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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

December 9, 2014

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

November 18, 2014

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?

October 27, 2014

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

October 20, 2014

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

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

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

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

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

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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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Changing My Child's Last Name After Divorce

October 6, 2014

last-name-change.JPGChild actor, Corey Feldman, and his wife Susie were married in 2002 but later separated in 2009. Their divorce was recently finalized and according to the court documents that TMZ obtained, Susie gets to keep the couple's 2002 Hyundai but not her surname. Apparently, Susie agreed to return to her maiden name of Sprague post-divorce. But what about their 10 year old child - can Susie change his last name to her maiden name also?

The issues of child custody and child support are hot topics in a divorce. However, one issue related to the children that is not very commonly addressed is the issue of the child's last name. Even though the Wife may choose to change her last name back to her maiden name, the parents usually don't dispute their children keeping their last name. However, in some cases a parent (typically the mother) will want to change not only her last name but also the child's last name.

As is the case with other decisions about children during a divorce proceeding, the Court's focus is on what is in the best interest of the child. Generally, you cannot change your child's last name simply because you are divorcing your spouse whose last name the child has. Rather, petitioning the Court to change your child's last name is typically done in a separate legal action after a divorce and some Court's will consider it if it is clearly in the child's best interest. Courts will consider several factors, including the length of time the child has had his/her current last name, the need of the child to identify with a new family unit (if there has been a remarriage), the strength of the child's relationship with his/her father, any benefits to changing the last name and any negative impacts the child would suffer as a result of changing his/her last name. Ultimately the Court must decide what is in the child's best interest.

Some circumstances that may specifically warrant a change of the child's last name include the following: When the biological parent has terminated his/her parental rights, when the biological parent was abusive or engaged in criminal behavior or when the child has been adopted by a step-parent.

It's important to note that even if the Court does decide to grant a name change for the child, this will not affect the legally recognized identity of the child's biological father. In other words, the father's relationship with the child as it relates to his rights to custody/visitation, his obligation for child support and rights of inheritance will not be affected simply by the changing the child's last name.

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Ways to Value Your Home During a Divorce Buyout

September 24, 2014

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

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

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

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

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My Child is 18 - Why Do I Have to Pay Child Support?

September 2, 2014

graduation-child-support.jpgIn California child support cases, the parties may be surprised to learn that a parent's duty to financially support his or her child may continue after the child becomes a legal adult at the age of eighteen (18). This idea is often confusing to the parties because child support is inextricably linked to the time the child spends with each parent. Generally, the more time the supporting parent spends with the child, the lower the child support amount will be. On the other hand, the lower the amount of time the supporting parent spends with the child, the higher the child support obligation will be.

Pursuant to Family Code section 3901, "the duty of support imposed by [Fam. Code ยง3900] continues as to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first". As stated in this code section, even if a child attains the age of 18 years, a parent will still be obligated to financially support the child until the child finishes high school. However, despite the ability of the family court to order child support, the court cannot make corresponding custody and visitation orders of an 18 year-old adult. Therefore, a parent may be ordered to pay child support for a child who is not required to spend specified time periods with either parent.

graduation-support.jpgConsidering the fact that timeshare with the children is such a major factor in calculating child support, parties are faced with a conundrum when one child requiring financial support is a legal adult and cannot be forced to comply with a custody and visitation order. In these cases, the court bases child support on actual timeshare instead of timeshare which is ordered pursuant to a custody and visitation agreement or order. This means that if the 18 year-old student does not want to spend time with the supporting parent, child support will be calculated with the supporting parent have minimal time with the child. As a result, the supporting parent's child support obligation will be higher than if the parties shared equal time with the child.

Cases where a child does not want to spend time with one or both parents are very difficult. If you feel like the relationship between your child and you and/or your former spouse is deteriorating, it is important to discuss your options with your divorce attorney to work towards repairing that important relationship before the child turns 18.

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Protecting Your Career During Divorce

July 23, 2014

As one would expect, going through a divorce is typically a time of emotional upheaval and chaos. You will likely be required to spend a significant amount of time preparing legal paperwork, attending court hearings, going to your attorney's office and dealing with the day-to-day drama that comes with a divorce. Your life might seem like one chaotic mess as a result of having to suddenly move out of your residence or divide up your belongings. And the time that you get with your children, well you surely won't want to sacrifice a minute of that to focus on work instead. So with all of this going on during a divorce, how can you properly manage your career and avoid losing your job??

career-divorce.jpgKeep Your Professional Reputation Intact
If you are going through a very tumultuous and heated divorce, your soon to be ex-spouse may be inclined to attempt to ruin your reputation in the workplace. He/She may feel the need to reach out to your boss or your coworkers and make disparaging remarks about you. To avoid the potential aftermath of this, it would behoove you to take preventative steps and pull your boss aside for a private meeting to let him/her know that you are going through a divorce but that it will in no way, shape or form affect your work ethic. Although it's really none of your boss's business perhaps giving him/her a heads up that your spouse is not in a good place emotionally, will prepare your boss in case a phone call or email comes his/her way from your spouse.

