July 2012 Archives

New California Legislation to Allow More Than Two Parents

July 25, 2012

832858_-paper_family_ii-.jpgABC's Modern Family depicts a different type of family in an attempt to emulate a more accurate picture of the average American household. Modernly, many families are not simply made up of a heterosexual couple raising a few children in a suburban neighborhood. Modern Family illustrates the struggle same-sex couples have adopting children, the difficulties of living in a blended family, and coping with divorce. Because of the new changes emerging in American households, parenting of children has become more complicated. Children do not necessarily only have two parental figures in their lives anymore. California family legislators have begun to recognize the changes occurring and have proposed a new law that could expand the view of traditional families.

Senator Mark Leno of San Francisco has proposed new legislation that has the potential to give San Diego residents more parenting options. Under current laws, a child may only have two legal parents. The proposal will create the possibility for a child to have a parent-child relationship with more than two parents. Although the number of permitted parents may change, the same standard of awarding custody and visitation would apply. The court will award custody and visitation of the child amongst all the parents in accordance with the best interest of the child.

The proposal's controversial nature has garnered significant criticism from conservative groups founded on the belief that two parents, one mother and one father, should raise a child. Opponents of the proposal argue that it is merely a means to further the same-sex marriage movement. This argument is fiercely contested by the bill's proponents who claim it has nothing to do with "culture wars" and is solely based on the best interest of the children involved in custody disputes. Additionally, opponents claim that the bill would lead to more instability for children as a result of increased conflict.

The types of three-parent scenarios anticipated by the proposed legislation include: a same-sex couple and a surrogate who carried the child and a mother who remarries and wants her child to be adopted by her new husband and still maintain a relationship with his or her father. The bill was proposed in the wake of a California appellate court decision involving a child with two mothers. The child's two parents both became unavailable when one mother was incarcerated and the other was hospitalized. Under current California law, the child's father was unable to act on her behalf because the law only recognizes two parents. Proponents of the law argue that it will gives judges more options in order to act in the best interest of the child. By removing a legal barrier, the judge will have the ability to create new custody arrangements that may better protect the child's needs. It is important to note that the legal definition of a "parent" will remain the same.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Real Housewife Divorce

July 24, 2012

Real Housewife of Orange County Vicki Gunvalson is joining her Beverly Hills counterpart Camille Grammar as a recent blonde divorcé. Vicki filed for divorce from her husband Donn in October 2010 after 17 years of marriage. Although the couple continued to live together throughout the divorce process they are adamant that reconciliation is not in the works. In fact, Vicki has been dating a new man, Brooks Ayers.

The Gunvalson's agreed to proceed with their divorce using mediation. Currently, the two are still working out all the details of their divorce settlement but have reached an agreement regarding one very large asset. The family home, shown often on The Real Housewives of Orange County, will be awarded solely to Vicki. Vicki and Donn attempted to sell the 5,400 square foot mansion for $2.695 million last year. Although this asset is just one consideration in a portfolio likely filled with numerous assets and debts, it is a victory for Vicki.

Under California community property laws, the court will generally apportion the community estate as equally as possible. Considering the length of the Gunvalson's marriage and the legal repercussions of a long-term marriage in California, the two likely have amassed a considerable community estate to be divided. As a general rule, each asset is individually divided in half. In the case of a mansion like the one involved in the Gunvalson divorce, the sale of the mansion would likely result in the most even distribution. After the sale, the court could easily divide the proceeds in half.

As an exception to the general rule, the court may award the family home entirely to one spouse if the couple's children would be uprooted by the sale of the home. The court will then offset the award of the home to one spouse with other property in the estate. Thus, the division of the total estate is equal although particular assets may be awarded disproportionately. Because the Gunvalson's have decided to mediate their divorce, they have the option to divide the property however they wish regardless of community property presumptions. Unlike in the Grammer divorce, the Gunvalson's are not in a rush to terminate their marital status, they are slowing working through each issue in the mediation process.

