San Diego Divorce Attorneys Blog

A premarital agreement, more commonly known as a "prenup," is a contract entered into by soon-to-be spouses prior to marriage. Celebrities commonly enter premarital agreements in order to protect any wealth they may acquire during marriage. Where one spouse has the potential to make millions of dollars per year, as is often the case in Del Mar, he or she is incentivized to enter into a contract with his or her spouse clarifying that any money earned during marriage will remain his or her separate property upon divorce. In contrast, under California's default community property laws, each spouse is entitled to one-half of all earnings by his or her spouse during marriage. One of the most highly debated issues in celebrity premarital agreement negotiations and litigation is an infidelity clause.

Learn more about quasi-community property

As divorce attorneys know, all premarital agreements are different, and thus all infidelity clauses are different. However, an infidelity clause generally imposes a financial penalty on one or both spouses if he or she commits emotional or sexual infidelity. Financial penalties may include mandatory cash payouts, increased spousal support, or an unequal division of the marital estate. In order to protect themselves in case of divorce, celebrities couples such as Charlie Sheen & Denise Richards, Sandra Bullock & Jesse James, and Catherine-Zeta Jones & Michael Douglas are rumored to have had infidelity clauses in their premarital agreements. Recently, Elin Nordegren was rumored to have demanded a substantial infidelity clause in a premarital agreement as a condition of reconciling with Tiger Woods.

Ironically, despite the buzz about celebrity infidelity clauses in premarital agreements, infidelity clauses are void in Del Mar and across California. In Diosdado v. Diosdado, the California divorce court found in 2002 that a penalty for infidelity is in direct violation of public policy underlying "no-fault" divorce and thus is unenforceable. Thus far, Diosdado has been continually upheld by all published cases to follow it. The policy behind California's "no-fault" divorce is that a party should not be punished financially for any misconduct during marriage. In contrast, certain circumstances allow some states' divorce courts to look at fault in dissolving marriage, determining support, and dividing property. It would seem to follow that these states would uphold an infidelity clause in a premarital agreement, should divorce become an issue.

Read more about jurisdiction and divorce in California

Considering that thousands of celebrities call cities in California home, it is interesting that so many celebrities are discussing unenforceable infidelity clauses. One explanation may be that only celebrities residing and divorcing outside of California are negotiating infidelity clauses. Gossip magazines also debate whether or not an expensive price tag actually deters celebrities from straying outside of their marriages.

Continue reading ""Infidelity Clauses" and Celebrity Prenuptial Agreements" »

San Diego is known for having a vast military community. Among the many military bases in San Diego County are the Marine Corps Air Station Miramar, the Marine Corps Base Camp Pendleton, the Naval Base Coronado, the Naval Base San Diego, and the Naval Base Point Loma. In fact, the Naval Base San Diego is the largest base of the United States Navy on the west coast. Having a parent in the military can bring out a new set of child custody and visitation complications. It is important to consider possible deployments when creating any parenting plan.

California Family Code section 3047 directly addresses a parent's military obligations, "a party's absence, relocation, or failure to comply with custody and visitation orders shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party's activation to military duty...or military deployment out of state." Under this statute, one parent may not use the other's military duties against them in a child custody proceeding. If the sole or joint physical custodian is required to move a substantial distance or is otherwise unable to exercise his or her custodial rights, the court may order a temporary modification in custody. Once the military parent is able to resume his or her custodial duties, the temporary order is subject to review. However, there shall be a presumption that the previous order will resume in place of the temporary modification. This presumption can be overcome if the court finds it is not the best interest of the child.

The best interest of the child is the controlling theme throughout San Diego family law. The court considers a number of factors and makes determinations of custody and visitation. Among the factors the court will consider are:

(1) The health safety and welfare of the child;
(2) Any history of domestic violence;
(3) The nature and amount of contact the child has with both parties; and
(4) The use of drugs or alcohol by either party.

