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Can illegally obtained computer evidence be used as evidence at hearing or trial?

beach-wooden-posts.jpgDivorce is an emotional time whether or not the split is amicable. These emotions can cause people to make choices they would otherwise never make, such a looking through their former spouses computer or cell phone. Whether the clandestine act is out of sheer curiosity or for a specific purpose, a great deal of information can be learned about a person by looking through their cell phone or computer. This may include bank statements for accounts that were previously unknown, emails, dating profiles, messages to friends about the marriage or a possible affair.

In more extreme cases, one party may put tracking software on the other party's computer, such as key logger software, to track every move the other party makes on their computer. This could lead to very damaging evidence that would be very helpful in a divorce case.

The problem is you probably cannot use any of the information you obtained, and could end up facing a lawsuit by your former spouse and/or jail time for violation of several California laws as well as Federal laws.

magnifying-glass.pngIn California illegally obtained evidence cannot be admitted as evidence in a court proceeding if the manner in which the evidence was obtained violates the Penal Code. This includes tape recording a conversation without the other party's consent, eavesdropping on a private conversation, or accessing/recording the contents of another person's electronic device (computer, phone, etc.) without their permission.

There are two exceptions to this rule:
1. Illegally obtained evidence can be admitted if it comes from another source, or would have been or was discovered independently.
This means if you discovered the other spouse had a previously undisclosed bank account because you broke into their computer and found emails from the bank, but subsequently learned about the secret account when you found a bank statement on the kitchen counter, you could use the evidence.

2. The individual from whom the evidence was illegally obtained waives the right.
This would generally include the other party providing the evidence by way of a response to discovery or in testimony.

There are other ways the evidence can be used, but not admitted at trial or hearing. For example, if the evidence is used to refresh a witnesses' recollection of certain events. This is because the evidence being used to refresh the witness's' recollection is not being introduced; it is simply an aid to the witness to recall an event he/she is testifying about.

Another way illegally obtained evidence can be used is to impeach a witness's credibility. This means, if the other party testifies that they have no accounts with ABC Bank and Trust, you can use the illegally obtained evidence to prove they do have accounts at ABC Bank and Trust.

A note of caution...just because you may be able to use illegally obtained evidence in your family law matter does not mean the other party cannot file a law suit against you for illegally obtaining the evidence in the first place. Moreover, you may still be subject to an indictment for violations of the penal code for any actions taken to obtain evidence from another party illegally. Remember, illegally obtained information is by definition "obtained illegally."

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Does My Job Make Me More Prone to Divorce?!

broken-marriage.jpgIn today's fast-paced, "money-hungry" world, finding a balance between work and family life seems to be a constant struggle for many people. Many people blame their job or their spouse's job as the root of the cause of their divorce. There have been studies done that indicate that a person's particular occupation can be a predictor of whether a marriage is more likely to succeed or fail.

Perhaps it's that people with certain personalities are drawn to certain jobs. Or maybe it's that the job itself leads to a higher chance of divorce because of the number of hours spent away from your spouse, the increased chance of infidelity, or the extent of the toll your job takes on you mentally, emotionally, or physically. Either way, people in certain jobs appear to have a higher risk for divorce over people in other professions.

A 2009 study entitled, "A Comparison of Law Enforcement Divorce Rates with Those of Other Occupations" was published in the "Journal of Police and Criminal Psychology" and is based on data from the 2000 U.S. Census.

Highest divorce rates by profession include:
• Dancers and Choreographers - 43.05%
• Bartenders - 38.43%
• Massage Therapists - 38.22%,
• Entertainers, Performers and Professional Athletes - 28.49%.

broken-marriage-cocktails.jpgConsidering the fact that bartenders are constantly interacting with people of the opposite sex, there is easy access to alcohol and late night work schedules, it makes sense that they are among the group of professions with a high divorce rate. Similarly, massage therapists spend a significant amount of time in private settings with their client, which has a higher chance of leading to infidelity and a subsequent divorce. The lifestyle of an entertainer, performer or athlete is not necessarily conducive to married life due to the fact that they are on the road often and away from their spouse. The large amount of fans make the possibility of adultery more likely, which again, is a big cause of divorce.