Another way of keeping your professional reputation intact is to not allow your performance to slip. Although your mind might be focused on the divorce, try to keep your attention on the job during working hours. One motivator to keep your performance at its peak is the potential that you will be paying spousal and/or child support to your ex-spouse. It is likely a critical time for you to be sure that you have a continuous stream of income.

career-vacation.jpgSave Your Vacation and Sick Days
During the divorce, you might need to take partial or whole days off to attend court hearings, meet with your attorney, attend mediation, pick your children up from school, etc. You are probably limited on the number of paid vacation and sick days that you are allowed to take from work so do your best to save those while going through a divorce. Having to take an unpaid day off or jeopardizing your career is just added stress that you will want to avoid during a divorce.

Separate Work and Family
Although easier said than done, you should focus on separating your work and family life as much as possible. Working on divorce papers or taking phone calls from your soon to be ex-spouse while at work will only serve to distract you from getting your job done. Also, keeping your personal life to yourself will help avoid unnecessary gossip around the office. It's also important to leave your work at work when you come home. Your custody arrangement might not provide you with as much time with your children as you would like, so every moment you spend with them should be cherished and not distracted by work. If you don't have children, then your alone time is still critical to allow you the time to cope with your divorce emotions or perhaps meet new people.

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Making Threats in Family Law Cases to Get What you Want

July 7, 2014

threats-chess.jpgConsidering the intimate nature of family law cases, especially divorces, both parties often know incriminating information about each other. For example, if one party has not been completely truthful on his or her tax returns filed with the IRS the other spouse likely knows about it. In some cases, one party may have the grounds for a domestic violence restraining order against the other or be a victim of illegal wiretapping, which was committed by his or her spouse. In a contentious divorce, spouses are often tempted to use sensitive information as leverage in negotiations.

Divorce lawyers have a reputation for being ferocious litigators who have no ethical boundaries when it comes to "taking down" the opposing party. Clients are often surprised when their divorce attorneys actually refuse to threaten civil, criminal or federal prosecution in the negotiation process. Clients imagine that they can tell the other side "Agree to pay me 'X' amount of spousal support for ten years or I will file a restraining order against you" or "If you don't agree to give me full legal and physical custody of the children I will report your real income to the IRS". They often become frustrated that their lawyer will not "fight" for them by using all of the tools in their arsenal.

threats-family-law.jpgContrary to how the lawyer's behavior will seem to the client, a lawyer is actually acting in the client's best interest by refusing to threaten the other side to gain an advantage in litigation. The California Rules of Professional Conduct prohibit all attorneys from threatening "criminal, procedural, administrative, or disciplinary charges to obtain an advantage in a civil dispute". Therefore, a lawyer's hands are tied by his or her ethical obligations. A lawyer would put his or her reputation and career in jeopardy if he or she were to threaten to use misconduct against the other side in a divorce negotiation. In addition to putting the lawyer in a position where he or she may be disciplined by the California state bar, the client risks extortion charges.

A family law litigant that threatens the other side in order to get what they want in a divorce case is also at risk of being sanctioned. In family court, one of the most powerful tools at the judge's discretion is a monetary sanction. If one party frustrates California's policy of settlement between litigants in a divorce action, he or she may be ordered to pay attorney fees and costs to the other side. Depending on the assets of the parties and the egregiousness of the misconduct, significant sanctions can be ordered for tens of thousands of dollars. Overall, threats of criminal, civil or federal prosecution may get you more than you bargained for in a family law case.

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What does the Court Consider an Emergency?

June 30, 2014

ex-parte-attorney-001.jpgGoing through a divorce (or any family law case) can create anxiety and become consuming for the parties involved. It is easy for family court judges and attorneys to become jaded by the volume of domestic issues they deal with on a daily basis. However, the average family law litigant has little to no experience with the court system. Considering the sensitive nature of family law cases, it is not surprising that litigants become frantic as each new problem or issue arises. Despite the sensitive nature of family law requests, it can be months for a litigant to obtain relief from the court.

