San Diego Divorce Attorneys Blog

In 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.

Although 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.

Continue reading "Property Division and Divorce - Dividing Household Items Without a Judge" »

A New York appeals court is making waves throughout the family law community as a result of its recent controversial ruling. Before Elizabeth Cioffi-Petrakis and Peter Petrakis got married, they entered into a premarital agreement, commonly known as a "prenup". At trial, the court ruled that the premarital agreement was void. On appeal, the trial court's decision was upheld. Many attorneys throughout the U.S. believe that this case may have enormous implications on every premarital agreement case in the future. Divorce attorneys are surprised that the premarital agreement was held void and by the court's rationale.

The basis for voiding the premarital agreement in the divorce proceeding was "fraud in the inducement." Just four days before her wedding to Mr. Petrakis, Ms. Cioffi was presented with a prenup and an ultimatum. Although Ms. Cioffi's parents had already spent $40,000 on the wedding, Mr. Petrakis told Ms. Cioffi that he would not marry her unless she signed the agreement. Moreover, Mr. Petrakis orally promised to tear up the agreement and put her name on title to their home as soon as the couple had children. In reliance on Mr. Petrakis' oral assurances, Ms. Cioffi signed the prenup. Once the couple had children, Ms. Cioffi pushed Mr. Petrakis to follow through with their oral agreement and he refused.

Read more entries about premarital agreements

At the time Ms. Cioffi signed the prenup she was represented by an attorney and all other typical enforceability requirements were undisputedly met. The written agreement also contained a provision specifically stating that both parties were precluded from relying on all prior or contemporaneous oral agreements. Notwithstanding that provision, both courts ruled that the premarital agreement void by applying the contract principal of fraud.

In Del Mar and across California, if both parties are represented by counsel from the onset of negotiations, there is no required waiting period that must pass before the parties can sign an enforceable premarital agreement. However, if only one party is represented by counsel, the unrepresented party must consider the agreement for a minimum of seven days before signing it. As long as these and the additional statutory requirements are met, many family law attorneys feel that premarital agreements are extremely difficult to set aside.

Learn more about Del Mar divorce lawyer Nancy Bickford

In a 1938 California case, the court determined fraud is an appropriate basis for setting aside a post-marital agreement. It would seem that New York was not too far off the mark when it applied the generally accepted contract defense of fraud to family law. More and more, divorce lawyers are seeing the stricter standards applied to civil litigation at large are being applied in family courts.

Continue reading ""Shocking" Case Voids Prenup in Divorce" »

Divorce can have a devastating effect on both parties' standard of living and finances.
We have previously blogged about the sacrifices divorcing spouses make when they cannot afford to support two separate households at the same standard of living they enjoyed during marriage.
However, in Del Mar, the "gray divorce trend" is resulting in another sacrifice divorcing couples make - retirement.

Read more about division of retirement in divorce

From 1990 to 2010, the number of divorces involving spouses over 50 years old "gray divorcés" doubled. Experts say that one of the causes for the increase in later-in-life divorces is longer life spans. Just like a divorce between spouses in their 20's and 30's will affect the current standard of living for both parties, a divorce past 50 will affect retirement lifestyles. If a couple divorces when the spouses are between 20 and 40 years old, there is plenty of time before retirement for both spouses to re-build any divided retirement funds. However, gray divorcés will experience the following financial roadblocks:

First, the accumulated retirement savings between the parties is usually divided in half upon divorce. When parties divorce, all property acquired during marriage is divided equally. Most, if not all, of a couple's retirement fund is usually acquired during marriage. Thus, each spouse will only end up with one-half of what they planned on retiring on with his or her spouse.

Second, funding two separate retirements can cost between 30% and 50% more than funding one. Post divorce, the parties will take separate vacations, take twice as many trips to visit their children and grandchildren, use two separate cars instead of one, live in two separate houses, etc. In addition, if one former spouse becomes ill, the other will not be there to care for him or her. Therefore, post divorce, a spouse may have to use significant retirement funds to pay for medical care.

Read some frequently asked questions about divorce in Del Mar

Financial planners have a few suggestions to help gray divorcés get through divorce and retirement past 50. They suggest hiring a financial adviser simultaneously with hiring a divorce lawyer. Additionally, they advise against supporting adult children when it is not feasible. Often around the age of 50, a gray divorcé will have a child who is getting married and expecting them to shell out $30,000 for a wedding. These types of purchases are not advisable. Finally, financial advisers suggest reducing spending by living in a smaller home, traveling less and eating out less.

