Is There a Market "Divorce for Men" in San Diego?

August 22, 2012

711577_father_and_son.jpgThere has been a back and forth trend in custody and visitation legislation preferring one sex to the other. The first custody laws in the United States automatically granted father custody of the child unless he was determined to be unfit, unavailable, or agreed to grant the mother custody. Later, the "tender years presumption" replaced the paternalistic custody laws. Under this new presumption, mothers became the preferred custodian because they were seen as nurturing and in the best position to provide children with the care they needed. Eventually, this notion faded because it merely perpetrated a gender stereotype and opponents argued that it was unconstitutional. Under the California Family Code today there is no stated gender preference. However, both men and women argue that gender bias exists in the courts against their respective sexes.

The Father's Rights Movement began in the 1970's as a new perspective on which parent is the preferable custodian in a custody dispute. Supporters argue that the family courts are consumed with gender bias against men and blindly award support and custody to women by virtue of their sex. These groups promote changes to family law that emphasize the rights of parents or the child's rights to both parents.

Divorce lawyers have begun targeting husbands who may subscribe to the notion that the family laws and courts are predisposed to favor women. This new type of law firm advertises to men through sports magazines, on the radio, and on television. It targets programming most often viewed by men and less likely to be watched or listened to by women. The men who hire the "divorce for men" law firms fear losing their children and money on the basis of gender. They argue that women are automatically awarded custody and spousal support because of the existence of gender stereotypes and bias. One such firm claims to "specialize in men's issues." This statement is based on the assumption that "men's issues" exist currently in San Diego family law courts. The controlling standard in any child custody and visitation case is the best interest of the child. When considering the various factors outlined by the family code, there is no indication that the gender of each parent should be addressed at all.

Fathers are not the only parents alleging gender bias in the San Diego family court system. In cases of domestic violence, women claim that judges are predisposed against them. In cases involving children, mothers argue that their claims of domestic violence are perceived as merely a tactic to gain an advantage in a future child custody and visitation proceeding. Thus, the argument follows, judges are hesitant to believe their claims of abuse and deny protection based on gender. Further, this belief that mothers are lying about abuse negatively impacts their position in the custody and visitation portion of the case. Whether or not gender bias significantly impacts judicial decisions in San Diego is unknown and these arguments of discrimination may simply be legal tactics used to gain an advantage in court.

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.

Dallas Cowboys Rally for Teammate Accused of Domestic Violence

August 21, 2012

This July, Dallas Cowboy wide receiver Dez Bryant was arrested in Texas as the result of an incidence of violence that occurred between Bryant and his mother. According to the police report, Bryant slapped his mother with a baseball cap on her face and pulled her hair. It seems as if this athlete is not receiving any special treatment. He is facing up to a year in jail and discipline by the National Football League (NFL) under the personal-conduct policy. Texas may also impose a $4,000 fine, although that is not likely to deter a successful professional football player.

Although Bryant's mother, Angela Bryant, initially called the police on her son, she is now requesting that charges against him be dropped. In a criminal case such a request does not automatically mean that the case will be dropped. However, it may be more difficult for the prosecution to obtain a conviction without the assistance of the victim. In San Diego, the Office of the City Attorney of San Diego has the authority to decide whether to prosecute a case of domestic violence, not the victim. This is likely due to recognition of the cycle of domestic violence. Victims often return to their abusers for various reasons including fear, the safety of others, and out of love. Thus, if victims decided whether or not to prosecute cases of violence against them, fewer violent perpetrators would be put behind bars.

The details of the altercation between Bryant and his mother are still debated. However, Bryant has received the support of his teammates. Fellow Dallas Cowboy Tony Romo has stated, "the one thing I know is that Dez knows I have his back" and "Dez knows I'll be there for him. Dez knows that I'm going to stick up for him." If Bryant does receive jail time, he will be putting his teammates in a tough situation. Bryant is a valuable player and will be unable to fulfill his obligations to the NFL if placed in jail. Romo also mentioned that Bryant had a difficult life and upbringing possibly hinting that a self-defense claim may be brought.

Under Texas laws, Bryant was charged with "family violence." In California, he would likely be facing charges of domestic violence. Domestic violence is not only recognized in romantic relationships but also in various other situations. Under the California Family Code section 6211, domestic violence is abuse perpetrated against any of the following persons: (a) a spouse or former spouse, (b) a cohabitant or former cohabitant, (c) a person with whom the alleged abuser is or has dated or been engaged to, (d) a person with whom the alleged abuser has had a child, (e) a child of a party or a child, and (f) any other person related by consanguinity or affinity within the second degree. Thus, in the case of Dez Bryant and his mother, due to the close familial relationship, he would likely be charged under domestic violence statutes in California.

