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Dividing Art in Your San Diego Divorce

February 25, 2015

dividing-art-divorce.jpgDivorcing couples must divide their house, cars, money, furniture, businesses, retirement accounts and everything else they own. Division of property is just one unpleasant but inevitable part of the divorce process. In most cases, the parties own few antiques or family heirlooms, if any at all, and possibly a few other valuable items. However, for those couples with several pieces of art or even an art collection, dividing personal property can be much more complicated.

Many collectors of art are sentimentally connected to specific pieces and do not look at the piece of art the same way they would look at any of their other assets, like a savings account for instance. Consequently, the art collector will be less likely to divide the art in the same manner that he/she is willing to divide the kitchen appliances or family vehicles. Therefore, when dividing art it is important for the divorce attorneys and parties to find a solution that will make everyone as happy as possible.

Before coming up with a solution to divide the art, the parties are advised to make an inventory that details each piece of art that was acquired during their marriage. They should also include, in the same or a separate list, all art acquired prior to the marriage or after the parties' separation, which will be confirmed as the respective party's separate property. One way to inventory the art is to create a spreadsheet that lists the name or brief description of the piece of art, the place where the art was purchased, the current location of the art (i.e in the family residence, in a storage unit, displayed in a gallery, etc.), the purchase price and the current value, if known.

Dividing-assets-divorce.jpgThe value of the art is not necessarily the price that was paid for it. So in order to know the value of the art, the parties might consider hiring an appraiser to come appraise each piece of art. It may seem like just one additional cost to add to the ever growing divorce expense list, but having the art appraised could make a big difference when figuring out how to equitably divide it between the spouses. If the spouses cannot agree on a joint appraiser, then each spouse can hire their own appraiser. However, if the appraisals conflict significantly, it may make negotiations over division of the art a bit more complicated. One way to resolve this issue is for the couple to agree to split the difference between the two conflicting appraisals. If the couple (with the help of their attorneys) is able to figure out a way to divide the art, rather than taking the issue to Court, everyone is more likely to come out happier with the result.

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Should I Change my Name After Divorce?

divorce-name-change.jpgA name change is one on the top of the "to do" list when a couple first marries. The new bride will decide whether she would like to keep her maiden name, take her husband's last name or hyphenate the two. Recently, some grooms have also changed their names upon marriage taking their new bride's name or even hyphenating their names. Although the groom name change is a new trend on the rise, more often than not, the bride will take some form of her new husband's name instead. Often at the time of divorce, there are many other stressful and pressing factors to consider besides a name change. In addition, depending on the length of the marriage, it may seem like second nature for the wife to continue using her married name without considering a name change.

If you are going through a divorce it is important to consider whether or not you would like to be restored to your former name prior to finalizing your divorce. If you and your spouse have resolved your divorce by agreement, it is easy to check the name change box on the final forms and/or include the appropriate provisions in the settlement documents. If you and your spouse did not reach an out-of-court settlement and proceed with trial, you can request a name change from the judge at the end of your case. After the divorce process is complete, the procedure for a name change is more difficult. If you are considering a name change during the pendency of your divorce, it is important to discuss that issue with your attorney so that he or she can take the proper steps to ensure the change is included in the final divorce paperwork.

divorce-name-signature.jpgIf you have already changed your name pursuant to your final divorce judgment, there are still additional steps you must take in order to complete the process and avoid future logistical problems. With a new name, you will need to obtain a new social security card. Your social security number will not change, but your name will appear different on your new card. Procedures for requesting a new social security card are outlined on the Social Security Administration's official website. A request for a new social security card can be submitted personally at the nearest Social Security Administration office or by mail.

After you obtain a new social security card, you will need to request a new driver's license from the California Department of Motor Vehicles. Unfortunately, the DMV requires you to appear in person in order to request a new driver's license under these circumstances. With a new driver's license and social security card, you can request a new passport, credit cards, debit cards and update all of your information on other financial accounts.

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What to do When you Receive a Litigation Hold Letter

February 9, 2015

Litigation-hold-esi.jpgIf you have recently retained an attorney to represent you in your divorce proceeding, chances are that you already have or will soon receive what is known as a "litigation hold letter." Although you will inevitably receive many other letters and forms at the onset of your divorce proceeding, it is important to pay close attention to this particular letter.

