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Divorce Myths and Urban Legends Debunked

November 25, 2014

divorce-myths.jpgAs a divorce attorney, most of my clients come to see me for the first time with some misconceptions regarding California family law and/or divorce procedures. When clients mention divorce to family and friends their loved ones often have some input and suggestions based on personal experience or "horror stories" they have heard. While they are well-intentioned, family and friends may not be completely on point with their legal advice. Below is a list of common divorce myths and urban legends that I often spend time debunking with my clients.

"Title of Property Controls": Some clients come into my office assured that if a bank account, house, or retirement account is in his or her name it is "their" asset and will not be divided with his or her spouse pursuant to the divorce. Wrong. While title of property can be relevant to determining whether the property is community (and will be divided equally by a court) or separate (and will be confirmed to the title holder), title is not dispositive to the characterization of property. As a general rule, all property acquired during marriage (except by gift, inheritance, or devise) is community property and subject to equal division. This means that even if title to a vehicle is held by one spouse, that vehicle will be subject to equalization if it was acquired during marriage with community funds.

divorce-myths-custody.jpg"The Mom Will Get Custody": As we have previously blogged, there are many misconceptions about the role of gender in family law, especially regarding custody and visitation. Pursuant to the California Family Code, it is in the best interest of the child(ren) to have frequent and continuous contact with both parents. Legally, there is no distinction between fathers and mothers as the preferable parents.

"Spousal Support and the 10 Year Mark": The myths and urban legends regarding spousal support (commonly referred to as "alimony") in California are plentiful and most of them relate to the ten (10) year mark of a marriage. Although the length of marriage is a consideration for the court when it determines the length of time a paying spouse is obligated to pay spousal support, there is no minimum length of marriage required to receive spousal support. In addition, the length of the marriage has little to no bearing on the amount of support ordered.

"I Do/Don't Have to Maintain My Spouse's Health Insurance": On the issue of health insurance clients tend to believe what they want to hear. The paying spouse believes that when he/she files for divorce he/she can cancel the health insurance of his/her spouse. In contrast, the supported spouse who is often carried on his/her spouse's health insurance policy believes his/her spouse should maintain this policy indefinitely. Upon filing for divorce/service of the Summons (depending on whether you are the Petitioner or Respondent), Standard Family Law Restraining Orders take effect which prohibit cancelation of a spouse's health insurance policy. In addition, upon divorce, a party cannot remain on his/her former spouse's health insurance policy absent COBRA coverage.

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Making a Major Purchase Before Your Divorce is Final

November 24, 2014

divorce-asset-division.jpgAfter 23 years of marriage, Kris Jenner filed for divorce from Bruce Jenner. Sources say that Bruce "celebrated" his upcoming freedom by dropping $50,000 on a new NASCAR-approved UTV race car. Although the Jenners' divorce documents allege that their date of separation was back in 2013, a significant impulse buy before their divorce is even close to final could potentially cause some problems, when it comes to division of their property.

When couples go through a divorce, the court (or the parties via settlement) will make decisions about how to divide their assets and debts. Since California is a community property state, assets acquired during marriage are considered community property and thus subject to 50/50 split between husband and wife. Assets acquired before marriage or after the parties' date of separation, on the other hand, are considered separate property of the spouse who acquired it. However, issues can arise when a significant asset is purchased after the couples' separation but before their divorce is finalized. For instance, purchasing a new vehicle after separation may complicate a divorce as it relates to disclosure of assets and determining whether the new vehicle is indeed separate property.

divorce-calendar.jpgOne potential issue with purchasing a new car after separation is inadequate disclosure. Once a spouse files for divorce each spouse will be required to draft and exchange Preliminary Declarations of Divorce ("PDODs"). One aspect of the PDODs is the Schedule of Assets and Debts, which outlines all of the parties' assets and debts, including vehicles. If you have already exchanged your PDODs and then later purchase a new vehicle (before the divorce has been finalized), then you will need to disclose this new purchase to your spouse. You will likely need to augment your Schedule of Assets and Debts to reflect the new asset. The new vehicle will also need to be addressed in your Martial Settlement Agreement. It's important not to omit any of your assets from your final divorce paperwork, even if you are sure that the asset is your separate property.

