Recently in Post-Divorce Issues Category

Agreements Regarding Payment of College Expenses in Divorce Judgments

July 9, 2014

college-expenses.jpgIn a divorce where the parties are fortunate enough to have the funds to pay for their children's college expenses, paying for college can be a major issue of discussion throughout the case. One parent may even give in on other issues to secure an agreement from the other side to pay for tuition for college for the parties' children. However, San Diego family law attorneys have struggled with the enforceability of provisions in Divorce Judgments reached by agreement of the parties. In a recent California Court of Appeal case, the Court clarified the limits of agreements for one or both parties to pay for college expenses.

In Drescher v. Gross, the parties entered into a Marital Settlement Agreement ("MSA") in which they agreed to equally share their three children's future college expenses. The college provision contained limitations on what schools the parties would pay for and which expenses were covered by the agreement. At the time the parties executed the MSA they were both employed as attorneys and earning six-figure incomes. Ten years later, the parties both requested modification of various support provisions, including the college expenses provision. At the time of the post-judgment requests, Husband earned more than $400,000 per year and Wife had become permanently disabled and was unable to work.

college-expenses-dollars.jpgAt the trial court level, the judge enforced the college expense provision of the parties' agreement and agreed with Husband that the parties should share equally the college expenses regardless of their current respective incomes. The trial court determined that it did not have jurisdiction to modify a contractual obligation entered into freely by both parties. On appeal, the Court of Appeal disagreed. The Court of Appeal granted Wife's request to modify the college expense provision based on a material change in the parties' financial circumstances. The Court of Appeal analogized the college expense provision to general support provisions which are modifiable unless the parties state otherwise.

Based on the outcome of this recent case, moving forward in divorce cases, the parties' MSA must specifically state that a college expenses provision is non-modifiable if they intend to restrict the court's ability to modify such a provision. Although family law attorneys dispute the wisdom of this decision, everyone can agree that clarity is always a plus when it comes to drafting and enforcing agreements in the family law arena.

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Should I Stay Friends with my Ex's Family After Divorce?

July 8, 2014

staying-friends-couple.jpgEnding a marriage, doesn't necessarily mean that you have to cut all ties with your ex spouse's family. Or does it? When your spouse brought you into that family, they were expected to welcome you with open arms and treat you like part of the family. Then when you actually got married, you not only gained a husband/wife but also a whole new family. So now that you are no longer the husband/wife of your ex-spouse, does this mean that you can no longer have a relationship with his family too?

When considering whether or not to stay close with your ex's family post-divorce, it's important to first think about the underlying cause of your divorce. Sure your divorce papers might have said the cause was "irreconcilable differences". But what was the root of those "irreconcilable differences?" Was it bad behavior, such as abuse, addiction or infidelity on your ex's behalf? If so, perhaps staying close with your ex's family might cause you to re-live the pain that you went through with your ex-spouse. On the other hand, your ex-spouse's family might be more willing to offer you the support that you need and that you didn't receive from your spouse. It's important to keep in mind though that your ex's family will inevitable stay loyal to your ex so you need to be sure to know where your boundaries are and exercise caution.

Another consideration is what message it will send to your children if you stay close friends with your ex's family. In many cases, this will be helpful for your children because your continued relations with your kids' extended family will help ensure that they don't suffer more loss of relationships as a result of your divorce. If the kids see that you are staying friends with your ex's family then the whole divorce might appear to be a bit less dysfunctional for them. And maintaining a pleasant family environment for your children is likely to help them through this transition in their life.

staying-friends.jpgLastly, before rushing to hang out with your ex sister-in-law on a daily basis or having your ex mother-in-law over for dinner every night, think about how your continued relationship will affect your ability to rebuild your life and move on from your ex. Can you really begin to focus on yourself if you haven't given yourself the opportunity to let go of the past? Perhaps maintaining such close ties with your ex's family will prevent you from accepting that the marriage is really over. On the other hand, maybe your ex-family is all that you really have and their support and friendship will help you get through this difficult transition in your life.

