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Divorce Myths and Urban Legends Debunked

November 25, 2014

divorce-myths.jpgAs a divorce attorney, most of my clients come to see me for the first time with some misconceptions regarding California family law and/or divorce procedures. When clients mention divorce to family and friends their loved ones often have some input and suggestions based on personal experience or "horror stories" they have heard. While they are well-intentioned, family and friends may not be completely on point with their legal advice. Below is a list of common divorce myths and urban legends that I often spend time debunking with my clients.

"Title of Property Controls": Some clients come into my office assured that if a bank account, house, or retirement account is in his or her name it is "their" asset and will not be divided with his or her spouse pursuant to the divorce. Wrong. While title of property can be relevant to determining whether the property is community (and will be divided equally by a court) or separate (and will be confirmed to the title holder), title is not dispositive to the characterization of property. As a general rule, all property acquired during marriage (except by gift, inheritance, or devise) is community property and subject to equal division. This means that even if title to a vehicle is held by one spouse, that vehicle will be subject to equalization if it was acquired during marriage with community funds.

divorce-myths-custody.jpg"The Mom Will Get Custody": As we have previously blogged, there are many misconceptions about the role of gender in family law, especially regarding custody and visitation. Pursuant to the California Family Code, it is in the best interest of the child(ren) to have frequent and continuous contact with both parents. Legally, there is no distinction between fathers and mothers as the preferable parents.

"Spousal Support and the 10 Year Mark": The myths and urban legends regarding spousal support (commonly referred to as "alimony") in California are plentiful and most of them relate to the ten (10) year mark of a marriage. Although the length of marriage is a consideration for the court when it determines the length of time a paying spouse is obligated to pay spousal support, there is no minimum length of marriage required to receive spousal support. In addition, the length of the marriage has little to no bearing on the amount of support ordered.

"I Do/Don't Have to Maintain My Spouse's Health Insurance": On the issue of health insurance clients tend to believe what they want to hear. The paying spouse believes that when he/she files for divorce he/she can cancel the health insurance of his/her spouse. In contrast, the supported spouse who is often carried on his/her spouse's health insurance policy believes his/her spouse should maintain this policy indefinitely. Upon filing for divorce/service of the Summons (depending on whether you are the Petitioner or Respondent), Standard Family Law Restraining Orders take effect which prohibit cancelation of a spouse's health insurance policy. In addition, upon divorce, a party cannot remain on his/her former spouse's health insurance policy absent COBRA coverage.

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Heidi Klum and Seal Finalize Divorce with the Help of a Post-Nup

November 4, 2014

heidi-klum-seal-divorce.jpgHeidi Klum and Seal are officially divorced and back on the market. TMZ reports that their split was actually quite amicable and they had no issues with dividing property and figuring out spousal support thanks to a post-nuptial agreement that they signed after marriage. Although they did not have a pre-nup, their post-nup kept most of their earnings separate and their divorce process was streamlined because they didn't fight over money. It is reported that neither party will get spousal support from the other and they have even worked out a custody agreement for their four children.

If couples, like Klum and Seal, marry without a prenuptial agreement (aka "pre-nup") there is still an opportunity to enter into a legally binding agreement regarding property division and support in the event of a divorce. They can do so after they are already married in what is known as a post-nuptial agreement (aka "post-nup"). This is common when couples don't like the stigma attached with a pre-nup, have a very short engagement and don't necessarily have time to draft a pre-nup, have children from a previous marriage or perhaps their circumstances have changed such that they wish they would have taken the step to sign a pre-nup. Really the only difference between a pre-nup and a post-nup is that a post-nup is signed after marriage, rather than before. Other than that, it is still a legally binding agreement should the parties decide to get divorced later on.

A post-nup must be in writing and signed by both of the parties. While the parties are free to negotiate the terms of their post-nup, they should be fully informed about all of their assets and debts and they should be represented by independent counsel. Drafting a post-nuptial agreement is an opportunity for married couples to analyze their assets and debts and then set terms that are acceptable to both parties. It will allow the parties to gain a common understanding of how to handle contentious financial issues.

postnup-couple.jpgA post-nup might include designations regarding which assets and debts are to be considered separate property, the amount of spousal support to paid to one party, the right to manage or dispose of property, the role of a spouse in a business, and division of community property in the event of a divorce or separation. A post-nup might also address how to divide money in a blended family where one or both spouses have children from a previous marriage. However, a post-nuptial agreement cannot address child custody or child support. If the parties' marriage does eventually dissolve, the post-nup will essentially serve as the framework for drafting a marital settlement agreement.

