Recently in San Diego Category

One Day Divorce - Is it Really as Good as it Sounds?

April 17, 2014

one-day-divorce.jpgOn March 1, 2014, the San Diego Superior Court began offering a "One Day Divorce" option at the San Diego's Downtown Family Court. This pilot program provides the option for eligible parties to complete their entire divorce is just one short day. Sounds pretty amazing, right?!

The goal of the program is for parties to walk out of the courthouse with their judgment papers in hand. Parties first meet with a family law expert to go over the terms of their proposed divorce settlement or the process for a default judgment. Then the parties will receive hands on assistance with completing any forms necessary to finalize their divorce. If all of the forms are completed, the parties may appear in court that same day to receive their final judgment.

Offering an extremely fast and affordable resolution to the otherwise typically lengthy divorce process is what the "One Day Divorce" program aims to do. This seems like quite the innovative option. But it inevitably comes with some pitfalls. For starters, those impacted by the new program won't be as widespread as one would think. Rather, eligible parties are limited only to those who have already filed a petition for divorce or separation in San Diego County at least six months ago, are self-represented, have served the summons and petition on the other party, a proof of service of summons or a response has been filed with the Court, and there are no contested issues. In addition, if either spouse has retirement benefits that were earned during marriage, such benefits must be listed on the petition or response in order to be able to complete the judgment. These limitations narrow down the pool of eligible couples dramatically.

On the other hand, the "One Day Divorce" program doesn't appear to be as limited as the eligibility requirement for a summary dissolution. Unlike summary dissolutions, the "One Day Divorce" program's parameters are not limited to couples who have been married less than five years, have no children of the marriage, do not have any interest in real estate, do not have debts over a specified amount, do not have community assets over a specified amount, agree to waive spousal support, etc. This means that cases involving long-term marriages, spousal support, custody, high assets, etc. may take part in the program. However, such cases may be quite complex and perhaps a "one day divorce" approach wouldn't serve the best interests of the parties. Rather, they might be better off with legal representation to ensure equal bargaining power and knowledge between the parties. Also, the appropriate amount of time and expertise to review all aspects of their divorce might be necessary to ensure that the parties fully understand their situation and have sufficient time to received legal advice before settling.

In any event, the success of the "One Day Divorce" program will heavily depend on its execution. For instance, the "family law expert" that will meet with the parties during the One Day Divorce process poses potential concerns. What will this person's limitations be? Will he/she act as a mediator or give legal advice? Is he/she a licensed and experienced divorce attorney? If the program's intent is to solely help parties who have reached agreement on every single aspect of their divorce and either don't have any further questions or are not able to get legal advice at or during the one day process then perhaps the program will indeed have potential for those truly uncontested cases. But, if the family law expert's role is to give legal advice then that would likely be another story.

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How Your Divorce Grief Can Affect Your Children

April 16, 2014

divorce-grief-children.jpgA divorce may be hands down one of the most difficult things a person can go through. Just like the loss of life, a divorce is a loss of a relationship, the loss of stability, and the loss of life as one has known it to be. Consequently, individuals going through a divorce typically experience some or all of what is known as the five stages of grief. These stages include: (1) denial; (2) anger; (3) bargaining; (4) depression; and (5) acceptance.

Denial:
In the denial stage of grief, an individual going through a divorce is typically attempting to deny the reality of their situation and begins to develop a false, preferable reality. Children under the age of 6 years old are typically not affected by their parents experiencing the "denial" stage of grief because they believe that the situation is only temporary. Grade school children may be affected in the sense that they will come up with their own "magical" explanation for what they perceive is going on. Teenagers are affected differently in that they tend to want to act as the caretaker for the parent who is experiencing the denial stage.

Anger:
In the anger stage of grief, an individual going through a divorce recognizes that their sense of denial cannot continue and instead they manifest anger with themselves or with others, especially those who are close to them. Children under the age of 6 years old are significantly affected by their parent(s) experiencing the anger stage because they tend to assume that the anger is directed towards them. Young children especially think that their parents' issues are their issues too. Grade school children are the most developmentally vulnerable to alienation while their parent(s) are experiencing the anger stage of grief. They tend to form an alignment with one parent. Teenagers are affected in that they tend to identify with the parent who has been wronged in the divorce. Teenagers begin to form their own opinions and may reject the anger by trying to stay away from it.