Family law attorneys will typically send their clients a litigation hold letter right after the attorney has been retained by the client. These written directives are also known as "preservation letters" or "stop destruction requests." In anticipation of potential future litigation, a litigation hold letter or notice is essentially written instructions requiring that you preserve all documents and electronically-stored information ("ESI") which could be relevant evidence. ESI refers to any information that is created, stored or utilized with computer technology. This includes emails, computer and network activity logs, digital recordings, voice mails, web-enabled cell phones and portable devices, internet files, computer drives, disks, CDs, etc.

Generally, the obligation to preserve evidence begins when a party knows, or reasonably should know, that the evidence is relevant to future or current litigation. In other words, the evidence is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, or is the subject of a current discovery request from the opposing party. Thus, if not already triggered, receipt of the litigation hold letter will trigger the duty to preserve relevant evidence.

litigation-hold.jpgThe scope of the hold depends on the specific facts of the case and what is likely to be at issue in future litigation. Typically, the hold will apply to all sources of data including emails, calendar entries, cell phones, accounting software, hard drives, thumb drives, contacts and task lists. Most documents today are in digital form, which is why preservation of ESI is particularly important. This does not mean that you have to save every single email or scrap of paper, but you should suspend routine destruction of documents and ESI as it relates to relevant evidence that might be useful to your opposing party. Even if your hard drive or phone breaks, for example, you need to refrain from disposing of it until your attorney says it's okay.

If you have any questions before you delete anything or throw something away, you should speak with your attorney because there are severe penalties for what the court deems to be the destruction of evidence. You may be exposed to possible liability and sanctions. For instance, the Court may prohibit you from presenting certain evidence yourself, the court may decide issues without any input from you or the court may even make you pay for the recreation of the lost or damaged electronically stored information.

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Life Insurance and Support in Divorce

divorce-life-insurance.jpgAt the beginning of each divorce case, the parties always have questions regarding how the divorce will impact their daily lives, especially their finances. One of the biggest issues, and often most disputed, is support. The parties cannot plan for their separate futures until they know whether a support order will be made and the level of support which will be ordered. Once the parties have a support order or agreement they will next consider what that support amount is intended to cover? Will my spouse have to continue paying my health insurance? Will my spouse pay for our children's health insurance? Will my spouse pay for uncovered medical and dental expenses? Will my spouse pay for extracurricular activities? Will my spouse pay for childcare? Typically these are the main concerns for divorcing parties when discussing support issues. However, it is not uncommon for family law litigants and their attorneys to forget one important issue - support in the event of the death of the paying spouse.

Life insurance can be an uncomfortable topic of discussion; however, the issue of life insurance is an extremely important subject to include in divorce settlement negotiations. In the event that the parties cannot reach a full agreement regarding all issues, they can ask the court for orders. The court has jurisdiction to address the issue of life insurance and to make appropriate orders for the parties. In cases where child and/or spousal support amounts are relatively high, it is reasonable to consider insuring the paying spouse as a form of security for support. In high conflict cases the supporting spouse may be hesitant to agree that his or her former spouse will be the beneficiary of an insurance policy on the supporting spouse's life. The supporting spouse often says "I don't want to give my former spouse more incentive to kill me". This type of argument will not likely be given much weight by a family court judge.

divorce-insurance.jpgThrough agreement or court order, once the parties determine that the supporting spouse's life should be insured as security for support, the attorneys and clients should discuss the amount of policy and which party should be responsible for the premiums. In cases where the parties take out life insurance as security for child support, the supporting spouse may be ordered to pay the life insurance premiums in the form of additional child support. If available, the parties often agree that the supporting spouse shall maintain a currently existing life insurance policy. The total amount of insurance should be based on the monthly support obligation and the number of years support will likely be paid. Each case is unique; therefore, it is important to discuss the issue of life insurance as security for support with an experienced family law attorney.

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Changing Your Mind from Legal Separation to Divorce

January 26, 2015

separation-divorce.jpgThe term "Legal Separation" and "Dissolution" are distinctly different in that a legal separation does not result in dissolving the marriage itself, while a dissolution of marriage does indeed dissolve the marriage and will return the parties to their single status. There are several reasons why a spouse may want to file a petition for legal separation rather than a petition for dissolution of marriage. Some common reasons are because of the person's religious background, an interest to maintain certain healthcare benefits, or perhaps because the parties do not qualify to file for divorce because they have not met the residency requirement (there is no residency requirement to file a petition for legal separation in California).

