Recently in Divorce Category

Keeping Inherited Money Separate

March 26, 2015

inherited-money-divorce.jpgMost parents want to ensure their children have every advantage and opportunity they can afford to provide to ensure they are successful and happy. Many parents also want to leave a financial legacy for their children after they pass away in the form of trusts or inheritances. These gifts of money or inheritances are fairly straightforward. Under California law, any property received either by gift, bequest, devise, or descent, including the income derived therefrom, is considered the separate property of the party receiving the money. Like I said, it's pretty straightforward. The complications arise when the receipt of this property or money is commingled (mixed) with community property money. Unraveling the rat's nest of commingled funds can not only be expensive, but is often impossible. This is especially true when the parties have been married for a long time.
So how can you ensure you keep your inheritance after a divorce? While not bullet proof or exhaustive, the following items can help you to keep this property separate.

Don't Co-mingle your funds
This is probably the most important thing you can do to ensure that your separate money stays that way. If you expect an inheritance, or received one prior to your marriage, keep that money in a separate account in your name only. Never put income earned during marriage into that account for any reason. Once you comingle community and separate money, you will be required to perform a tracing using a forensic accountant to unravel the transaction. If that sounds expensive, you're right. Depending on the amount of transaction, and the span of time involved, tracing separate and community funds can costs tens, if not hundreds, of thousands of dollars.

Do a Pre-nup or Post-Nup
A prenuptial agreement (before marriage) and a post-nuptial agreement (after marriage) are one way to define what property or money is separate and what property or money is community. These agreements can be very helpful if a marriage ends in divorce, but they are not fool proof. Even if you have a bullet proof pre-nup, that does not stop the other party from contesting it. Just ask Donald Trump. About Ivana's challenge to Donald Trump's prenuptial agreement, Trump wrote, "[w]e needed a bus to get Ivana's lawyers to court. It was a disaster, but I had a solid pre-nup, and it held up." More importantly, even with a prenuptial agreement, if you commingle your separate property funds with community property, you could end up spending thousands of dollars just to unravel the mess.

Do an Irrevocable Trust

If you anticipate receiving an inheritance, setting up an irrevocable trust can separate and protect the principal of that inheritance. If the trust pays out income to you, that can still be considered for spousal or child support, but the trust will protect the principal assets and money.

inheritence-live-moderately.jpgLive within your means
In California, using your separate property to pay community property bills is generally considered a gift that you cannot get back. Regular gifts of income from family that are used to pay community bills can also be considered part of the marital standard of living, so be careful how this money is spent. This is not to say that you cannot use your separate property for your family, just know that if you do, it is unlikely you will get it back.

By considering the items above and speaking with a financial planner who specializes in divorce, as well as a qualified family law attorney, you can set in place a plan to protect your separate property assets in the event of a divorce.

Continue reading "Keeping Inherited Money Separate" »

Can I be Forced to Testify as a Witness?

March 25, 2015

testifying-in-court.jpgHere at the Law Offices of Nancy J. Bickford, we do our best to settle family law disputes in an amicable fashion. If the circumstances permit, we work with the parties (and opposing counsel) to help the parties reach a settlement agreement that they are both content with. Consequently, we also help them save time and money by attempting to keep their disputes out of the courtroom. However, sometimes the circumstances of the case require some or all of the issues to be litigated in court. If the case goes to trial, then there is a possibility that the attorney will need to call a witness to testify in court.

Family Code Section 217, specifically states that the court must receive any live, competent, and admissible testimony that is relevant and within the scope of the hearing unless there is a stipulation of the parties or a finding of good cause. Thus, parties who are getting a divorce and litigating their case in court have the right to call a witness to the stand during a trial to provide testimony regarding information that is pertinent to the case.

What is Live Witness Testimony?
A witness is someone who is properly qualified to provide testimony to the court regarding information that is relevant to the issues at hand. The party who called the witness will ask their questions of the witness in what is known as "direct examination." Then the opposing party will have an opportunity to conduct what is known as "cross examination."

What is a Subpoena?
If a witness will not voluntarily come to court, then that person can be subpoenaed. In Latin, subpoena means "under penalty". A subpoena is a court order that gives a person a legal obligation to appear and testify in court.

