How can you tell if your spouse is spying on your computer, and what can you do to protect yourself?

spying-spouse.jpgWith the advent of laptop computers and the smartphone, you can take your digital life everywhere with ease and convenience. So much can be done on the go with these devises, but there is a downside to the convenience. It seems like every couple weeks you hear a news report about another Hollywood starlet getting her phone or computer hacked. With so much information stored on our smartphones and laptops, learning that someone has accessed your device without your consent can be both scary and infuriating. Everyone expects (or at the very least hopes) that the private information on their computer or smartphone will stay private. But how can you tell if your spouse is spying on your electronic devises, and more importantly how can you protect yourself from being spied on.

There are many reasons your spouse may be spying on your electronic devices. Perhaps your spouse thinks you are having an affair, or secretly hiding money or stealing from a family business. Your spouse may think you are drinking or using drugs and hopes to use this evidence against you in a custody battle. Whatever the reason, there are ways to finds out if your spouse is spying on your electronic devise.

Programs
There are many online applications or antivirus programs that can detect tracking software or key logger programs have been installed on your computer. Many can be downloaded for free off the internet or ordered online for a reasonable price. While not fool-proof, using these programs is a good start and could provide peace of mind that you're not being tracked or spied on.

Professional
If you have a really strong feeling you're being spied on, or if one of the programs indicates the possibility of tracking software on your computer, it is best to bring your device to a professional who can inspect the device more closely. These professionals can also take steps to remove any suspicious software on your computer. This is a more costly route, but in the end it is worth the money to know your private life is staying private.

Common Sense
Your intuition and common sense is probably the best indicator of whether you're being spied on. If your former spouse seems to know things they should not know, or is acting suspiciously around you or your electronic devices, there is a good chance they are up to something, and you should take action.

So what can you do to protect yourself? The following is a non-exhaustive list of suggestions to avoid your electronic devises being compromised:

spying-spouse-password.jpg1. Change your password. When you do change your password, choose a strong password that incorporates, number, letters, and symbols so it is more difficult to crack. Do not use your dog's name or worse the word "password."

2. Make sure to password protect your phone. It may seem like an inconvenience to have to enter a password every time you open your phone, but with so much information now stored on our phones, this is an absolute must. Any inconvenience is far outweighed by the security a password protected phone provides.

3. Avoid agreeing with Chrome/Firefox/Safari when they ask if you want the browser to remember your password. This is like giving a burglar your key. All he needs to do is wait for you to leave and he can come right in and clean you out.

4. Always logout of programs that contain private information. Again, it may be a minor inconvenience, but it is better than having your privacy compromised.

5. Install a monitoring program to periodically check for tracking software and key logger programs.

None of these suggestions are fool-proof, but they can be helpful in deterring your spouse from spying on your computer or smartphone. If you are in the middle of a divorce, or are considering a divorce, and you believe your spouse may be spying on your electronic devises, it is important to take steps to maintain your privacy and protect yourself.

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Co-Parenting Fido with your Ex-Spouse

co-parenting-dog.jpgFor many couples, worrying about who will get custody over the family pet is just as important as worrying about custody of the children. This is because pets are like family for many people. Although pets are treated like personal property under the eyes of the law in California, they shouldn't be treated like just any other piece of personal property (like a piece of furniture) after the divorce is finalized and custody of the pet is determined. If your divorce results in joint custody of your family pet, it is important that you put the same time and effort into co-parenting your pet as you would for your children.

The first step of co-parenting is to have a clear custody plan in place. If your divorce judgment states that you and your ex shall share joint custody but does not outline a specify custody arrangement, it is important to quickly put one in place. Many of the same principals used for custody/visitation of children can be applied to sharing custody of a pet. If you have children and are sharing joint custody of the children as well, then perhaps the pet can go to the other parent at the same day/time that the children are exchanged. The important thing to remember is that routine and consistency is vital. Just like children, changing a pet's living situation can cause a lot of stress and trauma to the pet, which can result in an array of behavior issues. Thus, once a custody arrangement is agreed upon, it is important that both "parents" stick to it.

co-parenting-pets.jpgIn addition to divvying up custody and visitation of your pet, co-parenting requires cooperation in a variety of other aspects: food, grooming, medical care, expenses etc. With regard to the pet's food, you should work with your ex to choose the same brand of food for each household. As far as grooming, it is suggested that you and your ex decide to keep your pet groomed in a standard way or at least have a selection of acceptable "looks" so that there is less room for conflict when it comes to grooming day.

A big aspect of pet co-parenting is dealing with the sharing of costs related to the pet. Costs may include medical care, daycare, training, toys, travel, or accessories. You should divide the pet related costs into two categories, one for basic costs and another for extraordinary costs. Typically basic costs are covered by the "parent" who has custody of the pet at the time. Bigger purchases for your pet may require a more detailed agreement. For instance, you might want to base the payment division on each parent's income level, percentage of custody, or simply cap one parent's contribution and agree that the other parent will cover costs outside that cap.

Another hot topic of pet co-parenting involves medical treatment. First there needs to be an agreement, ahead of time, not only as to who will pay for medical treatment, but how far to go with treatment, compliance with the medication plan, and potential changes in custody/visitation due to the pet's recovery time. Properly co-parenting your pet can help ensure your animal companion's happiness and well-being. Although it may be difficult to not always have your pet in your custody, try to remember that your pet will benefit by having the love of both "parents" in its life.

