San Diego Divorce Attorneys BlogOne of the most frequent complaints I hear from family law litigants is the length of time it takes to finalize their divorce. Some of the fault for this complaint is institutional while a good deal of the time it takes to finalize a divorce is a result of each case’s unique issues. In this blog I want to discuss some of the institutional reason why divorce cases take time to resolve.
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Settlement in Divorce
On October 7, 2015 news broke that the richest man in Illinois, hedge fund manager Ken Griffin, came to a settlement in his divorce from Anne Dias Griffin. The two had entered into a prenuptial agreement (also referred to as a “prenup” or “premarital agreement”) prior to their marriage in 2003. They have three young children together.
Home Makeover for Curing Post-Divorce Blues
One asset to be divided in many divorces is a marital residence that the parties lived in during marriage. During or shortly after a divorce, the marital residence may have to be sold because neither party can afford to keep up with the house payments and associated expenses alone. Or, depending on the parties’ financial situation, the parties might be able to work out a plan in which one party gets to stay in the marital residence post-divorce. If this is the case, typically the party remaining in the marital residence will have to “buy-out” the other spouse’s interest in the house. This situation often occurs when the parties to a divorce have one or more minor children still living at home. If the marital residence is not sold pursuant to a divorce agreement and instead one party remains there post-divorce then a little home makeover might be necessary to make it feel like “home” again.
A home makeover is a great way to start fresh after a divorce and help you move on from your marriage. If your house looks the same way it did when both you and your ex-spouse were living there together then it will probably be a lot harder to move on because you will have constant reminders of your ex and your marriage. The half empty closet, unused drawers and empty spaces on the walls where your wedding photos once hung will only serve as constant bitter reminders of what is now gone. Whether you are happy or sad about the divorce, those constant reminders need to go away in order for you to have a happy and healthy fresh new start at life.
The first step in a post-divorce home makeover is to fill all of the open space. You might not have excess funds to go out and buy new things, especially right after your divorce. So instead of getting new things to fill the empty void, simply reorganize and utilize all of your space with your current belongings. In order to cover up the holes in the wall from where your wedding photos once hung, try your hand at painting the wall a new color or putting up some new wall decor.
Another home makeover tip to cure the post-divorce blues is to make your bed a comfortable space for just you. Perhaps you got used to sleeping on just one side of the bed. Well now that the bed is all yours, get rid of the old sheets and pick out new sheets and a comforter that fits your new style. And add some extra pillows to help make the bed feel smaller when you are in it alone. A home makeover can be just the right thing to get you started on a new YOU after divorce!
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Option to Hire a Privately Compensated Temporary Judge
If you are going through a divorce then you are likely aware of how impacted the courts are, due to a limited budget, and how long a divorce can be drawn out as a result of court hearings being scheduled months out. Impacted courts are especially a concern for litigants going through a divorce who are dealing with a heavily emotional legal case.
Couples who need the Court’s assistance with getting permanent orders with regard to child custody, division of property, spousal support or other issues related to a divorce, may need another avenue to end their divorce sooner. Privately compensated temporary judges offer just that.
Perhaps the acronym PCTJ has come up in discussions with your attorney or opposing counsel. PCTJ stands for Privately Compensated Temporary Judge. California Rules of Court Rule 2.834, which became effective January 2010, provides parties with the option to opt out of public courts and make use of a privately compensated temporary judge.
A request for the appointment of a privately compensated temporary judge must be directed to and granted by the family court judge. The parties can sign a stipulation agreeing to hire a privately compensated temporary judge, which will then become a court order.
A privately compensated temporary judge has and exercises all powers and duties of a San Diego Superior Court Judge. However, matters that occur before a privately compensated temporary judge are not held at the courthouse. Since the proceedings will be held outside court facilities, typically court personnel may not be used in the proceedings.Hiring a privately compensated temporary judge typically results in a quicker hearing and therefore quicker resolution of the disputed issue(s) in the case. However, hiring a privately compensated judge does involve an additional cost. The parties will not only incur the expenses of their attorney’s fees, filing fees and other costs, but also the cost to hire the privately compensated temporary judge. The parties can agree to split the cost. However, this additional cost must be weighed against the cost of going through the public sector, which may actually rack up more attorney fees as a result of delayed hearings and potentially interrupted trials.