Another potential issue with purchasing a new car after separation is determining whether it truly is separate property or not. If the date of separation is a contested issue, then determining whether the new car was purchased "during marriage" or "after separation" may be quite a problem. If you and your spouse cannot agree on a date of separation then it may need to be litigated in court. Once the date of separation is decided and it is clear that the vehicle was purchased after that date of separation, it does not mean that you are home free. You then need to look at the source of the money that was used to buy the vehicle. If you used your earnings that you acquired after separation then the source of the money was separate property. But if you used money from a joint account that you and your spouse acquired during marriage or if you traded in a community property car, then the new vehicle might not be your separate property.

It may be best to simply avoid buying any significant assets before your divorce is final. Unfortunately, divorces are often dragged out over a couple of years or more and thus it is unrealistic for parties to avoid making new purchases. Luckily for the Jenners, sources say that the couple has already reached an amicable settlement regarding the division of all of their assets, so it doesn't look like Bruce's recent vehicle purchase will pose that much of a problem.

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Date of Infidelity Doesn't Automatically Set Date of Separation

November 17, 2014

infidelity.jpgIt comes as no big surprise that Katharine McPhee, American Idol finalist and actress in Smash and Scorpion, is divorcing her husband, Nick Cokas after six years of marriage. The couple became estranged about a year ago when McPhee was photographed kissing Smash director, Michael Morris, after the two of them had lunch together in Los Angeles. At the time, Morris was married, and actually still is married, to actress Mary McCormack.

TMZ reports that in McPhee's divorce documents she claims that she was separated from Cokas at the time of the kissing incident with Morris. Cokas, on the other hand, is claiming in his responsive divorce documents that the separation was actually in May 2014, seven months after the kissing incident between McPhee and Morris. The couple's date of separation is a significant point of contention because it will determine what portion of the money that Katharine has recently made will be considered her sole and separate property, rather than community property. McPhee has approximately $700,000 owed to her from Columbia/Epic records, so this isn't exactly a small chunk of change that we're talking about.

Although the public might assume that kissing someone other than your spouse means that the married couple is separated, this isn't necessarily true. From a legal perspective, a couple's date of separation is the first date when either party subjectively decided the marriage was over, and not salvageable, and their overt actions demonstrate that subjective frame of mind. Physical separation is not sufficient to show that you are separated because some people live separate but do not intend to end their marriage. The Court will look at your conduct toward each other to determine when the marriage "ended" for purposes of choosing the date of separation.

An instance of infidelity is also not sufficient to determinatively set the parties date of separation. Since the kissing incident, it was reported that McPhee and Cokas were working on their marriage and that Morris and McCormack had also reconciled. McPhee and Cokas were even see walking their dogs together and smiling. Cokas also claims that he has plenty of evidence to show that they didn't separate until May 2014. He claims that he has emails and texts evidencing their relationship. Other sources also claim that the couple was in marriage counseling after the kissing incident in an effort to save their marriage. So just because McPhee was caught kissing another man, doesn't mean that was their date of separation.

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Heidi Klum and Seal Finalize Divorce with the Help of a Post-Nup

November 4, 2014

heidi-klum-seal-divorce.jpgHeidi Klum and Seal are officially divorced and back on the market. TMZ reports that their split was actually quite amicable and they had no issues with dividing property and figuring out spousal support thanks to a post-nuptial agreement that they signed after marriage. Although they did not have a pre-nup, their post-nup kept most of their earnings separate and their divorce process was streamlined because they didn't fight over money. It is reported that neither party will get spousal support from the other and they have even worked out a custody agreement for their four children.

If couples, like Klum and Seal, marry without a prenuptial agreement (aka "pre-nup") there is still an opportunity to enter into a legally binding agreement regarding property division and support in the event of a divorce. They can do so after they are already married in what is known as a post-nuptial agreement (aka "post-nup"). This is common when couples don't like the stigma attached with a pre-nup, have a very short engagement and don't necessarily have time to draft a pre-nup, have children from a previous marriage or perhaps their circumstances have changed such that they wish they would have taken the step to sign a pre-nup. Really the only difference between a pre-nup and a post-nup is that a post-nup is signed after marriage, rather than before. Other than that, it is still a legally binding agreement should the parties decide to get divorced later on.

