San Diego Divorce Attorneys Blog

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

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

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

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

Continue reading "How a Later Date of Separation in a San Diego Divorce May Weigh In Your Favor" »

Spousal support is an issue commonly litigated in a divorce in San Diego. Carol Abar filed for divorce after sixteen years of marriage, when she learned that her husband had sexually assaulted her daughter. In a hearing on spousal support (commonly referred to as alimony in San Diego), a California family court ordered Ms. Abar to pay $1,300 per month in support to her daughter's abuser. Although Ms. Abar presented evidence to the court that her husband molested her daughter for years, the court determined that an award of spousal support was appropriate in the divorce case based on the parties' relative income.

In 2012, Ms. Abar's ex-husband, Ed Abar, plead guilty to the rape of her daughter and was sentenced to approximately one year in jail. At that time, Ms. Abar had paid about $22,000 in spousal support. While Mr. Abar served his sentence, the family court temporarily stopped payment of support. Recently, Mr. Abar was released and is now requesting $33,000 in arrears. Mr. Abar is also requesting the court to order Ms. Abar to resume support payments.

Learn more about divorce and family support

It is clear that such a spousal support award is an outrageous miscarriage of justice. In order to tighten the gaps in the California Family Code which may allow perpetrators of domestic violence to collect spousal support, Governor Jerry Brown signed more stringent legislation last year. As divorce attorneys in San Diego are aware, if at the end of a case either party has requested spousal support, the court will weigh 14 factors which are listed in Family Code §4320. Upon consideration of these factors, the court will determine how much spousal support to award in a divorce case, if any. Family Court judges were always required to consider documented history of domestic violence between the parties to the divorce, and were also required to consider criminal conviction of an abusive spouse in making a decision. However, the new legislation added a different twist to those old provisions.

Newly enacted Family Code §4324.5 states that "in any dissolution of marriage where there is a criminal conviction for a violent sexual felony...an award of spousal support to the convicted spouse from the injured spouse is prohibited". This code section applies as long as the divorce is filed within 5 years of the conviction, time served, end of probation or end of parole. Now, a San Diego family court judge will have no discretion to make an award of spousal support in a divorce matter where the supporting spouse was a victim of a violent sexual felony perpetrated by his or her spouse.

Read more about spousal support from the divorce attorneys at the firm

Despite this added layer of protection for spouses, currently there is no family code provision preventing child abusers from receiving spousal support. The family code has evolved since the first support order was made in the Abar divorce case, but it seems that it will not be able to offer Ms. Abar any relief from her obligation to support her ex-husband.

Continue reading "California Family Code Failed to Protect Mother Ordered to Support Daughter's Abuser" »

Although we are located in California, and primarily represent clients in divorce in San Diego, sometimes family law decisions made in other states are noteworthy. Recently, Florida lawmakers discussed putting a stop to spousal support awards extending beyond half the length of the marriage, even for long term marriages. There was a divorce law before Governor Rick Scott which would have generally prohibited payments from lasting beyond half of the length of the marriage. The proposed bill also gave family courts power to adjust current spousal support orders or agreements extending beyond the specified limits. In addition to containing provisions regarding support, the Florida law would have also imposed different custody and visitation laws which would have required the court to award equal custody in most cases.

As San Diego divorce attorneys are aware, there are two types of spousal support: temporary and permanent. In California, spousal support is commonly referred to as alimony. Spousal support is called "temporary" if it is awarded at any time before the final resolution of a case by agreement or trial. Spousal support is called "permanent" if it is awarded at the end of the case pursuant to a judgment. The length of the paying spouse's permanent support obligation following divorce depends on a number of factors, particularly the length of the marriage. Thus, "permanent" spousal support is a misnomer that divorce lawyers frequently are asked to clarify, because it can be set with an expiration date or be terminated.

Learn more about divorce and spousal support from the lawyers at the firm

Although San Diego family court judges are far from predictable, generally if a marriage is "short term", the paying spouse will only be obligated to make spousal support payments for half of the length of the marriage. In divorce, usually any marriage under ten years is considered a "short term" marriage and any marriage over ten years is considered a "long term" marriage. There is no limit currently in place pursuant to California family law that limits the length of a spousal support obligation arising out of a long term marriage. In some cases, a spouse may pay spousal support for the same duration of the marriage or longer.

