Articles Posted in Divorce Settlement

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If you grew up in 1990s, chances are you are familiar with the Beanie Babies fad. However, if you somehow missed out on that craze, Beanie Babies were the extremely popular stuffed animals made by Ty Warner, Inc. (later renamed as Ty Inc.). They were so popular and “valued” that in 1999 a divorcing couple actually went to count to divide up their Beanie Baby collection. No, I am not kidding! Apparently, the couple was unable to figure out how to divide up their Beanie Babies by themselves, without court intervention, so they literally took them all to court and divided them one by one in front of the judge.

While the family law court provides individuals with their “day in court” to allow a judge to make a decision about their case, most people will agree that it seems pretty ridiculous to go to court to have Beanie Babies divided. Even as a family law attorney, I am a big proponent of helping my client resolve as many of their issues outside of court as possible.

Going to court can be very costly for both parties. They are not only paying their attorney’s hourly fee, but there are other costs involved such as paying for a court reporter. Additionally, going to court means that if you are a working individual, you will have to take time off work to attend the hearings. Also, the divorce process will likely take much longer. The courts are extremely backed up and hearings are typically set months out. The longer your divorce goes on, the more anger, resentment and frustration seem to build up. Is it truly worth the time, attorney fees and emotional impact?So many issues can be dealt with outside of a court room. This includes division of your precious collection of Beanie Babies with your soon to be ex-spouse. If the value of your precious items is at issue, then bringing in a third party appraiser might be helpful. Also, when negotiating division of assets outside of court, it is important to carefully consider the item’s current and future value. It may be a huge risk to assume that items, like Beanie Babies, will have a significant future value. If you let your spouse keep a $20,000 vehicle at no charge or offset, in order to keep your beloved collection of Beanie Babies, you might be highly disappointed when years down the road you find out that Beanie Baby is still only worth less than $10. It’s a significant risk when you don’t know the item’s future value, but it’s a risk you might have to take to move the negotiating process forward and stay out of court while proceeding with your divorce.
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Trying to figure out a custody arrangement that will work best for both yourself and your children can be difficult and overwhelming. One type of custody arrangement that is not often mentioned or considered is what is known as a “nesting custody arrangement.” This type of custodial agreement (typically agreed upon between the parents rather than a court) means that the children will live full-time in the family home and the parents will share custody by taking turns living there with the children.

A divorce results in a lot of change for children. One of the big changes is that the children may feel like they have to uproot their lives, friends, and activities each time that the other parent exercises custody. A nesting arrangement might actually be best for your children because it will not require them to pack their bags every weekend (or whatever the custody schedule may require) to go to “mom’s house” or “dad’s house.” Instead, the children can remain where they are comfortable and around things that are known to them. This is particularly important for children with disabilities, who would find it even more difficult to constantly change residences. Rather, with a nesting custody arrangement, the children’s lives remain somewhat free of disruption, while the parents are the ones who are inconvenienced.

Although a nesting agreement may be the best for the children, it is possibly one of the harder arrangements for the parents. It requires a lot of cooperation and self-sacrifice on behalf of both parents. The parents must be on somewhat good terms with each other and be devoted to the concept of family, even though they are choosing to no longer live together. It also requires the parents to each have a second place to reside when it is not their “turn” to be in the family home.Depending on your specific circumstances, such as your financial situation, the level of tension between you and your spouse, the age of your children, whether your children have any disabilities, etc., a nesting custody arrangement might work best for you and your children. Perhaps it is an arrangement that you could consider trying out temporarily before setting anything in stone. Although it is an uncommon arrangement, it is one that should be explored more often if divorcing couples are truly looking out for the best interest of their children.

We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California’s child custody laws, we encourage you to contact us as soon as possible.
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Although divorce is typically filled with heavy emotions, the end result of the divorce process should be for couples to move forward to a happier life. Unfortunately, in today’s legal system, many couples come out of a divorce feeling more embittered after litigating a divorce. Choosing to mediate your divorce case, rather than litigate it, provides a much less adversarial means of getting a divorce.

