San Diego Divorce Attorneys Blog

As we have previously blogged, Ashton Kutcher and Demi Moore separated nearly a year ago. However, neither party had filed for divorce, until now. Early on the parties claimed to be working out all of the details of their marital settlement before involving the court system in their divorce. Despite their year-long attempt at an amicable resolution, Kutcher filed for divorce shortly before Christmas. Media outlets speculate that Kutcher's new girlfriend, Mila Kunis, may have pressured him to file. This is based on the theory that Kutcher intended to give Moore time to heal from the couple's traumatic split and that Kunis could no longer handle letting Moore still have that much control. Besides the emotional implications involved, there are a few legal ramifications of filing for divorce that might have appealed to Kutcher and prompted him to finally take this step.

In California there is a mandatory six-month waiting period between when a spouse files for divorce and when the court has the ability to terminate his or her marital status. This means that if Kutcher intends to re-marry within the next year or so, filing a Petition for Dissolution of Marriage six months prior to that date would be necessary. Even if Kutcher and Moore agreed upon a final settlement of their estate and submitted their agreement to the court, they would still remain legally married until the six month waiting period had passed.

Learn more about filing for divorce in San Diego

Filing for divorce also has many financial implications. The timing of Kutcher's petition, shortly before Christmas, may not have been an attempt to hurt Moore around the holidays but instead, may have been done in the interest of financial security. Legally married couples can file "married filing separately". If Kutcher files "married filing separately" he will only report his own income, exemptions, deductions, and credits. Normally, there are significant disadvantages to filing "married filing separately", however it may be prudent to file separately if you are concerned about the potential liability for tax, penalties, and interest of your spouse.

Legally married couples can also file "married filing jointly". In this case, both spouses file one return together and report both of their income, exemptions, deductions and credits. This may be difficult in divorce proceedings where a party is non-cooperative. It is crucial to speak with a tax preparer in making this decision. By filing his divorce petition in December, Kutcher gave himself the option to use whatever method of filing works most to his advantage.

If you are contemplating divorce, please contact us. The Law Offices of Nancy J Bickford are also well versed in child custody, spousal support or alimony in San Diego, and property division. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Recently the California Court of Appeal handed down a decision that has settled an ongoing dispute throughout San Diego family courts. Family law attorneys agree that spouses owe each other the highest duties of good faith during marriage and undoubtedly throughout the litigation process. This duty requires parties to keep each other informed of their current financial state by exchanging Declarations of Disclosure.

In the beginning of a dissolution case, both parties complete their Preliminary Declarations of Disclosure, which consists of an Income and Expense Declaration and a Schedule of Assets and Debts. By completing these two forms and their requisite attachments the parties provide their current assets, debts, income and expenses. These figures can help the parties settle disputes regarding property division, child support or spousal support. If the court will hear a motion regarding support, the parties must also file these disclosures with the court. The judge will use the information provided to set support amounts. Because of the immense reliance on disclosure of finances, the court takes the fiduciary duties of spouses seriously.

In the recent California case, In re Marriage of Sorge, the court was faced with a slightly different scenario. The parties sought a modification of support at the trial court level; however, they were already divorced and had reached a final resolution of their case. Wife argued that Husband breached his fiduciary duties because he failed to disclose a material change in his finances. Husband argued that he was under no obligation to disclose any changes because the fiduciary duties between spouses end upon a final resolution of the case. The trial court agreed with Wife and Husband appealed the decision.

In the case of spousal support, Wife argued that spousal fiduciary duties continued until the court lost jurisdiction to order support. In the case of child support, Wife also argued that the duties continued until the court lost jurisdiction, which usually occurs when the youngest child of the marriage reaches the age of 18. The Court of Appeal overturned local Judge Longstreth's decision and relied primarily on Family Code section 3660 et. seq. Under this section of the code, former spouses have the ability to ask the other spouse for an updated status of their finances once per year. The court reasoned that this code would be superfluous if the legislature intended continuing fiduciary duties to run between former spouses.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child 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.

We have previously blogged that Vanessa Bryant filed for divorce from her basketball superstar husband, Kobe Bryant. Recently, Vanessa has refused to sign the paperwork and make her divorce final. Apparently her and Kobe are pursuing a full reconciliation of their marriage. Since Vanessa filed for divorce, the couple was caught kissing on Valentines Day. Later, they were seen estranged at a basketball game claiming to be "very good friends." Currently Kobe has not moved back in with his wife however, he already signed over to her the deeds to all three of the couple's mansions.

Vanessa filed for divorce on December 1, 2011. Under California Family Code section 2339, no judgment of dissolution is final for the purpose of terminating the marriage relationship of the parties until six months have expired from the date of service of the petition and summons on the respondent. This means that a couple cannot obtain a divorce and become legally single without waiting six months. For Vanessa and Kobe, that period has expired and Vanessa could seek to terminate her marital status as early as June 25, 2012.

