San Diego Divorce Attorneys Blog

Many San Diego couples are deciding to skip the marriage ceremony before they move in together. Unlike married couples, these cohabitating couples are not well protected if a split occurs. More and more unmarried couples are considering entering into prenuptial or cohabitation agreements in order to control the outcome of a breakup.

A cohabitation agreement is a legally binding contract that is drawn up by an attorney. The parties to these contracts are seeking similar rights as those afforded to married couples. These couples find it much easier to agree on important issues before the relationship is over and the parties have potentially bitter feelings toward each other. Couples address many issues in cohabitations agreements such as: property division, support, and custody of any pets. One major motivation to enter into a cohabitation agreement is the acquisition of property. An unmarried couple interested in purchasing real property together or that agrees to have one spouse move into the house of the other will face many difficult decisions. A cohabitation agreement can define the rights and responsibilities of both parties

In San Diego, family courts will not honor agreements between parties prospectively limiting future rights to child support, child custody and visitation. The health, safety and welfare of children are matters of public policy in California therefore the State refuses to limit a child's access to financial support or a relationship with a parent.

Currently most states, including California, do not recognize common law marriages. Throughout the states that do recognize or have recognized common law marriage the requirements of a common law marriage differ. Generally a common law marriage exists if:

(1) both parties hold themselves out to be husband and wife;
(2) both parties consent to the marriage;
(3) the parties are cohabitating;
(4) the parties have a reputation throughout the community of being married.

Because common law spouses are given rights where common law marriages are recognized, unmarried cohabitants may be under the misconception that they are also entitled to "marital rights" in the State of California. Even if a couple satisfies all four of the usual elements to establish a common law marriage in California, they will not be entitled to any additional rights.

One area where courts have begun to recognize some rights and protections between unmarried cohabitants is in the area of support. This trend, which began in the 1970's with the Marvin v. Marvin case, is commonly known as "palimony." Under this area of family law, a judge may order one former cohabitant to provide financial support to the other if certain elements are satisfied. Unlike support ordered to a former spouse, "palimony" seems to have a strong basis in contract law. If one party promises to support the other that promise may be enforced as a binding contract. A cohabitation agreement is not so different than a "palimony contract" because both result in the enforcement of an agreement reached by two parties before the end of the relationship.

Please contact us if you have questions regarding custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

We often blog about the importance of social networking sites as tools in family law cases. Facebook is an invaluable resource for spouses, parents, and family law attorneys to use in order to dig up information on the opposing party in a particular case. Recently, Facebook has surfaced on the family law radar in a new and unexpected way. One of Facebook's well-known features is its ability to suggest family members, acquaintances, or friends that the user may want to "add as a friend" on his or her Facebook page. This friend suggestion tool alerted Alan Leighton O'Neill's wife that her husband was married to another woman. O'Neill's first wife clicked on the Facebook page of his second wife and saw her husband in a wedding photo with another woman. As a result of the friend suggestion tool, felony bigamy charges have been filed against O'Neill.

In San Diego, any married person who marries any other person is guilty of bigamy. Alan Leighton Fulk married his first wife on April 16, 2001. In December of 2011, he petitioned the court to change his name to Alan Leighton O'Neill. This tactic was used in order to accomplish his second marriage only five days later.

Although any married person who marries any other person is guilty of bigamy, various defenses are available to the bigamist. A good-faith belief that the bigamist obtained a divorce or dissolution of the first marriage is a possible defense to bigamy charges. Whether or not the bigamist escapes felony prosecution, bigamy has many family law-related implications.

Under California family law, a subsequent marriage during the life of a former spouse, with a person other than the former spouse, is void unless: (1) the former marriage was dissolved or annulled before the subsequent marriage date or (2) the former spouse is (a) absent and not known to be living to the bigamist for five consecutive years immediately preceding the subsequent marriage or (b) is generally believed to be dead by the bigamist at the time of the subsequent marriage.

There are many legal implications of a void or voidable marriage. A void marriage is invalid at its inception. There is no legal recognition of a void marriage's existence. In addition to bigamy, a marriage may be declared void because one of the parties is a minor, fraud, force, physical incapacity, mental illness or incest. These marriages can be attacked at any time by anyone who has an interest in the marriage. Further, a void marriage cannot be ratified even after the condition voiding it has dissipated. For the purposes of divorce, the parties involved in a void marriage are unable to claim any of the marital rights such as an interest in community property or spousal support available to a party of a valid marriage.