Mediation is very different from hiring an attorney and appearing before a Judge in court. Mediation is also different than both parties and their individual attorneys working together to settle a divorce case. Rather, mediation (as discussed below) simply involves two parties and a credentialed mediator. The mediator is a neutral person and does not represent either party. There are no attorneys or specialist present in this type of mediation.

Once you and your spouse jointly select and retain a mediator, the three of you will meet and work through the issues you need to resolve in order to end your marriage as amicably and cost effective as possible. The process is done in a controlled and non-confrontation process so that you and your spouse will ultimately be able to decide your own divorce terms based on what is best for the both of you and your children, if any. You do not have to follow the traditional rules of dividing assets and calculating support, but your settlement must still be fair and not against public policy.

Sometimes agreements between spouses come easy but when these agreements are harder to reach the mediator will intervene. The mediator’s purpose is to help brainstorm ideas, keep the communication between the parties open and assist the couple with their decision making process by keeping them focused on the issues at hand. The mediator, unlike a judge, will not make any judgments or decisions. Rather, the mediator will facilitate the process and make sure that both parties’ interests are met and that any decisions made by the parties are mutually satisfactory to both parties.

Once the parties come to a full and final agreement, the terms of the agreement will be drafted into a Marital Settlement Agreement. Each party will have an opportunity to review the Marital Settlement Agreement before signing. The Marital Settlement Agreement will then be filed with the San Diego Family Court with the required court documents and will then become an enforceable court order.

Mediation is an ideal choice for many divorcing couples. Not only is the process much quicker and less expensive than hiring an attorney to litigate, but it also gives both parties the power to create a unique solution to their divorce that best fits the needs of the parties. As a result, the parties have much more control over the potential outcome of their divorce.
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It is not uncommon in San Diego divorce cases for spouses to accuse each other of improperly hiding or failing to disclose community assets. However, before pursuing any legal course of action for relief in court, it is advisable to collect substantial evidence of misconduct. Often times what seems like wrongdoing at first can simply be explained by clarification of a misunderstanding or the production of supplemental information. In the instance where a spouse is failing to disclose property or making substantial efforts to conceal assets, it may be necessary to seek court intervention. One common thread to accusations of concealment of property is the involvement of a third party.

Obtaining relief from a third party is much more difficult in the family law arena than it is in general civil litigation. In a general civil case or criminal prosecution, any party involved in a conspiracy can be joined in the action and held directly accountable for their involvement. Family law judges hear much more personal types of cases and therefore are hesitant to drag third parties or businesses into divorce or custody disputes.

There are two categories of joinder, mandatory joinder and permissive joinder. Mandatory joinder is used in a limited set of circumstances which are largely procedural. Permissive joinder is a much more arguable area of these laws because the exercise of the court’s discretion in making a decision regarding permissive joinder is the “reasonableness” standard. Whether joinder is considered “reasonable” is highly fact driven and the “reasonableness” of joinder may vary greatly from judge to judge. With such broad discretion and open-ended guidelines, it is impossible to predict with any certainty the outcome of a motion for joinder.A request to join a third party you believe has been conspiring with your spouse to hide property is within the court’s broad permissive joinder criteria. Pursuant to California case law, the court may order joinder of a third party to which one spouse purportedly made an unauthorized gift of community property. For example, if you have evidence to suggest that your spouse is “selling” off community assets to a friend for little to no consideration, you may be able to join the third party who has “bought” community property. Many times, the friend will be holding the property for the spouse until the divorce has concluded and then will return the property to the spouse. These types of cases are difficult to prosecute without substantial evidence of misconduct. However, if you can prove your spouse gifted community property to a third party you may be able to join the third party in your divorce action.
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In a typical California divorce case, spousal support is awarded based on the need and ability to pay of the parties. However, if there is a history of domestic violence in a case, the spousal support analysis is not so simple. Embedded within California Family Code and cases is the public policy disfavoring an awarded of spousal support from a victim of domestic violence payable to his or her abuser. In making a decision regarding long term spousal support the court is required to consider all of the factors outlined in Family Code § 4320 including domestic violence. In addition, the family courts can make support and property orders in a proceeding brought under the Domestic Violence Prevention Act.

