Recently in Divorce Category

There is Life After Divorce

life-after-divorce.jpgThere may have been a general consensus that the stress of a relationship ending and divorce are damaging to your health, but those effects do not have a long term impact. Researchers from the University College London institute of education, London School of Economics and London School of Hygiene and Tropical Medicine have studied the issue and have found that "transitions such as separation and divorce do not have a long-term effect."

While this may not be great news while you are struggling through a divorce, it shows that the pain of ending a marriage, especially an unhealthy one, has no lasting effect on you. In fact, this study cites previous research which "suggests that individuals in poor-quality couple relationships have worse health than those in happier ones and those who are unhappily married are at greater risk of poor health than divorced people." So, in other words, the move to end an unhealthy marriage has health benefits.

broken-heart.jpgRegardless, when going through a divorce you need a knowledgeable and caring attorney to help you navigate both the complexities of family law and who knows the emotional toll a divorce can take on a person. A knowledgeable attorney can ease the burden of a divorce by providing accurate information so you are not blindsided during court proceedings.

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What do I do with my Thrift Savings Plan during my divorce?

retirement-tsp.jpgIf you are a member of the uniformed services or work for the Federal Government you are eligible to sign up for a Thrift Savings Plan ("TSP"). A TSP is a retirement savings plan similar to a 401(k), and it often supplements other retirement plans such as Federal Employee Retirement System (FERS) or your military retirement. Even though it is similar to a regular 401(k) it is managed by the Federal Thrift Investment Board, which is an independent government agency, as opposed to a private financial services company.

When you retire your TSP is treated the same as a 401(k). During your working years you place a portion of your pretax earnings into your TSP account and those funds are taxed when removed post retirement. Because a TSP is similar to a 401(k) they are treated in the same way during a divorce. The community portion of the TSP (the amount accrued during marriage), are divided pursuant to a specially prepared order. A Thrift Savings Plan does not fall under the Employees Retirement Income Security Act ("ERISA"), rather the order must meet different requirements under Federal Law (5 United States Code sections 8435(c) and 8467, and 5 Code of Federal Regulations part 1653, subpart A).

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Pets are People Too, Right?

pets-divorce-custody.jpgPets are members of our families, and we would be horrified if something happened to them. For example Johnny Depp's dogs face being euthanized when he flew them to Australia without permission. Most of us will not face this type of situation with our pets, but what happens to your furriest family members during a divorce proceeding?

California law is surprising silent when it comes to your pets considering how important they are to our lives. Generally, the law still considers pets something that you own and treats them as property. This means custody would be decided in a civil court, not the family court.

However, it is not unheard of for your pet to be involved in your family law matter. For example, Family Code section 6320 allows you to include your pet in a Domestic Violence Restraining Order. If you have taken care of your pet since before you were married they will likely stay under your care post separation, but if you became pet parents together it can be more complicated. For some families it may make sense for the family pet to say with the parties' children due to the bonds that develop between children and pets, but every case is different.

The court will likely sign any agreement regarding pets reached by two pet parents. However, heavily litigating these issues is not advised. In order to resolve any possible disagreements over a pet, people should put their wishes in writing via a pre-nuptial agreement or a post-nuptial agreement to avoid heartache later on.

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One Day Divorce, One Year Later

one-day-divorce-2.jpgAsk most family law litigants in San Diego County their opinion on the speed with which their divorce case progresses through the Family Court, and I promise you the results will not be positive. There are many different reasons divorce cases take so long to complete. Some are related to the parties or their case such as complex asset division, highly contested custody issues, or difficult litigants. Other issues the parties have no control over such as decreased court budgets resulting in less staff and an increased case load due to an increase in family law filings.

Recently the Connecticut House of Representative granted final legislative approval to a bill that would not only make the divorce process quicker but cheaper as well. To be eligible for the program, neither of the parties can be receiving Medicaid benefits or own any real estate. Neither part can have a defined benefit retirement plan (also called a pension), since dividing these plans complicates cases. It does not mention whether the parties can have a 401(k) plan (the most popular retirement plan offered by employers) and still qualify for the program. Finally, neither party can have a restraining order issued against them.

The goal of the new legislation is for divorces to be granted more quickly, leaving judges with more time to address contentious cases. This would help clear the calendars in the family courts and hopefully speed things up for the other litigants.