Void marriages are distinguishable from voidable marriages. A voidable marriage is valid for all civil purposes between the parties; it only becomes invalid if it is declared void by a court of competent jurisdiction. It is neither valid nor void and can only be attacked by the parties to the marriage. Unlike void marriages, a voidable marriage may be ratified or validated by the conduct of one or both parties after the condition creating its voidability has dissipated. Interestingly, a voidable marriage may not be attacked after death. Therefore once one of the parties dies, the other stands to inherit from him or her as a standard spouse.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer representing clients in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

We have blogged several times about the potential problems that Facebook and other social media sites can have on a divorce. The same potential for problems also applies to the text messages you send. Although it is sometimes difficult to get text messages into evidence (meaning properly in front of a judge), once the text message is in evidence, it could change the outcome of your case!

Unlike Facebook and other social media posts, text messages cannot be deleted or recalled. Any text that you send to your spouse, or even to a third party, can end up being used against you in a divorce. With phones now having up to 64 gigabytes of storage, or more, texts from many years ago could end up being presented as evidence to the judge in your divorce case.

• If you threaten to harm your spouse in a text, that may be the basis for a restraining order, or even criminal prosecution.

• If you call your spouse names in texts, the judge could end up with an unfavorable opinion of you.

• If you say one thing in your declaration (such as, "I do not use drugs") and text something contrary to your spouse or a third party (such as, "I can't believe how stoned I was at the party"), you will ruin your credibility with the judge.

In a recent story on NPR, Ken Altshuler, president of the American Academy of Matrimonial Lawyers, provided the following tips for keeping your texts out of court, upon which I elaborate:

• Do not text your spouse anything that you would not want a judge to see. This also applies to Facebook and other social media posts, messages or comments, emails, and even voice mail messages. It is always best to assume that any text, anything you write or any voice message you leave for your spouse will end up in front of your judge. Some examples of what not to post, blog or text about can be found here.

• If your spouse or former spouse sends you an inappropriate text, do not respond in kind because a judge will see that. The judge usually does not care who started an inappropriate exchange because the exchange is usually just a small part of the bigger picture. In one of my cases after reviewing hateful emails back and forth between the parties, the judge (slightly misquoting Mercutio's famous line from Shakespeare's Romeo and Julie), said "A pox on both your houses." When the other party blurted out, "She started it!" the judge replied, "Sir, two wrongs do not make a right - and your emails back to here were totally inappropriate, no matter who started it."

• Do not send messages that set your spouse up for an inappropriate or angry response. On the other hand, some Judges will look into who started it. You do not want your judge to find that you were the party that started it, or someone who is baiting the other side. This could ruin your credibility with the judge for the rest of your case.

• If you are worked up and want to send your spouse a message, take time to calm down before putting anything in writing. Again, if it is in writing, you must assume that your judge will eventually read it. If you are unsure about a written response to your spouse, send it to your attorney for review before sending it to your spouse.

Always remember, do not text anything to anyone that you would want the family law judge in your case to see or read.

Continue reading "Texting Can have a BIG Impact on your Divorce Case" »

Superstar basketball player Kobe Bryant is splitting with his wife Vanessa. On December 1, 2011, Vanessa filed a divorce petition in the Superior Court of California in the County of Orange. Like many other rich and famous celebrities, Kobe and Vanessa Bryant did NOT sign a premarital agreement. The Bryants have released a statement revealing that the couple has settled all relevant issues privately including: custody, visitation, property, and support. A judgment will be entered in 2012.

The couple has two young children Natalia, 8, and Giana, 5. Both Kobe and Vanessa are asking for joint custody of their daughters. According to the filing, the couple will share both legal and physical custody. It seems like Kobe and Vanessa will not litigate any issues in their divorce.

Ironically, the couple celebrated their 10-year wedding anniversary on April 18, 2011. In 2004, Kobe was accused of sexually assaulting a woman in Colorado. Throughout the entire investigation and trial, Vanessa stood by his side and supported the position that the alleged sexual assault was consensual. Vanessa admitted that Kobe made a mistake by committing adultery but refused to acknowledge any more of the woman's claims. Rumors have surfaced that Vanessa saw divorce lawyers and almost served Kobe with divorce papers in 2004. A source close to the couple commented: "Vanessa almost threw in the towel four years ago. Kobe always had a slew of girlfriends, and the cheating was almost blatant."