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Making a Major Purchase Before Your Divorce is Final
After 23 years of marriage, Kris Jenner filed for divorce from Bruce Jenner. Sources say that Bruce “celebrated” his upcoming freedom by dropping $50,000 on a new NASCAR-approved UTV race car. Although the Jenners’ divorce documents allege that their date of separation was back in 2013, a significant impulse buy before their divorce is even close to final could potentially cause some problems, when it comes to division of their property.
When couples go through a divorce, the court (or the parties via settlement) will make decisions about how to divide their assets and debts. Since California is a community property state, assets acquired during marriage are considered community property and thus subject to 50/50 split between husband and wife. Assets acquired before marriage or after the parties’ date of separation, on the other hand, are considered separate property of the spouse who acquired it. However, issues can arise when a significant asset is purchased after the couples’ separation but before their divorce is finalized. For instance, purchasing a new vehicle after separation may complicate a divorce as it relates to disclosure of assets and determining whether the new vehicle is indeed separate property.One potential issue with purchasing a new car after separation is inadequate disclosure. Once a spouse files for divorce each spouse will be required to draft and exchange Preliminary Declarations of Divorce (“PDODs”). One aspect of the PDODs is the Schedule of Assets and Debts, which outlines all of the parties’ assets and debts, including vehicles. If you have already exchanged your PDODs and then later purchase a new vehicle (before the divorce has been finalized), then you will need to disclose this new purchase to your spouse. You will likely need to augment your Schedule of Assets and Debts to reflect the new asset. The new vehicle will also need to be addressed in your Martial Settlement Agreement. It’s important not to omit any of your assets from your final divorce paperwork, even if you are sure that the asset is your separate property.
Another potential issue with purchasing a new car after separation is determining whether it truly is separate property or not. If the date of separation is a contested issue, then determining whether the new car was purchased “during marriage” or “after separation” may be quite a problem. If you and your spouse cannot agree on a date of separation then it may need to be litigated in court. Once the date of separation is decided and it is clear that the vehicle was purchased after that date of separation, it does not mean that you are home free. You then need to look at the source of the money that was used to buy the vehicle. If you used your earnings that you acquired after separation then the source of the money was separate property. But if you used money from a joint account that you and your spouse acquired during marriage or if you traded in a community property car, then the new vehicle might not be your separate property.
It may be best to simply avoid buying any significant assets before your divorce is final. Unfortunately, divorces are often dragged out over a couple of years or more and thus it is unrealistic for parties to avoid making new purchases. Luckily for the Jenners, sources say that the couple has already reached an amicable settlement regarding the division of all of their assets, so it doesn’t look like Bruce’s recent vehicle purchase will pose that much of a problem.
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Agreements Regarding Payment of College Expenses in Divorce Judgments
In a divorce where the parties are fortunate enough to have the funds to pay for their children’s college expenses, paying for college can be a major issue of discussion throughout the case. One parent may even give in on other issues to secure an agreement from the other side to pay for tuition for college for the parties’ children. However, San Diego family law attorneys have struggled with the enforceability of provisions in Divorce Judgments reached by agreement of the parties. In a recent California Court of Appeal case, the Court clarified the limits of agreements for one or both parties to pay for college expenses.
In Drescher v. Gross, the parties entered into a Marital Settlement Agreement (“MSA”) in which they agreed to equally share their three children’s future college expenses. The college provision contained limitations on what schools the parties would pay for and which expenses were covered by the agreement. At the time the parties executed the MSA they were both employed as attorneys and earning six-figure incomes. Ten years later, the parties both requested modification of various support provisions, including the college expenses provision. At the time of the post-judgment requests, Husband earned more than $400,000 per year and Wife had become permanently disabled and was unable to work.At the trial court level, the judge enforced the college expense provision of the parties’ agreement and agreed with Husband that the parties should share equally the college expenses regardless of their current respective incomes. The trial court determined that it did not have jurisdiction to modify a contractual obligation entered into freely by both parties. On appeal, the Court of Appeal disagreed. The Court of Appeal granted Wife’s request to modify the college expense provision based on a material change in the parties’ financial circumstances. The Court of Appeal analogized the college expense provision to general support provisions which are modifiable unless the parties state otherwise.
Based on the outcome of this recent case, moving forward in divorce cases, the parties’ MSA must specifically state that a college expenses provision is non-modifiable if they intend to restrict the court’s ability to modify such a provision. Although family law attorneys dispute the wisdom of this decision, everyone can agree that clarity is always a plus when it comes to drafting and enforcing agreements in the family law arena.