The couple has already decided how to split their assets which includes a $75 million dollar pay out to Vanessa in addition to child and spousal support. However, this back and forth between the couple may have legal significance depending on their current agreement. Absent an agreement to the contrary, for the purposes of property division, any property acquired by either spouse between the date of marriage and the date of separation is community property. This property consists of both earnings and acquisitions and is divided equally upon divorce. Reconciliation has the potential to blur the lines between separation and marriage.

Married couples do have the power to determine the division of marital assets through other forms of agreements. If a couple marries without a premarital agreement, they still have the option to create a post-marital agreement. Under California Family Code section 1500, the property rights husband and wife may be altered by a marital property agreement. The statutory default rules discussed above regarding community property rights may be altered by an agreement between the parties. If no agreement exists, the court will simply apply the default rules according to the California Family Code. Many couples who find premarital agreements unromantic, or who simply did not consider the idea at the time of marriage may consider a post-marital agreement. The couple may wish to amicably divide newly acquired assets or future earnings before the animosity of divorce has the potential to cause conflict between the parties. This type of agreement can be made in contemplation of divorce or as a safety net between happily married spouses.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child 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 a San Diego Family Law Attorney, I often receive calls from former clients asking if they can find out their former spouses current income without incurring a lot of attorney fees or filing an expensive, time-consuming motion. Here are two examples of those calls:

• One former client suspected her Ex-Husband was earning significantly more than he was a year ago when their divorce was finalized because he recently bought a new car and moved into a bigger house. He refused to tell her his current income. If true, the amount of child support she receives could increase.

• Another former client knew that his Ex-Wife received a promotion, but did not know if a raise came with the promotion. She refused to tell him if she received a raise. If she received a raise along with her promotion, then his child support obligation would decrease, or depending on how much of a raise she received, he might be eligible to receive child support from her.

Fortunately for both clients, the Family Code provides for a way to obtain a current Income and Expense Declaration by permitting a party to engage in inexpensive post-Judgment discovery prior to filing a Motion for Modification of Child, Family or Spousal Support. More specifically, at any time after the entry of a Judgment of Dissolution or Legal Separation that provides for the payment of child or family support, either party, no more than once per year, may request the other party to produce a completed current Income and Expense Declaration with copies of that party's pay stubs and prior year state and federal income tax returns attached.

A request for a current Income and Expense Declaration with a copy of the prior year tax return and pay stubs is the only limited discovery allowed if a Motion for Modification or Termination of the Support Order is not pending. That means if a party wants to engage in other methods of discovery, such as Interrogatories (which are questions asked of the other party) or a Request for Documents, then he or she would first need to file a Motion for Modification or Termination of the Support Order.

By allowing a party to obtain an Income and Expense Declaration from their former spouse, the requesting party can determine whether filing a Motion for Modification is appropriate. If it turns out that there is no change of income, then the filing of a Motion for Modification could be expensive, especially if there is no (or minimal) change to the amount of support paid or received.

Sometimes, a former spouse will ignore the request for a current Income and Expense Declaration. If this occurs, the Family Code provides that if there is no response within 35 days, or if the Income and Expense Declaration is incomplete as to any wage information, or if pay stubs and income tax returns are not attached, then the requesting party may serve a Request for Income and Benefit Information directly on the employer of the other party. The non-responding party may also be sanctioned by the court for his or her failure to comply with the initial request.

Please contact us if you wish to obtain a current Income and Expense Declaration from your former spouse, or if you have received a Request for Production of An Income and Expense Declaration After Judgment from your former spouse.

Continue reading "CAN I FIND OUT HOW MUCH MY EX SPOUSE CURRENTLY EARNS?" »

The Associate Press is reporting that Los Angeles Dodgers owner Frank McCourt will keep paying $225,000 in temporary spousal support to his ex-wife, Jamie McCourt, over the next couple of months, but that money once used toward the mortgages of six luxurious homes will come from a $1.1 million escrow account funded by the sale of one of their other homes that was located near the Playboy Mansion.

When child and spousal support are at issue in a San Diego divorce, the issues can be resolved two way; either by agreement of the parties, or the court will make an order after having a hearing on the issue.

When parties reach a support agreement outside of a court hearing, either on their own or through their attorneys, the agreement is called a "Stipulation." To become effective, the terms of the Stipulation must be written down and filed with the court.

When an agreement regarding child support is reached, the written Stipulation that is filed with the court is required by the San Diego County Superior Court Rules to contain the following child support acknowledgments:

1. Each party is fully informed of their rights concerning child support;
2. The order is being agreed to without coercion or duress;
3. The agreement is in the best interests of the child involved;
4. The needs of the child will be adequately met by the stipulated amount of support; and
5. The right to support has not been assigned to the county pursuant to section 11477 of the Welfare and Institutions Code and no public assistance application is pending.

