October 2012 Archives

Demi Moore and Ashton Kutcher's Divorce Battle

October 30, 2012

Demi Moore, 49, and Ashton Kutcher, 34, garnered an enormous amount of media attention when they married in September of 2005. The spotlight continued to follow the couple when rumors of Kutcher's infidelity began to spread. Allegedly, Kutcher cheated on his wife with two party girls Brittney Jones and Sarah Leal. Regarding her husband's infidelity, Moore released the following statement "as a woman, and a mother and a wife, there are certain values and vows that I hold sacred, and it is in this spirit that I have chosen to move forward with my life."

Moore and Kutcher are taking an interesting approach to the divorce process. Although the couple split in 2011, neither party has filed a divorce petition. Rumors have now spread that Moore and Kutcher were never legally married. However, the more likely explanation is that the couple is attempting to reach a settlement before a petition for dissolution of marriage is filed. It seems the former couple cannot agree on how to split up the enormous $290 million fortune they amassed. Unlike in the Brand-Perry divorce, Kutcher and Moore have earned a relatively similar amount. According to reports, Moore is worth $150 million while Kutcher is worth $140 million.

Under the California Family Code, the court must divide the community estate equally. The community estate consists of all earnings and accumulations acquired by either party during marriage. It does not however include property held before marriage or acquired during marriage as a gift or inheritance. Thus, the court will only be permitted to divide the money earned by both parties during the marriage.

Additionally, the existence and validity of a premarital agreement may affect the outcome of the property settlement. According to reports, the parties did sign a premarital agreement. However, it appears that Moore is still arguing for her share of Kutcher's wealth due to his public infidelity. If the premarital agreement was well-crafted, Moore may have an extremely difficult time getting it overturned in court. If Moore and Kutcher cannot come to an agreement regarding the division of the marital estate, they will have to put their finances in the hands of a judge.

Although Kutcher's public infidelity humiliated Moore, California is a no-fault state. A California Family Court judge will not take into consideration Kutcher's romp with two party girls when he or she divides the Moore-Kutcher community estate.

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.

Domestic Violence and Spousal Support in San Diego

October 25, 2012

440262_arguing.jpgIn San Diego, domestic violence can have a tremendous impact in divorce proceedings, especially in cases involving spousal support. As we have previously blogged, spousal support can be classified as "temporary" or "permanent." Two different standards are used to determine support based on its duration. Temporary support is usually determined using the guideline spousal support formula and permanent support takes into consideration the Family Code section 4320 factors. The role domestic violence plays in an award of spousal support is dependent on the type of support.

Temporary Spousal Support: In an award of temporary spousal support, the Family Code section 4320 factors are normally not controlling. However, there is one statutory exception to this rule. The trial court must consider 4320(i) in setting temporary spousal support. Section 4320(i) states that the court must consider, "documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party." Despite this clear exception, the code is ambiguous as to the terms "domestic violence" and "documented evidence." Due to public policy concerns against requiring a victim of violence to provide financial support to his or her abuser, the court will consider violence amongst the parties even when making a temporary order.

Permanent Spousal Support: Like in a temporary spousal support situation, the Court must consider the 4320 factors in deciding the issue of permanent spousal support. Also like in a temporary spousal support situation, the court must consider any documented evidence of a history of domestic violence.

Documented Evidence of a Conviction of Domestic Violence: Family Code section 4325 provides, "In any proceeding for dissolution of marriage where there is a criminal conviction for an act of domestic violence perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding, or at any time thereafter, there shall be a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse otherwise awardable pursuant to the standards of this part should not be made." Although section 4320 permits the court to consider "any documented evidence of a history of domestic violence" and does not require a criminal conviction, section 4320 only permits the court to consider the evidence. Section 4325 has a much more powerful effect because it creates a presumption that an award of spousal support should not be made to an abusive spouse. One policy motivation behind this distinction is the hope that more victims of domestic violence will pursue criminal convictions against their abusers.

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.

Temporary v. Permanent Spousal Support

October 23, 2012

952313_gavel.jpgThroughout Del Mar and San Diego County, many divorcing parties are unclear about the concept of "alimony." In California, the Family Codes and courts use the term "spousal support" instead of "alimony" to reference payments made from one spouse/former spouse to another for his or her financial support. Most parties are aware of the fact that once the divorce is over the court can order one party to pay the other spousal support. However, considering that the divorce process can take years for some litigants, many parties are unsure of what they should do in the mean time.

