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Changing Your Mind from Legal Separation to Divorce

January 26, 2015

separation-divorce.jpgThe term "Legal Separation" and "Dissolution" are distinctly different in that a legal separation does not result in dissolving the marriage itself, while a dissolution of marriage does indeed dissolve the marriage and will return the parties to their single status. There are several reasons why a spouse may want to file a petition for legal separation rather than a petition for dissolution of marriage. Some common reasons are because of the person's religious background, an interest to maintain certain healthcare benefits, or perhaps because the parties do not qualify to file for divorce because they have not met the residency requirement (there is no residency requirement to file a petition for legal separation in California).

If you initially filed for a legal separation for one of the reasons listed above or for any other reason, but you decide that would prefer a divorce, then you will need to convert your case into one for divorce. In California, you are able to convert your legal separation to a divorce at any point during the legal process, even after your legal separation is final. Either spouse can be the one to request that the legal separation be converted into a dissolution of marriage.

FAQ's.jpgIf a judgment of legal separation has not yet been obtained (meaning that you have filed your petition for legal separation but the proceedings are still pending) and your spouse has not yet responded to your petition, then so long as the residency requirement is met, you (the Petitioner) can simply file an amended petition and check the box for "Dissolution of Marriage". Your spouse will need to be served again with the amended Petition. However, if a judgment of legal separation has not yet been obtained but your spouse has already filed his or her Response to your original Petition for Legal Separation, then you may need to request approval from the Court.

If a judgment of legal separation has already been obtained from the court and you later decide that you would prefer a divorce, then you cannot just file an amended petition. Instead, you will need to start over with a new case by filing a petition for dissolution of marriage and pay the filing fee again.

Regardless of the status of the petition for legal separation, either spouse can petition the Court for dissolution of marriage. Because of this, it is typically better to simply petition for dissolution of marriage from the get-go unless both parties agree to the legal separation or a legal separation would benefit one or both parties. Also, it is important to keep in mind that the six month waiting period to be returned to single status does not start ticking until the Petition for Dissolution of Marriage has been served on the Respondent, despite the status of the petition for legal separation.

Continue reading "Changing Your Mind from Legal Separation to Divorce" »

What Can You Learn From Looking at the Petition?

January 19, 2015

divorce-petition.jpgThe realm of family law, as is the case with pretty much all areas of law, is filled with lots of legal paperwork and legal jargon. Being able to understand and properly fill out the judicial council form is half of the battle for a layperson. These forms can provide you with a lot of information that will be helpful throughout your case. The divorce petition, for example, is one of the first forms filed in a family law action. Even without having a family law attorney to review and explain the form to you, you can easily learn a lot by yourself simply by taking a close look at the Petition from top to bottom.

The Petition (i.e. Form FL-100 on the top right corner) is a one page document (front and back) that you will receive when your spouse has filed for a divorce, separation or annulment. Beginning at the top left of the document, you can note whether your spouse has hired an attorney to represent himself/herself or if he/she is in pro per and intends on proceeding without legal representation. If your spouse has hired an attorney, the attorney's name, state bar number and address will appear in this box. You can then visit www.calbar.ca.gov to perform an attorney search or you can review various websites to get more information about the attorney that your spouse has hired.

Below the contact information section of the form, it will specify the address of the court. This will tell you where your case will be heard so you know whether you will have to drive to North County San Diego, downtown, East County, etc. to attend your court hearings.

Below your names, there is a box that indicates whether the Petition is for 1) Dissolution of Marriage, 2) Legal Separation or 3) Nullity of Marriage. This lets you know when your spouse actually wants a divorce or if he/she prefers to get a legal separation. If your spouse checked the Nullity of Marriage box then your spouse is contending that your marriage is not legally valid.

Under the section of "Statistical Facts" you can see what date your spouse is claiming is your date of separation. If you disagree, you can claim a different date of separation on your Response form. A family law attorney can help assist you in determining the appropriate date of separation to claim.

divorce-separation.jpgUnder Section 4 and Section 5 of the Petition your spouse should have listed all items that he/she contends are his/her separate property and which items are community property and subject to division by the court.

If your spouse has filed for either a dissolution of marriage or legal separation then he/she can either claim that the reason is because of irreconcilable difference or incurable insanity. This selection will be marked in Section 6 of the Petition. There are several reasons why a person can request a nullity of marriage. If your spouse is filing for nullity of marriage, his/her reasoning will be identified in Section 6 as well.