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10 Factors Family Courts Use to Determine if a Parent is Unfit

May 1, 2014

unfit-parent-video-game.pngDuring a divorce, parents often disagree about whether a certain parenting tactic is appropriate for their children. Divorce can also create a sense of mistrust between former spouses that can affect their willingness to trust the other parent regarding his or her parenting strategy. At the request of the parties (or order of the Court) a child custody evaluation may be performed. Child custody evaluations are meant to determine if granting one or both parents' custody is in the best interest of the child or if the child is at risk in any way. The professional evaluator will consider the following ten factors in making such a determination.

1. The parent's ability to make age-appropriate parenting decisions
When addressing this factor, the evaluator may investigate the movie ratings young children are permitted to watch. Do the children have boundaries restricting them from watching R-rated movies? If the parties' child is a teenager, do the parents enforce a curfew? If so, is the curfew appropriate for the teen's age?

2. Evidence of the parent's understanding of and response to the child's needs
The evaluator will attempt to determine the parent's involvement in the child's life. Does the parent pay close attention to the child's needs? Does the child freely communicate with the parent? If so, does the parent respond in an attentive manner in a way the child can understand?

unfit-parent-guardian.jpg3. The parent's historical involvement in the child's life
The evaluator will be especially interested if the parent has been actively involved in the child's life prior to the divorce. Parents learn early in a divorce case that time the children spend with the other parent can come with a steep price tag in the form of child support. Therefore, the evaluator will consider which parent has been the primary caretaker for the children throughout marriage.

4. How the parent handles custody conflicts with the other parent
Conflict between divorcing parents can have a great impact on their children. Therefore, the evaluator will consider the parent's history of cooperating with the other parent to reach conflict resolution. Has either parent demonstrated a willingness to sacrifice their interests for the best interest of the child?

5. Perpetration of child abuse
The custody evaluator will investigate current and past child abuse perpetrated against the child at issue and any other children. This is an important consideration in any child custody case. If you suspect child abuse is ongoing it is imperative to contact the proper authorities to ensure the welfare of the child.

6. History of domestic violence
Regardless of whether abuse is perpetrated against the child, the evaluator will thoroughly scrutinize any claims of domestic violence. Specifically, the court will be interested to know whether the child has witnessed any of the abuse. If any temporary and/or permanent restraining orders have been granted between the parties, it is important to bring these to the attention of the custody evaluator. In addition, the evaluator may want to see any police reports filed which reference alleged domestic violence in the case.

7. Substance abuse issues
Any abuse of illegal or prescription drugs and/or alcohol will have a detrimental effect on a parent's relationship with his or her child. Further, drug and/or alcohol abuse by a parent could present significant danger for a child. For instance, a parent with an alcohol addiction may or may not be able to resist alcohol while the children are in his or her care. If a parent does become incapacitated while caring for the children, his or her judgment may be significantly impaired creating an unsafe environment for children (especially young children).

8. Psychiatric illness
If psychiatric illness is an issue in the case, the evaluator will want to determine if the particular illness at issue poses a risk to the health, wellbeing or welfare of the child. As long as the children are safe and well cared for under the supervision of a parent, psychiatric illness should not be bar to custody rights.

9. Unusual social behaviors
Risky or unusual social behaviors could negatively impact the child and will be considered by a custody evaluator.

unfit-parents-united.jpg10. The child's attitude toward both parents
The age of the child will greatly affect the weight given to his or her attitude toward both parents. For instance, at the age of fourteen, the Court will give consideration to a child's desires regarding how much time he or she would like to spend with each parent. For younger children, the evaluator will want to analyze the child's feeling toward his or her parents and whether the child is comfortable with both parents.

In his or her effort to gather information regarding a case, the custody evaluator may review the court file, the child's health records, observe the child's interactions with his or her parents, and make collateral contacts with the child's teachers, therapists or other involved adults.

