Articles Posted in Divorce

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According to FOX news, former NFL superstar Deion Sanders has filed for divorce. His wife, Pilar Sanders, filed a response this week in which she alleges Deion was unfaithful. “She accuses him unkind, uncaring, insensitive, cruel and unusual treatment, as well as physical, mental and emotional abuse of her and their three children.” The response urges the court to punish Deion for “immoral, corrupt, lewd, perverted, unnatural, sinful conduct.” Ironically, the response is similar to that filed by Deion’s first wife Carolyn. Carolyn also accused Deion of adultery and “cruel treatment.”

Pilar is requesting that the judge throw out the couple’s prenuptial agreement and instead grant her most of the marital estate. As grounds for this request, Pilar alleges she was under duress when she signed the agreement. Prenuptial agreements, otherwise known as premarital agreements, must be carefully drafted in order to be enforceable in a California family courts.

California Family Code section 1615(a) states that a premarital agreement is unenforceable if not entered into voluntarily. A premarital agreement is presumed involuntary if the party had less than seven calendar days between the day the party was presented with the contract and advised to seek independent legal counsel and the time the party signed the contract. However, it is important to note that this rule does not apply to a party represented by legal counsel throughout the premarital agreement process. Therefore, if a judge concludes that Pilar was in fact under duress when she signed the premarital agreement, the judge is likely to find the agreement unenforceable.

A fundamental element of any contract formation is freely given consent of the parties. This consent is defeated if one of the parties enters into the contract under duress. Duress often appears in California law as a defense to any type of contract actions. It is crucial when drafting and executing premarital agreements to ensure no party signs the contract under duress.
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Many couples that were married in San Diego have since moved out of state. In fact, it is not uncommon for a couple to get married in California even if they are not currently residents. California, especially San Diego, offers many beautiful destination-wedding venues. However, if a spouse wants to obtain a divorce in California, there are two residency requirements that must be met. Under California Family Code section 2320, a judgment for dissolution (divorce) will not be entered unless one of the parties has been a California resident for at least six months and a resident of the county he or she filed in for at least three months. It is important to consider that unless the issue of residency is contested within thirty days, any defect in the residency requirements is waived.

There are no residency requirements for a couple to obtain a legal separation. This law creates a small tactical opportunity for a spouse that wishes to obtain a divorce in California. If the spouse intends to satisfy the minimum six-months/three-months residency requirements, he or she can file for legal separation and later amend the petition to request a divorce. This allows the spouse to start the divorce process without delay. There is a six-month waiting period for a judgment terminating marital status. When the legal separation petition is filed, this clock will start ticking. The spouse can obtain a divorce in the same amount of time as if he or she was a California resident at the beginning of the proceedings.

The residency requirements are also inapplicable to registered domestic partnerships. This is one area of the law where the rules governing marriages differ from the domestic partnership laws. Domestic partners who register their partnership with the Secretary of State consent to California jurisdiction therefore there are no minimum residence requirements. However, to dissolve a domestic partnership established out of state, one of the partners must satisfy the residency requirements.

Prior to January 1, 2012, same-sex couples encountered a serious problem. During a few short months in 2008, California granted marriage licenses to same-sex couples. From June 17, 2008 until September 17, an estimated 11,000 same-sex couples got married. Under The Federal Defense of Marriage Act (DOMA), states are not required to recognize same-sex marriages entered into in other states. A dilemma arose for a same-sex couple married in California and living in other states that refused to recognize their marriage. This couple could not obtain a divorce in California because they did not satisfy the residency requirements and could not obtain a divorce in their current state because it did not recognize their marriage.
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There are many great companies in San Diego. A lot of these companies offer fantastic employment benefits, such as generous amounts of vacation time. Some companies even have policies allowing their employees to accrue vacation time, as opposed to a “use it or lose it” policy. As a San Diego divorce attorney, it is important to understand this employment benefit, which is often overlooked when bigger benefits are also at stake, such as stock options, 401(k)’s and pensions.“

Vested vacation time is an asset which, if earned during marriage, is considered a community property asset. However, vested vacation time is, in and of itself, not divisible in kind. If there are 30 days of vested vacation time, the judge cannot award 15 days of vested vacation time to each party because the vacation time that is vested can only be used or taken by the employee spouse. To make the issue of vested vacation time even more complicated, there is conflicting case law on how the courts handle the division of vested vacation time.

