June 2013 Archives

A Divorce Attorney's Perspective on Moving Out of the Marital Home

SkinnyGirl Bethenny Frankel New York ApartmentYou may remember our previous blog highlighting the celebrity divorce of Bethenny Frankel, founder of SkinnyGirl Cocktails, and Jason Hoppy. Well, their bitter divorce battle continues to grab entertainment headlines, which report that the soon to be ex-couple is actually still living together in their five million dollar New York City apartment with their 3-year old daughter, Bryn. As if a divorce isn't already stressful enough, try living in the same household as your soon- to-be-ex while going through the often long, drawn-out divorce proceedings. Frankel tells PEOPLE, "My living situation is very, very stressful...I don't think it's very healthy for anyone involved. It's very upsetting. You just have to endure it."

It may seem puzzling why Frankel would continue to endure the stress of sharing an apartment with her soon-to-be-ex when she can clearly afford to move into her own place and not have to face Hoppy on a day-to-day basis. Perhaps her reasoning is related to two main concerns related to moving out of the marital home while the parties are going through the divorce process. The first concern is whether moving out of the home will affect a party's claim to ownership when assets are being divided down the road. The second concern is whether moving out could adversely affect a party's standing in his or her battle for primary custody of the child or children.

how will moving out affect my divorce?The martial home is likely a significant asset, if not the most significant asset in many divorces. So it's reasonable that divorcing spouses would worry that "abandoning" the home would make it more difficult for the one who leaves to make a claim on the property in a divorce settlement. If both claim ownership of the home then would that ownership be jeopardized if one party moves out? As California divorce attorneys know, if the home was acquired during marriage then it remains a marital asset subject to distribution regardless of who remains in the home during the divorce process.

If money is not an issue, then many divorce attorneys often advise clients to physically separate when going through a divorce, which usually means moving out of the marital home. A little distance can often times do a world of good for parties who are going through the divorce process. However, when a party does decide to move out of the marital home, there needs to be some serious discussions about the status of the marital residence. Aspects that need to be addressed include: the care, maintenance and financial obligations regarding the home in the interim, items left in the home, and whether the party left in the martial home will have exclusive use and possession of the home. The parties and their divorce attorneys need to discuss the whether the spouse who remains in the home has an expectation of privacy or if the spouse who moved out will be entitled to some use or enjoyment of the home after moving out.

effects of moving out of the marital residence in divorceAnother concern regarding moving out of the marital home is with respect to child custody. Since both Frankel and Hoppy want primary custody of their daughter Bryn, they might be concerned that moving out of their NYC apartment could adversely affect their standing in their battle for primary custody. Until a parenting plan is in place, "abandoning" the marital home could indicate that parent's lack of interest in the child's daily life if the child remains in the marital home with the other parent. This concern can potentially be resolved by establishing an interim custody schedule which ensures that the parent leaving the marital home will have frequent and continuous access to the child. The parent who moves out could also have his or her divorce attorney argue that the purpose of moving out was to reduce ongoing marital conflict out of concern for the child's well-being throughout the divorce proceedings.

Nonetheless, many San Diego divorce attorneys will generally advise clients with custody disputes to just stay in the marital home together if possible, like Frankel and Hoppy are doing. First, it helps to avoid creating a potential new status quo regarding the "primary residential parent" where the divorce process is taking an extended period of time. And second, when the parties continue to live together under the same roof emotions tend to get heated. As a result, there may be more incentive to conclude the divorce quicker by negotiating a divorce settlement.

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Is There a Limit On What Child Support Payments Can Be Used For?

Basketball - Nash Divorce and Child SupportLos Angeles Lakers star Steve Nash has allegedly been in a bitter child support battle with his ex, Alejandra Amarilla. TMZ reports that Nash allegedly doesn't want to pay up because he is worried that Alejandra, who is an excessive spender, will waste the child support payments by spoiling the kids with expensive luxuries that they do not need. If ordered to pay child support, can Nash limit what Amarilla uses the child support payments for?

Child support payments can be used for anything that is considered "necessary" for the child's care and well-being. This generally includes things such as the child's food, clothing, school expenses, after-school expenses and toys. Costs for rent or mortgage, utility bills and other household items are also typically justified as going towards the basic care of the child.

