Articles Posted in California

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Laura Wasser is an LA divorce attorney who represents Hollywood’s most famous celebrities. Considering her clientele, Wasser encounters her fair share of drama in her practice. Recently Wasser published a new book entitled “It Doesn’t Have to Be That Way” full of intriguing divorce stories and advice for any divorcing couple. Although Wasser has been involved in many divorce battles, she provides her readers with the following ten tips for a civilized divorce.

  1. Marriage is a contract. Although this “tip” seems harsh, it is true. Marriage is a contract between adults and when that contract ends, parties must wrap up their relationship in accordance with default California community property laws (unless a premarital agreement is in place). Further, once the relationship originally established between two people has changed, a new relationship must be discussed and negotiated.
  2. Divorce is a business transaction. Another harsh reality regarding divorce is that it is a business transaction. It may be difficult to calmly divide up the life you shared with your spouse, but emotional outbursts will only hinder the process. Wasser recommends parties keep their cool when negotiating divorce issues. Taking unreasonable positions in an attempt to punish your ex-partner will inevitably increase fees and delay the divorce process.
  3. Dissolve it before it gets ugly. The dissolution process will proceed more smoothly if the parties have maintained amicable feelings toward each other. If the parties still respect and care for each other, they are more apt to reaching mutually beneficial resolutions in the event of a dispute.
  4. Before discussing divorce, consider what you want to say. The opening discussion regarding divorce can set the tone for the entire dissolution process. If the parties openly discuss their options and agree to proceed in a collaborative manner, the divorce will likely proceed much smoother than if the parties open the dialogue with insults and threats.
  5. Keep your feelings to yourself. By wrapping up family, friends and co-workers in your divorce you may disclose too much information. It is important to keep the details of your divorce confidential by only sharing them with your attorney and a therapist if you are seeing one.
  6. Be prepared to share. If you have been the primary earner in the marriage you should be prepared to split all of your marital assets and to pay child and/or spousal support. This legal principal applies regardless of gender. The Court will order a female breadwinner to pay support just as a male breadwinner. Additionally, the parties should begin considering sharing their children and the difficulties of being apart from them.
  7. Do not behave badly in front of your children. For the well-being of your children, it is always best to make every effort not to involve them in the divorce process. This requires both parents to refrain from making disparaging remarks about the other in the presence of the children.
  8. Be graceful under pressure. In the event your spouse takes a “less than graceful” approach to the divorce process, it is important to remain stoic. Regardless of the poor behavior of one party, it is not appropriate to retaliate.
  9. Split assets together. Parties can save significant attorney fees and costs by reaching agreements together regarding smaller assets such as personal property in the family home. Often couples walk through the family home together and discuss what they would like. Read more about property division methods
  10. Don’t sleep with your ex-partner. Having a sexual relationship with your ex-partner post-separation can greatly impact your divorce case. A sexual relationship implies the marriage is not over and may change the date of separation.

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Another one bites the dust. TMZ reports that singer, Ben Harper, and actress, Laura Dern, are officially divorced. In 2010, after five years of marriage and two children later, Harper filed for divorce to Dern’s surprise. The couple reportedly tried to reconcile back in 2012, which turned out to be an utter failure. Now a year later, a Judge has signed off so they are officially divorced and will now be restored to their “single person” status.

Read more about the divorce from TMZ.com

So how exactly do divorcing couples, like Harper and Dern, know when their divorce is officially finalized? In other words, when can they truly move on with their lives and know that their marital status has been restored to “single” person status? In California, a divorce cannot be absolutely finalized until: all of the issues are resolved, a judgment has been signed by a judge and processed by the court, and the six month waiting period has lapsed.

Resolution of All Issues

Issues related to divorce (division of property, custody, child and spousal support, etc.) can be resolved by default, agreement by the parties, through court proceedings where the judge makes an order, or a combination thereof.