If you initially filed for a legal separation for one of the reasons listed above or for any other reason, but you decide that would prefer a divorce, then you will need to convert your case into one for divorce. In California, you are able to convert your legal separation to a divorce at any point during the legal process, even after your legal separation is final. Either spouse can be the one to request that the legal separation be converted into a dissolution of marriage.

FAQ's.jpgIf a judgment of legal separation has not yet been obtained (meaning that you have filed your petition for legal separation but the proceedings are still pending) and your spouse has not yet responded to your petition, then so long as the residency requirement is met, you (the Petitioner) can simply file an amended petition and check the box for "Dissolution of Marriage". Your spouse will need to be served again with the amended Petition. However, if a judgment of legal separation has not yet been obtained but your spouse has already filed his or her Response to your original Petition for Legal Separation, then you may need to request approval from the Court.

If a judgment of legal separation has already been obtained from the court and you later decide that you would prefer a divorce, then you cannot just file an amended petition. Instead, you will need to start over with a new case by filing a petition for dissolution of marriage and pay the filing fee again.

Regardless of the status of the petition for legal separation, either spouse can petition the Court for dissolution of marriage. Because of this, it is typically better to simply petition for dissolution of marriage from the get-go unless both parties agree to the legal separation or a legal separation would benefit one or both parties. Also, it is important to keep in mind that the six month waiting period to be returned to single status does not start ticking until the Petition for Dissolution of Marriage has been served on the Respondent, despite the status of the petition for legal separation.

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I Filed for Divorce - Can I Change My Mind?

dismiss-divorce.JPGIt is not uncommon for spouses who have filed for divorce to question their decision to end the marriage multiple times throughout the process. Getting a divorce is life-changing for both spouses. Sometimes, after one or both parties realize the implications of divorce, they begin to reconsider whether their differences are really "irreconcilable". If you have filed for divorce, but would like to take a step back from the proceeding to reassess your decision, there are a few options to consider.

Reconciliation: If you and your spouse have made the decision to reconcile and no longer wish to pursue a divorce, you may dismiss your divorce petition. Once you dismiss your divorce case your proceeding will end, but neither side will receive a refund of any fees or costs expended pursuing a divorce. This is an important consideration because if the divorce petition is dismissed, but you later decide to re-file for divorce, both parties will have to pay their respective $435.00 filing fees just to file their initial paperwork.

Legal Separation: If you are not ready to obtain a divorce, but also are not interested in reconciliation, you have the option to convert your divorce petition into a petition for legal separation. Through the legal separation process, the parties can obtain similar orders as through the divorce process such as support orders, custody and visitation orders and property division orders. After making a request for legal separation, the court will continue to track your case setting status conferences and encouraging you and your spouse move through the system. If you change your mind later, you also have the option to revert back to the divorce process and terminate your marital status.

dismiss-divorce-petition.JPGSuspend the Proceedings: While parties are attempting to decide whether to continue with the divorce or legal separation process, they have the option to suspend the divorce process through agreement. The parties or their attorneys can prepare a stipulation and order that is filed with the court that will put the entire case on hold. Divorce litigants are not be required to fulfill deadlines and make court appearances while their divorce case is suspended. You may also want to suspend the proceedings if you and your spouse have decided to get a divorce, but cannot actively participate in the process. Parties may agree to suspend the divorce process for medical reasons, work-related concerns, or even issues related to their minor children.
If you are trying to navigate the procedural options for your divorce, it is important to consult with an experienced family law attorney to learn the implications of each option.

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Qualifying for a Home Loan after Divorce

home-loan-divorce.jpgGetting through a divorce and preparing to move on from a marriage is an emotionally and financially draining process. However, if all of the issues were handled correctly, you should be able to make a new start and begin building your new future without your former spouse. Unfortunately, sometimes important issues fall through the cracks because they were not within focus for the parties at the time they negotiated their settlement. If you want the ability to purchase a new home after divorce, below are some considerations which must be addressed at the time of settlement or trial.

