Articles Posted in Property Division

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You may remember our previous blog highlighting the celebrity divorce of Bethenny Frankel, founder of SkinnyGirl Cocktails, and Jason Hoppy. Well, their bitter divorce battle continues to grab entertainment headlines, which report that the soon to be ex-couple is actually still living together in their five million dollar New York City apartment with their 3-year old daughter, Bryn. As if a divorce isn’t already stressful enough, try living in the same household as your soon- to-be-ex while going through the often long, drawn-out divorce proceedings. Frankel tells PEOPLE, “My living situation is very, very stressful…I don’t think it’s very healthy for anyone involved. It’s very upsetting. You just have to endure it.”

It may seem puzzling why Frankel would continue to endure the stress of sharing an apartment with her soon-to-be-ex when she can clearly afford to move into her own place and not have to face Hoppy on a day-to-day basis. Perhaps her reasoning is related to two main concerns related to moving out of the marital home while the parties are going through the divorce process. The first concern is whether moving out of the home will affect a party’s claim to ownership when assets are being divided down the road. The second concern is whether moving out could adversely affect a party’s standing in his or her battle for primary custody of the child or children.

The martial home is likely a significant asset, if not the most significant asset in many divorces. So it’s reasonable that divorcing spouses would worry that “abandoning” the home would make it more difficult for the one who leaves to make a claim on the property in a divorce settlement. If both claim ownership of the home then would that ownership be jeopardized if one party moves out? As California divorce attorneys know, if the home was acquired during marriage then it remains a marital asset subject to distribution regardless of who remains in the home during the divorce process.

If money is not an issue, then many divorce attorneys often advise clients to physically separate when going through a divorce, which usually means moving out of the marital home. A little distance can often times do a world of good for parties who are going through the divorce process. However, when a party does decide to move out of the marital home, there needs to be some serious discussions about the status of the marital residence. Aspects that need to be addressed include: the care, maintenance and financial obligations regarding the home in the interim, items left in the home, and whether the party left in the martial home will have exclusive use and possession of the home. The parties and their divorce attorneys need to discuss the whether the spouse who remains in the home has an expectation of privacy or if the spouse who moved out will be entitled to some use or enjoyment of the home after moving out.

Another concern regarding moving out of the marital home is with respect to child custody. Since both Frankel and Hoppy want primary custody of their daughter Bryn, they might be concerned that moving out of their NYC apartment could adversely affect their standing in their battle for primary custody. Until a parenting plan is in place, “abandoning” the marital home could indicate that parent’s lack of interest in the child’s daily life if the child remains in the marital home with the other parent. This concern can potentially be resolved by establishing an interim custody schedule which ensures that the parent leaving the marital home will have frequent and continuous access to the child. The parent who moves out could also have his or her divorce attorney argue that the purpose of moving out was to reduce ongoing marital conflict out of concern for the child’s well-being throughout the divorce proceedings.

Nonetheless, many San Diego divorce attorneys will generally advise clients with custody disputes to just stay in the marital home together if possible, like Frankel and Hoppy are doing. First, it helps to avoid creating a potential new status quo regarding the “primary residential parent” where the divorce process is taking an extended period of time. And second, when the parties continue to live together under the same roof emotions tend to get heated. As a result, there may be more incentive to conclude the divorce quicker by negotiating a divorce settlement.

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In a divorce, personal property (such as furniture, furnishings, art, family photos, pets, and other general property) is treated no differently than the division of other assets. Parties to a divorce can spend a significant amount of money fighting over silverware and lamps by placing a dollar figure on each item and dealing with them as part of the general division of assets and debts. If there is a dispute over which furniture or furnishing each party wants, the personal property will usually be appraised and then the appraiser will make a list of all of the personal property and assign dollar values to everything. As divorce attorneys will advise their clients, at that point the judge will make a determination as to how everything will be divided.

