San Diego Divorce Attorneys Blog

Award-winning actress Reese Witherspoon appeared in Nashville's probate court on May 11, 2012 to address allegations against her father, John, for bigamy. Witherspoon informed the judge in an emergency hearing that her father should be placed under a conservatorship due to his alcoholism and on-set dementia. The judge has yet to rule in this matter but has sealed the case against media/public access in interest of the parties' privacy.

Witherspoon's parents separated in 1996; however, the couple never officially divorced. As a result, Witherspoon's mother, Betty, filed a lawsuit claiming that her husband recently married another woman. However, Betty claims that he was not mentally stable enough to remember the marriage and denies entering into it. In addition, Betty has filed a restraining order/injunction against the purported "new wife" which prohibits her from using the last name of "Witherspoon".

According to California marriage laws, a married person is prohibited from marrying any other person besides his or her spouse. If a married person enters into another marriage with a person besides his or her spouse, he or she may face criminal bigamy charges. Under bigamy prohibitions, John's subsequent marriage would be void. Betty is requesting that the alleged marriage between John and his new wife be annulled.

As we have previously blogged, determining whether a couple has in fact separated is a question of fact. The court will take into consideration factors such as whether: the couple continues to purport to be married, the spouses live separate and apart, either spouse engages in romantic conduct, either spouse continues to perform martial duties, finances are commingled, and the couple attend social gatherings together.

Betty Witherspoon claims that she is still in love with her husband and that she did not want to file for divorce. Additionally, she claims she has regular contact with her husband. However, John's new wife has moved in with him and allegedly convinced him to change his will. Despite this evidence that the couple had not separated in 1996, a court will likely determine that they have considering the strong evidence that John intended the marriage to be over when he began residing with another woman and even attempted to bring her to social gatherings like Reese's wedding.

Continue reading "Reese Witherspoon Fights Father's Bigamy Charges" »

Famous R & B artist Usher is currently litigating a hotly contested custody case with his former wife Tameka. Tameka and Usher were married for two short years before Usher filed for divorce in 2009. Currently the couple shares joint custody of their two young sons. On Tuesday May 1, the pair attended a court hearing in Georgia where the judge ordered them to work out some type of agreement "or else." The judge instructed them to attempt to reach a temporary child custody and visitation arrangement in a private mediation setting. If they were unable to reach an agreement, the judge would impose a temporary order upon Usher and Tameka. In this case, the two would have no control over the outcome.

It is common in the San Diego family court system for a judge to order parties to attempt reaching a mutually acceptable agreement. Negotiating and mediating disputes, especially those regarding child custody, result in less turmoil in an already hostile situation. This approach tends to promote cooperation and a healthy co-parenting relationship between the parties that is in the best interest of the child. However, when domestic violence is involved in a case, party negotiations will be ineffective and unsuccessful.

Harsh mudslinging has been a common tactic throughout the Raymond custody dispute. Tameka has accused Usher of being behind in child support payments in the amount of at least $34,000. Tameka has also alleged that Usher is an unfit father because he has a habit of doing drugs, specifically prescription pills, in front of their children. As a result of this allegation, she has requested Usher be ordered to undergo drug testing. Usher has denied any drug use and in addition is requesting more time with his children. We have recently blogged about the divorce and the effects on children. In order to promote stability in the children's lives, many resources are available to divorcing couples or adverse parties in custody disputes.

Last year, Tameka requested that the court reduce Usher's custody and visitation rights to their two sons. The children are still very young, the oldest, Usher V is four years old and the youngest, Naviyd, is just three years old. In order to be successful in a child custody and visitation modification motion, the requesting party must show the court that a significant change of circumstance has occurred since the previous court order. One popular ground for this request is that the other parent has become unfit in such a way as to render him or her an ineffective or inappropriate parent. As Tameka has alleged here, drug abuse is a common allegation that, if proved, may result in a change of custody.

Tameka is now requesting a modification in the current child support order. She alleges a "substantial change" in Usher's income since their divorce proceeding. First, in order to collect the unpaid child support, Tameka must be able to prove that Usher in fact had an obligation to pay that support and did not pay it. In San Diego, the Department of Child Support Services is an excellent resource for parents who wish to enforce a current order to collect unpaid support. However, custody and visitation are completely separate from child support orders. If Usher in fact is behind on support, Tameka must still allow him his court-ordered time with the children.

