August 2011 Archives

Is There a Good Time to Get Divorced in San Diego?

Few people would agree that there is a good time to get divorced. It can be a long, drawn out process and complex. Not only that, but it can lead to overwhelming stress and problems with other family relationships if not handled well.

A new article published on MSNBC.com by Investopedia looks at the best and worst times to consider a divorce in San Diego. Many people are struggling financially right now because of the effects of the Great Recession. Some people have the desire to get a divorce, but feel as if they can't afford it and stay together in order to save money.
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That can lead to volatile situation that can lead to domestic violence issues as tempers flare, egos are bruised and feelings hurt. Even if you think your finances prohibit you from getting a divorce, it would be prudent to set up a consultation with an experienced San Diego Divorce Lawyer to discuss your options and talk about your situation.

Here are some events that can impact a divorce:

An up and down real estate market: At one time, a house was a major asset that couples might fight tooth-and-nail to obtain, but times have changed. According to foreclosure tracking site Realtytrac, every zip code but one in San Diego has "high" foreclosure activity level, with nearly 1 in every 147 housing units in foreclosure.

San Diego, like many parts of the country, has seen housing prices drop as foreclosures saturate the market, leaving many people upside down on their mortgages. For that reason, a house in a divorce may be less of an asset and more of a debt that must handled. While in past divorces, one spouse may be awarded the house and the other spouse would be awarded other assets in exchange, now the other spouse may have to give up assets if an ex agrees to take on an upside-down house.

A shaky economy: With the economy slowly recovering (and some would argue slowly is an exaggeration), many people are hurting financially. Going through a divorce at this time can be difficult.

A poor credit score: A bad credit history coupled with a divorce can be bad news for a person going through the process. Having to obtain a car loan or perhaps rent a house on your own can be more difficult without the added security of a second income or a house that may already be paid off in full. Again, a trusted attorney will be invaluable in assisting you in avoiding the common pitfalls of the divorce process.

If one of the two spouses has a bad credit score, negotiating to keep the car or house to avoid having to venture out for a loan may be prudent.

Minor children: Divorce is more complex and stressful when children are involved. Child custody in San Diego divorces can make a divorce more contentious and more financially difficult. With two sets of living expenses instead of pooled money, each parent will have less to give to college funds and other expenses, but financial aid may be easier to obtain.

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San Diego Divorce and Weighty Matters

A recent study conducted by Ohio State University researchers found that women are more likely to gain weight after they get married, while men tend to add the pounds after a San Diego divorce.

Divorce can be a difficult time in the lives of many spouses, as they have come to realize that they aren't as compatible as they once believed. Perhaps infidelity has caused the once-proud couple to split. Finances are often a bone of contention. Whatever the reason, consulting with an experienced San Diego Divorce Lawyer who is also a certified family law specialist should be the first step. Certified Family law specialist is a designation obtained by less than 2 percent of California divorce attorneys and represents the profession's highest degree of professional excellence.

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The process of divorce can have long-lasting effects and can take a mental toll on the spouses. Having to adapt to living alone, perhaps being split up from children and dealing with the financial stress of separated life can all be stressful. That stress can lead to health problems, including weight problems.

According to a story reported by FOX in Los Angeles, the Ohio State study found that men tend to gain weight after a divorce, while for women, the weight is put on after marriage. The two events are called "weight shocks."

The most drastic weight changes came for people over 30, the study found. The study followed 10,071 people from 1986 to 2008 to determine weight gain in the two years following a divorce and a marriage, taking into consideration factors such as pregnancy, socioeconomic status, education and finances.

The researchers made their determination that because women still tend to have a bigger role in household matters, they have less time to exercise. Partly because of that benefit, men are more fit in marriage and add on weight once they are divorced.

Many things go through the minds of people who are considering a divorce and among the biggest issues is child custody in San Diego divorces. Where a child lives and who gets to make key decisions that affect their lives are among the most contentious issues that divorcees struggle to handle.

In California, a family court judge will take many things into consideration in determining where a child will live and with which parent. The judge will look at what is best for the child. Involvement with the children, incidents of domestic violence or use of drugs or alcohol will likely come into play.

While the stress of this particular decision and others, such as property division, support payments and other issues, can cause a client to have negative physical side effects, an experienced San Diego Divorce Lawyer will be able to shield the client from as much stress as possible. Everyone wants to get on with their lives and therefore the least amount of stress the divorcee is exposed to, the better. An experienced attorney can help take some of the emotion out of the equation.