In the case of true emergencies, the court offers ex parte hearings, which will be conducted with notice of twenty-four hours or less. However, ex parte relief will only be granted in a limited number of circumstances. Pursuant to the California Rules of Court, the Court will grant relief on an emergency basis in the following cases:

  1. Make orders to prevent an immediate danger or irreparable harm to a party or to the children involved in the matter;
  2. Make orders to help prevent immediate loss or damage to property subject to disposition in the case; or
  3. Make orders about procedural matters, including the following:
  4. a.) Setting a date for a hearing on the matter that is sooner than that of a regular hearing (granting an order shortening time for a hearing) b.) Shortening or extending the time required for a moving party to serve the other party with the notice of the hearing and supporting papers (grant an order shortening time for service) and c.) Continuing a hearing or trial.

ex-parte-gavel.jpgFamily law litigants will often run into court (or insist their attorneys run into court) requesting relief on an ex parte basis. However, as stated above, the requesting party must justify the lack of notice for his or her request with immediate danger, irreparable harm, to prevent immediate loss or damage to property, or for procedural issues. It is important for parties to carefully consider their decision to request emergency relief before filing a motion with the court. Too many unfounded ex parte requests will begin to create a "boy who cried wolf" reputation for the litigant. This means that if emergency relief is really necessary in the case, the court may not take the request seriously.

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Joint Custody but Different School Districts

June 24, 2014

custody-school-choice-001.jpgOnce parents have split and begin residing in separate homes, a common issue in divorces involving children is the decision of where the child will go to school. This is particularly of concern when the parents begin residing in different school districts and don't see eye to eye on where the child should be getting their education. It wouldn't be fair to make the child switch schools each week when he/she switches households. So, who decides where the child will go to school in this situation?

Determining where your child will go to school depends on the parties' custody agreement that has been made an order of the court. There are two types of custody in a divorce case, physical custody and legal custody. Physical custody refers to where the child will live after separation or divorce. Legal custody, on the other hand, refers to who will have the right to make major decisions about the child's health, welfare and education.

If one parent is awarded sole legal and physical custody of the child then the decision of where that child will go to school is left solely up to that parent and typically based on that parent's residence. The other parent won't have any legal rights to chirp in regarding where to enroll the child. However, in many California divorces, the parents are awarded joint physical and legal custody of their children. This means that both parents will have significant periods of physical custody such that the child has frequent and continuing contact with both parents. Additionally, both parents will have equal rights to make decisions about the child's education. This often becomes a problem when the parents reside in different school districts and their preferences don't align regarding where the child should attend school.

custody-school-calendar-001.jpgUnless the custody agreement provides otherwise, the child will typically be able to attend school in either the school district in which mom resides or the school district in which dad resides. One parent may prefer his/her school district because it will be easier for transportation purposes. Or maybe the other parent thinks that his/her school district has a better sports team for the child. Whatever the parent's reasoning may be, the issue needs to be resolved before the school year begins. If the parents are unable to reach a mutual agreement on which school their child will attend, then the issue will need to be litigated.

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Jury Trial for a Divorce - Good or Bad Idea?!

May 26, 2014

divorce-jury.jpgIn most states, the right to a jury trial in a divorce proceeding does not exist. In California, no such right exists. Rather, all divorces in California will be heard solely by the Judge, not a jury. However, in a limited number of states, including Texas and Georgia, whether you are the spouse who filed for divorce or the spouse who received a divorce petition, you have the option to request a jury trial during your divorce proceeding. Most of these states limit the right for a jury to only decide certain issues. In New York, for example, the circumstances are very narrow; a jury is only allowed to decide whether the parties meet the state criteria for divorce.

Texas offers the jury trial rights most broadly. In Texas, the jury consists of 12 jurors who may decide a number of issues. However, certain issues are still reserved for the Judge to decide. For example, the jurors in Texas can decide the issue of child custody, but the Judge will be the one to decide visitation and child support. Jurors in Texas can also determine the value of the assets, and determine which assets are considered separate property versus community property. However, the Judge will be the one to actually determine the division of such assets.

Offering the option of a jury trial in divorce proceedings is a hot topic of dispute. Supporters of offering a jury trial argue that it helps to ensure fairness by thwarting the Judge's potential bias. Many also support jury trials because they believe that it gives litigants more of an opportunity to tell their side of the story. Another benefit of offering the option of a jury trial in a divorce proceeding is that it encourages parties to try and settle outside of court, since a jury trial is a risk for both sides no matter what the facts of the case are.

divorce-jury-scales.jpgHowever, many oppose the idea of a jury trial in a divorce because they aren't keen on the idea of having the details of their private lives displayed before a dozen strangers. Additionally, divorce proceedings are expensive enough. Adding the option for a jury trial is likely to cause the divorce proceeding to be even more time consuming and expensive

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