It is not uncommon for divorced parties to discover that they are still liable on their old home loans when they approach a bank for a loan on a new home. In many San Diego divorces, one party buys the other party out of their interest in the parties' home and remains in the marital residence (often with the children). When the parties reach these types of agreements, their settlement documents might only contain a provision awarding the home and all encumbrances to one party with a simple "hold harmless" clause. This means that the party retaining the home is responsible for all obligations encumbering the home. However, this provision is irrelevant to the creditor who holds the note on the loan. The creditor can still seek payment from either party. The only way to get off of your home loan is to sell the home or have your spouse refinance the home into his or her name alone.

home-loan-checkbook.jpgDepending on your finances, if you are still liable on a home loan, you will likely not qualify to purchase a new home even if your spouse is responsible for the debt. It is important to talk to a certified family law specialist regarding this issue before your divorce judgment is finalized. If your spouse will not qualify for a refinance in his or her name alone, you may want to consider selling the home so that you are able to separate that one remaining financial tie. If your spouse may qualify for a refinance, ensure that your divorce judgment has appropriate provisions in place regarding transfer of title and a deadline for the refinance. For example, you can require that your spouse refinance the home within 120 days of execution of the settlement. If your spouse does not refinance, the home will be listed for sale. If your spouse does complete the refinance, you will execute a quitclaim deed transferring title to his or her name alone.

If you do agree to a buy-out by your spouse and your spouse is unable to refinance the home, it is important that your name remain on title to the home. Review your settlement documents carefully to ensure you are not required to transfer title without your removal from all related loan obligations.

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I've Been Selected as a Non-Professional Supervised Visitation Provider, Now What?

December 29, 2014

supervised-visitation.JPGAs discussed in my previous blog, "Supervised Visitation as a Safeguard in Divorce Cases," a family law judge may order supervised visitation when necessary to protect the safety of a child. A non-professional provider is typically a friend or family member of the parents who provides the supervised visitation services without pay. If you have been selected as the designated non-professional supervised visitation provider, then you will want to become familiar with your role and duties.

Supervising visitation is a very important responsibility and can be difficult. You must be able to not only follow the court order but also to set your personal feelings aside and have adequate time to supervise properly in a structured setting. Essentially, your role is to help contribute to the welfare of the child.

As the supervised visitation provider, your specific duties will include the following:
1) Get a copy of the court order from one of the parents, the parent's attorney or the Court Clerk's office. Read the court order so that you know the times, places, restrictions and other conditions of the visitation.
2) Do not allow the parent to discuss the court case with the child
3) Do not allow the parent to make derogatory comments about the other parent to the child.
4) Be present during the entire visit and make sure that you can clearly see and hear all conversations and contact between the parent and child
5) Avoid taking sides with either parent and instead remain a neutral third party
6) Although not mandated by law, you are encouraged to obtain training in identifying and reporting child abuse and neglect and to report any known/suspected instances of child abuse or neglect to the child abuse agency or child abuse hotline.
7) Do not allow any emotional, physical or sexual abuse. This may seem like a no brainer but remember that this includes spanking, tickling too hard, or even just threatening the child.
8) Do not allow visitation to occur when the parents appears to be under the influence of illegal drugs or alcohol.

supervised-visitation-flower.JPGIt's imperative that you are strict with setting rules and that you do not let the parent violate any of your rules or stray outside of the court order. Family Code Section 3200.5 specifically requires that "Each provider shall make every reasonable effort to provide a safe visit for the child and the noncustodial party. If a provider determines that the rules of the visit have been violated, the child has become acutely distressed, or the safety of the child or the provider is at risk, the visit may be temporarily interrupted, rescheduled at a later date, or terminated."

Spending time with a child in the presence of a third party supervisor can be very uncomfortable and awkward for both the parent and the child. However, acting as a non-professional supervised visitation provider can be rewarding to protect the welfare of a child and watch the relationship between a parent and child grow.

If you anticipate supervised visitation orders as part of a child custody battle, it is important to know that a lawyer can help you understand the process accurately. Our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California's child custody laws, we encourage you to contact us as soon as possible.