A close reading of the various cases, in my opinion, favors that if the vested vacation time is convertible (or can be converted) into cash, then it can be considered by the court as a divisible community property asset. Thus, the employee spouse who can elect to take his or her accumulated vacation time as cash may be charged with the after-tax amount he or she could realize. The court can also order a party to cash in the vested vacation time and pay one-half (or other amount) to the non-employee spouse.

On the other hand, if the employee spouse must take the time off or lose it, and there is no cashing out of the vacation time, then the court could find that the employee spouse is not receiving an economic benefit which can be fairly valued and charged to that party. In other words, if accrued or vested vacation time can be cashed in, it should be considered an asset subject to division. If it, or a portion of it, cannot be cashed in, meaning that it must be taken or lost, then the court may determine that it has no economic benefit to the employee spouse and the court will not consider it as an asset subject to division.

In one “vacation benefit” case, Husband had accumulated 120 hours of vacation time through his employment, for which he would not receive cash if he did not use. The Trial Court found that the vested vacation time was an asset not subject to division. The Court of Appeal affirmed the decision, holding that the mere fact that a benefit exists for an employee, doesn’t mean that a value can be placed on it in a dissolution proceeding. These include: use of employer provided health club, purchasing meals in company cafeteria, or ability to buy at discount prices through employer subsidized retail establishment. Although these benefits may affect need or ability re support, they are not convertible to cash and therefore not divisible on dissolution.

However, another case held just the opposite. When that Court of Appeal considered that Supreme Court’s meaning of the phrase “vested vacation time” it believed that it was important to keep in mind the nature of vacation pay. The court went on to explain that vacation pay is not a gratuity or a gift, but is, in effect, additional wages for services performed and that the right to a paid vacation, when offered in an employer’s policy or contract of employment, constitutes deferred wages for services rendered. That Court of Appeal held that there was no reason deferred wages cannot be commuted to present value and divided.

Even if the vacation time cannot be valued and divided, the vacation time may still be taken into consideration by the court when determining spousal support. The fact is that the paid vacation time (and other similar employment benefits) reduces the employee’s reasonable living expenses and thus can be considered by the court in exercising its discretion as to the amount of spousal support to order.
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Many of our San Diego Family Law client’s use Facebook and other social network or dating webpages. This is not surprising considering that Facebook alone has more than 800 million active users. More than 50% of those active users log on to Facebook everyday and on average more than 250 million photos are uploaded per day. Almost every social network and dating website can be accessed by a cell phone or tablet.We have previously blogged about the use of information from social network and dating websites in divorce cases. We have also previously cautioned readers of our blog (as well as our clients) regarding what not to post on Facebook and other social network and dating sites while going though a divorce. This includes NOT posting wild pictures of yourself, NOT tweeting about job woes or problems with the kids and NOT posting about drug and alcohol use. It is also important to adjust your privacy settings. In other words, do not post anything to a social network or dating website that you would want your former spouse, children or the family law judge in your case to see or read.

Recently, there have been some interesting and seemingly conflicting orders regarding requests for Facebook or other social network or dating website information.

In one case reported by the ABA Journal, a judge in a Connecticut divorce case ordered the parties’ attorneys to exchange their clients’ Facebook and dating websites passwords. Although the order stated that the parties themselves would not be given the passwords of the other, the order also stated for neither party to visit the other party’s social network website and post messages purporting to be the other. You can imagine what one party must have posted on the other party’s social network for that order to be made.

However, in another recent personal injury case involving an accident from 1993 in which the insurance companies denial of benefits did not question Plaintiff’s limitations or need for care, the insurance company still sought, through discovery, the Plaintiff’s Facebook password, a list of his Facebook friends, along with other Facebook activity and information including, all photographs, messages, status posts, wall posts, comments, groups, and group memberships. When the Plaintiff refused to provide the information, the insurance company filed a Motion to Compel to force the Plaintiff to provide the information. Fortunately for the Plaintiff, the court denied the Motion to Compel on the grounds that the Facebook information was not relevant or likely to make any disputed fact more or less likely, despite the insurance company’s argument that Plaintiff’s Facebook posts would likely contain information about the Plaintiff’s daily activities and thoughts. The court found that any possible relevant information which could be gleaned through the Plaintiff’s Facebook information would also be available to the insurance company through less intrusive, less annoying and less speculative means. The court characterized the insurance company’s request for Facebook information as a fishing expedition at best and harassment at worst.

