Articles Posted in Property Division

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If you grew up in 1990s, chances are you are familiar with the Beanie Babies fad. However, if you somehow missed out on that craze, Beanie Babies were the extremely popular stuffed animals made by Ty Warner, Inc. (later renamed as Ty Inc.). They were so popular and “valued” that in 1999 a divorcing couple actually went to count to divide up their Beanie Baby collection. No, I am not kidding! Apparently, the couple was unable to figure out how to divide up their Beanie Babies by themselves, without court intervention, so they literally took them all to court and divided them one by one in front of the judge.

While the family law court provides individuals with their “day in court” to allow a judge to make a decision about their case, most people will agree that it seems pretty ridiculous to go to court to have Beanie Babies divided. Even as a family law attorney, I am a big proponent of helping my client resolve as many of their issues outside of court as possible.

Going to court can be very costly for both parties. They are not only paying their attorney’s hourly fee, but there are other costs involved such as paying for a court reporter. Additionally, going to court means that if you are a working individual, you will have to take time off work to attend the hearings. Also, the divorce process will likely take much longer. The courts are extremely backed up and hearings are typically set months out. The longer your divorce goes on, the more anger, resentment and frustration seem to build up. Is it truly worth the time, attorney fees and emotional impact?So many issues can be dealt with outside of a court room. This includes division of your precious collection of Beanie Babies with your soon to be ex-spouse. If the value of your precious items is at issue, then bringing in a third party appraiser might be helpful. Also, when negotiating division of assets outside of court, it is important to carefully consider the item’s current and future value. It may be a huge risk to assume that items, like Beanie Babies, will have a significant future value. If you let your spouse keep a $20,000 vehicle at no charge or offset, in order to keep your beloved collection of Beanie Babies, you might be highly disappointed when years down the road you find out that Beanie Baby is still only worth less than $10. It’s a significant risk when you don’t know the item’s future value, but it’s a risk you might have to take to move the negotiating process forward and stay out of court while proceeding with your divorce.
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Divorcing couples must divide their house, cars, money, furniture, businesses, retirement accounts and everything else they own. Division of property is just one unpleasant but inevitable part of the divorce process. In most cases, the parties own few antiques or family heirlooms, if any at all, and possibly a few other valuable items. However, for those couples with several pieces of art or even an art collection, dividing personal property can be much more complicated.

Many collectors of art are sentimentally connected to specific pieces and do not look at the piece of art the same way they would look at any of their other assets, like a savings account for instance. Consequently, the art collector will be less likely to divide the art in the same manner that he/she is willing to divide the kitchen appliances or family vehicles. Therefore, when dividing art it is important for the divorce attorneys and parties to find a solution that will make everyone as happy as possible.

Before coming up with a solution to divide the art, the parties are advised to make an inventory that details each piece of art that was acquired during their marriage. They should also include, in the same or a separate list, all art acquired prior to the marriage or after the parties’ separation, which will be confirmed as the respective party’s separate property. One way to inventory the art is to create a spreadsheet that lists the name or brief description of the piece of art, the place where the art was purchased, the current location of the art (i.e in the family residence, in a storage unit, displayed in a gallery, etc.), the purchase price and the current value, if known.The value of the art is not necessarily the price that was paid for it. So in order to know the value of the art, the parties might consider hiring an appraiser to come appraise each piece of art. It may seem like just one additional cost to add to the ever growing divorce expense list, but having the art appraised could make a big difference when figuring out how to equitably divide it between the spouses. If the spouses cannot agree on a joint appraiser, then each spouse can hire their own appraiser. However, if the appraisals conflict significantly, it may make negotiations over division of the art a bit more complicated. One way to resolve this issue is for the couple to agree to split the difference between the two conflicting appraisals. If the couple (with the help of their attorneys) is able to figure out a way to divide the art, rather than taking the issue to Court, everyone is more likely to come out happier with the result.
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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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The realm of family law, as is the case with pretty much all areas of law, is filled with lots of legal paperwork and legal jargon. Being able to understand and properly fill out the judicial council form is half of the battle for a layperson. These forms can provide you with a lot of information that will be helpful throughout your case. The divorce petition, for example, is one of the first forms filed in a family law action. Even without having a family law attorney to review and explain the form to you, you can easily learn a lot by yourself simply by taking a close look at the Petition from top to bottom.

The Petition (i.e. Form FL-100 on the top right corner) is a one page document (front and back) that you will receive when your spouse has filed for a divorce, separation or annulment. Beginning at the top left of the document, you can note whether your spouse has hired an attorney to represent himself/herself or if he/she is in pro per and intends on proceeding without legal representation. If your spouse has hired an attorney, the attorney’s name, state bar number and address will appear in this box. You can then visit www.calbar.ca.gov to perform an attorney search or you can review various websites to get more information about the attorney that your spouse has hired.

