Legalizing Polygamy?

November 22, 2012

1215912_paper_chain_in_the_dark.jpgAs we have previously blogged, it is illegal in San Diego for any married person to marry anyone other than his or her current spouse. Polygamy describes a marriage between more than two people. TLC brought the spotlight to this mysterious form of marriage with its reality show Sister Wives. Sister Wives is a show about the Brown family in which one man is married to four different women. After the show aired, rumors spread that the authorities were investigating the Browns for polygamy. The thought of criminal prosecution for their lifestyle forced the Browns out of the State of Utah, where they were living, to Nevada where they believed they would be more easily accepted.

Although Utah authorities investigated the Browns, many people are speaking out against laws prohibiting polygamy. Polygamy is often linked to the Mormon faith, thus those who are speaking out against its prohibition cite laws protecting religious freedom. Those condemning anti-polygamy laws argue that the laws inhibit religious freedom in the same way that laws prohibiting contraception did.

Legally, polygamists argue that anti-polygamy laws violate the U.S. Constitution's Free Exercise Clause. The Free Exercise Clause prohibits the states from imposing restrictions on someone on the basis of the person's religious beliefs. The state may only impose a restriction if that restriction is necessary to achieve a compelling state interest. However, a law of general applicability, which only incidentally burdens religious practices, will not be subject to invalidation. Any state which prohibits polygamy defends this law by arguing that a compelling interest (protection of women and children) exists and that anti-polygamy laws are necessary to achieve that compelling interest.

Not all those speaking out support the movement to overturn anti-polygamy laws. In fact, some academics argue that polygamy is dangerous and harmful to all participants. They allege that in polygamist communities women are forced to marry early, rivalry sparks as new wives are added to the family, children suffer with limited resources to be shared in extremely large families and men are ostracized as they rival other young males. The supporters of the anti-polygamy laws are afraid that this type of legal movement would result in religious communities that are permitted to make their own sets of laws to live by.

The strength of the movement to overturn anti-polygamist laws has yet to be seen. With all of the recent changes regarding same-sex marriage throughout the United States, polygamy could be the new frontier for legal marriage evolution.

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.

Dennis Quaid's Wife Files for Legal Separation

November 20, 2012

After eight years of marriage to the famous actor, Dennis Quaid's wife, Kimberly Buffington, recently filed for legal separation. In March of 2012 Buffington filed a petition for dissolution of marriage citing "discord or conflict of personalities" as the reason for the split. However, just three months after she filed, Buffington withdrew her divorce petition. The couple seemed to be working on their relationship when they celebrated their eight-year anniversary in Bora Bora. In her petition for legal separation Buffington requested joint legal and physical custody of the couple's twins. Additionally, Buffington asked the court to award her spousal support and order Quaid to contribute toward her attorney fees and court costs.

Quaid and Buffington recently moved to California from Texas. Although Buffington filed for legal separation, she reportedly intends to file for a full divorce once the six-month waiting period has expired. In California, only parties who have resided in the state for a minimum of six months may file for divorce in California family courts. Deciding to file for legal separation or divorce is an important decision. If a party files for legal separation, the court has the ability to make custody and visitation, support, and property division orders. Unlike in divorce proceedings, there is no requisite waiting period to obtain a legal separation.

In addition to the six-month residency requirement, there is also a six-month waiting period before the marital status of the parties can be terminated. This means that if the parties file for divorce and settle all disputed issues within a month, they still cannot be legally divorced for another five months. One strategy, which seems to be used here by Buffington, is to file for legal separation before the residency requirement is met in order to start the clock on the other six-month waiting period.

For the purposes of property division and support, the date of separation can be an important issue. Although Buffington filed for divorce in March, the date of separation will likely be much later due to the parties' attempted reconciliation. It is unclear when Buffington decided the marriage was over; however, two requirements must be met in order to establish a date of separation. First, the parties must live physically apart and second; at least one party must have the intent not to resume the marital relationship. Thus, any earnings and property acquired by either Quaid or Buffington during the attempted reconciliation will be deemed community property. As community property earnings and property will be split equally between the parties.

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.

What Could You Lose in a San Diego Divorce?