Section 7 of the Petition will give you an idea of what your spouse is requesting as far as custody of your children, if any, who will pay attorney fees and spousal support, etc. Please note that just because your spouse checks the box, does not mean that the court will order his request. Don't take these checked boxes at face value and remember that the law may not even support your spouse's requests.

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I was served with Divorce Papers - Now What?

January 13, 2015

DIVORCE-PAPERS.jpgSpouses who are served with divorce papers usually fall into one of two categories: completely shocked or not surprised. Whether you expected your spouse to file for divorce or not, receiving divorce papers can be an overwhelming experience. Likely you will served with a large packet of forms, some of which have been completed by your spouse and some of which are blank. In addition to the standard divorce packet filled out by your spouse, you will also receive notices issued by the court. All of this information can be confusing and difficult to process if you are not familiar with family law and procedure.

Once you are served with divorce papers one of the first thing you should decide is whether or not you want to retain an attorney at the onset of your case. An experienced family law attorney can demystify the divorce process and take over a lot of the work that needs to be done. In addition, the attorney will understand what the court requires of family law litigants and can ensure you do not miss deadlines and court appearances. At the Law Offices of Nancy J. Bickford, we offer a variety of services to divorcing parties. You can retain an experienced family law attorney to consult with you and answer your questions throughout the process or you can opt for full legal representation. In addition, we offer attorney-assisted divorce wherein our paralegal will help prepare all of the necessary divorce paperwork.

divorce-court-house.jpgIf you decide not to retain an attorney at the beginning of your case, you should begin to familiarize yourself with the courthouse where your case has been assigned and note any hearings which are currently on calendar. At the onset of each divorce case, the court will assign a judge to hear the case and may even notice the first status conference at which the parties or their attorneys are required to appear. After you have reviewed all of the documents served by your spouse, you will want to determine how contentious your divorce will be. Depending on the circumstances, you may want to reach out to your spouse in an attempt to discover what issues you agree on and which issues you and disagree on. If you both are in agreement to proceed amicably, you can discuss mediation with a professional or informal conversation to resolve disputed issues.

Regardless of how you and your spouse agree to proceed with the divorce, you should talk to a professional (either your attorney or someone at the family law facilitator's office) about the upcoming deadlines in your case and which forms you should be filing to protect your rights.

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Is a Nesting Custody Arrangement Right for Me?

January 5, 2015

nesting-custody-agreement.jpgTrying to figure out a custody arrangement that will work best for both yourself and your children can be difficult and overwhelming. One type of custody arrangement that is not often mentioned or considered is what is known as a "nesting custody arrangement." This type of custodial agreement (typically agreed upon between the parents rather than a court) means that the children will live full-time in the family home and the parents will share custody by taking turns living there with the children.

A divorce results in a lot of change for children. One of the big changes is that the children may feel like they have to uproot their lives, friends, and activities each time that the other parent exercises custody. A nesting arrangement might actually be best for your children because it will not require them to pack their bags every weekend (or whatever the custody schedule may require) to go to "mom's house" or "dad's house." Instead, the children can remain where they are comfortable and around things that are known to them. This is particularly important for children with disabilities, who would find it even more difficult to constantly change residences. Rather, with a nesting custody arrangement, the children's lives remain somewhat free of disruption, while the parents are the ones who are inconvenienced.

Although a nesting agreement may be the best for the children, it is possibly one of the harder arrangements for the parents. It requires a lot of cooperation and self-sacrifice on behalf of both parents. The parents must be on somewhat good terms with each other and be devoted to the concept of family, even though they are choosing to no longer live together. It also requires the parents to each have a second place to reside when it is not their "turn" to be in the family home.

nesting-custody-dad.JPGDepending on your specific circumstances, such as your financial situation, the level of tension between you and your spouse, the age of your children, whether your children have any disabilities, etc., a nesting custody arrangement might work best for you and your children. Perhaps it is an arrangement that you could consider trying out temporarily before setting anything in stone. Although it is an uncommon arrangement, it is one that should be explored more often if divorcing couples are truly looking out for the best interest of their children.