Despite Kobe's public (alleged) infidelity that continued into the years following 2004, Vanessa stayed in her marriage before suddenly filing for divorce in 2011. Vanessa was likely counseled in 2004 regarding the likely outcomes of a potential divorce case and her options. Under California law, a marriage of 10 years or more is a presumptively a long-term marriage. Having a long-term marriage entitled Vanessa to many advantages in a divorce proceeding. California Family Code section 4320 lists the factors a court may consider in awarding spousal support. Under section 4320(l) the goal of the court shall be that the supported party shall be self-supporting within a reasonable period of time EXCEPT in the case of a long-term marriage. If the marriage is not long-term, a "reasonable period of time" is generally one-half the length of the marriage. Therefore, if Vanessa had filed for divorce in 2004 she would likely be awarded spousal support for around 3 years. Now that the 10-year mark has passed, Vanessa may be entitled to permanent spousal support.

Continue reading "Vanessa Bryant's Strategic Divorce Move" »

As a San Diego Divorce Attorney, when a client remarries, he or she often wonders if their new spouse's income will impact child support and spousal support. Recently, a client in the midst of a divorce in which status was previously granted (meaning the parties were no longer married) but the issues of spousal support and attorney fees were not yet resolved, who was about to remarry, asked about the impact of new spouse income on the issue of spousal and child support.

Previously, I blogged about the impact of new mate income on child support and spousal support orders. To summarize:

1) For child support, except in "extraordinary cases," new spouse or non-marital partner income is generally not considered when calculating guideline child support, although the court may inquire into a new spouse's income for the purpose of seeing how it would impact the remarried party's tax filing status and tax bracket when calculating guideline child support.

2) With regard to spousal support:
(a) For the spouse receiving spousal support, spousal support usually terminates when he or she remarries, and there is a presumption of a decreased need for spousal support of he or she is cohabitating with a member of the opposite sex.
(b) For the spouse paying spousal support, the new spouse/partner income is not considered when determining or modifying spousal support.

After explaining this to the client, I was asked if the new spouse income would have any impact on the prior spouse's request for attorney fees. The client wondered if the court would consider the new spouse's income when considering the prior spouse's request for attorney fees. My initial thought was there should not be any consideration of new spouse income, however after conducting some research, I found a 2009 case, Alan S. v. Superior Court , which held while new mate or partner income is generally irrelevant in child support matters, it is not statutorily irrelevant in pendente lite fee orders.

However, after a closer analysis of the underlying facts in that case, we believe the holding is limited to a narrow circumstances, as it was more of a case regarding how the court, in low and middle income cases, can achieve the legislative goal of assuring that each party has access to legal representation to preserve each party's right.

In Alan S., after a string of custody hearings and orders, the trial court ordered Husband to pay $9,000 to Wife for her attorney fees at rate of $300 per month. Representing himself, Husband appealed the decision challenging the attorney fee order. Husband claimed the order impacted his own ability to retain counsel.

The Court of Appeal found that the challenged orders appear to assure that, while Wife is well represented by obviously able and diligent counsel, Husband will be left to "haplessly flail away" and reversed the attorney fee order, with directions to the trial court to hold another hearing to consider all relevant matters affecting Wife'sfee request, including factors such as Husband's $800/mo deficit financed by credit cards; the assets of parties, including equity in residences; Husband's inability to afford to visit the children; Husband's $25,000 credit card debt for previous attorney and $1,800 per month child support obligation; and the new mate or "significant other" income of each party (Husband was cohabitating and Wife had remarried).

The Appeal Court's decision relied on Family Code §2032, which requires court to consider parties' needs considering the factors listed in Family Code §4320. Reading statutes together, the Appeal Court believed the statutes make it clear that the pendente lite fee award should be the product of a nuanced process in which the trial court tries to get the 'big picture' of the case, i.e., 'the relative circumstances of the respective parties'. In the Alan S. case, the trial court took a truncated approach, and the record did not show that the trial court considered a number of the relevant factors bearing on the case, including the new mate or "significant other" income of each party.