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What to Do When Spouse Claims Disability

support-disability-claims.jpgSometimes during divorce proceedings one spouse may claim to suffer from a disability that affects their ability to work. When your spouse claims to be disabled, you might wonder if there is anything that you can do about it. It may sound awful to question the honesty of your once beloved spouse especially as it relates to a medical condition. But sometimes further exploration is necessary to determine the true extent of your spouse's disability and its effect on their ability to work. This is especially the case if your spouse has already given you reason not to trust them or if your spouse has made it apparent that they are hungry for money and will do anything to make you "pay up".

Is the Disability Really Valid?
A spouse may have a non-specific claim of disability for conditions such as stress or depression, which might affect their ability to return to work. If you have doubts about the validity of the disability it may be important to investigate further.

You Agree Disability is Valid, but Does it Really Impact Employment?
If your spouse was diagnosed with a disability during your marriage, then you might be less likely to question the validity or existence of the disability. However, you might still question whether your spouse's disability truly impacts their ability to pursue all forms of employment. While your spouse's disability might impact certain types of work, that doesn't mean that there are absolutely no fields of work out there that your spouse might still be able to do despite their disability. For example, if your spouse has a physical disability, then a labor intensive job is likely not even an option. But that doesn't mean that your spouse can't still work a desk job that doesn't require any physical labor or strenuous movement.

support-disability-job.jpgIndependent Medical Examination
An Independent Medical Examination ("IME") is a discovery tactic that many family law attorneys recommend their clients consider when a spouse's disability, if any, is at issue. An IME is a physical or mental examination of an individual done by a doctor, physical therapist or chiropractor who has not previously been involved in that individual's care.
In family law cases, the purpose of the medical examination is typically to enable the Examiner to form an opinion:
• if, and to what extent, the spouse being examined is able to work
• if and to what extent she has any limitations that limit her ability to work
• the hours she can work
• the conditions under which she can work
• other limiting factors her illness creates in order to be productive in the workplace.
In essence, an IME is one way to help determine what limitations to employment exist as a result of the spouse's medical condition. Either your spouse will need to stipulate to the IME or you will need to show good cause in order to obtain an order from the Court for an IME.

Vocational Evaluation
An IME is different than a vocational evaluation, which is used to determine the spouse's ability and opportunity to work. Once the IME report is ready, you might consider also hiring a Vocational Evaluator to give an opinion as the spouse's ability and opportunity for employment in light of the limitations due to the person's medical condition.

The purpose of going to all of the trouble of determining first whether your spouse has a disability and then to what extent that disability does or does not limit employment typically has to do with calculation of support. For instance, if your spouse is currently not working but both the IME and Vocational Evaluation support the opinion that your spouse is able to work, then you may request that the court impute income to your spouse for purposes of calculating support.

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Do I Qualify for an Annulment?

annulment2015.jpgThe relationship between former Baywatch star, Pamela Anderson and her husband, Rick Saloman would never be described as traditional. They were first married on October 2007, but separated less than 10 weeks later when Pam filed for divorce in December 2007. The parties reconciled for a brief period (about 2 weeks), before Pam served Rick with the divorce papers. In February 2008 both Pam and Rick requested their marriage be annulled based on fraud. That request was granted in March 2008. The couple remarried sometime in late 2013 or early 2014. As with their prior attempts the current marriage appears to have failed as well.

According to reports, Pam filed for divorce in California citing irreconcilable differences. Rick on the other hand, filed for an annulment in Nevada (where he allegedly resides) once again stating fraud as the grounds for the annulment.

In California there are two types of annulments; void marriages, where the marriage is never legally valid and voidable marriages that are declared invalid by a court. The same rules for void and voidable marriages apply to domestic partnerships. I use the word marriage in this blog for simplicity reasons only.

VOID MARRIAGES
There are two statutory grounds for a "void marriage", and other non-statutory grounds for a void marriage. These marriages are void from the start. They cannot be made valid by the passage of time or the consent of the parties.
Incestuous Marriage [Family Code Section 2201]: This is the situation when the people who are married are close blood relatives. This does not apply to first cousins who are allowed to marry legally in California.
Bigamous Marriage [Family Code Section 2200]: where a spouse or domestic partner is already married to or in a registered domestic partnership with someone else.
Though not found in the Family Code, the failure to obtain a marriage license results in a void marriage.

VOIDABLE MARRIAGES
These marriages are made void, not by operation of law, but by order of the court. Each of the grounds for a voidable marriage has a statute of limitations so the passage of time can make an otherwise voidable marriage valid. In fact, voidable marriages are valid until they are annulled.
Age at the time of marriage [Family Code Section 2210(a)]: If the party seeking the annulment was not 18 years old at the time of the marriage and did not have the permission of his/her parents to get married.
Prior existing marriage [Family Code Section 2210(b)]: Either party was actually married at the time, but for 5 years prior to the marriage believed their spouse was dead or had been missing. This is different from a bigamous marriage. The difference is actual knowledge. In a bigamous marriage the party knows they are already married. In a prior existing marriage the party knows they are married but their spouse has been missing or presumed dead for at least five years before the wedding.
Unsound mind [Family Code Section 2210(c)]: This refers to a party that does not have the mental capacity to understand the obligations assumed by being married. This is determined at the precise time the marriage is conducted. This can include persons with intellectual disabilities, Alzheimer disease, and in very limited number of cases, intoxication is a basis for a finding of unsound mind. This is how Brittany Spears got her 55 hour long marriage to Jason Alexander annulled.