Bargaining:
In the bargaining stage of grief, an individual going through a divorce typically hopes that they can somehow avoid or undo the cause of the grief. This stage of grief has the most differences in its affect on children, based on their age group. Children under the age of 6 years old are typically aware of who is or is no bargaining. They may find it frightening because they perceive the parent, who they are so dependent on, as being weak. School age children, on the other hand, get excited about bargaining because they tend to believe in the chance of reunification. Teenagers try to act as a mediator. Teenagers also tend to distance themselves from the weaker parent and align with the parent who will provide them with what they want.

Depression:
In the depression stage of grief, an individual going through a divorce begins to understand the certainty of their loss and may become silent and spend much of their time crying and upset. Surprisingly, children under the age of 6 years old are not typically impacted by their parent(s) experiencing depression. Grade school children, however understand it and expect the other parent to "rescue" the depressed parent. Teenagers, on the other hand, perceive their parent's depression to be dangerous and typically don't want any part of it.

Acceptance:
In the acceptance stage of grief, an individual going through a divorce begins to come to terms with their loss and typically has a more objective view and stable, calm mindset. Children under the age of 6 years old are positively affected by their parent(s) going through the acceptance stage because they sense the hope and positivity. Teenagers, however, want to get the most of their parents who experiencing this newfound positivity and typically seek minimal supervision.

Although not everyone experiences the five stages of divorce (or experiences them in a different order) it is important to remember that how a parent deals with the divorce can have a direct correlation to how the child deals with the divorce, depending on the child's age.

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Post-Divorce To Do List

March 26, 2014

beach-post-divorce.jpgIf you are recently divorced or nearing the end of your divorce process, you might want to start by checking off everything on your post-divorce to do list so that you can finally move on and focus on yourself.

Once the divorce is nearing the end, you probably want nothing more than to move on from it and think about anything else. The fact of the matter is that even once the divorce is over you will still have a long list of financial housekeeping items related to the divorce. Below is a list to help you remember some of these items to take of (to the extent they are applicable to your situation) so that you can work towards turning the page and beginning a fresh new start.

1. Remove your husband's name and UPDATE all of your financial documents, credit cards, utility bills, medical records, employment records, passport, driver's license, auto, health and homeowners insurance policies, IRS records, Social Security Card, Title to real property and any professional licenses to reflect the following changes in your basic information, to the extent applicable:
a. Name change
b. Address change
c. "Single" status instead of "Married"
d. New trustee

2. Update your beneficiary designation on all life insurance plans, IRAs, 401(k), mutual fund accounts, bank accounts, brokerage accounts, etc. (if your ex-spouse is your current primary beneficiary and you want someone else to be designated as the beneficiary upon your death).

3. Revise your will: you will likely want to revise your will to take your ex-spouse off and designate others to inherit from you. If you are removing your ex-spouse, who was also designated as your Executor then you will also need to choose a new Executor of your estate.

4. Research health insurance options.

5. Think about changing your "Emergency Contact" where applicable if your ex-spouse is currently listed as your only person to contact in case of an emergency.

6. Obtain a certified copy of your divorce decree: to make many of the changes listed above you might be required to produce a certified copy of your divorce decree. Try to obtain extra copies early on so that you don't have to delay the process of checking off items on your to do list.

7. Close joint credit cards and open new bank accounts and credit cards in your name so you can start establishing your own credit history.

8. Talk to a Financial Adviser to start planning for your financial future.

The list of things to change and update post-divorce can be overwhelming. The best way to approach your to do list is to take a look at all the documents you were required to produce during your divorce proceeding and then attack it one at a time. Your Schedule of Assets and Debts that was prepared during your divorce should have a comprehensive list of the accounts that you should think about updating.

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Shannon Miles, San Diego Family Law Attorney Passes the CFLS Examination.

March 18, 2014

photo__1910961_p_shannon_miles.pngThe Law Offices of Nancy J. Bickford would like to congratulate SHANNON MILES, on passing the CFLS examination.

Born into a military family in Quantico, Virginia, Ms. Miles attended California Western School of Law, graduating in 2006. While at Cal Western, Ms. Miles studied Family Law and Community Property. Ms. Miles clerked for a family law firm and civil litigation firm while in law school. Ms. Miles also served as a judicial extern for the military judges at Camp Pendleton.