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How Will Divorce Affect My Social Security?

March 3, 2014

Divorce can have a devastating effect on many aspects of the parties' lives. In some cases, the parties may not even realize the full effect of the divorce for years to come. For example, in the heat of litigation many spouses may not consider how divorce will impact their social security benefits. In order to get specific information regarding your case, it is important to consult with a divorce attorney who is a financial specialist. However, below are a few general principles to consider.


social-security-and-divorce.jpgThe first factor to consider in any social security analysis in the context of divorce is the length of the marriage. Neither spouse will be entitled to the other's social security benefits unless the marriage lasted 10 years or more. A marriage which lasts 10 years or more is typically considered a "long-term marriage". For the purposes of spousal support, if a marriage lasts less than 10 years, the length of a spouse's spousal support obligation is generally limited to half the length of the marriage. In a marriage of long duration, the term of spousal support will likely not be limited to half the length of the marriage. Therefore, the length of the marriage will be a significant issue in the context of social security and the divorce in general.

If you are looking to collect social security benefits based on your former spouse's earning record, the next factor that your divorce attorney will ask you to consider is your marital status. You cannot collect social security benefits based on your former spouse's earning record if you are currently married. However, if you remarried following your divorce and your second marriage ended in death, divorce or annulment, you may still be able to collect social security benefits as a result of your first marriage. Further, the benefit you would collect based on your former spouse's earning record must be higher than what you are eligible to collect based on your own earning record.


In order to collect social security benefits as described above, you must meet age requirements and your spouse must meet eligibility requirements. The minimum age to collect social security benefits is age 62. In addition, your former spouse must be eligible to collect or currently receiving social security benefits. In other words, you cannot collect benefits based on your former spouse's income if he or she is not eligible to collect. If your former spouse is eligible to collect his or her social security benefits but has elected not to receive them yet, you must have been divorced for a minimum of two years before you can collect based on your former spouse's earnings. If you are considering a divorce, the effect it may have on your social security benefits is another factor to keep in mind when planning for your retirement years.

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Who is on the Hook to Pay For Kids' College After a Divorce?

December 10, 2013

Paying for college after divorceThe cost for a college education can be astronomically high these days. Of course, most parents are still eager for their children to get a college education. However, a major concern for divorcing parents with children is not only how they will pay for college once their child graduates high school, but who exactly will pay for all of the expenses that come with a college education. For some divorcing couples, this might not be an issue if money has already been earmarked for college. For other divorcing couples, the thought of their child being accepted to college can cause bittersweet anxiety.

Generally in California, child support payments will cease when the child reaches the age of 18. Beyond that, divorce attorneys will advise that there is typically no legal obligation for either parent to pay for the child's college education, unless so ordered by the courts. So what happens, for instance, when one of the divorcing parties plans to remarry and ends up having other children who have their own tuition needs? Will he/she even chip in when it comes time to pay for college?

The best way to ease anxiety and secure payment for college expenses from your soon-to-be ex-spouse is to include such an obligation in your Marital Settlement Agreement (MSA) that addresses college support in addition to any child support agreements. An MSA is an agreement between divorcing spouses that addresses issues such as custody, support, and property division. A provision in a Martial Settlement Agreement regarding payment of college expenses will typically include details such as what percentage of college expenses each parent will be responsible for, restrictions on which types of college the provision will apply to (if any), and exactly which expenses will be covered (this may include tuition, room and board, books, extracurricular activities, etc.).

So while there is no legal obligation for one or both of the divorcing parents to pay for their kids' college, absent a court order, it's advisable that the parties not overlook the possibility of including a provision regarding college expenses in their Marital Settlement Agreement. This might serve to save a considerable amount of financial worries down the road and encourage divorcing parents to start setting aside funds for their portion of the future college payments.

