Articles Posted in Divorce

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In San Diego and throughout the state of California there are two types of spousal support which can be awarded by a family court judge. The two types of spousal support are temporary (pendente lite) spousal support and permanent (long-term) spousal support. The type of spousal support awarded is dependent on what point in the case the award is made. Often times family law litigants have various questions about spousal support especially after their first spousal support hearing. One of the most frequent questions asked is, “How long will the spousal support order last?”

Prior to entry of Judgment, any spousal support award made by the family court judges will be a “temporary” spousal support order. At the end of a dissolution case, the court will reevaluate the amount of spousal support being paid and make an ongoing “permanent” spousal support order. When parties first separate, one spouse may not have access to community funds and therefore he or she must request a hearing immediately to obtain an order for support. At times, that first rush to judgment can result in a slightly higher or slightly lower amount of support than may be appropriate on a more permanent basis.

In making a “temporary” spousal support order, the family courts in California are not as restricted using discretion than other court systems. For example, many other state court judges are required to apply a specific formula which considers the parties’ incomes and various other factors. In California, although many family court judges make spousal support awards using a default formula, they are not required to. In practice, family court judges often refer to the spousal support amount as suggested by guideline formulas and make awards based on that information.When family court judges make “permanent” spousal support orders, they must consider all of the factors outlined in Family Code § 4320. Most importantly, the court will consider the ability of the supporting spouse to pay support and the need of the supported spouse for spousal support. Family Code § 4320 also lists factors such as the length of the marriage, the age of the parties, the health of the parties, and any history of domestic violence. Becoming familiar with these methods for calculating spousal support can be especially helpful for parties’ in settlement negotiations. The measuring stick for any proposal in negotiation is what the judge would likely do if the matter were to proceed to court. Therefore, having that information available can assist the parties with proposing and accepting reasonable solutions.
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In this day in age, social media seems to run our lives. We wake up in the morning and check our Facebook account. We upload a photo of our breakfast to Instagram. And we tweet about how our day at work is going. Social media sites like Facebook, Instagram and Twitter seem to dictate how we run our lives. Accessing these social media sites is as easy as a click of a button on your smartphone. Well it turns out that social media is not only running our lives, but also playing a part in both ruining our marriages and helping our divorces.

Divorce attorneys commonly note that irreconcilable differences are the reason for the divorce. Research has shown that these commonly used digital communications may be the culprit of the “irreconcilable differences” that develop between spouses. Social media websites are so easily accessible and so often used that they not only help create relationships but they also play a role in destroying relationships. For instance, due to the anonymity on some of the sites and the often encouraged non face-to-face contact, people seem to be more susceptible to temptations. Old flames tend to resurface or new flames are more likely to continue because retrieving contact information is so easy and opens the door to further communication. Social media sites also often times open the door to arguments because things posted by one spouse are misinterpreted by the other spouse. A harmless remark by one spouse may cause the other spouse to have major suspicions begin stirring. In essence, these social media sites are the culprit in facilitating emotional and physical affairs among married people.However, after a relationship ends and a divorce begins, social media may play a big role in helping your divorce litigation. Many San Diego divorce attorneys note that their clients are closely monitoring the social media sites of their soon to be ex-spouse. Not only are they reading what their soon to be ex-spouse has to say or photos he/she has to post, but they are taking screen shots of the social media page and downloading photos the spouse has uploaded onto the site. Spouses are noting down anything and everything that might impact their divorce proceeding, especially with regard to child custody determinations and hidden assets. Thus, spouses should be conscientious of what they post while participating in social media during divorce litigation.
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According to Fox News, a Florida man called his ex 145 times over the span of a mere 11 hours. Although he has been released from jail on bail, he now faces charges of aggravated stalking. If this situation were to occur in California, would the man’s actions perhaps warrant an order of protection in the realm of domestic violence? Could he face any criminal consequences for his actions?

Unfortunately, divorce attorneys often deal with clients who are being abused by their ex or their soon to be ex and need legal protection from such abuse. Harassment may be considered a form of abuse. If the client and the other person have a close relationship (i.e. they are divorced, separated, dating, use to date, living together, used to live together or closely related) and the client has been abused or harassed by that other person, it falls within the realm of domestic violence. Divorce attorneys will typically assist the client with getting a domestic violence restraining order against the other person.A restraining order, also known as an order of protection, is an order by the court that sets forth what conduct is or is not permitted between a person who has committed threats or violence against another person. Behavior that constitutes domestic violence for purposes of seeking an order of protection can be physical abuse, sexual assault, making someone reasonably afraid of being hurt, or harassing, stalking, disturbing someone’s peace, etc. First, a Temporary Restraining Order must be obtained. Then, the Court will set a date for the parties to return to Court and request that the Restraining Order be made a Permanent Order. Also, according to Family Code 6320(a), “The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, making annoying telephone calls”

Depending on the severity of the situation, you can also pursue criminal prosecution against the abuser or harasser. In fact, California Penal Code Section 653m (b) provides that “Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor.” So your ex calling you over 145 times during the span of a mere 11 hours, like what recently happened in Florida, could not only warrant an order of protection but may also be considered a crime punishable pursuant to the California Penal Code. Of course, excessive phone calls or electronic contacts that are made in good faith or during the ordinary course and scope of business, would not be punishable under the Penal Code.
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In every California divorce proceeding, both parties must take a good hard look at their joint and individual finances. This is because, at the outset of the divorce process, both parties are required to provide an exhaustive list of all assets, debts, income and expenses. This aids in the division of property and determination of support. However, sometimes once all the facts are laid out in black and white for the parties, they realize that they have much more debt than they originally thought. If the parties’ financial situation is dire enough, one or both parties may file bankruptcy.