annulment-fraud.jpgFraud [Family Code Section 2210(d)]: This is the most common basis or seeking an annulment. The fraud alleged must be about something vital to a marriage. A bad credit score or undisclosed credit card debt will not constitute fraud for an annulment.
The fraud in annulment cases can include getting married only to obtain a "green card", lying about ability to have children, and/or lacking the intent to observe the obligation of "sexual fidelity." In California, if one party is having an affair at the time of the marriage, that may be considered fraud for the purpose of an annulment.
Force [Family Code Section 2210(e)]: Either party only consented to the marriage as a result of force.
Physical Section 2210(f)]incapacity [Family Code: When the parties got married one party was "physically incapacitated" (basically, that means one of the parties was physically incapable of "consummating" the relationship) and the incapacity continues and appears to be "incurable."
Seeking an annulment in California can be difficult and there are very specific timing requirements associated with the request. We understand that this is a sensitive situation that could greatly affect you and your family, and our team can provide you with the caring and outstanding legal counsel you need and deserve.

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Upward Modification of Spousal Support Post-Judgment

spousal-support-modify-lottery.jpgSpousal support is a hot topic in divorce not only during the divorce process but also after the parties' divorce judgment has been processed and finalized. We often meet with clients who are currently paying spousal support pursuant to court order and, based on a substantial change in circumstances, would like to request a downward modification of spousal support so they don't have to fork out so much money each month to their ex-spouse. However, we sometimes also get requests from clients who are the recipients of a spousal support award and would like assistance with getting an upward modification of spousal support so that their ex-spouse actually pays them more each month.

A person currently receiving spousal support pursuant to the initial court order may be inclined to seek an upward spousal support modification if, for example, at the time of divorce the spouse receiving spousal support was making a decent living (and thus the need for spousal support was minimal) but post-judgment that spouse lost their job or has health issues that result in an increased need for spousal support to meet that person's reasonable needs. Another potential reason that might pique a person's interest for seeking an upward modification of spousal support includes situations (although quite rare) where the person paying spousal support hits the jackpot on the lottery and arguably now has a much higher ability to pay.

A request for a spousal support modification requires the party seeking the modification to show that there has been a material change of circumstances since the most recent order. The Court will consider whether there has been a significant change in any of the factors set forth in Family Code Section 4320 (the same criteria considered for initial order) when making the subsequent modification order, if any. These factors include, among others, the supporting party's ability to pay, balance of hardships to each party, and the needs of each party based on the Marital Standard of Living ("MSOL"). The MSOL is the lifestyle enjoyed by the parties during marriage and is typically measured by the parties' expenditures during marriage, including any funds put towards savings.

spousal-support-modify-arrows.jpgWhile the Court has broad discretion to modify spousal support so long as there has been a material change of circumstances, the Court does not always have jurisdiction to do so. In many cases, spousal support is subject to subsequent modification (or even termination) so long as the spousal support order has not already expired and the court still has jurisdiction over spousal support. However, in accordance with Family Code section 3591(c), if the parties' judgment has a provision that expressly states that the parties agreed to make the spousal support award non-modifiable, then spousal support cannot be modified post-judgment. In the absence of such an agreement, the court retains jurisdiction to make a decision to increase, decrease or terminate support in a later proceeding (post-judgment) pursuant to a request by one of the parties.

It is also important to note that a post-judgment increase in spousal support being granted by the Court is highly unlikely. While there is nothing that prevents the Court from increasing support, it is simply not very common in California Family Law Courts. And even if the Court is willing to entertain the idea of an upward modification of spousal support, the spousal support award would still be capped at an amount that meets the MSOL. Even if you have an experienced attorney on your side it's important to have realistic expectations and understand that getting a significant increase in spousal support, or any increase for that matter, is not very common.

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Modifying Spousal Support Post Judgment - Payor Spouse

Post judgment motions to modify support orders can be tricky. Less so with child support orders; which are often as easy as putting numbers in a program (income, child sharing percentage, statutory deductions, etc) and pressing the return button. However modifying permanent spousal support is another story.

modifying-spousal-support.jpgIn order to justify a modification of permanent spousal support, you must be able to show "changed circumstances" since the prior order was made. There are many reasons for this requirement, such as the respect for prior court orders, the assumption that the court "got it right" when they made the prior order or simply to avoid parties coming to court every few months to try to get a new spousal support order. (This goes for both the payor wanting a lower support order and the payee wanting more monthly support) In terms of stipulated spousal support orders, the Court gives great deference and respect to the contracts of the parties, and will not disrupt those agreements without substantial justification. The reasons why a party must establish changed circumstances is not nearly as important as understanding the concept itself.

The concept of changed circumstances was summed up particularly well by the Court of Appeal in a case called Marriage of West. The facts of the case are unimportant. What is important is a quote from the decision which said:

"Change of circumstances means a reduction or increase in the supporting spouse's ability to pay and/or an increase or decrease in the supported spouse's needs. It includes all factors affecting need and the ability to pay."

The focus of this blog is a discussion of the various ways a "payor spouse", that is the spouse ordered to pay support, can move to modify or terminate spousal support post judgment.

