Articles Posted in Divorce

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Award-winning actress Reese Witherspoon appeared in Nashville’s probate court on May 11, 2012 to address allegations against her father, John, for bigamy. Witherspoon informed the judge in an emergency hearing that her father should be placed under a conservatorship due to his alcoholism and on-set dementia. The judge has yet to rule in this matter but has sealed the case against media/public access in interest of the parties’ privacy.Witherspoon’s parents separated in 1996; however, the couple never officially divorced. As a result, Witherspoon’s mother, Betty, filed a lawsuit claiming that her husband recently married another woman. However, Betty claims that he was not mentally stable enough to remember the marriage and denies entering into it. In addition, Betty has filed a restraining order/injunction against the purported “new wife” which prohibits her from using the last name of “Witherspoon”.

According to California marriage laws, a married person is prohibited from marrying any other person besides his or her spouse. If a married person enters into another marriage with a person besides his or her spouse, he or she may face criminal bigamy charges. Under bigamy prohibitions, John’s subsequent marriage would be void. Betty is requesting that the alleged marriage between John and his new wife be annulled.

As we have previously blogged, determining whether a couple has in fact separated is a question of fact. The court will take into consideration factors such as whether: the couple continues to purport to be married, the spouses live separate and apart, either spouse engages in romantic conduct, either spouse continues to perform martial duties, finances are commingled, and the couple attend social gatherings together.

Betty Witherspoon claims that she is still in love with her husband and that she did not want to file for divorce. Additionally, she claims she has regular contact with her husband. However, John’s new wife has moved in with him and allegedly convinced him to change his will. Despite this evidence that the couple had not separated in 1996, a court will likely determine that they have considering the strong evidence that John intended the marriage to be over when he began residing with another woman and even attempted to bring her to social gatherings like Reese’s wedding.
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Famous R & B artist Usher is currently litigating a hotly contested custody case with his former wife Tameka. Tameka and Usher were married for two short years before Usher filed for divorce in 2009. Currently the couple shares joint custody of their two young sons. On Tuesday May 1, the pair attended a court hearing in Georgia where the judge ordered them to work out some type of agreement “or else.” The judge instructed them to attempt to reach a temporary child custody and visitation arrangement in a private mediation setting. If they were unable to reach an agreement, the judge would impose a temporary order upon Usher and Tameka. In this case, the two would have no control over the outcome.

It is common in the San Diego family court system for a judge to order parties to attempt reaching a mutually acceptable agreement. Negotiating and mediating disputes, especially those regarding child custody, result in less turmoil in an already hostile situation. This approach tends to promote cooperation and a healthy co-parenting relationship between the parties that is in the best interest of the child. However, when domestic violence is involved in a case, party negotiations will be ineffective and unsuccessful.

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1. What is FCS Mediation?

Family Court Services (FCS) provides child custody recommended counseling in family law cases when separating or divorcing parents cannot agree on a child custody sharing plan. Child custody recommended counseling is provided in a private counseling office with a trained court counselor. The FCS conference allows both parents to work together toward a mutually acceptable agreement which is in the best interest of their children. The court counselor will evaluate the case and make a recommendation to the Judge regarding child custody and visitation if the parents are unable to reach an agreement.

2. Is mediation required?

In any dissolution matter regarding child custody and visitation where there is a dispute, Family Code section §3170 mandates that the case be set for child custody recommending counseling prior to the court hearing. Mediation has been required in California for divorcing parents regarding child custody and visitation since 1981.

3. What topics will be discussed in Mediation?

The main topic is child custody and visitation. This includes legal custody and physical custody arrangements. In making a parenting plan, topics such as birthdays, holidays, and summer vacation can be determined by a visitation schedule agreed upon by the parents. Topics such as child support, spousal support, and property division are not usually addressed but agreements can be drafted through your attorney if decided upon mutually by the parents.
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Divorce is never easy, but it is nice to know you have options. You can approach your divorce in four different ways, each of which has their pros and cons. Make sure to select an option that is right for you. No two marriages are the same and therefore, no two divorces will be the same. Just because something worked well for someone else does not mean it is the best option for you and your family. In any case, you should consult an attorney before filing the final paperwork with the court.