Are there any Ways to Get Out of Testifying?
If a person receives a subpoena informing him/her that their testimony is requested, then there are only very limited reasons in which that person may be excused from testifying. For instance, a person may be excused from testifying as a witness if he/she is not competent to testify due to age or illness, which prevents him/her from recalling events and truthfully explaining then to the Court. Also, if the witness is one party's attorney, priest or psychotherapist, he/she may be excused due to the special relationship in which the communication between the witness and party is privileged.

If none of the limited excuses apply to you, you may still be able to request a postponement of your appearance in Court. Such postponements, however, are not often granted and limited to reasons of death or severe illness. If no postponement is granted then you are required to appear on the date and time on your subpoena. If the postponement is granted, then you are obligated to appear on the later date and time issued by the Court.

What are the Penalties for Failing to Testify?
If you were properly subpoenaed and fail to comply with the subpoena to testify as a witness in court, the Judge, at his or her discretion, could find you in contempt of court and you could potentially face jail time and/or hefty fines.

Continue reading "Can I be Forced to Testify as a Witness? " »

"Your Cheating Hart"

March 24, 2015

cheating-heart-infidelity.jpgActor and comedian, Kevin Hart, whose new movie Get Hard co-starring Will Farrell set to release on March 27th, is on top of the world. It also appears that the feud between Kevin's first Wife and mother of his two children, Torrei Hart, and his fiancé, Eniko Parrish is over. Life for Kevin was not always so rosy. Back in May 2014 Torrei took to twitter slamming the comedian for cheating and blaming the breakup of their marriage, in part, on his infidelity.

Recently, the Wall Street Journal published an article entitled Are You Likely to Have an Affair? According to the article, the "signs" include:


  • Gender

  • Certain ages being more prone to cheating

  • History of past infidelity

  • Dissatisfaction with the current relationship

  • Exposure to potential partners at work

  • Thrill seeking or narcissistic personal traits

While studies vary, statistics suggest that sometime during their marriages, 21% of men and 15% of women are involved at some type of extramarital affair.

In California, evidence of marital misconduct is not admissible, because California is a no fault state. Though not as common as it once was, there are states where evidence of marital misconduct is not only admissible, but is potentially damaging to your divorce case. In some states, if the other party can prove adultery, it can have an impact of spousal support. Despite being a no fault state, the issue of infidelity can still have an impact on your case, both financially and emotionally.

If the injured party (that is the spouse who was cheated on), can prove the cheating spouse used community property money to advance his/her affair, then the Court could find "dissipation" and order the cheating spouse to reimburse the community for money used for the affair. This could include hotel rooms, flowers, gifts, jewelry, dinners and or even vacations. This can be difficult to prove, and in some cases the amount to be recovered may not be worth the cost of fighting. Every case is different, so you should consult with an attorney to decide whether the issue is worth pursuing.

cheating-infidelity.jpgWhether you pursue recovery of the money the other party spent on their affair, you will be faced with the emotional impact of finding out your spouse has cheated. Divorce is by its nature an emotional situation; it represents the end of a commitment made at a time when two people were very much in love. These emotions are only exacerbated when one party learns the other party has been unfaithful. While it is natural to be upset and want to push for punishment or retribution, it is important not to let your personal emotions drive your divorce case. Allowing an emotional response to map the direction of your divorce case can not only be expensive to you, it may impact your children emotionally and will get in the way of you healing and moving on.

An experienced Family Law Attorney can educate you on the legal impact of infidelity and help you determine the best course of action for your case, and not merely as a reaction to the infidelity. No matter the reason for the divorce, coming out of the divorce financially and emotionally secure should be your top priority.

Continue reading ""Your Cheating Hart"" »

Tips for Living Together While Legally Separated

March 23, 2015

legally-separated-living-together.jpgWhen a couple decides to get a legal separation or divorce, it doesn't necessarily mean that one party has to rush to pack up his/her belongings and leave the marital home right away. In fact, the parties can still establish a date of separation even if they are still living under the same roof. However, living together while separated might be a bit tricky and uncomfortable for most couples. There are certain things they should and should not do to make this uncomfortable situation a bit more bearable.