The Court of Appeal also relied on a case called In re Marriage of Geraci , in finding that the new mate or significant other income was relevant for attorney fee awards because of "possible economies of scale," coupled with the "expansive language of Family Code §2032--the relevant circumstances of the respective parties."

The case was remanded to the trial court. The trial court, on remand, would have to consider new mate and significant other income (among other factors) when reconsidering the attorney fee award, however, the final orders that were made by the trial court are unknown.

It seems that new spouse or significant other income only came into play in the Alan S. case because the attorney fee award prevented Husband from being able to afford to retain counsel for an upcoming custody hearing, while Wife was able to afford to retain counsel. More significant than new spouse or significant other income are the issues of need and ability to pay under Family Code Section §2030, as well as many of the other Family Code §4320 factors, such as the income, assets and liabilities of the parties.

As a San Diego Family Law Attorney, I often receive calls from former clients asking if they can find out their former spouses current income without incurring a lot of attorney fees or filing an expensive, time-consuming motion. Here are two examples of those calls:

• One former client suspected her Ex-Husband was earning significantly more than he was a year ago when their divorce was finalized because he recently bought a new car and moved into a bigger house. He refused to tell her his current income. If true, the amount of child support she receives could increase.

• Another former client knew that his Ex-Wife received a promotion, but did not know if a raise came with the promotion. She refused to tell him if she received a raise. If she received a raise along with her promotion, then his child support obligation would decrease, or depending on how much of a raise she received, he might be eligible to receive child support from her.

Fortunately for both clients, the Family Code provides for a way to obtain a current Income and Expense Declaration by permitting a party to engage in inexpensive post-Judgment discovery prior to filing a Motion for Modification of Child, Family or Spousal Support. More specifically, at any time after the entry of a Judgment of Dissolution or Legal Separation that provides for the payment of child or family support, either party, no more than once per year, may request the other party to produce a completed current Income and Expense Declaration with copies of that party's pay stubs and prior year state and federal income tax returns attached.

A request for a current Income and Expense Declaration with a copy of the prior year tax return and pay stubs is the only limited discovery allowed if a Motion for Modification or Termination of the Support Order is not pending. That means if a party wants to engage in other methods of discovery, such as Interrogatories (which are questions asked of the other party) or a Request for Documents, then he or she would first need to file a Motion for Modification or Termination of the Support Order.

By allowing a party to obtain an Income and Expense Declaration from their former spouse, the requesting party can determine whether filing a Motion for Modification is appropriate. If it turns out that there is no change of income, then the filing of a Motion for Modification could be expensive, especially if there is no (or minimal) change to the amount of support paid or received.

Sometimes, a former spouse will ignore the request for a current Income and Expense Declaration. If this occurs, the Family Code provides that if there is no response within 35 days, or if the Income and Expense Declaration is incomplete as to any wage information, or if pay stubs and income tax returns are not attached, then the requesting party may serve a Request for Income and Benefit Information directly on the employer of the other party. The non-responding party may also be sanctioned by the court for his or her failure to comply with the initial request.

Please contact us if you wish to obtain a current Income and Expense Declaration from your former spouse, or if you have received a Request for Production of An Income and Expense Declaration After Judgment from your former spouse.

Continue reading "CAN I FIND OUT HOW MUCH MY EX SPOUSE CURRENTLY EARNS?" »

Massachusetts has passed a landmark law regarding alimony payments, The Wall Street Journal reports. The new law aims to end lifetime payments, particularly in retirement or once a former spouse finds a new partner.

Divorcing couples should know and understand the distinct differences between child support and alimony or spousal support in San Diego. Spousal support is generally treated as taxable income for the receiver and as a tax deduction for the payer. Child support is tax free for the recipient but not deductible for the payer.

Child support may be more collectible than spousal support -- i.e. the court system may be more likely to enforce the court's orders. And, of course, as we reported this summer on our San Diego Divorce Attorneys Blog, cohabitation or remarriage generally does not impact child support payments in San Diego or elsewhere in California. That is not necessarily true of alimony or spousal support.