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To Settle or Litigate…That is the Question
When going through a divorce, there are a lot of decisions that need to be made. Who will get the house? Who will the kids spend the holidays with? Who keeps the beloved family pet? These and many more questions will come up throughout the divorce process and will require either you and your spouse or the Judge to make a decision. One decision, however, that will be up to just you (and hopefully with the cooperation of your spouse) is whether to litigate or mediate some or all aspects of your divorce.
It’s common to want to take everything to trial when there are a lot of fuming emotions between you and your spouse. Many spouses feel that if they litigate their case, it will act as a type of revenge against their spouse. However, before you shut your eyes to the option of mediation or otherwise settling outside of court, here are a few things you might want to consider:
Money, Money, Money! Can you really afford the expense of a trial? If you have sufficient funds in your back pocket to fight your case and you aren’t in a hurry to get the divorce over with then ligation might be the avenue you want to take. However, keep in mind that it is very likely that the cost of going to trial will be greater than the amount of money you would lose by agreeing to your spouse’s settlement offer. This doesn’t necessarily mean that you need to agree to an unfair offer just to avoid trial on the issue. Such a decision really requires a cost-benefit analysis. If you are on the fence, your divorce attorney can walk you through the pros and cons of settling an issue outside of court or taking it to trial. It’s important to look at the big picture and decide if a $1,000 issue is worth possibly spending $10,000 in court to fight over or not.
Can you handle the heat?! Can you and your family withstand the immense amount of stress that comes with a trial? Litigation can be not only financially draining but also emotionally draining. You aren’t only putting an immense amount of stress on yourself, but also those who are standing by you throughout the process (your children, your family, your friends). However, some issues are simply worth the stress. For instance, if you are fighting for custody of your child, the stress of a trial is minor compared to the stress that you could potentially endure in the future if not awarded custody.Risk Taker or Risk Averse? How much are you willing to hand over control to a Judge? When going before a Judge there is no guarantee as to whether or not he/she will see things your way. So even if you think the Judge’s decision is unfair, it will be final (unless there are grounds for appeal). If you are willing to take that risk then go for it. But if you are more risk averse you may want to consider the benefits of settling with your spouse outside of court.
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Is There a Place for Fault in Modern Divorce After All?
Kansas is considering a bill which would arguably eliminate “no-fault” divorce throughout the state. Currently in Kansas, “incompatibility” is a ground for divorce similar to California’s “irreconcilable differences”. “Incompatibility” and “irreconcilable differences” are both general catch-all no-fault grounds for divorce. The new Kansas bill would replace “incompatibility” with eight reasons the couple is seeking a divorce.
Keith Esau, a member of the House Judiciary Committee, introduced the new “fault divorce” bill. He supports the intent behind the bill (which was authored by an anonymous legislator) because he says “No-fault divorce gives people an easy out instead of working at it.” Other members of the Judiciary have spoken out about the bill noting that the government may be overreaching by limiting a couple’s decision to end their relationship. In response, the bill’s supporters argue that married couples receive significant benefits from the state and therefore the state should be able to limit people from entering into marriages temporarily, reaping the benefits from the state, and then getting out.
Kansas divorce attorneys argue that the new bill will only complicate and prolong the divorce process. Such an adversarial requirement – choosing from a list of fault-based grounds as a reason for the divorce – can make a family matter extremely contentious. Divorce attorneys in Kansas question whether the new bill would deter many couples from petitioning for divorce. Whether the divorce process is “easy” or “difficult” for the parties will likely not be the deciding factor when determining whether to file for divorce. Further, many couples are unfamiliar with divorce laws and the process and therefore do not take them into consideration before filing for divorce.
At Bickford Blado & Botros, we strive to make the divorce process as smooth as possible for all of our clients. This includes a strong effort to resolve all issues without court intervention. If California were to consider a bill eliminating “no-fault” divorce, our firm would be concerned about the effect such a law would have on children caught up in the divorce process. Our attorneys encourage clients to resolve all custody and visitation disputes amicably outside of court. By eliminating “no-fault” divorce thereby increasing the tension and conflict in divorce cases, litigants may be less likely to resolve custody disputes quickly and cooperatively. Court intervention and contentious custody battles are rarely in the best interest of the children and will likely make the divorce transition more difficult for them.