Below the contact information section of the form, it will specify the address of the court. This will tell you where your case will be heard so you know whether you will have to drive to North County San Diego, downtown, East County, etc. to attend your court hearings.

Below your names, there is a box that indicates whether the Petition is for 1) Dissolution of Marriage, 2) Legal Separation or 3) Nullity of Marriage. This lets you know when your spouse actually wants a divorce or if he/she prefers to get a legal separation. If your spouse checked the Nullity of Marriage box then your spouse is contending that your marriage is not legally valid.

Under the section of “Statistical Facts” you can see what date your spouse is claiming is your date of separation. If you disagree, you can claim a different date of separation on your Response form. A family law attorney can help assist you in determining the appropriate date of separation to claim.Under Section 4 and Section 5 of the Petition your spouse should have listed all items that he/she contends are his/her separate property and which items are community property and subject to division by the court.

If your spouse has filed for either a dissolution of marriage or legal separation then he/she can either claim that the reason is because of irreconcilable difference or incurable insanity. This selection will be marked in Section 6 of the Petition. There are several reasons why a person can request a nullity of marriage. If your spouse is filing for nullity of marriage, his/her reasoning will be identified in Section 6 as well.

Section 7 of the Petition will give you an idea of what your spouse is requesting as far as custody of your children, if any, who will pay attorney fees and spousal support, etc. Please note that just because your spouse checks the box, does not mean that the court will order his request. Don’t take these checked boxes at face value and remember that the law may not even support your spouse’s requests.
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Spouses who are served with divorce papers usually fall into one of two categories: completely shocked or not surprised. Whether you expected your spouse to file for divorce or not, receiving divorce papers can be an overwhelming experience. Likely you will served with a large packet of forms, some of which have been completed by your spouse and some of which are blank. In addition to the standard divorce packet filled out by your spouse, you will also receive notices issued by the court. All of this information can be confusing and difficult to process if you are not familiar with family law and procedure.

Once you are served with divorce papers one of the first thing you should decide is whether or not you want to retain an attorney at the onset of your case. An experienced family law attorney can demystify the divorce process and take over a lot of the work that needs to be done. In addition, the attorney will understand what the court requires of family law litigants and can ensure you do not miss deadlines and court appearances. At Bickford Blado & Botros, we offer a variety of services to divorcing parties. You can retain an experienced family law attorney to consult with you and answer your questions throughout the process or you can opt for full legal representation. In addition, we offer attorney-assisted divorce wherein our paralegal will help prepare all of the necessary divorce paperwork.If you decide not to retain an attorney at the beginning of your case, you should begin to familiarize yourself with the courthouse where your case has been assigned and note any hearings which are currently on calendar. At the onset of each divorce case, the court will assign a judge to hear the case and may even notice the first status conference at which the parties or their attorneys are required to appear. After you have reviewed all of the documents served by your spouse, you will want to determine how contentious your divorce will be. Depending on the circumstances, you may want to reach out to your spouse in an attempt to discover what issues you agree on and which issues you and disagree on. If you both are in agreement to proceed amicably, you can discuss mediation with a professional or informal conversation to resolve disputed issues.

Regardless of how you and your spouse agree to proceed with the divorce, you should talk to a professional (either your attorney or someone at the family law facilitator’s office) about the upcoming deadlines in your case and which forms you should be filing to protect your rights.
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We often blog about the statutory requirement in all California divorces for divorcing parties to exchange complete financial disclosures. The required disclosure documents consist substantially of an Income and Expense Declaration and a Schedule of Assets and Debts. Through the completion of these documents, the parties are obligated to provide all material facts and information regarding their income, expenses, assets and debts. Failure to complete these forms in accordance with the highest duty of good faith and fair dealing may result in severe sanctions imposed by the court. Considering these strict requirements, the California Court of Appeal surprised family law attorneys in a recent case, In re Marriage of Evans, in which it held that the parties could reach enforceable divorce settlements prior to the exchange of the financial disclosure documents.