Although Florida's Governor vetoed the bill on May 1, it is not the only state considering eliminating any true "permanent" alimony. Currently, Massachusetts has adopted a similar bill and twenty other states are also in the process of drafting their own. If California were to pass such a law, spouses currently paying support past the "half of the length of the marriage" mark may consider consulting with a divorce attorney, and may head back to court to terminate their current obligation. Those opposed to this alimony reform argue that it flies against the best interest of children and families. Some believe that the law is "anti-woman" as men are ordered to pay spousal support more often than women under traditional stereotypes.

Continue reading "Divorce and Alimony - Is it the beginning of the end?" »

The United States, especially California, has a bad reputation for its "high" divorce rate. However, along with the high rate of divorce is also a high rate of remarriage. Considering the amount of marriages and remarriages, it is not surprising to family law attorneys that 65% of remarriages involve blended families. "Blended family" is the term used by divorce attorneys to describe families including children from a previous marriage of one or both spouses. Blended families will face some unique challenges. With proper planning and awareness, individuals who intend to remarry after divorce in Del Mar can give their marriage a better chance.

One of the issues that can arise when two families come together after experiencing divorce is finance. Each family may be accustomed to a particular lifestyle that will have to change when the two families combine. Financial planners and family law attorneys recommend that blended families keep three separate bank accounts if both spouses earn income.

If this approach is followed, each spouse maintains his or her own bank account in which his or her income is deposited and both spouses share one joint account. Each month both spouses deposit a percentage of their income or a fixed amount into the joint account from which all household bills and expenses are paid. Using this method, the blended family can avoid conflict and resentment regarding how much money the spouses spend on their own children. Additionally, maintaining separate accounts can protect both spouses from the other's debts including child support and spousal support obligations from a prior marriage.

Read more about divorce and finances from the lawyers at the firm

Many times after a divorce, one spouse will continue to live in the marital residence. If both spouses in a blended family own a home from a prior marriage, they will be faced with the emotional and complicated decision of where to live together. All children will likely not want to leave their home after a divorce but neither spouse may feel comfortable living in the home of his or her new spouse's ex. One possible solution is to sell both homes and to purchase a new home together that fits the needs of the blended family. However, both parties should be aware of possible tax consequences of selling their home.

After experiencing a painful and expensive divorce, couples can be a little hesitant to jump into a new marriage to try again. After a divorce, many Del Mar couples opt to sign a premarital agreement (commonly referred to as a "prenup") or a postnuptial agreement (if they are already married) to provide a bit of comfort when entering a new marriage. Formal agreements allow the parties to clarify ownership of assets and protect savings that may have been set aside for the children's future. If new issues arise after the parties have entered into prenup or postnuptial agreement, the parties can consult with an attorney to amend their current agreement or draft a new one.

Continue reading "Divorce & Remarriage in San Diego - Considerations for the Blended Family" »

The National Network to End Domestic Violence recently spoke out against proposed Senate Bill 518, "The Healthy Marriages Act," which would extend the waiting period for a divorce in North Carolina to two years and require the couple to complete courses on communication skills and conflict resolution. Further, if there are children the bill proposes that the couple complete a four hour course on the impact of divorce on children. While this may seem like a good idea, the women's group mentioned above argued that the bill, filed by Sen. Austin Allran, R-Catawba, would increase the danger of abuse for women because "the most dangerous time for a battered woman is after she takes steps to leave the relationship."

North Carolina's current one year waiting period is one of the longest waiting periods in the nation. In San Diego, however, no couple can become divorced quicker than in six months. California Family Code Section 2339 sets forth the mandatory six-month waiting period until a divorce can actually become finalized by the court. The waiting period does not begin until the divorce petition is filed and the other party is properly served. This essentially means that the court cannot restore "single person" status until this six-month waiting period has lapsed. Thus, neither the person filing for divorce (Petitioner) nor the party being served with the petition (Respondent) can remarry or file taxes separately until such time as the court has granted the individual's request to have his/her status restored as a single person.