This is the same goal the One Day Divorce program in San Diego had when it launched in March 2014. We blogged about the program last year and explained the process. I encourage you to take a look at the blog if you have not read it already.

So, how is the One Day Divorce program doing a year later? Not surprisingly, it has been big success...and a popular one at that. The program has not released any data, but what I can tell you is I have heard great things about the program, and every time I walk by the One Day Divorce office it's busy processing about five cases a day.

For more information about the One Day Divorce program, visit the San Diego Court website. From here you can complete a simple questionnaire to see if you qualify for the program.

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Mental Health and Your Custody Dispute

mental-health-child-custody.jpgIssues revolving mental health and welfare are often stigmatized in our society. Whether someone is suffering from a short term situational depression, or suffers from depression and bipolar disorder, they oftentimes suffer in silence; afraid of how others will perceive them. This week Kim Kardashian participated in a Google hangout, wherein she discussed her passion for mental health issues and the documentary she produced called #redflag. Her documentary is about mental health in the age of social media.

If you or your ex-spouse is suffering from an issue involving mental health, seeking treatment is always the best course of action. However, how do issues of mental health affect your child custody dispute?

The California Constitution provides a broad right to medical privacy; this is generally referred to as doctor-patient privilege, but it also covers psychotherapists, which is a broad category that encompasses Marriage and Family Therapists. Usually your records remain private. However, in child custody cases in California this right is not absolute. The court may decide to review your medical records to help determine what is in your child's best interests. This requires the side seeking to access the records show that issues involving mental health will affect your child.

However, the court is aware that just suffering from a mental health issue does not preclude you from having a loving and happy relationship with your child. So as long as you are receiving treatment and taking care of yourself the court will support your relationship with your child.

If you feel that issues of mental health and medical privacy are being raised in your case, The Law Offices of Nancy J. Bickford is experienced in dealing with the privacy protections at issue in custody cases to ensure your privacy is respected.

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Discovery in Family Law Cases

discovery-family-law-divorce.jpgOnce initial papers are filed to get the divorce process started (the petition and response) the next step is typically to gather all pertinent information regarding each spouse's financial and personal information. Although both parties are required to prepare and serve declarations of disclosure, which outline each party's income, expenses, assets and debts, discovery is usually a necessary tactic to gather additional information.

Discovery is vital to the divorce process because it allows both sides to examine exchanged information and documentation before determining how to properly divide up assets and debts. Revelations made during the discovery process are also helpful in calculating the appropriate amount of child support and spousal support.

Discovery can occur informally, formally or both. Informal discovery is when the parties and their attorneys simply request specific information or documentation in an email or letter to the opposing party/opposing counsel. Informal discovery indicates that the parties are willing to work together, but simply need more information to move forward in the case.

Formal discovery, on the other hand, typically indicates that the party is more litigious because formal discovery requires that opposing party and opposing counsel follow rigid procedures and timelines in responding to the discovery requests.

Discovery, whether formal or informal, may include some or all of the following: Interrogatories, Requests for Admission, Document Production and depositions.

  • Interrogatories are written questions from one spouse to the other that must be answered under penalty of perjury. The interrogatories may relate to any issue that is relevant to the divorce proceeding, such as employment information, details regarding financial accounts and information regarding the party's health or living situation.
  • Requests for Admission, although not often utilized in family law, can be helpful when you need a party to admit or deny specific facts regarding divorce related issues.
  • Demand for Production of Documents are particularly helpful when the so called "out-spouse" does not have access to financial statements, documentation relating to a spouse's business, tax documents, etc. It also is a way to get important information that a spouse may be trying to hide.
  • Depositions are when an attorney asks the opposing party (or expert, witness, etc.) a handful of questions during a face-to-face interview. Responses are required to made under oath. A court reporter will draft a transcript of everything that is said during the deposition. Depositions are helpful to get important facts out of the other party and also to see how that person will appear and conduct themselves at trial.

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Decoding Divorce Acronyms

acronym-decoder-divorce.jpgGoing through the divorce process can be confusing, emotional, and overwhelming to say the least. Then you add a bunch of legal jargon to all of that and things tend to either go over your head or in one ear and out the other. If you want to keep up with your divorce case it might be helpful to learn a handful of divorce acronyms. Below are some commonly used acronyms that attorneys and other legal professionals in the San Diego County tend to use on a daily basis:

FRC: Family Resolution Conference.
Once your case is filed you will get notice of the first Family Resolution Conference scheduled at court. Typically your attorney can simply appear on your behalf, either in person or by telephone, and your presence at the hearing will likely not be necessary. The purpose of the FRC is to give the court an update as to the progress of the case and schedule any necessary pre-trial or trial hearings.