However, unlike in most civil cases, the information contained on a social networks and dating websites is often very relevant in family law cases, particularly to the issues of custody and visitation. It may also be relevant to the issues of property division and fiduciary duties.

In the Connecticut divorce case discussed above, one party was requesting full custody of the children and argued that the Facebook and dating website information was relevant to the other party’s ability to take care of their children. Apparently, the Court was persuaded by the argument and ordered the exchange of passwords.

Another interesting argument, that has not yet been determined by the courts, is whether the type of order issued in the Connecticut divorce case is valid or enforceable in light of Facebook’s Terms of Use Provisions. Following the Connecticut order would arguably violate the these two Terms of Use Provisions:

1) You will not solicit login information or access an account belonging to someone else. and;

2) You will not share your password, (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account.

As long as social networks and dating websites continue to be popular, we anticipate that requests for information and pictures from them will become more and more frequent in divorce cases.
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As San Diego divorce attorneys, we know that a relationship is not over until it is over. A recent article in USA Today titled, Some Couples Pull Back From the Edge of Divorce, focused on couples who called off their divorce proceedings to get back together. One couple, just weeks away form their divorce being finalized, attended a last ditch marriage weekend seminar which they say saved their marriage. Another couple, after already spending $20,000 in attorney fees, took classes to bolster communication and conflict resolution which lead to them calling off their divorce. A third couple that worked at the same place were forced to share rides to work for a week when one of their cars broke down. They ended up having so much fun together that they called off their divorce even though both had started new relationships.

While these reconciliation stories are unusual, some couples in the middle of a divorce do want to make one final attempt to save the marriage. When this occurs, the parties usually want time away from the court proceedings to attempt their reconciliation. In San Diego County, there are two main options which allow time to attempt reconciliation.

The first and usually the best option is to file a Stipulation of Attempted Reconciliation. The San Diego County Rules of Court allow parties to file a stipulation indicating that they are attempting reconciliation. This will effectively put a hold on their case for approximately 12 months. If either a Dismissal of the Petition for Dissolution or a Judgment is not filed within 12 months of the filing of the Petition for Dissolution, then the court will set a Status Conference to find out what is going on. At that point he court can dismiss the case, continue to keep the case on hold, or encourage the parties to move the case forward. Filing a Stipulation of Attempted Reconciliation is a good option when both parties want to attempt reconciliation, but do not want to have to re-file paperwork if the reconciliation fails. If the reconciliation does not work, then the case will pick up right where it left off. Be sure to consult with your attorney regarding the benefits and risks of exercising this option.

The second is to end the divorce proceedings. This can be done by filing a Request for Dismissal, which will dismiss the case in its entirety and if anything is on calendar, it will be taken off the court’s calendar. It is often not a good idea to file a Request for Dismissal unless the parties have spent some time working on reconciliation and both parties are confident that the reconciliation will last. Otherwise, the case will need to be started all over again. One time a client called after an unexpected “romantic” weekend with the ex and asked to dismiss the case because they reconciled over the weekend. After advising the client to wait a few weeks to see if the reconciliation will work out, it took the parties about two weeks to realize that they were not going to be able to sucessfully reconcile. By not filing a Request for Dismissal right away, the client’s custody and support motion remained on calendar and proceeded a few weeks later.

Unfortunately, what often happens is that the client disappears, meaning he or she stops communicating with their attorney and/or the court, thinking if they ignore the pending divorce, nothing will happen in it. That is not thecase. Disappearing does not stop or halt the divorce proceedings. Clients who choose to disappear may lose legal rights (especially regarding time sensative discovery deadlines) or suffer other adverse consequences should the reconciliation fail.

If you are in the middle of a divorce and wish to make a final attempt at reconciliation, you need to discuss it with your San Diego Divorce Attorney, who can advise you on the best way to protect your legal interests, whether the reconciliation succeeds or not.
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Shh. Big Brother is Watching!