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Should I Use an Expert to help with my Divorce?

October 28, 2014

divorce-expert.jpgIt is common in contested divorce cases for one or both parties to hire a family law attorney. Divorce attorneys are experts in the law; however, they are not all necessarily experts in specialized areas that some divorces involve. Throughout San Diego County there are a variety of experts who work with family law attorneys to help clients in the divorce process. Depending on the issues in the particular case, a psychological, vocational, medical, or financial expert may help the parties overcome impasse and move the case forward. However, although experts can be invaluable assets in a divorce, hiring an expert can be expensive and may lead to a battle of experts in the courtroom.

Financial Experts & Vocational Experts

Disputes over child support and spousal support can drag a divorce out for months or even years. When one spouse is self-employed, the parties often take vastly different positions on the paying spouse's income. In order to save time and significant attorney fees, some attorneys recommend hiring a neutral expert to conduct an income analysis. The financial expert will examine all materials provided by both parties and has the ability to request additional documents needed to conduct the analysis. The expert will then provide both sides with a report outlining his or her opinion on the self-employed spouse's income available for support.

If one or both parties disagree with the analysis for some reason, he or she may hire an independent expert to conduct a similar analysis or review the work of the neutral. However, if both parties accept the analysis, they can reach an agreement on support quickly and move forward in the case. In addition to performing an income analysis, a financial expert may also be hired to value a business or analyze various accountings.

Another common reason for a support dispute is a disagreement over the level of income one or both spouses should be earning. If one or both parties are unemployed or underemployed the parties can hire a vocational expert to conduct an evaluation of the ability and opportunity for the party to become employed. Pursuant to the findings of the vocational expert, the parties can agree to impute income to the unemployed or underemployed spouse.

Psychological Experts

Just as support disputes prolong the divorce process, custody and visitation battles can do the same. Sometimes it is helpful for the parties to hire an expert to evaluate the custody and visitation issues and make a recommendation to the parties. In addition, psychological experts also may be hired to evaluate one or both parent's ability to parent the children. Therapists can be used in family law cases to conduct reunification therapy in an attempt to repair the relationship between one party and his or her children.

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Divorce for Men

October 20, 2014

divorce-for-men-001.jpgOne of the popular marketing strategies for family law firms throughout San Diego County is promoting "divorce for men". From billboards to newspaper ads and firm websites, many law firms advertise a focus on "husbands and fathers" and protecting their rights. "Men's rights" is an issue that many litigants associate with divorces, custody battles and domestic violence cases. However, is there really a different skill level involved when representing husbands and fathers or is this advertisement nothing more than a way to attract male clients?

It is a common belief that men walk into divorce court, a custody battle or a domestic violence restraining order hearing with the deck stacked against them. There is an assumption that men automatically will have to pay an exorbitant amount of money in support and/or to equalize property division. In addition, the general public assumes that the court tends to give women custody of minor children. With regard to domestic violence hearings, men assume that women are given the benefit of doubt and that restraining orders are granted more often than not. In reality, although a particular judge may have a bias against one gender or the other, the law makes it clear that men and women should be treated equally in divorce proceedings, custody hearings, or in domestic violence cases.

In San Diego divorces, support comes down to clear cut numbers. If a woman is the high income earner, she is legally obligated to pay child and/or spousal support if the circumstances permit. In addition, the same is true if a man is the high income earner. With regard to property division, under the law, all community property should be divided equally regardless of the sex of the parties. There is no differentiation between men and women with regard to support or property division in California divorce cases. Consideration of gender in making these determinations is an appealable offense.

Many of the stereotypes regarding favoritism towards women in custody and visitation cases stem from actual case law and statutes. In the past, it was permissible for courts to give preference to women in custody disputes. Today, it is improper for courts to make custody determinations on the basis of gender. Men and women are equal under the law with respect to the desirability of their role as parents. Often, the Court encourages children to spend time with both parents and to mend any broken relationships.