These factors will be carefully weighed by the judge against the presumption that the custody order shall revert to the order in place prior to the modification. In a recent San Diego custody case, these two considerations were not aligned making a tough decision for the family court judge. In this particular case, the mother was deployed out of the country for the period of two years. At the time of her deployment, her son was five years old and she was his primary caretaker. The child resided with the mother primarily and had weekend visitations with the father. Upon learning of the deployment, the parents agreed to a temporary parenting plan. Father would become the primary caretaker and the child would reside with him with video chat visitations to mother. It is important to note that the parties agreed, upon mother's return, the child would resume living with her and the temporary modification would no longer be in place.

Upon the mother's return from deployment, the father had relocated to and refused to permit the child to reside with her. He argued that the child was now settled living with the father, had made friends in the neighborhood and with his half-siblings, and was performing well in school and his extracurricular activities. The judge was required to weigh the nature and amount of contact the child had with father on a daily basis and with mother infrequently against the military presumption. The mother cited California Family Code section 3047 in her argument but the judge was not persuaded. Upon serious consideration, the judge granted mother reasonable visitation but ordered that the child continue to reside with father. Mother's attorney argued that the judge in this case completely ignored the code section put in place to preserve the parental rights of military parents and ruled contrary to the legislative intent behind the provision.

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

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

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

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

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

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

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

Under California family law statutes, paternity can be established in a number of ways depending on the relationship between the father and mother. Through the combination of statute-mandated presumptions and DNA testing, determinations regarding paternity made by the court can have a significant impact on child custody and child support.

An unmarried father must sign a paternity declaration in order for his name to appear on a child's birth certificate. The paternity declaration is significant because it creates both support obligations and parental rights for the father. In San Diego, there is a rebuttable presumption that a man who accepts a child into his home and openly holds that child out to be his own is the child's biological father. This presumption is rebuttable through the use of blood tests to determine paternity. If no blood tests are conducted and introduced into paternity proceedings, the man is presumed to be the child's father.

A child conceived during a martial relationship in which the wife is cohabitating with the husband is presumed to be a child of the marriage. In other words, the mother's husband is presumptively the child's father. If the husband is sterile or impotent, the marital presumption will not apply. This presumption may be overcome through the use of blood or DNA testing to determine paternity. The presumed father must petition for court-ordered blood testing within two years of the child's birth. Therefore, unless a motion is filed within the two-year statute of limitations and blood testing establishes the husband is not the father, the mother's husband is conclusively presumed to be the father. The presumption will still apply even if another man is proven to be the biological father of the child.

The marital and non-marital paternity presumptions can have harsh consequences regarding a father's parental rights. Considering that the husband of a child's mother is presumed to be the child's father and that in non-marital relationships a man must live with and hold a child out to be his own in order to be presumed the father, a child conceived out of an affair can create a devastating situation for the biological father. In a California family law case, Dawn D. v. Jerry K. (1998) 17 Cal.4th 932, this scenario became a reality. In this case, Dawn D. intended to divorce her husband when she began living with another man named Jerry K. Shortly after moving in with Jerry K. Dawn D. became pregnant. Just three months into her pregnancy, Dawn D. returned to her husband and rekindled their marriage. As a result of this case, the biological father, Jerry K. was unable to assert his parental rights to his child.

The paternity presumptions can have surprising consequences in terms of child support obligations as well. A presumed father is obligated to pay child support where support is ordered. If a presumed father makes child support payments for the child's minority and later learns he is not the biological father, he has no recourse for the 18 years of child support payments made. Further, if a presumed father conclusively proves through DNA testing that he is not the biological father of a child BUT has missed the two-year statute of limitations, he will be on the hook for child support payments for the remainder of the child's minority.