Continue reading "How Divorce May Change Your Retirement Plans" »

For many Del Mar families, real estate is their most valuable asset. Because the prices of the average family home are so high, many families must invest significant funds into real estate just to live in the area.
However, upon divorce, all community property must be divided equally by the court.
If the parties have no other assets as valuable as the family home, it must be sold and the proceeds divided.

Read more about Divorce jurisdiction in Del Mar

Pre-Judgment: Prior to the final resolution of a divorce case, the court will generally avoid ordering the sale of community or separate assets. However, under Family Code §2108, at any time during the divorce proceeding, the court has the authority to order the liquidation of a community asset if necessary to avoid unreasonable market or investment risks. Divorce lawyers know that, in making this determination, the court will consider the nature, scope and extent of the community estate. California courts have held that judges may not order the sale of a community asset unless necessary to prevent the loss of that or another community asset. In some cases, the financial strain of divorce may cause the family residence to be lost to foreclosure. If equity remains in the home, it may be prudent to petition the court to order the sale of the residence so that it is not lost to foreclosure.

At the onset of a divorce proceeding, automatic temporary restraining orders take effect. These restraining orders are commonly referred to as "ATROS". The ATROS prevent the parties from altering the status quo of the marriage during the dissolution proceeding. For Del Mar divorce attorneys, this means that if one party maintains health insurance for the family, he or she cannot cancel that insurance plan because a divorce has been initiated. The ATROS also restrain parties from selling assets before they are divided by the court. Thus, a party may not unilaterally sell a home during divorce without a court order as discussed above.

At Trial: At the end of the case, the court is not as restricted in its ability to order the sale of the home. If the parties only significant asset is the family home and an award of that asset cannot be offset by another, the only way to divide the community estate is to sell the home. Therefore, during a Del Mar divorce, it is well within the court's authority to order the sale of a residence and to divide the proceeds equally between the parties.

Please contact us if you are thinking of meeting with a divorce lawyer. Whether you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation, consulting with a knowledgeable attorney is of paramount importance. 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.

Valentine's Day is a romantic time in Del Mar and throughout San Diego County. The romance of this holiday can sometimes stir up old feelings between divorcing spouses. It is not uncommon for spouses going through a Del Mar divorce to send each other gifts on Valentine's Day or even to spend the day together. However, it is important to consider the legal ramifications of these acts especially with regard to the date of separation. On the other hand, newly separated spouses may be spending Valentine's Day with a new significant other for the first time in a while. Before substantial gifts are given to a new love interest or money is spent on a lavish trip, it is important to also consider how these acts may impact your divorce proceeding in Del Mar.

The date of separation is an important consideration in many divorces. The marital estate is the property divided upon divorce. Property can only be accumulated in the martial estate between the date of marriage and the date of separation. Thus, once spouses decide to end their marriage, they stop accumulating any community assets. In order for a separation to occur, the spouses must physically separate (live apart) with the simultaneous intent never to resume the marital relationship. As Del Mar divorce attorneys understand, only one spouse is necessary to establish the requisite intent to end the marriage.

Read more about date of separation from Del Mar divorce lawyer Nancy Bickford

Depending on the assets in the martial estate, a dispute regarding date of separation can have enormous financial consequences. In order to determine which spouse is correct regarding the date of separation, the court will consider the conduct of the parties. One of the factors considered by the court is whether the spouses gave each other gifts or spent holidays together. If Husband and his attorney allege the parties separated January 1, 2010, the same year he earned a $100,000 bonus at work, that bonus would be his separate property. However, if Wife can show that Husband sent her flowers and a romantic card on Valentine's Day in 2011, her divorce lawyer can use this as evidence that they in fact separated much later and she will be entitled to half of Husband's 2010 bonus.

Under the Family Code, which governs the divorce process in Del Mar, spouses are not permitted to gift community property without the written consent of the other spouse. While both spouses are entitled to manage and control community funds, gifting community property is not considered a function of a spouses right to "manage and control" community funds. If a separated spouse intends to purchase any lavish gifts for a new significant other, he or she should be careful only to use separate property funds for this purchase.

In Del Mar, the divorce process can be complex, and selecting a qualified and knowledgeable divorce attorney is exceptionally important. 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 for more information about the consultation process.

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.

Another Housewife is getting divorced. Bethenny Frankel, creator of the Skinnygirl franchise, is divorcing her Husband Jason Hoppy after only two years of marriage. For months Frankel has been fighting rumors that the couple is splitting but she has finally confirmed that a divorce is on the horizon. Frankel released the following statement regarding the divorce, "It brings me great sadness to say that Jason and I are separating. This was an extremely difficult decision that as a woman and a mother, I have to accept as the best choice for our family."