Lowest divorce rates by profession include:
• Engineers, legislators, dentists and farmers - less than 10%

These jobs tend to yield a steady/higher income, which may help married couples avoid financial arguments. These careers also typically require a high level of communication, which is likely to also play a role in keeping the marriage together.

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How can you tell if your spouse is spying on your computer, and what can you do to protect yourself?

spying-spouse.jpgWith the advent of laptop computers and the smartphone, you can take your digital life everywhere with ease and convenience. So much can be done on the go with these devises, but there is a downside to the convenience. It seems like every couple weeks you hear a news report about another Hollywood starlet getting her phone or computer hacked. With so much information stored on our smartphones and laptops, learning that someone has accessed your device without your consent can be both scary and infuriating. Everyone expects (or at the very least hopes) that the private information on their computer or smartphone will stay private. But how can you tell if your spouse is spying on your electronic devises, and more importantly how can you protect yourself from being spied on.

There are many reasons your spouse may be spying on your electronic devices. Perhaps your spouse thinks you are having an affair, or secretly hiding money or stealing from a family business. Your spouse may think you are drinking or using drugs and hopes to use this evidence against you in a custody battle. Whatever the reason, there are ways to finds out if your spouse is spying on your electronic devise.

Programs
There are many online applications or antivirus programs that can detect tracking software or key logger programs have been installed on your computer. Many can be downloaded for free off the internet or ordered online for a reasonable price. While not fool-proof, using these programs is a good start and could provide peace of mind that you're not being tracked or spied on.

Professional
If you have a really strong feeling you're being spied on, or if one of the programs indicates the possibility of tracking software on your computer, it is best to bring your device to a professional who can inspect the device more closely. These professionals can also take steps to remove any suspicious software on your computer. This is a more costly route, but in the end it is worth the money to know your private life is staying private.

Common Sense
Your intuition and common sense is probably the best indicator of whether you're being spied on. If your former spouse seems to know things they should not know, or is acting suspiciously around you or your electronic devices, there is a good chance they are up to something, and you should take action.

So what can you do to protect yourself? The following is a non-exhaustive list of suggestions to avoid your electronic devises being compromised:

spying-spouse-password.jpg1. Change your password. When you do change your password, choose a strong password that incorporates, number, letters, and symbols so it is more difficult to crack. Do not use your dog's name or worse the word "password."

2. Make sure to password protect your phone. It may seem like an inconvenience to have to enter a password every time you open your phone, but with so much information now stored on our phones, this is an absolute must. Any inconvenience is far outweighed by the security a password protected phone provides.

3. Avoid agreeing with Chrome/Firefox/Safari when they ask if you want the browser to remember your password. This is like giving a burglar your key. All he needs to do is wait for you to leave and he can come right in and clean you out.

4. Always logout of programs that contain private information. Again, it may be a minor inconvenience, but it is better than having your privacy compromised.

5. Install a monitoring program to periodically check for tracking software and key logger programs.

None of these suggestions are fool-proof, but they can be helpful in deterring your spouse from spying on your computer or smartphone. If you are in the middle of a divorce, or are considering a divorce, and you believe your spouse may be spying on your electronic devises, it is important to take steps to maintain your privacy and protect yourself.

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Co-Parenting Fido with your Ex-Spouse

co-parenting-dog.jpgFor many couples, worrying about who will get custody over the family pet is just as important as worrying about custody of the children. This is because pets are like family for many people. Although pets are treated like personal property under the eyes of the law in California, they shouldn't be treated like just any other piece of personal property (like a piece of furniture) after the divorce is finalized and custody of the pet is determined. If your divorce results in joint custody of your family pet, it is important that you put the same time and effort into co-parenting your pet as you would for your children.