Often times, years after a Judgment of Dissolution is entered the payor spouse will suffer a decrease in their income. This could be the result of losing their job, retiring, or loss of investment/passive income. Whatever the reason, the payor is no longer able to afford to pay support at the previous level. Based on the quote from Marriage of West (above), this is a fairly clear cut change of circumstances. [Note: If you voluntarily quit or depress your income, it can be a very different story. See my previous blog on this issue.]

Another situation is when the supported spouse's needs have decreased. Examples of this are an increase in the supported spouse's income, a reduction in their monthly expenses, or co-habitation with a non-marital partner. All of these situations result in a reduction in the supported party's need for support, and are the basis for a motion to modify spousal support post judgment.

Termination of spousal support (not just reducing spousal support to $0), is a whole other animal altogether. Unless otherwise agreed to by the parties, spousal support generally terminates upon the death of either party or the remarriage of the supported party. Any other termination of support will require a showing that the supported spouse has become self-supporting and no longer has a need for support.

Whether a court will terminate spousal support will depend, in large part, on how long your marriage lasted. For marriages lasting less than 10 years the general rule of thumb is a payor spouse will pay spousal support for one-half the length of the marriage. For example if you were married for 8 years, you can expect to pay spousal support for 4 years. Of course, like most things in Family Law, none of this is set stone, so it is important that you discuss the specifics of your case with an experienced family law attorney.

modifying-spousal-support-10-year.jpgIf your marriage lasted more than 10 years, the Court will not terminate spousal support unless you can clearly show that the supported party can meet their financial needs without support. Even if the moving party can make this showing, the court will sometimes set spousal support to $0 per month, but retain the ability to modify the amount in the future should circumstances change.

Another option available to a payor spouse is to request the court make a "Richmond Order." As you have probably already guessed, this comes from the case Marriage of Richmond. (We are not very creative). Richmond Orders, sometimes called "step-down" orders, are usually made in long term marriages, and have the effect of putting the supported spouse on notice that they will receive support for a specified period of time. At the end of that period of time, support will either be terminated or reduced to $0 unless the supported spouse can prove they have the need for additional support or additional time. These types of orders are favored by the courts and are usually upheld on appeal.

Post Judgment spousal support modifications are a unique issue in family law, so it is important that you consult with a qualified family law attorney who is experienced with these types of cases.

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Keeping Inherited Money Separate

March 26, 2015

inherited-money-divorce.jpgMost parents want to ensure their children have every advantage and opportunity they can afford to provide to ensure they are successful and happy. Many parents also want to leave a financial legacy for their children after they pass away in the form of trusts or inheritances. These gifts of money or inheritances are fairly straightforward. Under California law, any property received either by gift, bequest, devise, or descent, including the income derived therefrom, is considered the separate property of the party receiving the money. Like I said, it's pretty straightforward. The complications arise when the receipt of this property or money is commingled (mixed) with community property money. Unraveling the rat's nest of commingled funds can not only be expensive, but is often impossible. This is especially true when the parties have been married for a long time.
So how can you ensure you keep your inheritance after a divorce? While not bullet proof or exhaustive, the following items can help you to keep this property separate.

Don't Co-mingle your funds
This is probably the most important thing you can do to ensure that your separate money stays that way. If you expect an inheritance, or received one prior to your marriage, keep that money in a separate account in your name only. Never put income earned during marriage into that account for any reason. Once you comingle community and separate money, you will be required to perform a tracing using a forensic accountant to unravel the transaction. If that sounds expensive, you're right. Depending on the amount of transaction, and the span of time involved, tracing separate and community funds can costs tens, if not hundreds, of thousands of dollars.

Do a Pre-nup or Post-Nup
A prenuptial agreement (before marriage) and a post-nuptial agreement (after marriage) are one way to define what property or money is separate and what property or money is community. These agreements can be very helpful if a marriage ends in divorce, but they are not fool proof. Even if you have a bullet proof pre-nup, that does not stop the other party from contesting it. Just ask Donald Trump. About Ivana's challenge to Donald Trump's prenuptial agreement, Trump wrote, "[w]e needed a bus to get Ivana's lawyers to court. It was a disaster, but I had a solid pre-nup, and it held up." More importantly, even with a prenuptial agreement, if you commingle your separate property funds with community property, you could end up spending thousands of dollars just to unravel the mess.

Do an Irrevocable Trust

If you anticipate receiving an inheritance, setting up an irrevocable trust can separate and protect the principal of that inheritance. If the trust pays out income to you, that can still be considered for spousal or child support, but the trust will protect the principal assets and money.

inheritence-live-moderately.jpgLive within your means
In California, using your separate property to pay community property bills is generally considered a gift that you cannot get back. Regular gifts of income from family that are used to pay community bills can also be considered part of the marital standard of living, so be careful how this money is spent. This is not to say that you cannot use your separate property for your family, just know that if you do, it is unlikely you will get it back.

By considering the items above and speaking with a financial planner who specializes in divorce, as well as a qualified family law attorney, you can set in place a plan to protect your separate property assets in the event of a divorce.

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Can I be Forced to Testify as a Witness?

March 25, 2015

testifying-in-court.jpgHere at the Law Offices of Nancy J. Bickford, we do our best to settle family law disputes in an amicable fashion. If the circumstances permit, we work with the parties (and opposing counsel) to help the parties reach a settlement agreement that they are both content with. Consequently, we also help them save time and money by attempting to keep their disputes out of the courtroom. However, sometimes the circumstances of the case require some or all of the issues to be litigated in court. If the case goes to trial, then there is a possibility that the attorney will need to call a witness to testify in court.