Spousal support can be awarded on a temporary or permanent basis. Temporary spousal support usually covers the period of time between separation and when a divorce ends. Permanent alimony is typically awarded based on the length of the marriage. A short-term marriage in California, one lasting less than 10 years, may result in an alimony award lasting up to half the length of the marriage. In long-term marriages, judges are given great discretion and payments may be awarded indefinitely.

Together with the initial property awarded to each spouse, the trifecta will go a long way toward determining your future quality of life.

As the Wall Street Journal reported, the recession has brought the contentious issue of long-term alimony to a boiling point. Statistics show unemployment has hit males the hardest. And, as the Baby Boomer generation hits the gates to retirement, many former husbands are looking to reduce or eliminate payments. The Tennessee Supreme Court recently ruled lifetime alimony was inappropriate if a woman was in good health, had a stable job and had received considerable assets during a division of property. And Florida recently set a higher bar for permanent spousal support awards.

The new law in Massachusetts takes effect next March. Those paying lifetime alimony can apply for modifications beginning in 2013. For women counting on these payments in retirement, a reversal could be financially devastating. The New York Times reports the Massachusetts law calls for alimony for up to half the length of a marriage lasting less than five years. For long-term marriages -- those lasting 15 to 20 years -- payments could last for up to 80 percent of the length of the marriage.

Your attorney needs to work toward a divorce agreement that adequately provides in all three areas: property division, spousal support and child support. The pros and cons of each award must be weighed with the client's financial future in mind.

Continue reading "Alimony, Child Support, Property Division, a Financial Trifecta in San Diego Divorces" »

The Associate Press is reporting that Los Angeles Dodgers owner Frank McCourt will keep paying $225,000 in temporary spousal support to his ex-wife, Jamie McCourt, over the next couple of months, but that money once used toward the mortgages of six luxurious homes will come from a $1.1 million escrow account funded by the sale of one of their other homes that was located near the Playboy Mansion.

When child and spousal support are at issue in a San Diego divorce, the issues can be resolved two way; either by agreement of the parties, or the court will make an order after having a hearing on the issue.

When parties reach a support agreement outside of a court hearing, either on their own or through their attorneys, the agreement is called a "Stipulation." To become effective, the terms of the Stipulation must be written down and filed with the court.

When an agreement regarding child support is reached, the written Stipulation that is filed with the court is required by the San Diego County Superior Court Rules to contain the following child support acknowledgments:

1. Each party is fully informed of their rights concerning child support;
2. The order is being agreed to without coercion or duress;
3. The agreement is in the best interests of the child involved;
4. The needs of the child will be adequately met by the stipulated amount of support; and
5. The right to support has not been assigned to the county pursuant to section 11477 of the Welfare and Institutions Code and no public assistance application is pending.

Further, in San Diego County, all written stipulations for the payment of child support must also include the following mandatory language:

"The parties declare all of the following:
1. They are fully informed of their rights concerning child support;
2. The order is being agreed to without coercion or duress;
3. The agreement is in the best interests of the children involved;
4. The needs of the children will be adequately met by the stipulated amount; and
5. The right to support has not been assigned to any county pursuant to section 11477 of the Welfare and Institutions Code and/or Family Code section 17404, and no public assistance application is pending."

In addition to the mandatory acknowledgements and language, the following forms are required to be included with all child support orders (which include Stipulations):

1. A Child Support Case Registry Form must be properly filled out and included with all child support orders issued or modified pursuant to Family Code section 4014; and
2. A Notice of Rights and Responsibilities must be attached to all orders and judgments which include provisions for child support pursuant to Family Code sections 4062 and 4063.

The experienced San Diego Family Law Attorneys at the Law Offices of Nancy J. Bickford are very familiar with all of the requirements of the California Family Code and the San Diego Country Superior Court Rules that must be followed whenever an agreement is reached to make sure the terms of the agreement are enforceable.

In cases in which a stipulation cannot be reached, we will vigorously argue your case at a hearing or trial.

If you are considering a divorce, the most important first step is to consult with an experienced San Diego Family Law Attorney. Call 858-793-8884 in Del Mar, Carmel Valley, North County, La Jolla or San Diego to schedule an appointment with Nancy J. Bickford.

After a divorce, one party may decide to cohabit or remarry. As a San Diego divorce attorney, when this occurs, clients (or former clients) ask questions about the impact of cohabitation or remarriage on child support and spousal support.