Any situation involving domestic violence is dangerous. Please contact us if you have questions regarding the effects of domestic violence on child custody or divorce. 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.

Stevie Wonder Files for Divorce from Fashionista

August 17, 2012

On July 26, 2012, Stevie Wonder signed a petition for divorce with two of his fingerprints. After eleven years of marriage, Wonder cited "irreconcilable differences" as the reason for his divorce from wife Kai Millard Morris. Wonder and Morris have been living separately for nearly three years since October 2009. According to the divorce petition, Wonder is seeking joint custody of the couple's two children, Kailand, 10, and Mandla, 7. From 1970 to 1972 Wonder was married to singer Syreeta Wright and is the father to a total of seven kids from both marriages and other relationships. The petition also states that Wonder agrees to pay child and spousal support.

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California is a community property state. This means that all property acquired by either spouse during marriage is to be divided equally between the spouses upon divorce. These assets are called community property. Community property can only be acquired after the date of marriage but before the date of separation. The date of separation is determined by a combination of two factors. First, the spouses must be living separately and apart. Second, at least one spouse must intend not to resume the marital relationship. The court will evaluate whether a separation has occurred based on a mixture of relevant objective and subjective intentions and behaviors. Because Wonder and Morris began living separately in 2009, the first factor is satisfied. The court will next look at the actions of either party including but not limited to: whether they continued to commingle finances, celebrated anniversaries and/or romantic holidays together, and whether either party continued to perform marital duties.

Stevie Wonder amassed most of fortune before his marriage to Morris thus; Morris will not be entitled to any of these premarital earnings. All of Wonder's earnings before marriage are separate property. Upon divorce, separate property is awarded entirely to the separate property estate. If the parties entered into a valid premarital agreement, default community property laws will not apply to asset division and Morris may be entitled to some of Wonder's premarital earnings. Kai Morris is famous in her own right as a fashion designer. She earned notoriety from the support of the First Lady, Michelle Obama. Wonder may be entitled to a portion of Morris' earnings acquired during the marriage, before the date of separation.

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The issue of child custody will be decided by the court under the guidance of the best interest of the child standard. Unless the court is presented evidence that either parent is somehow unfit, Wonder's request for joint custody will likely be granted. The parties may reach an independent agreement regarding child custody and avoid a divorce trial.

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.

Katy Perry and Russell Brand Finalize Divorce

August 15, 2012

On December 30, 2011 Russell Brand filed for divorce from pop icon, Katy Perry. After only 14 months of marriage Brand cited "irreconcilable differences" as the reason for the split. The couple married on October 23, 2010 in an extravagant ceremony in India. When the pending divorce caught the attention of the media Brand released the following statement: "Sadly, Katy and I are ending our marriage. I'll always adore her and I know we'll remain friends." The divorce petition does not list a date of separation for the couple. However, it is undisputed that Perry earned approximately $44 million during their short marriage.

Once Russell filed for divorce, rumors swirled about whether the Hollywood couple had signed a premarital agreement. The Perry-Brand divorce was finalized on July 16, 2012 and it is clear that no premarital agreement was signed. The pair reached a marital settlement agreement in February; however, were required to wait the requisite six-month period before obtaining a legal divorce. In San Diego, there is a mandatory six-month period between the date of service of the divorce petition and the termination of marital status. Apparently the marriage happened so quickly that neither star had the time to consult an attorney before tying the not.

Under California community property laws, all property acquired by either spouse during the marriage but before the date of separation is community property. Each spouse is entitled to one-half of each community property asset upon divorce. Although the Perry-Brand date of separation is unknown, Perry earned $44 million of community property during the marriage. All earnings of either spouse during marriage are community property. With no premarital agreement, Brand would likely be awarded one-half of Perry's earnings by a family court judge applying California community property laws. However, Perry and Brand negotiated their own marital settlement agreement.

In a San Diego divorce, the parties have the option to negotiate a settlement agreement. This gives both spouses an opportunity to suggest creative solutions and trade offers in order to come up with a mutually beneficial bargain. The court is limited in the orders it can make and settlement gives the parties more freedom and control to agree to a global settlement of all issues. Shockingly, Brand refused to accept his $22 million portion of Perry's earnings. Neither party regrets their hasty marriage and would not enter into a premarital agreement if given a second chance. According to Perry, her and Brand trusted each other to be fair in the event of divorce and neither worried about reaching a settlement. Perry hopes to be an example to her fans and encourage them to reach peaceful solutions to problems and confront difficulties in life gracefully.