Family Code Section 217, specifically states that the court must receive any live, competent, and admissible testimony that is relevant and within the scope of the hearing unless there is a stipulation of the parties or a finding of good cause. Thus, parties who are getting a divorce and litigating their case in court have the right to call a witness to the stand during a trial to provide testimony regarding information that is pertinent to the case.

What is Live Witness Testimony?
A witness is someone who is properly qualified to provide testimony to the court regarding information that is relevant to the issues at hand. The party who called the witness will ask their questions of the witness in what is known as "direct examination." Then the opposing party will have an opportunity to conduct what is known as "cross examination."

What is a Subpoena?
If a witness will not voluntarily come to court, then that person can be subpoenaed. In Latin, subpoena means "under penalty". A subpoena is a court order that gives a person a legal obligation to appear and testify in court.

Are there any Ways to Get Out of Testifying?
If a person receives a subpoena informing him/her that their testimony is requested, then there are only very limited reasons in which that person may be excused from testifying. For instance, a person may be excused from testifying as a witness if he/she is not competent to testify due to age or illness, which prevents him/her from recalling events and truthfully explaining then to the Court. Also, if the witness is one party's attorney, priest or psychotherapist, he/she may be excused due to the special relationship in which the communication between the witness and party is privileged.

If none of the limited excuses apply to you, you may still be able to request a postponement of your appearance in Court. Such postponements, however, are not often granted and limited to reasons of death or severe illness. If no postponement is granted then you are required to appear on the date and time on your subpoena. If the postponement is granted, then you are obligated to appear on the later date and time issued by the Court.

What are the Penalties for Failing to Testify?
If you were properly subpoenaed and fail to comply with the subpoena to testify as a witness in court, the Judge, at his or her discretion, could find you in contempt of court and you could potentially face jail time and/or hefty fines.

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"Your Cheating Hart"

March 24, 2015

cheating-heart-infidelity.jpgActor and comedian, Kevin Hart, whose new movie Get Hard co-starring Will Farrell set to release on March 27th, is on top of the world. It also appears that the feud between Kevin's first Wife and mother of his two children, Torrei Hart, and his fiancé, Eniko Parrish is over. Life for Kevin was not always so rosy. Back in May 2014 Torrei took to twitter slamming the comedian for cheating and blaming the breakup of their marriage, in part, on his infidelity.

Recently, the Wall Street Journal published an article entitled Are You Likely to Have an Affair? According to the article, the "signs" include:


  • Gender

  • Certain ages being more prone to cheating

  • History of past infidelity

  • Dissatisfaction with the current relationship

  • Exposure to potential partners at work

  • Thrill seeking or narcissistic personal traits

While studies vary, statistics suggest that sometime during their marriages, 21% of men and 15% of women are involved at some type of extramarital affair.

In California, evidence of marital misconduct is not admissible, because California is a no fault state. Though not as common as it once was, there are states where evidence of marital misconduct is not only admissible, but is potentially damaging to your divorce case. In some states, if the other party can prove adultery, it can have an impact of spousal support. Despite being a no fault state, the issue of infidelity can still have an impact on your case, both financially and emotionally.

If the injured party (that is the spouse who was cheated on), can prove the cheating spouse used community property money to advance his/her affair, then the Court could find "dissipation" and order the cheating spouse to reimburse the community for money used for the affair. This could include hotel rooms, flowers, gifts, jewelry, dinners and or even vacations. This can be difficult to prove, and in some cases the amount to be recovered may not be worth the cost of fighting. Every case is different, so you should consult with an attorney to decide whether the issue is worth pursuing.

cheating-infidelity.jpgWhether you pursue recovery of the money the other party spent on their affair, you will be faced with the emotional impact of finding out your spouse has cheated. Divorce is by its nature an emotional situation; it represents the end of a commitment made at a time when two people were very much in love. These emotions are only exacerbated when one party learns the other party has been unfaithful. While it is natural to be upset and want to push for punishment or retribution, it is important not to let your personal emotions drive your divorce case. Allowing an emotional response to map the direction of your divorce case can not only be expensive to you, it may impact your children emotionally and will get in the way of you healing and moving on.

An experienced Family Law Attorney can educate you on the legal impact of infidelity and help you determine the best course of action for your case, and not merely as a reaction to the infidelity. No matter the reason for the divorce, coming out of the divorce financially and emotionally secure should be your top priority.

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Tips for Living Together While Legally Separated

March 23, 2015

legally-separated-living-together.jpgWhen a couple decides to get a legal separation or divorce, it doesn't necessarily mean that one party has to rush to pack up his/her belongings and leave the marital home right away. In fact, the parties can still establish a date of separation even if they are still living under the same roof. However, living together while separated might be a bit tricky and uncomfortable for most couples. There are certain things they should and should not do to make this uncomfortable situation a bit more bearable.

From a legal perspective, the date of separation is the first date when either party subjectively (i.e. mentally) decided that the marriage was over and not salvageable and their overt actions demonstrate that subjective frame of mind. Living separate and apart from your spouse is not required in order to establish a date of separation so long as the at least one spouse has the subjective intent to end the marriage and his/her actions indicate that the marriage is finished. Courts will consider a variety of things to determine the spouse's intent.