What is Cohabitation?

Everyone know what remarriage means, but what about cohabitation? Does staying overnight qualify as cohabitation?

Cohabitation is on the rise. California cases have defined cohabitation as more than a sexual encounter or relationship. It requires living together, sharing day to day life, so that where one lives and dwells, the other lives and dwells. Based on case law, having a significant other stay overnight, even several nights per week, probably would not qualify as cohabitation.

The Impact on Child Support when Either Party Cohabits or Remarries

In general, new spouse or non-marital partner income is not considered when calculating guideline child support.

The court may inquire into a new spouse's income for the purpose of seeing how it would impact the remarried party's tax filing status and tax bracket when calculating guideline child support - is the remarried party filing taxes married filing separately or married filing jointly with the new spouse; how many deductions are claimed; and if filing jointly, does the new spouse income push the party into a higher tax bracket? The guideline calculator applies these factors in its calculation, but does not add in the new spouse's income.

There are always exceptions to rules. In "extraordinary cases" the income of the subsequent spouse or non-marital partner could be considered where excluding that income would lead to an extreme and severe hardship the child(ren). Such "extraordinary cases" include when the remarried parent quits work, reduces income, or intentionally remains unemployed or underemployed, and relies on their new spouses income. This means that a party who remarries well (i.e. the new spouse is so rich that they do not have to work), cannot just quit their job and expect to receive guideline child support based on zero or reduced income. The court would either impute income to the remarried party, or consider the new spouse's income.

However, before including some or all of the cohabitee or new spouse income, the court would also have to consider whether including that income would lead to extreme and severe hardship to any child supported by the remarried party, or by either party's subsequent spouse or non-marital partner. This means that the new spouse or cohabite income may not be considered if they have a child or children from a prior relationship, or with the new spouse.

The court makes its decisions on these issues a case-by-case basis.

Impact on Spousal Support when the Paying Party Cohabits or Remarries

The family code prohibits the income of a supporting spouse's subsequent spouse or non-marital partner to be considered when determining or modifying spousal support.

Impact on Spousal Support when the Receiving Party Cohabits

The first place to look is the parties Marital Settlement Agreement to see if there is a provision automatically terminating or reducing spousal support if the receiving party is cohabiting.

Sometimes parties enter into a Marital Settlement agreement that provides for non-modifiable support. In such cases, unless support is specifically terminated or reduced upon cohabitation, then the non-modifiable support provision precludes modification if supported spouse cohabits.

If there is no cohabitation provision regarding spousal support, then the Receiving Party's cohabitation is a change in circumstances triggering the Family Code presumption of decreased need for spousal support. Because this is merely a presumption, the cohabiting spouse can present evidence to prove to the court that he or she has a continued need for support despite the cohabitation. If the cohabitating spouse does not meet this burden, then the court may modify or terminate spousal support.

Impact on Spousal Support when the Receiving Party Remarries

The parties Marital Settlement Agreement controls. If there is a provision automatically terminating spousal support if the receiving party remarries, then the remarriage automatically terminates spousal support.

If there is a provision providing for non-modifiable spousal support despite remarriage, then spousal support continues as set forth in the Marital Settlement Agreement.

FOX News and other media outlets continue to report that the divorce of Arnold Schwarzenegger and Maria Shriver could be among the most expensive celebrity splits on record.

Some estimates say Shriver could get more than the $100 million Tiger Wood's ex-wife Elin Nordegren received.

Division of marital property in a San Diego divorce, or a divorce elsewhere in California, is supposed to be equal under the state's no-fault divorce law. In practice, one party to a divorce can end up with significantly more than half the assets for a number of reasons.

What constitutes community property is one potential area of contention. Property owned before marriage and inheritance to one spouse are both examples of separate property. Valuating community property is another area where a San Diego divorce lawyer will focus attention. For instance, is the marital home valued at current market value? After the economic downturn, a couple's primary residence is often a liability -- with more owed on an upside down mortgage than the property could bring at sale.

With Schwarzenegger and Shriver, there are more complications -- and more assets -- than in many marriages -- even celebrity marriages. And, with allegations about Arnold's infidelity continuing to surface, he may find an unsympathetic judge on the bench. And, with four children and the majority of the earning power, several media outlets have reported child support and alimony could easily top $100,000 a month.