Do you use Facebook, Twitter or other social media? If so, and you have filed for divorce in San Diego, you need to be aware that your posts, tweets and pictures may end up being entered as evidence in a court of law.San Diego divorce lawyers are seeing many more cases involving social media. In just a few short years, this technology has become so pervasive that a California divorce lawyer would be remiss for not seeing what public information is available about a client’s former spouse online. Whether as a source of information or evidence in a pending family law action, or the actual impetus for the divorce itself, social media has arrived on the scene in a big way. Consider the following:

  • In March, the U.K’s Guardian reported that social networking sites are becoming a primary source of evidence in divorce proceedings. The article even blames Facebook for connecting old flames and causing marital problems.
  • A survey last year by the American Academy of Matrimonial Lawyers found that 4 of 5 lawyers had seen an increase in divorce cases involving social media evidence.
  • This month’s Men’s Health features an article detailing Twitter relationships a divorcing party participates in with multiple partners.

Although the Wall Street Journal reports the notion that 1 in 5 divorces are caused by Facebook is a fallacy, there is no doubt social media is a contributing cause in a substantial number of divorces. More and more attorneys are asking to see a spouse’s Facebook page as a matter of course.

There have been sociological studies into the issue of why people behave the way they do on social networking sites. These studies reveal that people treat such social technology the way they would a close friend — and that they confide information in a very public way — information that is often best left unsaid, particularly if you are in the middle of a contentious divorce or child custody proceeding. For example:

  • Posting wild and crazy pictures of you while on vacation is not a good idea. You should simply refrain from posting such pictures.
  • Tweeting about job woes or problems with the kids is a bad idea. It is best to keep this information confidential.
  • Posting about your alcohol or drug use (especially pictures) is a very, very bad idea. Do not do this under any circumstances.

A good rule of thumb is to not post anything to a social media site that you would want a judge to see. Otherwise, you may end up in the very uncomfortable position of explaining your posts, tweets or pictures to a judge in a court of law.

One more thing to consider is reviewing your friends as well as your privacy settings on Facebook and any other social media sites that you use. Your friends may still be talking to your ex, or to your ex’s friends, allowing your ex, and his or her attorney, full access to all of the information you share on your social media sites. An increasing body of evidence continues to suggest this is advice best followed even if you are not in the midst of a divorce.

Your attorney will warn you about social media sites. Whether you heed the warning is up to you. There are few things can torpedo your case like your own words or pictures posted on a social media site for all to see.
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Few people would agree that there is a good time to get divorced. It can be a long, drawn out process and complex. Not only that, but it can lead to overwhelming stress and problems with other family relationships if not handled well.

A new article published on MSNBC.com by Investopedia looks at the best and worst times to consider a divorce in San Diego. Many people are struggling financially right now because of the effects of the Great Recession. Some people have the desire to get a divorce, but feel as if they can’t afford it and stay together in order to save money.That can lead to volatile situation that can lead to domestic violence issues as tempers flare, egos are bruised and feelings hurt. Even if you think your finances prohibit you from getting a divorce, it would be prudent to set up a consultation with an experienced San Diego Divorce Lawyer to discuss your options and talk about your situation.

Here are some events that can impact a divorce:

An up and down real estate market: At one time, a house was a major asset that couples might fight tooth-and-nail to obtain, but times have changed. According to foreclosure tracking site Realtytrac, every zip code but one in San Diego has “high” foreclosure activity level, with nearly 1 in every 147 housing units in foreclosure.

San Diego, like many parts of the country, has seen housing prices drop as foreclosures saturate the market, leaving many people upside down on their mortgages. For that reason, a house in a divorce may be less of an asset and more of a debt that must handled. While in past divorces, one spouse may be awarded the house and the other spouse would be awarded other assets in exchange, now the other spouse may have to give up assets if an ex agrees to take on an upside-down house.

A shaky economy: With the economy slowly recovering (and some would argue slowly is an exaggeration), many people are hurting financially. Going through a divorce at this time can be difficult.