The California Divorce 6 Month Waiting Period

Many of our San Diego clients are familiar with the “six month rule”. This rule is codified in California Family Code Section 2339(a), which states that marital status cannot be terminated any sooner than six months from the date that the Respondent was served with the petition for dissolution of marriage or the date of appearance of the Respondent, whichever occurs first. One purpose of this six-month waiting period in California is to give the parties a chance to reconcile or reconsider pursuing the dissolution. Many divorcing couples will often times give the marriage one last shot. However, if the parties fail at reconciling, like Harper and Dern did, or have simply have no intention at all to reconcile, then they still cannot get a divorce until the six month waiting period has been met. The parties may prepare and even finalize their divorce judgment prior to the end of the six month date, however, they will not become “officially” divorced until the six months has lapsed. However, if the parties do not resolve all of the issues prior to the six month date, then they will not be automatically divorced on that date.

Final Divorce Judgment

Once all issues have been resolved, then all of the necessary paperwork must be filed with the court. Thus, even if all issues have been resolved and the six month rule is met, a divorce is not truly final until there is actually a judgment signed by a judge and processed by the Court. The parties will receive a Notice of Entry of Judgment, which means the Judgment is or has been processed but they need to wait for the rest of the Judgment documents, which will be returned to the person who filed them once the Court is done processing them and it will note the date upon which the parties will be restored to the status of single persons.

If you are interested in properly finalizing a divorce from your spouse we can provide you with information and guide you through the process. Our team of experienced attorneys is prepared to litigate on your behalf. If you wish you schedule a consultation with Bickford Blado & Botros, please call us at (858) 793-8884.
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As a result of a divorce, many parents are ordered to make child support payments until the child turns 18 (or 19 if he or she is still in high school, living at home, and cannot support himself or herself). Child support is designed to help with child care costs and all other expenses that are associated with being a full-time parent. If children are young at the time of the divorce, child support payments may continue for quite some time.

Unfortunately, during that often lengthy period of time the payor parent (the parent paying child support) might die prior to the time his or her child support obligations have been completed. If this happens, the question remains whether the child support payments then terminate upon the payor parent’s death.

While the death of the parent would be devastating enough for any child, it would be even worse if that child then had to suffer financially as well because the child support payments would no longer be received on his or her behalf. Luckily in California, when a non-custodial parent who is ordered to pay child support dies, his or her obligation to continue to pay child support lives on.

Several cases in California have specifically held that an order to pay child support pursuant to a divorce decree or settlement agreement survives the death of the payor parent and remains a charge against the payor’s estate. The payor’s estate might include bank accounts, 401(k)s, cars, houses, etc. The living, custodial parent would need to file a creditor’s claim against the payor spouse’s estate. To the extent that they are part of the probate estate, child support payments would take priority over other obligations of the estate.

But what if the deceased payor parent doesn’t leave an estate sufficient to cover his or her remaining child support obligation? One way to ensure that child support payments will continue to be received after the payor parent’s death is to secure those payments through a life insurance policy. California Family Code Section 4012 states that “upon a showing of good cause, the court may order a parent required to make a payment of child support to give reasonable security for the payment.” In other words, this gives the court authority to require a parent to provide life insurance as security for child support.

Another option is for the surviving parent to seek benefits on behalf of the child from the Social Security Administration if the deceased parent was gainfully employed for a period of time.

www.BickfordLaw.com


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Los Angeles Lakers star Steve Nash has allegedly been in a bitter child support battle with his ex, Alejandra Amarilla. TMZ reports that Nash allegedly doesn’t want to pay up because he is worried that Alejandra, who is an excessive spender, will waste the child support payments by spoiling the kids with expensive luxuries that they do not need. If ordered to pay child support, can Nash limit what Amarilla uses the child support payments for?

Child support payments can be used for anything that is considered “necessary” for the child’s care and well-being. This generally includes things such as the child’s food, clothing, school expenses, after-school expenses and toys. Costs for rent or mortgage, utility bills and other household items are also typically justified as going towards the basic care of the child.