Ms. Miles started with our firm in 2012. Prior to joining The Law Office of Nancy J. Bickford, Ms. Miles worked for the law firm of Moore, Schulman & Moore for four years, practicing exclusively in the area of family law. She is trained in Family Law Trial Advocacy and is a graduate of the San Diego Family Law College of Trial Advocacy. She also holds a degree in Communications from the University of California, San Diego. Ms. Miles participated in Cal Western's Consortium for Innovative Legal Studies and attended law school abroad at Charles University in Prague, Czech Republic and at the National University of Ireland in Galway, Ireland. While in Prague, Ms. Miles studied International and Comparative Law. While in Galway, she studied Human Rights and International Criminal Law at the Irish Centre of Human Rights. Ms. Miles also spent a semester abroad while at UCSD in Alcala de Henares, Spain studying Spanish Literature.
Ms. Miles is a member of the State Bar of California, and the San Diego Family Law Bar Association. Ms. Miles is presently an Associate Member of the J. Clifford Wallace Inn of Court and prior to that, served for two years as an associate member of the Fiorenzo V. Lopardo chapter of the American Inns of Court.

Professional & Bar Association Memberships
State Bar of California
San Diego Family Law Bar Association
J. Clifford Wallace Inn of Court

Continue reading "Shannon Miles, San Diego Family Law Attorney Passes the CFLS Examination." »

Do I Have to Move Out to be Separated from My Spouse?

February 27, 2014

Separate Residence in Divorce - Keys The "date of separation" is one of the most important issues to determine at the beginning of any divorce case. The date of separation marks the end of the martial community and represents the termination of the marriage for the purposes of determining the length of the marriage. From the date of separation forward, all earnings and accumulations of both parties are their separate property. In order for the date of separation to occur the following two factors must be present: (1) the parties must be living "separate and apart" and (2) at least one spouse must have the subjective intent (evident through objectively evaluated actions) never to resume the marital relationship. Until recently, many San Diego family law attorneys believed that, in order to live separate and apart, the spouses needed to maintain two separate residences. However, this issue has always been debatable for other divorce attorneys.

On October 25, 2013, the First District Court of Appeal cleared up the "living separate and apart" debate for the family law community. The First District Court of Appeal sustained a trial court's holding in In re Marriage of Davis which stands for the proposition that it is not necessary for spouses to maintain two separate residences in order to be "separated" for the purposes of determining date of separation. The court opined that factors, other than living in two separate residences could satisfy the "separate and apart" requirement to establish the date of separation. In particular, the court relied on a change in how the parties handled their finances and the fact that Ms. Davis filed for divorce in its conclusion that the parties lived "separate and apart" while still residing under the same roof.

If you believe you have separated from your spouse but are still living in the same residence with him or her, you might consider the actions of the Davis couple in order to establish a case for date of separation. One of the most important considerations in the Davis case was the change in how the parties handled their finances. In Davis, the parties began depositing their individual earnings into separate bank accounts. Each month, the parties would deposit a certain amount of funds into a joint account which would be used to maintain the household expenses. However, each party was responsible to pay for their own personal expenses with their separate funds. In addition to separating their finances, in Davis the parties began to sleep in separate bedrooms and ceased sexual relations.

In general, the Court will look for a shift in the parties' behavior to determine the date of separation. Therefore, if the parties have always maintained separate bank accounts throughout marriage, the Court will not likely give as much weight to that factor as it did in the Davis case.

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Keeping a Divorce Quiet

December 20, 2013

keep divorce a secretWord leaked recently that former Florida congressman and host of MSNBC's "Morning Joe", Joe Scarborough, quietly divorced his wife, Susan Waren, back in January 2013. The couple, who actually filed for divorce in September 2012, was married for 12 years and they have two minor children together. Despite going through a divorce, the couple apparently managed to keep their divorce under wraps.

Many clients who are considering divorce or already in the process of a divorce wonder what they should keep to themselves during a divorce so that they can have a "quiet divorce" like Scarborough. Keeping a divorce quiet will ride on what and how much you share with your children, spouse, friends, coworkers, the Court, etc.

Keeping Quiet With Your Children
If you are going through a divorce and you have children then it is important that you consider drawing boundaries for yourself regarding what you share with the children - especially young children. This doesn't mean that you need to lie or hide things from your children. But rather, information pertaining to the divorce should be rephrased in a manner that won't be as detrimental to the kids' well-being. For instance, your children don't need to know who's "fault" it is that mommy and daddy are getting divorced or what the details are regarding how your assets will be divided. Rather, your children simply need to know that both during and after the divorce they are safe and will be loved by both parents just the same. When it comes to divulging your divorce to your kids, "less is more" if you don't particularly want their teachers, classmates, and friend's parents to know about your private life.