In 2008, Frankel agreed to join the cast of Bravo's The Real Housewives of New York. At that time, only four short years ago, Frankel had a "mere" $8,000 in her bank account. To Frankel, The Real Housewives was an opportunity for her to build her own brand and advertise her Skinnygirl line of alcoholic beverages. It seems as if her plan worked because currently Skinnygirl is the number one fastest growing spirit in the United States. In addition, Frankel is now also a best selling author with her own skin, clothing and health products. Further, Frankel received a $40,000 check for each episode of her reality show. Considering the size and diversification of Frankel's fortune, the first question surrounding her divorce is whether she will have to split everything with her husband. Because the Frankel and Hoppy signed an enforceable premarital agreement, all of Frankel's empire should be safe from division.

Learn more about the divorce process in San Diego

A premarital agreement is an important tool that can be used to protect assets of ambitious entrepreneurs. As a default rule, under California community property laws, any earnings or accumulations of a spouse during marriage is community property. Thus, one of the main functions of a premarital agreement is to alter that default rule and order that any earnings or accumulations of a spouse during marriage remain that spouse's separate property.

A premarital agreement can be especially helpful for a spouse with big aspirations but without a significant fortune entering into the marriage. California community property laws protect all of a spouse's property that he or she had before marriage. Upon agreement or by their actions, parties can convert separate property to community property. However, as a general rule, a spouse's assets before marriage will be remain theirs in full post-separation. On the other hand, pursuant to the default community property rules, if a spouse creates a large franchise during marriage, this franchise is subject to equal division between the parties.

Please don't hesitate to contact us in San Diego if you would like to inquire regarding the divorce process in San Diego, have questions regarding child custody and visitation, or would simply like to set up a consultation appointment with Ms. Bickford. 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.

The divorce proceedings between reality star Kim Kardashian and athlete Kris Humphries have by far exceed the length of the couple's 72-day marriage. Recently, Kardashian's new boyfriend, rapper Kanye West, was deposed by Kris Humphries' lawyers. During a deposition, the deponent must answer a series of questions while under oath. This means that any lie told during a deposition may constitute perjury. Humphries' deposition of West may have been an attempt to invalidate his premarital agreement. Many speculate that the premarital agreement contained an infidelity clause and that Humphries is attempting to show Kardashian violated it by starting a relationship with West before the date of separation.

In response, Kardashian's lawyers argue that Humphries' postponed arguments to invalidate the straightforward premarital agreement is simply a delay tactic to draw out the divorce proceeding. Despite Humphries' alleged attempts to extend his litigation with Kardashian, the judge assigned to the case has set a trial date. The former couple will appear on February 15, 2013 and argue their case before the court. As long as the trial date is not pushed further back by Humphries' legal team, Kim Kardashian should finally get a resolution to her second marriage.

Common Family Law Terms Learn more about family law

Depositions are a common form of discovery in family law proceedings. Discovery is the process in which the parties can formally ask each other for documents and information in order to gather all relevant facts in the case. Although expensive, depositions can provide attorneys an opportunity to ask the parties and/or other witnesses for the information needed to proceed to trial or to negotiate settlement. Other forms of discovery such as special interrogatories are available to ask parties questions under oath. However, special interrogatories can be less effective than deposing a party because the lawyer is only permitted to ask follow-up questions after receiving a response. This question and answer process can continue for months because each party is entitled to 30 days to respond to interrogatories.

If discovery is not complete, and both parties do not have all the relevant information in a case, it is difficult for a court to rule or for the parties to reach a settlement. If the discovery process is drawn out such in the Kardashian-Humphries case, the entire dissolution process can take years to complete. Thus, it is important to retain a lawyer familiar with the discovery process and deadlines. Once a trial date is set by the court, such as in the Kardashian-Humphries case, discovery is subject to a cut-off date. After this date, no further discovery may be propounded.

Divorce can be a frightening and a daunting process. If you are considering a divorce from your spouse, a legal separation, or have questions regarding spousal support or child custody, please don't hesitate to contact us. Nancy J. Bickford is the only lawyer in San Diego 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.

