San Diego Divorce Attorneys Blog

TMZ.com reports that Kris Humphries has filed legal documents in his divorce case appointing himself as his own lawyer. Now certainly Humphries, who also according to TMZ.com, makes $8 million dollars a year with the New Jersey Nets, can afford a lawyer. But what if he couldn't afford a lawyer? Could he request that Kim Kardashian pay his attorney fees and costs?

When one party has a need for attorney fees and costs, and the other party has an ability to pay (or make a contribution to) those attorney fees and costs, the court may grant an attorney fee request.

A new California Rule of Court governs requests for attorney fees and costs based on financial need as described in FC sections 2030, 2032, 3121, 3557 and 7605.

Continue reading "Will Kim Kardashion pay Kris Humphries' Attorney fees in CA?" »

The State of Alaska is reforming the way a divorce case proceeds through the court system. The new program named the Early Resolution Project is aimed at resolving divorce cases quickly and efficiently. One distinguishing characteristic of Early Resolution is the emphasis on settlement. Under the program, the Anchorage Superior Court addresses several divorce cases in one afternoon on a biweekly basis. On this afternoon, the parties are give free legal advice and encouraged to reach a mutually beneficial agreement.

Superior Court Judge Stephanie Joannides envisioned the program as a result of her experience in the Alaskan family court system. She was concerned because many divorce cases are assigned a court date that is several months after the initial filing. This waiting period caused the parties to become firm in their positions and unwilling to compromise. Judge Joannides proposed to attempt to resolve these divorce cases early in the process and has seen promising results. In the first year, eighty percent of cases settled as a result of Early Resolution.

Besides a quick resolution to the case, the Early Resolution program and others like it offer a number of fringe benefits to the parties. Like any case that settles early in the litigation process, a divorce settlement can save the parties a great amount of money. Litigating a family law case in San Diego involves filing fees, court costs and attorney's fees. If a case settles early, the parties will not be responsible for any further costs and fees. Another benefit to dispute resolution is the preservation of the relationship between the parties. Litigation has the tendency to ruin the relationship between the parties indefinitely. However, in family law cases involving children, it is crucial for the parents to maintain a co-parenting relationship. Although the California Family Code is often clear, family court judges have an element of unpredictability. The facts of a case may be disputed and therefore the outcome can be uncertain. If parties reach a settlement they are in control of the outcome of the case. In family law cases, the outcome often has life-changing consequences for both parties. In order to have input in the final decision, the parties much reach an agreement.

The San Diego family court system has a program similar to Alaska's Early Resolution Project. In San Diego, the family court judge will assign the parties a Mandatory Settlement Conference (MSC) date before any case will proceed to trial. Unlike in Alaska, the MSC will occur toward the end of the parties' case. The MSC will take place at the San Diego Superior Court where the parties have been litigating their case. A settlement conference judge will be assigned to the case. These judges are experienced local family law attorneys who have volunteered their time to help parties resolve their cases before trial. Because they have so much experience with San Diego family law, the settlement judges are able to help the parties predict what the judge will likely do at trial and reach a settlement agreement based on the probable outcome. The benefit to reaching an agreement during the MSC is avoiding trial. The parties are able to avoid the cost, time and emotional toll of a trial.

Alaska's Early Resolution Project also relies on local attorneys to volunteer their time to help needy clients. These attorneys are able to get family law experience without becoming entrenched in long drawn-out cases. Before the biweekly court appearance, the volunteers are able to scan the divorce case file and begin to formulate possible solutions for the parties. A MSC is slightly more formal in this respect. The parties to an MSC are required to submit a Settlement Conference Brief to the settlement judge at least five court days prior to the MSC outlining the disputed issues and their proposed solutions.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody. 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.

As a San Diego Divorce Attorney, when a client remarries, he or she often wonders if their new spouse's income will impact child support and spousal support. Recently, a client in the midst of a divorce in which status was previously granted (meaning the parties were no longer married) but the issues of spousal support and attorney fees were not yet resolved, who was about to remarry, asked about the impact of new spouse income on the issue of spousal and child support.

Previously, I blogged about the impact of new mate income on child support and spousal support orders. To summarize:

1) For child support, except in "extraordinary cases," new spouse or non-marital partner income is generally not considered when calculating guideline child support, although the court may inquire into a new spouse's income for the purpose of seeing how it would impact the remarried party's tax filing status and tax bracket when calculating guideline child support.

