January is decidedly the busiest month for divorce attorneys, even being dubbed in the divorce community as “divorce month”. While there may never going to be a “good” time for a divorce, those with divorce on the mind seem to find January to be the best option. This has been demonstrated by Court data that shows 1/3 more people file for divorce in January than they do in any other month.
The relationship between former Baywatch star, Pamela Anderson and her husband, Rick Saloman would never be described as traditional. They were first married on October 2007, but separated less than 10 weeks later when Pam filed for divorce in December 2007. The parties reconciled for a brief period (about 2 weeks), before Pam served Rick with the divorce papers. In February 2008 both Pam and Rick requested their marriage be annulled based on fraud. That request was granted in March 2008. The couple remarried sometime in late 2013 or early 2014. As with their prior attempts the current marriage appears to have failed as well.
According to reports, Pam filed for divorce in California citing irreconcilable differences. Rick on the other hand, filed for an annulment in Nevada (where he allegedly resides) once again stating fraud as the grounds for the annulment.
In California there are two types of annulments; void marriages, where the marriage is never legally valid and voidable marriages that are declared invalid by a court. The same rules for void and voidable marriages apply to domestic partnerships. I use the word marriage in this blog for simplicity reasons only.
There are two statutory grounds for a “void marriage”, and other non-statutory grounds for a void marriage. These marriages are void from the start. They cannot be made valid by the passage of time or the consent of the parties.
Incestuous Marriage [Family Code Section 2201]: This is the situation when the people who are married are close blood relatives. This does not apply to first cousins who are allowed to marry legally in California.
Bigamous Marriage [Family Code Section 2200]: where a spouse or domestic partner is already married to or in a registered domestic partnership with someone else.
Though not found in the Family Code, the failure to obtain a marriage license results in a void marriage.
These marriages are made void, not by operation of law, but by order of the court. Each of the grounds for a voidable marriage has a statute of limitations so the passage of time can make an otherwise voidable marriage valid. In fact, voidable marriages are valid until they are annulled.
Age at the time of marriage [Family Code Section 2210(a)]: If the party seeking the annulment was not 18 years old at the time of the marriage and did not have the permission of his/her parents to get married.
Prior existing marriage [Family Code Section 2210(b)]: Either party was actually married at the time, but for 5 years prior to the marriage believed their spouse was dead or had been missing. This is different from a bigamous marriage. The difference is actual knowledge. In a bigamous marriage the party knows they are already married. In a prior existing marriage the party knows they are married but their spouse has been missing or presumed dead for at least five years before the wedding.
Unsound mind [Family Code Section 2210(c)]: This refers to a party that does not have the mental capacity to understand the obligations assumed by being married. This is determined at the precise time the marriage is conducted. This can include persons with intellectual disabilities, Alzheimer disease, and in very limited number of cases, intoxication is a basis for a finding of unsound mind. This is how Brittany Spears got her 55 hour long marriage to Jason Alexander annulled.
Fraud [Family Code Section 2210(d)]: This is the most common basis or seeking an annulment. The fraud alleged must be about something vital to a marriage. A bad credit score or undisclosed credit card debt will not constitute fraud for an annulment.
The fraud in annulment cases can include getting married only to obtain a “green card”, lying about ability to have children, and/or lacking the intent to observe the obligation of “sexual fidelity.” In California, if one party is having an affair at the time of the marriage, that may be considered fraud for the purpose of an annulment.
Force [Family Code Section 2210(e)]: Either party only consented to the marriage as a result of force.
Physical Section 2210(f)]incapacity [Family Code: When the parties got married one party was “physically incapacitated” (basically, that means one of the parties was physically incapable of “consummating” the relationship) and the incapacity continues and appears to be “incurable.”
Seeking an annulment in California can be difficult and there are very specific timing requirements associated with the request. We understand that this is a sensitive situation that could greatly affect you and your family, and our team can provide you with the caring and outstanding legal counsel you need and deserve.
One of the first hurdles to overcome in the beginning of any contentious divorce case is to determine how much support is owed from one spouse to another, if any. Many times, a dispute over the proper support amount lands the parties in court for a short hearing at the outset of the case. After a month or two of crunching numbers and producing financial information, the parties are typically relieved when they walk out of the courtroom just to have a number that they can count on to pay or receive each month. In addition, many times the parties reach an agreement regarding the amount of support on the courthouse steps and simply read their agreement on the record in front of the judge. Although neither party is usually satisfied with the amount of support, having certainty regarding monthly support provides both sides with a little stability.
The amount of support is usually the main focus in any support negotiation or hearing. However, often times the parties, attorneys, and judges forget to include details (or decide not to include details) regarding when the support payments are due each month. In a typical scenario the parties appear in court on a particular date during the month and receive a support order that is effective another date. On the first date of the following month, the supported spouse expects to get that first support check in the mail. After waiting a few days, the supported spouse may call his or her spouse or his or her attorney claiming that the paying spouse is “late” on payment. However, careful review of the support order is necessary to determine whether the paying spouse is late on his or her payment. Many times, the support order is silent on the due date of the monthly support payment.
