Recently in Divorce Category

Option to Hire a Privately Compensated Temporary Judge

December 16, 2014

temporary-judge.jpgIf you are going through a divorce then you are likely aware of how impacted the courts are, due to a limited budget, and how long a divorce can be drawn out as a result of court hearings being scheduled months out. Impacted courts are especially a concern for litigants going through a divorce who are dealing with a heavily emotional legal case.
Couples who need the Court's assistance with getting permanent orders with regard to child custody, division of property, spousal support or other issues related to a divorce, may need another avenue to end their divorce sooner. Privately compensated temporary judges offer just that.

Perhaps the acronym PCTJ has come up in discussions with your attorney or opposing counsel. PCTJ stands for Privately Compensated Temporary Judge. California Rules of Court Rule 2.834, which became effective January 2010, provides parties with the option to opt out of public courts and make use of a privately compensated temporary judge.

A request for the appointment of a privately compensated temporary judge must be directed to and granted by the family court judge. The parties can sign a stipulation agreeing to hire a privately compensated temporary judge, which will then become a court order.

A privately compensated temporary judge has and exercises all powers and duties of a San Diego Superior Court Judge. However, matters that occur before a privately compensated temporary judge are not held at the courthouse. Since the proceedings will be held outside court facilities, typically court personnel may not be used in the proceedings.

temporary-judge-money.jpgHiring a privately compensated temporary judge typically results in a quicker hearing and therefore quicker resolution of the disputed issue(s) in the case. However, hiring a privately compensated judge does involve an additional cost. The parties will not only incur the expenses of their attorney's fees, filing fees and other costs, but also the cost to hire the privately compensated temporary judge. The parties can agree to split the cost. However, this additional cost must be weighed against the cost of going through the public sector, which may actually rack up more attorney fees as a result of delayed hearings and potentially interrupted trials.

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New Study Identifies Indications of a Future Divorce

December 9, 2014

future-divorce.jpgAccording to a recent study highlighted by the Wall Street Journal, two economists at Emory University identified a correlation between expensive weddings and high divorce rates. In addition, the researchers also noted a connection between the price of the engagement ring and the rate of divorce. The more expensive the ring, the more often the marriage ends in divorce. Despite the statistical link between an expensive wedding or engagement ring and a subsequent divorce; the researchers were not able to conclude that the price of the wedding or the engagement ring was the cause of the divorce.

The Knot, a popular website used by brides to plan their dream weddings, reports that the average U.S. wedding costs approximately $30,000. The wedding industry today is brings in roughly $52 billion dollars in revenue each year. As a result, the industry pushes the idea that expensive weddings result in long-lasting happy marriages. In addition, the more the couple spends on their special day, the more they must love each other and want to share their joy with friends and family. Although the economists discovered that high attendance at less expensive weddings is actually correlated to a long-term marriage, the price for wedding guests to attend the wedding (often priced per person) is typically the most expensive part of a wedding.

future-divorce-toast.jpgThe study conducted by the economists tends to disprove the message perpetrated by the wedding industry based on the following findings:

Cost of the Engagement Ring: Couples who spent between $2,000 and $4,000 on an engagement ring are 1.3 times more likely to get divorced than couples who spent between $500 and $2,000 on an engagement in. It looks like less is more when it comes to the ring after all.

Cost of the Wedding: Couples who spent $20,000 or more on the wedding were 1.6 times more likely to get divorced.

Common Factors in Long-Term Marriages: High wedding attendance, taking a honeymoon, relatively high household income, regular attendance of religious services, and having at least one child together.

These initial findings are interesting, but the economists are not finished with their work on this subject. They are discussing additional research which dives deeper into specific populations and following couples through multiple stages of their relationship.