Read answers to FAQs about family law from the divorce attorneys at the firm

The purpose of this waiting period, whether it be two years (as proposed in Senate Bill 518) or 6 months (in San Diego), is to give spouses the opportunity to make sure that they do not change their mind about going through the divorce process. During the waiting period, the spouses are not allowed to enter into another marriage, which provides the spouses with the potential for reconciliation. Furthermore, the waiting period is meant to give the parties and their attorneys time to prepare for a divorce settlement or trial. Family lawyers will advise their clients to begin gathering financial documents, and will begin to investigate important issues related to the parenting of children, if applicable.

But how long is too long for a divorce waiting period? Some San Diego divorce attorneys may agree with the National Network to End Domestic Violence, and would argue that if California's waiting period were to be extended to a year, or even two years, it might unjustifiably increase the danger of abuse for women. This is especially the case where Husband and Wife remain living together pending divorce. As family lawyers are all too aware, in these economic time it may take some time for the marital residence to be sold, and often times there is not enough money to maintain two households. If such a bill were to be proposed here in California, perhaps it should include an exception clause for cases involving domestic violence or abuse. Luckily for those seeking divorce in San Diego, this is not an issue as of yet. The six-month waiting period remains in effect for the time being.

Continue reading "Divorce - How Long is TOO Long for the Waiting Period?" »

On April 12, 2013, Kim Kardashian arrived at the family courthouse in Los Angeles to attend her Mandatory Settlement Conference ("MSC"). As San Diego divorce attorneys are aware, if the parties are unable to reach an agreement and must proceed to trial for court intervention on any issues, they are required to attend a MSC before the trial. An MSC is a settlement conference run by a local experienced family law attorney who attempts to help the parties reach an agreement outside of court. Unfortunately Kardashian and her attorney were the only ones to attend this conference. As it is impossible for two people to reach an agreement when one of them is not present, the MSC did not go forward.

Learn more about the San Diego divorce process

As attendance at a Mandatory Settlement Conference is not optional, MSC's tend to foster settlement in cases in which the parties could not previously reach an agreement. By the time an MSC is set by the Court, discovery is coming to a close and both parties should have enough information to reach an agreement. MSC's give the parties and divorce attorneys a chance to sit down in person and attempt to hash out the disputed issues. This may be the first time in the entire case that the parties and attorneys communicated together in person. With the time and expense of trial fast approaching, parties can be highly motivated to settle the case at an MSC. It is evident that Humphries was not motivated to settle his divorce case. In fact, as we have previously blogged, he had dragged out the process for over a year.

After clearing out the courtroom for the celebrity divorce hearing, the Court was not pleased when Humphries "no-showed". As a result, the Court, on its own motion, set a hearing for sanctions to be imposed against Humphries. On April 19, 2013, the Court convened to give Humphries a chance to explain his disrespectful behavior towards the Court and the divorce process. Sanctions could have been awarded by California family courts, however in an unexpected turn of events, Judge Goldberg has granted Kim Kardashian a divorce from Kris Humphries. The judgment has yet to be fully entered, and is expected to be finalized by the court by June 16th.

Read more articles from the Law Offices of Nancy J. Bickford about celebrity divorce

In San Diego, family law attorneys often request the court order sanctions against the opposing party. Under Family Code §271, the Court may award monetary sanctions if it determines that one party is frustrating the public policy to promote settlement. It is clear by Humphries failure to appear at the mandatory settlement conference that he was intentionally frustrating the settlement of his divorce case. Thus, at the April 19th hearing, if Ms. Kardashian had not asked the court to drop the sanctions matter (as reported by Today), the Los Angeles court could have imposed a sanction against Humphries. Had this happened, it would have likely been pursuant to Family Code §271. The amount of sanctions is usually set at an amount sufficient to deter repetition of the party's bad behavior.