In Evans, prior to filing for divorce, the parties negotiated and signed a “pre-divorce agreement” which divided their interest in the marital residence. After a Petition for Dissolution was filed, Mr. Evans filed a motion to set aside the parties’ pre-divorce agreement. Mr. Evans argued that the agreement was invalid because the parties did not exchange their disclosure documents prior to its execution. The trial court disagreed with Mr. Evans and held that the pre-divorce agreement was valid and ordered its terms to become part of the Judgment of Dissolution. Mr. Evans appealed the trial court’s decision and lost again. The appeals court held that the financial disclosure statutes only were intended to apply after service of a divorce petition.With the Evans ruling now a published opinion, there is a loop hole for parties who wish to enter into property agreements prior to exchange of disclosure documents. It is important to note that Evans does not extinguish the requirement for both parties to abide by the disclosure statutes once a divorce has been filed; it only addresses agreements made prior to filing for divorce. In addition, pre-divorce agreements made in contemplation of divorce may be set aside for various other reasons. If you and your spouse would like to enter into a pre-divorce agreement, but are not yet ready to file for divorce, it is important to consult with an experienced family law attorney prior to executing any agreement. The right attorney can help you draft an agreement that will be enforceable in the event of divorce.
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As a divorce attorney, most of my clients come to see me for the first time with some misconceptions regarding California family law and/or divorce procedures. When clients mention divorce to family and friends their loved ones often have some input and suggestions based on personal experience or “horror stories” they have heard. While they are well-intentioned, family and friends may not be completely on point with their legal advice. Below is a list of common divorce myths and urban legends that I often spend time debunking with my clients.

“Title of Property Controls“: Some clients come into my office assured that if a bank account, house, or retirement account is in his or her name it is “their” asset and will not be divided with his or her spouse pursuant to the divorce. Wrong. While title of property can be relevant to determining whether the property is community (and will be divided equally by a court) or separate (and will be confirmed to the title holder), title is not dispositive to the characterization of property. As a general rule, all property acquired during marriage (except by gift, inheritance, or devise) is community property and subject to equal division. This means that even if title to a vehicle is held by one spouse, that vehicle will be subject to equalization if it was acquired during marriage with community funds.“The Mom Will Get Custody”: As we have previously blogged, there are many misconceptions about the role of gender in family law, especially regarding custody and visitation. Pursuant to the California Family Code, it is in the best interest of the child(ren) to have frequent and continuous contact with both parents. Legally, there is no distinction between fathers and mothers as the preferable parents.

“Spousal Support and the 10 Year Mark”: The myths and urban legends regarding spousal support (commonly referred to as “alimony”) in California are plentiful and most of them relate to the ten (10) year mark of a marriage. Although the length of marriage is a consideration for the court when it determines the length of time a paying spouse is obligated to pay spousal support, there is no minimum length of marriage required to receive spousal support. In addition, the length of the marriage has little to no bearing on the amount of support ordered.

“I Do/Don’t Have to Maintain My Spouse’s Health Insurance”: On the issue of health insurance clients tend to believe what they want to hear. The paying spouse believes that when he/she files for divorce he/she can cancel the health insurance of his/her spouse. In contrast, the supported spouse who is often carried on his/her spouse’s health insurance policy believes his/her spouse should maintain this policy indefinitely. Upon filing for divorce/service of the Summons (depending on whether you are the Petitioner or Respondent), Standard Family Law Restraining Orders take effect which prohibit cancelation of a spouse’s health insurance policy. In addition, upon divorce, a party cannot remain on his/her former spouse’s health insurance policy absent COBRA coverage.
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Heidi Klum and Seal are officially divorced and back on the market. TMZ reports that their split was actually quite amicable and they had no issues with dividing property and figuring out spousal support thanks to a post-nuptial agreement that they signed after marriage. Although they did not have a pre-nup, their post-nup kept most of their earnings separate and their divorce process was streamlined because they didn’t fight over money. It is reported that neither party will get spousal support from the other and they have even worked out a custody agreement for their four children.

If couples, like Klum and Seal, marry without a prenuptial agreement (aka “pre-nup”) there is still an opportunity to enter into a legally binding agreement regarding property division and support in the event of a divorce. They can do so after they are already married in what is known as a post-nuptial agreement (aka “post-nup”). This is common when couples don’t like the stigma attached with a pre-nup, have a very short engagement and don’t necessarily have time to draft a pre-nup, have children from a previous marriage or perhaps their circumstances have changed such that they wish they would have taken the step to sign a pre-nup. Really the only difference between a pre-nup and a post-nup is that a post-nup is signed after marriage, rather than before. Other than that, it is still a legally binding agreement should the parties decide to get divorced later on.