California family law cases operate under the best interest of the child standard. Most family court rulings attempt to further that interest as the paramount concern. Many argue that paternity presumptions are outdated, unnecessary and detrimental to the best interest of the child. Because science has advanced and paternity can be determined so accurately and efficiently, these advocates contend that DNA testing should be conducted in each paternity case in order to ensure the child's biological father is shouldered with the responsibilities and is able to enjoy his parental rights.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody and/or paternity. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer representing clients in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

It is that time of year when you need to file your income taxes and we want you to be informed. Your filing status for taxes depends partly on your marital status on the last day of the year. If you were still legally married (meaning there is no final divorce decree) as of December 31, 2011 you are considered to have been married for the full year and must file as either married filing jointly or married filing separately. For federal tax purposes, "marriage" currently only means a legal union between a man and a woman as husband and wife. Your filing status is important and is used for many things on your tax return, such as determining your standard deduction, whether you need to file a return, the amount of tax you owe, and whether you qualify for various deductions and credits. When it comes to your filing status, you do have options.

Married Filing Jointly

If you are still legally married, you and your spouse can file a joint tax return. Married couples do not have to be living together to file jointly. If you file a joint return you both must include all your income, exemptions, deductions, and credits on that return. Even if you or your spouse had no income or deductions, you can still file a joint return. You must balance taxes due against your risk of being jointly and separately liable for taxes, interest, and penalties on a joint return. If you question whether your spouse is reporting all income, or have little or no knowledge of your spouse's income and finances, discuss this issue with legal counsel before signing a joint return. The Internal Revenue Service (IRS) can hold you liable for all taxes due on a jointly filed return, as well as penalties and interest, even if your spouse alone earned the underlying income.

Married Filing Separately

Legally married couples can also file "married filing separate" whether they live together or not. If you and your spouse file separate returns, you should each report only your own income, exemptions, deductions, and credits on your individual return. You can file a separate return even if only one of you had income. However, the married filing separately status rarely works to lower the family tax bill. For example, one major disadvantage is that you can't have one spouse itemize and claim all the deductions while the other claims the standard deduction. Both husband and wife must either itemize or use the standard deduction. You can't mix and match. So if one spouse itemizes and the other has nothing to itemize, that spouse would not then be able to claim the standard deduction, which might have reduced the amount of taxes owed.

Another disadvantage with "married filing separate" filers is that they can no longer take any relevant exclusions, credits, or deductions for adoption or education expenses. Likewise, various exclusion and exemption amounts will be cut for child and dependent care expenses, employer dependent care assistance, and alternative minimum tax. Here are some examples if you file separate returns with your spouse:

• You cannot take the Earned Income Credit.
• You cannot take the Child and Dependent Care Credit in most cases.
• You cannot exclude any interest income from U.S. savings bonds that you used for education expenses.
• You cannot take the Credit for the Elderly or Disabled unless you lived apart from your spouse all year.
• You may owe more taxes on Social Security income or railroad retirement benefits than if you filed jointly.
• You cannot deduct interest paid on student loans.
• You cannot take any education credits.
• You cannot take an exclusion for adoption expenses or the Adoption Credit in most cases.

Benefits of filing under this status include only having liability for the tax, interest, and penalties on your own return. The IRS would not pursue you for your spouse's tax obligation for that same year. If the return is filed electronically, any refund due can be divided up and directly deposited by the IRS in up to three different separate accounts. Note, however, that some financial institutions will not allow a refund for a joint return to be deposited into an individual account, so if this option is being considered, the taxpayer should check with his or her bank.

Continue reading "How will divorce affect my income taxes in California?" »

Superstar basketball player Kobe Bryant is splitting with his wife Vanessa. On December 1, 2011, Vanessa filed a divorce petition in the Superior Court of California in the County of Orange. Like many other rich and famous celebrities, Kobe and Vanessa Bryant did NOT sign a premarital agreement. The Bryants have released a statement revealing that the couple has settled all relevant issues privately including: custody, visitation, property, and support. A judgment will be entered in 2012.

The couple has two young children Natalia, 8, and Giana, 5. Both Kobe and Vanessa are asking for joint custody of their daughters. According to the filing, the couple will share both legal and physical custody. It seems like Kobe and Vanessa will not litigate any issues in their divorce.