A post-nup must be in writing and signed by both of the parties. While the parties are free to negotiate the terms of their post-nup, they should be fully informed about all of their assets and debts and they should be represented by independent counsel. Drafting a post-nuptial agreement is an opportunity for married couples to analyze their assets and debts and then set terms that are acceptable to both parties. It will allow the parties to gain a common understanding of how to handle contentious financial issues.

postnup-couple.jpgA post-nup might include designations regarding which assets and debts are to be considered separate property, the amount of spousal support to paid to one party, the right to manage or dispose of property, the role of a spouse in a business, and division of community property in the event of a divorce or separation. A post-nup might also address how to divide money in a blended family where one or both spouses have children from a previous marriage. However, a post-nuptial agreement cannot address child custody or child support. If the parties' marriage does eventually dissolve, the post-nup will essentially serve as the framework for drafting a marital settlement agreement.

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Iggy Azalea Has Never Been Married but Ex-Boyfriend Wants a "Divorce"

November 3, 2014

Iggy-common-law-marriage.jpg24 year old rapper, Iggy Azalea, and her former boyfriend, Maurice Williams (akak Hefe Wine) are apparently heading to family law court over an alleged marriage that Azalea apparently knew nothing about. Williams filed for divorce claiming that the couple was common-law married in the state of Texas. Williams claims that they held themselves out as man and wife and lived together beginning in September 2008, when Azalea was only 18 years old. Azalea, on the other hand, claims that they were merely dating for about six months and that Williams' is pulling this "divorce" stunt in a desperate attempt to get money from her now that she has become famous.

Common law marriage is a legally recognized marriage between a couple that does not have a marriage license nor had a marriage ceremony to solemnize their union. On her twitter account Azalea even states that "Unfortunately to file common law 'divorce' all you need is three of your friends to sign a statement swearing the persons story is true." If the Texas family Court judge recognizes the common law marriage between the couple, then all of Azalea's assets (i.e. music worth millions of dollars) acquired during the marriage could potentially be split 50/50 since Texas is a community property state.

common-law-marriage.jpgOnly a handful of states even recognize common law marriage. These states include Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Utah and Texas. In Texas, a common law marriage is only recognized when either a formal declaration of the marriage has been signed and filed with the County Clerk or the couple agreed to be married and then lived together in Texas as husband and wife and represented to others that they were married. If either party is under the age of 18 then a common law marriage will not be recognized. Azalea's rep claims that she never agreed to be married to Williams and she most certainly never held herself out as a married couple.

Before Williams and Azalea can even get a "divorce" Williams will need to prove to the court that they actually had a common law marriage. He will need to prove to the Court that he and Azalea agreed to be married, lived together as husband and wife and held themselves out to others as a married couple. One way to prove this is to have a recorded declaration of marriage, which is a form that is filed with the Couty Clerk's Offices and says that you are married. Since Azalea apparently had no clue about their alleged common law marriage, it is doubtful that they have a declaration of marriage. Other ways of proving their common law marriage is with an insurance policy, lease or other agreements signed as a "married couple. You could also bring people to court who will confirm that you held yourself out to be married.

If Williams and Azalea's situation had occurred in California, then Williams would not be able to file for "divorce" because California does not recognize common law marriage. In certain situations, partners in California who are not married might be able to bring what's known as a "Marvin Claim", but that is not the same as a common law marriage.

Continue reading "Iggy Azalea Has Never Been Married but Ex-Boyfriend Wants a "Divorce"" »

Should I Use an Expert to help with my Divorce?

October 28, 2014

divorce-expert.jpgIt is common in contested divorce cases for one or both parties to hire a family law attorney. Divorce attorneys are experts in the law; however, they are not all necessarily experts in specialized areas that some divorces involve. Throughout San Diego County there are a variety of experts who work with family law attorneys to help clients in the divorce process. Depending on the issues in the particular case, a psychological, vocational, medical, or financial expert may help the parties overcome impasse and move the case forward. However, although experts can be invaluable assets in a divorce, hiring an expert can be expensive and may lead to a battle of experts in the courtroom.