The first step of co-parenting is to have a clear custody plan in place. If your divorce judgment states that you and your ex shall share joint custody but does not outline a specify custody arrangement, it is important to quickly put one in place. Many of the same principals used for custody/visitation of children can be applied to sharing custody of a pet. If you have children and are sharing joint custody of the children as well, then perhaps the pet can go to the other parent at the same day/time that the children are exchanged. The important thing to remember is that routine and consistency is vital. Just like children, changing a pet's living situation can cause a lot of stress and trauma to the pet, which can result in an array of behavior issues. Thus, once a custody arrangement is agreed upon, it is important that both "parents" stick to it.

co-parenting-pets.jpgIn addition to divvying up custody and visitation of your pet, co-parenting requires cooperation in a variety of other aspects: food, grooming, medical care, expenses etc. With regard to the pet's food, you should work with your ex to choose the same brand of food for each household. As far as grooming, it is suggested that you and your ex decide to keep your pet groomed in a standard way or at least have a selection of acceptable "looks" so that there is less room for conflict when it comes to grooming day.

A big aspect of pet co-parenting is dealing with the sharing of costs related to the pet. Costs may include medical care, daycare, training, toys, travel, or accessories. You should divide the pet related costs into two categories, one for basic costs and another for extraordinary costs. Typically basic costs are covered by the "parent" who has custody of the pet at the time. Bigger purchases for your pet may require a more detailed agreement. For instance, you might want to base the payment division on each parent's income level, percentage of custody, or simply cap one parent's contribution and agree that the other parent will cover costs outside that cap.

Another hot topic of pet co-parenting involves medical treatment. First there needs to be an agreement, ahead of time, not only as to who will pay for medical treatment, but how far to go with treatment, compliance with the medication plan, and potential changes in custody/visitation due to the pet's recovery time. Properly co-parenting your pet can help ensure your animal companion's happiness and well-being. Although it may be difficult to not always have your pet in your custody, try to remember that your pet will benefit by having the love of both "parents" in its life.

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Upward Modification of Spousal Support Post-Judgment

spousal-support-modify-lottery.jpgSpousal support is a hot topic in divorce not only during the divorce process but also after the parties' divorce judgment has been processed and finalized. We often meet with clients who are currently paying spousal support pursuant to court order and, based on a substantial change in circumstances, would like to request a downward modification of spousal support so they don't have to fork out so much money each month to their ex-spouse. However, we sometimes also get requests from clients who are the recipients of a spousal support award and would like assistance with getting an upward modification of spousal support so that their ex-spouse actually pays them more each month.

A person currently receiving spousal support pursuant to the initial court order may be inclined to seek an upward spousal support modification if, for example, at the time of divorce the spouse receiving spousal support was making a decent living (and thus the need for spousal support was minimal) but post-judgment that spouse lost their job or has health issues that result in an increased need for spousal support to meet that person's reasonable needs. Another potential reason that might pique a person's interest for seeking an upward modification of spousal support includes situations (although quite rare) where the person paying spousal support hits the jackpot on the lottery and arguably now has a much higher ability to pay.

A request for a spousal support modification requires the party seeking the modification to show that there has been a material change of circumstances since the most recent order. The Court will consider whether there has been a significant change in any of the factors set forth in Family Code Section 4320 (the same criteria considered for initial order) when making the subsequent modification order, if any. These factors include, among others, the supporting party's ability to pay, balance of hardships to each party, and the needs of each party based on the Marital Standard of Living ("MSOL"). The MSOL is the lifestyle enjoyed by the parties during marriage and is typically measured by the parties' expenditures during marriage, including any funds put towards savings.

spousal-support-modify-arrows.jpgWhile the Court has broad discretion to modify spousal support so long as there has been a material change of circumstances, the Court does not always have jurisdiction to do so. In many cases, spousal support is subject to subsequent modification (or even termination) so long as the spousal support order has not already expired and the court still has jurisdiction over spousal support. However, in accordance with Family Code section 3591(c), if the parties' judgment has a provision that expressly states that the parties agreed to make the spousal support award non-modifiable, then spousal support cannot be modified post-judgment. In the absence of such an agreement, the court retains jurisdiction to make a decision to increase, decrease or terminate support in a later proceeding (post-judgment) pursuant to a request by one of the parties.

It is also important to note that a post-judgment increase in spousal support being granted by the Court is highly unlikely. While there is nothing that prevents the Court from increasing support, it is simply not very common in California Family Law Courts. And even if the Court is willing to entertain the idea of an upward modification of spousal support, the spousal support award would still be capped at an amount that meets the MSOL. Even if you have an experienced attorney on your side it's important to have realistic expectations and understand that getting a significant increase in spousal support, or any increase for that matter, is not very common.