Further, in San Diego County, all written stipulations for the payment of child support must also include the following mandatory language:

"The parties declare all of the following:
1. They are fully informed of their rights concerning child support;
2. The order is being agreed to without coercion or duress;
3. The agreement is in the best interests of the children involved;
4. The needs of the children will be adequately met by the stipulated amount; and
5. The right to support has not been assigned to any county pursuant to section 11477 of the Welfare and Institutions Code and/or Family Code section 17404, and no public assistance application is pending."

In addition to the mandatory acknowledgements and language, the following forms are required to be included with all child support orders (which include Stipulations):

1. A Child Support Case Registry Form must be properly filled out and included with all child support orders issued or modified pursuant to Family Code section 4014; and
2. A Notice of Rights and Responsibilities must be attached to all orders and judgments which include provisions for child support pursuant to Family Code sections 4062 and 4063.

The experienced San Diego Family Law Attorneys at the Law Offices of Nancy J. Bickford are very familiar with all of the requirements of the California Family Code and the San Diego Country Superior Court Rules that must be followed whenever an agreement is reached to make sure the terms of the agreement are enforceable.

In cases in which a stipulation cannot be reached, we will vigorously argue your case at a hearing or trial.

If you are considering a divorce, the most important first step is to consult with an experienced San Diego Family Law Attorney. Call 858-793-8884 in Del Mar, Carmel Valley, North County, La Jolla or San Diego to schedule an appointment with Nancy J. Bickford.

You have just received a court stamped copy of your Judgment from your San Diego divorce attorney. Everything has been resolved - custody, visitation, child support, spousal support, division of assets and division of liabilities - there is nothing left to do, or is there?

In a recent arbitration case, Husband who had been through a bitter divorce, did not change the beneficiary on his IRA, which listed ex-Wife as beneficiary. When he died 10 years later the IRA money went to his ex-Wife. Husband's Widow sued to collect on the IRA money. The arbitration panel denied Widow's claims. The panel found that Husband opened an IRA in 1994. Husband and Wife divorced in 1999. Husband remarried several years later. Husband was an attorney who made his own business decisions. Husband changed the beneficiaries on several of his other accounts, but not the IRA account. Although Husband probably did not intend for the IRA money to go to his ex-Wife, it was Husband's responsibility to change his IRA beneficiary.

This arbitration case highlights how important it is to follow up on items stemming from your divorce. Not doing so may result in your ex-spouse receiving monies you do not want them to receive, and could also subject you to enforcement motions, attorney fees and sanctions for not following the terms of the Judgment.

Here are a few things to review once you receive your Judgment back from the court:

Equalizing Payments. Is there an equalizing payment set forth in the Judgment? If so, make the payment. I had a client whose ex-spouse was ordered make an equalizing payment forthwith. The ex-spouse decided to "play games" - writing the first check to the wrong name, not signing the second check, claiming the third check was "lost in the mail" and wiring funds to a closed account. The ex-spouse ended up paying the equalizing payment after 45 days, but was required to pay a month of interest and sanctioned by the court, which found the delay intentional.

Beneficiaries. As illustrated in the arbitration case above, review, and if necessary, change the beneficiaries on all of your retirement accounts, bank/financial accounts, and disability/life insurance policies. Be careful though, your Judgment may require you to keep your ex-spouse as a beneficiary on a life insurance policy in order to protect the children/ex-spouse if you die before child or spousal support terminates. If you receive support and your ex-spouse is required to keep you as the beneficiary, periodically check that you are still the beneficiary. If you have an insurance agent, meet with the agent to go over any changes you may wish to make that are consistent with the Judgment.

Financial Accounts. If financial accounts need to be divided, be sure to do so pursuant to the terms of the Judgment. Contact your bank and financial institutions to ensure that your ex-spouse cannot access or make charges to accounts awarded to you. This may require closing the account and opening it in your name alone with a new account number.

Credit Cards. Contact your credit card companies to ensure that your ex-spouse cannot charge to credit cards awarded to you. You may need to close the credit card account and open a new one to ensure that an ex-spouse is not able to charge to credit cards he or she could previously charge to.

Retirement Accounts. Are retirement plans or pensions being divided and is a Qualified Domestic Relations Order required for the division? Although you and your ex spouse may be able to divide some retirement accounts, like IRA's, fairly easily, a QDRO specialist is often retained to calculate and divide the community interest in retirement/pension plans. Check with your attorney to determine how to best proceed with the division of retirement assets.

Real Property / Vehicle Title and Loans. Were you awarded or did you buy out your ex-spouse's interest in community real property? If so, discuss with your attorney changing title into your name alone. If your former spouse refuses to sign the title change documents, the court can appoint an elisor to sign for your ex-spouse.

