Articles Posted in Divorce

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Which Religion do Children Follow when Parents of Different Faiths Divorce?

With the recent passing of Easter, a Christian holiday, and Pesach (Passover), a Jewish holiday, parents of different faiths may be left wondering which holiday their child will celebrate after a divorce. Because divorcing parents don’t always agree on whose religion the children will follow after divorce, the Court is often left to make a determination as to which religion the children will practice, if any.The Fourteenth Amendment substantive due process clause grants parents a liberty interest in directing their child’s religious upbringing. Therefore, Courts must protect each parent’s Constitutional right to raise the child as that parent sees fit (as long as the welfare of the child is not endangered). However, when parents divorce, the Courts are often left to decide which parent’s constitutional right will prevail in determining the religion of their child. Family law attorneys take a number of factors into consideration when advising clients about their options in regards to their children’s religious upbringing.

Child Decides

Often times the Court will simply allow the child to decide which religion, if any, to follow because it is merely an exercise of the child’s First Amendment right to freedom of religion. Unfortunately for divorce lawyers, no black letter law exists regarding what age a child must be to decide his or her own religion. However, courts generally consider children over 12 to be able to make decisions about their religious preferences.

By allowing the child to determine his/her own religious preference, the courts are not encroaching upon the parents’ Constitutional rights. The parents may continue to practice the religion of their choice, and they have already had the opportunity to exercise their Fourteenth Amendment substantive due process liberty interest to direct their child’s upbringing.

Parent With Sole Legal Custody

When a child is not deemed fit to decide for himself/herself, divorce attorneys note that the court will look to which parent has been awarded legal custody. As discussed in previous blogs, legal custody gives a parent the right to make decisions regarding a child’s health, education, welfare and even religious decisions. If a parent has been awarded sole legal custody of the child, then that parent alone can make all the decisions regarding the child’s religious preference and activities without getting the consent of the other parent or an order from the court.

Parents with Joint Legal Custody

Tomorrow, in “Part II: Religion and Child Custody”, we will discuss the issues presented to divorce attorneys by parents who share joint legal custody of their children. Continue reading

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Former Philadelphia 76er Allen Iverson’s divorce has been finalized. The resolution came after the second divorce filing by Iverson’s wife, the first having been filed 15 months prior and then withdrawn according to TMZ.

Standing a mere 6 feet (relatively speaking, of course) Iverson was the number one draft pick of the NBA’s Philadelphia 76ers in 1996. He went on to be named NBA Rookie of the Year for the 1996-1997 basketball season. He continued his career with eleven NBA All-Star nods, and won the All-Star MVP award in 2001. Iverson is father to five children.

According to LA Times.com, in the divorce decree the judge awarded Iverson’s wife legal and physical custody of the parties’ five children. In doing so, the court did not have kind words to say about Iverson. According to the article, the court stated about Iverson: “he does not know how to manage the children; has little interest in learning to manage the children and has actually, at times, been a hindrance to their spiritual and emotional growth and development.”

Iverson will have some visitation with his children, provided he complies with certain conditions imposed by the court. Notably, one condition is that he is not allowed to consume any alcohol for the next 18 months, nor consume alcohol within 24 hours of visiting with his children and, logically, during the visits. Reportedly, he is also required to obtain therapy and attend AA for the next year. According to the LA Times article, the divorce decree states that Iverson has “an obvious and serious alcohol problem, which has caused him to do inappropriate things in the presence of the children while impaired”, things such as, the article reports, leaving the children unsupervised.

While Iverson’s divorce is in Atlanta, Georgia, here in San Diego, divorcing parents are similarly faced with issues of alcohol abuse and its implications on custody and visitation issues in the San Diego Superior Court. To address such issues, the California Family Code includes specific provisions.