Continue reading "Celebrity Divorce - Kris Humphries Skips Mandatory Settlement Conference" »

Recently, Patricia Cohen's lawsuit against her former husband, billionaire Steve Cohen, was given the green light by a New York court. Ms. Cohen and her divorce attorney filed the lawsuit accusing Mr. Cohen of hiding assets during their 1990 divorce. In 2011, Ms. Cohen's lawsuit had been dismissed because the court determined that her allegations of fraud were stale and too unsubstantiated. However, recently the U.S. Circuit Court of Appeals determined that Ms. Cohen's claims were not too old considering the fact that she only uncovered the evidence sited in support of them in 2008.

The basis of Ms. Cohen's lawsuit, as she alleges, is that Mr. Cohen failed to disclose a $9 million investment during their settlement process. Mr. Cohen invested $9 million in co-op apartments in 1986 and claimed during the divorce proceedings that he lost the entire investment. If true, Mr. Cohen's net worth was only approximately $8 million at the time of divorce. Therefore, a $9 million dispute is significant considering the parties financial circumstances at the time. Although Mr. Cohen claimed the investment was completely lost, Ms. Cohen suspected he was lying. However, it was not until 2008 that Ms. Cohen found court documents suggesting her suspicions were correct. It was this discovery that prompted her to contact her attorney and file the lawsuit against her former husband.

Del Mar divorce lawyers have a variety of tools they can use to discover undisclosed assets such as Demands for Inspection, Special Interrogatories, Form Interrogatories, or even through the subpoena process. However, despite everyone's best efforts, assets can still be hidden by clever spouses. If a family law attorney does not know that an asset exists, he or she will not know which questions to ask, which documents to ask for, or which entities to send subpoenas to. If the attorney suspects a particular asset exists, he or she may still encounter the same roadblocks without information regarding where the asset may be located.

In many cases, San Diego family law attorneys are able to discover all of the parties' assets. However, this does not change the fiduciary duties both spouses owe to each other. Specifically, both spouses have a legal obligation to disclose all assets, liabilities, income and expenses. Divorce attorneys in Del Mar are well aware of this, and if the court determines one spouse has breached this duty while the other has not, it must award sanctions in favor of the complying party. Monetary sanctions will be awarded in an amount sufficient to deter repetition of the poor conduct. The exact amount will be dependent on the net worth and income of the breaching spouse. If a spouse discovers an undisclosed asset after settlement or after trial, he or she may still seek remedies from the court.

Continue reading "Divorce - Non-Disclosure of Assets Could Lead to a Lawsuit" »

As we have previously blogged, there are two distinct divorce paths that spouses can take in a San Diego divorce proceeding, the litigation path and the mediation path. As the case goes on, parties may end up using a combination of the two approaches. Part one of this blog explained the litigation process and its many disadvantages such as its high cost and lengthy waiting periods. By contrast, the mediation process is more efficient, less expensive, and less stressful for all parties involved, especially the children.

The Mediation Path

If the parties and their attorneys determine that they are able to work cooperatively with the other side and that court intervention is not necessary, they may elect the mediation process outlined below. A mediated divorce typically proceeds as follows:

The parties must first decide if they will retain independent counsel, usually a divorce attorney experienced in advising clients in mediation. In addition, a third party neutral will be selected, regardless of whether the parties have retained counsel or if they will both meet with the neutral unrepresented.

Read questions frequently answered by divorce attorneys

Next, the parties should determine which issues are settled and which issues are disputed. For example, in a Del Mar divorce the parties may realize they agree to divide all of their property equally, but happen to disagree on a reasonable amount of monthly spousal support.

As in the litigation process, the parties must also complete their Declarations of Disclosure including a Schedule of Assets and Debts and an Income and Expense Declaration. However, the parties will not engage in expensive and lengthy discovery because they have decided to cooperate with each other informally.
Once the parties have met with the mediator and agreed on all terms of the settlement, the mediator may draft a martial settlement agreement and file all necessary paperwork with the court.

Learn terms commonly used in a San Diego divorce proceeding

It is evident from the above timeline that a mediated divorce take much less time, effort and money than a litigated proceeding. The better the parties work together to resolve their disputes, the lower the cost of the divorce. There are no "winners" if a divorce case goes to trial because each party will have incurred significant expenses and emotional scars. In mediation, parties have the flexibility to create their own terms and solutions which are mutually beneficial.