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Domestic Violence Awareness Month: How a Family Law Attorney Can Help You

December 1, 2014

domestic-violence.jpgOctober has been recognized as Domestic Violence Awareness Month since 1987 in hopes of connecting advocates across the nation to help end domestic violence against women and their children. Various activities are held at local, state and national levels including mourning those who have died as a result of domestic violence, celebrating those who have survived domestic violence, and offering a toll-free hotline to help provide services and information. In San Diego, the Domestic Violence Hotline is 1-888-DVLINKS (1-888-385-4657). In 1994 a national registry called "Remember My Name" was even created to help increase public awareness of those who have died as a result of domestic violence. Unfortunately, domestic violence between married couples is very real and more prevalent than we would like to think it is. Family Law attorneys often encounter clients who have been or are currently the victim of domestic violence. Family law attorneys can play a pivotal role in helping victims of domestic violence.

California law defines domestic violence as "abuse committed against an adult or minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship." Victims of domestic violence have several legal options to protect themselves from further abuse. Although these remedies don't necessarily stop the abuser, they do permit the victim to call the police and get the abuser arrested if/when they break the order.

If you are a victim of domestic violence and you are married to your abuser, you will likely be interested in getting a divorce. Domestic violence can be a factor in certain aspects of your divorce case, including child custody and spousal support, so it's important that you have an experience attorney who can explain your rights to you.

Even if you haven't filed for divorce from your abuser yet, a San Diego family law attorney can help you file a Domestic Violence Restraining Order. If granted by the Court, a restraining order against your abuser will require your abuser to not do certain things, such as being prohibited from calling, texting, emailing, stalking, attacking, or disturbing you. Your abuser may also be ordered to stay a certain distance away from you. This can be done on an emergency/immediate basis, whereby your attorney will seek a temporary restraining order to protect you while waiting for the court hearing to determine if the restraining order should become permanent for a specified period of time.

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Instruction Manual for San Diego Courthouses

November 18, 2014

court-house.jpgFor many people, their first experience with a courthouse is through a divorce proceeding. Going to court for the first time can be intimating for someone who does not know what to expect. If you have not been inside a courtroom before you likely imagine it is similar to images portrayed on television. In San Diego, the courthouses and courtrooms are vastly different than the courthouses and courtrooms shown on popular T.V. shows. Below is a list of tips to help you become prepared for your first trip to one of San Diego's family law courthouses.

Parking:
In San Diego County there are six different courthouses that your case can be assigned to. Your case assignment will be based on the zip code of you or your spouse. Some of the courthouses (Vista, South Bay, and East County) have their own parking lots where litigants can park for free. However, these lots may fill up fast so you will want to allow extra time to find parking before your hearing. The three courthouses downtown do not have connecting parking lots and do not reimburse for parking. Litigants can park at a nearby lot (with a cost ranging from $10-$24 dollars for the day) or a metered parking space. Again, it is important to allow for extra time to find parking before your hearing.

Security in the Courthouse:
The San Diego County Sherriff's Department staffs the security at all of the county's family law courthouses. When you first enter a family law courthouse you must pass through the metal detectors and place all of your personal belongings on the conveyor belt to be x-rayed. If you want to pass through security without any problems, leave any weapons (including household items that could be used as a weapon) at home or in your car. Depending on the rules at the particular courthouse your case is assigned to, you may be required to remove your jacket and/or your belt before passing through the metal detectors. The security check will take a little time, so you will want to arrive a few minutes early to account for that.

Navigating the Courthouse:
After you make it through security, locate the department that your case is assigned to and wait nearby for the courthouse to open. You can often confirm you are in the right place by reading the signs posted outside of the department. Most courtrooms will post a list of the hearings for each calendar that day. One list might say 9:00 AM and have a list of name and then another might say 1:45 PM and have a different list of names. If you think you are in the right place and your case is not listed on the appropriate list, you should check with a bailiff.

The Courtroom:
Do not be alarmed if you are in the right place at the right time, but the courtroom is locked. It is very common for the courtrooms to open up much later than the time matters are originally set to be heard. When the judge is ready to hear your case, a bailiff will make the announcement that the department is open. Once the announcement is made, file in with the rest of the litigants and check-in with the bailiff. Before the judge takes the bench, the bailiff needs to review the list of hearings and determine which parties are present. If the bailiff has checked your name off the list, take a seat and wait for your matter to be called. While you are in the courtroom make sure that your cell phone is turned off. The courtroom will likely have other rules such as no gum chewing, food, drinks, hats, etc. Family law hearings are public; therefore, you will likely hear other cases go before you and your matter will be heard with the other litigants present in court.