Please contact us if you have questions regarding custody and visitation and/or divorce. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

1. What is FCS Mediation?

Family Court Services (FCS) provides child custody recommended counseling in family law cases when separating or divorcing parents cannot agree on a child custody sharing plan. Child custody recommended counseling is provided in a private counseling office with a trained court counselor. The FCS conference allows both parents to work together toward a mutually acceptable agreement which is in the best interest of their children. The court counselor will evaluate the case and make a recommendation to the Judge regarding child custody and visitation if the parents are unable to reach an agreement.

2. Is mediation required?

In any dissolution matter regarding child custody and visitation where there is a dispute, Family Code section §3170 mandates that the case be set for child custody recommending counseling prior to the court hearing. Mediation has been required in California for divorcing parents regarding child custody and visitation since 1981.

3. What topics will be discussed in Mediation?

The main topic is child custody and visitation. This includes legal custody and physical custody arrangements. In making a parenting plan, topics such as birthdays, holidays, and summer vacation can be determined by a visitation schedule agreed upon by the parents. Topics such as child support, spousal support, and property division are not usually addressed but agreements can be drafted through your attorney if decided upon mutually by the parents.

Continue reading "FAQ: Family Court Services Mediation in San Diego" »

Divorce is never easy, but it is nice to know you have options. You can approach your divorce in four different ways, each of which has their pros and cons. Make sure to select an option that is right for you. No two marriages are the same and therefore, no two divorces will be the same. Just because something worked well for someone else does not mean it is the best option for you and your family. In any case, you should consult an attorney before filing the final paperwork with the court.

1. Do it yourself Divorce

Most attorneys would advise against doing the divorce yourself. The reason for this is that divorce can be very complicated and a single mistake can cost you a lot. Doing it yourself may save you the time and expense of getting an attorney, but you may not get the best result in the end. Because divorce often includes emotions, finances, property, assets, and important decisions about children, it is recommended that you get an attorney in a long term marriage. However, if you have a short term marriage that was only 1 or 2 years, don't have any assets or property, and no mutual children, doing a divorce yourself may be your best option. Nevertheless, it is still highly recommended that you have an attorney look over the final documents just to be sure you didn't miss anything.

Pros- doing it yourself may result in you:
• Reducing expenses by not having to hire an attorney.
• Saving time by not having to go to court as often.
• Being in control of the process.

Cons- doing it yourself may also result in you:
• Not getting the best outcome.
• Losing time with your children.
• Missing out on financial support.
• Failing to discover hidden assets.
• Not having legal support in court.

Continue reading "Four ways to approach your divorce in San Diego" »

Many San Diego couples are deciding to skip the marriage ceremony before they move in together. Unlike married couples, these cohabitating couples are not well protected if a split occurs. More and more unmarried couples are considering entering into prenuptial or cohabitation agreements in order to control the outcome of a breakup.

A cohabitation agreement is a legally binding contract that is drawn up by an attorney. The parties to these contracts are seeking similar rights as those afforded to married couples. These couples find it much easier to agree on important issues before the relationship is over and the parties have potentially bitter feelings toward each other. Couples address many issues in cohabitations agreements such as: property division, support, and custody of any pets. One major motivation to enter into a cohabitation agreement is the acquisition of property. An unmarried couple interested in purchasing real property together or that agrees to have one spouse move into the house of the other will face many difficult decisions. A cohabitation agreement can define the rights and responsibilities of both parties

In San Diego, family courts will not honor agreements between parties prospectively limiting future rights to child support, child custody and visitation. The health, safety and welfare of children are matters of public policy in California therefore the State refuses to limit a child's access to financial support or a relationship with a parent.

Currently most states, including California, do not recognize common law marriages. Throughout the states that do recognize or have recognized common law marriage the requirements of a common law marriage differ. Generally a common law marriage exists if:

(1) both parties hold themselves out to be husband and wife;
(2) both parties consent to the marriage;
(3) the parties are cohabitating;
(4) the parties have a reputation throughout the community of being married.

Because common law spouses are given rights where common law marriages are recognized, unmarried cohabitants may be under the misconception that they are also entitled to "marital rights" in the State of California. Even if a couple satisfies all four of the usual elements to establish a common law marriage in California, they will not be entitled to any additional rights.

One area where courts have begun to recognize some rights and protections between unmarried cohabitants is in the area of support. This trend, which began in the 1970's with the Marvin v. Marvin case, is commonly known as "palimony." Under this area of family law, a judge may order one former cohabitant to provide financial support to the other if certain elements are satisfied. Unlike support ordered to a former spouse, "palimony" seems to have a strong basis in contract law. If one party promises to support the other that promise may be enforced as a binding contract. A cohabitation agreement is not so different than a "palimony contract" because both result in the enforcement of an agreement reached by two parties before the end of the relationship.