From a legal perspective, the date of separation is the first date when either party subjectively (i.e. mentally) decided that the marriage was over and not salvageable and their overt actions demonstrate that subjective frame of mind. Living separate and apart from your spouse is not required in order to establish a date of separation so long as the at least one spouse has the subjective intent to end the marriage and his/her actions indicate that the marriage is finished. Courts will consider a variety of things to determine the spouse's intent.

If both parties are staying in the marital home while they are separated and pending resolution of their legal separation or divorce, there is likely going to be a lot of tension. To mitigate the tension, it is recommended that the parties adopt some or all of the following tips:

1. Don't bring a new girlfriend/boyfriend into the mix. The cause of your divorce or legal separation might be due to your newfound love for another person. There is no need to put salt in the wound. But if you are adamant about dating someone new while still living with your spouse, be discreet about it

2. Create Guidelines for Interaction. If you're still living with your spouse while separated then you need to discuss items of daily living and interaction. This means that you two need to sit down and discuss how bills will get paid, whether or not you will share groceries, who will clean the house, etc. To the extent possible, many couples choose to just maintain the status quo of how things were handled during the marriage.

3. Consider going to a therapist. Having a neutral third party mental health professional help walk you through the stages of divorce can help you process things both emotionally and logistically.

4. Consider a nesting arrangement. Sometimes the tension and awkwardness is just too much too handle. If so, consider a nesting cutody arrangement as described in my previous blog entitled "Is a Nesting Custody Arrangement Right for Me?"

Continue reading "Tips for Living Together While Legally Separated" »

Breaking Divorce News to an Unwilling Spouse

March 16, 2015

telling-spouse-to-divorce.jpgSometimes divorce is mutual and other times it's completely one-sided. Going into the "divorce talk" with your spouse, you typically know whether it's going to be a mutual decision or if it's going to be completely one-sided. But what happens when you know that you want a divorce but your husband/wife does not? Is there anything you can do to make the process less painful for the both of you?

Since it takes two people to get married, it's a common misconception that it takes two people to get divorced. But the truth of the matter is that getting a divorce can technically be done by just one spouse, even if the other spouse doesn't want to get divorced. However, if your spouse is opposed to the divorce then there is probably a higher chance that your spouse will want to litigate many issues and drag the divorce out for as long as possible to rack up those attorney fees.

If your spouse is reluctant to get divorced but you know whole heartedly that it's what you want, there are a few things you can do to mitigate the consequences. First, try to avoid letting your spouse find out about you wanting a divorce from someone else. Be the one to tell him/her directly. Getting divorce papers in the mail or a phone call from another family member or friend will simply fuel the anger and resentment if you haven't taken the time to prepare your spouse for what is coming. You married your spouse, so even though there may be some legitimate reasons for wanting to divorce him or her, muster up the courage and respect to try and let your spouse down easy.

telling-spouse-about-divorce.jpgNext, you can suggest to your spouse that the two of you go to counseling together. Having a third party there will help provide a safe environment for discussing the looming divorce. You may also be able to get a better understanding of why your spouse is so opposed to the divorce. Perhaps it is because of a fear of lack of financial stability once the marriage is over. If that is the case, you might consider giving your spouse more assets or conceding during settlement negotiations to pay more support.

In addition to going to counseling together, you can also discuss the possibility of mediation with your spouse. Many divorce attorneys also provide mediation services for spouses looking for a more amicable approach to the divorce process. If your spouse understands that you are willing to move forward with the divorce in a more open and friendly fashion then he/she may be less reluctant about the divorce. The mediator can help you focus on planning for your future rather than fighting about things that have happened in the past.

Continue reading "Breaking Divorce News to an Unwilling Spouse " »

SO YOUR EX QUIT THEIR JOB...NOW WHAT DO YOU DO? [Part Two - Spousal Support]

March 12, 2015

spousal-support-job.jpgIn Part One of this blog, I discussed the issue of income imputation (often referred to as earning capacity) in child support cases. The focus of the article was about your options if the other parent voluntarily quit their job and was seeking a modification of child support. As that blog explained income imputation (assigning income to a party that is not actually earned) is fairly straight forward based on California's significant state interest of ensuring parent's support their children. If you missed this blog, and you are facing a modification of child support based on the other party voluntarily quitting their job, I highly recommend you go back and read that blog.