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Understanding the Basics of Preliminary Declarations of Disclosure

November 10, 2014

PDOD-divorce.jpgAfter you retain a family law attorney and file your petition or response for dissolution or separation, one of the first things that your divorce attorney will likely do is hand you a blank Form-150 and Form 142 and ask you to start gathering a plethora of documents related to your income, assets and debts. This can be very overwhelming for clients, especially those who are still dealing with the emotions and shock of grasping that they are about to go through a divorce. Consequently, the importance of preparing complete and accurate preliminary declarations of disclosure ("PDODs") is often ignored because it appears to be a very daunting task for divorcing spouses.

Family Code Section 2100 specifically states that "a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties." It's important that the parties get started on their PDODs right away because pursuant to Family Code Section 2104, the petition must serve his/her within 60 days of filing the petition and the Respondent must serve hers/his within 60 days of filing the response. Also, having PDODs allows the parties to move forward in identifying potential issues of dispute and resolving financial issues early on.

The PDODs are comprised of the following:

1) Declaration of Disclosure (FL-140): This form is signed by the party and is simply a summary of the attachments enclosed with the PDODs. You will note that all tax returns (personal, corporate, etc.) filed in the past two years need to be included.

2) Income and Expense Declaration (FL-150): This form is a summary of the party's current income from all sources and his/her monthly expenses. Paystubs from the past two months need to be attached to the form.

3) Schedule of Assets and Debts (FL-142): This form sets forth a summary of the party's assets and debts. Many people think that their separate property doesn't have to be disclosed; however, all known assets and debts, including your separate property, community property and your spouse's separate property that you know of must all be disclosed. This means all tangible and intangible items ranging from a residence to airline frequent flyer miles to student loans. Along with each asset or debt listed, you need to attach supporting documents. You may redact part of the account number on the account statements to protect your privacy.

4) Declaration Regarding Service of Preliminary Declaration of Disclosure (FL-141): This form is confirmation that of the date that you served your PDODs on the other party.

5) Proof of Service (FL-335): The proof of service is what is actually filed with the Court to let the Court know when you served the other party with your PDODs.

Failing to have complete and accurate preliminary declarations of disclosure can lead to potentially significant monetary and other sanctions. However, if you serve your PDODs and later realize that you have changes or updates, you can amend your PDOD at any time. However, you must file a Proof of Service of each amendment with the court.

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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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Which Spouse Should File for Divorce?

October 27, 2014

who-file-divorce-001.jpgIf you and/or your spouse are contemplating divorce, one of the initial considerations is whether you should file for divorce or wait for your spouse to file first. Specifically, is there an advantage or disadvantage to filing for divorce first? In a typical divorce proceeding, it does not make a big difference whether you are the petitioner (first to file) or respondent in your case. In the court's view, both parties are on a level playing field. The petitioning party is not penalized for filing first, but he or she is also not rewarded in any way. In addition, the San Diego Superior Court charges the same filing fee ($435) for filing the Petition for Dissolution and the Response to Petition for Dissolution. Combined, the parties will spend $870 just to make their appearances in a divorce proceeding.

There can be a slight advantage to being the first to file for divorce if you and your spouse reside is different zip codes. Your divorce case will be assigned to a particular courthouse based on representations made in the Petition. If you would like your case heard at the courthouse near your home, you should file a Petition before your spouse. If you believe there may be some advantage to you if the case is heard at the courthouse your spouse's zip code is assigned to, you can file a Petition and have the case assigned to that courthouse. The petitioner will decide which courthouse his or her divorce case is assigned to. Consulting with an experienced family law attorney who has worked in the different courthouses throughout San Diego County can help you make the decision regarding where to file your case.