DVTRO: Domestic Violence Temporary Restraining Order.
A DVTRO is the type of court order that your attorney will initially try to get you when there has been a pattern of behavior which involves violence or abuse by one person in a domestic context against another. The DVTRO is the first step to getting a permanent restraining order.

MSC: Mandatory Settlement Conference.
In an MSC, a judge or volunteer attorney will assist the parties in attempting to settle their case, but without making any decisions or orders in the case. MSC are typically held close to the date a case is set for trial, as one last effort to settle the case.

PDOD/FDOD: Preliminary Declarations of Disclosure; Final Declarations of Disclosure.
The family Code mandates the exchange of disclosure documents. PDODs/FDODs include and IED, SAD, tax returns and Declaration regarding service of DODs.

IED: Income and Expense Declaration, also referred to as Form FL-150.
This is part of the Preliminary and Final Declarations of Disclosure. The completed form will set forth the respective party's information regarding his/her employment, monthly income, average monthly expenses, etc.

SAD or SAOD: Schedule of Assets and Debts, also referred to as Form FL-142.
This is part of the Preliminary and Final Declarations of Disclosure. The completed form will set forth all known community and separate assets and debts. This includes assets even if they are in the possession of another person, including your spouse.

MSA: Marital Settlement Agreement.
At the end of a divorce proceeding, once all of the issues have either been settled or resolved in Court, one side will draft a Marital Settlement Agreement setting forth all of the provisions that relate to each issue of the case. The MSA will be incorporated as part of the Judgment packet that is filed with the Court.

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You May Not "Like" This Facebook Message

divorce-process-facebook.jpgSocial media giant Facebook is used by more than a billion people worldwide (1.35 billion to be more accurate), so it will come as no surprise that Facebook has been involved in many family law cases in recent years. Whether it is evidence of infidelity, excessive spending, or to expose the other parties lies, Facebook posts and photos are routinely offered as evidence in Family Courts.

However, in a first for Facebook, a New York judge allowed a woman to serve her divorce papers via Facebook as an attachment. Apparently, the woman's husband had no physical address and was refusing to accept service of the divorce papers. After the Judge confirmed that the Husband's Facebook account was legitimate and belonged to him, the Judge entered an order allowing her attorney to serve the divorce paperwork via Facebook. The documents had to be attached to a private message. The message had to be sent once a week for 3 consecutive weeks. At the end of the three weeks, the service was deemed accomplished and the case could proceed in the normal course. Whether a California court will allow a party to serve a divorce petition via Facebook is unknown, but that is only because no one has asked a court to allow them to do so. I think under the same circumstances, a California Court would, at the very least, give the idea of service via Facebook due consideration.

divorce-process-service.jpgIn California, and most states, service of process is all about making sure the other side has notice to the other party. This ensures the other party to the case has an opportunity to have their day in court and tell their side of the story. It is all about fairness.
In California, a Petition for Dissolution of Marriage must be served personally on the other party. Pursuant California Code of Civil Procedure § 414.10, service "may be made by any person not a party to the proceeding who is at least 18 years of age." What that means is you cannot be the person to perform the service. Most people ask a friend or family member to serve the papers. You can also hire a process server, but that means you have to pay them; usually around $100. In most cases, the other party knows the divorce has been started and is expecting to be served. Even when it is a surprise to the other party, most people do not actively evade service, especially when the service is performed at their home or job.

In some cases, you may not know where the other person lives, or as in the Facebook case, they have no address and you do not know how to locate them. In California, you can ask the Court's permission to serve the papers by publication or posting. Service by publication is used when you do not know where the other party lives, but you believe they live in a general area. When you serve via publication, you publish the Summons in a newspaper of general circulation in the area where the other party is likely to be. You will have to pay the newspaper a fee to publish the papers, and it will have to be published for 4 weeks in a row, at least once a week. In San Diego, you do not have to publish the papers in the Union Tribune, which could be very expensive. You can use smaller publications that are dedicated to this type of work and can publish a Summons for around $80 for all four weeks.