A post-nup must be in writing and signed by both of the parties. While the parties are free to negotiate the terms of their post-nup, they should be fully informed about all of their assets and debts and they should be represented by independent counsel. Drafting a post-nuptial agreement is an opportunity for married couples to analyze their assets and debts and then set terms that are acceptable to both parties. It will allow the parties to gain a common understanding of how to handle contentious financial issues.A post-nup might include designations regarding which assets and debts are to be considered separate property, the amount of spousal support to paid to one party, the right to manage or dispose of property, the role of a spouse in a business, and division of community property in the event of a divorce or separation. A post-nup might also address how to divide money in a blended family where one or both spouses have children from a previous marriage. However, a post-nuptial agreement cannot address child custody or child support. If the parties’ marriage does eventually dissolve, the post-nup will essentially serve as the framework for drafting a marital settlement agreement.
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It is common in contested divorce cases for one or both parties to hire a family law attorney. Divorce attorneys are experts in the law; however, they are not all necessarily experts in specialized areas that some divorces involve. Throughout San Diego County there are a variety of experts who work with family law attorneys to help clients in the divorce process. Depending on the issues in the particular case, a psychological, vocational, medical, or financial expert may help the parties overcome impasse and move the case forward. However, although experts can be invaluable assets in a divorce, hiring an expert can be expensive and may lead to a battle of experts in the courtroom.

Financial Experts & Vocational Experts

Disputes over child support and spousal support can drag a divorce out for months or even years. When one spouse is self-employed, the parties often take vastly different positions on the paying spouse’s income. In order to save time and significant attorney fees, some attorneys recommend hiring a neutral expert to conduct an income analysis. The financial expert will examine all materials provided by both parties and has the ability to request additional documents needed to conduct the analysis. The expert will then provide both sides with a report outlining his or her opinion on the self-employed spouse’s income available for support.

If one or both parties disagree with the analysis for some reason, he or she may hire an independent expert to conduct a similar analysis or review the work of the neutral. However, if both parties accept the analysis, they can reach an agreement on support quickly and move forward in the case. In addition to performing an income analysis, a financial expert may also be hired to value a business or analyze various accountings.

Another common reason for a support dispute is a disagreement over the level of income one or both spouses should be earning. If one or both parties are unemployed or underemployed the parties can hire a vocational expert to conduct an evaluation of the ability and opportunity for the party to become employed. Pursuant to the findings of the vocational expert, the parties can agree to impute income to the unemployed or underemployed spouse.

Psychological Experts

Just as support disputes prolong the divorce process, custody and visitation battles can do the same. Sometimes it is helpful for the parties to hire an expert to evaluate the custody and visitation issues and make a recommendation to the parties. In addition, psychological experts also may be hired to evaluate one or both parent’s ability to parent the children. Therapists can be used in family law cases to conduct reunification therapy in an attempt to repair the relationship between one party and his or her children.
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One of the popular marketing strategies for family law firms throughout San Diego County is promoting “divorce for men”. From billboards to newspaper ads and firm websites, many law firms advertise a focus on “husbands and fathers” and protecting their rights. “Men’s rights” is an issue that many litigants associate with divorces, custody battles and domestic violence cases. However, is there really a different skill level involved when representing husbands and fathers or is this advertisement nothing more than a way to attract male clients?

It is a common belief that men walk into divorce court, a custody battle or a domestic violence restraining order hearing with the deck stacked against them. There is an assumption that men automatically will have to pay an exorbitant amount of money in support and/or to equalize property division. In addition, the general public assumes that the court tends to give women custody of minor children. With regard to domestic violence hearings, men assume that women are given the benefit of doubt and that restraining orders are granted more often than not. In reality, although a particular judge may have a bias against one gender or the other, the law makes it clear that men and women should be treated equally in divorce proceedings, custody hearings, or in domestic violence cases.

In San Diego divorces, support comes down to clear cut numbers. If a woman is the high income earner, she is legally obligated to pay child and/or spousal support if the circumstances permit. In addition, the same is true if a man is the high income earner. With regard to property division, under the law, all community property should be divided equally regardless of the sex of the parties. There is no differentiation between men and women with regard to support or property division in California divorce cases. Consideration of gender in making these determinations is an appealable offense.

Many of the stereotypes regarding favoritism towards women in custody and visitation cases stem from actual case law and statutes. In the past, it was permissible for courts to give preference to women in custody disputes. Today, it is improper for courts to make custody determinations on the basis of gender. Men and women are equal under the law with respect to the desirability of their role as parents. Often, the Court encourages children to spend time with both parents and to mend any broken relationships.

An overwhelming majority of domestic violence restraining orders are filed by women against men. However, that does not mean that a restraining order filed by a woman against a man is automatically granted and that men are disadvantaged. Statistically, women are more frequently the victims of domestic violence and men who are victims are less likely to report it than women. As a factual matter, most restraining orders are granted on a temporary basis until the matter is heard by the court and the accused is given the opportunity to present a defense. In San Diego, family court judges do not take the deprivation of a person’s liberty lightly and require evidence of domestic violence before they will grant a permanent restraining order.
Considering that men and women are on a level playing field under the law, it seems that catering towards “men’s rights” might be more of an advertising technique rather than a true skill set.
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