November 15, 2012

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In the 1950's it was common for a husband to be the breadwinner for his family and for a wife to stay at home to care for the children, but how much of that traditional stereotype persists today? In divorces, the traditional view of marriage creates assumptions such as "husbands are ordered to pay spousal support more often than wives" and "women are more often awarded custody of the children". A study conducted by the University of Michigan tends to show that these old traditions and stereotypical roles may still endure today.

According to the study conducted by the University of Michigan, each year approximately 115,000 women are left without health insurance following a divorce. Additionally, two years after their initial divorce, the health insurance rate for divorced women remains low. Many health insurance companies allow employees who receive health insurance benefits to claim their spouses as dependents for insurance purposes. This allows the employee to obtain health insurance on behalf of his or her spouse through his or her employer. However, upon divorce, employees are generally not permitted to claim former spouses as dependents. Therefore, any divorcé formerly covered by his or her spouse's health insurance must find new coverage.

The intriguing part of the University of Michigan study is that so many women, not men, are left without health insurance following divorce. Does this mean that men are typically still the breadwinners in modern marriages? The study also noted that even employed women had a difficult time maintaining health insurance through their employers. Because of the financial difficulties that can come with divorce, many women had to sacrifice paying health insurance premiums in order to pay for basic necessities.

As the traditional stereotype perpetrates, women tend to work part time jobs in order to be available to care for the children. These lower paying part time jobs tend not to offer health insurance. According to the study, the greatest population of women at risk for losing health insurance coverage is women in moderate-income families. This is because higher-earning women can afford to keep paying health insurance premiums in addition to household bills following divorce.

It still remains unseen how the Affordable Care Act will impact the trend of divorced women losing their health insurance coverage. The Affordable Care Act has a number of provisions specifically designed to provide assistance to women so it may counteract some of the damage of divorce.

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.

Halle Berry International Move-Away Update

November 13, 2012

As we have previously blogged, Halle Berry is entrenched in a bitter custody battle with Gabriel Aubry. Berry and Aubry separated in 2010 and reached a custody agreement in 2011; however, the former couple's agreement did not suit Berry after she got engaged to Oliver Martinez. Berry intends to relocate to France with her new fiancé, Oliver Martinez, but requested the court's permission to bring her daughter along first. On Friday November 10th, the judge denied Berry's request to allow her daughter, Nahla, to move to France.

In determining whether to grant or deny a parent's request to move away with a child, the court must assume that the requesting parent will move regardless of the court's ruling. Although it is not generally reality, this presumption requires the court to consider if it would be in the child's best interest to maintain the same lifestyle or live further away from the moving parent. It is generally in a child's best interest to remain in the same neighborhood, attend the same school, interact with the same friends, and maintain as much stability as possible. This is because schedules and routines can help a child adjust to the separation of his or her parents. However, move-away cases present a more complicated scenario. The court must consider two alternatives: either the child will be uprooted from his or her current life or the child will remain in the same location without one of his or her parents.

The overriding concern in any move-away case is the best interest of the child. The judge in the Berry-Aubry case likely relied heavily on an independent custody report provided to the court. The report stated that Nahla had a close and meaningful relationship with her father. Thus, the court determined that it was not in Nahla's best interest to be separated from her father and reside primarily in France. In any San Diego custody and visitation case, the parties must attend mediation before the court will hear a custody and visitation motion. Generally, the parties will meet with a neutral at Family Court Services ("FCS"). If the parties cannot reach an agreement, the neutral will prepare a report, which will be filed in court. The parties may also agree to meet with a private mediator to negotiate custody and visitation issues. Private mediation is more expensive but can help the litigation process move more quickly.

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.

Rental Income is Income Available for Support

November 8, 2012

673031_apartment_for_rent.jpgOften in San Diego divorces, both spouses are unable to maintain the same lifestyle they enjoyed while living together. The lifestyle of the parties during marriage is called the marital standard of living. The financial reality of divorce is that it is more expensive to sustain two separate households than it is to sustain one. Thus, divorce can lead to an adjustment in spending, entertainment and square footage.