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Keeping Inherited Money Separate

March 26, 2015

inherited-money-divorce.jpgMost parents want to ensure their children have every advantage and opportunity they can afford to provide to ensure they are successful and happy. Many parents also want to leave a financial legacy for their children after they pass away in the form of trusts or inheritances. These gifts of money or inheritances are fairly straightforward. Under California law, any property received either by gift, bequest, devise, or descent, including the income derived therefrom, is considered the separate property of the party receiving the money. Like I said, it's pretty straightforward. The complications arise when the receipt of this property or money is commingled (mixed) with community property money. Unraveling the rat's nest of commingled funds can not only be expensive, but is often impossible. This is especially true when the parties have been married for a long time.
So how can you ensure you keep your inheritance after a divorce? While not bullet proof or exhaustive, the following items can help you to keep this property separate.

Don't Co-mingle your funds
This is probably the most important thing you can do to ensure that your separate money stays that way. If you expect an inheritance, or received one prior to your marriage, keep that money in a separate account in your name only. Never put income earned during marriage into that account for any reason. Once you comingle community and separate money, you will be required to perform a tracing using a forensic accountant to unravel the transaction. If that sounds expensive, you're right. Depending on the amount of transaction, and the span of time involved, tracing separate and community funds can costs tens, if not hundreds, of thousands of dollars.

Do a Pre-nup or Post-Nup
A prenuptial agreement (before marriage) and a post-nuptial agreement (after marriage) are one way to define what property or money is separate and what property or money is community. These agreements can be very helpful if a marriage ends in divorce, but they are not fool proof. Even if you have a bullet proof pre-nup, that does not stop the other party from contesting it. Just ask Donald Trump. About Ivana's challenge to Donald Trump's prenuptial agreement, Trump wrote, "[w]e needed a bus to get Ivana's lawyers to court. It was a disaster, but I had a solid pre-nup, and it held up." More importantly, even with a prenuptial agreement, if you commingle your separate property funds with community property, you could end up spending thousands of dollars just to unravel the mess.

Do an Irrevocable Trust

If you anticipate receiving an inheritance, setting up an irrevocable trust can separate and protect the principal of that inheritance. If the trust pays out income to you, that can still be considered for spousal or child support, but the trust will protect the principal assets and money.

inheritence-live-moderately.jpgLive within your means
In California, using your separate property to pay community property bills is generally considered a gift that you cannot get back. Regular gifts of income from family that are used to pay community bills can also be considered part of the marital standard of living, so be careful how this money is spent. This is not to say that you cannot use your separate property for your family, just know that if you do, it is unlikely you will get it back.

By considering the items above and speaking with a financial planner who specializes in divorce, as well as a qualified family law attorney, you can set in place a plan to protect your separate property assets in the event of a divorce.

Continue reading "Keeping Inherited Money Separate" »

Can I be Forced to Testify as a Witness?

March 25, 2015

testifying-in-court.jpgHere at the Law Offices of Nancy J. Bickford, we do our best to settle family law disputes in an amicable fashion. If the circumstances permit, we work with the parties (and opposing counsel) to help the parties reach a settlement agreement that they are both content with. Consequently, we also help them save time and money by attempting to keep their disputes out of the courtroom. However, sometimes the circumstances of the case require some or all of the issues to be litigated in court. If the case goes to trial, then there is a possibility that the attorney will need to call a witness to testify in court.

Family Code Section 217, specifically states that the court must receive any live, competent, and admissible testimony that is relevant and within the scope of the hearing unless there is a stipulation of the parties or a finding of good cause. Thus, parties who are getting a divorce and litigating their case in court have the right to call a witness to the stand during a trial to provide testimony regarding information that is pertinent to the case.

What is Live Witness Testimony?
A witness is someone who is properly qualified to provide testimony to the court regarding information that is relevant to the issues at hand. The party who called the witness will ask their questions of the witness in what is known as "direct examination." Then the opposing party will have an opportunity to conduct what is known as "cross examination."

What is a Subpoena?
If a witness will not voluntarily come to court, then that person can be subpoenaed. In Latin, subpoena means "under penalty". A subpoena is a court order that gives a person a legal obligation to appear and testify in court.