If you are going through a divorce and are considering filing bankruptcy it is important to discuss this decision with both a bankruptcy attorney and a certified family law specialist. Together, these professionals should be able to give you all of the information necessary to make the decision regarding whether to file for bankruptcy or not. If you decide you would like to file for bankruptcy, you should consider the timing of your filing and the effect it will have on your divorce case.

Once a party to a divorce action files bankruptcy, the bankruptcy case operates as a stay to all proceedings regarding the division of community property that is the property of the bankruptcy estate. The stay does not operate to prevent proceedings to collect, modify or enforce child and/or spousal support payments against current income. Further, the divorce proceeding itself is not stayed. However, a dissolution proceeding cannot be completed until all property is divided. If property division is stayed pursuant to an ongoing bankruptcy case, the resolution of the divorce case will likewise be stayed.

If a divorce judgment is entered in violation of a bankruptcy imposed stay of proceedings, the divorce judgment is still valid. However, the divorce judgment will have no legally binding effect on the bankruptcy case. The divorce judgment is effective and binding as between the parties but has no legal effect on the bankruptcy authorities. The bankruptcy court does have the option to deflect jurisdiction to the family court to establish the character or title to property held in the debtor’s estate. Unless and until the bankruptcy court deflects such jurisdiction to the family court, the property of the estate will be controlled by the bankruptcy court. In the context of a post-judgment motion or case where the parties to a family law matter were never married, filing bankruptcy does not stay a request to establish or modify child or spousal support.
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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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Once a spouse decides that his or her marriage is over, he or she may want to take steps to prepare for divorce before filing the initial paperwork and/or discussing it with his or her spouse. If you are considering your first divorce just the thought of the overall process can be overwhelming and upsetting. In order to enter the process with greater awareness and information, there are a few things that you can do to prepare for divorce.

Consult with an attorney regarding your state’s laws: Each state has specific laws regarding how property will be divided, spousal support, child support, and custody/visitation in the event of a divorce. Many people are unfamiliar with the specific laws of their state and may have misconceptions regarding their rights and options in a divorce. It is important to meet with a certified family law specialist so that you can gather more information about what you can expect in your divorce. Getting an idea of how the process will work and the likely outcomes in your case can ease a great deal of stress and tension.

Become familiar with the different types of child custody: In California there are two types of child custody – legal and physical custody. It is important to understand the differences between these two types of custody and how they relate to each other. Further, there are varying degrees of physical custody and infinite possible custody configurations.

Preventative preparation: One of the biggest jobs for any divorce litigant is helping his or her attorney prepare the mandatory financial disclosure documents. This process can become more difficult if a party no longer has access to the required documents because he or she moved out of the residence, the other spouse took the documents, or the spouse has no direct knowledge of the family finances. Prior to separation, it is advisable to make copies of all financial documents including, but not limited to, bank statements, tax returns, pay stubs, family bills, and title paperwork.

Stay on your best behavior: In preparation for divorce, it is important to refrain from behavior that may reflect badly on you if your matter is heard by a judge. Especially in custody/visitation disputes, poor behavior prior to divorce will reflect on a spouse’s parenting abilities.Begin considering telling the children: If you have decided to get a divorce, it is never too early to begin thinking about and researching possible ways to talk to your children about divorce. It is important to approach this discussion thoughtfully and with great care in order to ensure the child is assured the divorce is not his or her fault.

In any divorce case, emotional preparation can be just as helpful as legal preparation.
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Despite the oppositional nature of family law, many cases are able to proceed through the court system with little to no conflict between the parties. However, for a variety of reasons, some cases are so high conflict that the parties are consumed by their family law matter. This high conflict case structure is particularly common in disputed custody and visitation matters. In addition to the emotional and mental drain a high conflict case has on both parties (and their child), conflict also drains the financial resources of the parties especially if one or both parties are represented by counsel. If you think your custody matter is high conflict, here are a few tips on how to reduce further tension between you and your co-parent.

Communication is Key: Conflict tends to arise out of frequent negative communication between the parties. This communication could be harassing due to its volume or the tone of the parties’ exchange. If one or both of the parties have “unfinished business” with each other after the break down of their romantic relationship they sometimes try to hold onto that former relationship by attempting to “get to” the other parent through an ongoing custody matter. In order to avoid this type of conflict, limit all communication to e-mail (except in the case of an emergency). Restrict the topic of communication only to matters related to the children and keep a friendly tone with your co-parent.