Another option is service by posting. This is an option only if you cannot afford to serve via publication. You will have to prove to the court that you cannot afford the publication costs. In this case the Summons is posted in a designated courthouse at a designated place by the court clerk. At the end of being posted for 28 days, the service is deemed complete.

In order to be allowed to use service by publication or service by posting, you will have to obtain the court's approval first. In order to be granted approval, you will have to show you have exhausted all other options to locate and serve the other party. As I said before, the reason the court requires personal service is to ensure notice and fairness. So make sure you keep a record of everything you did to locate and serve the other party before you ask for an alternative means of service.

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Can illegally obtained computer evidence be used as evidence at hearing or trial?

beach-wooden-posts.jpgDivorce is an emotional time whether or not the split is amicable. These emotions can cause people to make choices they would otherwise never make, such a looking through their former spouses computer or cell phone. Whether the clandestine act is out of sheer curiosity or for a specific purpose, a great deal of information can be learned about a person by looking through their cell phone or computer. This may include bank statements for accounts that were previously unknown, emails, dating profiles, messages to friends about the marriage or a possible affair.

In more extreme cases, one party may put tracking software on the other party's computer, such as key logger software, to track every move the other party makes on their computer. This could lead to very damaging evidence that would be very helpful in a divorce case.

The problem is you probably cannot use any of the information you obtained, and could end up facing a lawsuit by your former spouse and/or jail time for violation of several California laws as well as Federal laws.

magnifying-glass.pngIn California illegally obtained evidence cannot be admitted as evidence in a court proceeding if the manner in which the evidence was obtained violates the Penal Code. This includes tape recording a conversation without the other party's consent, eavesdropping on a private conversation, or accessing/recording the contents of another person's electronic device (computer, phone, etc.) without their permission.

There are two exceptions to this rule:
1. Illegally obtained evidence can be admitted if it comes from another source, or would have been or was discovered independently.
This means if you discovered the other spouse had a previously undisclosed bank account because you broke into their computer and found emails from the bank, but subsequently learned about the secret account when you found a bank statement on the kitchen counter, you could use the evidence.

2. The individual from whom the evidence was illegally obtained waives the right.
This would generally include the other party providing the evidence by way of a response to discovery or in testimony.

There are other ways the evidence can be used, but not admitted at trial or hearing. For example, if the evidence is used to refresh a witnesses' recollection of certain events. This is because the evidence being used to refresh the witness's' recollection is not being introduced; it is simply an aid to the witness to recall an event he/she is testifying about.

Another way illegally obtained evidence can be used is to impeach a witness's credibility. This means, if the other party testifies that they have no accounts with ABC Bank and Trust, you can use the illegally obtained evidence to prove they do have accounts at ABC Bank and Trust.

A note of caution...just because you may be able to use illegally obtained evidence in your family law matter does not mean the other party cannot file a law suit against you for illegally obtaining the evidence in the first place. Moreover, you may still be subject to an indictment for violations of the penal code for any actions taken to obtain evidence from another party illegally. Remember, illegally obtained information is by definition "obtained illegally."

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Does My Job Make Me More Prone to Divorce?!

broken-marriage.jpgIn today's fast-paced, "money-hungry" world, finding a balance between work and family life seems to be a constant struggle for many people. Many people blame their job or their spouse's job as the root of the cause of their divorce. There have been studies done that indicate that a person's particular occupation can be a predictor of whether a marriage is more likely to succeed or fail.

Perhaps it's that people with certain personalities are drawn to certain jobs. Or maybe it's that the job itself leads to a higher chance of divorce because of the number of hours spent away from your spouse, the increased chance of infidelity, or the extent of the toll your job takes on you mentally, emotionally, or physically. Either way, people in certain jobs appear to have a higher risk for divorce over people in other professions.

A 2009 study entitled, "A Comparison of Law Enforcement Divorce Rates with Those of Other Occupations" was published in the "Journal of Police and Criminal Psychology" and is based on data from the 2000 U.S. Census.