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.

How Should Technology Be Divided Upon Divorce?

August 10, 2012

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The average divorce in San Diego involves more than just dividing up the family house and vehicles. Today, most Americans are connected to some mobile device from the moment they wake up each morning. Courts, according to California community property law, have traditionally divided tangible family assets between the spouses. However, parties are now wondering who will be awarded cell phones, iPads, iTunes accounts and access to iCloud. During marriage, many spouses store family data on one iCloud account. This account could potentially be a virtual asset the parties wish to divide.

As we have previously blogged, social media is becoming an important tool in divorce proceedings. Websites such as Facebook are used to provide courts with evidence of a spouse's wrongdoing or misconduct. However technology is invading San Diego family courts in a new way. Spouses now have digital community property assets to be divided upon divorce. As a general rule, each community property asset is divided equally upon divorce. An asset is a community asset if it was acquired during the marriage and before the date of separation. All other property acquired before marriage and after the date of separation is separate property.

Virtual property presents a new challenge to the community property system. How can a shared iTunes account be divided in half? Will the court allow each party to present a case as to which songs they would like to receive as part of the judgment? How can a court divide digital storage space, books, movies, or games? Many spouses also have amassed a large collection of characters, virtual clothing, weapons, and currency in online communities and games. These virtual acquisitions become community property when they are purchased with actual community funds.

Currently there is no U.S. precedent to provide guidance to courts that may be required to divide virtual community property. However, a woman in China has brought the battle over virtual assets to the forefront overseas. The woman met her future husband through a virtual game and after their marriage, the couple continued to play the game together under the husband's account. Although the husband controlled the password and virtual currency, the woman had access to the account. Upon divorce, she requested that the assets accumulated during marriage through her husband's account be divided. Although the court did not rule in her favor, it stated that virtual assets are divisible if valued with real currency.

Since there are no laws currently regulating the division of the virtual community estate, parties may wish to include such assets in a premarital agreement. Additionally, parties are free to characterize property however they see fit during marriage through agreement.

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.

Final Resolution to Custody Battle Over Jackson Kids

August 8, 2012

Although the infamous Michael Jackson died nearly three years ago on June 25, 2009, the custody battle for his children has raged on. Jackson left three minor children, Prince, 15; Paris, 14; and Prince Michael II, 10. Katherine Jackson was appointed guardian of the children after Jackson's death in 2009. However, the judge suspended her guardianship after she was recently reported missing. According to Jermaine Jackson, Katherine was not in any danger but rather was resting in Arizona. Two family members have been fiercely battling for custody of the children, Jackson's mother, Katherine, and the son of his brother, Tito. Apparently the two have reached an agreement to share guardianship. At the age of 82, Katherine will be relieved of daily responsibilities such as management of household personnel and the security team.

According to her attorney, Perry Sanders, "Mrs. Jackson is extremely pleased with the prospect of enjoying the pleasure of raising Michael's children without the day-to-day tedium of items such as managing the large staff that goes with such a high profile family and focus her attention on being a grandmother and raising Michael's children." As her co-guardian, Tito has enjoyed a close relationship with the children for the majority of their lives and has been solely responsible for their care in Katherine's absence. Margaret Lodise, the court-appointed guardian ad litem for the children, has confirmed that the custody agreement is agreeable to all the Jackson children.

One can only become a guardian of a minor child in San Diego through court appointment. A guardian is a person, over the age of 18, who is responsible for the care of another. A child's parents are the preferred guardians followed by other relatives. However, the controlling factor in deciding to appoint a guardian is the best interest of the child. The "best interest of the child standard is evaluated based on a number of factors listed in California Family Code section 3011. In contrast to an adoption, a guardianship does not result in a legal a parent-child relationship. As a general rule, the guardianship will last until the child reaches the age of 18 unless the court determines that such guardianship is not in the child's best interests.

As we have previously blogged, there are two types of guardianships, Guardianship of the Person and Guardianship of the Estate. Jackson left his entire estate to care for his mother and his three children. He intentionally excluded his father and siblings who have in turn attempted to challenge this distribution. Although Jackson died with over $500 million in various debts, his estate continues to earn millions in profits. It is clear that Katherine and Tito will at least be guardians of the persons of the minor children. However it is unknown whether their role will also encompass managing the children's finances.

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.

