March 2011 Archives

When Fault Matters in a No-Fault State

California is considered a no-fault divorce state, meaning the reason a couple is divorcing is completely irrelevant to the court in whether the court will grant a divorce. Neither party has to prove the other was at fault for the break down of the marriage. There is even a statute that makes evidence of specific acts of misconduct is improper and inadmissible. It does not matter to the court whether you are requesting a divorce from your spouse because he/she is abusive toward you, uses drugs, is an alcoholic, cheats and/or has inappropriate Facebook relationships, works too much or that you have grown tired of your spouse. As long as one party alleges "irreconcilable differences", meaning marital problems that cannot be resolved, the court will grant a request for divorce.

The other ground for divorce in California is "incurable insanity." As a San Diego divorce attorney, although some of my clients think their spouse is "insane", I never had a case where the "insanity" reached a level of "incurable insanity."

So while fault has no impact on whether or not a court will grant a divorce, three areas of "fault" - domestic violence, drug use and alcoholism - can have a major impact on how the court decides the issues of custody, visitation and spousal support.

A finding of domestic violence, against either the other party or the child, gives rise to a presumption that an award of custody to a person who has perpetrated domestic violence is detrimental to the best interest of the child. The perpetrator may end up with no visitation or supervised visitation. However, in order to prevent a party making false accusations of abuse to obtain an advantage in a custody dispute, the court imposes very harsh penalties on a party making a false accusation.

The perpetrator of domestic violence may have to pay more spousal support to the abused spouse, or if criminally convicted, be barred from receiving support from the abused spouse. In the case In re Marriage of Cauley, Ex-Wife was convicted of domestic violence against Ex-Husband and Ex-Husband's request to terminate spousal support he paid to Ex-Wife was granted.

A party who is a drug user or alcoholic may have his or her time with their child(ren) reduced, supervised or even eliminated. Further, the court may order the drug or alcohol user to undergo drug and/or alcohol testing.

Termination of Marital Status Before All Issues in a Divorce are Resolved

Jason London, star of the 1993 coming of age comedy Dazed and Confused, (not to be confused with his twin brother, Jeremy, the Party of Five and Seventh Heaven actor who was in the news last year for allegedly being kidnapping while changing a flat tire and forced to smoke crack at gunpoint,) finalized his divorce from wife, Charlie Spradling, last Thursday, according to E! Online.

E! Online reports that London and Spradling, after being separated for a number of years, filed for divorce in February 2010. In November 2010, before his divorce was finalized, London proposed to his girlfriend, Canadian born actress Sofia Karsten. Karsten said yes, and the couple plans to wed in July.

If London was planning on popping the question last November, why did he wait until now to finalize his divorce? Although I can only speculate, the logical answer is that there were issues raised in the divorce that simply weren't resolved until now. But what if London had wanted to get married, and not just engaged, before all of the issues in his divorce were resolved? Could he have done so?

Because London's divorce was filed in February, the earliest he could have gotten divorced was six months from then. This is because in California, there is a minimum six month "waiting period" before you can get a divorce. The six months runs from the date of service of a copy of summons and petition or the date of appearance of the respondent, whichever occurs first. Family Code Section 2339.

Assuming the 6 month waiting period has expired, it is possible for party to terminate their marital status (thus freeing them to remarry) even though all of the issues in the divorce have not been resolved. Family Code Section 2337 gives the court the ability to "sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues." The statute does however set forth a number of conditions that the court may impose upon a party on granting a severance of the issue of the dissolution of the status of the marriage. Generally, these conditions are designed to protect the other party from a number of potentially adverse consequences of the early termination of marital status.

Facebook and Other Social Networking Sites as Sources of Evidence in Divorce Cases

1260785_laptop_work.jpgBy now, most job seekers know that potential employers may take a look at Facebook, or other social networking sites, when evaluating a potential new hire. Job candidates are wise to this practice, and many take care to edit their social networking posts accordingly. But many divorcing spouses are not so smart, and sometimes with dire consequences.

USA Today reported on a survey of the American Academy of Matrimonial Lawyers about the use of social networking sites as sources of evidence in divorce cases. The survey revealed that over the last 5 years, 81% of AAML members have used, or been faced with, evidence from Facebook, MySpace, and Twitter, among others. According to the survey, Facebook has been by far the most popular source with 66%, followed by MySpace with 15%, and Twitter with 5%.

To illustrate how social networking sites can be used as sources of evidence in family law cases, consider the following hypothetical cases. A parent is seeking an order for sole physical custody, claiming they are at home with the children every night, yet their Facebook page has photos of them out most nights "partying". Or, a parent is alleging that the other parent has a drug problem and, sure enough, the offending parent has posted multiple photos of themselves on Facebook smoking marijuana. As a San Diego family law attorney, I have experience with similar cases.

Individuals who are divorcing, or considering a divorce, should consider browsing the social networking sites to see what their spouse may have posted. Similarly, they should take a look at their own posts, and consider whether there is anything that should be edited.

