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.

The Discovery Process in Del Mar Family Law

September 24, 2012

440835_the_great_detective.jpgDiscovery is an important tool for any party to use in a Del Mar family law case. Through the process of discovery, parties can obtain the information necessary to reach an agreement or decide which issues are contested. Discovery tools include: interrogatories, demands for production, depositions and subpoenas. Each tool is used to obtain a specific type of information from a particular litigant, witness, or third party. Although family law attorneys usually propound and respond to discovery, the client can have a vital role in lowering costs and ensuring the process goes smoothly.

Once a family law case has been filed or a spouse is anticipating filing for divorce, each party is under a duty to preserve evidence. The court encourages parties to freely exchange information so that the court can have a complete picture of the case. Any destruction or spoliation of evidence is punishable. As a client, as soon as you know that you will be involved in litigation it is crucial to begin organizing all relevant information. Attorneys need a complete view of your finances in order to calculate possible support or to begin analyzing the division of the marital estate. The following is a list of records that will likely be important in your divorce: (1) tax returns for the past three calendar years, (2) Form W-2s for the last three calendar years, (3) a series of your most recent pay stubs, (4) all statements for each credit card and debt card as of the date of separation, (5) K-1 forms if relevant, and (6) accounting data such as QuickBooks if relevant.

The date of separation is often a focal point of the discovery process. The marital economic community ends upon the date of separation. Under the California Family Code, the date of separation occurs upon the conversion of two factors. First, the parties must effect a physical separation and second, at least one party must have the subjective intent not to resume the marital relationship. The parties can only accumulate community property during the marital economic community. Thus, any property acquired or earned after marriage until the date of separation is community property. As a general rule, community property is divided evenly between the parties upon divorce. Many San Diego spouses have a collection of credit and debit cards that both parties use on a regular basis. In a divorce, an attorney will need to know the balance of all of those accounts as of the date of separation. Printing out your most recent statements including those as of and surrounding the date of separation is an easy way to get a head start on the dissolution process. Additionally, if you know a divorce is pending, it is also prudent to gather your recent tax returns and pay stubs to provide to your attorney. The client's role in discovery is crucial, by preparing and keeping organized records, you can save your attorney time and save in legal fees.

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

New Case Shakes Up San Diego Family Law

September 20, 2012

1162219_dollar_army_4.jpgRecently the California Court of Appeal handed down a decision that has settled an ongoing dispute throughout San Diego family courts. Family law attorneys agree that spouses owe each other the highest duties of good faith during marriage and undoubtedly throughout the litigation process. This duty requires parties to keep each other informed of their current financial state by exchanging Declarations of Disclosure.

In the beginning of a dissolution case, both parties complete their Preliminary Declarations of Disclosure, which consists of an Income and Expense Declaration and a Schedule of Assets and Debts. By completing these two forms and their requisite attachments the parties provide their current assets, debts, income and expenses. These figures can help the parties settle disputes regarding property division, child support or spousal support. If the court will hear a motion regarding support, the parties must also file these disclosures with the court. The judge will use the information provided to set support amounts. Because of the immense reliance on disclosure of finances, the court takes the fiduciary duties of spouses seriously.

In the recent California case, In re Marriage of Sorge, the court was faced with a slightly different scenario. The parties sought a modification of support at the trial court level; however, they were already divorced and had reached a final resolution of their case. Wife argued that Husband breached his fiduciary duties because he failed to disclose a material change in his finances. Husband argued that he was under no obligation to disclose any changes because the fiduciary duties between spouses end upon a final resolution of the case. The trial court agreed with Wife and Husband appealed the decision.

In the case of spousal support, Wife argued that spousal fiduciary duties continued until the court lost jurisdiction to order support. In the case of child support, Wife also argued that the duties continued until the court lost jurisdiction, which usually occurs when the youngest child of the marriage reaches the age of 18. The Court of Appeal overturned local Judge Longstreth's decision and relied primarily on Family Code section 3660 et. seq. Under this section of the code, former spouses have the ability to ask the other spouse for an updated status of their finances once per year. The court reasoned that this code would be superfluous if the legislature intended continuing fiduciary duties to run between former spouses.

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.

Kris Humphries and Kim Kardashian Headed to Trial

September 18, 2012

The world watched as reality television star Kim Kardashian married NBA player Kris Humphries in August of 2011. However, the marriage lasted only seventy-two days and in October of 2011 Kardashian filed for divorce. Surprisingly, the bitter divorce battle has by far outlasted the short length of the marriage. Next month, will mark the one year mark since divorce proceedings began and the case is not likely to settle before then. Kris Humphries announced that he does not intend to settle with Kardashian and the case will likely proceed to trial. Considering the massive amount of witnesses Humphries intends to call (thirty three) and their fame and notoriety, it is no surprise that the trial has been delayed until 2013. The parties have found it difficult to coordinate the schedules of all people involved.