Highest divorce rates by profession include:
• Dancers and Choreographers - 43.05%
• Bartenders - 38.43%
• Massage Therapists - 38.22%,
• Entertainers, Performers and Professional Athletes - 28.49%.

broken-marriage-cocktails.jpgConsidering the fact that bartenders are constantly interacting with people of the opposite sex, there is easy access to alcohol and late night work schedules, it makes sense that they are among the group of professions with a high divorce rate. Similarly, massage therapists spend a significant amount of time in private settings with their client, which has a higher chance of leading to infidelity and a subsequent divorce. The lifestyle of an entertainer, performer or athlete is not necessarily conducive to married life due to the fact that they are on the road often and away from their spouse. The large amount of fans make the possibility of adultery more likely, which again, is a big cause of divorce.

Lowest divorce rates by profession include:
• Engineers, legislators, dentists and farmers - less than 10%

These jobs tend to yield a steady/higher income, which may help married couples avoid financial arguments. These careers also typically require a high level of communication, which is likely to also play a role in keeping the marriage together.

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How can you tell if your spouse is spying on your computer, and what can you do to protect yourself?

spying-spouse.jpgWith the advent of laptop computers and the smartphone, you can take your digital life everywhere with ease and convenience. So much can be done on the go with these devises, but there is a downside to the convenience. It seems like every couple weeks you hear a news report about another Hollywood starlet getting her phone or computer hacked. With so much information stored on our smartphones and laptops, learning that someone has accessed your device without your consent can be both scary and infuriating. Everyone expects (or at the very least hopes) that the private information on their computer or smartphone will stay private. But how can you tell if your spouse is spying on your electronic devises, and more importantly how can you protect yourself from being spied on.

There are many reasons your spouse may be spying on your electronic devices. Perhaps your spouse thinks you are having an affair, or secretly hiding money or stealing from a family business. Your spouse may think you are drinking or using drugs and hopes to use this evidence against you in a custody battle. Whatever the reason, there are ways to finds out if your spouse is spying on your electronic devise.

Programs
There are many online applications or antivirus programs that can detect tracking software or key logger programs have been installed on your computer. Many can be downloaded for free off the internet or ordered online for a reasonable price. While not fool-proof, using these programs is a good start and could provide peace of mind that you're not being tracked or spied on.

Professional
If you have a really strong feeling you're being spied on, or if one of the programs indicates the possibility of tracking software on your computer, it is best to bring your device to a professional who can inspect the device more closely. These professionals can also take steps to remove any suspicious software on your computer. This is a more costly route, but in the end it is worth the money to know your private life is staying private.

Common Sense
Your intuition and common sense is probably the best indicator of whether you're being spied on. If your former spouse seems to know things they should not know, or is acting suspiciously around you or your electronic devices, there is a good chance they are up to something, and you should take action.

So what can you do to protect yourself? The following is a non-exhaustive list of suggestions to avoid your electronic devises being compromised:

spying-spouse-password.jpg1. Change your password. When you do change your password, choose a strong password that incorporates, number, letters, and symbols so it is more difficult to crack. Do not use your dog's name or worse the word "password."

2. Make sure to password protect your phone. It may seem like an inconvenience to have to enter a password every time you open your phone, but with so much information now stored on our phones, this is an absolute must. Any inconvenience is far outweighed by the security a password protected phone provides.

3. Avoid agreeing with Chrome/Firefox/Safari when they ask if you want the browser to remember your password. This is like giving a burglar your key. All he needs to do is wait for you to leave and he can come right in and clean you out.

4. Always logout of programs that contain private information. Again, it may be a minor inconvenience, but it is better than having your privacy compromised.

5. Install a monitoring program to periodically check for tracking software and key logger programs.

None of these suggestions are fool-proof, but they can be helpful in deterring your spouse from spying on your computer or smartphone. If you are in the middle of a divorce, or are considering a divorce, and you believe your spouse may be spying on your electronic devises, it is important to take steps to maintain your privacy and protect yourself.

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Co-Parenting Fido with your Ex-Spouse

co-parenting-dog.jpgFor many couples, worrying about who will get custody over the family pet is just as important as worrying about custody of the children. This is because pets are like family for many people. Although pets are treated like personal property under the eyes of the law in California, they shouldn't be treated like just any other piece of personal property (like a piece of furniture) after the divorce is finalized and custody of the pet is determined. If your divorce results in joint custody of your family pet, it is important that you put the same time and effort into co-parenting your pet as you would for your children.