An optimal order will state something like “Effective August 1st, 2014, and payable on the first of each month thereafter, Husband shall pay to Wife for her support and maintenance the sum of $2,000.00 per month”. Pursuant to the default family code provisions, absent a specific due date for support, the support payment is due on the last day of the month in which the support payment is to be paid. The paying spouse may be able to go over a month without paying support after the hearing which puts the supported spouse in a difficult financial position as bills become due.
In addition to waiting to the last minute to make support payments, some paying spouses argue that the support order does not become effective until a formal order is signed. Following most support hearings, the parties must agree upon and execute a formal order. However, this process can be delayed if the parties “disagree” on exactly what was ordered in court. Luckily, California courts have held that support orders become operative at the moment of pronouncement. This means that the support order is effective prior to the execution of a formal written order.
In this day in age, social media seems to run our lives. We wake up in the morning and check our Facebook account. We upload a photo of our breakfast to Instagram. And we tweet about how our day at work is going. Social media sites like Facebook, Instagram and Twitter seem to dictate how we run our lives. Accessing these social media sites is as easy as a click of a button on your smartphone. Well it turns out that social media is not only running our lives, but also playing a part in both ruining our marriages and helping our divorces.
Divorce attorneys commonly note that irreconcilable differences are the reason for the divorce. Research has shown that these commonly used digital communications may be the culprit of the “irreconcilable differences” that develop between spouses. Social media websites are so easily accessible and so often used that they not only help create relationships but they also play a role in destroying relationships. For instance, due to the anonymity on some of the sites and the often encouraged non face-to-face contact, people seem to be more susceptible to temptations. Old flames tend to resurface or new flames are more likely to continue because retrieving contact information is so easy and opens the door to further communication. Social media sites also often times open the door to arguments because things posted by one spouse are misinterpreted by the other spouse. A harmless remark by one spouse may cause the other spouse to have major suspicions begin stirring. In essence, these social media sites are the culprit in facilitating emotional and physical affairs among married people.
However, after a relationship ends and a divorce begins, social media may play a big role in helping your divorce litigation. Many San Diego divorce attorneys note that their clients are closely monitoring the social media sites of their soon to be ex-spouse. Not only are they reading what their soon to be ex-spouse has to say or photos he/she has to post, but they are taking screen shots of the social media page and downloading photos the spouse has uploaded onto the site. Spouses are noting down anything and everything that might impact their divorce proceeding, especially with regard to child custody determinations and hidden assets. Thus, spouses should be conscientious of what they post while participating in social media during divorce litigation.
Back in September 2012, Jason Aldean was caught kissing previous American Idol contestant, turned NBA-cheerleader, Brittany Kerr. However, this kiss turned into quite the smooching scandal considering Aldean has been married for over 11 years to teenage-sweetheart, Jessica Ussery. Not surprisingly, Aldean recently filed for divorce in Tennessee. TMZ reports that the couple cited “irreconcilable differences” as the reason for the split.
As San Diego attorneys know, one of the only two grounds for divorce here in California is “irreconcilable differences (see website page entitled “Grounds for Divorce or Legal Separation” for more details on both “irreconcilable differences” and “incurable insanity”). It is quite common for divorcing couples to cite “irreconcilable differences” as their reason for their divorce, but what really constitutes an “irreconcilable difference”? Is it more than just one spouse cheating on the other?
Although infidelity alone may seem like a pretty good reason for divorce, such infidelity must lead to “irreconcilable differences” between the couple since California is a no-fault state. (See website page entitled “Grounds for Divorce or Legal Separation” for more details on “no-fault”). In general, “irreconcilable differences means that the spouses can no longer agree on basic, fundamental issues involving the marriage and that they will never agree, such that there is no chance of reconciliation. Thus, when a divorce is based on “irreconcilable differences,” any past cheating scandal by one spouse doesn’t matter, what matters is that one or both spouses agree that the marriage won’t work any longer and that it’s clear to a judge that there is no chance that the marriage can be saved.
There is no black-letter list of what constitutes “irreconcilable differences.” Rather, it is a quite vague standard and San Diego Family Courts often broadly interpret “irreconcilable differences”. Some of factors that San Diego courts may look at to determine if there has been a marriage breakdown may include: 1) difference of interests; 2) long physical separation; 3) antagonistic feelings that are irreversible; 4) resentment; 5) distrust; 6) financial difficulties affecting the marriage; 7) conflict of personality; and 8) lack of mutual concern for emotional needs of each other.
Although Aldean has urged everyone not to cast judgment on his recent filing for divorce, one can only assume that Aldean’s smooching scandal with Kerr likely led to distrust, resentment and irreversible antagonistic feelings between Aldean and Ussery, thus leading to what a court will likely interpret to constitute “irreconcilable differences”.
Oprah Winfrey has become entangled in her father Vernon Winfrey’s divorce. Vernon married his current wife, Barbara Winfrey, in 2000. Vernon’s divorce papers contain allegations that Barbara engaged in “inappropriate marital conduct,” which refers to an extramarital affair. In her response, Barbara accuses Vernon of violent outbursts including an incident where he chased her with a gun and threatened to pull the trigger.