However, California (like a majority of the states) does not require the parent who receives the child support payments to give an accounting to the other parent of how the child support money is spent. Only ten states allow courts to demand an accounting of expenses and spending of child support money received in ten states (Colorado, Delaware, Florida, Indiana, Louisiana, Missouri, Nebraska, Oklahoma, Oregon and Washington). Also in Alabama, courts are allowed to demand such accounting under certain circumstances.Here in California, it is merely presumed that the child support money is spent on the child. Thus, the parent who is making the child support payments does not have much say regarding how the money is used once it leaves their hands.

But what happens when the parent paying the child support suspects that the money is being used not only to care for their children but that it is also going towards the other parent’s personal needs? Unfortunately, not much can be done unless the child’s needs are actually being neglected or ignored. The payor parent won’t be able to seek a modification in his or her child support order from the court without significant evidence that the child’s needs are not being met by the parent who receiving the child support payment.

While the parent paying spousal support may want reassurance that their hard-earned dollars are actually going towards their children’s needs, rather than their ex’s luxuries, unfortunately the law in California is not set up to provide such reassurance. So if Nash is indeed ordered to pay child support to Amarilla, it looks like he won’t have much support from the family law court in keeping tabs on Amarilla’s spending.

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A premarital agreement, more commonly known as a “prenup,” is a contract entered into by soon-to-be spouses prior to marriage. Celebrities commonly enter premarital agreements in order to protect any wealth they may acquire during marriage. Where one spouse has the potential to make millions of dollars per year, as is often the case in Del Mar, he or she is incentivized to enter into a contract with his or her spouse clarifying that any money earned during marriage will remain his or her separate property upon divorce. In contrast, under California’s default community property laws, each spouse is entitled to one-half of all earnings by his or her spouse during marriage. One of the most highly debated issues in celebrity premarital agreement negotiations and litigation is an infidelity clause.

Learn more about quasi-community property

As divorce attorneys know, all premarital agreements are different, and thus all infidelity clauses are different. However, an infidelity clause generally imposes a financial penalty on one or both spouses if he or she commits emotional or sexual infidelity. Financial penalties may include mandatory cash payouts, increased spousal support, or an unequal division of the marital estate. In order to protect themselves in case of divorce, celebrities couples such as Charlie Sheen & Denise Richards, Sandra Bullock & Jesse James, and Catherine-Zeta Jones & Michael Douglas are rumored to have had infidelity clauses in their premarital agreements. Recently, Elin Nordegren was rumored to have demanded a substantial infidelity clause in a premarital agreement as a condition of reconciling with Tiger Woods.

Ironically, despite the buzz about celebrity infidelity clauses in premarital agreements, infidelity clauses are void in Del Mar and across California. In Diosdado v. Diosdado, the California divorce court found in 2002 that a penalty for infidelity is in direct violation of public policy underlying “no-fault” divorce and thus is unenforceable. Thus far, Diosdado has been continually upheld by all published cases to follow it. The policy behind California’s “no-fault” divorce is that a party should not be punished financially for any misconduct during marriage. In contrast, certain circumstances allow some states’ divorce courts to look at fault in dissolving marriage, determining support, and dividing property. It would seem to follow that these states would uphold an infidelity clause in a premarital agreement, should divorce become an issue.