Please contact us if you have questions regarding custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

As mentioned last week, statistics show that approximately 50% of marriages will end in divorce. Now that divorce is so prevalent in today's society, we need to find effective ways to minimize the negative effects on children and maximize family support and encouragement through this tough time. Listed below are three proposed solutions that you as a parent can do to help reduce the negative effects divorce may have on your children. Not one solution by itself will eliminate the problem, but a combination of them may significantly decrease the negative effects divorce has on children. These solutions include: divorce education and co-parenting classes, divorce mediation, and family counseling. Also your attorney can engage in collaborative practice of law to further assist in making the divorce process easier on children.

Education Programs

A recent study indicates that 46 states currently offer some version of a parent education program. Some jurisdictions also offer classes for children coping with their parents divorce and a few jurisdictions offer parallel classes for both parents and children. For example, in San Diego, there is a program for children called KidsTurn. Some of these programs are court mandated or recommended by the judge, while others are voluntary. These classes can last anywhere from a few hours in one day up to eight weeks. Many of these programs reported positive findings such that parents either reported decreased interparental conflict or decreased re-litigation.

These education programs aim to do the following: 1) inform parents how children usually respond to divorce; 2) alert parents to the negative effect of conflict and their harmful behaviors on children's adjustment both in the short and long term; 3) discuss benefits of, and skills needed, to build a cooperative or parallel parenting relationship; 4) focus parents on the needs of children for an on-going relationship with each parent; 5) teach positive parenting behaviors and appropriate discipline; 6) discuss the process of adult adjustment to divorce and how to cope with this change; 7) focus on responsibilities of each parent to the children; and 8) describe helpful court processes, such as mediation. This can completely change a person's parenting style and their relationship with their ex spouse and their children.

Co-parenting Classes

Cooperation between parents after divorce includes frequent communication about the child, coordination of routines across households, the ability to resolve differences in a mutually satisfactory manner, and respect for and support of the other parent's relation with the child. In order to accomplish these things without conflict, it is useful for parents to attend co-parenting classes together. These may be court mandated by the judge or taken voluntarily by the parents.

Co-Parenting has been used in a variety of ways to refer to the degree to which the ex-spouses share the parenting role. These include: joint problem solving skills and joint decision making concerning the child's welfare, low levels of conflict around parenting issues, building communication and trust, and also sharing in joint responsibilities. Programs have reported positive findings such as decreased inter-parental conflict, increased encouragement with other parent's involvement, trust for the other parent's ability to parent the child, and decreased re-litigation. About 80% of judges report that these classes helped parents agree on custody arrangements before coming to court and decreased re-litigation of those who had already been in court.

Continue reading "Divorce & the Effects on Children Part 2" »

The State of Alaska is reforming the way a divorce case proceeds through the court system. The new program named the Early Resolution Project is aimed at resolving divorce cases quickly and efficiently. One distinguishing characteristic of Early Resolution is the emphasis on settlement. Under the program, the Anchorage Superior Court addresses several divorce cases in one afternoon on a biweekly basis. On this afternoon, the parties are give free legal advice and encouraged to reach a mutually beneficial agreement.

Superior Court Judge Stephanie Joannides envisioned the program as a result of her experience in the Alaskan family court system. She was concerned because many divorce cases are assigned a court date that is several months after the initial filing. This waiting period caused the parties to become firm in their positions and unwilling to compromise. Judge Joannides proposed to attempt to resolve these divorce cases early in the process and has seen promising results. In the first year, eighty percent of cases settled as a result of Early Resolution.

Besides a quick resolution to the case, the Early Resolution program and others like it offer a number of fringe benefits to the parties. Like any case that settles early in the litigation process, a divorce settlement can save the parties a great amount of money. Litigating a family law case in San Diego involves filing fees, court costs and attorney's fees. If a case settles early, the parties will not be responsible for any further costs and fees. Another benefit to dispute resolution is the preservation of the relationship between the parties. Litigation has the tendency to ruin the relationship between the parties indefinitely. However, in family law cases involving children, it is crucial for the parents to maintain a co-parenting relationship. Although the California Family Code is often clear, family court judges have an element of unpredictability. The facts of a case may be disputed and therefore the outcome can be uncertain. If parties reach a settlement they are in control of the outcome of the case. In family law cases, the outcome often has life-changing consequences for both parties. In order to have input in the final decision, the parties much reach an agreement.