Ironically, the couple celebrated their 10-year wedding anniversary on April 18, 2011. In 2004, Kobe was accused of sexually assaulting a woman in Colorado. Throughout the entire investigation and trial, Vanessa stood by his side and supported the position that the alleged sexual assault was consensual. Vanessa admitted that Kobe made a mistake by committing adultery but refused to acknowledge any more of the woman's claims. Rumors have surfaced that Vanessa saw divorce lawyers and almost served Kobe with divorce papers in 2004. A source close to the couple commented: "Vanessa almost threw in the towel four years ago. Kobe always had a slew of girlfriends, and the cheating was almost blatant."

Despite Kobe's public (alleged) infidelity that continued into the years following 2004, Vanessa stayed in her marriage before suddenly filing for divorce in 2011. Vanessa was likely counseled in 2004 regarding the likely outcomes of a potential divorce case and her options. Under California law, a marriage of 10 years or more is a presumptively a long-term marriage. Having a long-term marriage entitled Vanessa to many advantages in a divorce proceeding. California Family Code section 4320 lists the factors a court may consider in awarding spousal support. Under section 4320(l) the goal of the court shall be that the supported party shall be self-supporting within a reasonable period of time EXCEPT in the case of a long-term marriage. If the marriage is not long-term, a "reasonable period of time" is generally one-half the length of the marriage. Therefore, if Vanessa had filed for divorce in 2004 she would likely be awarded spousal support for around 3 years. Now that the 10-year mark has passed, Vanessa may be entitled to permanent spousal support.

Continue reading "Vanessa Bryant's Strategic Divorce Move" »

FOX News and other media outlets continue to report that the divorce of Arnold Schwarzenegger and Maria Shriver could be among the most expensive celebrity splits on record.

Some estimates say Shriver could get more than the $100 million Tiger Wood's ex-wife Elin Nordegren received.

Division of marital property in a San Diego divorce, or a divorce elsewhere in California, is supposed to be equal under the state's no-fault divorce law. In practice, one party to a divorce can end up with significantly more than half the assets for a number of reasons.

What constitutes community property is one potential area of contention. Property owned before marriage and inheritance to one spouse are both examples of separate property. Valuating community property is another area where a San Diego divorce lawyer will focus attention. For instance, is the marital home valued at current market value? After the economic downturn, a couple's primary residence is often a liability -- with more owed on an upside down mortgage than the property could bring at sale.

With Schwarzenegger and Shriver, there are more complications -- and more assets -- than in many marriages -- even celebrity marriages. And, with allegations about Arnold's infidelity continuing to surface, he may find an unsympathetic judge on the bench. And, with four children and the majority of the earning power, several media outlets have reported child support and alimony could easily top $100,000 a month.

Typical couples should understand the tax implications of alimony and child support as there may be opportunities to move money in one direction or the other. Alimony is treated as taxable income for the receiver and as a tax deduction for the payer. Child support is tax free for the recipient but not deductible for the payer. One caveat to keep in mind: Courts are much better about helping you collect back child support than they are about assisting with the collections of back spousal support.

In the case of Schwarzenegger and Shriver, their marriage will be seen as long-term under California law, which means she may collect alimony for an indefinite period of time. A short-term marriage is defined as one lasting under 10 years, which is in part why it's not uncommon to see celebrity couples split near the 10-year mark.

Other factors worth considering in this split is Arnold's future income from motion pictures -- particularly sequels to movies made during the marriage. The New York Post reported last year that Diandra Douglas -- the ex-wife of Michael Douglas -- moved to collect on his payday for the making of "Wall Street 2," claiming her divorce agreement entitled her to a portion of the proceeds.

For most couples, similar concerns often involve retirement accounts or the earning power of an advanced degree -- such as a medical degree or law degree -- earned during the marriage.

Continue reading "Schwarzenegger Case Illustrates Issues of Marital Property, Child Custody, Alimony in San Diego Divorces" »

If you are a fan of Who's the Boss? star Tony Danza, you may recall that in 2006 he separated from his wife, Tracy. Four and a half years later, Tony Danza has filed for divorce according to People.com.