The first step of co-parenting is to have a clear custody plan in place. If your divorce judgment states that you and your ex shall share joint custody but does not outline a specify custody arrangement, it is important to quickly put one in place. Many of the same principals used for custody/visitation of children can be applied to sharing custody of a pet. If you have children and are sharing joint custody of the children as well, then perhaps the pet can go to the other parent at the same day/time that the children are exchanged. The important thing to remember is that routine and consistency is vital. Just like children, changing a pet's living situation can cause a lot of stress and trauma to the pet, which can result in an array of behavior issues. Thus, once a custody arrangement is agreed upon, it is important that both "parents" stick to it.

co-parenting-pets.jpgIn addition to divvying up custody and visitation of your pet, co-parenting requires cooperation in a variety of other aspects: food, grooming, medical care, expenses etc. With regard to the pet's food, you should work with your ex to choose the same brand of food for each household. As far as grooming, it is suggested that you and your ex decide to keep your pet groomed in a standard way or at least have a selection of acceptable "looks" so that there is less room for conflict when it comes to grooming day.

A big aspect of pet co-parenting is dealing with the sharing of costs related to the pet. Costs may include medical care, daycare, training, toys, travel, or accessories. You should divide the pet related costs into two categories, one for basic costs and another for extraordinary costs. Typically basic costs are covered by the "parent" who has custody of the pet at the time. Bigger purchases for your pet may require a more detailed agreement. For instance, you might want to base the payment division on each parent's income level, percentage of custody, or simply cap one parent's contribution and agree that the other parent will cover costs outside that cap.

Another hot topic of pet co-parenting involves medical treatment. First there needs to be an agreement, ahead of time, not only as to who will pay for medical treatment, but how far to go with treatment, compliance with the medication plan, and potential changes in custody/visitation due to the pet's recovery time. Properly co-parenting your pet can help ensure your animal companion's happiness and well-being. Although it may be difficult to not always have your pet in your custody, try to remember that your pet will benefit by having the love of both "parents" in its life.

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What to Do When Spouse Claims Disability

support-disability-claims.jpgSometimes during divorce proceedings one spouse may claim to suffer from a disability that affects their ability to work. When your spouse claims to be disabled, you might wonder if there is anything that you can do about it. It may sound awful to question the honesty of your once beloved spouse especially as it relates to a medical condition. But sometimes further exploration is necessary to determine the true extent of your spouse's disability and its effect on their ability to work. This is especially the case if your spouse has already given you reason not to trust them or if your spouse has made it apparent that they are hungry for money and will do anything to make you "pay up".

Is the Disability Really Valid?
A spouse may have a non-specific claim of disability for conditions such as stress or depression, which might affect their ability to return to work. If you have doubts about the validity of the disability it may be important to investigate further.

You Agree Disability is Valid, but Does it Really Impact Employment?
If your spouse was diagnosed with a disability during your marriage, then you might be less likely to question the validity or existence of the disability. However, you might still question whether your spouse's disability truly impacts their ability to pursue all forms of employment. While your spouse's disability might impact certain types of work, that doesn't mean that there are absolutely no fields of work out there that your spouse might still be able to do despite their disability. For example, if your spouse has a physical disability, then a labor intensive job is likely not even an option. But that doesn't mean that your spouse can't still work a desk job that doesn't require any physical labor or strenuous movement.

support-disability-job.jpgIndependent Medical Examination
An Independent Medical Examination ("IME") is a discovery tactic that many family law attorneys recommend their clients consider when a spouse's disability, if any, is at issue. An IME is a physical or mental examination of an individual done by a doctor, physical therapist or chiropractor who has not previously been involved in that individual's care.
In family law cases, the purpose of the medical examination is typically to enable the Examiner to form an opinion:
• if, and to what extent, the spouse being examined is able to work
• if and to what extent she has any limitations that limit her ability to work
• the hours she can work
• the conditions under which she can work
• other limiting factors her illness creates in order to be productive in the workplace.
In essence, an IME is one way to help determine what limitations to employment exist as a result of the spouse's medical condition. Either your spouse will need to stipulate to the IME or you will need to show good cause in order to obtain an order from the Court for an IME.

Vocational Evaluation
An IME is different than a vocational evaluation, which is used to determine the spouse's ability and opportunity to work. Once the IME report is ready, you might consider also hiring a Vocational Evaluator to give an opinion as the spouse's ability and opportunity for employment in light of the limitations due to the person's medical condition.