The San Diego family court system has a program similar to Alaska's Early Resolution Project. In San Diego, the family court judge will assign the parties a Mandatory Settlement Conference (MSC) date before any case will proceed to trial. Unlike in Alaska, the MSC will occur toward the end of the parties' case. The MSC will take place at the San Diego Superior Court where the parties have been litigating their case. A settlement conference judge will be assigned to the case. These judges are experienced local family law attorneys who have volunteered their time to help parties resolve their cases before trial. Because they have so much experience with San Diego family law, the settlement judges are able to help the parties predict what the judge will likely do at trial and reach a settlement agreement based on the probable outcome. The benefit to reaching an agreement during the MSC is avoiding trial. The parties are able to avoid the cost, time and emotional toll of a trial.

Alaska's Early Resolution Project also relies on local attorneys to volunteer their time to help needy clients. These attorneys are able to get family law experience without becoming entrenched in long drawn-out cases. Before the biweekly court appearance, the volunteers are able to scan the divorce case file and begin to formulate possible solutions for the parties. A MSC is slightly more formal in this respect. The parties to an MSC are required to submit a Settlement Conference Brief to the settlement judge at least five court days prior to the MSC outlining the disputed issues and their proposed solutions.

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

Nearly one million children are affected by divorce each year. Parents and families struggle to help children who are experiencing negative effects after their parent's divorce. Psychological and sociological research is widespread with evidence of the detrimental effects that divorce can have upon children after separation. Research has shown that, on average, children from divorcing families more frequently experience behavioral and adjustment difficulties during later childhood, adolescence, and even into adulthood. Children have been shown to exhibit a wide variety of responses to divorce and other family changes; frequently these responses include anger, a sense of loss, betrayal, shame, embarrassment, depression, loyalty conflicts, and guilt.

With about half of all marriages ending in divorce, many children may experience a difficult time adjusting. Studies show that the detrimental effects that parents' divorces may have on their children include: depression, aggression, anti-social and/or self destructive behavior and diminished academic performance. Researchers have identified three factors as the most important predicators of negative effects on children of divorce: 1) instability in the child's life, 2) the absence of effective parenting, and 3) interparental conflict.

Instability

Divorce can be extremely emotional for everyone involved; however, it is important to maintain stability in a child's life. The more stable you can keep the child's life, the better adjusted they will be after their parents get divorced. Stability means maintaining regular contact with the other parent by getting child custody and visitation orders in place. You also want to surround yourself with relatives and friends during this hard time. Stability also means following a familiar day to day routine with the child. This is often challenging because the routine is going to change for the child after the parent's get divorced. A minimum number of transitions after divorce are the most beneficial for the children. If possible, keeping the children in the same school, home or neighborhood, always helps the child relate to some stability. Instability can leave a child feeling confused, alone, and at fault for the divorce.

Ineffective parenting

Parents who are unaware of the effects divorce can have on children or have had on their particular child cannot help them through it. Some parents may not know how to help their children cope or even ways to deal with the divorce themselves. Others may be unaware of resources in their community such as parenting classes and family counseling. It is important for parents to get educated about the effects divorce may have on children and get help for themselves if need be. That way the parents are equip to help a child who is experiencing a difficult time, because ineffective parenting can leave children feeling lonely, hurt, and unloved.

Continue reading "Divorce & the Effects on Children (Part 1)" »

We often blog about the importance of social networking sites as tools in family law cases. Facebook is an invaluable resource for spouses, parents, and family law attorneys to use in order to dig up information on the opposing party in a particular case. Recently, Facebook has surfaced on the family law radar in a new and unexpected way. One of Facebook's well-known features is its ability to suggest family members, acquaintances, or friends that the user may want to "add as a friend" on his or her Facebook page. This friend suggestion tool alerted Alan Leighton O'Neill's wife that her husband was married to another woman. O'Neill's first wife clicked on the Facebook page of his second wife and saw her husband in a wedding photo with another woman. As a result of the friend suggestion tool, felony bigamy charges have been filed against O'Neill.

In San Diego, any married person who marries any other person is guilty of bigamy. Alan Leighton Fulk married his first wife on April 16, 2001. In December of 2011, he petitioned the court to change his name to Alan Leighton O'Neill. This tactic was used in order to accomplish his second marriage only five days later.