Financial Experts & Vocational Experts

Disputes over child support and spousal support can drag a divorce out for months or even years. When one spouse is self-employed, the parties often take vastly different positions on the paying spouse's income. In order to save time and significant attorney fees, some attorneys recommend hiring a neutral expert to conduct an income analysis. The financial expert will examine all materials provided by both parties and has the ability to request additional documents needed to conduct the analysis. The expert will then provide both sides with a report outlining his or her opinion on the self-employed spouse's income available for support.

If one or both parties disagree with the analysis for some reason, he or she may hire an independent expert to conduct a similar analysis or review the work of the neutral. However, if both parties accept the analysis, they can reach an agreement on support quickly and move forward in the case. In addition to performing an income analysis, a financial expert may also be hired to value a business or analyze various accountings.

Another common reason for a support dispute is a disagreement over the level of income one or both spouses should be earning. If one or both parties are unemployed or underemployed the parties can hire a vocational expert to conduct an evaluation of the ability and opportunity for the party to become employed. Pursuant to the findings of the vocational expert, the parties can agree to impute income to the unemployed or underemployed spouse.

Psychological Experts

Just as support disputes prolong the divorce process, custody and visitation battles can do the same. Sometimes it is helpful for the parties to hire an expert to evaluate the custody and visitation issues and make a recommendation to the parties. In addition, psychological experts also may be hired to evaluate one or both parent's ability to parent the children. Therapists can be used in family law cases to conduct reunification therapy in an attempt to repair the relationship between one party and his or her children.

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Upcoming Changes to Family Code Section 4323(a): Same-Sex Equality

October 21, 2014

same-sex-equality.jpgGender neutral language has not always been present in the California Family Code.
For instance, the current California Family Code Section 4323(a)(1) reads as follows:

"Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1." [emphasis added]

In other words, as the current provision stands, if you are paying spousal support to your ex-wife and she is now living with a member of the opposite sex (i.e. a new boyfriend) then a family law judge will presume that your ex-wife doesn't need as much spousal support and you could perhaps petition the court for a modification of spousal support. This of course is merely a presumption, not a certainty, so your ex would have an opportunity to show the judge that there is not a reduced need for spousal support.

The problem with the provision as it is currently written is that many divorce attorneys represent clients who are paying spousal support to their ex who is actually cohabiting with a same-sex partner, with whom they are in a romantic relationship. If your ex-wife is now living with a female roommate and you have established that their relationship is indeed intimate then you would want the family law judge to presume that her need for support is now reduced. But because the presumption only applies to cohabitation with a person of the opposite sex, herein lies the problem that many San Diego attorneys come across.

However, in July 2014, Governor Jerry Brown passed Senate Bill 1306, which will remove biased language from the California Family Code and instead recognize married spouses equally, regardless of their gender. With the passing of SB 1306 and the subsequent changes to Family Code Section 4323 (a)(1), gender distinction in this family code section is essentially being rendered obsolete. Family Code Section 4323(a)(1) will read as follows and will take effect on January 1, 2015:

"Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a nonmarital partner. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1." [emphasis added]

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The Neely's File for Divorce

October 13, 2014

Neelys-divorce-001.jpgStars of the hit Food Network show Down Home with the Neelys, Gina and Pat Neely are getting divorced after twenty (20) years of marriage. Gina and Pat were high school sweethearts and have built a family brand consisting of products and restaurants across the United States. The Neely's show Down Home with the Neelys is a cooking demonstration show that features the fun banter between husband and wife. Gina and Pat's careers are so carefully intertwined with their relationship as a married couple that they will each have to pursue a new path after separation. In addition, the Neelys will have to divide up the empire they established throughout their twenty (20) years of marriage.

According to media reports covering the Neely divorce, the Neely's were on the verge of separation when they were discovered by the Food Network and offered their own show in 2009. The Neelys were surprised when the show became a fast hit and decided to ride the wave out and garner fame. Pat Neely believes that his former wife will not sustain the same level of success after their separation because he was the only trained chef and because most of the recipes the couple featured are owned by his family. Gina plans to branch out and develop her own brand of Green Giant products.