However, California (like a majority of the states) does not require the parent who receives the child support payments to give an accounting to the other parent of how the child support money is spent. Only ten states allow courts to demand an accounting of expenses and spending of child support money received in ten states (Colorado, Delaware, Florida, Indiana, Louisiana, Missouri, Nebraska, Oklahoma, Oregon and Washington). Also in Alabama, courts are allowed to demand such accounting under certain circumstances.

Child Walking - Child Support Modification San DiegoHere in California, it is merely presumed that the child support money is spent on the child. Thus, the parent who is making the child support payments does not have much say regarding how the money is used once it leaves their hands.

But what happens when the parent paying the child support suspects that the money is being used not only to care for their children but that it is also going towards the other parent's personal needs? Unfortunately, not much can be done unless the child's needs are actually being neglected or ignored. The payor parent won't be able to seek a modification in his or her child support order from the court without significant evidence that the child's needs are not being met by the parent who receiving the child support payment.

While the parent paying spousal support may want reassurance that their hard-earned dollars are actually going towards their children's needs, rather than their ex's luxuries, unfortunately the law in California is not set up to provide such reassurance. So if Nash is indeed ordered to pay child support to Amarilla, it looks like he won't have much support from the family law court in keeping tabs on Amarilla's spending.

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Tips from the Bench - Appearing in San Diego Family Courts

Courthouse - San Diego Family LawyersSan Diego Family Courts can be intimidating for those unfamiliar with appearing before a judge. Whether appearing with a divorce attorney or in "pro per" (an unrepresented party), it is important for family law litigants to be familiar with the "dos" and "don'ts" of San Diego Family Courts. The following is a few tips on how to earn favor with local family law judges when appearing before them.

1. Be Respectful

texting in courtThe most important thing to remember when appearing in court is to be respectful to every individual you encounter, including the opposing party and/or attorney. Judges in a divorce proceeding are not referees and do not want to witness parties arguing or fighting with each other in open court. Therefore, it is imperative to act with civility in the courtroom by giving every person a chance to tell his/her story without interruption or argument.

Another way to respect the court and legal process is to avoid the use of cell phones and other electronic devices in the courtroom. Judges say that cell phones on vibrate are just as distracting as a cell phone ringing. So it is best to put your cell phone on silent, or better yet, turn it completely off when entering the courtroom. Further, texting in court is not advisable.

2. What to Wear and What Not to Wear

how to dress in san diego family courtWearing the appropriate clothing to court does not go unnoticed by the local family judges. When appearing in court, it is not necessary to wear a full suit or dress outside of your comfort zone. However, judges appreciate when parties are not distracting with their clothing and they dress modestly. Dressing conservatively is also another way to show respect to the court.

3. Facial Expressions, Commentary and Body Language

In San Diego Family Law courtrooms, the judges sit at a particularly advantageous vantage point and can see everyone's behavior at all times. Judges are always watching the litigants, the attorneys, and even all of the people sitting in the audience. According to family law judges, it is incredibly distracting if any person makes facial expressions, nods, shakes his/her head, raises his/her hand, and otherwise takes attention from the proceeding. Remaining still and attentive in a family law hearing may be easier said than done. It is often difficult for parties to remain calm if the opposing attorney or litigant is telling the judge information the party does not want public or does not believe to be accurate. However, in such circumstances, waiting patiently for your turn is greatly appreciated by the judge.

In all situations local family law attorneys should lead by example and demonstrate civil and appropriate behavior for litigants in court. If you have a question regarding courtroom decorum, please ask an experienced family law attorney.

Learn more about the divorce attorneys at the Law Offices of Nancy J Bickford, APC

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The Second Wives Club Calls for Spousal Support Reform

Woman on beach - San DiegoSpousal support is an aspect of family law that divorce attorneys frequently answer questions about. In states such as Massachusetts and Florida, second wives are lobbying for spousal support legislation reform regarding "permanent" spousal support (commonly referred to as "alimony"). To clarify, in California, "permanent" spousal support is not a guarantee of a lifetime of support. However, it is only a spousal support award made at the conclusion of a divorce case. In contrast, "temporary" (or pendente lite) support is a spousal support award made during the pendency of the proceedings.

Because of the extremely broad and generous spousal support statutes, many second wives are reaching into their own pockets to contribute to the support of their husband's first wife. The second wives argue that they too have been sentenced to a lifetime of spousal support payments which hinder their ability to plan for retirement, prevent them from assisting their children and grandchildren financially, and generally reduce their overall standard of living.