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Am I Too Old to File for Divorce? A Look at Divorce After Age 50

December 9, 2013

divorce over age 50Many divorcing couples wonder if there is a point in their life at which time they may be considered "too old" to divorce. Of course, a person may file for divorce in California no matter what their age is. But, still some may wonder if, after a certain age, it is even worth it. Nonetheless, as we have previously blogged, divorce among the over-50 crowd appears to be on the rise. New York Times even reports that "more Americans 50 and older are divorced than widowed, and the numbers are growing as baby boomers live longer".

One such statistic in the over-50 crowd is well known actor, Richard Gere, and his model-actress wife, Carey Lowell, who are reportedly calling it quits after 11 years of marriage. Gere is at the ripe age of 64, while Lowell is 52 years old.

So why are older couples like Gere and Lowell headed for divorce? LA Times reports that the reason for the split between Gere and Lowell is that Gere allegedly enjoys privacy and socializing. For other couples over 50, the possibility of divorce may be more tempting as there is a greater social acceptance of divorce these days. Another reason is that people are living longer and thus still view themselves to be able to get out and have a life after divorce. This is especially the case once the children are grown up and out of the house, at which time it may actually seem easier to get out of a marriage that has grown stale.

The increased economic autonomy of women has also given women over 50 years old a greater likelihood of seeking divorce, even at a later age in life, because many women feel that they have the ability to support themselves and live a stable life after divorce, despite their older age. The increased work experience of women and greater sense of their own responsibilities is often incentive to get out of a marriage rather than to just wait it out.

Although there are many reasons for the rising divorce rate among people over 50 years old, there are also some pretty significant reasons why divorce is not a good idea for the older crowd. One big reason is that older folks have a greater likelihood of being in poor health; an emotionally draining divorce can deteriorate a person's health even more. Those considering divorce over 50 also must consider how a divorce will affect retirement plans. Moreover, divorce between older couples with children may result in placing an even heavier burden on the children to help support each parent financially and emotionally.

If you are over the age of 50 and considering divorce or separation, it is important to seek the advice and assistance of an experienced divorce attorney.

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The Second Wives Club Calls for Spousal Support Reform

June 19, 2013

Woman on beach - San DiegoSpousal support is an aspect of family law that divorce attorneys frequently answer questions about. In states such as Massachusetts and Florida, second wives are lobbying for spousal support legislation reform regarding "permanent" spousal support (commonly referred to as "alimony"). To clarify, in California, "permanent" spousal support is not a guarantee of a lifetime of support. However, it is only a spousal support award made at the conclusion of a divorce case. In contrast, "temporary" (or pendente lite) support is a spousal support award made during the pendency of the proceedings.

Because of the extremely broad and generous spousal support statutes, many second wives are reaching into their own pockets to contribute to the support of their husband's first wife. The second wives argue that they too have been sentenced to a lifetime of spousal support payments which hinder their ability to plan for retirement, prevent them from assisting their children and grandchildren financially, and generally reduce their overall standard of living.

In many states, the family code and court rulings permit the Court to consider the income or assets of a second spouse where the income of such spouse contributes to the support of the household, giving the paying spouse more of his own income with which to satisfy spousal support obligations. Under California Family Code § 4323, family courts are prohibited from considering the income of the supporting spouse's subsequent spouse when determining or modifying spousal support. Despite this blanket prohibition, cases which held that a new spouse's income may be considered to the extent that the income reduces the paying spouse's living expenses (and thus increased the ability to pay) may still be viable. It seems even California has a giant loophole which grants Courts discretion to consider income of new spouses when considering a divorce attorney's request for spousal support determinations or modifications for their client.

With second wives demanding reform, legislators are in a difficult position as they will be balancing the interest of the first wife and her right to support against public policies such as a supported spouse's obligation to become self supporting and the supporting spouse's right to move forward after divorce. The Second Wives Club has a few suggestions which it feels fairly addresses the rights of all parties.