Although the Neelys are getting a divorce, they do not plan to sell their popular barbeque restaurants. If the parties to a divorce reach an agreement regarding asset division outside of the courtroom, they have the ability to craft creative terms that fits the best interests of both parties. In the Neely divorce, the parties will be able to create a marital settlement agreement that allows them to keep their restaurants in tact while dividing responsibilities and income accordingly. The lawyers will have the difficult task of drafting appropriate enforceable provisions that allow the parties to continue to jointly own their restaurants.

When divorcing parties want to work towards an agreement whereby they continue to jointly own an asset after separation, an experienced family law attorney will carefully discuss the pros and cons of that arrangement with his or her client. While it will seem appealing for the parties to keep their assets in tact and still reap the profits, it can become complicated when the relationship changes between the parties. Depending on the level of animosity and the level of involvement necessary for the parties jointly own an asset, it may or may not be beneficial for a divorced couple to jointly retain property. One possible solution to the issues that arise when divorced parties who wish to jointly own an asset is to create an arrangement where the parties have the least amount of interaction possible. Overall these agreements can be successful if they are drafted properly and each party clearly articulates his or her expectations.

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Cheaters Never Prosper - Signs of an Unfaithful Spouse

October 3, 2014

unfaithful-spouse.jpgAmber Rose recently filed for divorce from rapper hubby Whiz Khalifa. According to TMZ, she's convinced that Khalifa has been cheating for quite some time now and making excuses that just don't add up. When Rose wanted to join Khalifa on tour, he allegedly told her that she should stay home with their 1 year child instead. But Khalifa is convinced that it's Rose who has been the one cheating and that she's accusing him just to cover up her own infidelity.

Unfortunately many divorces, not just celebrity divorces, stem from an unfaithful partner. Unfaithfulness leads to a lack of trust between the spouses and then typically a complete breakdown of the marriage itself. Although finding out that your spouse is or has been unfaithful can be extremely painful for you and your family, here are some warning signs that you can look for to help determine whether your spouse has been or is on the verge of being an unfaithful partner.

1) There are extended periods of time where your spouse is unaccountable
2) Your spouse is spending more and more time with his/her "new friend"
3) There is distance in the bedroom between the two of you
4) Your spouse has a sudden need for privacy regarding his/her computer activity, cell phone activity, credit cards, etc.
5) Your spouse is requesting space to figure out his/her feelings
6) Your spouse's typical work habits change (i.e. working much later or odd hours)
7) Your spouse is having secretive phone calls

unfaithful-spouse-california.jpgIf you can answer yes to any of the above then it might be time for you to consider talking to a family divorce lawyer. However, keep in mind that even though most people agree that adultery is wrong, California' s divorce laws are actually forgiving of adultery. In fact, California was the first state to implement the concept of a no-fault divorce in 1970. This means that California Courts will not consider infidelity as a ground for divorce. Family law judges in California also cannot order the "cheater" to pay spousal support simply because of his/her misconduct. Rather, spousal support is based on the financial needs of one spouse and the other spouse's ability to pay it. In California, adultery also does not play a factor is the Court's decision regarding child custody and visitation. Rather, California Court looks at what is in the best interests of the children.

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Getting the Kids Back to School for Newly Divorced Parents

September 19, 2014

divorce-school-1.jpgThe beginning of a new school year is an exciting and stressful time for children and their parents. Parents are worried about getting their children clothes for the cooler season, school supplies for new classes, and making sure they get back into the rhythm of homework and extra- curricular programs. If you are recently divorced, getting the kids back to school will be even more challenging and it is important to consider different issues which tend to arise. The following is a list of tips for newly divorced families to help ensure the first transition back to school is successful for the children.

Have a Meet and Greet with the New Teacher

It is important to the success of your child that parents and teachers are on the same page regarding the child's education and any behavioral issues. Especially if your child is established at his or her school, it may be a good idea to discuss your recent divorce with your child's teacher. Let the teacher know about the new custody and visitation arrangement and how your child is handling the divorce. Teachers at the school may be used to only calling or emailing a particular parent whenever an issue arises. To ensure the lines of communication are open, ask the new teacher to provide duplicate handouts to your child and to update both parents whenever he or she has information to report. That way both parents can stay equally involved in the child's education.

divorced-school-kids.jpgUpdate Contact Information with the School
Many divorcing parents opt to sell their marital residence in order to reduce overall costs for the two households which now must be financed. It is important to make sure your child's school is aware that your child has moved, if applicable. In addition, your child's school should have updated contact information for both parents.