A poor credit score: A bad credit history coupled with a divorce can be bad news for a person going through the process. Having to obtain a car loan or perhaps rent a house on your own can be more difficult without the added security of a second income or a house that may already be paid off in full. Again, a trusted attorney will be invaluable in assisting you in avoiding the common pitfalls of the divorce process.

If one of the two spouses has a bad credit score, negotiating to keep the car or house to avoid having to venture out for a loan may be prudent.

Minor children: Divorce is more complex and stressful when children are involved. Child custody in San Diego divorces can make a divorce more contentious and more financially difficult. With two sets of living expenses instead of pooled money, each parent will have less to give to college funds and other expenses, but financial aid may be easier to obtain.
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A recent study conducted by Ohio State University researchers found that women are more likely to gain weight after they get married, while men tend to add the pounds after a San Diego divorce.

Divorce can be a difficult time in the lives of many spouses, as they have come to realize that they aren’t as compatible as they once believed. Perhaps infidelity has caused the once-proud couple to split. Finances are often a bone of contention. Whatever the reason, consulting with an experienced San Diego Divorce Lawyer who is also a certified family law specialist should be the first step. Certified Family law specialist is a designation obtained by less than 2 percent of California divorce attorneys and represents the profession’s highest degree of professional excellence.The process of divorce can have long-lasting effects and can take a mental toll on the spouses. Having to adapt to living alone, perhaps being split up from children and dealing with the financial stress of separated life can all be stressful. That stress can lead to health problems, including weight problems.

According to a story reported by FOX in Los Angeles, the Ohio State study found that men tend to gain weight after a divorce, while for women, the weight is put on after marriage. The two events are called “weight shocks.”

The most drastic weight changes came for people over 30, the study found. The study followed 10,071 people from 1986 to 2008 to determine weight gain in the two years following a divorce and a marriage, taking into consideration factors such as pregnancy, socioeconomic status, education and finances.

The researchers made their determination that because women still tend to have a bigger role in household matters, they have less time to exercise. Partly because of that benefit, men are more fit in marriage and add on weight once they are divorced.

Many things go through the minds of people who are considering a divorce and among the biggest issues is child custody in San Diego divorces. Where a child lives and who gets to make key decisions that affect their lives are among the most contentious issues that divorcees struggle to handle.

In California, a family court judge will take many things into consideration in determining where a child will live and with which parent. The judge will look at what is best for the child. Involvement with the children, incidents of domestic violence or use of drugs or alcohol will likely come into play.

While the stress of this particular decision and others, such as property division, support payments and other issues, can cause a client to have negative physical side effects, an experienced San Diego Divorce Lawyer will be able to shield the client from as much stress as possible. Everyone wants to get on with their lives and therefore the least amount of stress the divorcee is exposed to, the better. An experienced attorney can help take some of the emotion out of the equation.
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It is becoming increasingly common for at least one member of a married couple to carry a heavy student loan debt. The price of a college education has soared in recent years. As more people go back to school to obtain college or graduate degrees, or additional training, they have been forced to apply for federal and private loans to cover the costs. Since these loans come with high interest rates, paying them off can become a real burden over time. One recent study found that more students were defaulting on their loans than ever before.

Many clients worry that they will be stuck having to bear the burden of their soon-to-be ex-spouse’s student loan debt. The following are some questions that clients typically ask a San Diego divorce attorney.

Since California is a community property state where the division of property is split evenly, will I be responsible for paying off half of my ex-spouse’s student loans?

Not necessarily. While it is true that most debts that are incurred during a marriage are subject to equal division between the spouses, a debt incurred for education debt may be an exception. Pursuant to California Family Code section 2641, the spouse who takes out the loans can be the one responsible for paying for them, depending on how long ago the loan was taken out, and other facts.

What if I have already helped pay for part of the loans? Will that money be returned to me?

Spouses often do have a right to reimbursement for “community” funds paid toward one spouse’s education. Any income earned during the marriage, by either spouse, is considered part of the community fund. So if one spouse uses his or her earnings to pay for the other spouse’s education, his or her income would be viewed as community income that was used as a community contribution to education.. In this case, the community may be entitled to reimbursement if the education enhanced the other spouse’s earning capacity. Whether the community is reimbursed, however, depends upon a variety of circumstances, including length of time that has elapsed since the loans were taken out.