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Option to Hire a Privately Compensated Temporary Judge

December 16, 2014

temporary-judge.jpgIf you are going through a divorce then you are likely aware of how impacted the courts are, due to a limited budget, and how long a divorce can be drawn out as a result of court hearings being scheduled months out. Impacted courts are especially a concern for litigants going through a divorce who are dealing with a heavily emotional legal case.
Couples who need the Court's assistance with getting permanent orders with regard to child custody, division of property, spousal support or other issues related to a divorce, may need another avenue to end their divorce sooner. Privately compensated temporary judges offer just that.

Perhaps the acronym PCTJ has come up in discussions with your attorney or opposing counsel. PCTJ stands for Privately Compensated Temporary Judge. California Rules of Court Rule 2.834, which became effective January 2010, provides parties with the option to opt out of public courts and make use of a privately compensated temporary judge.

A request for the appointment of a privately compensated temporary judge must be directed to and granted by the family court judge. The parties can sign a stipulation agreeing to hire a privately compensated temporary judge, which will then become a court order.

A privately compensated temporary judge has and exercises all powers and duties of a San Diego Superior Court Judge. However, matters that occur before a privately compensated temporary judge are not held at the courthouse. Since the proceedings will be held outside court facilities, typically court personnel may not be used in the proceedings.

temporary-judge-money.jpgHiring a privately compensated temporary judge typically results in a quicker hearing and therefore quicker resolution of the disputed issue(s) in the case. However, hiring a privately compensated judge does involve an additional cost. The parties will not only incur the expenses of their attorney's fees, filing fees and other costs, but also the cost to hire the privately compensated temporary judge. The parties can agree to split the cost. However, this additional cost must be weighed against the cost of going through the public sector, which may actually rack up more attorney fees as a result of delayed hearings and potentially interrupted trials.

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New Study Identifies Indications of a Future Divorce

future-divorce.jpgAccording to a recent study highlighted by the Wall Street Journal, two economists at Emory University identified a correlation between expensive weddings and high divorce rates. In addition, the researchers also noted a connection between the price of the engagement ring and the rate of divorce. The more expensive the ring, the more often the marriage ends in divorce. Despite the statistical link between an expensive wedding or engagement ring and a subsequent divorce; the researchers were not able to conclude that the price of the wedding or the engagement ring was the cause of the divorce.

The Knot, a popular website used by brides to plan their dream weddings, reports that the average U.S. wedding costs approximately $30,000. The wedding industry today is brings in roughly $52 billion dollars in revenue each year. As a result, the industry pushes the idea that expensive weddings result in long-lasting happy marriages. In addition, the more the couple spends on their special day, the more they must love each other and want to share their joy with friends and family. Although the economists discovered that high attendance at less expensive weddings is actually correlated to a long-term marriage, the price for wedding guests to attend the wedding (often priced per person) is typically the most expensive part of a wedding.

future-divorce-toast.jpgThe study conducted by the economists tends to disprove the message perpetrated by the wedding industry based on the following findings:

Cost of the Engagement Ring: Couples who spent between $2,000 and $4,000 on an engagement ring are 1.3 times more likely to get divorced than couples who spent between $500 and $2,000 on an engagement in. It looks like less is more when it comes to the ring after all.

Cost of the Wedding: Couples who spent $20,000 or more on the wedding were 1.6 times more likely to get divorced.

Common Factors in Long-Term Marriages: High wedding attendance, taking a honeymoon, relatively high household income, regular attendance of religious services, and having at least one child together.

These initial findings are interesting, but the economists are not finished with their work on this subject. They are discussing additional research which dives deeper into specific populations and following couples through multiple stages of their relationship.

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Instruction Manual for San Diego Courthouses

court-house.jpgFor many people, their first experience with a courthouse is through a divorce proceeding. Going to court for the first time can be intimating for someone who does not know what to expect. If you have not been inside a courtroom before you likely imagine it is similar to images portrayed on television. In San Diego, the courthouses and courtrooms are vastly different than the courthouses and courtrooms shown on popular T.V. shows. Below is a list of tips to help you become prepared for your first trip to one of San Diego's family law courthouses.

