have left the court house.

Play to your ex's strengths
In every parenting relationship each party has their strengths and their weaknesses. Nobody can be great at everything. Sometimes one parent is the more organized parent and the other parent has a more flexible schedule. Utilize those strengths by allowing one parent to coordinate the schedule and have the other parent put that schedule into action. This can be particularly helpful when you have multiple kids, in multiple after school activities (in San Diego that can mean locations all over town).

Commit to cooperation

Raising kids is hard...raising kids on your own is even harder. It took two people to bring them into this world and it is going to take two of them to raise them. (There are exceptions of course, but this blog is directed to two parent families that are struggling with co-parenting issues.)
This does not mean you and the other parent have to be friends. Sometimes that is not possible, but you will need to cooperate. This means reading and responding to emails and text from the other parent. Working around the inevitable changes in schedule that result from living in America in 2015, and agreeing to do your best for your children's sake is the only way you can successfully make a co-parenting relationship work. This leads me to...

Let go of control
There is a reason you and the other parent are not together. That is not likely to change once you split up. You may have different views on how to raise your children or how much time your children should be allowed to watch TV. That is okay, so long as both parents are committed to raising happy and healthy children. You cannot control how the other parent acts or parents in their home any more than the other parent can control how your home is run.

Silence your support system
Everyone has an opinion, and the stronger that opinion is, the more likely that person wants to share it with you. When it comes to co-parenting issues, opinions about the other parent serve no meaningful purpose. Your support system should be there to support you, not denigrate the other parent. Remember, kids are more perceptive than we often give them credit for, so be careful...little eyes and ears could be lurking anywhere.

Check your ego at the door

It is easy to see the other parent as a threat, especially if that parent is able to provide more time (e.g. the other side is the custodial parent) to your children or has more money to provide more material benefits to your kids (e.g. vacations, toys, cars).
Many parents want their children to believe they were not at fault for the breakdown of a relationship or that they are the better parent. Co-parenting is not a competition to be won. The only victory is watching your children grow up to be happy and healthy adults.

Focus on what is good
co-parenting-overnight-bag.jpgMany divorced co-parents have a great deal of guilt about the effect the divorce has on their kids. It's easy to focus on what's wrong and forget all the things that are right for your kids. Notice good moments--they don't have to be extraordinary, they just have to be good. When you are not with your kids, imagine those moments and feel good about them. Remember that your ex can't take these moments away from you and your kids. And never underestimate the positive effect these feel-good moments have on your kids.

Continue reading "Don't be a Meanie, Be a Friend" »

Back to School

joint-custody-back-to-school.jpgWith school back in full swing for children all around San Diego County, I thought I would focus my blog on a very common occurrence in child custody matter; school enrollment.

When two parents decide to get a divorce, one or both of them will often move out of the family residence. With the cost of living so high in San Diego, that can mean moving out of the neighborhood the parties lived while they were together. If the parents end up living in close proximity, the issue of where their children will be enrolled for school is an easy one. What happens when the parents move to other parts of town or into different school districts? This can create a huge headache for parents and children resulting in hours spent commuting to school and work.

If the parties share joint legal custody, they are generally required to make decisions such as school enrollment for their children jointly. (There is a legal loophole for this issue that can be found in Family Code §3083, but be very careful attempting to circumvent joint legal custody orders - you may be on the right side of the law, but you could end up on the wrong side of a Judge.)

If the parents cannot reach an agreement, one of them will have to file a motion asking the court to make the decision. Motions related to school enrollment are decided using the best interest of the child standard. From a legal perspective, the request is no different than a parent filing a motion asking for their custodial time to be increased.

In almost all cases the parties will be required to attend child custody mediation to attempt to resolve the matter. If an agreement is not reached in mediation, the mediator will release a recommendation for the court's consideration.

In making the decision, the court will look at several factors in making the decision about where the children will be enrolled. While not an exhaustive list, the following are major factors the court can consider.

First is the location of the school in connection with the primary custodial parent's home. This is common sense; if the children are with one parent a majority of the school week, it makes sense that they attend school nearby.

Another factor the Court will look at is whether the children are zoned for a school they have always attended. Consistency in child custody matters is important to the court, so if possible, the court will consider allowing the children to stay at the school they have always attended.