In many states, the family code and court rulings permit the Court to consider the income or assets of a second spouse where the income of such spouse contributes to the support of the household, giving the paying spouse more of his own income with which to satisfy spousal support obligations. Under California Family Code ยง 4323, family courts are prohibited from considering the income of the supporting spouse's subsequent spouse when determining or modifying spousal support. Despite this blanket prohibition, cases which held that a new spouse's income may be considered to the extent that the income reduces the paying spouse's living expenses (and thus increased the ability to pay) may still be viable. It seems even California has a giant loophole which grants Courts discretion to consider income of new spouses when considering a divorce attorney's request for spousal support determinations or modifications for their client.

With second wives demanding reform, legislators are in a difficult position as they will be balancing the interest of the first wife and her right to support against public policies such as a supported spouse's obligation to become self supporting and the supporting spouse's right to move forward after divorce. The Second Wives Club has a few suggestions which it feels fairly addresses the rights of all parties.

Family Law Reform - US CapitalThe reformers are pushing for durational spousal support awards which are sufficient to permit the supported spouse to gain the education, training, or experience necessary to become self-supporting. The duration of the spousal support will be contingent on the length of the marriage, the age of the supported spouse and the supported spouse's ability to become employed. Upon the date set for payments to end, the supporting spouse's obligation to pay spousal support will end regardless of whether supported spouse has become gainfully employed. Although the Second Wives Club is lobbying strong in various states, divorce attorneys feel that California will likely not experience significant reform in this area any time soon.

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New York State Revamps Divorce Laws - is California Next?

New York Family Law ChangesRecently, the divorce attorneys at the firm have blogged about proposed changes in divorce laws sweeping the Nation. Legislators in many states throughout the U.S. seem to think that current family law statues have gone stale. Currently, a new bill is awaiting passage in New York State that, if passed, would be an overhaul of current family law legislation. The passage of the new bill is hotly debated by New York family law attorneys who are all rallying for support for their respective sides of the issue.

As New York law is presently written, licenses and professional degrees earned during marriage are community assets. Since such assets are not easily quantifiable and divisible, judges and financial experts calculate the earning potential of the spouse who acquired the degree or license and award the other spouse a percentage of those future earnings. This law is criticized as being extremely unfair because there is no provision changing the award if the spouse switches careers or suffers an injury. In California, licenses and professional degrees are not community assets which can be divided upon divorce. However, the community may have a right to reimbursement for any funds spent on tuition and other educational expenses. New York's proposed bill would eliminate the current law on the books; however, it is unclear if anything (possibly similar to California's law) will replace it.

Read more about reimbursements and credits in divorce

BridgeNew York family codes may also be changed with regard to calculation of "permanent" spousal support (commonly referred to as alimony). The proposed legislation calculates the duration of spousal support awards based on a formula which takes into account the length of the marriage. For example, if the parties were married for 7.5 years, spousal support will be awarded for 40% of that time or 3 years. Under California "permanent" spousal support code provisions, Family Courts do not generally set a termination date for spousal support especially if the marriage is long term (over 10 years). Rather, the Court basis its award on fourteen factors including the supporting spouse's ability to pay and the supported spouse's need for support.

The proposed bill would also change the New York law terminating spousal support payments if the supported spouse remarries. Under the new law, spousal support would only terminate if the supported spouse's new marriage substantially improved his/her financial situation. Currently, California and New York have the same law on this issue. However, with so much family law reform throughout the U.S., California may see some change in the near future.

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Enforceability of Unfair Terms in Marital Settlement Agreements

San Diego Divorce CourtIn January 2013, divorce attorneys were abuzz as our local Court of Appeal took a strong stance with regard to enforceability of Marital Settlement Agreements ("MSA's"). In San Diego family law cases, the parties to a divorce have the ability to enter into agreements regarding any area of their case. Settling issues such as child custody/visitation, support, and property division is advantageous to the parties because they have the opportunity to craft unique provisions which meet their individual needs. San Diego family courts are limited by the California Family Code and local/state guidelines in what types of orders they can make. However, when parties and/or their divorce attorneys draft their own settlement terms it is imperative to consider all possible future scenarios before signing a Marital Settlement Agreement.

