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How to Prepare for Divorce

May 3, 2014

divorce cake.jpgOnce a spouse decides that his or her marriage is over, he or she may want to take steps to prepare for divorce before filing the initial paperwork and/or discussing it with his or her spouse. If you are considering your first divorce just the thought of the overall process can be overwhelming and upsetting. In order to enter the process with greater awareness and information, there are a few things that you can do to prepare for divorce.

Consult with an attorney regarding your state's laws: Each state has specific laws regarding how property will be divided, spousal support, child support, and custody/visitation in the event of a divorce. Many people are unfamiliar with the specific laws of their state and may have misconceptions regarding their rights and options in a divorce. It is important to meet with a certified family law specialist so that you can gather more information about what you can expect in your divorce. Getting an idea of how the process will work and the likely outcomes in your case can ease a great deal of stress and tension.

Become familiar with the different types of child custody: In California there are two types of child custody - legal and physical custody. It is important to understand the differences between these two types of custody and how they relate to each other. Further, there are varying degrees of physical custody and infinite possible custody configurations.

Preventative preparation: One of the biggest jobs for any divorce litigant is helping his or her attorney prepare the mandatory financial disclosure documents. This process can become more difficult if a party no longer has access to the required documents because he or she moved out of the residence, the other spouse took the documents, or the spouse has no direct knowledge of the family finances. Prior to separation, it is advisable to make copies of all financial documents including, but not limited to, bank statements, tax returns, pay stubs, family bills, and title paperwork.

Stay on your best behavior: In preparation for divorce, it is important to refrain from behavior that may reflect badly on you if your matter is heard by a judge. Especially in custody/visitation disputes, poor behavior prior to divorce will reflect on a spouse's parenting abilities.

divorce-family.gifBegin considering telling the children: If you have decided to get a divorce, it is never too early to begin thinking about and researching possible ways to talk to your children about divorce. It is important to approach this discussion thoughtfully and with great care in order to ensure the child is assured the divorce is not his or her fault.

In any divorce case, emotional preparation can be just as helpful as legal preparation.

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Do I Have to Move Out to be Separated from My Spouse?

February 27, 2014

Separate Residence in Divorce - Keys The "date of separation" is one of the most important issues to determine at the beginning of any divorce case. The date of separation marks the end of the martial community and represents the termination of the marriage for the purposes of determining the length of the marriage. From the date of separation forward, all earnings and accumulations of both parties are their separate property. In order for the date of separation to occur the following two factors must be present: (1) the parties must be living "separate and apart" and (2) at least one spouse must have the subjective intent (evident through objectively evaluated actions) never to resume the marital relationship. Until recently, many San Diego family law attorneys believed that, in order to live separate and apart, the spouses needed to maintain two separate residences. However, this issue has always been debatable for other divorce attorneys.

On October 25, 2013, the First District Court of Appeal cleared up the "living separate and apart" debate for the family law community. The First District Court of Appeal sustained a trial court's holding in In re Marriage of Davis which stands for the proposition that it is not necessary for spouses to maintain two separate residences in order to be "separated" for the purposes of determining date of separation. The court opined that factors, other than living in two separate residences could satisfy the "separate and apart" requirement to establish the date of separation. In particular, the court relied on a change in how the parties handled their finances and the fact that Ms. Davis filed for divorce in its conclusion that the parties lived "separate and apart" while still residing under the same roof.

If you believe you have separated from your spouse but are still living in the same residence with him or her, you might consider the actions of the Davis couple in order to establish a case for date of separation. One of the most important considerations in the Davis case was the change in how the parties handled their finances. In Davis, the parties began depositing their individual earnings into separate bank accounts. Each month, the parties would deposit a certain amount of funds into a joint account which would be used to maintain the household expenses. However, each party was responsible to pay for their own personal expenses with their separate funds. In addition to separating their finances, in Davis the parties began to sleep in separate bedrooms and ceased sexual relations.

In general, the Court will look for a shift in the parties' behavior to determine the date of separation. Therefore, if the parties have always maintained separate bank accounts throughout marriage, the Court will not likely give as much weight to that factor as it did in the Davis case.

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The Significance of Hitting the Ten-Year Mark in Marriage

December 23, 2013

10 year marriageSo you've been married for 9 years and you know your marriage has hit a point where you are ready to get out. Perhaps you and your spouse have talked about your impending divorce or maybe it's just a thought you've had in the back of your mind lately.