During their marriage, the couple has enjoyed living in a $1.4 million dollar home in Nashville. The home is owned by a trust, which was created and funded by Oprah. Vernon filed for divorce in Franklin, Tennessee in June of 2012. As a result of the divorce process, the Davidson County Sheriff’s deputies had an order to evict Ashley Williams, Oprah’s stepsister, from the Winfrey marital residence. However, the attorney for the trust had the order rescinded. The relationship between Oprah and Barbara seems beyond repair; however, that tension does not seem to extend to Oprah’s relationship with her stepsister.
According to the court papers, Barbara is seeking spousal support from Vernon and, although she pays no mortgage or rent, she claims her living expenses amount to $11,924 per month. Vernon claims that he has no financial ability to provide support to Barbara and, after bills each month, he is only left with approximately $282.33.
Unlike in California, Tennessee allows both “fault” and “no-fault” divorces. The no-fault grounds for a Tennessee divorce are: (1) irreconcilable differences and (2) spouses are not cohabitating and have lived in separate residences for at least two years. The fault grounds for a Tennessee divorce include: (1) either spouse has committed adultery (2) economic fault and (3) domestic violence. The Winfrey divorce papers seem to allege both adultery and domestic violence. Both parties deny the allegations against them and they may have been made to gain an advantage in the dissolution process. Economic fault can have a significant impact on the division of the marital estate.
In Tennessee, the court will consider sixteen factors when making an award of spousal support. Because it seems that the Winfrey’s did not own much property, support will likely be the most litigated issue in their case. One of the factors considered by Tennessee courts is “the marital conduct of the parties during marriage.” This is evidence of the fault aspect of Tennessee divorce law. In California, the only marital conduct that is relevant when setting spousal support is domestic violence. Extramarital affairs are irrelevant to the court’s consideration of spousal support.
Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.
On December 30, 2011 Russell Brand filed for divorce from pop icon, Katy Perry. After only 14 months of marriage Brand cited “irreconcilable differences” as the reason for the split. The couple married on October 23, 2010 in an extravagant ceremony in India. When the pending divorce caught the attention of the media Brand released the following statement: “Sadly, Katy and I are ending our marriage. I’ll always adore her and I know we’ll remain friends.” The divorce petition does not list a date of separation for the couple. However, it is undisputed that Perry earned approximately $44 million during their short marriage.
Once Russell filed for divorce, rumors swirled about whether the Hollywood couple had signed a premarital agreement. The Perry-Brand divorce was finalized on July 16, 2012 and it is clear that no premarital agreement was signed. The pair reached a marital settlement agreement in February; however, were required to wait the requisite six-month period before obtaining a legal divorce. In San Diego, there is a mandatory six-month period between the date of service of the divorce petition and the termination of marital status. Apparently the marriage happened so quickly that neither star had the time to consult an attorney before tying the not.
Under California community property laws, all property acquired by either spouse during the marriage but before the date of separation is community property. Each spouse is entitled to one-half of each community property asset upon divorce. Although the Perry-Brand date of separation is unknown, Perry earned $44 million of community property during the marriage. All earnings of either spouse during marriage are community property. With no premarital agreement, Brand would likely be awarded one-half of Perry’s earnings by a family court judge applying California community property laws. However, Perry and Brand negotiated their own marital settlement agreement.
In a San Diego divorce, the parties have the option to negotiate a settlement agreement. This gives both spouses an opportunity to suggest creative solutions and trade offers in order to come up with a mutually beneficial bargain. The court is limited in the orders it can make and settlement gives the parties more freedom and control to agree to a global settlement of all issues. Shockingly, Brand refused to accept his $22 million portion of Perry’s earnings. Neither party regrets their hasty marriage and would not enter into a premarital agreement if given a second chance. According to Perry, her and Brand trusted each other to be fair in the event of divorce and neither worried about reaching a settlement. Perry hopes to be an example to her fans and encourage them to reach peaceful solutions to problems and confront difficulties in life gracefully.
Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.
As reported in The San Francisco Chronicle, retired San Francisco judge Isabella Horton Grant died of cancer on Saturday at age 87.
Judge Grant made many contributions to family law, including her participation in the drafting and passage of California’s no-fault divorce rule, which went into effect January 1, 1970 with the enactment of the Family Law Act of 1969.
Prior to the enactment of California’s no-fault divorce rule, the moving party in a divorce was a plaintiff who charged the other spouse, as a defendant, with being “at fault” for the divorce for reasons such as adultery, abuse, etc.
With no-fault divorce, a judgment of dissolution of marriage may be granted simply based on irreconcilable differences. Family Code section 2310. Irreconcilable differences are defined by Family Code section 2311 as “those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved”.
Just what grounds will a court determine to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved? To meet the statutory requirements, there must exist “substantial marital problems which have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed and as to which there is no reasonable possibility of elimination, correction or resolution.” In Marriage of Walton (1972) 28 CA3d 108, 118.
As a practical matter, in my experience as a San Diego divorce attorney, I have never had a court deny a request to dissolve a marriage based on irreconcilable differences.