Finally, the court will consider the respective school rankings and test scores. If all other factors between the competing schools are the same, but one school is rated a 10 on or, often Judges will choose the school that provides the best chance at success for the children.

In unique situations, the parties can retain or consult with educational experts that specialize is school placement for exceptional students, children with IEPs, or other special school related issues. A qualified family law attorney can assist you with deciding what course of action is best for you.

If school enrollment is an issue in your case, or if you think that it could be, it is important to act quickly. Obtaining a hearing date can take as long as 120 days, so you have to plan ahead. It is unlikely you will get a decision from a Judge if you wait until the last minute; leaving you and your kids in limbo. You also run the risk of your kids transitioning from one school at the beginning of the year only to move again several months later.

Continue reading "Back to School" »

They Paid What?! How Is My California Child Support Obligation Calculated?

calculating-child-support.jpgAt some point in your life, you have probably done a double-take upon hearing news of a crazy-sounding child support payment of a celebrity or famous athlete. The media loves to report on these sometimes exorbitant amounts, for the shock value given to amounts of money that many Americans may never even dream of seeing. Here are some reported examples:
• Halle Berry, paying $20,000 per month to ex-boyfriend for 1 daughter
• Eddie Murphy, paying $51,000 per month for 1 daughter
• Sean "Diddy" Combs, paying $20,000 per month to ex-girlfriend for 1 son and $21,782 per month for now adult son to another ex-girlfriend
• Charlie Sheen, paying $50,000 per month to ex-wife Denise Richards for 2 daughters, and $55,000 to a different ex-wife for 2 sons
• Allen Iverson, owing $8,000 per month to ex-wife
• Terrell Owens, owing $120,000 per month in child support and mortgages to 4 different mothers (whether he actually pays is a completely different story...)

You may be questioning how this happens. Certainly no child eats $20,000 worth of food or needs $8,000 worth of diapers each month, right? So what actually goes into the Court's calculation of child support?

Let's start off with the understanding that if you have a child, you have a legal obligation to support that child. Both parents share equally in this obligation irrespective of their marital status or gender. California uses a statewide uniform guideline to set the amount for child support. Courts are only allowed to depart from the guideline amount in special circumstances (as listed in the Code).

california-child-support.jpgIn setting an amount of child support, the State's top priority is the best interest of the child. However, this doesn't just take into account the cost to cover the bare necessities of the child; it also takes into account the standard of living of each parent and can serve to help minimize significant disparities in living standards. Knowing that, these celebrity support amounts already start to make more sense. In a scenario where we have a high-earning celebrity living large in a huge mansion in Beverly Hills, who has a child with a low-income person living in a studio apartment in a rough part of town, then a child support payment to the low-income parent may inevitably raise his or her standard of living as part of the child's right to support.

Don't fret though, because while the above amounts demonstrate extreme child support orders, it has been reported that the average child support payment in America is about $430 per month. If you do have a child, and will be receiving or paying child support pursuant to a court order, it is important to understand exactly what goes into the Court's calculation.

The exact components of the formula are explained in CA Family Code Section §4055. The Court looks at the income of both parents, the net monthly disposable income for each parent, and the percentage of time that each parent has physical responsibility for the child. The Code states that the amount of support as calculated by the formula is presumed to be the correct amount, but that presumption may be rebutted if the Court finds that the guideline amount would be unjust or inappropriate in a particular case (special factors listed in FC §4057).

The California Department of Child Support Services ("DCSS") provides an online calculator which gives parents the ability to enter their own information and calculate an amount for support under the State's formula. While this can give you an idea of how much a child support obligation might be, its accuracy really depends on whether you have correct information about the other parent's finances. The calculator can be accessed via the DCSS website.

While some child support cases may be relatively straightforward, complications can easily arise, especially where complex financial issues are present or where the other parent refuses to pay. In these cases, it may be wise to be represented by an experienced family law attorney.

Continue reading "They Paid What?! How Is My California Child Support Obligation Calculated?" »

How does the UCCJEA determine which state gets to make custody and visitation orders over children?

uccjea-usa-map.jpgWe live an increasingly mobile society, so it's not unusual for families to find themselves in different parts of the country for a multitude of reasons. So, how is it decided which state gets to make custody and visitation orders over the children in these situations?

The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") is a common body of rules adopted by every single state (except Massachusetts). A quick glance at the UCCJEA will quickly resolve the overwhelming majority of these questions. For the purposes of this blog post, the rarely used more appropriate forum exceptions will not be discussed.