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Your Divorce is Final, Now What?

You have just received a court stamped copy of your Judgment from your San Diego divorce attorney. Everything has been resolved - custody, visitation, child support, spousal support, division of assets and division of liabilities - there is nothing left to do, or is there?

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In a recent arbitration case, Husband who had been through a bitter divorce, did not change the beneficiary on his IRA, which listed ex-Wife as beneficiary. When he died 10 years later the IRA money went to his ex-Wife. Husband's Widow sued to collect on the IRA money. The arbitration panel denied Widow's claims. The panel found that Husband opened an IRA in 1994. Husband and Wife divorced in 1999. Husband remarried several years later. Husband was an attorney who made his own business decisions. Husband changed the beneficiaries on several of his other accounts, but not the IRA account. Although Husband probably did not intend for the IRA money to go to his ex-Wife, it was Husband's responsibility to change his IRA beneficiary.

This arbitration case highlights how important it is to follow up on items stemming from your divorce. Not doing so may result in your ex-spouse receiving monies you do not want them to receive, and could also subject you to enforcement motions, attorney fees and sanctions for not following the terms of the Judgment.

Here are a few things to review once you receive your Judgment back from the court:

Equalizing Payments. Is there an equalizing payment set forth in the Judgment? If so, make the payment. I had a client whose ex-spouse was ordered make an equalizing payment forthwith. The ex-spouse decided to "play games" - writing the first check to the wrong name, not signing the second check, claiming the third check was "lost in the mail" and wiring funds to a closed account. The ex-spouse ended up paying the equalizing payment after 45 days, but was required to pay a month of interest and sanctioned by the court, which found the delay intentional.

Beneficiaries. As illustrated in the arbitration case above, review, and if necessary, change the beneficiaries on all of your retirement accounts, bank/financial accounts, and disability/life insurance policies. Be careful though, your Judgment may require you to keep your ex-spouse as a beneficiary on a life insurance policy in order to protect the children/ex-spouse if you die before child or spousal support terminates. If you receive support and your ex-spouse is required to keep you as the beneficiary, periodically check that you are still the beneficiary. If you have an insurance agent, meet with the agent to go over any changes you may wish to make that are consistent with the Judgment.

Financial Accounts. If financial accounts need to be divided, be sure to do so pursuant to the terms of the Judgment. Contact your bank and financial institutions to ensure that your ex-spouse cannot access or make charges to accounts awarded to you. This may require closing the account and opening it in your name alone with a new account number.

Credit Cards. Contact your credit card companies to ensure that your ex-spouse cannot charge to credit cards awarded to you. You may need to close the credit card account and open a new one to ensure that an ex-spouse is not able to charge to credit cards he or she could previously charge to.

Retirement Accounts. Are retirement plans or pensions being divided and is a Qualified Domestic Relations Order required for the division? Although you and your ex spouse may be able to divide some retirement accounts, like IRA's, fairly easily, a QDRO specialist is often retained to calculate and divide the community interest in retirement/pension plans. Check with your attorney to determine how to best proceed with the division of retirement assets.

Real Property / Vehicle Title and Loans. Were you awarded or did you buy out your ex-spouse's interest in community real property? If so, discuss with your attorney changing title into your name alone. If your former spouse refuses to sign the title change documents, the court can appoint an elisor to sign for your ex-spouse.

Also be sure to change title on any vehicles awarded to you. This can usually be done through the DMV with forms available online.

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If you were ordered to refinance real property loans, be sure you do so. Even if you are only required to make your best efforts to refinance (it is difficult to qualify for re-financing in this economy), make your best efforts by applying with several lenders, and keep trying. If you do not do so, depending on the Judgment language, you may lose the property!

Wills and Trusts.
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Meet with your estate planning attorney or advisor to prepare a new will/trust as well as other estate planning documents like Powers of Attorney and Health Care Directives. Although the divorce may automatically cancel your former spouse's rights under a will, trust and power of attorney, it is important to meet with your estate planning attorney to update or prepare these documents to ensure your current intent is accurately reflected.

Internet / E-Mail. Be sure to change the passwords and answers to security questions for all of your e-mail accounts and for any internet websites you visit (Facebook), purchase from (Amazon) or use for finances (Banks). Make sure the new password something that your ex-spouse cannot easily guess. Many websites let you write and answer your own security questions. This can help prevent your ex-spouse hacking into your online accounts and e-mails.