We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and 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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Tips for a High Conflict Child Custody Dispute

December 22, 2014

custody-case-conflict.JPGDespite the oppositional nature of family law, many cases are able to proceed through the court system with little to no hostility between the parties. However, for a variety of reasons, some cases are so high conflict that the parties' lives are consumed by their family law matter. This high conflict case structure is particularly common if custody and visitation is in dispute. In addition to the emotional and mental drain a high conflict case has on both parties (and their child(ren), conflict also drains the financial resources of the parties especially if one or both parties have retained counsel. If you think your custody matter is high conflict, here are a few tips on how to reduce further tension between you and your co-parent.

Adult Issues are for Adults: Although children have substantial information about your co-parent, never discuss custody/visitation or any other adult issues with children. Not only are such conversations detrimental to the children, but if discovered, could be used against the parent and result in reduced (or even supervised) visitation time. Further, must custody/visitation orders contain direct prohibitions restricting both parents' communication with the children about the pending case and any other adult matters. Thus, such conversations may be treated as a direct violation of a court order and could result in sanctions imposed against the offending party.

Implement only the Current Order: In a high conflict case, giving or requesting "one time" adjustments to the current custody/visitation order often leads to more problems. In these cases, it is best to stick to the exact language of your custody/visitation order or agreement. Further, when the court makes custody/visitation orders, it is important to request that the court be as specific as possible. This same rule applies to any negotiated custody orders. For example, ensure the order specifies the date, place, and manner of transfer for all exchanges. In addition, lay out a clear plan for holidays, school breaks, and special occasions. It is also important to limit the child's exposure to potential domestic conflict or violence and ensure the safety of all people involved.

custody-case-email.jpgCommunication is Key: Conflict tends to arise out of frequent negative communication between the parties. Communication could be considered harassing due to its volume or the tone of the parties' exchange. If one or both of the parties have "unfinished business" with each other after the break down of their romantic relationship, they sometimes try to hold onto that former relationship by attempting to "get to" the other parent through an ongoing custody battle. In order to avoid this type of conflict, make sure all communication is in writing (except in the case of an emergency). Restrict the topic of communication only to matters related to the children and keep a friendly tone with your co-parent. In some cases, the parties use a service called Our Family Wizard which records the written communication between the parties and makes it accessible to attorneys and even the judge on the case. Often, when parents are aware their communication is being monitored (particularly by the judge in their case), they tend to speak more civilly to each other.

We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and 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.

Continue reading "Tips for a High Conflict Child Custody Dispute" »

False Allegations of Child Abuse - Penalties for the Accuser

December 15, 2014

false-allegations.jpgIn family law, especially cases involving custody and visitation disputes, it can be tempting for litigants to make false allegations in order to get ahead in their cases. However, false accusations have no place in family law and in fact may be severely punished if discovered. San Diego family law judges take allegations of child abuse seriously and tend to err on the side of caution if there is any doubt to an allegation of abuse. There are three main statues which were enacted, in part, to deter the use false allegations of abuse as a litigation tactic by providing the following remedies to the falsely accused.

Supervised Visitation or Limited Custody/Visitation: Family Code § 3027.5 provides that the court may order supervised visitation or limit a parent's time with the child if the court finds the parent knowingly made false accusations of child abuse against the other parent. In order to prevail on a claim brought under this code section, the accused parent must also show that the accusations were made with the intent to interfere with the other parent's lawful contact with the child (particularly during the pendency of a custody proceeding). The court will also take into consideration whether supervised visitation or limited custody/visitation is necessary to protect the child's health, safety, and welfare balanced against the child's interest to have frequent and continuing contact with both parents.

false-allegations-child.jpgSanctions: Family Code §3027 provides family courts with authority to impose monetary sanctions upon any witness, party or party's attorney who knowingly makes false child abuse or neglect accusations during custody proceedings. The amount of the sanctions imposed will be calculated based on all costs incurred by the accused as a direct result of defending the accusation plus fees and cost associated with bringing the sanction request. It is important to note that the court may impose monetary sanctions in addition to (not in lieu of) any additional remedies requested. The requesting party, however, must be sure to bring his or her claim for sanctions within a reasonable time after clearing his or her name.

Mandatory Reconsideration of Custody Order: A parent falsely accused of child abuse or neglect has the option of pursuing criminal charges or a civil action against the accusing parent. If the accusing parent is convicted of a crime in connection with false allegations of child against the other parent, the falsely accused parent may move for reconsideration of the existing child custody order. A parent's motion for reconsideration of such an order must be granted under these circumstances.