There are 4 types of jurisdiction under the UCCJEA: (1) Initial jurisdiction (2) Continuing, Exclusive Jurisdiction (3) Modification Jurisdiction and (4) Emergency Jurisdiction.

uccjea-jurisdiction.jpgInitial jurisdiction is described in Family Code section 3421. California has jurisdiction to make an initial child custody determination if California "is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state." The "home state" is defined as the "state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned" by Family Code section 3402.

So if the child was in California for the six months before the first child custody proceeding was commenced, California could assume jurisdiction.

Once California has jurisdiction over the child, under what circumstances does California cede jurisdiction to another state? Under Family Code section 3422, California has continuing, exclusive jurisdiction to make orders over a child unless:

"(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships. (2) A court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state. .."

The language of this statute can be intimidating, but it can be boiled down to the following rules of thumb:

1. California will continue to have jurisdiction to make custody and visitation orders if at least one parent remains in California and that parent continues to exercise visitation rights with the child (even if the child lives in another state). This is pursuant to Kumar v. Superior Court.
2. If the neither of the parents nor the child live in California anymore, California no longer has jurisdiction to make orders.

When can California assume jurisdiction and modify a child custody order from another state? Pursuant to Family Code section 3423, California cannot modify another state's order unless it would have jurisdiction under Family Codes section 3421 AND either of the following circumstances exist:

"(a) The court of the other state determines it no longer has exclusive, continuing jurisdiction under Section 3422 ...
(b) A court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state."

In other words, if the child has been in California for six months and neither the parents nor the children continue to reside in the state that originally made the last custody order, California can exercise jurisdiction over the child.

Finally, we get to Family Code section 3424, temporary emergency jurisdiction. Temporary emergency jurisdiction trumps all the other rules. California always has jurisdiction if the child is "present in the state and has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse." This is so, even if California would not otherwise have jurisdiction under Family Code sections 3421, 3422, or 3423.

Continue reading "How does the UCCJEA determine which state gets to make custody and visitation orders over children?" »

The Pope Has Arrived! A Discussion of Annulment in California and the Pope's Reform to the Church's Annulment Process

POPE-FRANCIS-facebook- huffington-post.jpgAll Americans, religious or not, are in an undeniable state of excitement upon Pope Francis' first arrival on U.S. soil. As we are bombarded with media coverage of the visit at every turn, the divorce attorneys here at the Law Offices of Nancy J. Bickford find it a fitting time to discuss annulment in California and the Pope's recent reform to the Catholic Church's annulment process, announced by the Pope's September 2015 Letters motu propio.

An annulment under California law and an annulment in the eyes of the Church are not synonymous. The Catholic Church does not give divorced people permission to remarry. So, if a Catholic person wishes to remarry, the Church must find that their first marriage was void before they are free to do so.

marriage-annulment-in-california.jpgIn California, there are three legal options available to couples wishing to end or alter their marital status: dissolution (a.k.a. divorce), nullification, and legal separation. Divorce can only be granted where there has been a valid marriage. Nullification can only be granted if there was no valid marriage to begin with. Incest (see CA Family Code §2200), bigamy (see CA Family Code §2201), and lack of a lawful marriage contract (requires both issuance of a license and solemnization, see CA Family Code §300) would be grounds for a "void" marriage, one that will never be valid in the eyes of the law. Minority (under the age of 18 in CA), prior existing marriage, unsound mind, fraud, force, and physical incapacity are factors leading to marriages that are "voidable" (see CA Family Code §2211) meaning that they are valid in the eyes of the law until the parties seek and receive a judgment of nullification from a court.

For more information on grounds for annulment in California, see our April 1, 2015 blog titled, "Do I Qualify for an Annulment."

For Catholics wishing to remarry, even after receiving a legal judgment of dissolution or nullification, they must still seek a decree of nullity from the Church. This process has faced a lot of criticism throughout the world for being a slow, expensive, and difficult process, and in some countries it is even considered basically impossible to do. So, Pope Francis' new reform is meant to make the Catholic annulment process quicker and more accessible especially to the Church's low-income members.