Are there any Ways to Get Out of Testifying?
If a person receives a subpoena informing him/her that their testimony is requested, then there are only very limited reasons in which that person may be excused from testifying. For instance, a person may be excused from testifying as a witness if he/she is not competent to testify due to age or illness, which prevents him/her from recalling events and truthfully explaining then to the Court. Also, if the witness is one party's attorney, priest or psychotherapist, he/she may be excused due to the special relationship in which the communication between the witness and party is privileged.

If none of the limited excuses apply to you, you may still be able to request a postponement of your appearance in Court. Such postponements, however, are not often granted and limited to reasons of death or severe illness. If no postponement is granted then you are required to appear on the date and time on your subpoena. If the postponement is granted, then you are obligated to appear on the later date and time issued by the Court.

What are the Penalties for Failing to Testify?
If you were properly subpoenaed and fail to comply with the subpoena to testify as a witness in court, the Judge, at his or her discretion, could find you in contempt of court and you could potentially face jail time and/or hefty fines.

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Breaking Divorce News to an Unwilling Spouse

March 16, 2015

telling-spouse-to-divorce.jpgSometimes divorce is mutual and other times it's completely one-sided. Going into the "divorce talk" with your spouse, you typically know whether it's going to be a mutual decision or if it's going to be completely one-sided. But what happens when you know that you want a divorce but your husband/wife does not? Is there anything you can do to make the process less painful for the both of you?

Since it takes two people to get married, it's a common misconception that it takes two people to get divorced. But the truth of the matter is that getting a divorce can technically be done by just one spouse, even if the other spouse doesn't want to get divorced. However, if your spouse is opposed to the divorce then there is probably a higher chance that your spouse will want to litigate many issues and drag the divorce out for as long as possible to rack up those attorney fees.

If your spouse is reluctant to get divorced but you know whole heartedly that it's what you want, there are a few things you can do to mitigate the consequences. First, try to avoid letting your spouse find out about you wanting a divorce from someone else. Be the one to tell him/her directly. Getting divorce papers in the mail or a phone call from another family member or friend will simply fuel the anger and resentment if you haven't taken the time to prepare your spouse for what is coming. You married your spouse, so even though there may be some legitimate reasons for wanting to divorce him or her, muster up the courage and respect to try and let your spouse down easy.

telling-spouse-about-divorce.jpgNext, you can suggest to your spouse that the two of you go to counseling together. Having a third party there will help provide a safe environment for discussing the looming divorce. You may also be able to get a better understanding of why your spouse is so opposed to the divorce. Perhaps it is because of a fear of lack of financial stability once the marriage is over. If that is the case, you might consider giving your spouse more assets or conceding during settlement negotiations to pay more support.

In addition to going to counseling together, you can also discuss the possibility of mediation with your spouse. Many divorce attorneys also provide mediation services for spouses looking for a more amicable approach to the divorce process. If your spouse understands that you are willing to move forward with the divorce in a more open and friendly fashion then he/she may be less reluctant about the divorce. The mediator can help you focus on planning for your future rather than fighting about things that have happened in the past.

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SO YOUR EX QUIT THEIR JOB...NOW WHAT DO YOU DO? [Part Two - Spousal Support]

March 12, 2015

spousal-support-job.jpgIn Part One of this blog, I discussed the issue of income imputation (often referred to as earning capacity) in child support cases. The focus of the article was about your options if the other parent voluntarily quit their job and was seeking a modification of child support. As that blog explained income imputation (assigning income to a party that is not actually earned) is fairly straight forward based on California's significant state interest of ensuring parent's support their children. If you missed this blog, and you are facing a modification of child support based on the other party voluntarily quitting their job, I highly recommend you go back and read that blog.

But what happens if there are no children; or as is typically the case, there are orders for child and spousal support? Can you still seek to impute income at a party's previous income when they voluntarily quit their job? The short answer is yes you can.