Although any married person who marries any other person is guilty of bigamy, various defenses are available to the bigamist. A good-faith belief that the bigamist obtained a divorce or dissolution of the first marriage is a possible defense to bigamy charges. Whether or not the bigamist escapes felony prosecution, bigamy has many family law-related implications.

Under California family law, a subsequent marriage during the life of a former spouse, with a person other than the former spouse, is void unless: (1) the former marriage was dissolved or annulled before the subsequent marriage date or (2) the former spouse is (a) absent and not known to be living to the bigamist for five consecutive years immediately preceding the subsequent marriage or (b) is generally believed to be dead by the bigamist at the time of the subsequent marriage.

There are many legal implications of a void or voidable marriage. A void marriage is invalid at its inception. There is no legal recognition of a void marriage's existence. In addition to bigamy, a marriage may be declared void because one of the parties is a minor, fraud, force, physical incapacity, mental illness or incest. These marriages can be attacked at any time by anyone who has an interest in the marriage. Further, a void marriage cannot be ratified even after the condition voiding it has dissipated. For the purposes of divorce, the parties involved in a void marriage are unable to claim any of the marital rights such as an interest in community property or spousal support available to a party of a valid marriage.

Void marriages are distinguishable from voidable marriages. A voidable marriage is valid for all civil purposes between the parties; it only becomes invalid if it is declared void by a court of competent jurisdiction. It is neither valid nor void and can only be attacked by the parties to the marriage. Unlike void marriages, a voidable marriage may be ratified or validated by the conduct of one or both parties after the condition creating its voidability has dissipated. Interestingly, a voidable marriage may not be attacked after death. Therefore once one of the parties dies, the other stands to inherit from him or her as a standard spouse.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer representing clients in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Under California family law statutes, paternity can be established in a number of ways depending on the relationship between the father and mother. Through the combination of statute-mandated presumptions and DNA testing, determinations regarding paternity made by the court can have a significant impact on child custody and child support.

An unmarried father must sign a paternity declaration in order for his name to appear on a child's birth certificate. The paternity declaration is significant because it creates both support obligations and parental rights for the father. In San Diego, there is a rebuttable presumption that a man who accepts a child into his home and openly holds that child out to be his own is the child's biological father. This presumption is rebuttable through the use of blood tests to determine paternity. If no blood tests are conducted and introduced into paternity proceedings, the man is presumed to be the child's father.

A child conceived during a martial relationship in which the wife is cohabitating with the husband is presumed to be a child of the marriage. In other words, the mother's husband is presumptively the child's father. If the husband is sterile or impotent, the marital presumption will not apply. This presumption may be overcome through the use of blood or DNA testing to determine paternity. The presumed father must petition for court-ordered blood testing within two years of the child's birth. Therefore, unless a motion is filed within the two-year statute of limitations and blood testing establishes the husband is not the father, the mother's husband is conclusively presumed to be the father. The presumption will still apply even if another man is proven to be the biological father of the child.

The marital and non-marital paternity presumptions can have harsh consequences regarding a father's parental rights. Considering that the husband of a child's mother is presumed to be the child's father and that in non-marital relationships a man must live with and hold a child out to be his own in order to be presumed the father, a child conceived out of an affair can create a devastating situation for the biological father. In a California family law case, Dawn D. v. Jerry K. (1998) 17 Cal.4th 932, this scenario became a reality. In this case, Dawn D. intended to divorce her husband when she began living with another man named Jerry K. Shortly after moving in with Jerry K. Dawn D. became pregnant. Just three months into her pregnancy, Dawn D. returned to her husband and rekindled their marriage. As a result of this case, the biological father, Jerry K. was unable to assert his parental rights to his child.

The paternity presumptions can have surprising consequences in terms of child support obligations as well. A presumed father is obligated to pay child support where support is ordered. If a presumed father makes child support payments for the child's minority and later learns he is not the biological father, he has no recourse for the 18 years of child support payments made. Further, if a presumed father conclusively proves through DNA testing that he is not the biological father of a child BUT has missed the two-year statute of limitations, he will be on the hook for child support payments for the remainder of the child's minority.