The most notable changes to the Church's nullification process are as follows:
1. Now only one judgment of nullification is required. Automatic appeal to a second tribunal is removed, but appeal still remains an option in contested cases;
2. The Bishop is named as the principal judge in his diocese, who is able to designate this responsibility to a cleric if so desired;
3. Creation and addition of a third, quicker, process for cases where evidence of nullity is especially clear, to be decided by the Bishop himself. There are a number of situations where the new process can be used. Some examples include cases involving very brief marriage, existence of an extramarital affair at time of wedding or very soon thereafter, malicious concealment of things like infertility or a serious contagious disease, and more; and
4. Reintroduction of the ability to appeal the Bishop's decision to the metropolitan bishop (or the Metropolitan Bishop's decision to the Senior Suffragan Bishop).

Regardless of religious or cultural background, dissolution and annulment can be difficult for anyone. There are strict legal requirements and specific timing requirements associated with these requests. Our team of experienced attorneys can provide you the outstanding counsel you may need during these difficult times and will ensure that your needs are met as we help you navigate through the divorce or annulment process.

Continue reading "The Pope Has Arrived! A Discussion of Annulment in California and the Pope's Reform to the Church's Annulment Process" »

The Supreme Court Interprets "Living Separate and Apart" in Marriage of Davis

Living-separate-under-one-roof.JPGIn Marriage of Davis, the Supreme Court of California was asked to decide the following question: can spouses truly be "living separate and apart" within the meaning of Family Code section 771(a) if they share the same residence? The Court, in a unanimous decision, held that spouses cannot be separated if they share the same residence.

In Davis, the parties seem to agree that their marriage was "over" sometime around June of 2006. However, they continued to reside together, for the sake of their children, until 2011. The wife contended that the date of separation was in 2006, while Husband, relying on the fact that wife did not move out until 2011, argued a date of separation in 2011.

supreme-court.jpgThe Court's decision came down to statutory interpretation. The Court held that, on its face, the plain meaning of the term "living separate and apart" required a physical separation. To the extent there was some ambiguity in the statute, the Court noted that the term "living separate and apart" had not been altered in subsequent iterations of the statute since 1870. The Court also noted that, in 1870, "living separate and apart" required that the wife establish "her own place of residence."

The Court did not address, and therefore did not foreclose the possibility, that spouses could live separate and apart in separate residences while "they continued to literally share one roof." For now, what this means exactly is up to the lower courts, or possibly the legislature.

Determining the date of separation can be critically important in many family law cases. As the community exists only between the date of marriage and the date of separation, it is only after the parties separate that they begin to accumulate separate property. If the parties aren't separated, the spouse will, for instance, continue to have a one-half interest in the other spouse's earnings. Over the course of many years, this can make a difference of tens or even hundreds of thousands of dollars. The date of separation is also important in spousal support, as the duration of spousal support heavily depends upon the length of the marriage.

If you have questions about what the date of separation is in your case, it is important that you discuss your rights with an experienced family law attorney.

Continue reading "The Supreme Court Interprets "Living Separate and Apart" in Marriage of Davis" »

Same-Sex Divorce

same-sex-divorce.jpgIn recent years, same-sex marriage has undergone a radical transformation in California and in the rest of the nation. The Law Offices of Nancy J. Bickford is well aware of these important changes in the law.

On June 16, 2008, the Supreme Court of California held that California's same-sex marriage ban was not permitted under the California constitution. On November 5, 2008, however, the California electorate amended the California constitution through Proposition 8. This reinstated the same-sex marriage ban in California.

On August 4, 2010, United States District Court Chief Judge Vaughn Walker declared that Proposition 8 was unconstitutional under the Federal (not California) constitution. However, through appeal, the order was stayed until the United States Supreme Court reinstated Judge Walker's ruling on technical grounds in Hollingsworth v. Perry. The Hollingsworth v. Perry opinion was issued on June 26, 2013 and allowed same-sex marriages to resume in California.

same-sex-divorce-gavel.jpgOn that same date, the United States Supreme Court issued the landmark Windsor v. United States decision, striking down language in the Defense of Marriage Act (DOMA) that limited the definition of marriage to opposite-sex couples. Before Windsor v. United States, same-sex couples throughout the nation were deprived of many federal benefits opposite sex couples enjoyed. Justice Kennedy, describing some of these benefits, wrote as follows in the majority opinion:

"Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive... It deprives them of the Bankruptcy Code's special protections for domestic-support obligations ... It forces them to follow a complicated procedure to file their state and federal taxes jointly ... It prohibits them from being buried together in veterans' cemeteries."