In a small number of cases, the first party to file can have a significant outcome on the divorce proceedings. If you and your spouse live in different states or even different counties within California, you should consider filing for divorce as soon as possible. When two spouses live in different counties, the responding spouse will be required to travel to a different county to attend court hearings. This has the potential to be an inconvenience and makes communication with a local attorney slightly more difficult. However, if you and your spouse live in different states, you will want to compare the laws of that state to family code statues and cases in California. It is imperative that you consult with a divorce attorney immediately to determine if you could be greatly disadvantaged if your spouse files for divorce out of state.

If you and your spouse share minor child(ren), the jurisdictional issues involved in your case may be even more complicated. Becoming informed of your options is the first step you can take towards protecting your rights.

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Divorce for Men

October 20, 2014

divorce-for-men-001.jpgOne of the popular marketing strategies for family law firms throughout San Diego County is promoting "divorce for men". From billboards to newspaper ads and firm websites, many law firms advertise a focus on "husbands and fathers" and protecting their rights. "Men's rights" is an issue that many litigants associate with divorces, custody battles and domestic violence cases. However, is there really a different skill level involved when representing husbands and fathers or is this advertisement nothing more than a way to attract male clients?

It is a common belief that men walk into divorce court, a custody battle or a domestic violence restraining order hearing with the deck stacked against them. There is an assumption that men automatically will have to pay an exorbitant amount of money in support and/or to equalize property division. In addition, the general public assumes that the court tends to give women custody of minor children. With regard to domestic violence hearings, men assume that women are given the benefit of doubt and that restraining orders are granted more often than not. In reality, although a particular judge may have a bias against one gender or the other, the law makes it clear that men and women should be treated equally in divorce proceedings, custody hearings, or in domestic violence cases.

In San Diego divorces, support comes down to clear cut numbers. If a woman is the high income earner, she is legally obligated to pay child and/or spousal support if the circumstances permit. In addition, the same is true if a man is the high income earner. With regard to property division, under the law, all community property should be divided equally regardless of the sex of the parties. There is no differentiation between men and women with regard to support or property division in California divorce cases. Consideration of gender in making these determinations is an appealable offense.

Many of the stereotypes regarding favoritism towards women in custody and visitation cases stem from actual case law and statutes. In the past, it was permissible for courts to give preference to women in custody disputes. Today, it is improper for courts to make custody determinations on the basis of gender. Men and women are equal under the law with respect to the desirability of their role as parents. Often, the Court encourages children to spend time with both parents and to mend any broken relationships.

An overwhelming majority of domestic violence restraining orders are filed by women against men. However, that does not mean that a restraining order filed by a woman against a man is automatically granted and that men are disadvantaged. Statistically, women are more frequently the victims of domestic violence and men who are victims are less likely to report it than women. As a factual matter, most restraining orders are granted on a temporary basis until the matter is heard by the court and the accused is given the opportunity to present a defense. In San Diego, family court judges do not take the deprivation of a person's liberty lightly and require evidence of domestic violence before they will grant a permanent restraining order.
Considering that men and women are on a level playing field under the law, it seems that catering towards "men's rights" might be more of an advertising technique rather than a true skill set.

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Cheaters Never Prosper - Signs of an Unfaithful Spouse

October 3, 2014

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

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

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

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

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When Is My Support Payment Due?

August 19, 2014

support-payment.JPGOne 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.