If both parties are staying in the marital home while they are separated and pending resolution of their legal separation or divorce, there is likely going to be a lot of tension. To mitigate the tension, it is recommended that the parties adopt some or all of the following tips:

1. Don't bring a new girlfriend/boyfriend into the mix. The cause of your divorce or legal separation might be due to your newfound love for another person. There is no need to put salt in the wound. But if you are adamant about dating someone new while still living with your spouse, be discreet about it

2. Create Guidelines for Interaction. If you're still living with your spouse while separated then you need to discuss items of daily living and interaction. This means that you two need to sit down and discuss how bills will get paid, whether or not you will share groceries, who will clean the house, etc. To the extent possible, many couples choose to just maintain the status quo of how things were handled during the marriage.

3. Consider going to a therapist. Having a neutral third party mental health professional help walk you through the stages of divorce can help you process things both emotionally and logistically.

4. Consider a nesting arrangement. Sometimes the tension and awkwardness is just too much too handle. If so, consider a nesting cutody arrangement as described in my previous blog entitled "Is a Nesting Custody Arrangement Right for Me?"

Continue reading "Tips for Living Together While Legally Separated" »

Tips for the First Year as a Single Parent

March 19, 2015

single-parent.jpgParenting is a challenge no matter how you look at it. Parenting alone, when your spouse is no longer in the picture, is arguably even harder. After a divorce, you will not be able to rely on your ex-spouse's assistance (assuming you did while married) when your children are in your custody. You will need to develop certain skills to cope with being a single parent, especially if you are the primary custodial parent post-divorce. Learning and applying these skills will take some time but will only serve to benefit both you and your children.

Don't be afraid to ask for help. After a divorce you might feel a liberating sense of independence. But try not to let this newfound independence hinder your ego and keep you from asking for help when you need it. You might think that you have already burdened your family and friends enough when they helped you get through the divorce, but that doesn't mean that they are done with you. If they stuck by your side through the tumultuous divorce they will most likely continue to stick by your side and support you in your journey as a single parent. So don't be afraid to ask for that third, fourth or fifth hand when you need it most.

It's important to develop a support group. You probably already have a support group of close family and friends who helped keep you sane throughout the divorce process. But think about also joining a local group of single parents for some extra support. Other single parents can relate to what you're going through in a way that your family or friends might not be able to do.

single-parent-alone.jpgDon't forget to take time for yourself. If you are a single parent, chances are that you are burning the candle at both ends to meet your child's every need and keep up with daily tasks. Although you're being a great parent, you're probably forgetting to take time to focus on yourself. Even if it's just an hour of quiet reading or a yoga session, give your mind and body a break from parenting every once and a while.

Getting through that first year of single parenting is something to pat yourself on the back for. Hopefully, things will only get easier from here on out. Remember that you are stronger than you think you are.

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Duke Order - What is it and How do I Get One?

March 18, 2015

dividing-house.jpgDealing with what to do with the family home is a big issue for divorcing couples. Typically one spouse will buy out the other spouse's interest or the house will be sold and the proceeds divided between the parties. However, when the parties have a minor child, another option that might be preferable would be to keep the house in joint names and allow one of the parents to stay there for a limited period of time until it is sold at a later date. If this is an end result that the parties want to achieve, then they will need a deferred sale of home order, also known as a "Duke order" (named after the case In Re Marriage of Duke).

Codified in Family Code Section 3900, a Duke order is an order that will delay the sale of the family home and will temporarily award exclusive use and possession of the home to a custodial parent. It doesn't matter whether or not that custodial parent has sole or joint custody of the child. The purpose of the Duke order is to minimize the adverse impact of divorce on the child's welfare.

Getting a court to actually order award a Duke order, or deferred sale of home order, might be a bit difficult as the court can only make the order under limited circumstances. The court must find that it is economically feasible to even do so and the court needs to balance the hardship on the child and parent staying in the home with the economic hardship that the deferment could have the on the parent living outside the home.

Specifically, Family Code section 3801 specifies that the court must first decide whether during the time when the home would be deferred for sale, that it would be "economically feasible to maintain the payments of any notes secured by a deed of trust, property taxes, insurance for the home" and also to maintain "the condition of the home comparable to that at the time of trial." To determine the economic feasibility, the court is required to consider the income of the parent who would stay in the home, the availability of spousal support, child support, and any other funds available to make the payments on the home. The reason the court looks at these factors is because the court does not want to make an order that could result in defaulted payments (i.e. a foreclosure), inadequate insurance coverage, or deterioration on the condition of the home which would jeopardize the parties' equity in the home when it is sold at a later date. (See Family Code Section 3801(c)).

dividing-house-divorce.jpgWhen deciding whether a Duke order is necessary to minimize the impact on the child, the court will consider things such as the length of time the child has lived in the home, the school grade the child is in, how convenient the home's location is to the child's school/child care, whether the home has been modified to accommodate a child's physical disabilities, the emotional detriment it would cause the child to change homes, whether the home would allow the parent living there to continue employment, each parent's financial ability to get suitable alternate housing, the tax consequences, the financial detriment to the parent who would not being staying in the home, and any other just and equitable factors. (See Family Code Section 3802(b)).

If a Court awards a deferred sale of home order, then it will also need to specify the conditions upon which the period of deferment will end, such as the child reaching the age of majority or the child graduating from high school.