An overwhelming majority of domestic violence restraining orders are filed by women against men. However, that does not mean that a restraining order filed by a woman against a man is automatically granted and that men are disadvantaged. Statistically, women are more frequently the victims of domestic violence and men who are victims are less likely to report it than women. As a factual matter, most restraining orders are granted on a temporary basis until the matter is heard by the court and the accused is given the opportunity to present a defense. In San Diego, family court judges do not take the deprivation of a person's liberty lightly and require evidence of domestic violence before they will grant a permanent restraining order.
Considering that men and women are on a level playing field under the law, it seems that catering towards "men's rights" might be more of an advertising technique rather than a true skill set.

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The Neely's File for Divorce

October 13, 2014

Neelys-divorce-001.jpgStars of the hit Food Network show Down Home with the Neelys, Gina and Pat Neely are getting divorced after twenty (20) years of marriage. Gina and Pat were high school sweethearts and have built a family brand consisting of products and restaurants across the United States. The Neely's show Down Home with the Neelys is a cooking demonstration show that features the fun banter between husband and wife. Gina and Pat's careers are so carefully intertwined with their relationship as a married couple that they will each have to pursue a new path after separation. In addition, the Neelys will have to divide up the empire they established throughout their twenty (20) years of marriage.

According to media reports covering the Neely divorce, the Neely's were on the verge of separation when they were discovered by the Food Network and offered their own show in 2009. The Neelys were surprised when the show became a fast hit and decided to ride the wave out and garner fame. Pat Neely believes that his former wife will not sustain the same level of success after their separation because he was the only trained chef and because most of the recipes the couple featured are owned by his family. Gina plans to branch out and develop her own brand of Green Giant products.

Although the Neelys are getting a divorce, they do not plan to sell their popular barbeque restaurants. If the parties to a divorce reach an agreement regarding asset division outside of the courtroom, they have the ability to craft creative terms that fits the best interests of both parties. In the Neely divorce, the parties will be able to create a marital settlement agreement that allows them to keep their restaurants in tact while dividing responsibilities and income accordingly. The lawyers will have the difficult task of drafting appropriate enforceable provisions that allow the parties to continue to jointly own their restaurants.

When divorcing parties want to work towards an agreement whereby they continue to jointly own an asset after separation, an experienced family law attorney will carefully discuss the pros and cons of that arrangement with his or her client. While it will seem appealing for the parties to keep their assets in tact and still reap the profits, it can become complicated when the relationship changes between the parties. Depending on the level of animosity and the level of involvement necessary for the parties jointly own an asset, it may or may not be beneficial for a divorced couple to jointly retain property. One possible solution to the issues that arise when divorced parties who wish to jointly own an asset is to create an arrangement where the parties have the least amount of interaction possible. Overall these agreements can be successful if they are drafted properly and each party clearly articulates his or her expectations.

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Ways to Value Your Home During a Divorce Buyout

September 24, 2014

house-valuation-1.jpgThe family residence is sometimes the parties' biggest asset acquired during marriage. It is also typically an asset that one or both of the parties feel very attached to. When going through a divorce, the parties will have to decide whether to sell the house, continue to co-own it or have one spouse keep the house and "buyout" the other spouse's interest in the house. A "buyout" is typically an attractive option when there are kids involved and the parent staying in the house wants to continue to provide continuity and stability for the kids. It is also an appealing option if the market conditions don't favor the seller at the time. To "buyout" the other spouse means that the house will be assigned a certain value and the spouse not keeping the house will instead receive a percentage of the that value less the debt. The buying spouse either pays money to the selling spouse or gives up other marital property in the amount of the selling spouse's share. Thus, the fair market value of the home makes a big difference on how much the "buyout" will cost the selling spouse.

There are a few different ways to value your marital residence. It is important for the valuation to be as fair and accurate as possible. Typically parties either get the residence appraised, have a realtor do a comparative market analysis or the parties do individual research based on online websites.

If the parties choose to value the home based on individual research, they will typically use an online website such as Zillow.com or Eappraisal.com, which gives immediate estimates of the home's value. The parties can also ask a real estate agent to perform a Comparative Market Analysis, for little or no cost, which provides information about recent sales prices of comparable houses in the neighborhood. Then you can you're your home's value on those comps.