Family Law Reform - US CapitalThe reformers are pushing for durational spousal support awards which are sufficient to permit the supported spouse to gain the education, training, or experience necessary to become self-supporting. The duration of the spousal support will be contingent on the length of the marriage, the age of the supported spouse and the supported spouse's ability to become employed. Upon the date set for payments to end, the supporting spouse's obligation to pay spousal support will end regardless of whether supported spouse has become gainfully employed. Although the Second Wives Club is lobbying strong in various states, divorce attorneys feel that California will likely not experience significant reform in this area any time soon.

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Enforceability of Unfair Terms in Marital Settlement Agreements

June 12, 2013

San Diego Divorce CourtIn January 2013, divorce attorneys were abuzz as our local Court of Appeal took a strong stance with regard to enforceability of Marital Settlement Agreements ("MSA's"). In San Diego family law cases, the parties to a divorce have the ability to enter into agreements regarding any area of their case. Settling issues such as child custody/visitation, support, and property division is advantageous to the parties because they have the opportunity to craft unique provisions which meet their individual needs. San Diego family courts are limited by the California Family Code and local/state guidelines in what types of orders they can make. However, when parties and/or their divorce attorneys draft their own settlement terms it is imperative to consider all possible future scenarios before signing a Marital Settlement Agreement.

In the unfortunate case of Marriage of Hibbard, the parties to the divorce agreed that spousal support "shall not be reduced to an amount lower than two thousand dollars per month" and would only terminate upon Wife's death or remarriage or the death of Husband. In this case, the parties were married for thirty years from 1971 to 2001. At the time of separation, Husband and Wife were both lawyers. Husband earned $84,000 per year and Wife earned $24,000 per year. In 2011, Husband's post traumatic stress disorder ("PTSD") fully manifested and hindered his ability to work. Husband's PSTD symptoms began in 1970 after he served in combat in Vietnam.

In 2012, unable to work more than a few hours a day and drowning in debt, Husband filed a motion in family court to modify spousal support. After shutting down his law practice, Husband only expected to receive $4,040 per month in income from disability and Social Security. Wife opposed Husband's request to modify support stating she was only receiving $1,738 per month in teacher's retirement and Social Security. Wife also stated she was similarly unable to work. The trial court held that it was unable to modify spousal support outside of the terms of the marital settlement agreement and therefore refused to reduce support lower than $2,000 per month. The Court of Appeal upheld the trial court's decision.

Marriage of Hibbard is a great example of the importance of carefully considering and drafting Marital Settlement Agreement provisions. Before singing their Marital Settlement Agreement, the Hibbards could have easily imagined a situation where Husband would be financially unable to pay Wife $2,000 per month in spousal support. However, they did not provide any exceptions to the blanket prohibition on a spousal support award lower than $2,000 per month. The Court upheld their agreement despite its unfair applicability to the parties' current circumstances. Marital Settlement Agreements are interpreted under general contract laws which hold that contracting parties have the right to enter into any agreement of their choosing. Divorce attorneys will advise their clients that the role of the court is not to re-write agreements but rather to enforce them as written.

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Ex-spouse's Remarriage Usually Doesn't Impact Child Support Obligation

May 23, 2013

support modification after remarriageIs it possible to go after my ex-husband's new wife's income in order to increase his child support obligation? This question probably comes across a divorcée's mind more often than not. Unfortunately, if your ex-husband remarries, you will most likely be unsuccessful in pursuing his new wife's income as family law courts have proven to be quite reluctant to include a new spouse's income for purposes of calculating child support. The court's logic behind this is that the payment of child support should be the parent's obligation rather than that of the new spouse.