We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and 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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Supervised Visitation as a Safeguard in Custody Cases

December 8, 2014

supervised-child-visitation.jpgThe state of California has a public policy to promote the best interest of the child when his/her parents have a custody or visitation matter in family court. In addition to promoting frequent and continuous contact with the child, the courts must make sure that the child is safe and protected. Sometimes as a safeguard in order to protect the safety of a child, a family court judge will place limits on the non-custodial parent's visitation with the child and order what is known as supervised visitation.

Supervised visitation means that a child may only have visitation with the non-custodial parent when a neutral third party is present to supervise the visit. The third-party can be a professional or a therapeutic provider who has experience and is trained in providing supervised visitation. Professional and therapeutic providers typically charge an hourly fee to supervise the visitation. The third-party may also be a non-professional provider, like a family member or family friend who is qualified under specific criteria and agrees to supervise the visitation (typically at no cost to the parties).

supervised-child-beach.jpgA family court judge may order supervised visitation for a variety of reasons in which there is a concern about the protection and safety of a child. For instance, allegations of neglect, substance abuse, domestic violence or child abuse will likely warrant supervised visitation. Supervised visitation may also be ordered when there is a threat of kidnapping or there is a concern of mental illness. Additionally, if the parent has been absent in the child's life for a significant period of time or there is a lack of relationship between a parent and child, supervised visitation may be necessary to help introduce the parent and child.

A court order for supervised visitation will specify when the supervised visitations will take place and for how long they will last. Sometimes the court order will also specify where the visitations are to take place and who exactly will be the designated supervisor. Depending on the circumstances, a court may even order that the supervised visitation only take place within a visitation facility.

Ultimately, the goal of supervised visitation is to protect the child and to get the family in a position where supervision isn't necessary. A court will continue to monitor a case to determine if supervised visitation is still necessary or if it can be lifted to unsupervised visitation.
We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and 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.

Continue reading "Supervised Visitation as a Safeguard in Custody Cases" »

Getting Attorney Fees from your Spouse - No Guarantees

December 2, 2014

attorney-fees.jpgMost divorce litigants are unfamiliar with the family law statutes and cases regarding attorney fees and costs. In the criminal law arena, the average person knows that the accused has a constitutional right to representation by an attorney whether or not they can afford to pay for one and that the prosecution is paid for by the state. Most people also know that in the civil litigation system, the "loser pays all" rule applies in some jurisdictions or in particular cases. Under these circumstances, an individual with a legitimate legal claim or defense does not take on a big hit for attorney fees when pursuing his or her rights. Justice can prevail in a criminal or civil courtroom and the winning party can leave feeling vindicated. Unfortunately, most family law litigants are hit with the harsh truth at the beginning of their divorce case. There are no winners in the family law world and justice has no place in a family law courthouse.

According to California case law and statutes, there are two main methods by which a family law litigant can collect attorney fees and costs from the other side. First, if a party can prove obstreperous conduct by the other side which has frustrated the policy of settlement in the case, he or she may recover some monetary compensation in the form of sanctions. However, it often costs thousands of dollars to bring to bring a sanctions motion and such a motion often derails the case at hand resulting in additional fees and costs. Second, if a party can demonstrate a true disparity in income and assets such that he or she cannot pay his or her own fees and that the other side has the ability to pay, the party may recover attorney fees and costs from the other side. However, an award of attorney fees based on need and ability is within the discretion of the family law judge, and after payment of support and division of assets there is no real disparity between the parties.

divorce-cash.jpgIn a large portion of San Diego family law cases, each party must pay his or her own attorney fees and costs. The average cost of a divorce in the United States is $20,000 with a likely much higher average in California, particularly in the city of San Diego. As a result of the cost of divorces, more often than not, divorce litigants cannot afford to pursue "justice" in court. For example, if a spouse has a valid $25,000 separate property claim, but the other side simply will not agree that such a claim exists, the spouse will likely waive the $25,000 claim because a trial on that issue would undoubtedly cost more than the claim is worth. The only option that parties in this situation have is to go into court self-represented. For the average person, the idea of conducting a trial is overwhelming and seems impossible. In addition, most people do not have the time and resources to devote to proper trial preparation.

The current attorney fees regime governing California divorce cases often leaves parties frustrated and feeling slighted by the "system". Fortunately, there is a little relief available for family law litigants in the County of San Diego. The Family Law Facilitator's office provides free legal assistance; however, the facilitators will only assist with document preparation and cannot give legal advice or represent clients. In addition, many non-profit organizations provide free legal representation and other forms of support to victims of domestic violence.

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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.

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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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