As a San Diego divorce lawyer, I have had clients in similar situations; specifically, clients who have waited some length of time after separating to file for divorce. Although I do not know the reason Tony Danza personally waited to file for divorce, sometimes parties wait to file for divorce because they are attempting reconciliation. In my work as a San Diego family law attorney, I have been asked how an attempt at reconciliation effects how property is divided, and specifically how an attempt at reconciliation effects how a spouse's earnings will be characterized by a court, that is as separate property or community property.

Generally, except as otherwise provided by statue, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property. Family Code section 760. One such statutory exception is that earnings and accumulations of a spouse while living separate and apart from the other spouse are separate property. Family Code section 771.

Accordingly, once parties separate, their earnings after the date of separation will generally be characterized as separate property. An "attempt" at reconciliation should have no effect because it is, by its nature, only an attempt, assuming the parties remain living separate and apart. However, as a practical matter, the spouse who stands to benefit from a later date of separation may argue, depending on the facts, that the parties not only attempted reconciliation, but that they actually reconciled. Therefore, an attempt at reconciliation may put date of separation, and thus the character of property, at issue.

It can benefit some individuals, depending on the facts of their case, to enter into a written agreement specifying that reconciliation is being attempted only and preserving the date of separation.

It's official, Kelsey and Camille Grammer are divorced. Reflecting on the divorce process, as well as what is to come, Camille told US Magazine: "I am grateful to my family and friends who have stood by me through this time - I will never forget their love and support. What I most hope is that Kelsey and I can improve our communications and truly co-parent our two wonderful children..."

As a family law attorney, many of my clients face the challenge of co-parenting after a divorce. Sometimes, a court will grant one parent sole legal custody, in which case that parent is solely responsible for making decisions relating to the minor child's care, upbringing, educational training, religious training, social and recreational activities, medical care and treatment, and treatment of emotional needs. Other times, parents will share joint legal custody. When both parents are responsible for making decisions relating to their child's welfare, and they need to make those decisions together, challenges can arise.

While some might think that parents inherently know how to co-parent after a divorce, realistically, it's a learned skill. Think back to when you brought your son or daughter home from the hospital. Over those first few days, weeks and months, you had to learn how to be a parent; you had to learn how to change a diaper, what to feed the baby, and what her different cries meant. In this same way, co-parenting after a divorce is a skill that needs to be learned. You will need to learn how to put your relationship issues aside, and work together for the benefit of your children.

If you are interested in learning parenting skills for divorcing parents, the San Diego Superior Court has a list of class providers.

Why Would Anyone Delay Their Official Divorce Date?

Yahoo News reported that on Thursday, February 10, 2011, Los Angeles Superior Court Judge Hank Goldberg finalized Charlie Sheen and Brooke Mueller Sheen's divorce, however, the Sheen's will not be officially divorced (i.e., legally single) until May 2, 2011. AP reported on February 15, 2011, that Christina Aguilera and Jordan Bratman finalized their divorce but the judgment will not become official until April 15, 2011.

In California, there is statutory six-month waiting period before a divorce judgment can be final for the purpose of terminating a marital relationship. California Family Code Section 2339. In both cases, the delay is because the six-month waiting period has not expired. Sheen filed for divorce in November, thus their marriage cannot be dissolved until May. Aguilera filed for divorce in October, thus her marriage cannot be dissolved until April.

For many of our San Diego clients, the day they become legally single cannot come quickly enough. However, the six-month statutory waiting period is not the only reason soon-to-be-divorced couples may decide to delay their official divorce date. Two other common reasons are health insurance and tax planning purposes.

Health insurance may come into play when one spouse has great insurance through his or her employment. After a divorce is granted, most health insurance plans do not allow a employee spouse to cover their former spouse. Although the non-covered spouse may apply for COBRA coverage, it is often more expensive than the cost of the insurance coverage to the employee spouse.