California family law cases operate under the best interest of the child standard. Most family court rulings attempt to further that interest as the paramount concern. Many argue that paternity presumptions are outdated, unnecessary and detrimental to the best interest of the child. Because science has advanced and paternity can be determined so accurately and efficiently, these advocates contend that DNA testing should be conducted in each paternity case in order to ensure the child's biological father is shouldered with the responsibilities and is able to enjoy his parental rights.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody and/or paternity. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer representing clients in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Although most people can gamble on a recreational basis, millions suffer negative consequences in their lives from problem gambling. According to the National Council on Problem Gambling about two to three percent of adults experience gambling-related problems each year. These problem gamblers have an uncontrollable urge to gamble and cannot stop gambling despite the negative consequences that result from their gambling. These negative consequences are frequently financial problems that impact the gamblers personal life, family relations, educational endeavors and/or employment.

Image by Jeff Kubina

Sometimes the gambling and problems stemming from the gambling becomes so bad that the non-gambling spouse files for divorce. When this occurs, the non-gambling spouse usually reports that the gambling spouse gambled away a significant amount of community property assets and that there are outstanding gambling debts. However, the non-gambling spouse may not be liable for the outstanding gambling debts.

Generally, all assets and debts incurred during marriage are considered community property. Family Code §2625 makes an exception to the general rule stating that, "All separate debts, including those debts incurred by a spouse during marriage and before the date of separation that were not incurred for the benefit of the community, shall be confirmed without offset to the spouse who incurred the debt."

This Family Code section provides the court with the ability to assign gambling debts to the gambling spouse. This is one of the few insteances where a court has the discretion to make an equitable division based on fault rather than an equal division of debt.

In the case In re Marriage of Cairo, Wife was able to prove that debt incurred during marriage on credit cards in Husband's name was for Husband's gambling. The Trial Court characterized the credit cards in Wife's name as a community property obligation and the credit cards in Husband's as his separate property obligation. The Court of Appeal affirmed relying on the predecessor to Family Code §2625, which also stated that debts not incurred for the benefit of the community can be assigned without offset to the spouse who incurred the debt.

On the other hand, if the gambling spouse wins big when gambling with community property assets, then those gambling proceeds could be considered community property assets and equally divided between the parties.

In the case In re Marriage of Shelton, after separation Husband gambled $10,000 of community property monies at a casino in Nevada, won $22,000 and bought Ferrari for $32,000. Husband claimed that $22,000 of the value of the car was his separate property. The Trial Court disagreed and characterized as the car as community property. The Court of Appeal affirmed holding that the character of the gambling proceeds follow the character of their source. In this case the source of the monies used to gamble were community property, therefore, the gambling winnings were also community property. The Court of Appeal rejected Husband's argument that the winnings were his separate property post-separation earnings because gambling is primarily a game of chance where the skill component is small.

In the case In re Marriage of Wall, Wife used her post-separation earnings (or support payments) to buy an Irish Sweepstakes ticket and won $120,000. Although Husband claimed the winnings were community property, the Trial Court disagreed and awarded the winnings to Wife as her separate property. The Court of Appeal affirmed. Unlike the Shelton case, in this case the source of the monies used to buy the Sweepstakes ticket was Wife's separate property. Therefore, the Sweepstakes winnings were also her separate property.

Continue reading "The Gambling Spouse " »

It is not surprising that many California couples decide to adopt pets. But what happens to those pets when the couple decides to seek a divorce? Across the country custody battles over family pets are increasing. Although pets are not technically the couple's children, they can become a core part of the family that neither spouse is willing to part with. If the couple does have children, the judge is likely to order the pet to stay with the child.

One reason these pet custody cases are on the rise is the dissolution of same-sex marriages or domestic partnerships. These legal unions are relatively new and the couples tend to adopt pets in lieu of or in addition to children. Unlike children, pets are a form of property in every state. In the past, pets have been divided up along with the rest of the marital property without distinction. The family courts are changing and beginning to recognize that pets are more like children than furniture. The shift may be resulting from a widespread recognition of pets as part of the family rather than mere possessions. Litigants are now passionate and unashamed to fight for custody of a pet.

When a couple divorces, the best interest of the child guides a judge's decisions on child custody and visitation. For pets, this is not the case. Since pets are a form of property, the laws regarding pets are generally aimed at benefitting the owner. The court will consider the same factors when deciding who gets custody of the pet as they would in deciding who gets custody of a television set. The court takes into consideration factors such as: whether either spouse owned the property prior to marriage or post separation, how much the property is worth, and any agreement the couple reached about who gets the property.