Or, instead of litigating the division of personal property, a better (i.e. less expensive) way to deal with the division might just be for the parties to agree on who takes what piece of furniture/dishes/artwork, etc. There are several ways that divorce attorneys approach an equitable division of furniture and furnishings, including, but not limited to the following methods:

  • Alternate Pick Method – personal property is divided by alternating picks after the flip of a coin to determine which party to the divorce will pick first.
  • Alternate Pick Method by Room – together the parties itemize everything in each room and then the parties alternate picks for the contents of the entire room.
  • Sale and Split – sell everything and split the proceeds between the parties upon divorce.
  • List and Choose – One person prepares two lists placing everything to be split in the divorce on one list or the other; then the other person picks which list he or she wants.
  • Bidding – each person submits a sealed bid as to what they think the item is worth and then the person with the higher bid gets the item at that value (i.e. at a charge).
  • Appraisal – Hire an appraiser and then divide everything based on the appraiser’s values. This usually requires the use of one of the above ways to divide the property once it is valued.

Although there are a variety of methods of dividing household items in a divorce, family photos generally fall under their own category of division. Typically, the parties agree for family photos to be given to one party and the other party to have the option to make copies of all of the photos. Courts usually do not like to get into disputes over family photos since there is really no way to assign a financial value to original photos.
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A New York appeals court is making waves throughout the family law community as a result of its recent controversial ruling. Before Elizabeth Cioffi-Petrakis and Peter Petrakis got married, they entered into a premarital agreement, commonly known as a “prenup”. At trial, the court ruled that the premarital agreement was void. On appeal, the trial court’s decision was upheld. Many attorneys throughout the U.S. believe that this case may have enormous implications on every premarital agreement case in the future. Divorce attorneys are surprised that the premarital agreement was held void and by the court’s rationale.The basis for voiding the premarital agreement in the divorce proceeding was “fraud in the inducement.” Just four days before her wedding to Mr. Petrakis, Ms. Cioffi was presented with a prenup and an ultimatum. Although Ms. Cioffi’s parents had already spent $40,000 on the wedding, Mr. Petrakis told Ms. Cioffi that he would not marry her unless she signed the agreement. Moreover, Mr. Petrakis orally promised to tear up the agreement and put her name on title to their home as soon as the couple had children. In reliance on Mr. Petrakis’ oral assurances, Ms. Cioffi signed the prenup. Once the couple had children, Ms. Cioffi pushed Mr. Petrakis to follow through with their oral agreement and he refused.

Read more entries about premarital agreements

At the time Ms. Cioffi signed the prenup she was represented by an attorney and all other typical enforceability requirements were undisputedly met. The written agreement also contained a provision specifically stating that both parties were precluded from relying on all prior or contemporaneous oral agreements. Notwithstanding that provision, both courts ruled that the premarital agreement void by applying the contract principal of fraud.

In Del Mar and across California, if both parties are represented by counsel from the onset of negotiations, there is no required waiting period that must pass before the parties can sign an enforceable premarital agreement. However, if only one party is represented by counsel, the unrepresented party must consider the agreement for a minimum of seven days before signing it. As long as these and the additional statutory requirements are met, many family law attorneys feel that premarital agreements are extremely difficult to set aside.

Learn more about Del Mar divorce lawyer Nancy Bickford

In a 1938 California case, the court determined fraud is an appropriate basis for setting aside a post-marital agreement. It would seem that New York was not too far off the mark when it applied the generally accepted contract defense of fraud to family law. More and more, divorce lawyers are seeing the stricter standards applied to civil litigation at large are being applied in family courts.
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Divorce can have a devastating effect on both parties’ standard of living and finances.
We have previously blogged about the sacrifices divorcing spouses make when they cannot afford to support two separate households at the same standard of living they enjoyed during marriage.
However, in Del Mar, the “gray divorce trend” is resulting in another sacrifice divorcing couples make – retirement.