Typical couples should understand the tax implications of alimony and child support as there may be opportunities to move money in one direction or the other. Alimony is treated as taxable income for the receiver and as a tax deduction for the payer. Child support is tax free for the recipient but not deductible for the payer. One caveat to keep in mind: Courts are much better about helping you collect back child support than they are about assisting with the collections of back spousal support.

In the case of Schwarzenegger and Shriver, their marriage will be seen as long-term under California law, which means she may collect alimony for an indefinite period of time. A short-term marriage is defined as one lasting under 10 years, which is in part why it's not uncommon to see celebrity couples split near the 10-year mark.

Other factors worth considering in this split is Arnold's future income from motion pictures -- particularly sequels to movies made during the marriage. The New York Post reported last year that Diandra Douglas -- the ex-wife of Michael Douglas -- moved to collect on his payday for the making of "Wall Street 2," claiming her divorce agreement entitled her to a portion of the proceeds.

For most couples, similar concerns often involve retirement accounts or the earning power of an advanced degree -- such as a medical degree or law degree -- earned during the marriage.

Continue reading "Schwarzenegger Case Illustrates Issues of Marital Property, Child Custody, Alimony in San Diego Divorces" »

As a San Diego attorney, clients with premarital agreements often ask whether the spousal support waiver provision in their premarital agreement is enforceable. Whether my client wants to enforce the agreement or have it not enforced, the answer is - it depends.

The Premarital Agreement Act applies to premarital agreements executed after January 1, 1986. For a spousal support waiver to be valid, it must pass the "representation by counsel" and "not unconscionable" requirements.

If the party against whom enforcement of the spousal support waiver provision was not represented by independent counsel at the time the premarital agreement was signed, then the spousal support waiver is not valid. This means: (1) if the parties prepared the agreement themselves without legal counsel, the waiver is not valid; or (2) if Party A wants to enforce the waiver against party B, and Party A was represented by independent legal counsel but Party B was not, the waiver is not valid.

If the representation by counsel requirement is met, then the court determines as a matter of law whether the spousal support waiver is "unconscionable". Factors the court considers in making its decision include: (1) whether there was a fair, reasonable and full disclosure of the property or financial obligations; (2) whether the parties waived in writing any right to disclosure of property or obligations beyond what was disclosed; (3) whether a party did not or could not have had adequate knowledge of the other party's property or financial obligations; and (4) other current circumstances that make the waiver unconscionable at the present time.

Even if all these requirements are met, a court can set aside the entire premarital agreement if it was not executed voluntarily. Factors for whether a premarital agreement was voluntarily executed include: (1) if the agreement was first presented at least seven days before it was signed; (2) any duress, fraud, or undue influence; (3) whether both parties had capacity to enter into the agreement; and (4) any other factors the court deems relevant.

An example of other factors / current circumstances that might make a spousal support waiver unenforceable is if one party recently had an accident, is now paralyzed and cannot work or support himself or herself, the court could find the provision to be unconscionable.

California is considered a no-fault divorce state, meaning the reason a couple is divorcing is completely irrelevant to the court in whether the court will grant a divorce. Neither party has to prove the other was at fault for the break down of the marriage. There is even a statute that makes evidence of specific acts of misconduct is improper and inadmissible. It does not matter to the court whether you are requesting a divorce from your spouse because he/she is abusive toward you, uses drugs, is an alcoholic, cheats and/or has inappropriate Facebook relationships, works too much or that you have grown tired of your spouse. As long as one party alleges "irreconcilable differences", meaning marital problems that cannot be resolved, the court will grant a request for divorce.

The other ground for divorce in California is "incurable insanity." As a San Diego divorce attorney, although some of my clients think their spouse is "insane", I never had a case where the "insanity" reached a level of "incurable insanity."

So while fault has no impact on whether or not a court will grant a divorce, three areas of "fault" - domestic violence, drug use and alcoholism - can have a major impact on how the court decides the issues of custody, visitation and spousal support.

A finding of domestic violence, against either the other party or the child, gives rise to a presumption that an award of custody to a person who has perpetrated domestic violence is detrimental to the best interest of the child. The perpetrator may end up with no visitation or supervised visitation. However, in order to prevent a party making false accusations of abuse to obtain an advantage in a custody dispute, the court imposes very harsh penalties on a party making a false accusation.