Stick to the Letter of the Law: In a high conflict case, giving or requesting leniency regarding the current custody/visitation order often leads to increased complications. In these cases, it is best to stick to the exact provisions of your custody/visitation order or agreement. Further, when the court makes custody/visitation orders, make every effort to request that the court be as specific as possible. This same rule applies to any negotiated custody orders. For example, ensure the order specifies the date, place, and manner of transfer for all exchanges. It is also important to limit the child’s exposure to potential domestic conflict or violence and ensure the safety of all people involved.Keep the Kids out of It: Although children present a wealth of information about your co-parent, never discuss the custody matter or any other adult issues with children. Not only are such conversations detrimental to the children, but if discovered, could be used against the parent and result in reduced (or even supervised) visitation time. Further, most custody/visitation orders contain direct prohibitions restricting both parents’ communication with the children about the pending case and any other adult matters. Thus, such conversations may be treated as a direct violation of a court order and could result in sanctions imposed against the offending party.
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In San Diego family law cases “four-way” meetings are commonly used to settle divorce cases. A four-way meeting (commonly referred to as “four-way”) in a divorce action is a face-to-face meeting between the two parties and their respective attorneys. Four-ways are notoriously dreaded by family law litigants because the litigants will be required to sit in a room with their spouse and discuss the “tough issues” which have created an impasse to settlement. Family law attorneys also conduct “five-way” meetings and invite a financial expert (or any other type of expert) to weigh in on the discussion. In preparation for an important four-way there are many things a litigant can do to help the process move along smoothly.

Meet with your Attorney Beforehand: Experienced family law attorneys make it a habit to meet with their clients before any four-way. This meeting provides the client with an opportunity to discuss his or her concerns, goals, and fears with the attorney. In turn, the attorney can provide clarification if needed and ensure the client’s interests are protected and validated. The “pre-meeting” is also a good time to discuss communication preferences and for the attorney to find out if the client expects to communicate on behalf of him/herself or would rather take a “back seat” to the conversation.

Focus on your Goals: During a four-way when the litigants are sitting face-to-face, it is often tempting for one or both parties to be critical, accusatory, or sarcastic. These types of comments can often derail otherwise good progress and deter settlement. Try to focus on the “bigger picture” during the four-way and save any pent up feelings of anger and resentment for another day. It is much easier to convince the other side that what you want is best for him or her as well.

Listen with an Open Mind: Generally attorneys decide to hold a four-way because the parties have reached some impasse in negotiations which the attorneys believe can be resolved. If both you are stuck in the mud on your relative positions then neither of you are working toward a mutually beneficial resolution. Further, it is unlikely that if the issue proceeds to court, either of you will get exactly what you are asking for. This is because courts are generally limited to fixed solutions they can provide. A four-way meeting provides the attorneys and clients a chance to consider alternative solutions and avoid the court system altogether. Many issues litigated in family law cases are much too personal and important to just hand over to a stranger to decide. Certainty and peace of mind are often more valuable than the issue the parties are fighting over.
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Until just recently, there were not any California cases on point regarding whether a licensed professional’s book of business (i.e. list of clients) is something of value that should be considered an asset subject to property division during a divorce proceeding. However, the Fourth Appellate District’s recent decision in In re the Marriage of Mark and Rhonda Finby finally shed light on this issue.

In other jurisdictions, courts have held that licensed professionals’ customer lists generally constitute divisible property during a divorce. In the New York case Moll v. Moll, for example, the Court held that clients serviced by a stockbroker constitute a marital asset because the thing of value is the stockbroker’s personal/professional goodwill. Also in the Florida case Reiss v. Reiss, the Court held that clients that were brought to a new securities firm by a stockbroker constitute a marital asset subject to division.

Similar to the holdings in other jurisdictions described above, in the recently published case In re Marriage of Finby the Fourth District California Appellate Court reversed the trial Court’s decision and found that a book of business that a financial advisor developed during the marriage constitutes an asset that has value and is thus subject to division during a divorce proceeding.As background, in In re Marriage of Finby, the Wife worked as a financial advisor and developed a list of clients (who owned over $192 million in investments) during marriage that she referred to as her “book of business”. Wife left her previous employer and went to work for Wells Fargo, who paid her over $2.8 million as a transitional bonus. Although Wife argued that her book of business did not have value because she could not sell it, the Appellate Court found that it was a valuable asset, reasoning that her book of business was essentially consideration for Wife’s transitional bonus. In other words, Wife was granted the option to earn a significant amount of money based on her work during the marriage of acquiring a book of business. The Court further reasoned that Wife’s ability to transfer her book of business by bringing her clients to Wells Fargo is similar to goodwill, like that which is found in the business of other professions (e.g. lawyers and doctors). As a result, the Court found that the community had an interest in a portion of the transitional bonus and remanded it back to the trial court to determine exactly how much of an interest should be apportioned to Husband.
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