1. Do it yourself Divorce

Most attorneys would advise against doing the divorce yourself. The reason for this is that divorce can be very complicated and a single mistake can cost you a lot. Doing it yourself may save you the time and expense of getting an attorney, but you may not get the best result in the end. Because divorce often includes emotions, finances, property, assets, and important decisions about children, it is recommended that you get an attorney in a long term marriage. However, if you have a short term marriage that was only 1 or 2 years, don’t have any assets or property, and no mutual children, doing a divorce yourself may be your best option. Nevertheless, it is still highly recommended that you have an attorney look over the final documents just to be sure you didn’t miss anything.

Pros- doing it yourself may result in you:
• Reducing expenses by not having to hire an attorney.
• Saving time by not having to go to court as often.
• Being in control of the process.

Cons- doing it yourself may also result in you:
• Not getting the best outcome.
• Losing time with your children.
• Missing out on financial support.
• Failing to discover hidden assets.
• Not having legal support in court.
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As mentioned last week, statistics show that approximately 50% of marriages will end in divorce. Now that divorce is so prevalent in today’s society, we need to find effective ways to minimize the negative effects on children and maximize family support and encouragement through this tough time. Listed below are three proposed solutions that you as a parent can do to help reduce the negative effects divorce may have on your children. Not one solution by itself will eliminate the problem, but a combination of them may significantly decrease the negative effects divorce has on children. These solutions include: divorce education and co-parenting classes, divorce mediation, and family counseling. Also your attorney can engage in collaborative practice of law to further assist in making the divorce process easier on children.

Education Programs

A recent study indicates that 46 states currently offer some version of a parent education program. Some jurisdictions also offer classes for children coping with their parents divorce and a few jurisdictions offer parallel classes for both parents and children. For example, in San Diego, there is a program for children called KidsTurn. Some of these programs are court mandated or recommended by the judge, while others are voluntary. These classes can last anywhere from a few hours in one day up to eight weeks. Many of these programs reported positive findings such that parents either reported decreased interparental conflict or decreased re-litigation.

These education programs aim to do the following: 1) inform parents how children usually respond to divorce; 2) alert parents to the negative effect of conflict and their harmful behaviors on children’s adjustment both in the short and long term; 3) discuss benefits of, and skills needed, to build a cooperative or parallel parenting relationship; 4) focus parents on the needs of children for an on-going relationship with each parent; 5) teach positive parenting behaviors and appropriate discipline; 6) discuss the process of adult adjustment to divorce and how to cope with this change; 7) focus on responsibilities of each parent to the children; and 8) describe helpful court processes, such as mediation. This can completely change a person’s parenting style and their relationship with their ex spouse and their children.

Co-parenting Classes

Cooperation between parents after divorce includes frequent communication about the child, coordination of routines across households, the ability to resolve differences in a mutually satisfactory manner, and respect for and support of the other parent’s relation with the child. In order to accomplish these things without conflict, it is useful for parents to attend co-parenting classes together. These may be court mandated by the judge or taken voluntarily by the parents.

Co-Parenting has been used in a variety of ways to refer to the degree to which the ex-spouses share the parenting role. These include: joint problem solving skills and joint decision making concerning the child’s welfare, low levels of conflict around parenting issues, building communication and trust, and also sharing in joint responsibilities. Programs have reported positive findings such as decreased inter-parental conflict, increased encouragement with other parent’s involvement, trust for the other parent’s ability to parent the child, and decreased re-litigation. About 80% of judges report that these classes helped parents agree on custody arrangements before coming to court and decreased re-litigation of those who had already been in court.
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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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Nearly one million children are affected by divorce each year. Parents and families struggle to help children who are experiencing negative effects after their parent’s divorce. Psychological and sociological research is widespread with evidence of the detrimental effects that divorce can have upon children after separation. Research has shown that, on average, children from divorcing families more frequently experience behavioral and adjustment difficulties during later childhood, adolescence, and even into adulthood. Children have been shown to exhibit a wide variety of responses to divorce and other family changes; frequently these responses include anger, a sense of loss, betrayal, shame, embarrassment, depression, loyalty conflicts, and guilt.

With about half of all marriages ending in divorce, many children may experience a difficult time adjusting. Studies show that the detrimental effects that parents’ divorces may have on their children include: depression, aggression, anti-social and/or self destructive behavior and diminished academic performance. Researchers have identified three factors as the most important predicators of negative effects on children of divorce: 1) instability in the child’s life, 2) the absence of effective parenting, and 3) interparental conflict.