Family Code § 4320(i) provides that the court shall consider the following circumstances: “Documented evidence of any history of domestic violence, as defined in [Fam. Code §6211], between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.” The Family Code also has provisions creating a presumption that a spousal support award should not be made in favor of a person convicted of a crime of domestic violence.Although the law is clear regarding cases where a finding of domestic violence has been made or where one party has been convicted of a crime of domestic violence, what happens if a spousal support hearing is conducted while a domestic violence case is pending? Recently, a California appellate court held that a court may award spousal support in a proceeding brought under the Domestic Violence Prevention Act prior to reaching a conclusion that domestic violence has occurred. Contrary to cases where an alleged domestic violence abuser is requesting support, this recent case addressed the issue of support due to the alleged victim. Domestic violence hearings can get continued out (for months sometimes) for a variety of reasons. The court reasoned that is should not withhold support for an extended period of time just because the domestic violence issues have not been decided.

Domestic violence cases are always emotionally charged and carry significant implications for both parties. It is always important to discuss your domestic violence case with an experienced family law attorney to ensure that your rights are protected.
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In a recent divorce between Black Keys’ singer, Dan Auerbach, and his former wife, Stephanie Gonis, the parties divided an unusual asset – a lock of Bob Dylan’s hair. This is a perfect example of the family law principle that all property must be divided upon dissolution. In the Auerbach-Gonis divorce, the parties owned a variety of typical assets such as real property, vehicles, and cash; however, all property – including valuable locks of hair must be divided at the time of judgment.

In the beginning of each divorce case, the parties are required to disclose and characterize all property either party has an interest in. “Property” is defined in California Civil Code Section 654 as, “the ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others…the thing of which there may be ownership is called property”. Property can be further characterized as “real” property and “personal” property. Generally in dissolution proceedings, real estate (including the marital residence and vacation homes) are the only “real” property divided. All other property is generally “personal” property.Ultimately Gonis was awarded Bob Dylan’s hair pursuant to the Auerbach-Gonis judgment. According to the California Family Code and applicable California case law, the community estate must be divided equally between the parties. The community estate consists of all the community property acquired by the parties from the date of marriage to the date of separation. In some circumstances, although the estate as a whole can be divided equally in terms of the value each party receives, all assets may not be divisible. It is important to note that all property, including the separate property of both spouses, must be disclosed. Separate property is defined all property acquired by either spouse prior to marriage, after separation, or during marriage by gift, bequest, or devise. If property is determined to be the separate property of one spouse, that property will be confirmed to that spouse in the final judgment without offset for its value.

In a case where a community asset cannot simply be divided in half and distributed to the parties, such as a lock of hair, the parties will have two options. First, the parties can agree on the value of the indivisible item and offset the division of other assets to account for one party receiving the asset in full. Second, the parties can agree to sell the indivisible item and split the proceeds equally. If an asset is easily divisible, such as the funds in a bank account, the parties can each take one-half of the asset without the need for a valuation or sale.
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If you are recently divorced or nearing the end of your divorce process, you might want to start by checking off everything on your post-divorce to do list so that you can finally move on and focus on yourself.

Once the divorce is nearing the end, you probably want nothing more than to move on from it and think about anything else. The fact of the matter is that even once the divorce is over you will still have a long list of financial housekeeping items related to the divorce. Below is a list to help you remember some of these items to take of (to the extent they are applicable to your situation) so that you can work towards turning the page and beginning a fresh new start.

1. Remove your husband’s name and UPDATE all of your financial documents, credit cards, utility bills, medical records, employment records, passport, driver’s license, auto, health and homeowners insurance policies, IRS records, Social Security Card, Title to real property and any professional licenses to reflect the following changes in your basic information, to the extent applicable:
a. Name change b. Address change c. “Single” status instead of “Married”
d. New trustee
2. Update your beneficiary designation on all life insurance plans, IRAs, 401(k), mutual fund accounts, bank accounts, brokerage accounts, etc. (if your ex-spouse is your current primary beneficiary and you want someone else to be designated as the beneficiary upon your death).