Coordinate Child Sharing with your Co-Parent - not your Child
Now that a new school year has started, there are a lot of small details to be worked out regarding who will drop the child off at school, what time school starts, who will pick the child up from school, making sure homework is completed on time, and scheduling extracurricular activities. It is important to work these details out with your co-parent without involving the children. Putting the children in the middle of these discussions is stressful and confusing. Try to stay organized with your co-parent so that the children have a smooth transition between school and their two new homes.

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Does My Child's Custody Preference Count?

September 17, 2014

childs-custody-preference.jpgAt the core of a custody dispute in a divorce is your child. You may think that the child should be in your sole custody but your spouse might wholly disagree and think that the child should be in his sole custody. The court will take the both sides' arguments into consideration when determining custody division. But when will the Court look to the child and ask for his/her preference for living with mom and/or dad? Does the child even get a say in the matter?

The conventional thought has typically been that a courtroom is not a place for a child and as mature adults we should not be directly entangling children in custody disputes. Consequently, there was a time in California when a child's preference regarding custody after his/her parents divorced really wasn't considered by family law judges unless the child was in his/her late teenage years. However, a child's preference regarding which he/she lives with, how the child can make that preference known to the court and the appropriate age for a child to be able to make a choice has evolved over the years.

Family Code Section 3042 became operative in January 2012 and changed the game with regard to a child's custody preference. Family Code Section 3042 provides that: "If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation." Although the law does not require children to testify, if the child is 14 years of age or older and wishes to address the court regarding his/her preference for custody or visitation, the court is required to hear from that child absent a good cause finding that it would not be in the child's best interest to do so (and the judge states the reasons on the record). If the child is under the age of 14 and wishes to address the family law court regarding his/her custody preference, then the court may allow the child to testify "if the court determines that it is appropriate pursuant to the child's best interests." California Rules of Court 5.250 is intended to implement Family Code section 3042.

The above changes in the law are significant considering that previously courts seldom allowed children to testify. Again, no law or court rule requires children to participate in the custody proceedings in court. However, when a child wishes to participate, the court must balance its duty to consider the child's input with its duty to protect the child. While family law judges have the discretion to listen to a child's custody preference, this does not mean that the judge will follow every aspect of the child's preference.

Regardless of whether you are the parent who seeks custody based on your child's preference or you are the parent opposing your child's preference, we understand that this is a sensitive situation that could greatly affect your family and your relationship with your children. Our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California's child custody laws, we encourage you to contact us as soon as possible.

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Using a Credentialed Divorce Mediator in San Diego

September 15, 2014

Family Law Mediation.jpgAlthough divorce is typically filled with heavy emotions, the end result of the divorce process should be for couples to move forward to a happier life. Unfortunately, in today's legal system, many couples come out of a divorce feeling more embittered after litigating a divorce. Choosing to mediate your divorce case, rather than litigate it, provides a much less adversarial means of getting a divorce.

Mediation is very different from hiring an attorney and appearing before a Judge in court. Mediation is also different than both parties and their individual attorneys working together to settle a divorce case. Rather, mediation (as discussed below) simply involves two parties and a credentialed mediator. The mediator is a neutral person and does not represent either party. There are no attorneys or specialist present in this type of mediation.

Once you and your spouse jointly select and retain a mediator, the three of you will meet and work through the issues you need to resolve in order to end your marriage as amicably and cost effective as possible. The process is done in a controlled and non-confrontation process so that you and your spouse will ultimately be able to decide your own divorce terms based on what is best for the both of you and your children, if any. You do not have to follow the traditional rules of dividing assets and calculating support, but your settlement must still be fair and not against public policy.

Sometimes agreements between spouses come easy but when these agreements are harder to reach the mediator will intervene. The mediator's purpose is to help brainstorm ideas, keep the communication between the parties open and assist the couple with their decision making process by keeping them focused on the issues at hand. The mediator, unlike a judge, will not make any judgments or decisions. Rather, the mediator will facilitate the process and make sure that both parties' interests are met and that any decisions made by the parties are mutually satisfactory to both parties.