Family Court: Circumstances Under Which a Court May Order a Drug Test

TMZ.com reports that Charlie Sheen and Brooke Mueller have reached a custody agreement, which includes mutual drug testing. In the case of Sheen and Mueller, it appears the parties volunteered to submit to drug tests. But what if they didn't volunteer to do so? Could the court order one, or both of them, to take a drug test?

Family Code section 3041.5, provides that "[i]n any custody or visitation proceeding...the court may order any person who is seeking custody of, or visitation with, a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent..."

Thus, the court may order a drug test, but only if it first determines, by a preponderance of evidence, that there is the habitual, frequent, or continual illegal use of controlled substances. Among the ways to show this is a conviction within the last five years for the illegal use or possession of a controlled substance. Family Code section 3041.5.

Once it is established that the court may order a drug test, what type of test might the court order? The short answer is that it must be the least intrusive method. Family Code section 3041.5. This may be, for example, a urine test as opposed to a blood test.

If a test is positive, the parent who took the test has a right to a hearing, if they request one, to challenge the result. Family Code section 3041.5. Even if the positive test is upheld, it doesn't necessarily mean that the court will issue a custody order in favor of the other parent. This is because, in determining the best interests of the child, the court is required to weigh all relevant factors, only one of which would be the positive drug test.

Will an Attempt at Reconciliation Change the Character of Property?

1210666_band_aid.jpgIf you are a fan of Who's the Boss? star Tony Danza, you may recall that in 2006 he separated from his wife, Tracy. Four and a half years later, Tony Danza has filed for divorce according to People.com.

As a San Diego divorce lawyer, I have had clients in similar situations; specifically, clients who have waited some length of time after separating to file for divorce. Although I do not know the reason Tony Danza personally waited to file for divorce, sometimes parties wait to file for divorce because they are attempting reconciliation. In my work as a San Diego family law attorney, I have been asked how an attempt at reconciliation effects how property is divided, and specifically how an attempt at reconciliation effects how a spouse's earnings will be characterized by a court, that is as separate property or community property.

Generally, except as otherwise provided by statue, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property. Family Code section 760. One such statutory exception is that earnings and accumulations of a spouse while living separate and apart from the other spouse are separate property. Family Code section 771.

Accordingly, once parties separate, their earnings after the date of separation will generally be characterized as separate property. An "attempt" at reconciliation should have no effect because it is, by its nature, only an attempt, assuming the parties remain living separate and apart. However, as a practical matter, the spouse who stands to benefit from a later date of separation may argue, depending on the facts, that the parties not only attempted reconciliation, but that they actually reconciled. Therefore, an attempt at reconciliation may put date of separation, and thus the character of property, at issue.

It can benefit some individuals, depending on the facts of their case, to enter into a written agreement specifying that reconciliation is being attempted only and preserving the date of separation.

California: Grounds for Divorce in a No-Fault Divorce State

952313_gavel.jpgAs reported in The San Francisco Chronicle, retired San Francisco judge Isabella Horton Grant died of cancer on Saturday at age 87.

Judge Grant made many contributions to family law, including her participation in the drafting and passage of California's no-fault divorce rule, which went into effect January 1, 1970 with the enactment of the Family Law Act of 1969.

Prior to the enactment of California's no-fault divorce rule, the moving party in a divorce was a plaintiff who charged the other spouse, as a defendant, with being "at fault" for the divorce for reasons such as adultery, abuse, etc.

With no-fault divorce, a judgment of dissolution of marriage may be granted simply based on irreconcilable differences. Family Code section 2310. Irreconcilable differences are defined by Family Code section 2311 as "those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved".

Just what grounds will a court determine to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved? To meet the statutory requirements, there must exist "substantial marital problems which have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed and as to which there is no reasonable possibility of elimination, correction or resolution." In Marriage of Walton (1972) 28 CA3d 108, 118.

As a practical matter, in my experience as a San Diego divorce attorney, I have never had a court deny a request to dissolve a marriage based on irreconcilable differences.

Are Recording Artist Ashlee Simpson and Fall Out Boy Band Member Pete Wentz Headed for a Custody Battle?

Last month, recording artist Ashlee Simpson filed for divorce from Fall Out Boy band member Pete Wentz. The parties have a 2 year old son, Bronx.

According to People.com, in Simpson's Petition for Dissolution of Marriage she requested sole custody of their son with visitation rights to Wentz. On Tuesday, Wentz filed his Response requesting joint custody of their son. While there is speculation that this may mean Simpson and Wentz are headed for a custody battle, my experience as a San Diego divorce attorney tells me that isn't necessarily the case.

One of the first steps in the divorce process is to file the Petition or, depending on what side of the case you are on, the Response. When there are children involved, the Petition and Response are how the parties first tell the court what type of custody and visitation order they would like. The options include: legal custody to the Petitioner or Respondent or joint legal custody, physical custody to the Petitioner or Respondent or joint physical custody, and child visitation to the Petitioner or Respondent. Because the Petition and Response are forms, once a party determines which option is best, they simply check the appropriate box. (Of course, this is just what is being requested, and not necessarily what the court will ultimately order.)