3. Revise your will: you will likely want to revise your will to take your ex-spouse off and designate others to inherit from you. If you are removing your ex-spouse, who was also designated as your Executor then you will also need to choose a new Executor of your estate.

4. Research health insurance options.

5. Think about changing your “Emergency Contact” where applicable if your ex-spouse is currently listed as your only person to contact in case of an emergency.

6. Obtain a certified copy of your divorce decree: to make many of the changes listed above you might be required to produce a certified copy of your divorce decree. Try to obtain extra copies early on so that you don’t have to delay the process of checking off items on your to do list.

7. Close joint credit cards and open new bank accounts and credit cards in your name so you can start establishing your own credit history.

8. Talk to a Financial Adviser to start planning for your financial future.

The list of things to change and update post-divorce can be overwhelming. The best way to approach your to do list is to take a look at all the documents you were required to produce during your divorce proceeding and then attack it one at a time. Your Schedule of Assets and Debts that was prepared during your divorce should have a comprehensive list of the accounts that you should think about updating.
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Due to the nature of California family law, divorce lawyers have a tough job when it comes to pleasing the client. Many divorce lawyers are proficient practitioners who are skilled in court room advocacy, preparing appropriate pleadings, and getting people divorced. However, at the end of a family law case, both parties walk away from each other with less than they started with and the emotional strain of separation. Undoubtedly in every divorce case, bank accounts and retirement plans will be divided, debt will be assigned, valuable property will be sold and the parties must figure out a new way of life. Family lawyers often work tirelessly to ease the stress of divorce for the client by attempting to create mutual beneficial solutions for the parties outside of the courtroom.

If the parties cannot reach an agreement on all issues in a divorce case, they must face each other as opponents in trial. Any family law trial is incredibly expensive for both parties to litigate. In fact, many trials can be more costly than the item(s) over which the parties are arguing. Another unfortunate reality about litigation in family law cases is that litigation is often funded by the liquidation of the community assets.

This means that the longer the parties battle on, the more the “pot” left to divide shrinks. After all of the arguments, hearings, and trials are over, the parties may not have any assets left to share. In order to avoid that outcome, family law attorneys work to help the client consider the cost-benefit analysis for each dispute.

Family law litigants often become frustrated with the settlement process in cases where one spouse remains firm in his or her positions and is unwilling to compromise on any issue. In these cases, the spouse who is willing to engage in “back and forth” settlement offers may feel cornered and vulnerable. The cooperative spouse will likely see no other option than to yield to every demand of the unreasonable party.The only alternative is a lengthy, expensive and draining trial. The emotional and financial cost of trial is rarely worth a potentially successful outcome. This problem is only compounded when the spouse and his/her attorney are confident they will prevail if a disputed issue is litigated; however, they must rescind their position to preserve the community estate.

There are many opportunities throughout the divorce process for parties to reach a settlement on disputed issues. If child custody and/or visitation are involved in the case, the parties are required to attend mediation at Family Court Services. A mediator will work with both parties and attempt to create a mutually agreed upon custody and child sharing arrangement.

In addition, before any issue proceeds to trial, the parties are required to attend a Mandatory Settlement Conference (“MSC“). At the MSC, a family law expert will work with the parties in an attempt to settle all issues which could potentially go to trial. Both of these services are provided without charge for family law litigants. WCENY8KDWAEH Continue reading

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In January 2013, divorce attorneys were abuzz as our local Court of Appeal took a strong stance with regard to enforceability of Marital Settlement Agreements (“MSA’s”). In San Diego family law cases, the parties to a divorce have the ability to enter into agreements regarding any area of their case. Settling issues such as child custody/visitation, support, and property division is advantageous to the parties because they have the opportunity to craft unique provisions which meet their individual needs. San Diego family courts are limited by the California Family Code and local/state guidelines in what types of orders they can make. However, when parties and/or their divorce attorneys draft their own settlement terms it is imperative to consider all possible future scenarios before signing a Marital Settlement Agreement.