Keeping Quiet With Your Friends, Coworkers, and Spouse
What you discuss with your attorney, both written and oral, is subject to the attorney-client privilege. As the client, you are the holder of the attorney-client privilege and only you can waive that privilege. If you want to keep your divorce quiet and not jeopardize that privilege by publicly disclosing the communication, then don't be too liberal in the information that your share with your friends, spouse, coworkers, etc.

Keeping Quiet With the Judge
If you feel like you need to talk to someone about your spouse or your divorce at large, the Court might not necessarily be your best outlet. The court only wants to hear evidence that is relevant to the issues at hand, separation of assets and debts or valuation of property for instance, not whose fault it is for the divorce. Rather, you might consider meeting with a counselor so that you are able to get everything off your chest in the right setting.

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With the Economy Improving, Divorce is on the Rise

November 18, 2013

Divorce on the riseAs we have previously blogged, the majority of couples going through a divorce experience extreme change in their financial situation as they begin untangling one household and establishing two. It seems a little counterintuitive to think that as our economy improves and the average San Diego resident can live a little more comfortably, that more and more people are getting divorced. However, couples have more economic stability today which tends to lessen the financial impact of divorce. Although more money doesn't necessarily lead to unhappy marriages, it does make divorce more practical and affordable for those who would like to end their marriages. During our recent recession many people chose to stay together because their houses were underwater or one or both spouses were unemployed.

Prior to the recession, typically the most valuable asset owned by divorcing couples was the martial residence. At divorce, the parties usually sold their home and began new lives with the net proceeds. During the recession, couples were unable to sell their homes and realize profits because many San Diego homes were underwater. Therefore, in the face of financial ruin and without any reasonable way to live two separate lives, parties remained married. In the past year, home prices have skyrocketed throughout San Diego. In addition, interest rates have been at a (near) historical low which would enable parties to purchase a smaller home with a manageable monthly payment using the proceeds from the sale of the marital residence. Afraid that the value of their home could plummet again, many couples filed for divorce.

In addition to having assets to divide, an improving economy also means that more people are employed (or have a reasonable expectation of being able to return to work) as they consider divorce. If both parties are able to work or one party is able to earn a higher income, they may be able to maintain two separate households once support is ordered. When jobs were harder to come by and many people were laid off after years of steady employment, numerous California residents struggled to support their family living in one household. For any family, there is only a finite amount of income to apportion for support and living expenses of the supporting spouse. When spouses are struggling to maintain one household, separating into two may not be an option.

Further, one or both parties may have more funds available to retain an attorney in an improving economy. Without the requisite legal knowledge required to navigate the divorce process in California, it is difficult for parties to proceed with a divorce. During the recession, many people could not afford to hire an experienced family law attorney to represent them and protect their interests. Therefore, rather than risk being steamrolled or reaching unfavorable agreements, many spouses decided to avoid divorce altogether.

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Why it Might be a Good Idea to Put Dating on Pause During a Divorce

October 16, 2013

Dating during divorce - is it advisable?Just because you're in the process of ending your marriage through divorce doesn't mean that it's the end of all hope for future love, romance or even another marriage in the future. However, while you might be eager to move on with your love life by jumping back into the dating scene, there are a few reasons why you might want to take a step back and put dating on hold until after your divorce is finalized.

  1. Both dating and going through a divorce require a lot of time and attention.

    Going through a divorce can be extremely time-consuming, exhaustive and emotionally draining. This is especially true when the divorce is contested and there are children involved or there are complex, high-valued assets at issue. Jumping into a new relationship might not be the best move as you will need to devote a significant amount of time, energy and resources into finalizing your divorce. Also, if you want your new relationship to be successful then it is advised that you enter into it when you are emotionally, psychologically and financially stable. Otherwise, your new relationship might head down the same path as your marriage did.

  2. Dating could result in issues related to child custody.

    If you are going through a divorce and there are minor children involved then dating can cause several issues that might affect custody and parenting arrangements. First of all, divorce is not only difficult on the spouses involved but also on the children. By bringing a new boyfriend or girlfriend into the children's lives too soon might cause emotions of resentment and confusion to surface as the children have likely not had an adequate amount of time to adjust to and grasp all of the changes the come along with a divorce. Adding another person to the mix is just another change that is not in the best interests of your children.