Either way, is it worth it to stretch the marriage past that ten-year mark? In California, there are several reasons why it might be in your best interest to reach the ten-year marriage mark before seeking to get a divorce

Spousal Support

There are special spousal support rules in California for marriages that are ten years or longer in duration. If a marriage lasted less than ten years, the court will typically order spousal support for a period equal to one half the length of the marriage. However, for a marriage that lasted more than ten years (from date of marriage to the date of separation), the court recognizes it as a "marriage of long duration". This means that the court retains jurisdiction over spousal support and may not set a termination of spousal support date without the parties' agreement. Thus, the spouse entitled to spousal support may be entitled to receive spousal support for life or until remarriage. The parties will be required to come back to court in the future to determine whether the spousal support obligation will continue.

Military Benefits

A marriage lasting at least ten years is also important if your soon-to-be ex-spouse is in the military and will be eligible for retirement benefits. If you were married for at least ten years and that time overlaps with ten years of military service, then you will be eligible to qualify for direct enforcement. This means that your portion of military retirement pay will be paid directly to you by the military finance office (who will garnish the service member's retirement and pay the ex-spouse directly), rather than the service member writing you a check each month.

Social Security Benefits

Another benefit of a marriage of at least ten years is that the Social Security Administration considers it to be a "long-term marriage," making you eligible for Social Security benefits based on your soon to be ex-spouse's earnings record when you reach the age of retirement (as long as you aren't remarried to another person at the time). Read more about retirement benefits and divorce.


No matter how good the financial benefits seem for a marriage lasting longer than ten years, there are some situations in which you should not wait. If, for instance, there is any danger to you or your children, then it is important for you to focus on your safety rather than the potential benefits of staying in the marriage for a longer period of time.

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Kris Jenner and Bruce Jenner Separated

October 24, 2013

It is no secret that Kris and Bruce Jenner have recently experienced some marital troubles. Kris Jenner has been in the public eye since her late ex-husband, Robert Kardashian, represented O.J. Simpson during his murder trial. Bruce Jenner has his own claim to fame as a gold-medal winning Olympian. Since their initial entrance on the public scene, Kris and Bruce Jenner have become reality T.V. celebrities by starring on the hit show, "Keeping Up with the Kardashians". "Keeping Up with the Kardashians" is a reality show that follows the life of the Kardashian-Jenner family. True to reality show fashion, the show chronicles the personal lives of Kris and Bruce, including their marital discord.


In the past few seasons of "Keeping Up with the Kardashians" Kris and Bruce have been struggling with finding their own space in their shared family home. In order to reach some sort of compromise, the Jenners have experimented by renting out other homes for Bruce to stay in from time to time. Some of the Jenner children have criticized this marital arrangement by stating that it is one step toward divorce for the parties. The couple had previously announced that they were living separately but that they are much happier that way. The Jenner children have proven wise beyond their years when it comes to their observations about living apart and divorce. Kris and Bruce have now announced that they have completely separated. If the Jenners do pursue a formal divorce, their current living arrangement may greatly impact the divorce proceeding.

Under the California Family Code, all earnings and accumulations acquired by the parties during marriage is community property and divided equally upon divorce. All property acquired before marriage and after the date of separation is separate property and confirmed to the party that acquired it. The point at which the Court will draw a line in the sand between community and separate property is called the "date of separation". The Court will find that parties are separated when two criteria are met. First, the parties must be living separate and apart and second, at least one party must have the intent never to resume the martial relationship.

As Kris and Bruce Jenner are currently living separate and apart, it would not be difficult for one party to claim he or she had the requisite intent to end the marriage and therefore claim an earlier date of separation than the other. Another factor to take into consideration is the possibility that the Jenners have an enforceable premarital agreement, commonly known as a "pre-nup". As both Kris and Bruce had been married and divorced before they married each other, they would be prime candidates for a premarital agreement. In a premarital agreement the parties have an option to make agreements outside of default California community property laws thereby make other arrangements for distribution of earnings and accumulations during marriage in the event of divorce.

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How a Later Date of Separation in a San Diego Divorce May Weigh In Your Favor

May 20, 2013

Divorce Date of SeparationIn a San Diego divorce, a party's date of separation is the first date when either party subjectively (mentally) decided the marriage was over, finished, and not salvageable. The parties' overt actions usually demonstrate that subjective frame of mind. For instance, there can't be ongoing marriage counseling to save the marriage after the date of separation. The date of separation of the parties to a divorce can be a hotly contested issue. Sometimes, when parties do not agree on the date that they separated, the court must step in to help.