However, not all houses are the same, and thus comps and online websites are not always the most accurate way to determine the fair market value of a house. Instead, the most accurate way to determine the fair market value of a house is to have an appraisal done by a neutral and licensed appraiser. Of course this method will cost the parties a small chuck of change. The parties can either agree on a joint appraiser and perhaps split the cost, or they can each pay to have their own appraisers do an appraisal and split the difference between the fair market value. The cost of an appraisal is usually worth it to make sure that you are using an accurate number to value your home and thus calculate the buyout amount.

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Questions to Ask Yourself Before Filing for Divorce

August 18, 2014

divorce-questions.jpgThinking about or talking about the possibility of divorce is very different than actually taking affirmative steps to file for divorce in Family Court. Moving forward with this step can take a significant amount of mental and emotional strength. If you're still in the thinking or talking stages of a potential divorce, ask yourself the following questions to help determine if you are ready to take the next step and file for divorce from your spouse.

1. Are you Facing a Hard or Soft Problem?
The need for a divorce may be more immediate if you are in a situation where you are facing a "hard problem" as marital therapists like to call it. "Hard problems" include situations in which you are facing abuse from your spouse or your spouse has an untreated addiction. If this is the case, you may want to act fast and stop just dwelling on the possibility of divorce. However, if you are facing a "soft problem" maybe you need more time to decide if you and your spouse can work on the problem or if a divorce is the preferable option. "Soft problems" include things such as feeling as if you've grown apart from your spouse, that you're unhappy in the relationship or that you aren't in love anymore.

2. Are You and Your Spouse Even Compatible?
What are your odds of succeeding as a married couple? Perhaps taking a "Rate Your Mate" quiz (http://www.divorcenet.com/interest/rate-mate-compatibility-divorce-test.htm) will help you determine if you're destined for doom, in which case you might as well just go ahead and prepare those divorce papers. The "Rate Your Mate" quiz tests areas such as common interests, money, mutual respect and personal safety, which are common issues that many couples face.

3. Should You Stay Together for the Kids?
There are two opposing schools of thought: 1) stay together because divorce is destructive to children; or 2) get a divorce because if the parents are happier the children will ultimately be happier. If you are contemplating divorce and you have children with your spouse then you should think about whether it's in your children's best interest if you stay with your spouse or split. Many couples prefer to wait until their children have turned 18 and left for college before they decide to get a divorce. But if your children are young, this might not be a realistic option for you. Also, if your marriage is filled with havoc and constant fighting then staying together for the kids might actually be hurting, rather than helping your kids.

4. Are You Ready to Part With Some of Your Stuff?
Your house, your cars, your furniture and furnishings...these are all things that were likely acquired during your marriage and will be subject to division during a divorce. Getting a divorce means parting with some or all of these "things" in order to divide assets with your spouse. For instance, in many divorces, where one party cannot afford to keep the home and "buy out" the spouse, the family home will need to be listed for sale. Even though you can likely negotiate with your spouse to keep certain items or assets, you will need to accept the reality of parting with some of your stuff. If this idea seems too traumatic for you then you should re-evaluate whether or not a divorce is the route that you want to take.

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Pamela Anderson Divorces Same Person for a Second Time!

July 21, 2014

Anderson-Salomon-split-again.jpgLooks like the second go around didn't work out for former Baywatch star, Pamela Anderson, and husband Rick Salomon. The couple married for the first time in 2007 and were together only a couple of months before getting an annulment. Then this past October Pamela revealed that she was seeing her ex-husband again. By January 2014 the couple was married again. However a mere six months later their married has fizzled yet again and they have filed for divorce based on "irreconcilable differences."

Anderson and Salomon aren't the first couple to marry each other twice and file for divorce twice. In fact, this situation isn't all too uncommon these days. However, one question that divorce attorneys are often asked is what is the length of marriage when couples divorce, remarry and then divorce again? Are the lengths of the two marriages added together? Or are each of the marriages treated completely separately for purposes of determining the length of marriage?

Determining the length of marriage is important in divorce cases because it is used to help calculate the length of a spousal support award and also to figure out what is community property (property acquired during the marriage) versus separate property (property acquired before marriage). Spousal support, in particular, gets a bit complicated when the parties decide that they want a second divorce from each other. The Court might add the length of the first marriage to the length of the second marriage for purposes of determining the "length of marriage". Or the Court might determine that just like cohabitation prior to marriage is not considered when calculating a couple's length of marriage, a party's previous marriage to the same person should not be included in the length of marriage calculation.