Prior to making an order for joint physical custody, which means that each of the parents will have significant periods of physical custody, the San Diego family court is required to consider the habitual use of drugs or alcohol by one or both of the parents. Specifically, Family Code §3011 provides: “In making a determination of the best interest of the child in a proceeding…the court shall, among any other factors it finds relevant, consider all of the following: (d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent…”

What happens in the case where one parent alleges habitual or continual use of alcohol by the other parent, but the parent facing those allegations denies them? Family Code section 3011 continues: “Before considering these allegations, the court may first require independent corroboration, including, but not limited to written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services…”

In some cases, there may be a document which can easily corroborate the allegations; in others, it may be a bit more difficult. If it can otherwise be shown by a preponderance of the evidence that there is habitual or continual abuse of alcohol by a parent, a judge may order that parent to undergo testing for the use of alcohol. If such testing is ordered, it must be done by the least intrusive means. Further, the parent against whom the allegations are made (and thus who is ordered to submit to the test) has a right to a hearing to challenge the results. A positive test cannot alone be the determinative factor in a custody and visitation ruling; the court is still required to balance all factors to determine the best interests of the children.
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www.dailymail.co.uk recently published an article with the headline “Divorce after a child turns seven makes them more likely to perform badly at school.” The article cites a study conducted by the Childhood Wellbeing Research Centre that was published by the Department for Education. The government-funded study found that children whose parents divorced after the child had turned seven are more likely to perform poorly and have behavioral problems. The article opined that the lesser impact on children under the age of seven is likely because divorce may have a lesser effect on younger children as they cannot fully understand the implications.Divorce was one of the 40 factors looked at by the study for its effects on a child’s scholastic achievement and behavior. Among the other factors looked at were number of siblings, number of hours spent in front of the television, the way in which rules are enforced in a household, grandparent involvement and general parenting skills, to name a few. The study projected that the effects on children at the age of seven are likely to continue into the child’s teen years and adulthood. The study highlighted the importance of family separation, conflict and divorce on the development of children.

Of course, divorce is in some cases unavoidable. In those cases where divorce must occur, what can San Diego parents do to minimize the conflict and the effect on their children?

One tool parents can utilize is a well thought out parenting plan. When an issue of custody and visitation is brought before the court in San Diego, the parents are required to participate in custody mediation. They can do so either at Family Court Services, which is a free program run by the San Diego Superior Court, or they can opt for private mediation at their own expense. The stated purpose of this custody mediation is to reduce the conflict which may exist between the parties and to develop a custody and time-sharing agreement which is in the best interests of the children. It is not uncommon, however, that San Diego parents are unable to reach an agreement through mediation. In that case, the mediator issues a report and recommendation which is then considered by the court in making its ruling of the custody and/or visitation issue. Frequently, in these recommendations we as divorce attorneys see language included in the proposed parenting plan that is geared towards reducing conflict between the parents. Some such provisions which immediately come to mind are:

“Neither parent shall make negative statements about the other in the presence of or hearing of the children or question the children about the other parent.”

“The parents shall communicate directly with each other in matters concerning the children and shall not use the children as a messenger between them.”

“The children shall not be exposed to court papers or disputes between the parents, and each parent shall make every possible effort to ensure that other people comply with this order.”

Such language may be included in a parenting plan at the recommendation of the mediator, but can also simply be included by agreement between the parties.

Another tool for parents is the resource Kids Turn. Kids’ Turn is a San Diego non-profit organization dedicated to working with the entire family to achieve an amicable and healthy divorce.

Read more about Kids’ Turn or visit their website.

The study published by the Department of Education did qualify its results by stating that “Some children do relatively well despite unpromising circumstances and some do relatively poor despite having a good start.” It’s nonetheless helpful for San Diego parents to be aware of how a divorce might impact their children and to take steps that may be appropriate to mitigate any negative impact there may be.
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Brendan Fraser and Afton Smith married in 1998 and divorced nine years later in 2007. At the time of their divorce, Fraser was ordered to pay Smith approximately $900,000 per year for spousal support and child support for their three children. Now, Fraser claims that he can no longer make the required payments, which, if made on a monthly basis, total $75,000 per month. Fraser has filed a motion in family court seeking a post-judgment modification of child and spousal support.

In San Diego, after a divorce is finalized, family courts generally have the ability to change support orders if facts and circumstances have materially changed since the first orders were made. If the moving party can prove to the court a “material change of circumstances” he or she may be granted a post-judgment modification of support. One of the most common changes of circumstance relied upon by courts is a change in income for one or both parties. If the spouse ordered to pay support has experienced a significant decrease in earnings, the court may lower his or her support obligation.