Are there circumstances where I would not be repaid for the money I paid for part of my spouse’s student loans?

There are two typical circumstances where the spouse might not be reimbursed. One is if 10 years have passed since the degree was awarded. Then the other spouse might successfully argue that you have already benefited from the increase in wealth that resulted from the advanced degree. If you cannot successfully refute that argument, you will not be reimbursed. Some of the other circumstances would be whether you also obtained an advanced degree, education or training during the marriage that your spouse paid for out of his or her community income. The two degrees, would then, in effect, cancel each other out. You will also not be repaid if you and your spouse have an express written agreement to the contrary.

What if I have benefited from my spouse’s advanced degree, but never helped pay back the loan? Would I be responsible for repaying it after the divorce?

No. The spouse who took out the debt would still be responsible for paying the debt in the event of a divorce. “Benefit to the community” is only weighed when the non-debtor spouse helped pay off part of the debt during the marriage.

Does it make a difference whether my spouse took out his loans during the marriage or before the marriage?

No, the circumstances remain the same. The debt would still be your spouse’s to pay off, whether he or she took out education loans before or during your marriage, although if he or she took out loans before the marriage, and many years elapsed before your divorce, you might have trouble proving that you deserved reimbursement because your spouse would argue that the “community” had already benefited.

If you live in California and are considering a divorce, contact an experienced San Diego divorce attorney and learn the facts about student loan debt, other debts, and division of property laws.
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Many San Diego clients come from marriages where one spouse was the primary wage earner, while the other stayed home to raise the children. The stay-at-home spouse now worries that the divorce will leave him or her without long-term security. Even though in California, spousal income is community property and distributed equally, there is still a question of whether the division of property entitles the stay-at-home spouse to a share of the other spouse’s pension benefits or stock options. Below are some questions that clients often ask a San Diego divorce attorney.

Am I entitled to a share of my spouse’s pension benefits if he joined the pension plan before our marriage?

Generally, yes, per California Family Code section 2610. What matters is whether your spouse’s retirement benefits continued to accrue during the years you were married. If at the time of divorce, your spouse was eligible to retire, the court would use proration formula to determine your share of the benefits. The proration formula divides the years you were married and your spouse’s benefits accrued by the total number of years your spouse was part of the pension program. The result is a percentage that represents the community’s share of that pension.

Thus, if you were married to your spouse for 15 years and during thos 15 years your spous’s benefits were accruing, and if your spouse was employed and also accrued benefits from that same employer for a total of 30 years, the community’s share would be 15/30, or one half of the pension benefits, and you would be entitled to half of that, or one fourth.

What if my spouse is eligible to retire, but chooses not to? Does that affect how much I receive?

No, because your spouse’s pension benefits mature at the time he is eligible to retire, not when he actually retires.

What if my spouse is not eligible to retire at the time of our divorce?

You would still be entitled to receive half of the community’s share of your spouse’s pension benefits. Tthe court could issue an order for you to receive your share when your spouse is eligible to retire. Some divorcing parties may agree that the spouse with the pension may “cash out” the other spouse, but a court could not make this type of an order.

Do stock options work the same way as pension benefits?

Yes, in the sense that you receive a share of your spouse’s stock at the time it matures, or “vests,” based on the number of years you were married. The difference is in the way your share is calculated. The portion of community property is based on the intent of the employer who granted the option. If the court finds that the employer awarded the stock option to reward your spouse for past services, then it uses the Marriage of Hug formula, which calculates community property based on the date your spouse started working. If the court finds that the employer awarded the stock option to encourage your spouse to stay with the company, it uses the Marriage of Nelson formula. Marriage of Nelson calculates community property based on the date the options were first granted. While both formulas can be a little confusing, what matters is that the stay-at-home spouse is entitled to a portion of the stock option.

If my spouse receives severance pay, would I be entitled to a share?

There is no clear-cut rule for severance pay. Some have argued successfully that it is not community property because it replaces lost income the spouse would have earned after the divorce. Others have argued successfully that it is community property because it was paid for by employment during the marriage.

If you are in the middle of a divorce and have questions about pension benefits, stock options, and other retirement issues, find a knowledgeable San Diego divorce attorney who can prepare you for what to expect.
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