The couple also has the option to decide any spousal support to be paid by one spouse to the other. Spousal support was a hotly contested issue shown on the Real Housewives as Vicki fought against paying any to Donn. Mediation allows the couple to take more control of the divorce process rather than leaving decisions open to the judge's discretion. A family court judge is guided by basic principles of California family law; however, he or she has wide discretion to apply these principles.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

The Relationship Between Premarital Cohabitation and Divorce

July 20, 2012

858607_dora_and_grant.jpgToday, for a variety of reasons, more and more San Diego couples are cohabitating before marriage. What used to be incredibly taboo has now become the norm for an increasing number of young adults. The National Marriage Project conducted a nation-wide survey in order to garner the opinion of 20-somethings regarding cohabitation and marriage. According to the survey, approximately half of the participants agreed with the following statement, "You would only marry someone if he or she agreed to live together with you first, so that you could find out whether you really get along." In addition to agreeing with this statement, two-thirds of the participants stated that they thought cohabitation before marriage was conducive to avoiding divorce. Considering these generally accepted statements, the statistics shockingly indicate that premarital cohabitation is a better predictor of divorce than a happy marriage.

Dr. Meg Jay's article in the New York Times called this phenomenon the "cohabitation effect." Originally, the usually high divorce rate among the young cohabitating couples was attributed to their liberal views and openness to the idea of divorce in general. However, recent research suggests that the risk of divorce may be inherent in premarital cohabitation itself.

One common scenario involves a couple that moves in together quickly because sharing expenses is an economical and convenient arrangement. This decision might have been made without any communication between the parties. In fact, it was not uncommon for the research participants say that moving in with their significant other "just happened." Dr. Jay suggests an open dialogue about each parties' motivation for cohabitating before moving in together. Although the living arrangement is very easily entered into, a problem arises when one partner wants to get out. Some couples continue to work on a relationship that would have ended much sooner. The commitment of an apartment/house, furniture, pets, and other joint-purchases make a decision to end the relationship much harder and complicated.

When the relationship does end, many couples have acquired a variety of assets during the years of cohabitation. Under the principles of California family law, unmarried couples do not enjoy the same property rights as lawfully married spouses. Thus, the law of contracts will apply to any agreement made between cohabitating parties. Since the law of contracts governs, the parties may contract any arrangement they like, within legal limits. If desired, a cohabiting couple may even contract to treat their respective interests as if they were married and the law of community property governed. Cohabitation agreements are becoming an increasingly popular way to protect unmarried parties who decide to move in with their significant other.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

How Long Do I Have to Pay Spousal Support?

July 17, 2012

219295_inquisitive.jpgMany Del Mar divorcés have unanswered questions following the termination of divorce proceedings. The court may make many orders regarding child support, spousal support and property division. While the duration and purpose of child support is clear, many ex-spouses are left wondering how long spousal support should continue. The primary purpose behind an award of spousal support is to ensure that the supported spouse has adequate income for his or her basic needs and provide a lifestyle as consistent as possible to the one enjoyed during marriage. Spousal support is determined upon consideration of a number of factors, primarily the need of the supported spouse and the other's ability to pay.

There are two types of spousal support awarded by the court, temporary support and permanent support; however, the terminology is misleading. Temporary support is awarded during the interim period between when the divorce is filed and final. Permanent support is ordered at the conclusion of the case and in fact is not intended to be permanent. If a marriage lasts fewer than ten years, usually spousal support is ordered for half of the length of the marriage. If the duration of the marriage was ten years or longer, there is no general rule of thumb for the termination of spousal support.

The paying spouse however does not have an absolute duty to provide indefinite support. The Gavron warning is a fair warning given to a spouse who has been awarded spousal support that he or she is expected to become self-supporting within a reasonable time. The "reasonable time" element is highly subjective and within the great discretion of the court. Generally, the intent behind the warning is to encourage the spouse to become financially independent by seeking employment or another source of income. The Gavron warning was codified in California Family Code section 4330(b), "when making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs...unless the court decides this warning is inadvisable."