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Don't Tell Mom about this... Co-Parenting Tips

March 17, 2015

co-parenting-don't-tell.jpgAll parents go through challenges, but co-parenting has unique issues that are not resolved by conventional problem-solving skills. For many parents, co-parenting can be a difficult adjustment, but you are not alone.

Many co-parenting problems can be resolved by having a conversation with the other parent. Other times, the use of a professional mediator, parenting coordinator or therapist can assist parents in formulating a plan or addressing co-parenting issues in a way that puts the interest of the child first. Still other times, intervention by the Family Court is the only solution. This blog discusses common problems faced by co-parents and some suggestions to address them.

The Other Parent Dislikes You

When relationships end, it is not uncommon for bad feelings to linger long after the separation. This can be especially difficult when there are children involved. While it may be difficult to be the bigger person in these situations, doing so will be better for your child in the long run. Keeping your children protected from these feelings is important, especially if your children are young. When your children are young, it can be difficult for them to fully understand the situation and process why their parents are not getting along.

If the other parent attacks you with disrespectful or vulgar words, you may need to take additional steps to protect yourself and your child from this type of behavior. In some cases, a Domestic Violence Restraining Order may be necessary. This decision is usually made when all other attempts to communicate with the other parent in a respectful and peaceful way have failed. Such requests are taken very seriously by the court, and should only be made when the circumstances warrant them. If you have any concerns about your safety and/or the safety of your child due to the actions of the other parent, you should contact the Family Court or an attorney who can assist you immediately.

You Never Agree with the Co-Parent

When you and the co-parent were in a relationship, if you disagreed with the other parent, one of you would give in or a compromise would be reached. During your relationship, you likely shared common values and beliefs about raising children. This often changes as time passes or when the relationship ends and two parents are raising a child together, but separately.

If you find that the co-parent never seems to agree with you, or that you never agree with the way the other parent is caring for your child, it is important to discuss these concerns together. It is possible to resolve many common parenting issues by sitting down and discussing expectations and beliefs about parenting. It is likely you and the other parent will have differences in the way you parent, but if the children's best interest is at the core of your co-parenting relationship, you should be able to find common ground. It may be necessary to seek the assistance of a mediator or therapist to assist in formulating a plan of action.

Your Child Says the Other Parent is Talking Badly About You

co-parenting-whisper.jpgThis is especially difficult when the messenger is your child. In some cases, the other parent is making direct comments to the child that reflects negatively on you. Other times, the co-parent makes comments to third-parties when the child is nearby and within earshot. Whatever the circumstances, this can be a difficult situation to handle. The last thing you should do is fight fire with fire. When children hear their parents talking badly about one another, it may cause them to feel worried or sad. These are feelings your child should not have.

You will need to speak with the other parent as soon as possible. As difficult as it may be, try not to be confrontational about the situation, as that may cause tensions to rise and the situation to worsen. You do need to be direct with the other parent, that even though your relationship has ended, you will continue to be connected to each other through the child. So while bad feelings may linger, the relationship needs to be respectful and polite for the child's sake.

If this does not resolve the situation, you may need to seek the assistance of the Court or an attorney to intervene on your behalf.

The Other Parent Breaks Agreements Often

If you find the other parent is breaking the court order or makes agreements with you and then breaks the agreements, it is important to address the situation immediately. Most child experts will tell you that children need consistency in order to thrive. If one parent is constantly breaking the court orders, it can be very difficult for the children to find this consistency.

You need to be firm and clear with the other parent that you will not stand for their violation of court orders put in place for the best interest of your child. Explain to the other parent that if they are unhappy with the court orders, you will discuss their concerns, but until a new agreement is reached, you expect the current orders to be followed. Make sure to document your attempts to work with other parent as well as a calendar of their violations of the orders.

If your attempts to work with the other side are not successful, it is important to contact your attorney or the court to intervene.

Co-Parent Neglects Child

I do not mean that the other parent is criminally neglectful, but rather neglects spending time with the child. This can be difficult in many ways. One, if the other parent and your child were close, it is difficult to see your child emotional over loss.

It can also be difficult to go from being a co-parent to a single parent where you are forced to shoulder all of the responsibility. You may need to look to family and friends to provide assistance. Discussing the situation with a therapist familiar with divorce and child custody issues can also be helpful.

Always keep the door open for the other parent to have a relationship with your child, but make sure the other parent knows it will be at a time that is convenient for you and the child.

In most cases, discussing the situation with the co-parent is the best route to go. In stressful or difficult situations, you may want to consider seeking out the professional help of a counselor or mediator. Whether the two of you work things out on your own or with the help of a professional, having an open mind and being flexible will yield the best results when problem solving. A co-parenting program like OurFamilyWizard.com can be helpful.

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Breaking Divorce News to an Unwilling Spouse

March 16, 2015

telling-spouse-to-divorce.jpgSometimes divorce is mutual and other times it's completely one-sided. Going into the "divorce talk" with your spouse, you typically know whether it's going to be a mutual decision or if it's going to be completely one-sided. But what happens when you know that you want a divorce but your husband/wife does not? Is there anything you can do to make the process less painful for the both of you?

Since it takes two people to get married, it's a common misconception that it takes two people to get divorced. But the truth of the matter is that getting a divorce can technically be done by just one spouse, even if the other spouse doesn't want to get divorced. However, if your spouse is opposed to the divorce then there is probably a higher chance that your spouse will want to litigate many issues and drag the divorce out for as long as possible to rack up those attorney fees.