    Also, keep in mind that custody arrangements might also be affected if your new boyfriend or girlfriend has a bad (i.e. criminal) past. Legal fees will likely skyrocket if the focus of the divorce becomes about the new significant other, rather than just the two spouses.

  3. Infuriating your ex-spouse is not the best idea during a divorce.

    If you begin dating while going through a divorce and your soon-to-be ex-spouse finds out, then he/she might react in a not so pleasant manner, to say the least. Inciting emotions of anger and jealousy will only lead to a more complex divorce as your spouse will be less likely to want to settle with you and the divorce will have less of chance of being as amicable as you had hoped. Finding someone new while ending the relationship with your current spouse will only add fuel to the fire in a contested divorce.

When it comes to dating while going through a divorce, it's important to take a step back and look at the reasons why it might be in your best interest to wait until the divorce is officially over before seeking someone new. Even though you might feel lonely during a divorce and feel a longing to fill an empty space, remember that a divorce is only a bump in the road and that you have plenty of time afterward the divorce is final to begin moving on with your life. Focusing on resolving your divorce, rather than putting your time and energy into dating right away, will likely result in a quicker divorce with hopefully less emotional exhaustion.

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Do San Diego Courts Favor Mothers in Child Custody Decisions?

September 16, 2013

California child custody lawsCalifornia child custody laws have most certainly evolved during our history as a state. Historically, it appeared that mothers were favored in court to get custody of the parties' children just because they were female. Mothers were pretty much guaranteed to get custody of the children, while even the best fathers were only given a limited visitation schedule while the children. Perhaps this was because traditionally mothers were viewed to be the more nurturing of the two parents; they were viewed as the parent who does everything in their power to make sure the children are taken care of properly and grow up right.

Despite popular belief, such favoring of mothers in child custody arrangements is not the case today. In this modern day in age, most states' laws actually prevent the courts from considering a party's gender when making a ruling on child custody. In San Diego, courts grant equal rights to both mothers and fathers in child custody cases. California Family Code Section 3040 specifically states that "custody should be granted... according to the best interest of the child...and shall not prefer a parent as custodian because of that parent's sex." Moreover, it is the public policy of California to ensure that children have frequent and continuing contact with both the mother and father.

Read more about child custody and visitation modification

The legal standard of "the best interests of the children" requires a court to take various factors into consideration, not including gender, when making a decision regarding the care and custody of the parties' children. The Family Code sets forth various factors that a court will consider, including but not limited to, the following:

  • Any history of abuse or neglect by either parent;
  • The habitual or continual illegal use of controlled substances;
  • The habitual or continual abuse of alcohol or prescribed controlled substances by either parent;
  • The overall health, safety and welfare of the child;
  • The requests of the parents;
  • The requests of the child if the child is of sufficient age and capacity to form an intelligent preference as to custody or visitation (Family Code 3042);

Thus, the main concern of any San Diego family law court is what custody and visitation arrangement is going to be consistent with the children's best interests. A parties' sex, therefore, will not determine who gets priority for being awarded the care and custody of the children involved.

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How to Achieve a More Amicable Divorce in San Diego

August 7, 2013

When people think of "divorce", they don't often associate it with the term "amicable", which means to be "characterized by friendly good will" or "peaceable" (definition courtesy of Merriam-Webster). Thus, "amicable divorce" may seem like quite an oxymoron. However, it is often advantageous to everyone involved if the divorce can be achieved and in a somewhat amicable fashion.

There are several things that both parties can do to overcome the major pitfalls to an amicable divorce, three of which are discussed below. In doing so, both parties are more likely to avoid the high cost, painful feelings, and adversarial aspects that are part of a litigated divorce.

Divorce Tip Heading - Minimize EmotionsOften times, divorcing spouses see the divorce process as a means for revenge and thus an instrument to hurt the other spouse. However, the problem with this approach is that it usually causes the other side to respond in the same manner, thus escalating everyone's emotions involved. The "blame game" for instance tends to increase tension and prolong the divorce process. Although it is important to recognize that feeling exists, an amicable divorce is more likely achieved when both parties attempt to minimize the role that emotions play in a divorce. Divorce attorneys frequently must advise their clients with respect to this issue.