The perpetrator of domestic violence may have to pay more spousal support to the abused spouse, or if criminally convicted, be barred from receiving support from the abused spouse. In the case In re Marriage of Cauley, Ex-Wife was convicted of domestic violence against Ex-Husband and Ex-Husband's request to terminate spousal support he paid to Ex-Wife was granted.

A party who is a drug user or alcoholic may have his or her time with their child(ren) reduced, supervised or even eliminated. Further, the court may order the drug or alcohol user to undergo drug and/or alcohol testing.

San Diego has a long and proud military history. San Diego, which started as a Spanish military outpost and continued to be a military town throughout the years, is currently home to numerous U.S. Navy, Marine Corps and Coast Guard facilities.

Whether you are in the military or married to a military service member the California Court of Appeals recently made a decision that will impact how support is calculated in divorces where one or both parties are in the military.

In the case of In re Marriage of Stanton, Mr. Stanton, a member of the US Navy, filed a request to modify support. At the time of the hearing, his base pay was $4,474.80/mo, Basic Allowance Housing ("BAH") was $2,199/mo, Basic Allowance Subsistence ("BAS") was $323.87/mo and special duty pay was $300/mo. The trial court included his military allowances as non-taxable income when calculating support stating, "If it looks like income, it is income no matter how it's paid to you. And this court has always considered BAH and BAS to be income."

Stanton appealed the trial court's inclusion of his military allowances as gross income on a theory that federal law preempts the inclusion of military allowances as gross income because they are not taxable or subject to wage garnishments.

The California Court of Appeal disagreed, joining other several other state courts which have held that that federal preemption doctrine is inapplicable to military allowances and that such allowances can be included in a party's gross income for purposes of support. The court concluded the preemption doctrine is inapplicable because under United States Supreme Court authority, family law support matters are within the province of state law unless Congress has positively required by direct enactment that state law be pre-empted, and that before a state law governing domestic relations will be overridden, it must do major damage to clear and substantial federal interests. The court held that the inclusion of such allowances does not do major damage to a clear and substantial federal interest and that, to the contrary, the Department of Defense by regulation and otherwise encourages members of the armed forces to fulfill their family commitments.

The result of the Stanton decision is that California Courts will continue to include military allowances such as BAH and BAS as tax free income when determining child and spousal support.

Do you think your spousal support payment is too high? A few weeks ago, the San Diego Union Tribune and the Wall Street Journal ran articles about the never-ending divorce saga of San Diego County's wealthiest couple, Charles and Linda Brandes. According to Forbes, Mr. Brandes is ranked number 269 on its 2010 list of the 400 Richest People in America with an estimated net worth of 1.5 billion. The San Diego Union Tribune reported that Mr. Brandes income is $16 million per month and he pays $500,000 per month in spousal support to Ms. Brandes.

Some of you may be wondering how a judge determines how much spousal support a person must pay his or her former spouse. Unlike child support, which is generally calculated by a mathematical formula, spousal support is determined by a consideration of factors set forth in California Family Code Section 4320. The trial judge must both recognize and apply each of these factors when setting spousal support.

Translated into understandable terms, the factors include: the income of each party; the marketable skills of the supported party; whether the supported spouse did not work so he or she could tend to domestic duties; whether the supported party contributed to the other party's education, training, license or career position; the ability of the supporting party to pay spousal support; the needs of each party based on the how the parties lived during the marriage; the assets and debts of each party; length of marriage; whether the supported party can work without interfering with the interests of the children; the age and health of the parties; domestic violence between the parties; tax consequences; a balance of the hardships; whether the supported party can be self-supporting within a "reasonable period of time;" the criminal conviction of an abusive spouse; and any other factors the court determines are just and equitable. That last factor is a catch-all provision, meaning whatever else the judge finds relevant.

When there is an existing spousal support order and one party is requesting a modification of spousal support, there generally needs to be a material change of circumstances since the last order. The court is required to reconsider the same standards and criteria set forth in Family Code Section 4320 it considered in making the initial long-term order at the time of judgment and any subsequent modification order. Although a showing of changed circumstances is necessary to obtain the court's consideration of a modification of spousal support, it does not ensure that a modification will be granted.

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