In deciding whether or not to deliver a Gavron warning, the court will also take into consideration all the other factors listed under California Family Code section 4320. These factors give the court guidance when ordering spousal support and include: (1) the earning capacity of each party, (2) the lifestyle of the couple during marriage, (3) the duration of the marriage, and (4) any documented history of domestic violence. As implied by the statute, the court will take into consideration the individual circumstances of each case. Thus, if the court does not believe it is appropriate to deliver the Gavron warning, it is not required to do so.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Celebrity Divorce History - Tom and Katie

July 11, 2012

After five years of marriage Katie Holmes filed for divorce from husband Tom Cruise on June 28, 2012. However, the most surprising part of this celebrity divorce is the quick resolution. Just eleven days after filing the initial paperwork, Katie's attorney announced that the couple reached a final settlement of the case. TomKat have been hesitant to comment on the split, but have released a statement regarding their six-year-old daughter, Suri. The vague statement expressed a desire to accomplish what is in Suri's best interest, keep private family matters out of the press, and explained the mutual respect Katie and Tom have for each other's respective beliefs. This reference to religious beliefs might be an indication that Tom's emersion in the religion of Scientology may have contributed to the split.

There is much speculation surrounding the quick and secretive manner in which the divorce was filed. The debate centers on whether Katie was trying to escape Scientologists or the media frenzy that surrounds public figures. The fact that the couple reached such a quick settlement tends to establish that Katie was not working on ending the marriage alone. Other experts speculate that a prenuptial agreement may have hurried the process along. Katie's quick moves took careful planning over many months. Rumors indicate that she obtained a disposable phone and many laptops in order to keep discussions with her attorney private.

All of the stealth may have been a strategy imposed by Katie to get what she wanted most out of the divorce, sole custody of Suri. When the divorce was initially filed, Katie sought sole custody. However, it seems that the couple settled on primary legal custody to Katie. A major part of the negotiations surrounded Suri's future upbringing and care. It is important to note that the official settlement has not been released or made public.

Like in California, a person must satisfy the residency requirements before filing for divorce in the State of New York. Katie and Tom have lived all over the globe and therefore may have a difficult time establishing residency in any state. However, if a husband and wife were married outside of New York and never lived together as husband and wife in the state and the grounds for divorce did not occur in the state, one spouse must be a resident and have continuously resided in the state for at least two years prior to filing for divorce. Compared to California's six-month residency requirement, New York law is far more complicated. Interestingly, Katie spent time in New York each month for the last two years. The frequent contact with the State of New York is speculated to be the foundation of residency for divorce purposes.

As we have previously blogged, in California, there is a required six-month waiting period after a divorce is filed before marital status is terminable. In New York, there is no such requirement. Thus, after judgment is entered on the TomKat divorce, which should be soon considering the "final settlement," either party is free to legally remarry.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

The Division of Stock Options at Divorce

July 8, 2012

Often in San Diego, one or both spouses are awarded stock options from their employer. A stock option gives the employee a right to purchase stock in the company at a later time and for a specified price. All property acquired by either spouse during marriage is presumed to be community property. If a stock option is awarded and vests during the marriage, it is community property and each spouse is entitled to a one-half distribution of the asset. What if a stock option is awarded during marriage but vest after the date of separation? The community still has an interest in the stock option to the extent it was acquired during the marriage as earnings of the spouse. In determining the community portion of the stock option, the court will examine the primary intent of the employer in awarding the stock options.

1259850_calculator_3.jpg

If the court determines that the stock option was awarded primarily to reward the spouse for past services, the court will use the Marriage of Hug formula to calculate the community's interest. In this case, the stock options are a form of deferred compensation and thus the community property earnings of the spouse and subject to division upon divorce. The court will multiply the value of the stock by a fraction. The fraction represents the total number of years the spouse worked until exercise of the stock option and the total number of those years in which he or she was married. Thus, the community's interest will be proportional to the number of years the parties were married between the beginning of employment and the exercise of the option. Each spouse will be awarded a one-half interest of the community portion, and the employee-spouse will also be awarded the separate property portion.

Continue reading "The Division of Stock Options at Divorce" »

How Education is Divided Upon Divorce

July 5, 2012

1193101_grad_cap.jpg

According to the data released for law school graduates in 2011, San Diego law students graduate with one of the highest debts in the country. California Western School of Law and Thomas Jefferson School of Law take spots two and three respectively on the list of the average indebtedness incurred. 89% of California Western and 94% of Thomas Jefferson graduates incurred debt during law school. The average debt incurred for a California Western education is $153,145 compared to $153,006 for a Thomas Jefferson education. With such high debts to consider, married students should know how this debt would be allocated upon divorce.