However, it is important to note that San Diego family courts only have the ability to modify the support order back to the date a motion was filed. If one spouse gets fired and does not file a motion to modify support for a few months, he or she may owe a significant amount of back child and/or spousal support. Regardless of a spouse’s current income, his or her obligation to pay support will not change until a motion is filed with the court. Even in cases where a judge determines that a material change of circumstances exists and that support should be modified going forward, he or she is not required by law to make the order retroactive to the date the motion was filed.

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For many Del Mar families, real estate is their most valuable asset. Because the prices of the average family home are so high, many families must invest significant funds into real estate just to live in the area.

However, upon divorce, all community property must be divided equally by the court.

If the parties have no other assets as valuable as the family home, it must be sold and the proceeds divided.

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In July 2012, Us Weekly released photos of Twilight star, Kristen Stewart, and Snow White and the Huntsman director, Rupert Sanders’, cheating scandal. Stewart and Sanders were photographed kissing in a parked car on the side of a secluded road. At the time, Stewart was involved in a serious relationship with teen heartthrob Robert Pattinson, and Sanders was married to British model Liberty Ross. Although Stewart and Pattinson reconciled in September, Ross has recently filed for divorce from her husband of nine years.Ross and Sanders reportedly gave their marriage another shot after news of the cheating scandal broke and even attended marriage counseling. However, Ross was unable to move past her husband’s public infidelity. The former couple has two children, Skyla, age 7, and Tennyson, age 5. In her Petition for Dissolution of Marriage, Ross requested joint custody of the children in addition to spousal support and attorney fees. Sanders filed a Response to the Petition also requesting joint custody but not spousal support. Sanders wants each party to bear the cost of his or her own attorney fees.

Learn more about the divorce process in Del Mar

Ross retained celebrity divorce attorney, Laura Wasser, to represent her in her divorce. Wasser is most famous for her representation of celebrities such as Heidi Klum, Ryan Reynolds, Kim Kardashian, and Britney Spears. According to Los Angeles Times, Wasser’s services will cost Ross $750 per hour. With rates that high, it’s no surprise that she is asking the court to order Sanders to cover Wasser’s fees. As Del Mar divorce attorneys are well aware, California courts have the authority to order one spouse to contribute toward the attorney fees and costs incurred by the other spouse. However, since California is a “no-fault” state, Sanders’ infidelity will be irrelevant to all of the court’s rulings.

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Valentine’s Day is a romantic time in Del Mar and throughout San Diego County. The romance of this holiday can sometimes stir up old feelings between divorcing spouses. It is not uncommon for spouses going through a Del Mar divorce to send each other gifts on Valentine’s Day or even to spend the day together. However, it is important to consider the legal ramifications of these acts especially with regard to the date of separation. On the other hand, newly separated spouses may be spending Valentine’s Day with a new significant other for the first time in a while. Before substantial gifts are given to a new love interest or money is spent on a lavish trip, it is important to also consider how these acts may impact your divorce proceeding in Del Mar.

The date of separation is an important consideration in many divorces. The marital estate is the property divided upon divorce. Property can only be accumulated in the martial estate between the date of marriage and the date of separation. Thus, once spouses decide to end their marriage, they stop accumulating any community assets. In order for a separation to occur, the spouses must physically separate (live apart) with the simultaneous intent never to resume the marital relationship. As Del Mar divorce attorneys understand, only one spouse is necessary to establish the requisite intent to end the marriage.