Parking:
In San Diego County there are six different courthouses that your case can be assigned to. Your case assignment will be based on the zip code of you or your spouse. Some of the courthouses (Vista, South Bay, and East County) have their own parking lots where litigants can park for free. However, these lots may fill up fast so you will want to allow extra time to find parking before your hearing. The three courthouses downtown do not have connecting parking lots and do not reimburse for parking. Litigants can park at a nearby lot (with a cost ranging from $10-$24 dollars for the day) or a metered parking space. Again, it is important to allow for extra time to find parking before your hearing.

Security in the Courthouse:
The San Diego County Sherriff's Department staffs the security at all of the county's family law courthouses. When you first enter a family law courthouse you must pass through the metal detectors and place all of your personal belongings on the conveyor belt to be x-rayed. If you want to pass through security without any problems, leave any weapons (including household items that could be used as a weapon) at home or in your car. Depending on the rules at the particular courthouse your case is assigned to, you may be required to remove your jacket and/or your belt before passing through the metal detectors. The security check will take a little time, so you will want to arrive a few minutes early to account for that.

Navigating the Courthouse:
After you make it through security, locate the department that your case is assigned to and wait nearby for the courthouse to open. You can often confirm you are in the right place by reading the signs posted outside of the department. Most courtrooms will post a list of the hearings for each calendar that day. One list might say 9:00 AM and have a list of name and then another might say 1:45 PM and have a different list of names. If you think you are in the right place and your case is not listed on the appropriate list, you should check with a bailiff.

The Courtroom:
Do not be alarmed if you are in the right place at the right time, but the courtroom is locked. It is very common for the courtrooms to open up much later than the time matters are originally set to be heard. When the judge is ready to hear your case, a bailiff will make the announcement that the department is open. Once the announcement is made, file in with the rest of the litigants and check-in with the bailiff. Before the judge takes the bench, the bailiff needs to review the list of hearings and determine which parties are present. If the bailiff has checked your name off the list, take a seat and wait for your matter to be called. While you are in the courtroom make sure that your cell phone is turned off. The courtroom will likely have other rules such as no gum chewing, food, drinks, hats, etc. Family law hearings are public; therefore, you will likely hear other cases go before you and your matter will be heard with the other litigants present in court.

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Understanding the Basics of Preliminary Declarations of Disclosure

November 10, 2014

PDOD-divorce.jpgAfter you retain a family law attorney and file your petition or response for dissolution or separation, one of the first things that your divorce attorney will likely do is hand you a blank Form-150 and Form 142 and ask you to start gathering a plethora of documents related to your income, assets and debts. This can be very overwhelming for clients, especially those who are still dealing with the emotions and shock of grasping that they are about to go through a divorce. Consequently, the importance of preparing complete and accurate preliminary declarations of disclosure ("PDODs") is often ignored because it appears to be a very daunting task for divorcing spouses.

Family Code Section 2100 specifically states that "a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties." It's important that the parties get started on their PDODs right away because pursuant to Family Code Section 2104, the petition must serve his/her within 60 days of filing the petition and the Respondent must serve hers/his within 60 days of filing the response. Also, having PDODs allows the parties to move forward in identifying potential issues of dispute and resolving financial issues early on.

The PDODs are comprised of the following:

1) Declaration of Disclosure (FL-140): This form is signed by the party and is simply a summary of the attachments enclosed with the PDODs. You will note that all tax returns (personal, corporate, etc.) filed in the past two years need to be included.

2) Income and Expense Declaration (FL-150): This form is a summary of the party's current income from all sources and his/her monthly expenses. Paystubs from the past two months need to be attached to the form.

3) Schedule of Assets and Debts (FL-142): This form sets forth a summary of the party's assets and debts. Many people think that their separate property doesn't have to be disclosed; however, all known assets and debts, including your separate property, community property and your spouse's separate property that you know of must all be disclosed. This means all tangible and intangible items ranging from a residence to airline frequent flyer miles to student loans. Along with each asset or debt listed, you need to attach supporting documents. You may redact part of the account number on the account statements to protect your privacy.

4) Declaration Regarding Service of Preliminary Declaration of Disclosure (FL-141): This form is confirmation that of the date that you served your PDODs on the other party.

5) Proof of Service (FL-335): The proof of service is what is actually filed with the Court to let the Court know when you served the other party with your PDODs.