Read more about jurisdiction and divorce in California

Considering that thousands of celebrities call cities in California home, it is interesting that so many celebrities are discussing unenforceable infidelity clauses. One explanation may be that only celebrities residing and divorcing outside of California are negotiating infidelity clauses. Gossip magazines also debate whether or not an expensive price tag actually deters celebrities from straying outside of their marriages.
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San Diego is known for having a vast military community. Among the many military bases in San Diego County are the Marine Corps Air Station Miramar, the Marine Corps Base Camp Pendleton, the Naval Base Coronado, the Naval Base San Diego, and the Naval Base Point Loma. In fact, the Naval Base San Diego is the largest base of the United States Navy on the west coast. Having a parent in the military can bring out a new set of child custody and visitation complications. It is important to consider possible deployments when creating any parenting plan.California Family Code section 3047 directly addresses a parent’s military obligations, “a party’s absence, relocation, or failure to comply with custody and visitation orders shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party’s activation to military duty…or military deployment out of state.” Under this statute, one parent may not use the other’s military duties against them in a child custody proceeding. If the sole or joint physical custodian is required to move a substantial distance or is otherwise unable to exercise his or her custodial rights, the court may order a temporary modification in custody. Once the military parent is able to resume his or her custodial duties, the temporary order is subject to review. However, there shall be a presumption that the previous order will resume in place of the temporary modification. This presumption can be overcome if the court finds it is not the best interest of the child.

The best interest of the child is the controlling theme throughout San Diego family law. The court considers a number of factors and makes determinations of custody and visitation. Among the factors the court will consider are:

(1) The health safety and welfare of the child;

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The State of Alaska is reforming the way a divorce case proceeds through the court system. The new program named the Early Resolution Project is aimed at resolving divorce cases quickly and efficiently. One distinguishing characteristic of Early Resolution is the emphasis on settlement. Under the program, the Anchorage Superior Court addresses several divorce cases in one afternoon on a biweekly basis. On this afternoon, the parties are give free legal advice and encouraged to reach a mutually beneficial agreement.Superior Court Judge Stephanie Joannides envisioned the program as a result of her experience in the Alaskan family court system. She was concerned because many divorce cases are assigned a court date that is several months after the initial filing. This waiting period caused the parties to become firm in their positions and unwilling to compromise. Judge Joannides proposed to attempt to resolve these divorce cases early in the process and has seen promising results. In the first year, eighty percent of cases settled as a result of Early Resolution.

Besides a quick resolution to the case, the Early Resolution program and others like it offer a number of fringe benefits to the parties. Like any case that settles early in the litigation process, a divorce settlement can save the parties a great amount of money. Litigating a family law case in San Diego involves filing fees, court costs and attorney’s fees. If a case settles early, the parties will not be responsible for any further costs and fees. Another benefit to dispute resolution is the preservation of the relationship between the parties. Litigation has the tendency to ruin the relationship between the parties indefinitely. However, in family law cases involving children, it is crucial for the parents to maintain a co-parenting relationship. Although the California Family Code is often clear, family court judges have an element of unpredictability. The facts of a case may be disputed and therefore the outcome can be uncertain. If parties reach a settlement they are in control of the outcome of the case. In family law cases, the outcome often has life-changing consequences for both parties. In order to have input in the final decision, the parties much reach an agreement.

The San Diego family court system has a program similar to Alaska’s Early Resolution Project. In San Diego, the family court judge will assign the parties a Mandatory Settlement Conference (MSC) date before any case will proceed to trial. Unlike in Alaska, the MSC will occur toward the end of the parties’ case. The MSC will take place at the San Diego Superior Court where the parties have been litigating their case. A settlement conference judge will be assigned to the case. These judges are experienced local family law attorneys who have volunteered their time to help parties resolve their cases before trial. Because they have so much experience with San Diego family law, the settlement judges are able to help the parties predict what the judge will likely do at trial and reach a settlement agreement based on the probable outcome. The benefit to reaching an agreement during the MSC is avoiding trial. The parties are able to avoid the cost, time and emotional toll of a trial.

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Under California family law statutes, paternity can be established in a number of ways depending on the relationship between the father and mother. Through the combination of statute-mandated presumptions and DNA testing, determinations regarding paternity made by the court can have a significant impact on child custody and child support.