Spousal support is a tool used by Family Courts to attempt to equalize the living situation of both spouses. This is especially true if one spouse forgoes the opportunity to work for many years in order to take care of his or her children. If one spouse is the breadwinner and the other maintains the home and the children, upon divorce, the breadwinner will be able to support the same lifestyle but this would leave the non-working spouse with no ability to support him or herself and the children. Thus, the court will order the breadwinner to pay support to the non-working spouse in order for both to maintain similar standards of living post-separation.

Spousal support is calculated, on a temporary basis, using a guideline formula. The formula requires lawyers and judges to input both spouses "income" that is available for support. For a W-2 employee, this calculation is basic. The only factor to consider when determining income available for support is the gross wages from the spouse's tax return or year-end form W-2. Some spouses however, have attempted to artificially deflate this income available for support by taking a reduction in salary and instead receiving housing or car allowance perks from their employer. If the court recognizes an attempt to artificially deflate income, it may impute the value of perks received by the spouse as additional income available for support.

As stated above, both spouses will likely not be able to maintain the same standard of living they both enjoyed together during marriage. One way to relive some financial burden is for a spouse to allow a roommate to move in with him or her. With the extra financial contributions of a roommate, the spouse will be able to afford a larger and/or nicer residence. According to Family Code section 4058, gross income available for support is defined as "income from whatever source derived." In County of Orange v. Smith, the court interpreted this code section to include rental income paid by a roommate. Thus, rental income paid by a roommate is properly considered as income available for 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 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.

Oprah Winfrey, her Father's Divorce, and Evictions

November 6, 2012

Oprah Winfrey has become entangled in her father Vernon Winfrey's divorce. Vernon married his current wife, Barbara Winfrey, in 2000. Vernon's divorce papers contain allegations that Barbara engaged in "inappropriate marital conduct," which refers to an extramarital affair. In her response, Barbara accuses Vernon of violent outbursts including an incident where he chased her with a gun and threatened to pull the trigger.

During their marriage, the couple has enjoyed living in a $1.4 million dollar home in Nashville. The home is owned by a trust, which was created and funded by Oprah. Vernon filed for divorce in Franklin, Tennessee in June of 2012. As a result of the divorce process, the Davidson County Sheriff's deputies had an order to evict Ashley Williams, Oprah's stepsister, from the Winfrey marital residence. However, the attorney for the trust had the order rescinded. The relationship between Oprah and Barbara seems beyond repair; however, that tension does not seem to extend to Oprah's relationship with her stepsister.

According to the court papers, Barbara is seeking spousal support from Vernon and, although she pays no mortgage or rent, she claims her living expenses amount to $11,924 per month. Vernon claims that he has no financial ability to provide support to Barbara and, after bills each month, he is only left with approximately $282.33.

Unlike in California, Tennessee allows both "fault" and "no-fault" divorces. The no-fault grounds for a Tennessee divorce are: (1) irreconcilable differences and (2) spouses are not cohabitating and have lived in separate residences for at least two years. The fault grounds for a Tennessee divorce include: (1) either spouse has committed adultery (2) economic fault and (3) domestic violence. The Winfrey divorce papers seem to allege both adultery and domestic violence. Both parties deny the allegations against them and they may have been made to gain an advantage in the dissolution process. Economic fault can have a significant impact on the division of the marital estate.

In Tennessee, the court will consider sixteen factors when making an award of spousal support. Because it seems that the Winfrey's did not own much property, support will likely be the most litigated issue in their case. One of the factors considered by Tennessee courts is "the marital conduct of the parties during marriage." This is evidence of the fault aspect of Tennessee divorce law. In California, the only marital conduct that is relevant when setting spousal support is domestic violence. Extramarital affairs are irrelevant to the court's consideration of 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 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.

My Spouse the Spy?

November 1, 2012

377795_binoculars.jpgAs we have previously blogged, technology is playing an important role in San Diego divorces. Often, spouses use social media sites such as Facebook to gather information about their spouse to be used in the dissolution process. However, some spouses are taking the use of technology to a whole new level. Danny Lee Hormann did not simply peruse his wife's Facebook when he suspected her of cheating. Instead he installed a gamut of spy equipment in the family home, on the family computer, on his wife's cell phone, and in his wife's car.