Divorce Tip Heading - CommunicationA divorce is essentially about business. Thus, an amicable divorce is best achieved when both parties can openly discuss the terms of the "business". Communication requires open disclosure regarding assets and liabilities. The more open the parties are with each other, the less likely the attorneys are to be required to seek information through the "discovery process". The best divorce attorneys regularly work with their clients to facilitate communication between the parties.

Divorce Tip Heading - Service of Divorce PapersEfforts to minimize emotions and maximize communication both begin with the delivery of the divorce papers. In a proceeding for dissolution of marriage or legal separation, the moving party must, among other requirements, serve the responding party with a Summons and a Petition for Dissolution. Being served with these papers often incites a tremendous amount of fear, anger and confusion. Thus, it is advisable that the person filing for divorce consider discussing the divorce with his/her spouse prior to actually filing the documents. This will likely minimize the "initial blow" associated with being served with divorce documents.

Implementing the above strategies does not mean that you always have to give up on important issues. Rather, it means that you and your soon to be ex-spouse are willing to work things out in a fair and cooperative manner so that you both end up with an agreement that works for everyone. Despite efforts to achieve an amicable divorce, the divorce process can be quite complicated, especially in San Diego.

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Tips from the Bench - Appearing in San Diego Family Courts

June 20, 2013

Courthouse - San Diego Family LawyersSan Diego Family Courts can be intimidating for those unfamiliar with appearing before a judge. Whether appearing with a divorce attorney or in "pro per" (an unrepresented party), it is important for family law litigants to be familiar with the "dos" and "don'ts" of San Diego Family Courts. The following is a few tips on how to earn favor with local family law judges when appearing before them.

1. Be Respectful

texting in courtThe most important thing to remember when appearing in court is to be respectful to every individual you encounter, including the opposing party and/or attorney. Judges in a divorce proceeding are not referees and do not want to witness parties arguing or fighting with each other in open court. Therefore, it is imperative to act with civility in the courtroom by giving every person a chance to tell his/her story without interruption or argument.

Another way to respect the court and legal process is to avoid the use of cell phones and other electronic devices in the courtroom. Judges say that cell phones on vibrate are just as distracting as a cell phone ringing. So it is best to put your cell phone on silent, or better yet, turn it completely off when entering the courtroom. Further, texting in court is not advisable.


2. What to Wear and What Not to Wear

how to dress in san diego family courtWearing the appropriate clothing to court does not go unnoticed by the local family judges. When appearing in court, it is not necessary to wear a full suit or dress outside of your comfort zone. However, judges appreciate when parties are not distracting with their clothing and they dress modestly. Dressing conservatively is also another way to show respect to the court.


3. Facial Expressions, Commentary and Body Language

In San Diego Family Law courtrooms, the judges sit at a particularly advantageous vantage point and can see everyone's behavior at all times. Judges are always watching the litigants, the attorneys, and even all of the people sitting in the audience. According to family law judges, it is incredibly distracting if any person makes facial expressions, nods, shakes his/her head, raises his/her hand, and otherwise takes attention from the proceeding. Remaining still and attentive in a family law hearing may be easier said than done. It is often difficult for parties to remain calm if the opposing attorney or litigant is telling the judge information the party does not want public or does not believe to be accurate. However, in such circumstances, waiting patiently for your turn is greatly appreciated by the judge.

In all situations local family law attorneys should lead by example and demonstrate civil and appropriate behavior for litigants in court. If you have a question regarding courtroom decorum, please ask an experienced family law attorney.


Learn more about the divorce attorneys at the Law Offices of Nancy J Bickford, APC

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Can you get divorced without an attorney in San Diego?

June 6, 2013

California Family Law Practice GuideOften when non-lawyers imagine going to court they picture themselves being represented by a knowledgeable and experienced attorney. The courtroom and legal system can be intimidating to those unfamiliar with the process because of the immense amount of specific procedures and rules that must be followed. However, despite their inexperience in the legal field, many California spouses are self-represented in their divorce. When a party to a divorce action is not represented by an attorney he or she will be considered "pro per".

San Diego spouses decide not to retain attorneys in divorce actions for a variety of reasons. One of the most prevalent reasons is the cost. Family law attorneys in San Diego typically charge between $175.00 and $450.00 per hour depending on the experience level of the attorney. Depending on the particular case and the work involved, a spouse's attorney fee bill can potentially cost tens of thousands of dollars. In order to avoid that cost, many litigants utilize free legal resources available throughout the San Diego community. Unlike in criminal law, family law parties are not entitled to representation. Therefore, there is no "public defender" equivalent in the family law system.