Considering the "iron clad" premarital agreement, the biggest question surrounding this drawn-out divorce is why the couple cannot settle. Kardashian wants her marriage to be over as soon as possible and it is clear that she has moved on with her life. Her and her attorney have no doubt sent over countless settlement proposals, all of which have been rejected. Humphries argues that Kardashian has been hiding information regarding her financial records ever since the beginning of their marriage and he intends to use the law to discover her "secrets." Humphries also alleges that the entire marriage was a fraud and that Kardashian only entered into it for publicity. Ironically, it was Humphries who skyrocketed from a no-name basketball player to signing a $24 million extension with the Nets.

Humphries specifically claims that Kardashian breached her fiduciary duties. Throughout a marriage and ongoing divorce proceedings, each spouse has the ongoing duty to disclose his or her assets and debts. Under California Family Code section 1101, "a spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse's present undivided one-half interest in the community estate." Humphries is "convinced" that Kardashian is hiding how much she made off of their wedding and during their seventy-two day marriage. He will have to convince a court and also show that his interest in that money was impaired in order to gain any recourse.

In the documents filed with the court, Humphries also states "a spouse may not make a gift of community personal property, or dispose of community personal property for less than fair and reasonable value, without the written consent of the other spouse." While it is true that each spouse has equal management rights of community property, management is not equal to gifting. If Kardashian gifted away community property in order to "hide" it from Humphries, he may have a claim to be reimbursed for that amount. Kardashian announced that she plans on asking the court to order Humphries to pay her attorney fees. She alleges that all of this legal action is not founded on the law and facts but rather is an abuse of the divorce courts. If she is successful, Humphries may receive a bill for over $250,000 from Kardashian's attorney.

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.

PayPal Co-Founder Divorce

September 13, 2012

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PayPal founder Elon Musk announced his divorce to actress Talulah Riley on the social media site Twitter. PayPal was created as a form of e-commerce, which would allow users to safely make purchases over the internet. Notably, in October of 2002, PayPal was purchased by the online shopping conglomerate eBay for a reported $1.5 billion. Musk and Riley met in 2008 and married in 2010. According to the Huffington Post, Musk proposed to Riley just a few weeks after filing for divorce from his first wife. Musk was with the first Ms. Riley for four years before they separated. The couple has two sons together.

The Musk-Riley divorce was final in July 2012, which puts the length of the marriage at approximately two years. Despite the short duration of their union, Riley reportedly walked away with $4.2 million. Although this amount may seem high, Musk's entire fortune is approximately $680 million. Riley's divorce settlement gave her 0.6% of Musk's wealth. Additionally, there is no indication that Musk will pay any spousal support to Riley.

One advantage to the quick settlement of such a public divorce is that the parties are able to avoid dragging the divorce out in the public eye. However, many speculate that Riley could have received a larger amount had she battled Musk in court. Under California family law, Riley would have been entitled to her community property share of the community estate. Community property includes all earnings of both spouses. This means that she could have been awarded one-half of Musk's earnings from the date of marriage to the date of separation. According to the terms of the settlement agreement, in addition to a $4.2 million pay out, Riley secured her Cartier watch, Gucci watch, various pieces of diamond jewelry and her Roadster.

Riley immediately received $500,000 and the rest of the agreed pay out is structured . After the divorce was finalized and the settlement was executed, Riley received an additional $900,000. Over the next nine years, Riley will receive the remainder of the settlement amount. Although this structured settlement may make payment easier for Musk, it keeps the ex-couple in each other's lives. For the next nine years they will have an ongoing financial relationship. It is interesting that a man with a $680 million fortune chose to structure the payments of a mere $4.2 million in this way. Many family law cases involve child custody and visitation disputes. In these cases, the ex-spouses have little power to avoid an ongoing relationship because their children inextricably tie them together.

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.

Halle Berry's International Move Away

September 10, 2012

Oscar-winning actress Halle Berry is entrenched in a bitter custody battle with her ex-husband Gabriel Aubry. The couple split in February of 2010 but has been in court recently fighting for custody of their four-year-old daughter, Nahla. Berry is now engaged to Oliver Martinez who is both a French actor and French citizen. Currently the main issue in the Berry-Aubry custody dispute is Berry's request to move with Nahla to France. Although her new fiancé conveniently lives in France, Berry claims that she is motivated to move by a desire to keep her daughter safe. Berry argues that the paparazzi are endangering Nahla. Unlike the United States, France has laws that protect celebrities from the constant snapping of photos by the paparazzi. Additionally, Berry's stalker Richard Franco has recently been released from prison and she argues that he is again a threat to her and Nahla.