Continue reading "San Diego Divorce Timeline - What You Can Do to Speed it Up (Part 2)" »

In San Diego, once parties decide to file for divorce, it is not uncommon for them to be in a rush to just "get it over with". However, rushing through the divorce process is easier said than done.

One of the most important factors in determining the length of the divorce process is whether the parties and their attorneys decide to take the litigation path, the mediation path, or a combination of both.

If the parties and their attorneys determine that they are unable to work cooperatively with the other side and that court intervention is necessary, they must follow the litigation process outlined below. A highly litigated divorce typically proceeds as follows:

Petition
If a Petition has not already been filed, one party must file a Petition and Summons and formally serve these documents on the other side. This process is commonly referred to by San Diego family attorneys as "filing for divorce". The party who filed the Petition is known as the "Petitioner" and the other party is known as the "Respondent".

Response
The Respondent must then file a "Response" to the Petition within 30 days of service. Both parties will then begin completing their Preliminary Declarations of Disclosure which includes a Schedule of Assets and Debts and an Income and Expense Declaration. Within these documents, the parties will explain their income and their monthly expenses in addition to identifying all community property assets and obligations.

Motions
Next, the parties can file various motions requesting relief such as temporary child or spousal support, temporary child custody and visitation orders and attorney fees. The timeline for all motions to be heard ranges from an average of 30 days to a year depending on the number of motions, complexity of issues and requests for continuances. If custody and visitation is a disputed issue in the case, the parties must attend Family Court Services mediation or another private mediation.

Discovery
The parties may conduct discovery to find out more information regarding disputed issues. If spousal support is disputed, the parties may investigate issues such as income and assets. If any disputes arise during the discovery process, the parties may file Motions to Compel with the Court to enforce their rights. Should the parties have complex assets or income which is difficult to ascertain, one or both parties may elect to hire experts to weigh in on these issues.

Mandatory Settlement Conference
In San Diego, before the case proceeds to trial, the parties must attend a Mandatory Settlement Conference. This is a meeting between all parties, attorneys, and an independent experienced local family law attorney. If the parties do not reach an agreement, the case may proceed to trial. At trial, both parties present their side of the story with regard to disputed issues. The judge will make a ruling and determine the outcome of all disputed issues.

It is evident from the above timeline that a litigated divorce takes a significant amount of time, money and effort. Even with the assistance of counsel, many divorcing spouses who litigate a large amount of issues call their divorce a "full time job". In our next blog post, the divorce attorneys at the firm will post about "The Mediation Path". Stay tuned!

Continue reading "San Diego Divorce Timeline - What You Can Do to Speed it Up (Part 1)" »

Sharing Custody of Children During Religious Holidays

As previously blogged about in "Part I: Religion and Child Custody," a common issue in divorce revolves around which religion a child will follow after parents separate. Another common issue recognized by divorce attorneys is how to fairly share custody of children during religious holidays. The recent passing of the Easter holiday likely posed a special concern for divorcing parents with children. In our previous post, we discussed parents with sole legal custody.

Read more about custody and divorce in Del Mar

Joint legal custody presents divorce attorneys with unique issues. If both parents share joint legal custody, and one parent objects to the other parent's decisions regarding the child's religion, a judge will have to determine whether the child can be raised as a Catholic, Buddhist, Jewish, etc. The courts will generally first consider the religion that the child was raised in while the parents were still married and order that the child continue to be raised in that same religion.

Since the right to raise a child as the parent sees fit and the right to freedom of religion are both protected by the Constitution, courts must be careful not to infringe on these constitutional rights while still protecting the best interests of the child.

Joint physical custody means that both parents share in the right to spend time with the child or children. Despite custody agreements, problems always seem to arise with regards to holidays, especially when each parent has his/her own religious beliefs and traditions. Holidays like Mother's Day and Father's Day are usually easy to compromise, because they have alternative days to give each parent equivalent time. However, the same cannot be said for religious holidays such as Easter. Easter does not have an alternative celebration date. Divorce lawyers must consider their client's faiths when providing legal advice.