But what happens if there are no children; or as is typically the case, there are orders for child and spousal support? Can you still seek to impute income at a party's previous income when they voluntarily quit their job? The short answer is yes you can.

Family Code Section 4320(c) lists the earning capacity of the supporting spouse as one factor to consider in making spousal support orders. ["The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. Family Code §4320 (c)]

Although Section 4320(c) speaks of earning capacity, the code does not specifically define what it means. For that answer we look to the case, Marriage of Simpson In Simpson, the California Supreme Court stated "'[E]arning capacity' represents the income the spouse is reasonably capable of earning based upon the spouse's age, health, education, marketable skills, employment history, and the availability of employment opportunities."

spousal-support-who-pays.jpgMany of the same principles associated with the imputation of income with regard to child support apply to the imputation of earning capacity for spousal support. Just as with child support, the three-prong test of ability, opportunity and willingness that is found in Marriage of Regnery must be proven for spousal support as well. This also includes the principal that no finding of "bad faith" is required to support an imputation of income.

For a very long time, the Courts held that there needed to be a finding of bad faith, or in other words a deliberate attempt to avoid paying spousal support, before a court could impute income for spousal support purposes. This holding came from the case Philbin v. Philbin (1971) 19 Cal.App.3d 115. And yes, it is the same Philbin your thinking of as you read the case name.

In Philbin, Regis Philbin was working as a comedian in the late 1960's, but his income had fallen dramatically since he left as Joey Bishop's sidekick on the nationally syndicated "The Joey Bishop Show." At the time the case was heard by the trial court, Regis' annual income dropped from $95,000 per year to $27,000 per year (or $635,000 a year to $181,000 in 2014 dollars.) The Court of Appeal ultimately held that imputing income to Regis was not warranted since there was no bad faith on his part.

However, more recent case law suggests that the requirement of a bad faith finding for the purpose of proving earning capacity is no longer required.

It is important to note the Appellate Court has refused to impute income to a supporting spouse who voluntarily quit his job when the decision was based on a decision to follow a path of good works and services. In Marriage of Meegan (1992) 11 Cal.App.4th 156, the court upheld the trial court's reduction of spousal support for a spouse who quit his high paying executive position to pursue a life in a monastery as a Catholic priest. The court held, the "[r]eduction [was] appropriate where Husband [was] acting in good faith and did not resign [his] job to avoid [his] spousal support obligations." It is important to note that Meegan addressed only a spousal support order and child support was not at issue. In fact, Mr. Meegan voluntarily agreed to pay $875 per month towards his 2 adult children's college expenses. I believe if child support were at issue in the Meegan case, the court would have made a different finding.

The Meegan case is an interesting example of a situation where the Court refused to impute income to a party who voluntarily quit their job and depressed their income. It also illustrates how very fact specific income imputation case can be. It is important to contact a qualified attorney to review your case and specific set of facts to determine whether an income imputation is appropriate.

The Court's authority to impute income to a party is not limited to situations where the party quit their job. If one party refuses to get a job, or has been unemployed for a long period of time, the court may consider imputing earning capacity in these situations as well. In this situation, the party who wants to impute income will need to seek the assistance of an expert, called a vocational evaluator, to provide evidence of the 3 factors discussed above.

Spousal support requests, especially when they involve a request to impute earning capacity to a parent, can be difficult to navigate without the assistance of skilled family law attorney, so it is important to discuss your case with a qualified attorney.

Continue reading "SO YOUR EX QUIT THEIR JOB...NOW WHAT DO YOU DO? [Part Two - Spousal Support]" »

Can I Get Around the California Divorce Residency Requirements?

March 11, 2015

CA-road-sign-divorce.jpgAs one would reasonably expect, not everyone can file for divorce in California. In fact, California has strict residency requirements that each person filing for divorce must meet. Although there is no way of getting around these requirements, it doesn't mean that you absolutely can't get divorced in California.