2) With regard to spousal support:
(a) For the spouse receiving spousal support, spousal support usually terminates when he or she remarries, and there is a presumption of a decreased need for spousal support of he or she is cohabitating with a member of the opposite sex.
(b) For the spouse paying spousal support, the new spouse/partner income is not considered when determining or modifying spousal support.

After explaining this to the client, I was asked if the new spouse income would have any impact on the prior spouse's request for attorney fees. The client wondered if the court would consider the new spouse's income when considering the prior spouse's request for attorney fees. My initial thought was there should not be any consideration of new spouse income, however after conducting some research, I found a 2009 case, Alan S. v. Superior Court , which held while new mate or partner income is generally irrelevant in child support matters, it is not statutorily irrelevant in pendente lite fee orders.

However, after a closer analysis of the underlying facts in that case, we believe the holding is limited to a narrow circumstances, as it was more of a case regarding how the court, in low and middle income cases, can achieve the legislative goal of assuring that each party has access to legal representation to preserve each party's right.

In Alan S., after a string of custody hearings and orders, the trial court ordered Husband to pay $9,000 to Wife for her attorney fees at rate of $300 per month. Representing himself, Husband appealed the decision challenging the attorney fee order. Husband claimed the order impacted his own ability to retain counsel.

The Court of Appeal found that the challenged orders appear to assure that, while Wife is well represented by obviously able and diligent counsel, Husband will be left to "haplessly flail away" and reversed the attorney fee order, with directions to the trial court to hold another hearing to consider all relevant matters affecting Wife'sfee request, including factors such as Husband's $800/mo deficit financed by credit cards; the assets of parties, including equity in residences; Husband's inability to afford to visit the children; Husband's $25,000 credit card debt for previous attorney and $1,800 per month child support obligation; and the new mate or "significant other" income of each party (Husband was cohabitating and Wife had remarried).

The Appeal Court's decision relied on Family Code §2032, which requires court to consider parties' needs considering the factors listed in Family Code §4320. Reading statutes together, the Appeal Court believed the statutes make it clear that the pendente lite fee award should be the product of a nuanced process in which the trial court tries to get the 'big picture' of the case, i.e., 'the relative circumstances of the respective parties'. In the Alan S. case, the trial court took a truncated approach, and the record did not show that the trial court considered a number of the relevant factors bearing on the case, including the new mate or "significant other" income of each party.

The Court of Appeal also relied on a case called In re Marriage of Geraci , in finding that the new mate or significant other income was relevant for attorney fee awards because of "possible economies of scale," coupled with the "expansive language of Family Code §2032--the relevant circumstances of the respective parties."

The case was remanded to the trial court. The trial court, on remand, would have to consider new mate and significant other income (among other factors) when reconsidering the attorney fee award, however, the final orders that were made by the trial court are unknown.

It seems that new spouse or significant other income only came into play in the Alan S. case because the attorney fee award prevented Husband from being able to afford to retain counsel for an upcoming custody hearing, while Wife was able to afford to retain counsel. More significant than new spouse or significant other income are the issues of need and ability to pay under Family Code Section §2030, as well as many of the other Family Code §4320 factors, such as the income, assets and liabilities of the parties.

Did you happen to catch CNBC's documentary Divorce Wars when it premiered last weekend? Promoted as "CNBC goes inside the confidential world of multi-million dollar divorce revealing the secrets of winning and losing on a battle field of emotional pain and financial gain", the show highlighted, among other stories, the creation of Balance Point Funding, a company that provides money from private investors to fund divorce litigation in exchange for a percentage of the divorce settlement. According to its founder, Stacy Napp, the idea for the company was born from the challenges she faced in funding her own divorce litigation.

While creative, this is not the only option for a divorcing spouse in California. Rather, as a San Diego Divorce attorney, I regularly file motions for a contribution from the other spouse to my client's attorney fees under Family Code Section 2030. This type of a motion is appropriate where there is a disparity between the parties in access to funds to retain counsel (in other words, "need"), and where one party is able to pay for legal representation of both parties (in other words, "ability"). The statute is designed to ensure that each party has access to legal representation, including access early in the proceedings, to preserve their respective rights.

While Family Code section 2030 addresses the allocation of attorney fees and cost, what about costs other than attorney fees and costs, such as court costs, expert fees and consultant fees? Family Code section 2032 provides a procedure by which either party may file a motion requesting that the court designate their case as complex or involving substantial issues of fact or law related to property rights, visitation, custody, or support. If the case is then designated as complex, the court has the discretion to allocate between the parties attorney fees and also court costs, expert fees, and consultant fees.