In the unfortunate case of Marriage of Hibbard, the parties to the divorce agreed that spousal support “shall not be reduced to an amount lower than two thousand dollars per month” and would only terminate upon Wife’s death or remarriage or the death of Husband. In this case, the parties were married for thirty years from 1971 to 2001. At the time of separation, Husband and Wife were both lawyers. Husband earned $84,000 per year and Wife earned $24,000 per year. In 2011, Husband’s post traumatic stress disorder (“PTSD”) fully manifested and hindered his ability to work. Husband’s PSTD symptoms began in 1970 after he served in combat in Vietnam.

In 2012, unable to work more than a few hours a day and drowning in debt, Husband filed a motion in family court to modify spousal support. After shutting down his law practice, Husband only expected to receive $4,040 per month in income from disability and Social Security. Wife opposed Husband’s request to modify support stating she was only receiving $1,738 per month in teacher’s retirement and Social Security. Wife also stated she was similarly unable to work. The trial court held that it was unable to modify spousal support outside of the terms of the marital settlement agreement and therefore refused to reduce support lower than $2,000 per month. The Court of Appeal upheld the trial court’s decision.

Marriage of Hibbard is a great example of the importance of carefully considering and drafting Marital Settlement Agreement provisions. Before singing their Marital Settlement Agreement, the Hibbards could have easily imagined a situation where Husband would be financially unable to pay Wife $2,000 per month in spousal support. However, they did not provide any exceptions to the blanket prohibition on a spousal support award lower than $2,000 per month. The Court upheld their agreement despite its unfair applicability to the parties’ current circumstances. Marital Settlement Agreements are interpreted under general contract laws which hold that contracting parties have the right to enter into any agreement of their choosing. Divorce attorneys will advise their clients that the role of the court is not to re-write agreements but rather to enforce them as written.

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The U.S. peered into the private lives of Jamie and Frank McCourt, owners of the Dodgers, as they publicly litigated their contentious divorce in California. The former couple’s dispute over ownership of the California baseball team resulted in what is rumored to be one of the world’s most expensive divorces. After substantial attorney fees and costs were racked up throughout the proceeding, the McCourt’s reached a divorce settlement in October 2011.

In consideration for relinquishing any rights to the Dodgers, Ms. McCourt received $131 million tax-free in addition to several expensive pieces of real property. Despite receiving what seems like an enormous amount of money, Ms. McCourt and her divorce attorney now want the settlement thrown out as the Dodgers were later sold for $2 billion. Assuming the Dodgers were a community property asset, Ms. McCourt settled for $770 million less than she would have received if the proceeds of the sale were divided equally.

Read more about property division and divorce in California

The basis of Ms. McCourt’s request to set aside the Marital Settlement Agreement is fraud. She argues that her former husband deliberately misled her regarding the true value of the Dodgers. At a recent court hearing, Mr. McCourt’s divorce lawyers argued that Ms. McCourt is not entitled to set aside the settlement because she willingly agreed its terms and her recent claims are baseless. If the judge agrees with Ms. McCourt and sets aside the judgment, the parties and their attorneys will re-litigate all issues related to the Dodgers. The court will have to determine, under California family law provisions, whether the Dodgers were community property or the separate property of Mr. McCourt. Prior to settlement, the court determined that the parties’ post-marital agreement giving Mr. McCourt full ownership of the Dodgers was invalid.As divorce attorneys will advise their clients, under the California Family Code, the commission of perjury on the Final Declaration of Disclosure is a legal basis to set aside a judgment. At the end of each divorce case in San Diego, the parties are required to complete a Final Declaration of Disclosure, unless a proper waiver is effectuated. The Final Declaration of Disclosure is a series of forms, which are signed under the penalty of perjury, on which the parties list the value of all assets.

Learn more about fiduciary duty in divorce

Ms. McCourt’s attorney argues that she relied on the most recent figures presented to her in accepting the settlement. If Mr. McCourt in fact lied on those forms, Ms. McCourt may be able to set aside their judgment subject to statute of limitation requirements. The court has the ability to limit the set aside only to those portions of the agreement which were materially affected by the nondisclosure. In this case, only the portions related to the Dodgers would be addressed.

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