If your spouse is reluctant to get divorced but you know whole heartedly that it's what you want, there are a few things you can do to mitigate the consequences. First, try to avoid letting your spouse find out about you wanting a divorce from someone else. Be the one to tell him/her directly. Getting divorce papers in the mail or a phone call from another family member or friend will simply fuel the anger and resentment if you haven't taken the time to prepare your spouse for what is coming. You married your spouse, so even though there may be some legitimate reasons for wanting to divorce him or her, muster up the courage and respect to try and let your spouse down easy.

telling-spouse-about-divorce.jpgNext, you can suggest to your spouse that the two of you go to counseling together. Having a third party there will help provide a safe environment for discussing the looming divorce. You may also be able to get a better understanding of why your spouse is so opposed to the divorce. Perhaps it is because of a fear of lack of financial stability once the marriage is over. If that is the case, you might consider giving your spouse more assets or conceding during settlement negotiations to pay more support.

In addition to going to counseling together, you can also discuss the possibility of mediation with your spouse. Many divorce attorneys also provide mediation services for spouses looking for a more amicable approach to the divorce process. If your spouse understands that you are willing to move forward with the divorce in a more open and friendly fashion then he/she may be less reluctant about the divorce. The mediator can help you focus on planning for your future rather than fighting about things that have happened in the past.

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SO YOUR EX QUIT THEIR JOB...NOW WHAT DO YOU DO? [Part Two - Spousal Support]

March 12, 2015

spousal-support-job.jpgIn Part One of this blog, I discussed the issue of income imputation (often referred to as earning capacity) in child support cases. The focus of the article was about your options if the other parent voluntarily quit their job and was seeking a modification of child support. As that blog explained income imputation (assigning income to a party that is not actually earned) is fairly straight forward based on California's significant state interest of ensuring parent's support their children. If you missed this blog, and you are facing a modification of child support based on the other party voluntarily quitting their job, I highly recommend you go back and read that blog.

But what happens if there are no children; or as is typically the case, there are orders for child and spousal support? Can you still seek to impute income at a party's previous income when they voluntarily quit their job? The short answer is yes you can.

Family Code Section 4320(c) lists the earning capacity of the supporting spouse as one factor to consider in making spousal support orders. ["The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. Family Code §4320 (c)]

Although Section 4320(c) speaks of earning capacity, the code does not specifically define what it means. For that answer we look to the case, Marriage of Simpson In Simpson, the California Supreme Court stated "'[E]arning capacity' represents the income the spouse is reasonably capable of earning based upon the spouse's age, health, education, marketable skills, employment history, and the availability of employment opportunities."

spousal-support-who-pays.jpgMany of the same principles associated with the imputation of income with regard to child support apply to the imputation of earning capacity for spousal support. Just as with child support, the three-prong test of ability, opportunity and willingness that is found in Marriage of Regnery must be proven for spousal support as well. This also includes the principal that no finding of "bad faith" is required to support an imputation of income.

For a very long time, the Courts held that there needed to be a finding of bad faith, or in other words a deliberate attempt to avoid paying spousal support, before a court could impute income for spousal support purposes. This holding came from the case Philbin v. Philbin (1971) 19 Cal.App.3d 115. And yes, it is the same Philbin your thinking of as you read the case name.

In Philbin, Regis Philbin was working as a comedian in the late 1960's, but his income had fallen dramatically since he left as Joey Bishop's sidekick on the nationally syndicated "The Joey Bishop Show." At the time the case was heard by the trial court, Regis' annual income dropped from $95,000 per year to $27,000 per year (or $635,000 a year to $181,000 in 2014 dollars.) The Court of Appeal ultimately held that imputing income to Regis was not warranted since there was no bad faith on his part.

However, more recent case law suggests that the requirement of a bad faith finding for the purpose of proving earning capacity is no longer required.

It is important to note the Appellate Court has refused to impute income to a supporting spouse who voluntarily quit his job when the decision was based on a decision to follow a path of good works and services. In Marriage of Meegan (1992) 11 Cal.App.4th 156, the court upheld the trial court's reduction of spousal support for a spouse who quit his high paying executive position to pursue a life in a monastery as a Catholic priest. The court held, the "[r]eduction [was] appropriate where Husband [was] acting in good faith and did not resign [his] job to avoid [his] spousal support obligations." It is important to note that Meegan addressed only a spousal support order and child support was not at issue. In fact, Mr. Meegan voluntarily agreed to pay $875 per month towards his 2 adult children's college expenses. I believe if child support were at issue in the Meegan case, the court would have made a different finding.

The Meegan case is an interesting example of a situation where the Court refused to impute income to a party who voluntarily quit their job and depressed their income. It also illustrates how very fact specific income imputation case can be. It is important to contact a qualified attorney to review your case and specific set of facts to determine whether an income imputation is appropriate.

The Court's authority to impute income to a party is not limited to situations where the party quit their job. If one party refuses to get a job, or has been unemployed for a long period of time, the court may consider imputing earning capacity in these situations as well. In this situation, the party who wants to impute income will need to seek the assistance of an expert, called a vocational evaluator, to provide evidence of the 3 factors discussed above.

Spousal support requests, especially when they involve a request to impute earning capacity to a parent, can be difficult to navigate without the assistance of skilled family law attorney, so it is important to discuss your case with a qualified attorney.

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