Articles Posted in Divorce

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Former Dallas Cowboy quarterback and NFL legend Troy Aikman paid $1.75 million dollars to his ex-wife as part of an agreed divorce settlement. Aikman was married to his wife Rhonda for eleven years until the couple split in April 2011. As we have previously blogged, ten years of marriage is a significant turning point under California family law and can greatly impact the rights of the parties to a divorce. Aikman’s estimated net worth is $25 million dollars and it is unclear whether he has or will make additional payments to Rhonda.

The San Diego family court system encourages parties to reach voluntary agreements, rather than pursuing a court-determined judgment. Before a divorce or child custody case will go to trial, the court requires the parties to participate in a mandatory settlement conference. A mandatory settlement conference is overseen by the judge on the case but is facilitated by a volunteer attorney within the community. The volunteer attorney is a recognized family law expert in the field and is called the “settlement judge.” Prior to the conference, the parties are required to submit briefs to the settlement judge so that he or she will have an opportunity to review the facts and issues in the case ahead of time. If the parties are represented, all attorneys are permitted to attend the conference and speak with the settlement judge. However, the settlement judge may ask an attorney to step out of the room so that the judge has an opportunity to hear the client’s concerns. Often, the settlement judge will propose solutions that address the needs and interests of both spouses and most importantly, any children involved in the case. The scope of the issues that the parties can agree on, and therefore exclude from any further litigation, is limitless. The parties may settle property disputes, spousal and child support, child custody and visitation, and any other issues in the particular case.

Settling a case that involves such personal and intimate issues, as in all family law cases, is advantageous for all parties. Reaching a settlement can give parties control over the outcome of the litigation. The order of a judge is not debatable and might not address the specific concerns of all parties. Trial and extended litigation can also be expensive for both parties. The earlier in the process that the parties reach an agreement, the less they will be forced to spend on costs and attorney’s fees. Settlements can also be reached much faster than a final adjudication of the case in court.

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After nearly twelve years of marriage Debra Messing and husband Daniel Zelman are calling it quits. 

Messing and Zelman say the split is amicable and that they intend to remain close friends as they raise their son together. The two announced their separation six months ago. Ironically, immediately following this announcement, Messing began dating her new Smash co-star, Will Chase. The divorce petition filed by Messing on Tuesday June 5, 2012 lists the commonly cited “irreconcilable differences” as the reason for the divorce.

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Child superstar Miley Cyrus recently got engaged to fellow actor Liam Hemsworth.  

The couple first met in 2009 on the set of the film The Last Song. Although their relationship has been a bit rocky, Cyrus, 19, and Hemsworth, 22, agreed it was time to get married. Much of the recent media attention has been critical of the pending nuptials for the young couple. The main argument against the marriage is that Cyrus is not old enough to make such a commitment. Newly engaged couples are eternally optimistic and excited for the future; however, much talk is already surrounding a potential Cyrus-Hemsworth divorce.

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It is never easy, no matter what the situation is, to go through a divorce. Thousands of people right here in San Diego go through divorce each year. A divorce can turn your everyday life upside down and make it feel impossible to move forward. You may be experiencing profound emotions of disappointment, stress, and grief; however it is important to remind yourself that you can and will eventually be able to move on, you just have to take it one day at a time.

Here are three strategies to help you cope with your divorce:

Recognize that it is okay to have feelings; don’t fight them. It is normal to feel angry, sad, exhausted, and confused. You may also feel anxious about the future, and uncertain of what happens next. Even if the marriage was unhealthy, it is frightening to think about the unknown. Grief is a natural reaction to loss, it is essential to the healing process. The pain of grief is precisely what helps you let go of the old relationship and move on. And no matter how strong your grief, it won’t last forever.

Make sure to reach out for support and talk about your feelings. Although it may be difficult, it is important that you work through your emotions. Knowing that you have others around you who know about your feelings or are going through the same thing will make you feel less alone. Find a support group or surround yourself with close friends and family that can help you through this difficult time. It is normal for us as humans to be afraid to ask for help, but you will be pleasantly surprised when you start to let people in. Try to choose people who are positive and will truly listen to you. It is important that you feel you can be honest without feeling judged or criticized about the way you are feeling.
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On May 8, 2012 President Barack Obama declared his support for gay marriage. This announcement instantly sparked both criticism and celebration. Considering that America will elect its next President this year, Obama effectively brought the issue of gay marriage to the political forefront. Obama has clarified that his announcement only represented his personal opinion and reaffirmed that questions regarding marriage are to be decided by the states.

Just as individuals have polarized over the issue of gay marriage, so have the states. All states agree that marriage is a fundamental right guaranteed under the Constitution. The right to marry is recognized under the umbrella of the fundamental right to privacy. Also under the right to privacy are other fundamental rights such as procreation, custody of one’s children, and the right to make decisions regarding the child’s upbringing. Further, because the right to marry is so fundamental, the government is not permitted to infringe on that right without passing strict scrutiny. The government has the burden to prove that a law or regulation is narrowly drawn to further a compelling government interest. “Narrowly drawn” is often interpreted to mean the least restrictive means of achieving that actual compelling interest. The states that have prohibited same-sex marriage interpret the right to marry as only protected when the marriage involves a man and a woman.

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In San Diego, many courts award spousal support in various family law hearings. A new survey has sparked a family law debate, who pays alimony more often – men or women? The new survey indicates that more women are paying alimony than ever before. However many practicing attorneys argue that, although women pay support in a few cases, men still are responsible for the majority of support payments.Alimony, more commonly known as spousal support in family law, is set by a judge or agreed upon by the parties in many family law cases. The amount of the award and the length of the obligation is dependent on a number of factors including: the needs and abilities of the parties, the length of the marriage, the standard of living enjoyed by the parties during the marriage, and any other factor the court deems relevant. In the past, many states had laws providing that only men could be ordered to pay spousal support to their wives.

In 1979, the United States Supreme Court decided a case entitled Orr v. Orr and created new Constitutional standards for spousal support laws. It is rare that the Supreme Court hears a case involving questions of family law because these issues are generally left to the states to decide. However, the Court determined that laws that prohibited courts from ordering women to pay spousal support were in violation of the United States Constitution. In Orr v. Orr, an Alabama statute permitted alimony to be awarded to wives but not to husbands. The stated rationale for this law was that the state was address the economic disparity between men and women and protecting women in financial need following a divorce. The Supreme Court analyzed the law under an intermediate scrutiny standard because it discriminated based on gender. The state had the burden to prove that the law was substantially related to an important government interest. The state did not meet that burden and the law was overturned.

Spousal support and child support typically go hand-in-hand. With the men’s rights groups on the rise, many fathers are finding new and more effective ways to seek custody of their children. Previously, the Tender Years Presumption was applied throughout the United States, including California. Under the Tender Years Presumption, mothers were presumptively given custody of children still in their “tender” years. Several courts have held that this presumption is unconstitutional for the same reasons the Supreme Court overturned the Alabama law in Orr v. Orr. Thus, the Tender Years Presumption was replaced almost uniformly with some variation of the “best interest standard” in child custody cases. Under the current standards, San Diego family courts often make both child support and spousal support awards in favor of men. However, many attorneys still debate whether these awards amount to a significant enough number to equalize the spousal and child supports awarded in favor of women.

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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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