As a San Diego family law attorney, there have been occasions where, under certain circumstances, I have recommended that a client request sole custody in their Petition or Response, even though we anticipated entering into a joint custody agreement down the road. And, it may be that Simpson and her attorney decided on this same course of action.

Ultimately, the fact that Simpson checked the box on her Petition requesting that she have sole custody of the parties' son won't prevent her from seeking an order for joint custody or agreeing to joint custody down the road, if that is what she decides to do.

Children of Divorce Pay More for College

Time.com recently posted an article titled: 5 New Reasons to Get (or Stay) Married this Year. What was their number one reason? Children of divorce pay more for college.

The article cites an analysis of student financial aid statistics which concludes, generally, that parents who are divorced contribute less to college expenses than parents who are married. And, even if a parent divorces and then remarries increasing their household income, they still contribute a smaller percentage of that income to college expenses. The article states that, according to the study, a college student with divorced parents pays an average of 58% of all college expenses, whereas a college student whose parents are still married pays only an average of 23% of all college expenses. For a college student whose parents divorce, and then remarry, the student pays an average of 47% of all college expenses.

As a San Diego family law attorney who handles child support cases, I have been asked whether a court can order a parent to pay for a child's college expenses. In my experience, absent an agreement between the parents, a judge will not order a parent to pay for a child's college expenses.

One reason for this is because in California parents generally only have an equal responsibility to support their minor children in the manner suitable to the child's circumstances. Family Code section 3900. And while Family Code section 3911 does extend this duty of support to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first, the obligation still generally stops upon graduation from high school (or age 19 if the child is still in high school).

However, because Family Code section 3911 does not limit a parent's ability to agree to provide additional child support, if a parent would like to agree to pay for a child's college expenses they may do so and that agreement can be made a court order.

Will You or Your Spouse be Required to Maintain Health Insurance for Your Child?

As a San Diego family law attorney, many of my clients come to me with the goal of obtaining an order for child support. Many times, my clients do not know that generally, when a court makes an order for child support, the court must also make an order for health insurance for the supported child. Specifically, the court must order that either or both parents maintain health insurance for the supported child if that insurance is available at no cost or at a reasonable cost to the parent.

Because many of my clients do not have the benefit of health insurance at no cost, one question I am asked in child support cases is what will the judge think is a resonable cost for health insurance?

There used to be a rebuttable presumption that any employment-related group health insurance or other group health insurance was reasonable in cost. However, beginning January 1, 2011, this has changed. Now, there is a rebuttable presumption that any health insurance cost which does not exceed 5% of the parent's gross income is reasonable. In determining whether the health insurance cost exceeds 5% of the parent's gross income, we look at the difference in cost between self coverage and family coverage, and it is that amount that cannot exceed 5%.

Say for example that you have an annual gross income of $60,000, and the cost of your employment-related group health insurance is $250 per month for you individually, or $600 per month for a family plan. Under the old rule, the rebuttable presumption would apply simply because the plan was available through your employer. Under the new rule, the rebuttable presumption applies only if the additional cost for a family plan, above and beyond the cost for the individual plan, is less than 5% of your income. In this example, the presumption would not apply under the new rule because the additional cost of $350 per month (calculated as $600 - $250) is more than 5% of the gross income.

Military Allowances are Includable in a Party's Gross Income for Purposes of Calculating Support

US waving flag.jpgSan Diego has a long and proud military history. San Diego, which started as a Spanish military outpost and continued to be a military town throughout the years, is currently home to numerous U.S. Navy, Marine Corps and Coast Guard facilities.

Whether you are in the military or married to a military service member the California Court of Appeals recently made a decision that will impact how support is calculated in divorces where one or both parties are in the military.

In the case of In re Marriage of Stanton, Mr. Stanton, a member of the US Navy, filed a request to modify support. At the time of the hearing, his base pay was $4,474.80/mo, Basic Allowance Housing ("BAH") was $2,199/mo, Basic Allowance Subsistence ("BAS") was $323.87/mo and special duty pay was $300/mo. The trial court included his military allowances as non-taxable income when calculating support stating, "If it looks like income, it is income no matter how it's paid to you. And this court has always considered BAH and BAS to be income."

Stanton appealed the trial court's inclusion of his military allowances as gross income on a theory that federal law preempts the inclusion of military allowances as gross income because they are not taxable or subject to wage garnishments.

The California Court of Appeal disagreed, joining other several other state courts which have held that that federal preemption doctrine is inapplicable to military allowances and that such allowances can be included in a party's gross income for purposes of support. The court concluded the preemption doctrine is inapplicable because under United States Supreme Court authority, family law support matters are within the province of state law unless Congress has positively required by direct enactment that state law be pre-empted, and that before a state law governing domestic relations will be overridden, it must do major damage to clear and substantial federal interests. The court held that the inclusion of such allowances does not do major damage to a clear and substantial federal interest and that, to the contrary, the Department of Defense by regulation and otherwise encourages members of the armed forces to fulfill their family commitments.

The result of the Stanton decision is that California Courts will continue to include military allowances such as BAH and BAS as tax free income when determining child and spousal support.