In the case of In re Marriage of Chapman, the parties married in 1960, divorce in 1981, reconciled and separated on and off for three years and then remarried in 1982. The second marriage ended after only 3 ½ months. (191 Cal.App.3d 1308). The trial court held that the length of marriage was only 3 ½ months and consequently ordered a brief period of spousal support. However, Wife appealed and the appellate court held that the parties' 1st marriage of 19 years could be considered by the trial court in determining spousal support. The court reasoned that it would be unjust to not consider the entire marital history of the parties because of the brevity of time between the end of the first marriage and commencement of the second marriage, the collective length of their martial relationships and the uninterrupted nature of Husband's legal responsibility to support Wife. The Court further reasoned that if only second marriages are taken into consideration then it would create an incentive for the spousal support payor to convince his/her ex-spouse to remarry and then quickly divorce him/her again.

Remarrying your ex-spouse for a second time doesn't always mean that the court will consider the combined length of both marriages. In the case of In re Marriage of Bukaty, for example, the parties were first married for 12 years, then remarried each other 27 years later for a period of only 19 months. (180 Cal.App.3d 143). The Court in that case determined that spousal support should be based on the length of second marriage only.

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How Do Digital Assets Get Divided in a Divorce?

June 3, 2014

digital-asset-world.jpgDuring a divorce, a judge, a mediator or the parties will make decisions regarding how to divide the marital property, like the residence, the vehicle, savings accounts, and stocks accounts. But what about the couple's digital assets, like their iTunes music library, MP3s, Kindle eBooks library, etc.? These assets aren't exactly tangible, yet they may still be considered martial property subject to division during a divorce.

Digital assets are comprised of intangible goods such as digital books, music and movies. These are most typically stored in iTunes accounts or other MP3 storage accounts and Kindle eBook accounts. Digital assets can even include digital storage, social media accounts and blogs. These digital assets raise the question of whether they are subject to division during a divorce and whether or not they can be valued.

Although there is not much law on this subject, when it comes to the division of digital assets, many states will divide the digital assets using an "equitable distribution" system to divide, allocate and value these assets. The "marital property" will be assigned a value and then it will be distributed equitably, or fairly, between the spouses. Such division does not always result in a 50/50 split, but rather it is what is considered a fair split.

digital-asset-division.jpgHowever, just like a car cannot be split in half, neither can many digital assets. Additionally, unlike the ownership of a car which can typically be transferred quite easily to the other spouse, transferring ownership of digital assets is not always feasible. In fact, some user agreements do not even allow for transferring ownership. A judge's ruling will not even supersede these user agreements. To resolve the issues that division of digital assets pose, the spouse who owns the iTunes and Kindle libraries may be awarded them, while the other spouse may be awarded a different asset in leui. Another option is for the spouse who is awarded the asset to "buy-out" the other spouse based on the value of the asset awarded to him/her.

Although the division of digital assets is a relatively new area of the law, as more digital products continue to develop, I suspect that divorce attorneys will see a lot more issues involving digital assets and thus a lot more law on the topic.

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To Settle or Litigate...That is the Question

June 2, 2014

litigate-win-win.jpgWhen going through a divorce, there are a lot of decisions that need to be made. Who will get the house? Who will the kids spend the holidays with? Who keeps the beloved family pet? These and many more questions will come up throughout the divorce process and will require either you and your spouse or the Judge to make a decision. One decision, however, that will be up to just you (and hopefully with the cooperation of your spouse) is whether to litigate or mediate some or all aspects of your divorce.

It's common to want to take everything to trial when there are a lot of fuming emotions between you and your spouse. Many spouses feel that if they litigate their case, it will act as a type of revenge against their spouse. However, before you shut your eyes to the option of mediation or otherwise settling outside of court, here are a few things you might want to consider:

Money, Money, Money! Can you really afford the expense of a trial? If you have sufficient funds in your back pocket to fight your case and you aren't in a hurry to get the divorce over with then ligation might be the avenue you want to take. However, keep in mind that it is very likely that the cost of going to trial will be greater than the amount of money you would lose by agreeing to your spouse's settlement offer. This doesn't necessarily mean that you need to agree to an unfair offer just to avoid trial on the issue. Such a decision really requires a cost-benefit analysis. If you are on the fence, your divorce attorney can walk you through the pros and cons of settling an issue outside of court or taking it to trial. It's important to look at the big picture and decide if a $1,000 issue is worth possibly spending $10,000 in court to fight over or not.