California's residency requirements for married couples to file for a divorce, also known as a "dissolution of marriage", are quite clear. One of the first steps in filing for divorce is to file a Petition for Dissolution of Marriage. On Page 1 of the Petition (Form FL-100) the person filing for divorce, the Petitioner, must check the box under oath stating that either the Petitioner or Respondent (other spouse) has been a resident of California for at least six months and a resident of the county where they are filing for at least three months preceding the filing of the Petition. The form notes that at least one person of the marriage must comply with the residency requirement. Thus, if you don't meet the residency requirement but your spouse does, then you can still file for divorce in California.

If neither you nor your spouse meets the residency requirement, then this doesn't mean that you can never get divorced in San Diego. You actually have a few different options. First, you can simply decide to wait to file your divorce action until you meet the residency requirement. If you are pretty close to meeting this requirement then it might not be that detrimental to hold tight in the marriage for a bit longer. You can even establish a date of separation without actually filing the petition for divorce. Talk to an experienced family law attorney to learn how you can establish a date of separation.

CA-state-flower-divorce.jpgAnother option is to file a petition for legal separation instead of a petition for dissolution of marriage. As discussed in my earlier blog entitled, "Changing Your Mind from Legal Separation to Divorce," there are no residency requirements for a married couple to file for a legal separation in California. If you intend to satisfy the California residency requirements, then once time has passed and you meet the residency requirement, you can file an amended petition and ask the court to convert the petition for legal separation into a petition for divorce. This strategy is advantageous because it will give you immediate access to the Family Law Court to ask for temporary orders. Additionally, if the case involves domestic violence then the same judge can hear both the domestic violence issue and the divorce case. Additionally, since there is a 6 month waiting period in California to terminate marital status, by filing for legal separation, the clock will start ticking on the 6 month countdown even though you filed for legal separation instead of dissolution of marriage.

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Divorce Versus Annulment Matters When Filing Taxes

March 9, 2015

annulment-taxes-divorce.jpgIt's that time of year again...tax time! It's a time of gathering all of your financial documents and keeping your fingers crossed that you will get a big refund in the mail rather than having to pay Uncle Sam more money out of your pocket. Whether you got divorced or had your marriage annulled last year, filing taxes this year will certainly be different. In particular, if you had your marriage annulled, there are some specific issues you may have to deal with.

Whether you have been divorced or had your marriage annulled, either way you look at it, your marriage has come to an end. However, a divorce is the end of a marriage that was valid at the time the parties wed. An annulment, on the other hand, marks the end of a marriage that was either void or voidable at the time the parties wed. For instance, under Family Code Sections 2200 and 2201, the marriage may have been void in California if it was illegal due to incest or bigamy. Or under Family Code Section 2210, the marriage may have been voidable due to a number of reasons, including fraud, force, physical incapacity, and unsound mind. The marriage may also have been voidable because the party filing for the annulment was under eighteen years old at the time of the marriage. Or lastly, the marriage maybe voidable and thus an annulment granted if there was a prior existing marriage that took place after the former spouse was absent for five years and not known to be living.

If the marriage simply ended by means of a divorce (also known as a dissolution of marriage in California) by December 31st of the prior year, then you will be required to file a separate tax return for the taxes due April 15th of the following year. You won't be able to even file married filing separately if your divorce has actually been finalized by the court as of the end of the prior year.

annulment.jpgHowever, if your marriage ended via an annulment, then tax filing gets a bit more complicated. If you were married during the last tax cycle, then chances are that you filed your taxes as "married filing jointly" with your spouse. Once the April 15th tax deadline has passed, people who filed joint tax returns are usually not allowed by the IRS to change their filing status to file separately. However, since your marriage was annulled, that means that your marriage was never valid at the time you previously filed joint tax returns. Consequently, you must now file an amended tax return for the prior year as a single person rather than as married filing jointly. This may result in you paying more taxes because typically filing jointly with your spouse has some tax benefits that single filers don't get. On the flip side, if you would have paid less in taxes as a single person, then you will be entitled to a refund when you file the amended tax return. In addition to amending your previous tax return(s), you must file this year's taxes separately.