As California family law stands today, there is no pet visitation provision. The courts simply have the authority to award custody of the pet to one party or the other. If splitting couples wish to split time with their pets they must work out a visitation schedule together. These schedules can be negotiated with the help of lawyers and mediators. Some can be rather elaborate and include long-distance traveling for the pet, a holiday schedule, daycare expense sharing, grooming responsibilities, training, treats, food, medical care and other related decisions. Like parents who share legal custody of a child, some couples agree to share a form of legal custody of a pet. This means that both parties will have the right to make decisions regarding the health, safety, and welfare of the pet including end of life decisions.

Another area of family law that has begun to recognize pets as family members is domestic violence. In the past, domestic violence restraining orders could not be issued to protect pets. More recently, this has become a common practice. Under California Family Code section 6320(b), "on a showing of good cause, the court may include in a protective order a grant to the petitioner of the exclusive care, possession, or control of any animal owned...the court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking...the animal." Local community organizations have also reached out to victims of domestic violence and their pets. For example, Rancho Coastal Humane Society offers shelter for the pets of these victims while they escape their abusers and seek shelter themselves. Because abusers tend to threaten harm to the animal as a tool to control their victim, these programs facilitate a victim's decision to escape and take part of the abuser's power away.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer representing clients in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

After a long and embarrassingly public divorce, Beverly Hills Housewife Camille and Broadway star Kelsey Grammer reportedly end their custody battle. The couple shares two children: Jude, 7 years old, and Mason, 10 years old. It seems that Camille will have physical custody of the children since their primary residence will be with her. Kelsey will reportedly have "meaningful contact" with the children. After a 13-year marriage it appears both stars have moved on. Kelsey remarried within two weeks of finalizing his divorce. He and his new wife are expecting twins. According to Camille's statements on her show the "Real Housewives of Beverly Hills" , she is also happily in a relationship with lawyer Dimitri Charalambopoulos.

Camille filed for divorce on July 1, 2010 after learning of Kelsey's affair with a stewardess, Kayte Walsh. Kelsey was able to marry his new wife Kayte Walsh before settling all aspects of his divorce with Camille through the bifurcation process. In order to accomplish this, Kelsey asked the judge to grant a divorce decree while suspending the division of the large and complex marital estate. The estate is estimated to be worth $120 million dollars and because the couple did not have a prenuptial agreement, Camille demanded $50 million.

In San Diego, the court will agree to bifurcate a divorce case. States like New York, Texas, Arizona, and Michigan only bifurcate cases in exceptional circumstances. California is part of a minority of states that bifurcate divorce cases for almost any reason. To bifurcate a case is to split it into two parts. Generally, as in the Grammer divorce, the first issue to be litigated is marital status. By resolving marital status, each spouse becomes divorced and therefore single and able to legally remarry. The remaining issues may include disputes over property distribution, child custody and visitation, child support, and alimony.

A party may wish to bifurcate a case in order to remarry like Kelsey or the spouse may be motivated by tax consequences or implications. A person can file his or her taxes "single" as long as his or her marital status was terminated before the end of the year. During a divorce proceeding, the court often makes temporary orders for spousal support. Any spousal support payments are 100% deductible for the payor and must be claimed as income by the payee. This tax consequence is not implicated if the couple decides to file a joint tax return. In other instances, when the divorce is a particularly acrimonious one, bifurcation can prevent one spouse from exerting control over the other's personal life by delaying the ultimate result, divorce.

A bifurcation may be obtained by agreement of the parties. In this case, the parties stipulate that the cause may be tried as an uncontested matter. Because a divorce can take many months or even years to proceed through the California family court system, many parties seek to bifurcate their case in order to obtain some degree of finality. They will be legally divorced and able to move on with their lives while in the process of litigating other matters. Not surprisingly, Camille opposed Kelsey's motion to bifurcate the divorce proceedings. Although many speculated that Camille was simply acting as a woman scorned, she was also concerned that legally divorcing Kelsey would leave her with uncertain rights to the marital estate that had yet to be divided.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer representing clients in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

We have blogged several times about the potential problems that Facebook and other social media sites can have on a divorce. The same potential for problems also applies to the text messages you send. Although it is sometimes difficult to get text messages into evidence (meaning properly in front of a judge), once the text message is in evidence, it could change the outcome of your case!

Unlike Facebook and other social media posts, text messages cannot be deleted or recalled. Any text that you send to your spouse, or even to a third party, can end up being used against you in a divorce. With phones now having up to 64 gigabytes of storage, or more, texts from many years ago could end up being presented as evidence to the judge in your divorce case.