Michele Mathias, Hormann's wife, became so worried that her husband was spying on her that she and their children searched the family home for recording devices and held whispered conversations on the lawn. Mathis argued that it was not only her family's privacy that was invaded, but the privacy of every person who sent her a text message or used her computer was compromised as well. The police pursued criminal charges against Hormann for stalking and he was sentenced to thirty days in jail. According to Hormann, when others hear his story they reply that they would have done the same thing.

This type of spying and information gathering results in the collection of more private information in a short period of time than the discovery process may ever be able to gather. However, many lawyers are questioning the legality of this behavior and what information, if any, can actually be used as evidence in a dissolution case. Under the U.S. Constitution, we all have a "reasonable expectation of privacy." This expectation of privacy is reduced in certain instances such as when a person is in public. Spying spouses have begun to argue that there is no reasonable expectation of privacy in a marriage.

Various states have begun to hear cases on this subject. In Nebraska the court determined that embedding a listening device in a teddy bear violated the Federal Wiretap Act. In Iowa, the court found that a spouse's privacy is violated if his or her spouse installs a camera in the marital bedroom. However at least five of the thirteen federal courts have determined that the Federal Wiretap Act does not prohibit marital surveillance. Only two have ruled to the contrary.

Although it is still unknown whether evidence obtained this way would be admissible in a dissolution proceeding, such spying can lead to criminal charges if it is done to harass or intimidate. In Del Mar and throughout San Diego County, depending on the facts of the case, this type of spying may lead to allegations of domestic violence and a domestic violence restraining order.

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.

Demi Moore and Ashton Kutcher's Divorce Battle

October 30, 2012

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

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

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

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

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

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

Domestic Violence and Spousal Support in San Diego

October 25, 2012

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

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

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

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

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

Temporary v. Permanent Spousal Support

October 23, 2012

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

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

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

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

When Will our Assets be Valued?

October 18, 2012

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

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

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

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

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

The Division of Gifts in a Del Mar Divorce

October 16, 2012

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

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

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

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

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

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

Child Protective Services Visits Honey Boo Boo

October 4, 2012

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

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

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

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

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

Can Parents Waive Their Parental Rights?

October 2, 2012

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

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

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

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

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

Evander Holyfield's Child Support Debt

September 27, 2012

Child support, if ordered, is an ongoing parental obligation that usually terminates when the child reaches eighteen years of age, graduates from high school, becomes married or is otherwise emancipated. The amount of child support owed is dependent upon a number of factors such as the income of both parties and the needs of the children. Child support is strictly enforced in a number of ways. Boxing champion Evander Holyfield recently learned that the court's ability to enforce child support extends to celebrities. Holyfield was held in contempt of court for failing to pay past due child support.

In San Diego County, the Department of Child Support Services (DCSS) is one state entity that enforces child support orders. Holyfield was pursued by the Georgia Department of Human Services, which serves a similar function as DCSS. The Georgia Department of Human Services includes the Division of Child Support Services. By the time that the State of Georgia became involved in Holyfield's case, his daughter, Emani Holyfield was eighteen years old and he owed $372,097.40 of unpaid support. By the time he was held in contempt of court, Holyfield's debt had reached a staggering $563,000.00. The court ordered Holyfield to make payments in the amount of $2950.00 per month. In order to get a head start, Holyfield immediately made a payment of $17,700.

To ensure future compliance with the court's order, the judge ordered a percentage of Holyfield's income be used to pay down the support debt. In California, a party or DCSS can file a Earnings Withholding Order for Support. This is commonly known as a wage garnishment. Pursuant to a wage garnishment, a part of the paying party's salary is given directly to the party entitled to either spousal or child support. It is important to note that a court must usually authorize a wage garnishment before an employer can enforce it.

The wage garnishment process can help the process of paying support move along smoothly for both parties. The party relying on the support will be sure to receive it on time and the paying spouse will not have to stress or worry about making the payments each month. Additionally, a garnishment further limits the contacts between the parties, which can be helpful in high conflict cases. While some parties may argue that a wage garnishment is embarrassing, it is a common method of collecting support. The payroll or human resources department of many organizations are highly familiar with the process because it is rather common. If you are entitled to support and the payor is delinquent or late in his or her payments, you may want to consider seeking a wage garnishment.

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.