After the Windsor decision, same-sex married couples did not face these burdens in California or other states that allowed same-sex marriage. However, it was not until June 26, 2015 that the Supreme Court ruled that all same-sex marriage bans were unconstitutional in Obergefell v. Hodges. This has a practical effect for same-sex couples in California that were already married: they can now freely move to any other state and that state will be required to recognize the marriage. This was an unsettled issue until Obergefell.

There are still unique issues that same-sex couples face. For example, what happens when a same-sex couple had a domestic partnership and then married after it became legal to do so in California? Does this couple have to both terminate the domestic partnership and dissolve the marriage? In cases like this, what is the length of the "marriage" for purposes of spousal support?

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There is Life After Divorce

life-after-divorce.jpgThere may have been a general consensus that the stress of a relationship ending and divorce are damaging to your health, but those effects do not have a long term impact. Researchers from the University College London institute of education, London School of Economics and London School of Hygiene and Tropical Medicine have studied the issue and have found that "transitions such as separation and divorce do not have a long-term effect."

While this may not be great news while you are struggling through a divorce, it shows that the pain of ending a marriage, especially an unhealthy one, has no lasting effect on you. In fact, this study cites previous research which "suggests that individuals in poor-quality couple relationships have worse health than those in happier ones and those who are unhappily married are at greater risk of poor health than divorced people." So, in other words, the move to end an unhealthy marriage has health benefits.

broken-heart.jpgRegardless, when going through a divorce you need a knowledgeable and caring attorney to help you navigate both the complexities of family law and who knows the emotional toll a divorce can take on a person. A knowledgeable attorney can ease the burden of a divorce by providing accurate information so you are not blindsided during court proceedings.

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When A Military Parent is Deployed

military-parent.jpgSan Diego is home to a great many families who serve our country in the armed forces. However, as is often the case, members of the military are deployed for periods of time away from home and separated from their families. Deployment is stressful for families, but takes on an added dimension after a divorce when parties have crafted a parenting plan for their child. What happens to your parenting plan when you are deployed overseas?

The State of California has made it a matter of public policy to ensure that a parent who is unable to follow a parenting plan due to their deployment is protected. California Family Code Section 3047 states, in part, that being deployed for military purposes shall not be a reason for a modification of a parenting plan on its own. It further states that upon a parent's return from deployment there is a presumption that the parties' return to the pre-deployment parenting plan. Any changes to that plan would require a showing that a reversion in not in the best interests of the child.

military-parenting-deployment.jpgThe courts have recently reiterated the importance of Section 3047 in Marriage of E.U. and J.E. which requires both a speedy resolution to custody matters for a parent returning from deployment and placing the initial showing on the non-deployed parent to show why a reversion is not in the child's best interest. This ruling strengthens a deployed parent's rights upon their return.

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When is a Custody Order Really "FINAL"?

child-custody-tug-of-war.jpgHaving to litigate the issue of child custody can be an emotionally exhausting process. Litigation also tends to fray the relationship between the parents and the resulting tension almost always affects the children in some form. Clients justifiably want to know: when will it end?

Under California law, the Court continues to have the power to make child custody and visitation orders until a child turns 18. The orders can be changed at any time upon the filing of a motion. However, this doesn't mean that the Court starts from scratch each time a parent files a motion to change the parenting plan. Sometimes, the law requires that the Court apply the changed circumstances rule, which makes it significantly more difficult to change custody. In these cases, the Court must find that there are significant changed circumstances exigent to the health, safety, and welfare of the child before it changes custody.

So when does the changed circumstances rule apply? It applies when there is a "final judicial custody determination" as stated in the Montenegro v. Diaz California Supreme Court case. If the parents litigate the issue of child custody at a trial or post-judgment hearing, these custody orders would be "final" and subject to the changed circumstances rule. A stipulated custody order or judgment that contains a clear, affirmative indication that the parties intended the stipulation to be a final judicial determination of custody will also invoke the changed circumstances rule.

child-custody-co-parenting.jpgIt is important to note that there are many circumstances where the Court makes an order after a contested hearing, but the order is not considered final. Temporary child custody orders and custody orders made pursuant to a Domestic Violence Restraining Order request, for example, are not considered final judicial custody determinations. Therefore, the changed circumstances rule does not apply to these types of orders.