Temporary Spousal Support: Under the California Family Code, San Diego courts have the authority to make temporary spousal support awards. These awards are called "temporary" because they last only until the divorce is finalized. The purpose of a temporary spousal support award is to maintain the status quo until the time of trial and is intended to be a short-term solution. Based on the limited funds of the parties, it may be impossible for both to maintain the status quo of the marriage. Thus, in this situation, the judge will make an award as close to the status quo as possible. The quick and expedient method of calculating temporary spousal support is called the "guideline" formula. In order to determine guideline support, the judge will input various factors such as the incomes of the parties, tax filing status of the parties and any tax deductions and the formula will produce a guideline amount of support. However, the actual support awarded is within the family court judge's broad discretion.

Permanent Spousal Support: "Permanent" spousal support is a misnomer. Often, even in long-term marriages, spousal support is not automatically "permanent." Permanent spousal support simply refers to the spousal support award made at the conclusion of the divorce proceedings (as opposed to temporary support). In order to set permanent spousal support, the court is not permitted to simply use the guideline formula to come up with an amount. Instead, the family court judge will consider all of the factors listed under California Family Code section 4320. These factors include but are not limited to: the paying spouse's ability to pay, needs of the parties based on the marital standard of living, health of the parties, the obligations and assets of both parties, the tax consequences of support, and any documented evidence of domestic violence. Additionally, the court may consider "any other factors" which would produce a "just and reasonable" result.

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.

When Will our Assets be Valued?

October 18, 2012

In San Diego, the divorce process can range between six months and several years. This significant time span can have a serious impact on value of assets. Considering the volatility of the stock market and real estate prices, the date of valuation can become a contested issue. Consider the following example: During marriage Husband created and operated a business. After separation, Husband continued to expend efforts and the value of the business grew substantially. By the time of trial the value of the business is triple than at the time of separation.

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All property acquired and all income earned during marriage is community property. Upon divorce, both parties have a one-half interest in the community's portion of an asset. Because the business was created during marriage and Husband expended efforts in the business during marriage, a portion of that business is community property. Therefore, Wife will argue that for the purposes of division, the business should be valued at the time of trial. Husband, on the other hand, will argue that the business should be valued as of the date of separation.

Under California Family Code section 2552, "for the purpose of division of the community estate upon dissolution of marriage or legal separation of the parties...the court shall value the assets and liabilities as near as practicable to the time of trial." Thus, as a general principle of law, assets are valued at the time of trial. However, the court may, for good cause, value all or any portion of the assets and liabilities at a date after separation and before trial to accomplish an equal division of the community estate in an equitable manner.

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California courts have determined that good cause exists to value an asset at the date of separation rather than the date of trial if the increase in the fair market value was due to the owner's personal services, not capital assets. This means that if the value increased due to market fluctuations or other outside factors, the asset will be valued at or as near as possible to trial. However, if goodwill, accounts receivable, or other efforts by the owner lead to an increase in value, the asset will be valued at the date of separation.

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 Gifts in a Del Mar Divorce

October 16, 2012

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Following their divorce, actress Katie Holmes reportedly kept millions of dollars worth of gifts given to her by her husband, Tom Cruise. These gifts include valuable jewelry, handbags, and other luxury items. Although many speculated that she did not receive a relatively substantial portion of Cruise's estate in the property settlement, she may have been satisfied with keeping the gifts. Throughout the divorce proceedings, one of Holmes' most pressing concerns was the financial wellbeing of her daughter, Suri. Luckily for Suri, she will be able to inherit millions in gifts given by her father to her mother as long as Holmes does not decide to sell them first.

Often in Del Mar and throughout San Diego County parties are unclear about the role gifts play in divorce. There are two main contested issues regarding gifts in divorce proceedings. First, gifts between spouses and second, gifts of community property from one spouse to a third party.

Gifts between spouses: Under California Family Code section 852, a "transmutation" of personal property is not valid unless made in writing. A transmutation is the conversion of one asset from community property to separate property or from separate property to community property. Under the Code, this can only be done by written agreement. However, one exception to this rule concerns gifts between spouses. A gift of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature from one spouse to the other can be transmuted absent written agreement as long as it is not substantial in nature taking into account the circumstances of the marriage. This means that the court will consider the standard of living of the parties in order to determine whether the gift was "substantial." Considering the multimillion dollar net worth of Tom Cruise, a $100,000 gift to his wife is not substantial.

Additionally, as we have previously blogged, where a gift is given in contemplation of marriage (such as an engagement ring) and the donee refuses to enter into the union, the donor may recover the gift.

Gifts from spouse to third party: During marriage, both spouses have equal rights to manage community property. However, the California Family Code does not recognize "gifting" as a management power. Thus, one spouse is not permitted to give a gift of community property to a third party without the consent of the other. In fact, a gift by one spouse during marriage of community property may be entirely set aside by the other. This right to set aside unilateral gifts of community property even survives the death of the gifting spouse.