Continue reading "Divorce Versus Annulment Matters When Filing Taxes" »

Reconciling after Filing for Divorce but Before Divorce is Finalized

March 2, 2015

reconciling-before-divorce-final.jpgDeciding to file for divorce or legal separation is a huge decision for any married individual. By the time that person actually gets enough courage to sit down with a divorce attorney and sign the Petition for Dissolution of Marriage or Petition for Legal Separation, his or her mind is typically made up. But what happens if somewhere along the way, a miracle happens and the couple reconciles? Is it too late to pull the plug on the divorce and live happily ever after?

It may come as a surprise, but it is not uncommon for couples to decide to forgo the divorce action and give their marriage another shot. Perhaps they felt forced to file for divorce at the time or the issues they had with their spouse have been resolved. Whatever the reason may be, if a couple is going to make a good faith attempt at reconciliation they need to be open to change and willing to examine the mistakes they have made in their relationship in the past. Forgiveness is also a big part of the reconciliation process. It is advised that a couple establish a timeline for their reconciliation, write down their relationship goals, and talk about their issues often. It is vital that neither spouse has an ulterior purpose for the reconciliation.

reconciling-with-your-ex.jpgIf a couple decides to reconcile after filing for divorce but before their divorce has been finalized (i.e. a judgment entered by the court), there are a few options on how to proceed. First, if the couple is just beginning the reconciliation process but there is an upcoming hearing on calendar, the parties may seek a continuance to get the hearing pushed out to a later date. However, the court will ensure that the continuance is not sought in bad faith or simply to unnecessarily delay the divorce. If you think that you and your spouse are on the road to a full reconciliation, but you aren't 100% sure, then you might prefer to stipulate (written agreement between both parties) to exempt your case for a certain period of time. This means that the court will essentially put your case on hold and suspend temporary orders that are in effect.

If the parties are sure about their reconciliation and absolutely no longer want to get divorced, they can choose to dismiss their divorce action altogether but without prejudice. This means that they would not be precluded from or penalized for filing another Petition for Divorce at a later date, if the reconciliation falls through for some reason. However, if a spouse decides to file for divorce later on down the road then it is very important to keep in mind that the date of separation will be different. Pushing out the date of separation to a later date can significantly affect division of assets and calculation of support and should be considered carefully before deciding to dismiss a divorce action. An experienced divorce attorney can advise you on your best course of action.

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Lessons Learned from Couple Who Divides Beanie Babies in Family Court

February 26, 2015

beaniebabies-divorce.jpgIf you grew up in 1990s, chances are you are familiar with the Beanie Babies fad. However, if you somehow missed out on that craze, Beanie Babies were the extremely popular stuffed animals made by Ty Warner, Inc. (later renamed as Ty Inc.). They were so popular and "valued" that in 1999 a divorcing couple actually went to count to divide up their Beanie Baby collection. No, I am not kidding! Apparently, the couple was unable to figure out how to divide up their Beanie Babies by themselves, without court intervention, so they literally took them all to court and divided them one by one in front of the judge.

While the family law court provides individuals with their "day in court" to allow a judge to make a decision about their case, most people will agree that it seems pretty ridiculous to go to court to have Beanie Babies divided. Even as a family law attorney, I am a big proponent of helping my client resolve as many of their issues outside of court as possible.

Going to court can be very costly for both parties. They are not only paying their attorney's hourly fee, but there are other costs involved such as paying for a court reporter. Additionally, going to court means that if you are a working individual, you will have to take time off work to attend the hearings. Also, the divorce process will likely take much longer. The courts are extremely backed up and hearings are typically set months out. The longer your divorce goes on, the more anger, resentment and frustration seem to build up. Is it truly worth the time, attorney fees and emotional impact?

tug-of-war-divorce.jpgSo many issues can be dealt with outside of a court room. This includes division of your precious collection of Beanie Babies with your soon to be ex-spouse. If the value of your precious items is at issue, then bringing in a third party appraiser might be helpful. Also, when negotiating division of assets outside of court, it is important to carefully consider the item's current and future value. It may be a huge risk to assume that items, like Beanie Babies, will have a significant future value. If you let your spouse keep a $20,000 vehicle at no charge or offset, in order to keep your beloved collection of Beanie Babies, you might be highly disappointed when years down the road you find out that Beanie Baby is still only worth less than $10. It's a significant risk when you don't know the item's future value, but it's a risk you might have to take to move the negotiating process forward and stay out of court while proceeding with your divorce.