In the unfortunate case of Marriage of Hibbard, the parties to the divorce agreed that spousal support "shall not be reduced to an amount lower than two thousand dollars per month" and would only terminate upon Wife's death or remarriage or the death of Husband. In this case, the parties were married for thirty years from 1971 to 2001. At the time of separation, Husband and Wife were both lawyers. Husband earned $84,000 per year and Wife earned $24,000 per year. In 2011, Husband's post traumatic stress disorder ("PTSD") fully manifested and hindered his ability to work. Husband's PSTD symptoms began in 1970 after he served in combat in Vietnam.

In 2012, unable to work more than a few hours a day and drowning in debt, Husband filed a motion in family court to modify spousal support. After shutting down his law practice, Husband only expected to receive $4,040 per month in income from disability and Social Security. Wife opposed Husband's request to modify support stating she was only receiving $1,738 per month in teacher's retirement and Social Security. Wife also stated she was similarly unable to work. The trial court held that it was unable to modify spousal support outside of the terms of the marital settlement agreement and therefore refused to reduce support lower than $2,000 per month. The Court of Appeal upheld the trial court's decision.

Marriage of Hibbard is a great example of the importance of carefully considering and drafting Marital Settlement Agreement provisions. Before singing their Marital Settlement Agreement, the Hibbards could have easily imagined a situation where Husband would be financially unable to pay Wife $2,000 per month in spousal support. However, they did not provide any exceptions to the blanket prohibition on a spousal support award lower than $2,000 per month. The Court upheld their agreement despite its unfair applicability to the parties' current circumstances. Marital Settlement Agreements are interpreted under general contract laws which hold that contracting parties have the right to enter into any agreement of their choosing. Divorce attorneys will advise their clients that the role of the court is not to re-write agreements but rather to enforce them as written.

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New Startup Company Using Technology to Streamline the Divorce Process

New divorce technology - WevorceWe often blog about the advantages of a mediated/negotiated divorce settlement; however, a new company "Wevorce" is taking this concept to a new level. Family law offers unique challenges to divorce attorneys and the court because the disputed issues are extremely personal to the litigants. When the parties are unable to reach agreements, these private disputes are aired in open court in front of judges, staff, and litigants awaiting their turn. The CEO of Wevorce stated that the concept for the company was inspired by her parents and their 15 year divorce battle. Unfortunately, long and painful divorces are not uncommon and can cost the parties thousands in unnecessary legal fees. Wevorce is driven by the philosophy that cooperation is the secret to a quick and semi-painless divorce.

Read more about mediation vs. litigation from the divorce attorneys at the firm

Wevorce claims to use technology to keep the divorce process structured and moving along smoothly. A traditional contested divorce moving through the court system is often broken up by several deadlines, hearings, continuances, and various other roadblocks thrown up by the parties. In addition to using new innovative techniques to settle divorces, Wevorce also focuses on the emotions involved. Most importantly, Wevorce emphasizes the need for both parents to cooperate in the best interest of any minor children. Custody and visitation is a very emotional area of family law and should be negotiated in such a way to safeguard children from the adversarial process.

Wevorce is promoted as a "new spin" on divorce; however, family law attorneys have been attempting to mediate divorce cases for years. Despite the best intentions and efforts of attorneys, in many cases the parties are unwilling to accept a settlement offer to agree to any terms proposed by his or her spouse. These types of litigious cases can cost hundreds of thousands of dollars in legal fees. One of the most enticing elements of the Wevorce concept is the fact that they offer "flat rate" pricing to divorce so that spouses can manage and control the cost of the proceeding.

party to contested divorce san diegoWevorce boasts an extremely high success rate in settling cases. This may be due to the fact that only parties in an amicable state of mind have used the company's services. A spouse full of anger, resentment, and skepticism is unlikely to agree to use a mediation service to resolve his or her divorce. The best divorce attorneys know that by the time spouses reach the point of divorce, they have problems trusting one another and cooperating to the benefit of the other. If the Wevorce method can translate to resolve conflicts in these contentious cases, it may be the new frontier in family law.

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Can you get divorced without an attorney in San Diego?