For example, let's assume that: (1) the non-covered spouse has an upcoming surgery with rehabilitation that will take nine months; (2) the cost of insurance is $200 per month for the employee spouse, and (3) the cost of COBRA will be $1,200/mo for the non-covered spouse. The parties' may decide to delay entry of judgment for nine months until the non-covered spouses rehabilitation has ended, thus saving the non-covered spouse $10,800. In exchange for delaying the divorce and keeping the non-covered spouse on the insurance, the employee spouse may have negotiated a reduction of spousal support for the nine month period he or she is providing the health insurance.

Another scenario is if one spouse just started a new job and has a three month waiting period before their new health insurance coverage begins. The parties' may delay the date of their divorce for three months until the party's new insurance begins.

With regard to tax planning purposes, sometimes the parties' accountant will recommend they delay their divorce date until after December 31st, especially if there are significant tax benefits to each party.

Do you think your spousal support payment is too high? A few weeks ago, the San Diego Union Tribune and the Wall Street Journal ran articles about the never-ending divorce saga of San Diego County's wealthiest couple, Charles and Linda Brandes. According to Forbes, Mr. Brandes is ranked number 269 on its 2010 list of the 400 Richest People in America with an estimated net worth of 1.5 billion. The San Diego Union Tribune reported that Mr. Brandes income is $16 million per month and he pays $500,000 per month in spousal support to Ms. Brandes.

Some of you may be wondering how a judge determines how much spousal support a person must pay his or her former spouse. Unlike child support, which is generally calculated by a mathematical formula, spousal support is determined by a consideration of factors set forth in California Family Code Section 4320. The trial judge must both recognize and apply each of these factors when setting spousal support.

Translated into understandable terms, the factors include: the income of each party; the marketable skills of the supported party; whether the supported spouse did not work so he or she could tend to domestic duties; whether the supported party contributed to the other party's education, training, license or career position; the ability of the supporting party to pay spousal support; the needs of each party based on the how the parties lived during the marriage; the assets and debts of each party; length of marriage; whether the supported party can work without interfering with the interests of the children; the age and health of the parties; domestic violence between the parties; tax consequences; a balance of the hardships; whether the supported party can be self-supporting within a "reasonable period of time;" the criminal conviction of an abusive spouse; and any other factors the court determines are just and equitable. That last factor is a catch-all provision, meaning whatever else the judge finds relevant.

When there is an existing spousal support order and one party is requesting a modification of spousal support, there generally needs to be a material change of circumstances since the last order. The court is required to reconsider the same standards and criteria set forth in Family Code Section 4320 it considered in making the initial long-term order at the time of judgment and any subsequent modification order. Although a showing of changed circumstances is necessary to obtain the court's consideration of a modification of spousal support, it does not ensure that a modification will be granted.

Continue reading "San Diego Resident Charles Brandes Pays $500,000 per month in Spousal Support to Ex Wife Linda Brandes" »

As reported by NBC SanDiego.com, professional skate boarder Tony Hawk recently filed for divorce in North San Diego County. Hawk filed for divorce from third wife Lhotse Merriam. Hawk and Merriam were married in 2006; they have one child.

Raised in San Diego, Hawk is well known for a videogame series based on his skateboarding. Tony Hawk: Ride, a game which involves riding on a skateboard shaped controller, was launched in 2009. Because the game was launched during Hawk's marriage to Merriam, one question that may arise during the divorce process is whether any intellectual property rights Hawk may have in the game are community property to be divided in the divorce.

Absent a prenuptial agreement to the contrary, intellectual property rights (e.g. patents, copyrights, trademarks, trade secrets) are property to be classified and, if appropriate, divided in a divorce. In a divorce, property is generally classified as either separate property or community property. Property that is classified as community property is then divided between the spouses.

For intellectually property rights to be classified as community property to be divided in a divorce, they must be acquired from work that was done during the marriage.

But what if the rights were acquired from work only partially done during the marriage? For example, a spouse begins to write a book during marriage, but doesn't finish the book until after the divorce? In this case, the community would have a proportional interest in the property.

What if additional time and effort is then needed to market the book? Such post-marital efforts generally decrease the community's interest in the property.