Learn more about jurisdiction and divorce in California

In order to reduce the cost of getting divorced, if the parties are splitting amicably, some divorcing couples will elect to have one spouse hire an attorney to handle all of the formalities. In this type of case, only one of the spouses is represented by the divorce attorney. The attorney will only owe professional duties to their client, not the other spouse. If the parties are in agreement regarding all issues, the attorney can prepare all of the paperwork for an uncontested divorce while the spouses only incurs one set of legal fees.

Another alternative often utilized by San Diego family law litigants is limited scope representation. Spouses can retain an attorney to review work they have done alone on their case. Additionally, parties can hire an attorney to represent them in an important hearing or for one or two issues in the case. If you cannot afford full representation and are worried about the custody and visitation or property issues in your divorce, you may be able to find a divorce attorney willing to handle those limited issues.

Read more about limited scope issues in divorce

Despite the cost of legal representation, it is important to consider what is at stake in a family law case and whether it is worth the risk of self-representation. The consequences of making a mistake in a family law proceeding can be devastating and may persist long-term. Also, it may be prudent to consider the time and effort that is often required in a family law case and whether you will have the ability to miss days of work for court hearings and devote hours to preparation. If you are unsure about whether you want to handle your divorce alone, contact a San Diego family law attorney for a consultation to find out more information.

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How a Later Date of Separation in a San Diego Divorce May Weigh In Your Favor

May 20, 2013

Divorce Date of SeparationIn a San Diego divorce, a party's date of separation is the first date when either party subjectively (mentally) decided the marriage was over, finished, and not salvageable. The parties' overt actions usually demonstrate that subjective frame of mind. For instance, there can't be ongoing marriage counseling to save the marriage after the date of separation. The date of separation of the parties to a divorce can be a hotly contested issue. Sometimes, when parties do not agree on the date that they separated, the court must step in to help.


In fact, it is quite common for divorcing spouses to disagree about when their date of separation is. These disagreements are usually financially motivated since California is a community property state. This means that in California, community property rights only accrue from the date of marriage until the date of separation. Thus, the date of separation can significantly affect the size of the divisible community estate during a divorce. Some legal, financial, and other practical considerations for the parties to keep in mind when considering divorce and arriving at a date of separation (by way of agreement or decided by the Court) include the following:

  • Stock options: Divorce attorneys will advise their clients that a later date of separation will usually give the community more interest in a stock option.
  • Post-separation bonuses: A later date of separation will give the community a greater interest in a post-separation bonus upon divorce.
  • Pensions: A later date of separation in a divorce will give the community more interest in a pension.
  • Spousal support: A later date of separation from your spouse may provide for more spousal support. The duration of the marriage is one of the twelve factors a California court will weigh in determining the amount and duration of permanent spousal support.
  • Value of a business: A later date of separation in a San Diego divorce will value a sole practitioner's business at a later date.
  • Pereira or Van Kamp considerations: If the separate property business was brought into the marriage, the community's interest would stop growing at the date of separation.

Later Date of Separation San Diego divorceThe implications of the date of separation in a divorce can be quite significant. With the above considerations in mind, if for example Husband is the primary breadwinner and Wife is a stay-at-home mom, Wife may want to establish a later date of separation in order to maximize the community estate. Husband, on the other hand, may want to establish an earlier date of separation for the divorce so that his income, bonuses, commissions, etc. earned after the date of separation will be characterized as his separate property instead of community property. Clearly, selecting the date of separation can be a complicated matter that may require the advice of an experienced divorce attorney.


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California Family Code Failed to Protect Mother Ordered to Support Daughter's Abuser

May 16, 2013

San Diego Spousal Support BlogSpousal support is an issue commonly litigated in a divorce in San Diego. Carol Abar filed for divorce after sixteen years of marriage, when she learned that her husband had sexually assaulted her daughter. In a hearing on spousal support (commonly referred to as alimony in San Diego), a California family court ordered Ms. Abar to pay $1,300 per month in support to her daughter's abuser. Although Ms. Abar presented evidence to the court that her husband molested her daughter for years, the court determined that an award of spousal support was appropriate in the divorce case based on the parties' relative income.