Family Code Section 4320(c) lists the earning capacity of the supporting spouse as one factor to consider in making spousal support orders. ["The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. Family Code §4320 (c)]

Although Section 4320(c) speaks of earning capacity, the code does not specifically define what it means. For that answer we look to the case, Marriage of Simpson In Simpson, the California Supreme Court stated "'[E]arning capacity' represents the income the spouse is reasonably capable of earning based upon the spouse's age, health, education, marketable skills, employment history, and the availability of employment opportunities."

spousal-support-who-pays.jpgMany of the same principles associated with the imputation of income with regard to child support apply to the imputation of earning capacity for spousal support. Just as with child support, the three-prong test of ability, opportunity and willingness that is found in Marriage of Regnery must be proven for spousal support as well. This also includes the principal that no finding of "bad faith" is required to support an imputation of income.

For a very long time, the Courts held that there needed to be a finding of bad faith, or in other words a deliberate attempt to avoid paying spousal support, before a court could impute income for spousal support purposes. This holding came from the case Philbin v. Philbin (1971) 19 Cal.App.3d 115. And yes, it is the same Philbin your thinking of as you read the case name.

In Philbin, Regis Philbin was working as a comedian in the late 1960's, but his income had fallen dramatically since he left as Joey Bishop's sidekick on the nationally syndicated "The Joey Bishop Show." At the time the case was heard by the trial court, Regis' annual income dropped from $95,000 per year to $27,000 per year (or $635,000 a year to $181,000 in 2014 dollars.) The Court of Appeal ultimately held that imputing income to Regis was not warranted since there was no bad faith on his part.

However, more recent case law suggests that the requirement of a bad faith finding for the purpose of proving earning capacity is no longer required.

It is important to note the Appellate Court has refused to impute income to a supporting spouse who voluntarily quit his job when the decision was based on a decision to follow a path of good works and services. In Marriage of Meegan (1992) 11 Cal.App.4th 156, the court upheld the trial court's reduction of spousal support for a spouse who quit his high paying executive position to pursue a life in a monastery as a Catholic priest. The court held, the "[r]eduction [was] appropriate where Husband [was] acting in good faith and did not resign [his] job to avoid [his] spousal support obligations." It is important to note that Meegan addressed only a spousal support order and child support was not at issue. In fact, Mr. Meegan voluntarily agreed to pay $875 per month towards his 2 adult children's college expenses. I believe if child support were at issue in the Meegan case, the court would have made a different finding.

The Meegan case is an interesting example of a situation where the Court refused to impute income to a party who voluntarily quit their job and depressed their income. It also illustrates how very fact specific income imputation case can be. It is important to contact a qualified attorney to review your case and specific set of facts to determine whether an income imputation is appropriate.

The Court's authority to impute income to a party is not limited to situations where the party quit their job. If one party refuses to get a job, or has been unemployed for a long period of time, the court may consider imputing earning capacity in these situations as well. In this situation, the party who wants to impute income will need to seek the assistance of an expert, called a vocational evaluator, to provide evidence of the 3 factors discussed above.

Spousal support requests, especially when they involve a request to impute earning capacity to a parent, can be difficult to navigate without the assistance of skilled family law attorney, so it is important to discuss your case with a qualified attorney.

Continue reading "SO YOUR EX QUIT THEIR JOB...NOW WHAT DO YOU DO? [Part Two - Spousal Support]" »

SO YOUR EX QUIT THEIR JOB...NOW WHAT DO YOU DO? [Part One - Child Support]

March 10, 2015

quit-job-child-support.jpgWith the national economy making positive strides, and the unemployment rate down more than 4% from the same period in 2010, worry about involuntary termination of employment is less of a concern for parties' involved in a divorce cases in California.

But what happens if the other party voluntarily quits their job? The answer is nothing until one party files a motion to modify support. If the party who quit files a motion to reduce their support obligation, the court has the authority to "impute income" (assign income to a party that is not actually earned) to the party who quit their job.

The court distinguishes between earning capacity for child support orders and for spousal support orders. The application of the law, though similar, is different in some important ways. This blog will discuss the Court's authority to impute income to a parent for the purpose of setting child support. My next blog will discuss the application of income imputation to a former spouse for spousal support orders.