Read more about division of retirement in divorce

From 1990 to 2010, the number of divorces involving spouses over 50 years old “gray divorcés” doubled. Experts say that one of the causes for the increase in later-in-life divorces is longer life spans. Just like a divorce between spouses in their 20’s and 30’s will affect the current standard of living for both parties, a divorce past 50 will affect retirement lifestyles. If a couple divorces when the spouses are between 20 and 40 years old, there is plenty of time before retirement for both spouses to re-build any divided retirement funds. However, gray divorcés will experience the following financial roadblocks:

First, the accumulated retirement savings between the parties is usually divided in half upon divorce. When parties divorce, all property acquired during marriage is divided equally. Most, if not all, of a couple’s retirement fund is usually acquired during marriage. Thus, each spouse will only end up with one-half of what they planned on retiring on with his or her spouse.

Second, funding two separate retirements can cost between 30% and 50% more than funding one. Post divorce, the parties will take separate vacations, take twice as many trips to visit their children and grandchildren, use two separate cars instead of one, live in two separate houses, etc. In addition, if one former spouse becomes ill, the other will not be there to care for him or her. Therefore, post divorce, a spouse may have to use significant retirement funds to pay for medical care.

Read some frequently asked questions about divorce in Del Mar

Financial planners have a few suggestions to help gray divorcés get through divorce and retirement past 50. They suggest hiring a financial adviser simultaneously with hiring a divorce lawyer. Additionally, they advise against supporting adult children when it is not feasible. Often around the age of 50, a gray divorcé will have a child who is getting married and expecting them to shell out $30,000 for a wedding. These types of purchases are not advisable. Finally, financial advisers suggest reducing spending by living in a smaller home, traveling less and eating out less.
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For many Del Mar families, real estate is their most valuable asset. Because the prices of the average family home are so high, many families must invest significant funds into real estate just to live in the area.

However, upon divorce, all community property must be divided equally by the court.

If the parties have no other assets as valuable as the family home, it must be sold and the proceeds divided.

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Valentine’s Day is a romantic time in Del Mar and throughout San Diego County. The romance of this holiday can sometimes stir up old feelings between divorcing spouses. It is not uncommon for spouses going through a Del Mar divorce to send each other gifts on Valentine’s Day or even to spend the day together. However, it is important to consider the legal ramifications of these acts especially with regard to the date of separation. On the other hand, newly separated spouses may be spending Valentine’s Day with a new significant other for the first time in a while. Before substantial gifts are given to a new love interest or money is spent on a lavish trip, it is important to also consider how these acts may impact your divorce proceeding in Del Mar.

The date of separation is an important consideration in many divorces. The marital estate is the property divided upon divorce. Property can only be accumulated in the martial estate between the date of marriage and the date of separation. Thus, once spouses decide to end their marriage, they stop accumulating any community assets. In order for a separation to occur, the spouses must physically separate (live apart) with the simultaneous intent never to resume the marital relationship. As Del Mar divorce attorneys understand, only one spouse is necessary to establish the requisite intent to end the marriage.

Read more about date of separation from Del Mar divorce lawyer Nancy Bickford

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As we have previously blogged, Ashton Kutcher and Demi Moore separated nearly a year ago. However, neither party had filed for divorce, until now. Early on the parties claimed to be working out all of the details of their marital settlement before involving the court system in their divorce. Despite their year-long attempt at an amicable resolution, Kutcher filed for divorce shortly before Christmas. Media outlets speculate that Kutcher’s new girlfriend, Mila Kunis, may have pressured him to file. This is based on the theory that Kutcher intended to give Moore time to heal from the couple’s traumatic split and that Kunis could no longer handle letting Moore still have that much control. Besides the emotional implications involved, there are a few legal ramifications of filing for divorce that might have appealed to Kutcher and prompted him to finally take this step.

In California there is a mandatory six-month waiting period between when a spouse files for divorce and when the court has the ability to terminate his or her marital status. This means that if Kutcher intends to re-marry within the next year or so, filing a Petition for Dissolution of Marriage six months prior to that date would be necessary. Even if Kutcher and Moore agreed upon a final settlement of their estate and submitted their agreement to the court, they would still remain legally married until the six month waiting period had passed.