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Dividing Art in Your San Diego Divorce

February 25, 2015

dividing-art-divorce.jpgDivorcing couples must divide their house, cars, money, furniture, businesses, retirement accounts and everything else they own. Division of property is just one unpleasant but inevitable part of the divorce process. In most cases, the parties own few antiques or family heirlooms, if any at all, and possibly a few other valuable items. However, for those couples with several pieces of art or even an art collection, dividing personal property can be much more complicated.

Many collectors of art are sentimentally connected to specific pieces and do not look at the piece of art the same way they would look at any of their other assets, like a savings account for instance. Consequently, the art collector will be less likely to divide the art in the same manner that he/she is willing to divide the kitchen appliances or family vehicles. Therefore, when dividing art it is important for the divorce attorneys and parties to find a solution that will make everyone as happy as possible.

Before coming up with a solution to divide the art, the parties are advised to make an inventory that details each piece of art that was acquired during their marriage. They should also include, in the same or a separate list, all art acquired prior to the marriage or after the parties' separation, which will be confirmed as the respective party's separate property. One way to inventory the art is to create a spreadsheet that lists the name or brief description of the piece of art, the place where the art was purchased, the current location of the art (i.e in the family residence, in a storage unit, displayed in a gallery, etc.), the purchase price and the current value, if known.

Dividing-assets-divorce.jpgThe value of the art is not necessarily the price that was paid for it. So in order to know the value of the art, the parties might consider hiring an appraiser to come appraise each piece of art. It may seem like just one additional cost to add to the ever growing divorce expense list, but having the art appraised could make a big difference when figuring out how to equitably divide it between the spouses. If the spouses cannot agree on a joint appraiser, then each spouse can hire their own appraiser. However, if the appraisals conflict significantly, it may make negotiations over division of the art a bit more complicated. One way to resolve this issue is for the couple to agree to split the difference between the two conflicting appraisals. If the couple (with the help of their attorneys) is able to figure out a way to divide the art, rather than taking the issue to Court, everyone is more likely to come out happier with the result.

Continue reading "Dividing Art in Your San Diego Divorce" »

Divorce Monday - An Exciting Day for Divorce Lawyers

February 17, 2015

divorce-monday.jpgJanuary has been a busy and exciting month at the Law Offices of Nancy Bickford. After the New Year we hit the ground running and are busy at work filing new divorce petitions and continuing to push forward with settlement discussions and litigation preparation. Perhaps this has been due in part to the first Monday of January being known as "Blue Monday", which legal experts have more appropriately dubbed as "Divorce Monday".

Statistics have shown that "Divorce Monday" is the busiest day for divorce lawyers because it is the most popular day for couples to file for divorce. Over the holidays and festive season many couples endure a variety of strains on their marriage. Extra time with in-laws is bound to cause some tension among couples. The over indulgence in alcohol may bring out some couples' true emotions and anger with one another. And all the gift buying is pretty much a given for financial strain and arguing among married couples. No to mention the extra time spent with your spouse, instead of being away at the office, over the holidays is likely to highlight relationship problems and cause the cracks to start showing.

Despite these strains that many married couples inevitably go through during the holiday season, many people want to wait until after Christmas and the New Year before actually taking that step to file for divorce. This is especially true for those couples who have children because they don't want to take away from the excitement of the holidays. Thus a flurry of couples decide to wait until that first working Monday after the New Year to seek the help of professionals to dissolve their marriage. Hence why this day is known among lawyers as "Divorce Monday."

Those who start their divorce proceedings in January have a better chance of being done with their divorce by the end of the year. In California, the divorce process will take a minimum of six months from the date the person filing for divorce officially lets his/her spouse know about the divorce. Of course, it could take much longer if the parties end up litigating issues and are able to reach an amicable settlement. But at least by filing in January, the parties have a better chance of being able to call themselves single at the beginning of the following year if all goes smoothly in the divorce process.