In 2012, Ms. Abar's ex-husband, Ed Abar, plead guilty to the rape of her daughter and was sentenced to approximately one year in jail. At that time, Ms. Abar had paid about $22,000 in spousal support. While Mr. Abar served his sentence, the family court temporarily stopped payment of support. Recently, Mr. Abar was released and is now requesting $33,000 in arrears. Mr. Abar is also requesting the court to order Ms. Abar to resume support payments.

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It is clear that such a spousal support award is an outrageous miscarriage of justice. In order to tighten the gaps in the California Family Code which may allow perpetrators of domestic violence to collect spousal support, Governor Jerry Brown signed more stringent legislation last year. As divorce attorneys in San Diego are aware, if at the end of a case either party has requested spousal support, the court will weigh 14 factors which are listed in Family Code §4320. Upon consideration of these factors, the court will determine how much spousal support to award in a divorce case, if any. Family Court judges were always required to consider documented history of domestic violence between the parties to the divorce, and were also required to consider criminal conviction of an abusive spouse in making a decision. However, the new legislation added a different twist to those old provisions.

Newly enacted Family Code §4324.5 states that "in any dissolution of marriage where there is a criminal conviction for a violent sexual felony...an award of spousal support to the convicted spouse from the injured spouse is prohibited". This code section applies as long as the divorce is filed within 5 years of the conviction, time served, end of probation or end of parole. Now, a San Diego family court judge will have no discretion to make an award of spousal support in a divorce matter where the supporting spouse was a victim of a violent sexual felony perpetrated by his or her spouse.

Read more about spousal support from the divorce attorneys at the firm

Despite this added layer of protection for spouses, currently there is no family code provision preventing child abusers from receiving spousal support. The family code has evolved since the first support order was made in the Abar divorce case, but it seems that it will not be able to offer Ms. Abar any relief from her obligation to support her ex-husband.

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San Diego Divorce Timeline - What You Can Do to Speed it Up (Part 1)

April 18, 2013

San Diego Divorce Timeline - LitigationIn San Diego, once parties decide to file for divorce, it is not uncommon for them to be in a rush to just "get it over with". However, rushing through the divorce process is easier said than done.

One of the most important factors in determining the length of the divorce process is whether the parties and their attorneys decide to take the litigation path, the mediation path, or a combination of both.


The Litigation Path

If the parties and their attorneys determine that they are unable to work cooperatively with the other side and that court intervention is necessary, they must follow the litigation process outlined below. A highly litigated divorce typically proceeds as follows:

Petition
If a Petition has not already been filed, one party must file a Petition and Summons and formally serve these documents on the other side. This process is commonly referred to by San Diego family attorneys as "filing for divorce". The party who filed the Petition is known as the "Petitioner" and the other party is known as the "Respondent".

Response
The Respondent must then file a "Response" to the Petition within 30 days of service. Both parties will then begin completing their Preliminary Declarations of Disclosure which includes a Schedule of Assets and Debts and an Income and Expense Declaration. Within these documents, the parties will explain their income and their monthly expenses in addition to identifying all community property assets and obligations.

Motions
Next, the parties can file various motions requesting relief such as temporary child or spousal support, temporary child custody and visitation orders and attorney fees. The timeline for all motions to be heard ranges from an average of 30 days to a year depending on the number of motions, complexity of issues and requests for continuances. If custody and visitation is a disputed issue in the case, the parties must attend Family Court Services mediation or another private mediation.

Discovery
The parties may conduct discovery to find out more information regarding disputed issues. If spousal support is disputed, the parties may investigate issues such as income and assets. If any disputes arise during the discovery process, the parties may file Motions to Compel with the Court to enforce their rights. Should the parties have complex assets or income which is difficult to ascertain, one or both parties may elect to hire experts to weigh in on these issues.

Mandatory Settlement Conference
In San Diego, before the case proceeds to trial, the parties must attend a Mandatory Settlement Conference. This is a meeting between all parties, attorneys, and an independent experienced local family law attorney. If the parties do not reach an agreement, the case may proceed to trial. At trial, both parties present their side of the story with regard to disputed issues. The judge will make a ruling and determine the outcome of all disputed issues.


It is evident from the above timeline that a litigated divorce takes a significant amount of time, money and effort. Even with the assistance of counsel, many divorcing spouses who litigate a large amount of issues call their divorce a "full time job". In our next blog post, the divorce attorneys at the firm will post about "The Mediation Path". Stay tuned!


Continue reading "San Diego Divorce Timeline - What You Can Do to Speed it Up (Part 1)" »