In order to deal with this problem, many divorce attorneys will advise their clients to agree to alternate custody between holidays each year, such as Easter and Thanksgiving. However, for some parents who are particularly religious or have long-lived family traditions, they do not consider the Easter holiday to be equivalent to the Thanksgiving holiday. Thus, shared custody on holidays needs to be determined well ahead of time and with the children's best interests in mind.

Children With Parents of Different Faiths

Another problem arises where divorcing parents are of differing faiths. For example, where one parent is Christian and the other is Jewish, the Easter and Passover holidays usually pose a concern regarding child custody because the holidays often fall near each other on a calendar. Sometime these two holidays will even occur on the very same day. Therefore, it is extremely important that these situations are discussed early on, and that divorce lawyers draft custody agreements that spell-out exactly what will happen with regards to custody to the greatest extent possible.

www.BickfordLaw.com

Continue reading "Part II: Religion and Child Custody" »

Which Religion do Children Follow when Parents of Different Faiths Divorce?

With the recent passing of Easter, a Christian holiday, and Pesach (Passover), a Jewish holiday, parents of different faiths may be left wondering which holiday their child will celebrate after a divorce. Because divorcing parents don't always agree on whose religion the children will follow after divorce, the Court is often left to make a determination as to which religion the children will practice, if any.

The Fourteenth Amendment substantive due process clause grants parents a liberty interest in directing their child's religious upbringing. Therefore, Courts must protect each parent's Constitutional right to raise the child as that parent sees fit (as long as the welfare of the child is not endangered). However, when parents divorce, the Courts are often left to decide which parent's constitutional right will prevail in determining the religion of their child. Family law attorneys take a number of factors into consideration when advising clients about their options in regards to their children's religious upbringing.

Child Decides

Often times the Court will simply allow the child to decide which religion, if any, to follow because it is merely an exercise of the child's First Amendment right to freedom of religion. Unfortunately for divorce lawyers, no black letter law exists regarding what age a child must be to decide his or her own religion. However, courts generally consider children over 12 to be able to make decisions about their religious preferences.

By allowing the child to determine his/her own religious preference, the courts are not encroaching upon the parents' Constitutional rights. The parents may continue to practice the religion of their choice, and they have already had the opportunity to exercise their Fourteenth Amendment substantive due process liberty interest to direct their child's upbringing.

Parent With Sole Legal Custody

When a child is not deemed fit to decide for himself/herself, divorce attorneys note that the court will look to which parent has been awarded legal custody. As discussed in previous blogs, legal custody gives a parent the right to make decisions regarding a child's health, education, welfare and even religious decisions. If a parent has been awarded sole legal custody of the child, then that parent alone can make all the decisions regarding the child's religious preference and activities without getting the consent of the other parent or an order from the court.

Parents with Joint Legal Custody

Continue reading "Part I: Religion and Child Custody" »

Former Philadelphia 76er Allen Iverson's divorce has been finalized. The resolution came after the second divorce filing by Iverson's wife, the first having been filed 15 months prior and then withdrawn according to TMZ.

Standing a mere 6 feet (relatively speaking, of course) Iverson was the number one draft pick of the NBA's Philadelphia 76ers in 1996. He went on to be named NBA Rookie of the Year for the 1996-1997 basketball season. He continued his career with eleven NBA All-Star nods, and won the All-Star MVP award in 2001. Iverson is father to five children.

According to LA Times.com, in the divorce decree the judge awarded Iverson's wife legal and physical custody of the parties' five children. In doing so, the court did not have kind words to say about Iverson. According to the article, the court stated about Iverson: "he does not know how to manage the children; has little interest in learning to manage the children and has actually, at times, been a hindrance to their spiritual and emotional growth and development."

Iverson will have some visitation with his children, provided he complies with certain conditions imposed by the court. Notably, one condition is that he is not allowed to consume any alcohol for the next 18 months, nor consume alcohol within 24 hours of visiting with his children and, logically, during the visits. Reportedly, he is also required to obtain therapy and attend AA for the next year. According to the LA Times article, the divorce decree states that Iverson has "an obvious and serious alcohol problem, which has caused him to do inappropriate things in the presence of the children while impaired", things such as, the article reports, leaving the children unsupervised.