Even though a finding of changed circumstances may be required to change custody, the Court never has to find changed circumstances to make slight modifications to the visitation schedule, pursuant to the Enrique M. v. Angelina V. case. Adding an overnight, for example, would probably not invoke the changed circumstances rule. In these situations, the Court would apply the best interests of the child standard as set forth in Family Code section 3011.

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They Want to Move Where?!

divorce-moving-overseas.jpgPeople from around the world settle in California and specifically San Diego for many reasons, for example, our beautiful weather, or to work in the booming biotech industry. When they arrive, they marry, have children and become an integral part of the diverse San Diego community. While oftentimes people plan on staying permanently, sometimes they decide to return home. What happens when your divorced spouse wants to move with your child overseas?

For example, actress, Kelly Rutherford, is involved in a very contentious international custody dispute. After an initial joint custody award, her ex-husband gained custody of their children when his visa required him to return to Monaco. The ability of a parent to move with a child out of state or even out of the country can be very contentious. One parent's relationship with the child will be irrevocably changed. While the determination of a move-away case can be extremely complex and fact specific, as with all matters involving children, the court relies on what it believes are in your children's best interests before issuing a ruling.

divorce-moving-suitcase.pngHowever, if one parent moves without permission from the court, you may have recourse if your spouse moved to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention"). The Hague Convention gives parents recourse if the moving parent has taken a child without permission, or sometimes if they are in non-compliance with a custody and visitation order. The Hague Convention attempts to return the custodial arrangement to the status quo before the abduction and it gives a framework for different jurisdictions with different laws to work together for the benefit of the child. The issues surrounding the Hague Convention are complex and require diligence to ensure the best outcome for your child.

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Why Mediation?

trace-rhonda-adkins-getty-3.jpgCounty music singer Trace Adkins has just ended his divorce from his wife of 17 years, Rhonda. While the split has been in the news, the terms of the divorce have remained quiet. The reason why the parties were able to reach a resolution of their issues without a judge making a ruling and there is being a public record is because they utilized mediation.

Mediation is a process wherein the parties involved in a dissolution meet with a neutral third party mediator to work toward a settlement. The mediation process is voluntary and private to allow for flexibility in the process. In order to facilitate open communication and dialogue between the parties in mediation the State of California enacted Evidence Code §§1115-1128, which protects the confidentiality of the process. This means that disclosures made during mediation generally cannot be used if the parties decide later to litigate their matter in the Family Court.

Mediation is a valuable process to allow for parties to speak candidly and can be beneficial in complex, high asset cases. The parties can represent themselves or utilize attorneys to advocate for them during the process. Mediation can often keep legal costs down and allow for personalized settlement results in a less formal atmosphere.

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What do I do with my Thrift Savings Plan during my divorce?

retirement-tsp.jpgIf you are a member of the uniformed services or work for the Federal Government you are eligible to sign up for a Thrift Savings Plan ("TSP"). A TSP is a retirement savings plan similar to a 401(k), and it often supplements other retirement plans such as Federal Employee Retirement System (FERS) or your military retirement. Even though it is similar to a regular 401(k) it is managed by the Federal Thrift Investment Board, which is an independent government agency, as opposed to a private financial services company.

When you retire your TSP is treated the same as a 401(k). During your working years you place a portion of your pretax earnings into your TSP account and those funds are taxed when removed post retirement. Because a TSP is similar to a 401(k) they are treated in the same way during a divorce. The community portion of the TSP (the amount accrued during marriage), are divided pursuant to a specially prepared order. A Thrift Savings Plan does not fall under the Employees Retirement Income Security Act ("ERISA"), rather the order must meet different requirements under Federal Law (5 United States Code sections 8435(c) and 8467, and 5 Code of Federal Regulations part 1653, subpart A).

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Never Look a Gift Horse in the Mouth

bobby-flay-stephanie-march.jpgThe divorce battle between celebrity Chef Bobby Flay and his Wife of a little over 10 years, Stephanie March, have been anything but civil. At the heart of the divorce is a premarital agreement executed by the parties before they said their nuptials. The agreement clearly lays out what Stephanie is entitled to receive with regard to property and support. The jury is still out on whether the premarital agreement will hold up, but that is a blog for another day.