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Should I Change my Name After Divorce?

divorce-name-change.jpgA name change is one on the top of the "to do" list when a couple first marries. The new bride will decide whether she would like to keep her maiden name, take her husband's last name or hyphenate the two. Recently, some grooms have also changed their names upon marriage taking their new bride's name or even hyphenating their names. Although the groom name change is a new trend on the rise, more often than not, the bride will take some form of her new husband's name instead. Often at the time of divorce, there are many other stressful and pressing factors to consider besides a name change. In addition, depending on the length of the marriage, it may seem like second nature for the wife to continue using her married name without considering a name change.

If you are going through a divorce it is important to consider whether or not you would like to be restored to your former name prior to finalizing your divorce. If you and your spouse have resolved your divorce by agreement, it is easy to check the name change box on the final forms and/or include the appropriate provisions in the settlement documents. If you and your spouse did not reach an out-of-court settlement and proceed with trial, you can request a name change from the judge at the end of your case. After the divorce process is complete, the procedure for a name change is more difficult. If you are considering a name change during the pendency of your divorce, it is important to discuss that issue with your attorney so that he or she can take the proper steps to ensure the change is included in the final divorce paperwork.

divorce-name-signature.jpgIf you have already changed your name pursuant to your final divorce judgment, there are still additional steps you must take in order to complete the process and avoid future logistical problems. With a new name, you will need to obtain a new social security card. Your social security number will not change, but your name will appear different on your new card. Procedures for requesting a new social security card are outlined on the Social Security Administration's official website. A request for a new social security card can be submitted personally at the nearest Social Security Administration office or by mail.

After you obtain a new social security card, you will need to request a new driver's license from the California Department of Motor Vehicles. Unfortunately, the DMV requires you to appear in person in order to request a new driver's license under these circumstances. With a new driver's license and social security card, you can request a new passport, credit cards, debit cards and update all of your information on other financial accounts.

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What to do When you Receive a Litigation Hold Letter

February 9, 2015

Litigation-hold-esi.jpgIf you have recently retained an attorney to represent you in your divorce proceeding, chances are that you already have or will soon receive what is known as a "litigation hold letter." Although you will inevitably receive many other letters and forms at the onset of your divorce proceeding, it is important to pay close attention to this particular letter.

Family law attorneys will typically send their clients a litigation hold letter right after the attorney has been retained by the client. These written directives are also known as "preservation letters" or "stop destruction requests." In anticipation of potential future litigation, a litigation hold letter or notice is essentially written instructions requiring that you preserve all documents and electronically-stored information ("ESI") which could be relevant evidence. ESI refers to any information that is created, stored or utilized with computer technology. This includes emails, computer and network activity logs, digital recordings, voice mails, web-enabled cell phones and portable devices, internet files, computer drives, disks, CDs, etc.

Generally, the obligation to preserve evidence begins when a party knows, or reasonably should know, that the evidence is relevant to future or current litigation. In other words, the evidence is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, or is the subject of a current discovery request from the opposing party. Thus, if not already triggered, receipt of the litigation hold letter will trigger the duty to preserve relevant evidence.

litigation-hold.jpgThe scope of the hold depends on the specific facts of the case and what is likely to be at issue in future litigation. Typically, the hold will apply to all sources of data including emails, calendar entries, cell phones, accounting software, hard drives, thumb drives, contacts and task lists. Most documents today are in digital form, which is why preservation of ESI is particularly important. This does not mean that you have to save every single email or scrap of paper, but you should suspend routine destruction of documents and ESI as it relates to relevant evidence that might be useful to your opposing party. Even if your hard drive or phone breaks, for example, you need to refrain from disposing of it until your attorney says it's okay.

If you have any questions before you delete anything or throw something away, you should speak with your attorney because there are severe penalties for what the court deems to be the destruction of evidence. You may be exposed to possible liability and sanctions. For instance, the Court may prohibit you from presenting certain evidence yourself, the court may decide issues without any input from you or the court may even make you pay for the recreation of the lost or damaged electronically stored information.

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Changing Your Mind from Legal Separation to Divorce

January 26, 2015

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

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

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

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

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

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