Once the parties come to a full and final agreement, the terms of the agreement will be drafted into a Marital Settlement Agreement. Each party will have an opportunity to review the Marital Settlement Agreement before signing. The Marital Settlement Agreement will then be filed with the San Diego Family Court with the required court documents and will then become an enforceable court order.

Mediation is an ideal choice for many divorcing couples. Not only is the process much quicker and less expensive than hiring an attorney to litigate, but it also gives both parties the power to create a unique solution to their divorce that best fits the needs of the parties. As a result, the parties have much more control over the potential outcome of their divorce.

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The Uncovered Secrets of Saving Money in a Divorce

August 11, 2014

saving-money.jpgAs a family law litigator, I see on a first-hand basis how much clients are shelling out just to get a divorce. The entire process can very quickly take a dramatic toll on someone both financially and emotionally. In today's economy, most of us don't have unlimited funds set aside to spend on a divorce. Instead, we would rather save our pennies for our children's college education, our retirement, our mortgage, paying off student loans, etc. If you are in this situation, consider the little-known secrets below from an attorney's perspective to help you save money on your divorce case.

Organize Your Documents for Your Attorney:
Often times, clients will just drop off a pile of documents that we have to sort through and try to make sense of. Keep in mind that your lawyer will never know your life as well as you do. So make it easier on your lawyer by providing him/her will a three ring binder with tab dividers and make a tab for each of your assets and their supporting documents. This will allow your lawyer to draft your declarations of disclosure much quicker and will reduce the amount of times your lawyer has to call you to get additional documents and information.

Don't Use Your Lawyer as a Therapist:
Sending lengthy emails to your lawyer about non-relevant legal matters or talking on the phone with your lawyer for hours about your situation will only serve to rack up your attorney fees. Unless it's truly relevant to your case, don't copy your lawyer on emails between you and your spouse. And think about getting a therapist to talk to instead of your lawyer. Chances are your therapist's hourly rate will cost much less than your lawyer's.

Email Your Lawyer Instead of Calling or Meeting in Person:
Most divorce lawyers charge an hourly rate. If you call your lawyer, he/she likely won't be available immediately and will instead need to schedule a phone call for a later time. Chances are that preparing for and taking the phone call will take more time than simply responding to an email. Same thing goes for meeting in person. If you just have a few simple questions that need to be answered, a quick email will likely take less time for your lawyer to review and respond rather than meeting with you in person.

Talk to Your Spouse:
It may seem impossible to talk to your spouse if you are amidst a heart-wrenching divorce. But if you can figure out a way to amicably talk to your spouse you will have a chance to settle smaller issues, like the division of household furniture or your frequent flyer miles, without accruing more attorney fees.

Separate Panic from a True Emergency:
Think about whether your situation truly warrants a phone call to your attorney. Perhaps a phone call to the police would better serve your interests. Or if it's 4:00 pm on a Friday and you know that your attorney won't be able to go to court or get ahold of opposing counsel, perhaps you should wait it out.

Choose Your Lawyer Wisely:
Choosing the right lawyer can make all the difference in your divorce case. You want to choose a lawyer who will see you as a valuable and important client at the firm. Hiring the biggest firm in town might cause you to get your case ignored if you don't fit or exceed their client profile. Also, keep in mind that a lawyer who practices exclusively in family law and is a certified family law specialist will likely have more knowledge about the divorce process than a lawyer who just does family law on the side.

Unless Truly Necessary, Avoid Changing Lawyers Mid-Divorce:
If you change lawyers mid-divorce, your new lawyer will have to charge you to review your file and try to catch up, which will likely cost you a considerable amount of money that could have been avoided by just sticking with your original lawyer.

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Divorce and Marriage World Records

July 28, 2014

divorce-records-couple.jpgAt some point during your divorce you will inevitably be feeling emotionally drained. You may feel like the only person in the world going through your type of situation or you may wonder if there is hope for you to someday remarry again. Here are some fun facts regarding world record holders for marriage and divorce to help lighten your mood for those difficult times during a divorce.