Instability

Divorce can be extremely emotional for everyone involved; however, it is important to maintain stability in a child’s life. The more stable you can keep the child’s life, the better adjusted they will be after their parents get divorced. Stability means maintaining regular contact with the other parent by getting child custody and visitation orders in place. You also want to surround yourself with relatives and friends during this hard time. Stability also means following a familiar day to day routine with the child. This is often challenging because the routine is going to change for the child after the parent’s get divorced. A minimum number of transitions after divorce are the most beneficial for the children. If possible, keeping the children in the same school, home or neighborhood, always helps the child relate to some stability. Instability can leave a child feeling confused, alone, and at fault for the divorce.

Ineffective parenting

Parents who are unaware of the effects divorce can have on children or have had on their particular child cannot help them through it. Some parents may not know how to help their children cope or even ways to deal with the divorce themselves. Others may be unaware of resources in their community such as parenting classes and family counseling. It is important for parents to get educated about the effects divorce may have on children and get help for themselves if need be. That way the parents are equip to help a child who is experiencing a difficult time, because ineffective parenting can leave children feeling lonely, hurt, and unloved.
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We often blog about the importance of social networking sites as tools in family law cases. Facebook is an invaluable resource for spouses, parents, and family law attorneys to use in order to dig up information on the opposing party in a particular case. Recently, Facebook has surfaced on the family law radar in a new and unexpected way. One of Facebook’s well-known features is its ability to suggest family members, acquaintances, or friends that the user may want to “add as a friend” on his or her Facebook page. This friend suggestion tool alerted Alan Leighton O’Neill’s wife that her husband was married to another woman. O’Neill’s first wife clicked on the Facebook page of his second wife and saw her husband in a wedding photo with another woman. As a result of the friend suggestion tool, felony bigamy charges have been filed against O’Neill.

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

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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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Although most people can gamble on a recreational basis, millions suffer negative consequences in their lives from problem gambling. According to the National Council on Problem Gambling about two to three percent of adults experience gambling-related problems each year. These problem gamblers have an uncontrollable urge to gamble and cannot stop gambling despite the negative consequences that result from their gambling. These negative consequences are frequently financial problems that impact the gamblers personal life, family relations, educational endeavors and/or employment.

Sometimes the gambling and problems stemming from the gambling becomes so bad that the non-gambling spouse files for divorce. When this occurs, the non-gambling spouse usually reports that the gambling spouse gambled away a significant amount of community property assets and that there are outstanding gambling debts. However, the non-gambling spouse may not be liable for the outstanding gambling debts.

Generally, all assets and debts incurred during marriage are considered community property. Family Code §2625 makes an exception to the general rule stating that, “All separate debts, including those debts incurred by a spouse during marriage and before the date of separation that were not incurred for the benefit of the community, shall be confirmed without offset to the spouse who incurred the debt.”

This Family Code section provides the court with the ability to assign gambling debts to the gambling spouse. This is one of the few insteances where a court has the discretion to make an equitable division based on fault rather than an equal division of debt.

In the case In re Marriage of Cairo, Wife was able to prove that debt incurred during marriage on credit cards in Husband’s name was for Husband’s gambling. The Trial Court characterized the credit cards in Wife’s name as a community property obligation and the credit cards in Husband’s as his separate property obligation. The Court of Appeal affirmed relying on the predecessor to Family Code §2625, which also stated that debts not incurred for the benefit of the community can be assigned without offset to the spouse who incurred the debt.

On the other hand, if the gambling spouse wins big when gambling with community property assets, then those gambling proceeds could be considered community property assets and equally divided between the parties.

In the case In re Marriage of Shelton, after separation Husband gambled $10,000 of community property monies at a casino in Nevada, won $22,000 and bought Ferrari for $32,000. Husband claimed that $22,000 of the value of the car was his separate property. The Trial Court disagreed and characterized as the car as community property. The Court of Appeal affirmed holding that the character of the gambling proceeds follow the character of their source. In this case the source of the monies used to gamble were community property, therefore, the gambling winnings were also community property. The Court of Appeal rejected Husband’s argument that the winnings were his separate property post-separation earnings because gambling is primarily a game of chance where the skill component is small.

In the case In re Marriage of Wall, Wife used her post-separation earnings (or support payments) to buy an Irish Sweepstakes ticket and won $120,000. Although Husband claimed the winnings were community property, the Trial Court disagreed and awarded the winnings to Wife as her separate property. The Court of Appeal affirmed. Unlike the Shelton case, in this case the source of the monies used to buy the Sweepstakes ticket was Wife’s separate property. Therefore, the Sweepstakes winnings were also her separate property.
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