Can you handle the heat?! Can you and your family withstand the immense amount of stress that comes with a trial? Litigation can be not only financially draining but also emotionally draining. You aren't only putting an immense amount of stress on yourself, but also those who are standing by you throughout the process (your children, your family, your friends). However, some issues are simply worth the stress. For instance, if you are fighting for custody of your child, the stress of a trial is minor compared to the stress that you could potentially endure in the future if not awarded custody.

litigate-gavel.jpgRisk Taker or Risk Averse? How much are you willing to hand over control to a Judge? When going before a Judge there is no guarantee as to whether or not he/she will see things your way. So even if you think the Judge's decision is unfair, it will be final (unless there are grounds for appeal). If you are willing to take that risk then go for it. But if you are more risk averse you may want to consider the benefits of settling with your spouse outside of court.

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Is My Spouse's "Book of Business" an Asset Subject to Division?

April 26, 2014

dividing-household-divorce.jpgUntil just recently, there were not any California cases on point regarding whether a licensed professional's book of business (i.e. list of clients) is something of value that should be considered an asset subject to property division during a divorce proceeding. However, the Fourth Appellate District's recent decision in In re the Marriage of Mark and Rhonda Finby finally shed light on this issue.

In other jurisdictions, courts have held that licensed professionals' customer lists generally constitute divisible property during a divorce. In the New York case Moll v. Moll, for example, the Court held that clients serviced by a stockbroker constitute a marital asset because the thing of value is the stockbroker's personal/professional goodwill. Also in the Florida case Reiss v. Reiss, the Court held that clients that were brought to a new securities firm by a stockbroker constitute a marital asset subject to division.

Similar to the holdings in other jurisdictions described above, in the recently published case In re Marriage of Finby the Fourth District California Appellate Court reversed the trial Court's decision and found that a book of business that a financial advisor developed during the marriage constitutes an asset that has value and is thus subject to division during a divorce proceeding.

address-book.jpgAs background, in In re Marriage of Finby, the Wife worked as a financial advisor and developed a list of clients (who owned over $192 million in investments) during marriage that she referred to as her "book of business". Wife left her previous employer and went to work for Wells Fargo, who paid her over $2.8 million as a transitional bonus. Although Wife argued that her book of business did not have value because she could not sell it, the Appellate Court found that it was a valuable asset, reasoning that her book of business was essentially consideration for Wife's transitional bonus. In other words, Wife was granted the option to earn a significant amount of money based on her work during the marriage of acquiring a book of business. The Court further reasoned that Wife's ability to transfer her book of business by bringing her clients to Wells Fargo is similar to goodwill, like that which is found in the business of other professions (e.g. lawyers and doctors). As a result, the Court found that the community had an interest in a portion of the transitional bonus and remanded it back to the trial court to determine exactly how much of an interest should be apportioned to Husband.

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Date of Business Valuation - Exceptions for Bad Actors

April 23, 2014

business-valuation-divorce.jpgIn general, family courts disfavor "bad actors" or spouses who take deliberate steps to disadvantage the other party in anticipation of or during a divorce proceeding. Spouses owe each other the highest duties of good faith and fair dealing - even throughout the divorce process. Specific family law codes were enacted to require spouses to be completely transparent with each other regarding their income, expenses, assets, and debts. This same spirit applies to cases involving disputes over the date of business valuation.

It is not uncommon for the divorce process to drag out for months or even years. The length of the process is dependent on many factors including the complexity of the parties' estate. When one or both parties own a business that business will likely need to be valued prior to the conclusion of the case. As a default rule, assets (including businesses) are valued as close as possible to the time of trial. In a particularly long divorce case, the business may have a substantially different value at the parties' date of separation as opposed to the date of trial. One way for a spouse to overcome the general presumption that a business should be valued close to the date of trial is a showing of "bad behavior" by the other spouse.

Failure to Cooperate in Discovery: In divorce cases, family court encourage open discovery of information and documents regarding all assets, including businesses. If the spouse managing the business fails to cooperate in producing pertinent business records the court may decide to value the business at the time proposed by the other spouse. Spouses are not permitted to benefit from confusion intentionally caused regarding the facts of the case.