According to the Guinness Book of World Records:

Highest Divorce Rate:
The Maldives is the country with the highest divorce rate in the world. The Maldives has 10.97 divorces per 1,000 inhabitants per year. The Unites States is third in line, with 4.34 divorces per 1,000 inhabitants. So even when you feel like the only one going through a difficult time, think of all the other people going through a divorce right alongside you!

Hollywood Stars to Marry the Most Amount of Times:
We are constantly hearing the latest gossip about celebrity marriage and divorces. Well, Lana Turner, Mickey Rooney, Zsa Zsa Gabor, Elizabeth Taylor and Georgia Holt, have surely had plenty of attention as they have each been married eight times. So even if you're going through your second or third divorce, just remember that some people have gone through seven divorces!

divorce-records-hands.jpgOldest Person to Get Divorced:
Harry Bidwell of the United Kingdom is the oldest known divorcee. He divorced his 65 year old wife on November 21, 1980 at the age of 101. Just imagine trying to handle all of the divorce paperwork at age 101, seems a bit daunting. Bidwell is proof that you're never too old to get divorced.

Oldest Couple to Get Married:
In February 2002, Francois Fernandez and Madeleine Francineau exchanged marriage vows in France at the age of 96 years 290 days and 94 years 201 days, respectively. Even if your dating life seems bleak during or after a divorce, remember that there is still hope of finding a mate as you get older.

Most Marriage Vow Renewals by the Same Couple:
Apparently one wedding wasn't enough for US couple Lauren Lubeck Blair and David E. Hough Blair, who as of November 2011 have renewed their marriage vows 101 times since they first got married in 1984. Additionally, all of those wedding ceremonies have been in separate locations. Oddly enough, the first time that David proposed Lauren said no!

Couple to be Married the Longest:
If you're thinking about getting married again after your divorce maybe you should get some advice from Herbert Fisher and Zelmyra Fisher who, as of February 2011, were married for over 86 years.

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California Divorce 101

July 22, 2014

community-property-split.jpgThe practice of divorce law can be a complicated process; however, family law can be boiled down to the following basic areas: property division; child custody and visitation, support, credits and reimbursements, and attorney fees and costs.

Property Division
In every divorce case the parties must characterize and divide all of the property they own. Absent a different agreement by the parties, all property acquired during marriage by either party is community property and should be divided equally. All property acquired prior to marriage or post-separation is the separate property of the acquiring party. In addition, all property acquired at any time by gift, devise, or bequest is the separate property by the acquiring party. These basic principles are the guidelines for division of property in a divorce case.

Child Custody and Visitation
If divorcing parties share minor children, they must reach an agreement (or receive an order from the court) regarding legal and physical custody of their children. Legal custody is the right to make decisions regarding the health, wellbeing, and education of a child. In most divorces, the parties agree to share legal custody. Physical custody is the determination of how the parties will share time with the child. Disputes over visitation and timeshare have the potential to drag a divorce case out for years. If the parties keep in mind that the gold standard for custody and visitation is the "best interests of the child" they should be able to resolve custody disputes amicably.

Support
community-money-1.jpgIn all divorce cases the parties must address the issue of spousal support in order to determine whether it is appropriate under the circumstances. If the parties have minor children they also must consider whether child support is appropriate. As a basic starting point, the parties or their counsel can use the DissoMaster program which provides guideline child and spousal support amounts based on both parties' income, tax status, and other guideline deductions. Although the law regarding child support is different than spousal support, guideline amounts are a great starting point for discussion.

Credits and Reimbursements
Separating one household's finances into two can be a complicated process. Post-separation, both parties typically pay for expenses incurred by or for the benefit the other. In addition, one party may also have exclusive use and possession of a community asset such as the marital residence. Depending on the case, the parties may want to create an accounting of their requests for reimbursements and/or credits. These requests are within the court's discretion and the parties do not often get a dollar for dollar reimbursement for each joint expense paid post-separation. Further, credits and reimbursements are often offset against support that was not paid during the beginning of the divorce process.

Attorney Fees and Costs
If either party is represented by counsel in the divorce process, the parties must determine how responsibility for attorney fees and costs must be allocated. If the parties cannot resolve this issue by agreement, the Court will determine the proper allocation of attorney fees and costs.

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