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Suit over Identification of Marital Property Highlights Need for Experienced Divorce Lawyer in San Diego

The Toronto Sun reports a woman is suing her divorce attorney for $14 million, claiming the attorney failed to adequately identify assets.

Division of property and valuation of property are among the primary responsibilities of a San Diego divorce lawyer. Too often, people think that a property division in a divorce must be equal because of California's no-fault divorce law. In reality, spouses can and do walk away with far less (or far more) than an equal division of assets.
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You can tell a lot about how seriously an attorney takes the obligation by the time he or she has put into acquiring the knowledge and skill that will allow for the best possible legal representation of clients. Nancy J. Bickford is a certified family law specialist -- a distinction earned by less than 2 percent of California attorneys -- who also holds an MBA and is a licensed certified public accountant through the State of California.

In the case out of Canada, the woman claims she is out at least $3 million worth of assets she should have received in a split from her common-law husband. The suit claims her divorce law firm failed to fully investigate and identify the availability of assets and to determine the appropriate value of those assets.

"As a result of the defendant lawyer's breach of contract and negligence, this has resulted in the plaintiff receiving substantially less property than she should have received," the lawsuit states.

Distinguishing separate property from community property can be more complex than many realize. What if a spouse owned a house before marriage but both have made mortgage payments for years? What about retirement accounts? Year-end bonuses? Inheritance? A business that began prior to marriage but was built up significantly during marriage? And don't forget liabilities -- those can be community property as well. Too often, a party to a divorce believes just because a former spouse is responsible for a car payment or house payment according to the terms of a divorce agreement, that a bank cannot come after the freed party in the event of missed payments. Banks don't care what your divorce agreement says. Your attorney will work with you to sever such ties and protect you to the fullest extent possible.

The identification and evaluation of community property can be particularly challenging in marriages where one spouse is the major wage earner and keeps the books. In such cases, you may be best served by speaking to an experienced family law firm in San Diego before announcing your intentions to your spouse. The ability to gather evidence and taking other steps to protect your rights can be easier before relations turn hostile on the homefront.

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Brown et al. v. Continental Airlines Highlights Importance of Retirement Funds in San Diego Divorce

A federal court has ruled against Continental Airlines in a fight over whether it could sue pilots it claimed faked their divorces in order to tap into retirement funds.

The ruling in Brown et al. v. Continental Airlines was upheld by the U.S. Court of Appeals for the Fifth Circuit. The Associated Press reports Continental had accused nine pilots of sham divorces so their ex-spouses could tap their lump sum pensions while they still worked for the airlines. The pilots then remarried their former spouses. The court ruled that employers cannot decide whether a divorce is genuine. The original lawsuit by Continental had been dismissed.
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San Diego divorce attorneys understand the importance of determining how retirement funds are divided in a divorce. For many couples, retirement funds represent their biggest asset. Failure to properly secure your share of retirement funds during property division can impact the rest of your life. Too many spouses will not have time to rebuild adequate funds to maintain their standard-of-living in retirement.

An attorney for the pilots called the decision "a victory for employee privacy rights -- nobody wants their employer looking into their divorce." The pilots were fired or resigned and are now suing Continental in federal court in Houston, claiming wrongful termination and interfering with their pension rights.

The airline claimed it paid out as much as $11 million in distributions that the pilots had assigned to their spouses. The airline claims that the pilots -- seven men and two women -- got divorced in states that assigned nearly all of the retirement benefits to their former spouses, who then demanded payment.

Continental is now owned by United Continental Holdings Inc. The airline claimed the pilots were worried the airline might turn over pension obligations to the government -- as many airlines have done in the past decade -- leaving them with reduced benefits.

The ruling noted a pension plan might be able to recover payment if a court ruled a divorce was a sham -- but that did not happen in this case.

There are other important division-of-property considerations aside from retirement funds. In many cases, the marital home is a large asset, although that is an issue that has become more complex since the economic downturn. Obtaining a valuation of marital home is also critical. Is a home valued at the purchase price or the current market value? The former may leave a spouse with a paper asset while the latter provides only a liability in cases where the marital home is underwater.

Year-end work bonuses and taxes are two other often overlooked issues. Inheritance and the value of a college degree earned during the marriage may also warrant your San Diego divorce attorney's careful attention.

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