Commingling Business Operations and Poor Record Keeping: California family courts have also selected an alternative date of valuation in cases where the spouse managing a business so intertwined pre and post-separation operations in poor record keeping that it was impossible to determine the date of separation value even though the court otherwise would have done so.

Breach of Fiduciary Duty: As stated above, spouses owe each other the highest duty of good faith and fair dealing. A violation of that duty can result in a date of valuation aimed to punish the offending spouse. For instance, if a spouse mismanages a business he or she may have to brunt the consequences of the mismanagement entirely as a result of the date of business valuation chosen by the court. California courts have also held that neglecting fiduciary duties could be grounds for an alternative date of valuation.

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How to Prepare for Divorce Mediation

March 29, 2014

prepare-mediation.JPGMany couples in San Diego opt to mediate rather than litigate their divorce. Mediation can provide the parties with many advantages unavailable in litigation such as customized agreements and quick results. One of the most popular motivations for mediating a divorce is to minimize the attorney fees and costs associated with litigation preserving as much of the parties' estate as possible. Spouses who litigate their divorce without attorneys often feel apprehensive regarding the process and hesitate to reach agreements. Below is a list of things spouses can do to prepare for their first divorce mediation session without an attorney present.

Get Organized: You can maximize the productivity of your mediation session if you come prepared with organized financial documents regarding all of your assets and debts. It may also be helpful to make a list of all of your assets and debts to present to the mediator. For support purposes, the mediator will also need proof of income for both you and your spouse. You should bring recent tax returns and current paystubs to the mediation.

Prepare Emotionally: Mediation is not the time to express all of your anger and frustration for your spouse. Emotional outbursts and cruel, hurtful, or sarcastic comments can derail the mediation process. Before mediation try to create a list of your goals and consider what is most important to you. If you start to get upset during mediation refocus yourself on your goals.

pens-prepare-mediation.jpgPrepare Negotiation Points: A mediation session is a negotiation facilitated by a neutral third party. The mediator will help you negotiate with your spouse and a list of prepared negotiation points will assist the process. Remember mediation is centered in negotiation, not argument. Avoid arguing with your spouse during mediation by refocusing on your negotiation points.

Familiarize Yourself with the Process: You can speak with the mediator and/or his or her office staff regarding the mediation process prior to your formal session. If you are familiar with the process you will learn that you have the ability to speak with the mediator privately during the mediation session. This means that if you have concerns that you do not want to share with your spouse, you have options. Prior to mediation, you can consider if you have anything you would like to share privately with the mediator.

Meet with a Family Law Attorney: A family law attorney can consult with you while you are going through the mediation process. Notably, an experienced family law attorney can evaluate your case from a litigation standpoint and explain your legal rights before you enter into any negotiations. Further, once you have reached what you think is an equitable resolution with your spouse during mediation; you can bring a copy of the agreement for your attorney to review prior to signing it. This way you can rest easy that your settlement is fair and reasonable.

Create a Budget: You should walk into mediation with knowledge regarding how much money you spend on a monthly basis and how much money you will need to pay your living expenses. This information will be crucial to both property division and support discussions and will provide you a basis from which to negotiate from.

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A Divorce Attorney's Perspective on Moving Out of the Marital Home

June 25, 2013

SkinnyGirl Bethenny Frankel New York ApartmentYou may remember our previous blog highlighting the celebrity divorce of Bethenny Frankel, founder of SkinnyGirl Cocktails, and Jason Hoppy. Well, their bitter divorce battle continues to grab entertainment headlines, which report that the soon to be ex-couple is actually still living together in their five million dollar New York City apartment with their 3-year old daughter, Bryn. As if a divorce isn't already stressful enough, try living in the same household as your soon- to-be-ex while going through the often long, drawn-out divorce proceedings. Frankel tells PEOPLE, "My living situation is very, very stressful...I don't think it's very healthy for anyone involved. It's very upsetting. You just have to endure it."