Under California child custody laws, the standard for a move away case such as this depends on whether the parties already have a final custody and visitation order. However, regardless of whether a final order is in place, a judge will likely deny or grant a move-away request on the basis of the best interests of the child. Additional factors the judge will consider include but are not limited to: (1) the child's interest in the stability of the current arrangement, (2) the distance of the move, (3) the current relationship the child has with both parents, (4) the reasons for the proposed move and (5) any other factors the court deems relevant. Although Berry argues that the move is motivated by a good faith desire to protect her daughter, the Family Court Services recommendation suggests that the move is not in Nahla's best interest. Considering the distance between California and France, Nahla's relationship with her father would be deeply affected by the move. According to the report, Nahla has a close relationship with Aubry and separating her from her father would be detrimental.

Under California Family Code Section 7501, "a parent entitled to custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." The current custody arrangement between Berry and Aubry is unknown. If Berry is the primary physical custodial, Aubry could have an uphill battle in his challenge of the move-away request. However, if both parties jointly share physical custody of Nahla, Berry may have a difficult time convincing the judge that Nahla should be separated from her father.

As we have previously blogged, the Family Court Services report may have a dramatic impact on the outcome of a custody case. In this case, the mediator was concerned that Berry was currently entering her third marriage and requesting to move to her fiancé's home country. If this marriage did not work out, it would not be in Nahla's best interest to be uprooted once again. Despite the mediator's recommendation that Nahla not be permitted to move, the mediator was unhappy with the behavior of both parties. According to the report, Berry and Aubry were both admonished for not putting aside their "personal issues" for the sake of Nahla.

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.

Jennifer Aniston Refuses a Premarital Agreement

September 6, 2012

America has waited on the edge of its seat for Jennifer Aniston to find true love ever since her divorce from Hollywood bombshell Brad Pitt in 2005. This August Aniston announced her engagement to boyfriend Justin Theroux. The couple met while filming their recent comedy "Wanderlust." Because Aniston has obviously been husband shopping since her previous divorce, the engagement was not a big surprise. However, the media was shocked to learn that Aniston refused to consider a premarital agreement.

Advisors reportedly insisted that Aniston sign a premarital agreement in order to protect her current fortune worth an estimated $150 million and her future earnings. Aniston continues to star in successful films and is still collecting millions. According to a source close to the star, "Jen is a hopeless romantic, so money is the last thing on her mind now. The way she sees it, Justin is her soul mate, and she trusts him implicitly with every aspect of her life - including her finances." This decision has made Aniston's friends and family a bit nervous but she insists she is madly in love and that this marriage will last an eternity.

Under California Family Code section 1610, a premarital agreement is defined as "an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage." The parties to a premarital agreement essentially enter into a contract to avoid the community property system. The parties may contract with respect to the following: the rights and obligations of each of the parties in any property; the right to manage and control property; the disposition of property upon separation, divorce or death; and the choice of law governing the construction of the agreement. A premarital agreement only becomes effective upon the marriage of the parties. However, after marriage, the parties may amend or revoke the agreement. In order to revoke or amend a premarital agreement, the parties must do so in a signed written agreement. Oral modifications are unenforceable.

Without a premarital agreement specifying the distribution of property upon divorce, California community property laws will apply if Aniston and Theroux ever divorce. Any property earned by Aniston prior to marriage will be considered her separate property. Thus, her current 150 million dollar fortune should be safe if proceedings between her and Theroux are less than amicable. However, during marriage Aniston may inadvertently change the character of that separate property to community property. Therefore, it will be important for her to discuss the implications of her actions with an experienced family law attorney before making any changes.

Any income earned by either party during marriage is community property and subject to equal division upon divorce. This may seem like a small risk for Aniston but when considering Katy Perry's short marriage, it may not be. During her 14-month marriage to Russell Brand, Perry earned approximately $44 million. As community property, Brand has a good argument that the cash should be equally divided. However, like a gentleman, he refused to accept any of this small fortune. Hopefully if Aniston's marriage turns sour, Theroux will do the same.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only 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 Richest "Real Housewife" is Getting Divorced

September 4, 2012

Another "Real Housewife" marriage is over. Dr. Paul Nassif filed for divorce from Beverly Hills Housewife Adrienne Maloof. Originally, Nassif filed for legal separation in July but has now decided to proceed with a divorce. Maloof is worth an estimated $300 million but she did not earn that money simply by being a housewife. Maloof earned her millions as a co-owner of her family business named Maloof Companies. Maloof Companies is famous for its ownership interest in the Sacramento Kings and the Palms Casino Resort in Las Vegas. Although his fortune nowhere near rivals that of his wife, Nassif is worth an estimated $14 million, which he earned as a successful cosmetic surgeon.