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.

Child Protective Services Visits Honey Boo Boo

October 4, 2012

Child protective services ("CPS") recently visited the seven-year-old star of TLC's Here Comes Honey Boo Boo, Alana Thompson. The controversial show depicts the life of a young child on the pageant circle. However, despite the glamorous style of a pageant princess, Alana's family is always cutting corners to make ends meet. While many viewers criticize the show as "offensive" and "exploitative," it managed to garner 2.2 million viewers. The show caught the attention of CPS with "go go juice." Go go juice is a concoction created by Alana's mother, June. It consists of Mountain Dew, and Red Bull. While under the "influence" of go go juice, YouTube videos surfaced of Alana dancing on a table at a bar for dollar bills.

June defended her daughter's behavior by saying "at least it [the bar] wasn't one of those sleazy ones." The child abuse charges were eventually dropped after the court appointed June an attorney. Although it is not unusual for children in the rural part of Georgia, where the Thompson family lives, to consume road kill or eat junk food exclusively, CPS was concerned about Alana dancing on a bar table for money. Neighbors scrutinized the Thompson lifestyle long before Here Comes Honey Boo Boo aired; however, the visit from CPS really raised eyebrows in the neighborhood.

Fortunately, in Alana's case, the court found no reason to continue investigating the Thompson family. Under California Family Code section 3020, "the legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court's primary concern when making any orders regarding the physical or legal custody or visitation of children." The overriding concern of the family court system is the best interest of the child and any domestic violence in a household where a child resides or child abuse is detrimental to a child. Under California Family Code section 3027, the court has the ability to take temporary steps to protect children while further investigation is conducted. Not only does the court have the ability to issue restraining orders but also it may request that the local child welfare services agency conduct an investigation.

Judges are not the only people who can engage child welfare services to investigate the welfare of a child. In San Diego, any person can call the child abuse hotline and provide a referral to a Hotline social worker who will do an immediate assessment of the referral. If this social worker determines that a child is at risk, a social worker is assigned to investigate the situation. In particularly dangerous cases, the social worker and/or enforcement officer may visit the home within a few hours of receiving the referral.

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.

Can Parents Waive Their Parental Rights?

October 2, 2012

696930_love.jpgIn California, the Family Court System is designed to encourage parties to settle disputes and reach agreements regarding contested issues. Specifically in Del Mar and throughout San Diego County parties are required to attend a Mandatory Settlement Conference before their case can proceed to trial. However, despite this strong public policy towards settlement, the California Court of Appeal has clearly drawn a line between what parties can and cannot agree to.

In this Court of Appeal case, Mother (Kristine) first filed a petition at the trial court level to establish a parental relationship between her son, Seth, and his biological father. Since the parties were not married at the time of conception or birth, there was no presumption that Father (David) was in fact Seth's father. Once the court determined, through the use of a paternity test, that David was Seth's biological father, the parties entered into a stipulation. A stipulation is an agreement that can be filed with the court and creates enforceable orders. Kristine and David stipulated that David consented to terminate all of his parental rights and Kristine agreed to waive any claim for future child support. In short, the parties agreed to terminate David's parental rights and responsibilities.

Over the objection of Minor's counsel, the trial court was persuaded by the parties' argument that they had the right and ability to contract regarding their respective parental rights. David argued that proceedings to terminate parental rights are not necessarily linked to a pending or contemplated adoption therefore he should not be prohibited from terminating his on the basis that Seth would only be left with one parent. The trial court was also persuaded in part by case law in which the court upheld agreements made by parents prior to conception of a child such as in artificial insemination and surrogacy cases.

Ultimately, on appeal, the trial court's decision was overturned. Although the Court of Appeal agreed that the parties had a compelling interest in deciding how parental rights should be allocated post-birth, it ruled against them. The Court based their ruling on the child's best interest. Because the establishment of the parent-child relationship is the most fundamental right a child possesses, the Court viewed a voluntary termination of parental rights (absent exigent circumstances) as equivalent to depriving the child of a basic constitutional right. The Court held the position that a waiver of parental rights is only an agreement of convenience for the parties and does not consider the best interests of the child. Here, Kristine would not be inconvenienced if David ever changed his mind and wanted to be a part of Seth's life and David would not be inconvenienced if Kristine changed her mind and sought child support. Thus, as evidenced by this decision, the best interest of the child is a powerful standard that trumps the parties' ability to make agreements regarding parental rights.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody and/or paternity. San Diego Family Law Attorney Nancy J. Bickford iis 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.