• If you threaten to harm your spouse in a text, that may be the basis for a restraining order, or even criminal prosecution.

• If you call your spouse names in texts, the judge could end up with an unfavorable opinion of you.

• If you say one thing in your declaration (such as, "I do not use drugs") and text something contrary to your spouse or a third party (such as, "I can't believe how stoned I was at the party"), you will ruin your credibility with the judge.

In a recent story on NPR, Ken Altshuler, president of the American Academy of Matrimonial Lawyers, provided the following tips for keeping your texts out of court, upon which I elaborate:

• Do not text your spouse anything that you would not want a judge to see. This also applies to Facebook and other social media posts, messages or comments, emails, and even voice mail messages. It is always best to assume that any text, anything you write or any voice message you leave for your spouse will end up in front of your judge. Some examples of what not to post, blog or text about can be found here.

• If your spouse or former spouse sends you an inappropriate text, do not respond in kind because a judge will see that. The judge usually does not care who started an inappropriate exchange because the exchange is usually just a small part of the bigger picture. In one of my cases after reviewing hateful emails back and forth between the parties, the judge (slightly misquoting Mercutio's famous line from Shakespeare's Romeo and Julie), said "A pox on both your houses." When the other party blurted out, "She started it!" the judge replied, "Sir, two wrongs do not make a right - and your emails back to here were totally inappropriate, no matter who started it."

• Do not send messages that set your spouse up for an inappropriate or angry response. On the other hand, some Judges will look into who started it. You do not want your judge to find that you were the party that started it, or someone who is baiting the other side. This could ruin your credibility with the judge for the rest of your case.

• If you are worked up and want to send your spouse a message, take time to calm down before putting anything in writing. Again, if it is in writing, you must assume that your judge will eventually read it. If you are unsure about a written response to your spouse, send it to your attorney for review before sending it to your spouse.

Always remember, do not text anything to anyone that you would want the family law judge in your case to see or read.

Continue reading "Texting Can have a BIG Impact on your Divorce Case" »

News just broke that reality star, Kim Kardashian, has her legal team working very hard to ensure her divorce from basketball player, Kris Humphries, is handled in a private mediation; no cameras allowed! It's Kim's hope that by taking their divorce out of the spotlight, the proceedings won't take longer than the actual marriage itself. A source close to the Kardashian family adds:

"A public trial is the last thing that Kim wants, and she has instructed her lawyer to formally petition the court so that the divorce can be heard by a mediator, which is routinely done in California, since it's a no-fault state. Kim doesn't want a long drawn out trial. She wants the mediation to be private, confidential, and legally binding. She and Kris have no assets together and kept separate bank accounts, so this is a fairly routine divorce proceeding. Kim just wants this over and done with."

Mediation is an alternative to going to court. It is a confidential process by which the parties get to try and settle the case with a third party neutral (mediator). It allows the parties a chance to communicate and have the opportunity to be heard. The greatest benefit to mediation is that you and your spouse get to come up with the terms of the agreement rather than the Judge deciding for you. There is a risk with putting fate in the courts, because you and your spouse know better than anyone, what is best for you and your family. It provides a win-win for the parties because you each have a role in making the agreement. On the other hand, when you go to court, one or often both parties are dissatisfied with the Judge's decision. Mediation will save time and money by not going through the court process, which can take months or even years for all the aspects of the divorce to become final and can be extremely expensive.

In California, it is required if you have children to attend mediation when getting a divorce to determine custody. Family Court Services interviews you and your spouse regarding the health, safety, and well being of the children involved. The mediator will determine what is in the best interest of the child(s) and propose a custody arrangement to the Judge. It can be as specific as you want including who the child(s) will be with for birthdays and holidays. Before going in front of a judge for your divorce, you may want to consider trying to work something out with your spouse instead by doing what's known as a divorce mediation as well.

San Diego County is known throughout the state of California for being less litigious, and more settlement-oriented, than other counties. There are attorneys who have specialized training in mediation and are settling the vast majority of their cases. Issues included in divorce mediation include but are not limited to: Distribution of property, child custody, child support, spousal support, retirement benefits and taxes. Some issues may be more difficult than others to discuss, but it is the mediator's job to keep the lines of communication open, brainstorm ideas with you and provide a safe environment for each of you to speak in an amicable way. Lack of communication or arguing may have been one of the reasons for your divorce; mediation has the ability to help you communicate with each other again, if only for the sake of your children.

Continue reading "Should I consider Mediation during my San Diego divorce?" »