Family Code §4058(b) provides that the court may, in its discretion, consider earning capacity of a parent in lieu of actual income, consistent with the best interests of the children. The policy behind Section 4058(b), and the cases that have interpreted the meaning and application of the statute, is to further the state's policy that a parent's primary obligation is to support his or her children according to the parent's station in life and ability to pay. California has an overwhelming policy interest in ensuring both parents support their children to the best of their ability.

quit-job-child-support-court.jpgFor party to convince a court to impute income to the other party, they must provide evidence to the court of three important factors to prove "Earning Capacity". Those factors are, (1) the ability to work, including age, occupation, skills, education, health, background, work experience and qualifications; (2) the willingness to work exemplified through good faith efforts, due diligence and meaningful attempts to secure employment; and (3) an opportunity to work which means an employer who is willing to hire. These factors were set forth in a case called Marriage of Regnery. One way to prove these factors is to show the Court the other party voluntarily quit their job. The implication is the quitting party is still "able" to earn income at a level consistent with their past employment since it was their decision to leave. That is, but for the parent's decision to quit their job; they would still be earning income at that level. This argument was approved by the Court of Appeal in a case called Marriage of Eggers. In the Eggers case, the Court said, "When a supporting party quits a job, the trial court has the discretion to conclude the parent's conduct reflected a divestiture of resources required for child support obligations. [The Court] may refer to the former job as the basis for its findings of ability and opportunity and may impute income to the parent based on his or her prior earnings."

The Court's authority to impute income to a party is not limited to situations where the party quit their job. If one party refuses to get a job, or has been unemployed for a long period of time, the court may consider imputing earning capacity in these situations as well. In this situation, the party who wants to impute income will need to seek the assistance of an expert, called a vocational evaluator, to provide evidence of the 3 factors discussed above.

Child support requests, especially when they involve a request to impute earning capacity to a parent, can be difficult to navigate without the assistance of skilled family law attorney, so it is important to discuss your case with a qualified attorney.

Continue reading "SO YOUR EX QUIT THEIR JOB...NOW WHAT DO YOU DO? [Part One - Child Support]" »

Reconciling after Filing for Divorce but Before Divorce is Finalized

March 2, 2015

reconciling-before-divorce-final.jpgDeciding to file for divorce or legal separation is a huge decision for any married individual. By the time that person actually gets enough courage to sit down with a divorce attorney and sign the Petition for Dissolution of Marriage or Petition for Legal Separation, his or her mind is typically made up. But what happens if somewhere along the way, a miracle happens and the couple reconciles? Is it too late to pull the plug on the divorce and live happily ever after?

It may come as a surprise, but it is not uncommon for couples to decide to forgo the divorce action and give their marriage another shot. Perhaps they felt forced to file for divorce at the time or the issues they had with their spouse have been resolved. Whatever the reason may be, if a couple is going to make a good faith attempt at reconciliation they need to be open to change and willing to examine the mistakes they have made in their relationship in the past. Forgiveness is also a big part of the reconciliation process. It is advised that a couple establish a timeline for their reconciliation, write down their relationship goals, and talk about their issues often. It is vital that neither spouse has an ulterior purpose for the reconciliation.

reconciling-with-your-ex.jpgIf a couple decides to reconcile after filing for divorce but before their divorce has been finalized (i.e. a judgment entered by the court), there are a few options on how to proceed. First, if the couple is just beginning the reconciliation process but there is an upcoming hearing on calendar, the parties may seek a continuance to get the hearing pushed out to a later date. However, the court will ensure that the continuance is not sought in bad faith or simply to unnecessarily delay the divorce. If you think that you and your spouse are on the road to a full reconciliation, but you aren't 100% sure, then you might prefer to stipulate (written agreement between both parties) to exempt your case for a certain period of time. This means that the court will essentially put your case on hold and suspend temporary orders that are in effect.

If the parties are sure about their reconciliation and absolutely no longer want to get divorced, they can choose to dismiss their divorce action altogether but without prejudice. This means that they would not be precluded from or penalized for filing another Petition for Divorce at a later date, if the reconciliation falls through for some reason. However, if a spouse decides to file for divorce later on down the road then it is very important to keep in mind that the date of separation will be different. Pushing out the date of separation to a later date can significantly affect division of assets and calculation of support and should be considered carefully before deciding to dismiss a divorce action. An experienced divorce attorney can advise you on your best course of action.

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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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