The most recent fight (of which there have been many) revolves around a racehorse named "Dad's Crazy" which Bobby allegedly purchased for Stephanie back in 2009. Stephanie alleges the horse was purchase as a 4th anniversary gift. Apparently the horse was quite successful, raising in excess of $130,000 in winnings, which according to Stephanie, Bobby kept to himself. The horse has subsequently sold for $60,000 and, again according to Stephanie, Bobby kept the sale's proceeds as well.

If you have followed our blog for any amount of time, you will know that any property acquired during marriage that was acquired by way of "gift" is the separate property of the recipient of the gift (Family Code §770). Seems pretty simple, right? Bobby (allegedly) gave the horse to Stephanie as a gift and therefore it is her separate property. It would then follow that the winnings and the sale's proceeds would also be her separate property.

You know if it were that simple I would not be writing this blog. You see gifts between spouses do not work the same as gifts to a spouse from a third party. Gifts from third parties are almost always the separate property of the recipient. I say "almost always" because this is family law after all, and nothing is ever perfectly certain.

When you have a gift between spouses you need to have writing transferring the property from either the separate property or community property of the giver of the gift to the separate property of the recipient for there to be a valid transmutation; which is just a fancy word for changing the character of the property. The simple reason (and yes, I am simplifying this a great deal - I could spend several blogs discussing transmutations) is that you need to be able to prove intent. Generally this comes in the form of a writing of some kind.

The exception to the requirement for a valid transmutation is found in Family Code §852(c) which says:
"This section does not apply to a gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage."

This short code section is the reason why parties, almost without exception, keep their engagement and wedding rings, jewelry, personal property and clothing acquired during marriage. These items are easy to distinguish, because they are specifically mentioned in the statute. The analysis becomes more difficult when you get to the line "or other tangible articles of a personal nature."

This is one of those sentences that absolutely defies a precise definition, but as Justice of the Supreme Court of the United States, Potter Stewart, said when he was asked to describe the threshold test for obscenity, "I'll know it when I see it." That's just it, it will always be a case by case basis.

As an example, in the case Marriage of Buie and Neighbors, Husband argued that Wife's gift of a Porsche given to him for his birthday was his separate property under the exception in Section 852(c). The court disagreed holding that an automobile is not an article of a personal nature within the meaning of the section. Though it probably would not have changed the court's holding, it is worth noting that Husband purchased the car with Wife's separate property as a birthday gift, without first asking Wife if that was okay.

So, how will "Dad's Crazy" be worked out? If I was a betting man (and I am...I was raised in Las Vegas after all), I would bet on the horse being deemed community property, and Bobby will be entitled to recoup any money he put into the horse's purchase. As for the money that was earned by "Dad's Crazy," that will also be community property subject to reimbursement by Bobby. This all assumes there is no provision in the premarital agreement about purchases made during marriage and how they are treated upon dissolution.

Continue reading "Never Look a Gift Horse in the Mouth" »

Changing Jobs When There is a Support Order

New-Job-support-orders.jpgIf you're a big fan of the "Simpson's" you may have heard that Harry Shearer, the voice of several of the shows iconic characters, is leaving the show. When a big star makes a movie or a star leaves a television show it usually makes the news, but people retire, change jobs, or are laid off on a daily basis. What do you do if you are involved in a Family Law proceeding and your income changes?

A change in your career can have far reaching effects on many aspects of your Family Law case, but it most immediately applicable to both child and spousal support orders. If there is a current order in place, it should tell you the protocol for informing your spouse of a change in your financial circumstances, but just informing your spouse may not protect you if your ability to pay your support award is compromised. Conversely, if you are receiving support and your ex-spouses income increases you may not be entitled to the increase solely because you are informed of the change.

Even when a change in income occurs, the court can usually only enforce the current order it has on file. Therefore, whether you need to reap the benefit of increased income or reduce the burden of an order you can no longer afford, you need to file the request with the court to modify your support to match your current financial circumstances. The court will then make a ruling in keeping with you and your ex spouse's current financial situation.

Of course financial issues always become complex if one party is self-employed and/or owns a business, and it may require a more in depth analysis. The Law Offices of Nancy J. Bickford is experienced in representing clients in all aspects of any financial issues that come before the Family Court and we are experienced in dealing with the complexity of self-employed parties and business owners.

Continue reading "Changing Jobs When There is a Support Order" »