While Iverson's divorce is in Atlanta, Georgia, here in San Diego, divorcing parents are similarly faced with issues of alcohol abuse and its implications on custody and visitation issues in the San Diego Superior Court. To address such issues, the California Family Code includes specific provisions.

Prior to making an order for joint physical custody, which means that each of the parents will have significant periods of physical custody, the San Diego family court is required to consider the habitual use of drugs or alcohol by one or both of the parents. Specifically, Family Code §3011 provides: "In making a determination of the best interest of the child in a proceeding...the court shall, among any other factors it finds relevant, consider all of the following: (d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent..."

What happens in the case where one parent alleges habitual or continual use of alcohol by the other parent, but the parent facing those allegations denies them? Family Code section 3011 continues: "Before considering these allegations, the court may first require independent corroboration, including, but not limited to written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services..."

In some cases, there may be a document which can easily corroborate the allegations; in others, it may be a bit more difficult. If it can otherwise be shown by a preponderance of the evidence that there is habitual or continual abuse of alcohol by a parent, a judge may order that parent to undergo testing for the use of alcohol. If such testing is ordered, it must be done by the least intrusive means. Further, the parent against whom the allegations are made (and thus who is ordered to submit to the test) has a right to a hearing to challenge the results. A positive test cannot alone be the determinative factor in a custody and visitation ruling; the court is still required to balance all factors to determine the best interests of the children.

Continue reading "Allen Iverson's Divorce Finalized" »

www.dailymail.co.uk recently published an article with the headline "Divorce after a child turns seven makes them more likely to perform badly at school." The article cites a study conducted by the Childhood Wellbeing Research Centre that was published by the Department for Education. The government-funded study found that children whose parents divorced after the child had turned seven are more likely to perform poorly and have behavioral problems. The article opined that the lesser impact on children under the age of seven is likely because divorce may have a lesser effect on younger children as they cannot fully understand the implications.

Divorce was one of the 40 factors looked at by the study for its effects on a child's scholastic achievement and behavior. Among the other factors looked at were number of siblings, number of hours spent in front of the television, the way in which rules are enforced in a household, grandparent involvement and general parenting skills, to name a few. The study projected that the effects on children at the age of seven are likely to continue into the child's teen years and adulthood. The study highlighted the importance of family separation, conflict and divorce on the development of children.

Of course, divorce is in some cases unavoidable. In those cases where divorce must occur, what can San Diego parents do to minimize the conflict and the effect on their children?

One tool parents can utilize is a well thought out parenting plan. When an issue of custody and visitation is brought before the court in San Diego, the parents are required to participate in custody mediation. They can do so either at Family Court Services, which is a free program run by the San Diego Superior Court, or they can opt for private mediation at their own expense. The stated purpose of this custody mediation is to reduce the conflict which may exist between the parties and to develop a custody and time-sharing agreement which is in the best interests of the children. It is not uncommon, however, that San Diego parents are unable to reach an agreement through mediation. In that case, the mediator issues a report and recommendation which is then considered by the court in making its ruling of the custody and/or visitation issue. Frequently, in these recommendations we as divorce attorneys see language included in the proposed parenting plan that is geared towards reducing conflict between the parents. Some such provisions which immediately come to mind are:

"Neither parent shall make negative statements about the other in the presence of or hearing of the children or question the children about the other parent."

"The parents shall communicate directly with each other in matters concerning the children and shall not use the children as a messenger between them."

"The children shall not be exposed to court papers or disputes between the parents, and each parent shall make every possible effort to ensure that other people comply with this order."

Such language may be included in a parenting plan at the recommendation of the mediator, but can also simply be included by agreement between the parties.

Another tool for parents is the resource Kids Turn. Kids' Turn is a San Diego non-profit organization dedicated to working with the entire family to achieve an amicable and healthy divorce.

Read more about Kids' Turn or visit their website.

The study published by the Department of Education did qualify its results by stating that "Some children do relatively well despite unpromising circumstances and some do relatively poor despite having a good start." It's nonetheless helpful for San Diego parents to be aware of how a divorce might impact their children and to take steps that may be appropriate to mitigate any negative impact there may be.