It may seem puzzling why Frankel would continue to endure the stress of sharing an apartment with her soon-to-be-ex when she can clearly afford to move into her own place and not have to face Hoppy on a day-to-day basis. Perhaps her reasoning is related to two main concerns related to moving out of the marital home while the parties are going through the divorce process. The first concern is whether moving out of the home will affect a party's claim to ownership when assets are being divided down the road. The second concern is whether moving out could adversely affect a party's standing in his or her battle for primary custody of the child or children.


how will moving out affect my divorce?The martial home is likely a significant asset, if not the most significant asset in many divorces. So it's reasonable that divorcing spouses would worry that "abandoning" the home would make it more difficult for the one who leaves to make a claim on the property in a divorce settlement. If both claim ownership of the home then would that ownership be jeopardized if one party moves out? As California divorce attorneys know, if the home was acquired during marriage then it remains a marital asset subject to distribution regardless of who remains in the home during the divorce process.

If money is not an issue, then many divorce attorneys often advise clients to physically separate when going through a divorce, which usually means moving out of the marital home. A little distance can often times do a world of good for parties who are going through the divorce process. However, when a party does decide to move out of the marital home, there needs to be some serious discussions about the status of the marital residence. Aspects that need to be addressed include: the care, maintenance and financial obligations regarding the home in the interim, items left in the home, and whether the party left in the martial home will have exclusive use and possession of the home. The parties and their divorce attorneys need to discuss the whether the spouse who remains in the home has an expectation of privacy or if the spouse who moved out will be entitled to some use or enjoyment of the home after moving out.


effects of moving out of the marital residence in divorceAnother concern regarding moving out of the marital home is with respect to child custody. Since both Frankel and Hoppy want primary custody of their daughter Bryn, they might be concerned that moving out of their NYC apartment could adversely affect their standing in their battle for primary custody. Until a parenting plan is in place, "abandoning" the marital home could indicate that parent's lack of interest in the child's daily life if the child remains in the marital home with the other parent. This concern can potentially be resolved by establishing an interim custody schedule which ensures that the parent leaving the marital home will have frequent and continuous access to the child. The parent who moves out could also have his or her divorce attorney argue that the purpose of moving out was to reduce ongoing marital conflict out of concern for the child's well-being throughout the divorce proceedings.

Nonetheless, many San Diego divorce attorneys will generally advise clients with custody disputes to just stay in the marital home together if possible, like Frankel and Hoppy are doing. First, it helps to avoid creating a potential new status quo regarding the "primary residential parent" where the divorce process is taking an extended period of time. And second, when the parties continue to live together under the same roof emotions tend to get heated. As a result, there may be more incentive to conclude the divorce quicker by negotiating a divorce settlement.

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Property Division and Divorce - Dividing Household Items Without a Judge

May 21, 2013

Dividing furniture in divorceIn a divorce, personal property (such as furniture, furnishings, art, family photos, pets, and other general property) is treated no differently than the division of other assets. Parties to a divorce can spend a significant amount of money fighting over silverware and lamps by placing a dollar figure on each item and dealing with them as part of the general division of assets and debts. If there is a dispute over which furniture or furnishing each party wants, the personal property will usually be appraised and then the appraiser will make a list of all of the personal property and assign dollar values to everything. As divorce attorneys will advise their clients, at that point the judge will make a determination as to how everything will be divided.


Or, instead of litigating the division of personal property, a better (i.e. less expensive) way to deal with the division might just be for the parties to agree on who takes what piece of furniture/dishes/artwork, etc. There are several ways that divorce attorneys approach an equitable division of furniture and furnishings, including, but not limited to the following methods:

  • Alternate Pick Method - personal property is divided by alternating picks after the flip of a coin to determine which party to the divorce will pick first.
  • Alternate Pick Method by Room - together the parties itemize everything in each room and then the parties alternate picks for the contents of the entire room.
  • Sale and Split - sell everything and split the proceeds between the parties upon divorce.
  • List and Choose - One person prepares two lists placing everything to be split in the divorce on one list or the other; then the other person picks which list he or she wants.
  • Bidding - each person submits a sealed bid as to what they think the item is worth and then the person with the higher bid gets the item at that value (i.e. at a charge).
  • Appraisal - Hire an appraiser and then divide everything based on the appraiser's values. This usually requires the use of one of the above ways to divide the property once it is valued.

Division of family photos in divorceAlthough there are a variety of methods of dividing household items in a divorce, family photos generally fall under their own category of division. Typically, the parties agree for family photos to be given to one party and the other party to have the option to make copies of all of the photos. Courts usually do not like to get into disputes over family photos since there is really no way to assign a financial value to original photos.

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