Elder Abuse Charges Against Mel Gibson

August 3, 2012


Elder abuse is a crime that often goes unnoticed and unreported in Del Mar and throughout San Diego County. However, thanks to local organizations such as the H.O.P.E. team and the San Diego Family Justice Center, elderly victims of abuse have community resources to turn to for help. In recent news, infamous actor and director, Mel Gibson, has been accused of elder abuse. The alleged victim is Teddy Joye Hicks Gibson, Gibson's stepmother. Seventy-eight year old Teddy claims that Gibson spat in her face and threatened her. As a result of the incident, she is seeking a restraining order against Gibson.

In addition to the physical attacks and threats, Teddy alleges that Gibson has waged an emotional and psychological assault on her. She asserted that Gibson has contributed to the final breakdown of her marriage to Gibson's father and that he is trying to force her out of her home. The home is currently owned by a charity over which Gibson has significant control. Gibson's ninety-three year old father recently filed for divorce but Teddy says this is a product of Gibson's interference. She bases this claim on a love note recently given to her by Gibson's father, evidencing the intent to remain married. The judge declined to issue a temporary restraining order in favor of Teddy. Alternatively, the judge decided to set a date for a full hearing on the matter.

Elder abuse can appear in many forms just like domestic violence. The definition of domestic violence includes all forms of abuse such as physical abuse, mental/emotional abuse, and financial abuse. Common forms of elder abuse include physical and financial abuse. Because the elderly are in a vulnerable position both physically and financially, they are often the targets of such abuse. Additionally, those paid to care for elderly patients may continue to collect their pay yet neglect the needs of the patient. This type of abuse forces elderly patients to live in inhumane, unsafe, and filthy environments. Although incidents of elder abuse are drastically underreported, the number of reports has risen in San Diego County. According to the office of the District Attorney the elder abuse hotline receives 10,000 calls per year. Of these calls, approximately forty percent involve claims of financial elder abuse.

Ninety-five percent of incidents of elder abuse occur in the home. The groups of these in-home offenders include the most trusted individuals in an elderly person's life. For example, the largest group of abusers are related to the victim. The second largest group is comprised of caretakers, neighbors, and friends. The remaining five percent of incidents occur in nursing homes. The offenders in these cases most often include trusted financial planners.

Any situation involving domestic violence is dangerous. Please contact us if you have questions regarding the effects of domestic violence on child custody or divorce. 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.

Liability for Your Spouse's Accidents

August 1, 2012

172435_accident_2.jpgMany Del Mar spouses have litigated or settled civil disputes. How these civil judgments can impact community and separate property is important throughout the dissolution process. Upon divorce, each community property asset is divided equally between both spouses. Community property is generally all property acquired during the marriage. All property acquired before marriage and after the date of separation is separate property. Additionally, all property acquired by gift, devise, or bequest is separate property. This system leaves many couples wondering whether community property or separate property is liable for the tort judgment.

Surprisingly, all of the community property is subject to the civil liability of either spouse. As a general rule, a spouse's separate property and all of the community property is liable for a debt incurred before or during marriage. As a debt owed by one spouse, the same rules apply to debts owed to plaintiffs in civil cases. The innocent spouse's separate property is not liable for any debts that he or she did not incur. However, whether the plaintiff can collect from the separate or the community property first depends on how the liability was incurred. The following example will best illustrate this principle: Husband was driving to pick up Daughter from daycare when Pedestrian stepped of the curb. Husband struck Pedestrian and Pedestrian incurred $100,000 in medical bills which Husband was ordered to pay. In this scenario, Husband has incurred liability for a tort judgment. Wife may be curious about whether Pedestrian can collect the $100,000 from community assets such as the family home.

For the Benefit of the Community: If the court determines that Husband incurred this liability while performing an act "for the benefit of the community," then Pedestrian can collect his judgment from the family home first and then, if any debt is left unsatisfied, from Husband's separate property. Pedestrian will argue in the above scenario that because Husband was picking up Daughter from daycare when the accident occurred, he was performing an act for the benefit of the community.

Not for the Benefit of the Community: In the alternative, if the court determines that Husband incurred this liability not for the benefit of the community but for some other purposes, then Pedestrian can collect his judgment from Husband's separate property first and then, if any debt is left unsatisfied, from the family home. However, if Husband has no separate property of his own then, for all intents and purposes, the family home will be the only source from which Pedestrian can and will collect.

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.

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.

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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.

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How Education is Divided Upon Divorce

July 5, 2012

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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.

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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.