Failing to have complete and accurate preliminary declarations of disclosure can lead to potentially significant monetary and other sanctions. However, if you serve your PDODs and later realize that you have changes or updates, you can amend your PDOD at any time. However, you must file a Proof of Service of each amendment with the court.

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Which Spouse Should File for Divorce?

who-file-divorce-001.jpgIf you and/or your spouse are contemplating divorce, one of the initial considerations is whether you should file for divorce or wait for your spouse to file first. Specifically, is there an advantage or disadvantage to filing for divorce first? In a typical divorce proceeding, it does not make a big difference whether you are the petitioner (first to file) or respondent in your case. In the court's view, both parties are on a level playing field. The petitioning party is not penalized for filing first, but he or she is also not rewarded in any way. In addition, the San Diego Superior Court charges the same filing fee ($435) for filing the Petition for Dissolution and the Response to Petition for Dissolution. Combined, the parties will spend $870 just to make their appearances in a divorce proceeding.

There can be a slight advantage to being the first to file for divorce if you and your spouse reside is different zip codes. Your divorce case will be assigned to a particular courthouse based on representations made in the Petition. If you would like your case heard at the courthouse near your home, you should file a Petition before your spouse. If you believe there may be some advantage to you if the case is heard at the courthouse your spouse's zip code is assigned to, you can file a Petition and have the case assigned to that courthouse. The petitioner will decide which courthouse his or her divorce case is assigned to. Consulting with an experienced family law attorney who has worked in the different courthouses throughout San Diego County can help you make the decision regarding where to file your case.

In a small number of cases, the first party to file can have a significant outcome on the divorce proceedings. If you and your spouse live in different states or even different counties within California, you should consider filing for divorce as soon as possible. When two spouses live in different counties, the responding spouse will be required to travel to a different county to attend court hearings. This has the potential to be an inconvenience and makes communication with a local attorney slightly more difficult. However, if you and your spouse live in different states, you will want to compare the laws of that state to family code statues and cases in California. It is imperative that you consult with a divorce attorney immediately to determine if you could be greatly disadvantaged if your spouse files for divorce out of state.

If you and your spouse share minor child(ren), the jurisdictional issues involved in your case may be even more complicated. Becoming informed of your options is the first step you can take towards protecting your rights.

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Divorce for Men

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

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

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

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

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

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VA Disability Compensation and Divorce in San Diego

October 14, 2014

VA-disability-compensation-001.JPGSan Diego is known for its large population of military members and their families. In the San Diego County there are 16 naval and military installations of the U.S. Navy, U.S. Marine Corps and U.S. Coast Guard. We at the Law Offices of Nancy J. Bickford are grateful for the countless sacrifices that our military men and women make. We understand that many military members receive injuries or disabilities (both mental and physical) as a result of their service, or have injuries that are made worse during service or training. In San Diego, when a veteran is going through the divorce process, he/she may be concerned about how much of his/her disability compensation from the Department of Veteran's Affairs will be lost due to property division, spousal support and child support obligations.

VA disability compensation is a monthly tax-free benefit that is meant to provide veterans and their families with reasonable and adequate compensation for such injuries or disabilities. The amount of the disability compensation that a veteran is eligible to receive depends of the seriousness of the disability and its effect of the veteran's ability to earn a living. VA disability compensation is not necessarily subject to the same rules of division in divorce as most other types of income or assets.

Division of Property
With regard to property division in a divorce, VA disability compensation is not considered an asset in divorce. Unlike military retirement benefits, which are considered a marital asset subject to division, the Uniformed Services Former Spouses' Protection Act clearly exempts VA disability compensation from being treated as a marital asset subject to division upon divorce. This means that if a spouse establishes that a bank account contains only VA disability compensation then these funds would be awarded to the veteran as his/her separate property.

Spousal Support
When a Court calculates the amount of spousal support owed, typically all sources of income will be taken into account. Since VA disability compensation is nontaxable, not subject to claims of creditors and not community property subject to division, many veterans assume that their disability payments are untouchable for purposes of calculating spousal support. However, many state courts have held that VA disability compensation may be considered income for purposes of calculating a spousal support award.

Child Support
A family law judge has the right to consider VA disability compensation as income available for child support. Also, if the party fails to pay court ordered child support then the party's VA disability compensation may be garnished.

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