Continue reading "UK Study looks at the effects of divorce on children" »

Brendan Fraser and Afton Smith married in 1998 and divorced nine years later in 2007. At the time of their divorce, Fraser was ordered to pay Smith approximately $900,000 per year for spousal support and child support for their three children. Now, Fraser claims that he can no longer make the required payments, which, if made on a monthly basis, total $75,000 per month. Fraser has filed a motion in family court seeking a post-judgment modification of child and spousal support.

In San Diego, after a divorce is finalized, family courts generally have the ability to change support orders if facts and circumstances have materially changed since the first orders were made. If the moving party can prove to the court a "material change of circumstances" he or she may be granted a post-judgment modification of support. One of the most common changes of circumstance relied upon by courts is a change in income for one or both parties. If the spouse ordered to pay support has experienced a significant decrease in earnings, the court may lower his or her support obligation.

However, it is important to note that San Diego family courts only have the ability to modify the support order back to the date a motion was filed. If one spouse gets fired and does not file a motion to modify support for a few months, he or she may owe a significant amount of back child and/or spousal support. Regardless of a spouse's current income, his or her obligation to pay support will not change until a motion is filed with the court. Even in cases where a judge determines that a material change of circumstances exists and that support should be modified going forward, he or she is not required by law to make the order retroactive to the date the motion was filed.

Learn commonly used divorce law terms

Fraser alleges that he has had an increasingly difficult time finding acting jobs since the third film in the "Mummy" franchise wrapped in 2008. However, according to IMDB, Fraser has worked on 17 projects since then. Smith claims that Fraser is lying to the court about his true income and hiding his assets. Smith has good reason to be suspicious of his earnings claims. At the time of their divorce, Fraser claimed that he would make $0 from future acting work. In fact he went on to star in movies grossing up to $2 billion worldwide. When confronted with this information, Fraser claimed deals like this were not "set in stone" at the time of his divorce. It is crucial for a spouse to present an accurate depiction of his or her income to the court in a family law case. If Fraser is in fact misleading the court and his ex-wife, he may face harsh penalties and sanctions.

Please contact us if you are contemplating legal separation, thinking of learning about divorce, or have questions regarding division of assets in divorce. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorce, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights.

For many Del Mar families, real estate is their most valuable asset. Because the prices of the average family home are so high, many families must invest significant funds into real estate just to live in the area.
However, upon divorce, all community property must be divided equally by the court.
If the parties have no other assets as valuable as the family home, it must be sold and the proceeds divided.

Read more about Divorce jurisdiction in Del Mar

Pre-Judgment: Prior to the final resolution of a divorce case, the court will generally avoid ordering the sale of community or separate assets. However, under Family Code §2108, at any time during the divorce proceeding, the court has the authority to order the liquidation of a community asset if necessary to avoid unreasonable market or investment risks. Divorce lawyers know that, in making this determination, the court will consider the nature, scope and extent of the community estate. California courts have held that judges may not order the sale of a community asset unless necessary to prevent the loss of that or another community asset. In some cases, the financial strain of divorce may cause the family residence to be lost to foreclosure. If equity remains in the home, it may be prudent to petition the court to order the sale of the residence so that it is not lost to foreclosure.

At the onset of a divorce proceeding, automatic temporary restraining orders take effect. These restraining orders are commonly referred to as "ATROS". The ATROS prevent the parties from altering the status quo of the marriage during the dissolution proceeding. For Del Mar divorce attorneys, this means that if one party maintains health insurance for the family, he or she cannot cancel that insurance plan because a divorce has been initiated. The ATROS also restrain parties from selling assets before they are divided by the court. Thus, a party may not unilaterally sell a home during divorce without a court order as discussed above.

At Trial: At the end of the case, the court is not as restricted in its ability to order the sale of the home. If the parties only significant asset is the family home and an award of that asset cannot be offset by another, the only way to divide the community estate is to sell the home. Therefore, during a Del Mar divorce, it is well within the court's authority to order the sale of a residence and to divide the proceeds equally between the parties.

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