California Family Law Practice GuideOften when non-lawyers imagine going to court they picture themselves being represented by a knowledgeable and experienced attorney. The courtroom and legal system can be intimidating to those unfamiliar with the process because of the immense amount of specific procedures and rules that must be followed. However, despite their inexperience in the legal field, many California spouses are self-represented in their divorce. When a party to a divorce action is not represented by an attorney he or she will be considered "pro per".

San Diego spouses decide not to retain attorneys in divorce actions for a variety of reasons. One of the most prevalent reasons is the cost. Family law attorneys in San Diego typically charge between $175.00 and $450.00 per hour depending on the experience level of the attorney. Depending on the particular case and the work involved, a spouse's attorney fee bill can potentially cost tens of thousands of dollars. In order to avoid that cost, many litigants utilize free legal resources available throughout the San Diego community. Unlike in criminal law, family law parties are not entitled to representation. Therefore, there is no "public defender" equivalent in the family law system.

Learn more about jurisdiction and divorce in California

In order to reduce the cost of getting divorced, if the parties are splitting amicably, some divorcing couples will elect to have one spouse hire an attorney to handle all of the formalities. In this type of case, only one of the spouses is represented by the divorce attorney. The attorney will only owe professional duties to their client, not the other spouse. If the parties are in agreement regarding all issues, the attorney can prepare all of the paperwork for an uncontested divorce while the spouses only incurs one set of legal fees.

Another alternative often utilized by San Diego family law litigants is limited scope representation. Spouses can retain an attorney to review work they have done alone on their case. Additionally, parties can hire an attorney to represent them in an important hearing or for one or two issues in the case. If you cannot afford full representation and are worried about the custody and visitation or property issues in your divorce, you may be able to find a divorce attorney willing to handle those limited issues.

Read more about limited scope issues in divorce

Despite the cost of legal representation, it is important to consider what is at stake in a family law case and whether it is worth the risk of self-representation. The consequences of making a mistake in a family law proceeding can be devastating and may persist long-term. Also, it may be prudent to consider the time and effort that is often required in a family law case and whether you will have the ability to miss days of work for court hearings and devote hours to preparation. If you are unsure about whether you want to handle your divorce alone, contact a San Diego family law attorney for a consultation to find out more information.

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Arnold Schwarzenegger & Maria Shriver Still Not Divorced?

Calfornia SummerIn the summer of 2011 news broke of Arnold Schwarzenegger's affair with his housekeeper and of the child he had with his mistress. His wife, Maria Shriver, was reportedly devastated and ashamed. As Shriver is a Kennedy and comes from a long line of women who stood by their husbands notwithstanding infidelity, the world waited to see if she would forgive Schwarzenegger. Eventually, two months after Schwarzenegger's secret life was uncovered, Shriver instructed her attorney to file for divorce.

The former couple reportedly sorted out their financial and custody affairs quickly considering the size of their fortune, an estimated $400 million. Schwarzenegger and Shriver were married for twenty five years. Considering the substantial length of the marriage it is likely that the $400 million is all community property. Community property consists of all assets and earnings accumulated by the parties between the date of marriage and the date of separation. As divorce attorneys will advise their clients, unless a premarital or prenuptial agreement is in place all community property is divided equally between the parties. As the principles of community property are clearly set forth in the family code, Schwarzenegger and Shriver likely did not have much to argue about when it came to settlement.

Although all of the necessary issues have been resolved in the Schwarzenegger-Shriver divorce, the two are still married. A divorce is not final until a Judgment of Dissolution is entered by the court. A Judgment of Dissolution can be entered pursuant to a Marital Settlement Agreement entered into by the parties voluntarily or by court ordered pursuant to a trial on all disputed issues. Thus far, neither Schwarzenegger nor Shriver has instructed their divorce attorneys to take the final step to file their agreement with the court and have a Judgment entered. There are a few lines of speculation regarding why the couple has not made their divorce official.

It is rumored that Shriver is struggling with her Catholic faith and its prohibition on divorce. Some guess that the parties are in no hurry to finalize their paperwork because they have enough money such that remaining legally married has little to no effect on their daily lives. However, the most popular theory is that Schwarzenegger and Shriver still love each other and are hesitating to end their marriage until they are certain they won't reconcile. Schwarzenegger has publicly expressed his regret for how he treated his wife and children in the past and was optimistic that he and Shriver would be together again. Rumors surfaced as recently as March 2012 that the parties were attending couple's counseling together.

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