Read more about date of separation from Del Mar divorce lawyer Nancy Bickford

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There many paths to ending a marriage in San Diego – including settlement, trial, uncontested divorce and simplified divorce. Many couples struggle for months and even years to work out the complex issues involved in divorce such as property division, support, and custody and visitation. Dutch entrepreneur, Jim Halfens, created a new method of divorce used in the Netherlands called the “Divorce Hotel”. Using this method, a couple checks into the Divorce Hotel on a Friday, and with the help of family law attorneys and mediators, checks out on Sunday with divorce papers in hand. Instead of the typical hourly rate, the couple pays a flat fee for their stay in the Divorce Hotel.After experiencing great success in the Netherlands, Halfens is attempting to bring his novel concept to the United States, which is known for its extraordinary divorce rate. Halfens is not only negotiating with hotels and local family law attorneys, but also with television production companies. Halfens is attempting to start a new reality show which follows the couples through their stay at the Divorce Hotel. Many prominent divorce lawyers have expressed serious doubts about the practicality of Halfens’ concept. These attorneys are concerned that most divorces are too complex and/or acrimonious to be completed in a single weekend. U.S. divorce attorneys do agree that the concept may be successful in cases where the divorcing couple remains on friendly terms and has a relatively straightforward marital estate to divide.

Read more about uncontested divorce here

Many obstacles can prevent the Divorce Hotel method from succeeding. A divorce proceeding can be dragged out because spouses often hide money, undervalue assets, and perpetrate fraud. Discovering these inconsistencies and seeking out the truth regarding the marital estate takes time, money, and a lot of effort by experienced family law attorneys. This work can skyrocket the cost of a divorce by increasing costs, fees, and may even require hiring an expensive expert. In order to combat this reality, Halfens screens the couples that apply to stay at the Divorce Hotel. His team tries to weed out its applicants and only admit those who are willing to mediate and work together to reach a solution. Couples who bicker or barely speak to each other are rejected.

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If you have as much money as Tiger Woods, maybe it can buy you love. After a massive cheating scandal broke in late 2009, Elin Nordegren filed for divorce from her successful golf star husband, Tiger Woods. In a record-breaking settlement, Nordegren walked away from her marriage with $750 million. In return for her cash pay-out, Nordegren agreed to never publicly speak out about Woods’ affairs with over twenty different women. Despite their incredibly public divorce, just over two years after the couple reached a global settlement, Woods’ again proposed marriage to Nordegren.Apparently Woods is not satisfied with his not-so-new found single lifestyle. His friends say he is incredibly unhappy without his family and has not managed to hold a steady girlfriend since Nordegren. Although Woods has dated several other models since his divorce, he hasn’t recovered from his split with Nordegren. On or around Christmas 2012, Woods got down on one knee, presented her with a ring, and “re-proposed” to his former wife. Nordegren is considering Woods’ proposal, but only on the condition that he agree to include a $350 million anti-cheating clause in their prenuptial agreement. Reportedly, Woods has no problem agreeing to Nordegren’s condition despite the fact that his accountants think he is crazy. Woods is ready to sign on the dotted line, set a wedding date, and return back to his former married life.

Read more about San Diego divorce attorneys

California is a “no fault” state. This means that in a San Diego divorce proceeding infidelity is irrelevant when dividing assets and debts, setting spousal and/or child support, and determining custody and visitation rights of the parties. Despite this default rule, parties have the ability to agree to abide by different rules. As in the Woods-Nordegren reconciliation, parties can agree to put an “anti-cheating” provision in a premarital agreement. Under such a provision, a spouse would be punished if he or she was unfaithful during marriage. If no such provision existed, neither party could be punished by the courts for infidelity. There are strict rules that a divorce attorney must follow when drafting any agreement, especially a premarital agreement, in order to have it enforceable by the courts. It is important to contact an experienced family law attorney to draft any contracts between spouses.

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As we have previously blogged, Bethenny Frankel, former star of The Real Housewives of New York, and founder of Skinnygirl Cocktails, recently filed for divorce from husband, Jason Hoppy. The parties have a daughter, age 2.

Reportedly, the parties’ separated on December 23, 2012 and Frankel filed for divorce just shortly thereafter (LA Times) It appears from Frankel’s Petition that she is requesting primary physical custody of the parties’ daughter and child support payable by Hoppy, in addition to life insurance, exclusive occupancy of their home and medical, dental, vision and orthodontic care for her and the child. Sources estimate Frankel is worth at least $25 million. This begs the question: Is child support appropriate in cases where the custodial parent is an extraordinarily higher earner?

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