The purpose of going to all of the trouble of determining first whether your spouse has a disability and then to what extent that disability does or does not limit employment typically has to do with calculation of support. For instance, if your spouse is currently not working but both the IME and Vocational Evaluation support the opinion that your spouse is able to work, then you may request that the court impute income to your spouse for purposes of calculating support.

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Do I Qualify for an Annulment?

annulment2015.jpgThe relationship between former Baywatch star, Pamela Anderson and her husband, Rick Saloman would never be described as traditional. They were first married on October 2007, but separated less than 10 weeks later when Pam filed for divorce in December 2007. The parties reconciled for a brief period (about 2 weeks), before Pam served Rick with the divorce papers. In February 2008 both Pam and Rick requested their marriage be annulled based on fraud. That request was granted in March 2008. The couple remarried sometime in late 2013 or early 2014. As with their prior attempts the current marriage appears to have failed as well.

According to reports, Pam filed for divorce in California citing irreconcilable differences. Rick on the other hand, filed for an annulment in Nevada (where he allegedly resides) once again stating fraud as the grounds for the annulment.

In California there are two types of annulments; void marriages, where the marriage is never legally valid and voidable marriages that are declared invalid by a court. The same rules for void and voidable marriages apply to domestic partnerships. I use the word marriage in this blog for simplicity reasons only.

VOID MARRIAGES
There are two statutory grounds for a "void marriage", and other non-statutory grounds for a void marriage. These marriages are void from the start. They cannot be made valid by the passage of time or the consent of the parties.
Incestuous Marriage [Family Code Section 2201]: This is the situation when the people who are married are close blood relatives. This does not apply to first cousins who are allowed to marry legally in California.
Bigamous Marriage [Family Code Section 2200]: where a spouse or domestic partner is already married to or in a registered domestic partnership with someone else.
Though not found in the Family Code, the failure to obtain a marriage license results in a void marriage.

VOIDABLE MARRIAGES
These marriages are made void, not by operation of law, but by order of the court. Each of the grounds for a voidable marriage has a statute of limitations so the passage of time can make an otherwise voidable marriage valid. In fact, voidable marriages are valid until they are annulled.
Age at the time of marriage [Family Code Section 2210(a)]: If the party seeking the annulment was not 18 years old at the time of the marriage and did not have the permission of his/her parents to get married.
Prior existing marriage [Family Code Section 2210(b)]: Either party was actually married at the time, but for 5 years prior to the marriage believed their spouse was dead or had been missing. This is different from a bigamous marriage. The difference is actual knowledge. In a bigamous marriage the party knows they are already married. In a prior existing marriage the party knows they are married but their spouse has been missing or presumed dead for at least five years before the wedding.
Unsound mind [Family Code Section 2210(c)]: This refers to a party that does not have the mental capacity to understand the obligations assumed by being married. This is determined at the precise time the marriage is conducted. This can include persons with intellectual disabilities, Alzheimer disease, and in very limited number of cases, intoxication is a basis for a finding of unsound mind. This is how Brittany Spears got her 55 hour long marriage to Jason Alexander annulled.

annulment-fraud.jpgFraud [Family Code Section 2210(d)]: This is the most common basis or seeking an annulment. The fraud alleged must be about something vital to a marriage. A bad credit score or undisclosed credit card debt will not constitute fraud for an annulment.
The fraud in annulment cases can include getting married only to obtain a "green card", lying about ability to have children, and/or lacking the intent to observe the obligation of "sexual fidelity." In California, if one party is having an affair at the time of the marriage, that may be considered fraud for the purpose of an annulment.
Force [Family Code Section 2210(e)]: Either party only consented to the marriage as a result of force.
Physical Section 2210(f)]incapacity [Family Code: When the parties got married one party was "physically incapacitated" (basically, that means one of the parties was physically incapable of "consummating" the relationship) and the incapacity continues and appears to be "incurable."
Seeking an annulment in California can be difficult and there are very specific timing requirements associated with the request. We understand that this is a sensitive situation that could greatly affect you and your family, and our team can provide you with the caring and outstanding legal counsel you need and deserve.

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Keeping Inherited Money Separate

March 26, 2015

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

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

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

Do an Irrevocable Trust

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

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

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

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