After eight years of marriage to the famous actor, Dennis Quaid's wife, Kimberly Buffington, recently filed for legal separation. In March of 2012 Buffington filed a petition for dissolution of marriage citing "discord or conflict of personalities" as the reason for the split. However, just three months after she filed, Buffington withdrew her divorce petition. The couple seemed to be working on their relationship when they celebrated their eight-year anniversary in Bora Bora. In her petition for legal separation Buffington requested joint legal and physical custody of the couple's twins. Additionally, Buffington asked the court to award her spousal support and order Quaid to contribute toward her attorney fees and court costs.

Quaid and Buffington recently moved to California from Texas. Although Buffington filed for legal separation, she reportedly intends to file for a full divorce once the six-month waiting period has expired. In California, only parties who have resided in the state for a minimum of six months may file for divorce in California family courts. Deciding to file for legal separation or divorce is an important decision. If a party files for legal separation, the court has the ability to make custody and visitation, support, and property division orders. Unlike in divorce proceedings, there is no requisite waiting period to obtain a legal separation.

In addition to the six-month residency requirement, there is also a six-month waiting period before the marital status of the parties can be terminated. This means that if the parties file for divorce and settle all disputed issues within a month, they still cannot be legally divorced for another five months. One strategy, which seems to be used here by Buffington, is to file for legal separation before the residency requirement is met in order to start the clock on the other six-month waiting period.

For the purposes of property division and support, the date of separation can be an important issue. Although Buffington filed for divorce in March, the date of separation will likely be much later due to the parties' attempted reconciliation. It is unclear when Buffington decided the marriage was over; however, two requirements must be met in order to establish a date of separation. First, the parties must live physically apart and second; at least one party must have the intent not to resume the marital relationship. Thus, any earnings and property acquired by either Quaid or Buffington during the attempted reconciliation will be deemed community property. As community property earnings and property will be split equally between the parties.

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 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.

Demi Moore, 49, and Ashton Kutcher, 34, garnered an enormous amount of media attention when they married in September of 2005. The spotlight continued to follow the couple when rumors of Kutcher's infidelity began to spread. Allegedly, Kutcher cheated on his wife with two party girls Brittney Jones and Sarah Leal. Regarding her husband's infidelity, Moore released the following statement "as a woman, and a mother and a wife, there are certain values and vows that I hold sacred, and it is in this spirit that I have chosen to move forward with my life."

Moore and Kutcher are taking an interesting approach to the divorce process. Although the couple split in 2011, neither party has filed a divorce petition. Rumors have now spread that Moore and Kutcher were never legally married. However, the more likely explanation is that the couple is attempting to reach a settlement before a petition for dissolution of marriage is filed. It seems the former couple cannot agree on how to split up the enormous $290 million fortune they amassed. Unlike in the Brand-Perry divorce, Kutcher and Moore have earned a relatively similar amount. According to reports, Moore is worth $150 million while Kutcher is worth $140 million.

Under the California Family Code, the court must divide the community estate equally. The community estate consists of all earnings and accumulations acquired by either party during marriage. It does not however include property held before marriage or acquired during marriage as a gift or inheritance. Thus, the court will only be permitted to divide the money earned by both parties during the marriage.

Additionally, the existence and validity of a premarital agreement may affect the outcome of the property settlement. According to reports, the parties did sign a premarital agreement. However, it appears that Moore is still arguing for her share of Kutcher's wealth due to his public infidelity. If the premarital agreement was well-crafted, Moore may have an extremely difficult time getting it overturned in court. If Moore and Kutcher cannot come to an agreement regarding the division of the marital estate, they will have to put their finances in the hands of a judge.

Although Kutcher's public infidelity humiliated Moore, California is a no-fault state. A California Family Court judge will not take into consideration Kutcher's romp with two party girls when he or she divides the Moore-Kutcher community estate.

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 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.

In San Diego, the divorce process can range between six months and several years. This significant time span can have a serious impact on value of assets. Considering the volatility of the stock market and real estate prices, the date of valuation can become a contested issue. Consider the following example: During marriage Husband created and operated a business. After separation, Husband continued to expend efforts and the value of the business grew substantially. By the time of trial the value of the business is triple than at the time of separation.

All property acquired and all income earned during marriage is community property. Upon divorce, both parties have a one-half interest in the community's portion of an asset. Because the business was created during marriage and Husband expended efforts in the business during marriage, a portion of that business is community property. Therefore, Wife will argue that for the purposes of division, the business should be valued at the time of trial. Husband, on the other hand, will argue that the business should be valued as of the date of separation.