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Protecting Your Career During Divorce

July 23, 2014

As one would expect, going through a divorce is typically a time of emotional upheaval and chaos. You will likely be required to spend a significant amount of time preparing legal paperwork, attending court hearings, going to your attorney's office and dealing with the day-to-day drama that comes with a divorce. Your life might seem like one chaotic mess as a result of having to suddenly move out of your residence or divide up your belongings. And the time that you get with your children, well you surely won't want to sacrifice a minute of that to focus on work instead. So with all of this going on during a divorce, how can you properly manage your career and avoid losing your job??

career-divorce.jpgKeep Your Professional Reputation Intact
If you are going through a very tumultuous and heated divorce, your soon to be ex-spouse may be inclined to attempt to ruin your reputation in the workplace. He/She may feel the need to reach out to your boss or your coworkers and make disparaging remarks about you. To avoid the potential aftermath of this, it would behoove you to take preventative steps and pull your boss aside for a private meeting to let him/her know that you are going through a divorce but that it will in no way, shape or form affect your work ethic. Although it's really none of your boss's business perhaps giving him/her a heads up that your spouse is not in a good place emotionally, will prepare your boss in case a phone call or email comes his/her way from your spouse.

Another way of keeping your professional reputation intact is to not allow your performance to slip. Although your mind might be focused on the divorce, try to keep your attention on the job during working hours. One motivator to keep your performance at its peak is the potential that you will be paying spousal and/or child support to your ex-spouse. It is likely a critical time for you to be sure that you have a continuous stream of income.

career-vacation.jpgSave Your Vacation and Sick Days
During the divorce, you might need to take partial or whole days off to attend court hearings, meet with your attorney, attend mediation, pick your children up from school, etc. You are probably limited on the number of paid vacation and sick days that you are allowed to take from work so do your best to save those while going through a divorce. Having to take an unpaid day off or jeopardizing your career is just added stress that you will want to avoid during a divorce.

Separate Work and Family
Although easier said than done, you should focus on separating your work and family life as much as possible. Working on divorce papers or taking phone calls from your soon to be ex-spouse while at work will only serve to distract you from getting your job done. Also, keeping your personal life to yourself will help avoid unnecessary gossip around the office. It's also important to leave your work at work when you come home. Your custody arrangement might not provide you with as much time with your children as you would like, so every moment you spend with them should be cherished and not distracted by work. If you don't have children, then your alone time is still critical to allow you the time to cope with your divorce emotions or perhaps meet new people.

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California Divorce 101

July 22, 2014

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

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

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

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

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

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

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Statutes of Limitations between Spouses

July 16, 2014

statute-limitations-01.jpgPrior to marriage, it is not uncommon for people to incur debts or obligations to their significant others. For example, in a long term relationship a boyfriend might loan his girlfriend money for a down payment on a new car or money for car repairs. If the couple cohabitates, the couple might have an agreement that the girlfriend will pay all of the household expenses while her boyfriend attends school full time. In another common scenario, a couple agrees that one of the parties will lend the other money for tuition. Significant others can also incur debts to each other by one party providing professional services to the other such as legal or tax preparation assistance. As long as an agreement exists for repayment (either orally or in writing) and other contract requirements are met, the parties have entered into an enforceable contract.

What happens to a debt or obligation between significant others if the parties get married? During marriage all earnings, accumulations, and liabilities acquired by either party during marriage are community property. However, in general, all property (and liabilities) acquired prior to marriage is the separate property of the acquiring spouse. A pre-marriage debt owed by one spouse to the other is by default a separate property receivable for one spouse and a separate property obligation of the other. According to California statues and case law, a pre-marriage debt between spouses is not extinguished by marriage. This means that after separation, the lending spouse may collect the debt from his or her spouse.

statute-limitations-cash.jpgEven if a pre-marriage debt between spouses survives marriage, what happens if the marriage lasts longer than the statute of limitations on collections? In civil cases, a lender generally has a limited period of time to collect money owed to him or her from a debtor. Typically, statutes of limitations range from two to three years depending on the particular cause of action. Because a significant number of marriages last longer than two to three years, the statute of limitations on collection of a pre-marriage debt may expire before the parties seek a divorce. However, California courts have carved out specific rules regarding debts owed between people who get married. In California, the statute of limitations on debt collection is tolled (is put on pause) from the date a lender and debtor get married through the date of separation.

There is an important distinction in this area of law between couples who are married and couples who merely cohabitate. Because California does not recognize any form of common law marriage, couples must legally marry to toll any pending statutes of limitations on debt collections. If a couple cohabitates, all standard statute of limitations will still apply.