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Another Housewife is getting divorced. Bethenny Frankel, creator of the Skinnygirl franchise, is divorcing her Husband Jason Hoppy after only two years of marriage. For months Frankel has been fighting rumors that the couple is splitting but she has finally confirmed that a divorce is on the horizon. Frankel released the following statement regarding the divorce, “It brings me great sadness to say that Jason and I are separating. This was an extremely difficult decision that as a woman and a mother, I have to accept as the best choice for our family.”In 2008, Frankel agreed to join the cast of Bravo’s The Real Housewives of New York. At that time, only four short years ago, Frankel had a “mere” $8,000 in her bank account. To Frankel, The Real Housewives was an opportunity for her to build her own brand and advertise her Skinnygirl line of alcoholic beverages. It seems as if her plan worked because currently Skinnygirl is the number one fastest growing spirit in the United States. In addition, Frankel is now also a best selling author with her own skin, clothing and health products. Further, Frankel received a $40,000 check for each episode of her reality show. Considering the size and diversification of Frankel’s fortune, the first question surrounding her divorce is whether she will have to split everything with her husband. Because the Frankel and Hoppy signed an enforceable premarital agreement, all of Frankel’s empire should be safe from division.

Learn more about the divorce process in San Diego

A premarital agreement is an important tool that can be used to protect assets of ambitious entrepreneurs. As a default rule, under California community property laws, any earnings or accumulations of a spouse during marriage is community property. Thus, one of the main functions of a premarital agreement is to alter that default rule and order that any earnings or accumulations of a spouse during marriage remain that spouse’s separate property.

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The divorce proceedings between reality star Kim Kardashian and athlete Kris Humphries have by far exceed the length of the couple’s 72-day marriage. Recently, Kardashian’s new boyfriend, rapper Kanye West, was deposed by Kris Humphries’ lawyers. During a deposition, the deponent must answer a series of questions while under oath. This means that any lie told during a deposition may constitute perjury. Humphries’ deposition of West may have been an attempt to invalidate his premarital agreement. Many speculate that the premarital agreement contained an infidelity clause and that Humphries is attempting to show Kardashian violated it by starting a relationship with West before the date of separation.

In response, Kardashian’s lawyers argue that Humphries’ postponed arguments to invalidate the straightforward premarital agreement is simply a delay tactic to draw out the divorce proceeding. Despite Humphries’ alleged attempts to extend his litigation with Kardashian, the judge assigned to the case has set a trial date. The former couple will appear on February 15, 2013 and argue their case before the court. As long as the trial date is not pushed further back by Humphries’ legal team, Kim Kardashian should finally get a resolution to her second marriage.Common Family Law Terms Learn more about family law

Depositions are a common form of discovery in family law proceedings. Discovery is the process in which the parties can formally ask each other for documents and information in order to gather all relevant facts in the case. Although expensive, depositions can provide attorneys an opportunity to ask the parties and/or other witnesses for the information needed to proceed to trial or to negotiate settlement. Other forms of discovery such as special interrogatories are available to ask parties questions under oath. However, special interrogatories can be less effective than deposing a party because the lawyer is only permitted to ask follow-up questions after receiving a response. This question and answer process can continue for months because each party is entitled to 30 days to respond to interrogatories.

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After eight years of marriage to the famous actor, Dennis Quaid’s wife, Kimberly Buffington, recently filed for legal separation. In March of 2012 Buffington filed a petition for dissolution of marriage citing “discord or conflict of personalities” as the reason for the split. However, just three months after she filed, Buffington withdrew her divorce petition. The couple seemed to be working on their relationship when they celebrated their eight-year anniversary in Bora Bora. In her petition for legal separation Buffington requested joint legal and physical custody of the couple’s twins. Additionally, Buffington asked the court to award her spousal support and order Quaid to contribute toward her attorney fees and court costs.

Quaid and Buffington recently moved to California from Texas. Although Buffington filed for legal separation, she reportedly intends to file for a full divorce once the six-month waiting period has expired. In California, only parties who have resided in the state for a minimum of six months may file for divorce in California family courts. Deciding to file for legal separation or divorce is an important decision. If a party files for legal separation, the court has the ability to make custody and visitation, support, and property division orders. Unlike in divorce proceedings, there is no requisite waiting period to obtain a legal separation.

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