Also be sure to change title on any vehicles awarded to you. This can usually be done through the DMV with forms available online.

If you were ordered to refinance real property loans, be sure you do so. Even if you are only required to make your best efforts to refinance (it is difficult to qualify for re-financing in this economy), make your best efforts by applying with several lenders, and keep trying. If you do not do so, depending on the Judgment language, you may lose the property!

Wills and Trusts.

Meet with your estate planning attorney or advisor to prepare a new will/trust as well as other estate planning documents like Powers of Attorney and Health Care Directives. Although the divorce may automatically cancel your former spouse's rights under a will, trust and power of attorney, it is important to meet with your estate planning attorney to update or prepare these documents to ensure your current intent is accurately reflected.

Internet / E-Mail. Be sure to change the passwords and answers to security questions for all of your e-mail accounts and for any internet websites you visit (Facebook), purchase from (Amazon) or use for finances (Banks). Make sure the new password something that your ex-spouse cannot easily guess. Many websites let you write and answer your own security questions. This can help prevent your ex-spouse hacking into your online accounts and e-mails.

Continue reading "Your Divorce is Final, Now What?" »

A San Diego client recently asked me if the court could seize control of the parties community property business, which was started during marriage and is managed by his spouse.

His question was prompted by what recently happened to the Los Angeles Dodgers. The owners of the Dodgers, Frank and Jamie McCourt, are involved in a very public divorce. Ms. McCourt claimed the Dodges are a community property business. Mr. McCourt clamed they are his separate property. In December, the court threw out a post-marital agreement making the Dodgers his separate property. Although Mr. McCourt is appealing that decision and the parties are trying to negotiate a settlement, chaos now reigns in Dodger-Ville. Mr. McCourt borrowed $30 million to meet the Dodgers payroll obligations. Shortly thereafter, Major League Baseball seized control of the team and installed a trustee to oversee business operations. The team may not meet its May payroll obligations and Mr. McCourt may file for bankruptcy to keep control of the team.

Back to my clients question. While the divorce is pending, the managing spouse of a community property business usually has primary management and control of the business subject to fiduciary duties to the non-managing spouse. However, the court does have the power appoint a receiver to protect the non-operating spouse's interest in the business. Where the parties jointly manage the business, they can keep jointly managing the business, or if unable to do so, either party may request the court order one party manage the business. Whomever the court orders to manage the business would have fiduciary duties to the other party.

If the parties cannot agree how to divide the business, the court may award the business on any conditions it deems proper to make a substantially equal division of the community estate. The court usually does one of the following:

(1) Awards the business to the managing spouse. This may even be done over the objection of the party the business is awarded to.

(2) Awards the business to the non-managing spouse. In one case, a Burger King franchise was awarded to the non-managing spouse over the objection of the managing spouse.

(3) Divides the business in-kind. In one case, shares of stock of a business were divided in-kind. However, the court will not make an in-kind division if it would impair the business.

(4) Orders the business sold.

Continue reading "Can the Court Seize Control of Your Business like Major League Baseball did to the Dodgers?" »

Jason London, star of the 1993 coming of age comedy Dazed and Confused, (not to be confused with his twin brother, Jeremy, the Party of Five and Seventh Heaven actor who was in the news last year for allegedly being kidnapping while changing a flat tire and forced to smoke crack at gunpoint,) finalized his divorce from wife, Charlie Spradling, last Thursday, according to E! Online.

E! Online reports that London and Spradling, after being separated for a number of years, filed for divorce in February 2010. In November 2010, before his divorce was finalized, London proposed to his girlfriend, Canadian born actress Sofia Karsten. Karsten said yes, and the couple plans to wed in July.

If London was planning on popping the question last November, why did he wait until now to finalize his divorce? Although I can only speculate, the logical answer is that there were issues raised in the divorce that simply weren't resolved until now. But what if London had wanted to get married, and not just engaged, before all of the issues in his divorce were resolved? Could he have done so?

Because London's divorce was filed in February, the earliest he could have gotten divorced was six months from then. This is because in California, there is a minimum six month "waiting period" before you can get a divorce. The six months runs from the date of service of a copy of summons and petition or the date of appearance of the respondent, whichever occurs first. Family Code Section 2339.

Assuming the 6 month waiting period has expired, it is possible for party to terminate their marital status (thus freeing them to remarry) even though all of the issues in the divorce have not been resolved. Family Code Section 2337 gives the court the ability to "sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues." The statute does however set forth a number of conditions that the court may impose upon a party on granting a severance of the issue of the dissolution of the status of the marriage. Generally, these conditions are designed to protect the other party from a number of potentially adverse consequences of the early termination of marital status.