As a general rule, a debtor spouse's separate property and all of the community property are liable for debt incurred before or during marriage. However, the non-debtor spouse's is not liable for this debt. The California Family Code contains several special rules specifically regarding education and training. As an exception to the general division of debt, any student loan debt outstanding at divorce is assigned solely to the educated spouse. If a spouse is married when he or she receives his or education, community funds may have been used to pay for the education.

Education and training acquired during marriage is not treated as community property. Therefore the non-educated spouse can claim no interest in the education of the other. Instead, upon divorce, the community may be entitled to an equitable right to reimbursement with interest when: (1) community funds are used either to pay for the education or training or to repay a loan related thereto and (2) education or training substantially increased the earning capacity of the spouse. Therefore, in the case of law school debts, if the non-student's earnings during the marriage contribute to the student's education, the community may be entitled to repayment for this amount.

1258281_glasses_1.jpg

The educated spouse may advance some defenses to reimbursement. If both spouses received a community-funded education then the community would likely not be entitled to reimbursement. Reimbursement may be reduced or modified if the community has already substantially benefitted from the education or training. There is a rebuttable presumption that the community has already benefitted if more than ten years have elapsed between the contributions and the initiation of divorce. This presumption enables the court to allocate an equitable division of property upon divorce. It assumes that the educated spouse has already returned the educations expenses to the community in the form of increased earnings.

If the education or training reduced the need for spousal support then the community may not be awarded reimbursement. Under this equitable theory, the educated spouse must be more financially self-sufficient as a result of the education. For instance if the spouse had low to no income before he or she went to school and then earned a higher salary as a result of his or her qualifications he or she has a reduced need for spousal support.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

What If You Were Never Legally Married?

July 2, 2012

What happens if a San Diego a marriage turns out to be invalid? This can happen in a variety of ways. For instance, one spouse may be legally married at the time of the current marriage was entered into. This can be the result of deception on the part of the already married spouse, a mistake during the prior divorce proceedings, or a misunderstanding regarding the requirements of divorce laws. The "innocent spouse" is not legally married but may have rights as a putative spouse.

1384053_wedding_rings_-_african_american.jpg

A putative spouse is not lawfully married, but has a good faith belief based on objectively reasonable grounds that he or she is married. It is important to note that the determination of "good faith belief" is evaluated using subjective criteria. Therefore, the spouse must sincerely believe that he or she is married. Further, this belief cannot be based on assumptions or facts that an ordinary person would consider unreasonable. Thus, the standard as a whole is a hybrid: the belief of a valid marriage itself is evaluated using the putative spouse's subjective belief; however, the reasonableness of that belief is evaluated objectively.

However, once he or she learns that her marriage is invalid, she no longer accrues putative spouse property rights. The rights of putative spouses also extend to putative domestic partners. Under California law, two parties may register as domestic partners only if they are (1) a same-sex couple or (2) elderly opposite-sex couple receiving Social Security benefits.

If a putative spouse is not legally married, then what are the benefits? Putative spouses do not have the same rights and obligations as lawfully married spouses under the California Family Code. However, there is an exception specifically regarding property rights. A putative spouse may be entitled to similar property, spousal support, and attorney fee awards as a lawful spouse. Property that would normally be characterized as community property or quasi-community property in a valid marriage is deemed "quasi-marital property." In a proceeding to dissolve the putative marriage, the property discussed above is divided as if it were community property. Community property is generally divided equally between the parties.

If the spouse does not have a good faith belief based on objectively reasonable grounds that he or she is married, the parties may be classified as unmarried cohabitants. Unmarried cohabitants are persons who reside together but who are neither lawful spouses nor putative spouses. Therefore, unmarried cohabitants are not entitled to property rights automatically. Instead, contract principles are applied to agreements between unmarried cohabitants. Contracts between unmarried cohabitants will be upheld so long as the consideration given does not violate public policy. When a contract is based solely on the exchange of sexual services, it violates public policy.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.