Prior to 1994, courts had authority and discretion to consider a subsequent spouse's income when setting a child support award. However, as San Diego divorce attorneys know, when an ex-spouse remarries, child support adjustments are now governed by Family Code Section 4057.5. This statute prohibits courts from considering a subsequent spouse's income unless the exclusion of the subsequent spouse's income would cause the child to suffer extreme and severe hardship. In other words, if you are the parent seeking to modify the child support order after your ex-husband has remarried, then you should attempt to prove that the child would suffer an extreme and severe hardship if the earnings of your ex-husband's new wife were excluded in considering an award for child support. Thus, courts look exclusively to the needs of the child.

remarriage effecting support modificationPursuant to Family Code Section 4057.5 (b), an extraordinary situation that might constitute an "extreme and severe hardship" is where the ex-spouse voluntarily or intentionally quits working or intentionally remains unemployed or underemployed and relies on his subsequent spouse's income. Such a situation would warrant consideration of all of the community property of ex-husband and his subsequent spouse in modifying the ex-husband's child support obligation.

Read more about child and spousal support

As an aside, seeking to modify child support by attempting to include the subsequent spouse's income, might in fact backfire and actually reduce the child support award instead. For instance, if your ex-husband remarries and his new wife makes a considerable amount of money, then he will likely be in a higher tax bracket (if married filing jointly), thereby reducing the amount of his disposable income. In turn, this will then likely reduce the amount of child support that your ex-husband has to pay. However, it is likely that such a decrease would only be a minimal amount each month, depending on how much his subsequent spouse makes. Nevertheless, the subsequent spouse's income certainly won't increase your husband's child support obligation unless the "extreme and severe hardship" exception is met.

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Divorce in California - Will Dodger Divorce Settlement be Tossed Aside?

May 8, 2013

Dodger divorce reopenedThe U.S. peered into the private lives of Jamie and Frank McCourt, owners of the Dodgers, as they publicly litigated their contentious divorce in California. The former couple's dispute over ownership of the California baseball team resulted in what is rumored to be one of the world's most expensive divorces. After substantial attorney fees and costs were racked up throughout the proceeding, the McCourt's reached a divorce settlement in October 2011.

In consideration for relinquishing any rights to the Dodgers, Ms. McCourt received $131 million tax-free in addition to several expensive pieces of real property. Despite receiving what seems like an enormous amount of money, Ms. McCourt and her divorce attorney now want the settlement thrown out as the Dodgers were later sold for $2 billion. Assuming the Dodgers were a community property asset, Ms. McCourt settled for $770 million less than she would have received if the proceeds of the sale were divided equally.

Read more about property division and divorce in California

The basis of Ms. McCourt's request to set aside the Marital Settlement Agreement is fraud. She argues that her former husband deliberately misled her regarding the true value of the Dodgers. At a recent court hearing, Mr. McCourt's divorce lawyers argued that Ms. McCourt is not entitled to set aside the settlement because she willingly agreed its terms and her recent claims are baseless. If the judge agrees with Ms. McCourt and sets aside the judgment, the parties and their attorneys will re-litigate all issues related to the Dodgers. The court will have to determine, under California family law provisions, whether the Dodgers were community property or the separate property of Mr. McCourt. Prior to settlement, the court determined that the parties' post-marital agreement giving Mr. McCourt full ownership of the Dodgers was invalid.

San Diego Family Law Declaration of DisclosureAs divorce attorneys will advise their clients, under the California Family Code, the commission of perjury on the Final Declaration of Disclosure is a legal basis to set aside a judgment. At the end of each divorce case in San Diego, the parties are required to complete a Final Declaration of Disclosure, unless a proper waiver is effectuated. The Final Declaration of Disclosure is a series of forms, which are signed under the penalty of perjury, on which the parties list the value of all assets.

Learn more about fiduciary duty in divorce

Ms. McCourt's attorney argues that she relied on the most recent figures presented to her in accepting the settlement. If Mr. McCourt in fact lied on those forms, Ms. McCourt may be able to set aside their judgment subject to statute of limitation requirements. The court has the ability to limit the set aside only to those portions of the agreement which were materially affected by the nondisclosure. In this case, only the portions related to the Dodgers would be addressed.

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