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Protect Your Finances in Divorce
One of the top concerns for the majority of family law litigants is protecting their financial well-being during the divorce process and beyond. Typically, all divorcing parties must make changes to their lifestyle in order to stretch their family budget enough to support two separate households. The reality in most divorces is that both parties will need to make financial sacrifices and cannot afford to maintain their previous standard of living. However, beyond lifestyle adjustments, most parties also have a real fear that their assets and potential income are in jeopardy as a result of the divorce. If you are worried about protecting your finances in divorce, below are a few tips to consider which prevent future loss.
Create Financial Separation after the Date of Separation
The marital estate exists from the date of marriage through the date of separation of the parties. All earnings and accumulations of the parties (except through gift, devise or bequest) during that time is community property and are shared equally between the parties. After the date of separation, the income of both parties becomes their separate property. Thus, if the primary earner contributes to the support and maintenance of an unemployed spouse over and above the amount required by a support order, the supporting party may request reimbursement. In cases where the parties continue to commingle their spending it can be difficult to later asses how much support has been paid post-separation. It is a good idea to consult with a family law attorney regarding whether you should establish your own checking, savings, and/or credit card accounts.
Learn What you Don’t Know
In a typical divorce case, the parties have the most knowledge regarding the particular assets and debts in their own names. While you and your spouse are still amicable and living under the same roof, it is highly advisable to gather information and documents regarding the assets and debts you are not as familiar with. In addition, it will also be helpful to discover as much information as possible regarding the family expenses paid by your spouse and his or her income. Learning what you do not know prior to a nasty divorce can save thousands of dollars in attorney fees and costs and can also prevent significant delays.
Focus on the Facts of the Case – Not Revenge
Vengeful-minded litigants spend significantly more money in attorney fees and costs than they will likely ever recover from their spouses. Further, vengeful tactics tend to prolong the divorce process making it harder for the parties to move on with their lives and establish emotional stability. In addition, California is a “no fault” state which means that marital wrongdoing is completely irrelevant in family law proceedings.
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Can My Spouse Force me to Work?
One of the most common questions posed by supported parties to family law attorneys is “can my spouse force me to work?” Often times supported spouses are threatened by their high earning counterparts with statements like “you could be earning more money,” “you could be earning at least minimum wage” or “I am going to ask the court to make you get a job”. The more money earned by the supported spouse, the less money the supporting spouse must pay in monthly support. However, income is not the only factor considered by the court in setting spousal and child support. According to a recent case, In re Marriage of Ficke, the court must take into consideration the best interest of minor children (if any) when making child and spousal support awards.
The simple answer to the question above is “No,” your spouse cannot force you to get a job, work more hours, or pursue a higher earning position. In addition, the court will not specifically order you to work or to get a specific job. However, the supporting spouse can petition the court for an imputation of income. If a request for an imputation of income is successful, the court will assess an income level (based on ability and opportunity) for the supported spouse and use that amount for purposes of calculating support. For example, if the court determines the supported spouse has the ability and opportunity to earn minimum wage, the court will use a monthly minimum wage number as the income for the supported spouse. As a result, the court does not force the supported spouse to work but essentially pretends he or she is earning up to his or her full potential when setting support. If the supported spouse receives a lower amount of support based on imputation of income, he or she may need to obtain employment in order to meet monthly expenses.
In In re Marriage of Ficke the wife, Julie, was recently laid off from a position where she was earning over $700,000.00 per year. Her husband, Greg, also earned a substantial income during marriage. At the time the court made its support award, Julie was only earning $251.00 per month. However, as a result of different job offers that Julie turned down and the findings of a vocational evaluator, she was imputed with a monthly income of $13,333.00 per month. Julie was awarded a 95% timeshare with the children and $1,368 in monthly child support from Greg. The court also made an award of spousal support payable by Julie to Greg. Julie appealed this order arguing that the court failed to contemplate her inability to work in such demanding positions considering her timeshare with the children. Julie reasoned that such high paying positions required her to work days, nights, and weekends which interfered with her care of the minor children.
Ficke stands for the position that although both parents have an equal responsibility to financially support their minor children, the trial court should not impute income to a custodial parent (like Julie) unless such imputation would benefit the children. California cases have recognized that time spent with children by a parent is incredibly valuable. Therefore, an imputation of income to a custodial parent will not be in the best interest of the children when the imputation deprives the children of considerable time with their parents.
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