Under California Family Code section 2552, "for the purpose of division of the community estate upon dissolution of marriage or legal separation of the parties...the court shall value the assets and liabilities as near as practicable to the time of trial." Thus, as a general principle of law, assets are valued at the time of trial. However, the court may, for good cause, value all or any portion of the assets and liabilities at a date after separation and before trial to accomplish an equal division of the community estate in an equitable manner.

California courts have determined that good cause exists to value an asset at the date of separation rather than the date of trial if the increase in the fair market value was due to the owner's personal services, not capital assets. This means that if the value increased due to market fluctuations or other outside factors, the asset will be valued at or as near as possible to trial. However, if goodwill, accounts receivable, or other efforts by the owner lead to an increase in value, the asset will be valued at the date of separation.

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 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.

Following their divorce, actress Katie Holmes reportedly kept millions of dollars worth of gifts given to her by her husband, Tom Cruise. These gifts include valuable jewelry, handbags, and other luxury items. Although many speculated that she did not receive a relatively substantial portion of Cruise's estate in the property settlement, she may have been satisfied with keeping the gifts. Throughout the divorce proceedings, one of Holmes' most pressing concerns was the financial wellbeing of her daughter, Suri. Luckily for Suri, she will be able to inherit millions in gifts given by her father to her mother as long as Holmes does not decide to sell them first.

Often in Del Mar and throughout San Diego County parties are unclear about the role gifts play in divorce. There are two main contested issues regarding gifts in divorce proceedings. First, gifts between spouses and second, gifts of community property from one spouse to a third party.

Gifts between spouses: Under California Family Code section 852, a "transmutation" of personal property is not valid unless made in writing. A transmutation is the conversion of one asset from community property to separate property or from separate property to community property. Under the Code, this can only be done by written agreement. However, one exception to this rule concerns gifts between spouses. A gift of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature from one spouse to the other can be transmuted absent written agreement as long as it is not substantial in nature taking into account the circumstances of the marriage. This means that the court will consider the standard of living of the parties in order to determine whether the gift was "substantial." Considering the multimillion dollar net worth of Tom Cruise, a $100,000 gift to his wife is not substantial.

Additionally, as we have previously blogged, where a gift is given in contemplation of marriage (such as an engagement ring) and the donee refuses to enter into the union, the donor may recover the gift.

Gifts from spouse to third party: During marriage, both spouses have equal rights to manage community property. However, the California Family Code does not recognize "gifting" as a management power. Thus, one spouse is not permitted to give a gift of community property to a third party without the consent of the other. In fact, a gift by one spouse during marriage of community property may be entirely set aside by the other. This right to set aside unilateral gifts of community property even survives the death of the gifting spouse.

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.

Discovery is an important tool for any party to use in a Del Mar family law case. Through the process of discovery, parties can obtain the information necessary to reach an agreement or decide which issues are contested. Discovery tools include: interrogatories, demands for production, depositions and subpoenas. Each tool is used to obtain a specific type of information from a particular litigant, witness, or third party. Although family law attorneys usually propound and respond to discovery, the client can have a vital role in lowering costs and ensuring the process goes smoothly.

Once a family law case has been filed or a spouse is anticipating filing for divorce, each party is under a duty to preserve evidence. The court encourages parties to freely exchange information so that the court can have a complete picture of the case. Any destruction or spoliation of evidence is punishable. As a client, as soon as you know that you will be involved in litigation it is crucial to begin organizing all relevant information. Attorneys need a complete view of your finances in order to calculate possible support or to begin analyzing the division of the marital estate. The following is a list of records that will likely be important in your divorce: (1) tax returns for the past three calendar years, (2) Form W-2s for the last three calendar years, (3) a series of your most recent pay stubs, (4) all statements for each credit card and debt card as of the date of separation, (5) K-1 forms if relevant, and (6) accounting data such as QuickBooks if relevant.

The date of separation is often a focal point of the discovery process. The marital economic community ends upon the date of separation. Under the California Family Code, the date of separation occurs upon the conversion of two factors. First, the parties must effect a physical separation and second, at least one party must have the subjective intent not to resume the marital relationship. The parties can only accumulate community property during the marital economic community. Thus, any property acquired or earned after marriage until the date of separation is community property. As a general rule, community property is divided evenly between the parties upon divorce. Many San Diego spouses have a collection of credit and debit cards that both parties use on a regular basis. In a divorce, an attorney will need to know the balance of all of those accounts as of the date of separation. Printing out your most recent statements including those as of and surrounding the date of separation is an easy way to get a head start on the dissolution process. Additionally, if you know a divorce is pending, it is also prudent to gather your recent tax returns and pay stubs to provide to your attorney. The client's role in discovery is crucial, by preparing and keeping organized records, you can save your attorney time and save in legal fees.