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Should I Stay Friends with my Ex's Family After Divorce?

July 8, 2014

staying-friends-couple.jpgEnding a marriage, doesn't necessarily mean that you have to cut all ties with your ex spouse's family. Or does it? When your spouse brought you into that family, they were expected to welcome you with open arms and treat you like part of the family. Then when you actually got married, you not only gained a husband/wife but also a whole new family. So now that you are no longer the husband/wife of your ex-spouse, does this mean that you can no longer have a relationship with his family too?

When considering whether or not to stay close with your ex's family post-divorce, it's important to first think about the underlying cause of your divorce. Sure your divorce papers might have said the cause was "irreconcilable differences". But what was the root of those "irreconcilable differences?" Was it bad behavior, such as abuse, addiction or infidelity on your ex's behalf? If so, perhaps staying close with your ex's family might cause you to re-live the pain that you went through with your ex-spouse. On the other hand, your ex-spouse's family might be more willing to offer you the support that you need and that you didn't receive from your spouse. It's important to keep in mind though that your ex's family will inevitable stay loyal to your ex so you need to be sure to know where your boundaries are and exercise caution.

Another consideration is what message it will send to your children if you stay close friends with your ex's family. In many cases, this will be helpful for your children because your continued relations with your kids' extended family will help ensure that they don't suffer more loss of relationships as a result of your divorce. If the kids see that you are staying friends with your ex's family then the whole divorce might appear to be a bit less dysfunctional for them. And maintaining a pleasant family environment for your children is likely to help them through this transition in their life.

staying-friends.jpgLastly, before rushing to hang out with your ex sister-in-law on a daily basis or having your ex mother-in-law over for dinner every night, think about how your continued relationship will affect your ability to rebuild your life and move on from your ex. Can you really begin to focus on yourself if you haven't given yourself the opportunity to let go of the past? Perhaps maintaining such close ties with your ex's family will prevent you from accepting that the marriage is really over. On the other hand, maybe your ex-family is all that you really have and their support and friendship will help you get through this difficult transition in your life.

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How Changing Attorneys Can Impact your Family Law Case

July 3, 2014

changing-attorneys.jpgThere are so many experienced family law attorneys in San Diego that it might be difficult to decide which one you trust to handle your family law matter. In addition, your idea of how your family law matter should be handled can evolve as your case progresses. Especially in complicated divorce cases, litigation can drag out for months or even years. Due to the nature of family law, family law litigants work very closely with their attorneys during the pendency of their actions.

Over time, the attorney and client may reach disagreements about how the case is handled and either party may wish to end the professional relationship. In addition to strategy disagreements, litigants may also change counsel as a result of personality conflicts or other practical impediments to communication. Both the client and attorney may agree to terminate the attorney-client relationship in order to further the client's interest. For instance, the attorney may not have an efficient working relationship with opposing counsel. If the relationship between attorneys becomes too adversarial during the pendency of a case, the entire case could lose focus and become more expensive for both parties. In this type of situation, a change of counsel can give a family law case new direction and focus.

changing-attorneys-butterfly.jpgIf you are a family law litigant and are considering making a change of counsel, it is important to consider how this change may affect your case. First, hiring a new attorney will undoubtedly result in additional attorney fees and delay in your matter. Although your first attorney should not continue to charge you following formal withdraw as your attorney of record, your second attorney will need to "catch up" on your case. The time required for a new attorney to get up to speed on your case will depend on the size of your file, the level of litigation and how long your case has progressed for. The time spent by your new attorney getting up to speed will have a direct impact on the cost of your change of counsel. The longer the new attorney spends reviewing the case file prepared by your former attorney, the more expensive the transition will be.

Family law litigants should not change attorneys as a tactic to delay litigation. If an attorney feels the other side has changed counsel in order to stall the proceedings, he or she can file a motion for sanctions. If the judge determines that the litigant has interfered with the policy of fair dealing and settlement in family law proceedings, he or she will sanction (fine) the offending party.

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