The couple married in 2002 and has three children together, Gavin, 9 years old, and 6 year-old twins, Christian and Collin. Considering the large fortune at stake and the long-term nature of the marriage, the most prominent issue in the divorce will be the validity of a premarital agreement. According to Nassif's lawyer, Lisa Helfend, a premarital agreement is in place. The divorce petition affirms the existence of a premarital agreement. However, there is no indication of whether either party will challenge it. Depending on the terms of the agreement, Nassif may have a motive to argue that it should not be enforced.

Under California Family Code section 1615, a premarital agreement is not enforceable if the challenger proves either of the following: (1) that party did not execute the agreement voluntarily OR (2) the agreement was unconscionable when it was executed and, before execution of the agreement, certain conditions are met. In order for a premarital agreement to be declared unenforceable on grounds of "unconscionability" all of the following must have applied to the challenger: (a) he or she was not provided a fair, reasonable and full disclosure of the property or financial obligations of his or her future spouse, (b) no effective waiver of disclosure was executed, and (c) he or she did not know or have reason to know of the property or financial obligations of his or her future spouse. The issue of whether a premarital agreement is "unconscionable" is a question of law and therefore decided by a judge.

In the Maloof-Nassif case, the judge will determine whether there was full disclosure or waiver of disclosure of Maloof's assets and liabilities prior to the execution of the premarital agreement. To be effective, any waiver must be express and in writing. Additionally, a premarital agreement is not executed voluntarily unless the court finds Nassif was represented by independent legal counsel at the time of signing the agreement or effectively waived this right. As we have previously blogged, Nassif must have been given seven calendar days between the time he was presented with the agreement and the time the agreement was signed. Likely in this case, independent legal counsel represented Nassif when he signed the agreement.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only 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.

Grandparents and the Aftermath of Divorce

August 30, 2012

13997_grandparents.jpgBefore and during marriage, grandparents can provide substantial financial and emotional support to a family. Grandparents often pay for weddings, put down payments on the family home, and create college funds. In addition to lending or gifting money, grandparents also volunteer to babysit daily when both parents have to return to work. The grandparent who provides daycare often transports the children to extracurricular activities and enriches their education. Grandparents may also volunteer to take the children for overnights when the parents need a date night and time alone to nurture their relationship. During marriage, grandparents can play an integral role in child rearing. However, this potentially close and beneficial relationship between grandparent and grandchild may not be so honored upon divorce.

According to the statistics released by AARP, the average grandparent spends approximately $1,000 on his or her grandchild each year. However, despite their generosity and support, grandparents receive little protection in a divorce proceeding. Upon divorce, for a variety of reasons, one parent may limit the visitation of a grandparent. The grandparent may be prohibited from visiting with his or her grandchild while that child is in the care of one parent. The consequences of this prohibition can be devastating if the hostile parent is awarded physical custody while the other is only permitted specific visitation. This sudden change in the grandparent-grandchild relationship is traumatizing for both parties involved.

Although many grandparents attempt to intervene in divorce proceedings to assert their rights to visitation, they are rarely rewarded with victory. In 2000, the United States Supreme Court decided the case of Troxel v. Granville. In this case, grandparents petitioned for visitation rights after the mother limited visitation to one day per month and some holidays. The Supreme Court relied on a parent's fundamental right under the Constitution to make decisions regarding the upbringing of their children in making their decision. The Court held that requiring a parent to facilitate grandparent visitation against his or her wishes violates that parent's right to make decisions regarding the "care, custody and control" of his or her children. Despite this particular holding, the Court did not find that visitation laws are per se unconstitutional, therefore California still allows grandparents to seek visitation rights.

In certain cases, parents are arguing that they should be required to pay less child support because the other parent is receiving support for the child from a grandparent. In order to avoid this argument, experts are dissuading grandparents to directly provide cash to help pay for the child's expenses. Instead, they suggest the grandparent pay directly for a particular activity such as school, tutoring, or art classes. The most beneficial contribution to the child may be to create a trust or savings account that can only be used for college. Although at the time the children may not see these contributions as a fun gift from their grandparent, they will see the benefit when they are not saddled down with thousands of dollars of student loan debt.

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.