In fact, it is quite common for divorcing spouses to disagree about when their date of separation is. These disagreements are usually financially motivated since California is a community property state. This means that in California, community property rights only accrue from the date of marriage until the date of separation. Thus, the date of separation can significantly affect the size of the divisible community estate during a divorce. Some legal, financial, and other practical considerations for the parties to keep in mind when considering divorce and arriving at a date of separation (by way of agreement or decided by the Court) include the following:

  • Stock options: Divorce attorneys will advise their clients that a later date of separation will usually give the community more interest in a stock option.
  • Post-separation bonuses: A later date of separation will give the community a greater interest in a post-separation bonus upon divorce.
  • Pensions: A later date of separation in a divorce will give the community more interest in a pension.
  • Spousal support: A later date of separation from your spouse may provide for more spousal support. The duration of the marriage is one of the twelve factors a California court will weigh in determining the amount and duration of permanent spousal support.
  • Value of a business: A later date of separation in a San Diego divorce will value a sole practitioner's business at a later date.
  • Pereira or Van Kamp considerations: If the separate property business was brought into the marriage, the community's interest would stop growing at the date of separation.

Later Date of Separation San Diego divorceThe implications of the date of separation in a divorce can be quite significant. With the above considerations in mind, if for example Husband is the primary breadwinner and Wife is a stay-at-home mom, Wife may want to establish a later date of separation in order to maximize the community estate. Husband, on the other hand, may want to establish an earlier date of separation for the divorce so that his income, bonuses, commissions, etc. earned after the date of separation will be characterized as his separate property instead of community property. Clearly, selecting the date of separation can be a complicated matter that may require the advice of an experienced divorce attorney.


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How Valentine's Day Can Affect Your Divorce

February 11, 2013

San_Diego_Waterfront.jpgValentine's Day is a romantic time in Del Mar and throughout San Diego County. The romance of this holiday can sometimes stir up old feelings between divorcing spouses. It is not uncommon for spouses going through a Del Mar divorce to send each other gifts on Valentine's Day or even to spend the day together. However, it is important to consider the legal ramifications of these acts especially with regard to the date of separation. On the other hand, newly separated spouses may be spending Valentine's Day with a new significant other for the first time in a while. Before substantial gifts are given to a new love interest or money is spent on a lavish trip, it is important to also consider how these acts may impact your divorce proceeding in Del Mar.

The date of separation is an important consideration in many divorces. The marital estate is the property divided upon divorce. Property can only be accumulated in the martial estate between the date of marriage and the date of separation. Thus, once spouses decide to end their marriage, they stop accumulating any community assets. In order for a separation to occur, the spouses must physically separate (live apart) with the simultaneous intent never to resume the marital relationship. As Del Mar divorce attorneys understand, only one spouse is necessary to establish the requisite intent to end the marriage.

Read more about date of separation from Del Mar divorce lawyer Nancy Bickford

Depending on the assets in the martial estate, a dispute regarding date of separation can have enormous financial consequences. In order to determine which spouse is correct regarding the date of separation, the court will consider the conduct of the parties. One of the factors considered by the court is whether the spouses gave each other gifts or spent holidays together. If Husband and his attorney allege the parties separated January 1, 2010, the same year he earned a $100,000 bonus at work, that bonus would be his separate property. However, if Wife can show that Husband sent her flowers and a romantic card on Valentine's Day in 2011, her divorce lawyer can use this as evidence that they in fact separated much later and she will be entitled to half of Husband's 2010 bonus.

Under the Family Code, which governs the divorce process in Del Mar, spouses are not permitted to gift community property without the written consent of the other spouse. While both spouses are entitled to manage and control community funds, gifting community property is not considered a function of a spouses right to "manage and control" community funds. If a separated spouse intends to purchase any lavish gifts for a new significant other, he or she should be careful only to use separate property funds for this purchase.

In Del Mar, the divorce process can be complex, and selecting a qualified and knowledgeable divorce attorney is exceptionally important. 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 for more information about the consultation process.

How will divorce affect my income taxes in California?

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.

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Reasons for Delaying Entry of Judgment

February 17, 2011

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.