An unmarried father must sign a paternity declaration in order for his name to appear on a child’s birth certificate. The paternity declaration is significant because it creates both support obligations and parental rights for the father. In San Diego, there is a rebuttable presumption that a man who accepts a child into his home and openly holds that child out to be his own is the child’s biological father. This presumption is rebuttable through the use of blood tests to determine paternity. If no blood tests are conducted and introduced into paternity proceedings, the man is presumed to be the child’s father.

A child conceived during a martial relationship in which the wife is cohabitating with the husband is presumed to be a child of the marriage. In other words, the mother’s husband is presumptively the child’s father. If the husband is sterile or impotent, the marital presumption will not apply. This presumption may be overcome through the use of blood or DNA testing to determine paternity. The presumed father must petition for court-ordered blood testing within two years of the child’s birth. Therefore, unless a motion is filed within the two-year statute of limitations and blood testing establishes the husband is not the father, the mother’s husband is conclusively presumed to be the father. The presumption will still apply even if another man is proven to be the biological father of the child.

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It is that time of year when you need to file your income taxes and we want you to be informed. Your filing status for taxes depends partly on your marital status on the last day of the year. If you were still legally married (meaning there is no final divorce decree) as of December 31, 2011 you are considered to have been married for the full year and must file as either married filing jointly or married filing separately. For federal tax purposes, “marriage” currently only means a legal union between a man and a woman as husband and wife. Your filing status is important and is used for many things on your tax return, such as determining your standard deduction, whether you need to file a return, the amount of tax you owe, and whether you qualify for various deductions and credits. When it comes to your filing status, you do have options.

Married Filing Jointly

If you are still legally married, you and your spouse can file a joint tax return. Married couples do not have to be living together to file jointly. If you file a joint return you both must include all your income, exemptions, deductions, and credits on that return. Even if you or your spouse had no income or deductions, you can still file a joint return. You must balance taxes due against your risk of being jointly and separately liable for taxes, interest, and penalties on a joint return. If you question whether your spouse is reporting all income, or have little or no knowledge of your spouse’s income and finances, discuss this issue with legal counsel before signing a joint return. The Internal Revenue Service (IRS) can hold you liable for all taxes due on a jointly filed return, as well as penalties and interest, even if your spouse alone earned the underlying income.

Married Filing Separately

Legally married couples can also file “married filing separate” whether they live together or not. If you and your spouse file separate returns, you should each report only your own income, exemptions, deductions, and credits on your individual return. You can file a separate return even if only one of you had income. However, the married filing separately status rarely works to lower the family tax bill. For example, one major disadvantage is that you can’t have one spouse itemize and claim all the deductions while the other claims the standard deduction. Both husband and wife must either itemize or use the standard deduction. You can’t mix and match. So if one spouse itemizes and the other has nothing to itemize, that spouse would not then be able to claim the standard deduction, which might have reduced the amount of taxes owed.

Another disadvantage with “married filing separate” filers is that they can no longer take any relevant exclusions, credits, or deductions for adoption or education expenses. Likewise, various exclusion and exemption amounts will be cut for child and dependent care expenses, employer dependent care assistance, and alternative minimum tax. Here are some examples if you file separate returns with your spouse:

• You cannot take the Earned Income Credit.
• You cannot take the Child and Dependent Care Credit in most cases.
• You cannot exclude any interest income from U.S. savings bonds that you used for education expenses.
• You cannot take the Credit for the Elderly or Disabled unless you lived apart from your spouse all year.
• You may owe more taxes on Social Security income or railroad retirement benefits than if you filed jointly.
• You cannot deduct interest paid on student loans.
• You cannot take any education credits.
• You cannot take an exclusion for adoption expenses or the Adoption Credit in most cases.

Benefits of filing under this status include only having liability for the tax, interest, and penalties on your own return. The IRS would not pursue you for your spouse’s tax obligation for that same year. If the return is filed electronically, any refund due can be divided up and directly deposited by the IRS in up to three different separate accounts. Note, however, that some financial institutions will not allow a refund for a joint return to be deposited into an individual account, so if this option is being considered, the taxpayer should check with his or her bank.
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