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.

The world watched as reality television star Kim Kardashian married NBA player Kris Humphries in August of 2011. However, the marriage lasted only seventy-two days and in October of 2011 Kardashian filed for divorce. Surprisingly, the bitter divorce battle has by far outlasted the short length of the marriage. Next month, will mark the one year mark since divorce proceedings began and the case is not likely to settle before then. Kris Humphries announced that he does not intend to settle with Kardashian and the case will likely proceed to trial. Considering the massive amount of witnesses Humphries intends to call (thirty three) and their fame and notoriety, it is no surprise that the trial has been delayed until 2013. The parties have found it difficult to coordinate the schedules of all people involved.

Considering the "iron clad" premarital agreement, the biggest question surrounding this drawn-out divorce is why the couple cannot settle. Kardashian wants her marriage to be over as soon as possible and it is clear that she has moved on with her life. Her and her attorney have no doubt sent over countless settlement proposals, all of which have been rejected. Humphries argues that Kardashian has been hiding information regarding her financial records ever since the beginning of their marriage and he intends to use the law to discover her "secrets." Humphries also alleges that the entire marriage was a fraud and that Kardashian only entered into it for publicity. Ironically, it was Humphries who skyrocketed from a no-name basketball player to signing a $24 million extension with the Nets.

Humphries specifically claims that Kardashian breached her fiduciary duties. Throughout a marriage and ongoing divorce proceedings, each spouse has the ongoing duty to disclose his or her assets and debts. Under California Family Code section 1101, "a spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse's present undivided one-half interest in the community estate." Humphries is "convinced" that Kardashian is hiding how much she made off of their wedding and during their seventy-two day marriage. He will have to convince a court and also show that his interest in that money was impaired in order to gain any recourse.

In the documents filed with the court, Humphries also states "a spouse may not make a gift of community personal property, or dispose of community personal property for less than fair and reasonable value, without the written consent of the other spouse." While it is true that each spouse has equal management rights of community property, management is not equal to gifting. If Kardashian gifted away community property in order to "hide" it from Humphries, he may have a claim to be reimbursed for that amount. Kardashian announced that she plans on asking the court to order Humphries to pay her attorney fees. She alleges that all of this legal action is not founded on the law and facts but rather is an abuse of the divorce courts. If she is successful, Humphries may receive a bill for over $250,000 from Kardashian's attorney.

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.

PayPal founder Elon Musk announced his divorce to actress Talulah Riley on the social media site Twitter. PayPal was created as a form of e-commerce, which would allow users to safely make purchases over the internet. Notably, in October of 2002, PayPal was purchased by the online shopping conglomerate eBay for a reported $1.5 billion. Musk and Riley met in 2008 and married in 2010. According to the Huffington Post, Musk proposed to Riley just a few weeks after filing for divorce from his first wife. Musk was with the first Ms. Riley for four years before they separated. The couple has two sons together.

The Musk-Riley divorce was final in July 2012, which puts the length of the marriage at approximately two years. Despite the short duration of their union, Riley reportedly walked away with $4.2 million. Although this amount may seem high, Musk's entire fortune is approximately $680 million. Riley's divorce settlement gave her 0.6% of Musk's wealth. Additionally, there is no indication that Musk will pay any spousal support to Riley.

One advantage to the quick settlement of such a public divorce is that the parties are able to avoid dragging the divorce out in the public eye. However, many speculate that Riley could have received a larger amount had she battled Musk in court. Under California family law, Riley would have been entitled to her community property share of the community estate. Community property includes all earnings of both spouses. This means that she could have been awarded one-half of Musk's earnings from the date of marriage to the date of separation. According to the terms of the settlement agreement, in addition to a $4.2 million pay out, Riley secured her Cartier watch, Gucci watch, various pieces of diamond jewelry and her Roadster.

Riley immediately received $500,000 and the rest of the agreed pay out is structured . After the divorce was finalized and the settlement was executed, Riley received an additional $900,000. Over the next nine years, Riley will receive the remainder of the settlement amount. Although this structured settlement may make payment easier for Musk, it keeps the ex-couple in each other's lives. For the next nine years they will have an ongoing financial relationship. It is interesting that a man with a $680 million fortune chose to structure the payments of a mere $4.2 million in this way. Many family law cases involve child custody and visitation disputes. In these cases, the ex-spouses have little power to avoid an ongoing relationship because their children inextricably tie them together.

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.