Articles Posted in San Diego

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As we have previously blogged, the majority of couples going through a divorce experience extreme change in their financial situation as they begin untangling one household and establishing two. It seems a little counterintuitive to think that as our economy improves and the average San Diego resident can live a little more comfortably, that more and more people are getting divorced. However, couples have more economic stability today which tends to lessen the financial impact of divorce. Although more money doesn’t necessarily lead to unhappy marriages, it does make divorce more practical and affordable for those who would like to end their marriages. During our recent recession many people chose to stay together because their houses were underwater or one or both spouses were unemployed.

Prior to the recession, typically the most valuable asset owned by divorcing couples was the martial residence. At divorce, the parties usually sold their home and began new lives with the net proceeds. During the recession, couples were unable to sell their homes and realize profits because many San Diego homes were underwater. Therefore, in the face of financial ruin and without any reasonable way to live two separate lives, parties remained married. In the past year, home prices have skyrocketed throughout San Diego. In addition, interest rates have been at a (near) historical low which would enable parties to purchase a smaller home with a manageable monthly payment using the proceeds from the sale of the marital residence. Afraid that the value of their home could plummet again, many couples filed for divorce.

In addition to having assets to divide, an improving economy also means that more people are employed (or have a reasonable expectation of being able to return to work) as they consider divorce. If both parties are able to work or one party is able to earn a higher income, they may be able to maintain two separate households once support is ordered. When jobs were harder to come by and many people were laid off after years of steady employment, numerous California residents struggled to support their family living in one household. For any family, there is only a finite amount of income to apportion for support and living expenses of the supporting spouse. When spouses are struggling to maintain one household, separating into two may not be an option.

Further, one or both parties may have more funds available to retain an attorney in an improving economy. Without the requisite legal knowledge required to navigate the divorce process in California, it is difficult for parties to proceed with a divorce. During the recession, many people could not afford to hire an experienced family law attorney to represent them and protect their interests. Therefore, rather than risk being steamrolled or reaching unfavorable agreements, many spouses decided to avoid divorce altogether.
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Just because you’re in the process of ending your marriage through divorce doesn’t mean that it’s the end of all hope for future love, romance or even another marriage in the future. However, while you might be eager to move on with your love life by jumping back into the dating scene, there are a few reasons why you might want to take a step back and put dating on hold until after your divorce is finalized.

  1. Both dating and going through a divorce require a lot of time and attention.

    Going through a divorce can be extremely time-consuming, exhaustive and emotionally draining. This is especially true when the divorce is contested and there are children involved or there are complex, high-valued assets at issue. Jumping into a new relationship might not be the best move as you will need to devote a significant amount of time, energy and resources into finalizing your divorce. Also, if you want your new relationship to be successful then it is advised that you enter into it when you are emotionally, psychologically and financially stable. Otherwise, your new relationship might head down the same path as your marriage did.

  2. Dating could result in issues related to child custody.

    If you are going through a divorce and there are minor children involved then dating can cause several issues that might affect custody and parenting arrangements. First of all, divorce is not only difficult on the spouses involved but also on the children. By bringing a new boyfriend or girlfriend into the children’s lives too soon might cause emotions of resentment and confusion to surface as the children have likely not had an adequate amount of time to adjust to and grasp all of the changes the come along with a divorce. Adding another person to the mix is just another change that is not in the best interests of your children.

    Also, keep in mind that custody arrangements might also be affected if your new boyfriend or girlfriend has a bad (i.e. criminal) past. Legal fees will likely skyrocket if the focus of the divorce becomes about the new significant other, rather than just the two spouses.

  3. Infuriating your ex-spouse is not the best idea during a divorce.

    If you begin dating while going through a divorce and your soon-to-be ex-spouse finds out, then he/she might react in a not so pleasant manner, to say the least. Inciting emotions of anger and jealousy will only lead to a more complex divorce as your spouse will be less likely to want to settle with you and the divorce will have less of chance of being as amicable as you had hoped. Finding someone new while ending the relationship with your current spouse will only add fuel to the fire in a contested divorce.

When it comes to dating while going through a divorce, it’s important to take a step back and look at the reasons why it might be in your best interest to wait until the divorce is officially over before seeking someone new. Even though you might feel lonely during a divorce and feel a longing to fill an empty space, remember that a divorce is only a bump in the road and that you have plenty of time afterward the divorce is final to begin moving on with your life. Focusing on resolving your divorce, rather than putting your time and energy into dating right away, will likely result in a quicker divorce with hopefully less emotional exhaustion.
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California child custody laws have most certainly evolved during our history as a state. Historically, it appeared that mothers were favored in court to get custody of the parties’ children just because they were female. Mothers were pretty much guaranteed to get custody of the children, while even the best fathers were only given a limited visitation schedule while the children. Perhaps this was because traditionally mothers were viewed to be the more nurturing of the two parents; they were viewed as the parent who does everything in their power to make sure the children are taken care of properly and grow up right.

Despite popular belief, such favoring of mothers in child custody arrangements is not the case today. In this modern day in age, most states’ laws actually prevent the courts from considering a party’s gender when making a ruling on child custody. In San Diego, courts grant equal rights to both mothers and fathers in child custody cases. California Family Code Section 3040 specifically states that “custody should be granted… according to the best interest of the child…and shall not prefer a parent as custodian because of that parent’s sex.” Moreover, it is the public policy of California to ensure that children have frequent and continuing contact with both the mother and father.

Read more about child custody and visitation modification

The legal standard of “the best interests of the children” requires a court to take various factors into consideration, not including gender, when making a decision regarding the care and custody of the parties’ children. The Family Code sets forth various factors that a court will consider, including but not limited to, the following:

  • Any history of abuse or neglect by either parent;
  • The habitual or continual illegal use of controlled substances;
  • The habitual or continual abuse of alcohol or prescribed controlled substances by either parent;
  • The overall health, safety and welfare of the child;
  • The requests of the parents;
  • The requests of the child if the child is of sufficient age and capacity to form an intelligent preference as to custody or visitation (Family Code 3042);

Thus, the main concern of any San Diego family law court is what custody and visitation arrangement is going to be consistent with the children’s best interests. A parties’ sex, therefore, will not determine who gets priority for being awarded the care and custody of the children involved.
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When people think of “divorce”, they don’t often associate it with the term “amicable”, which means to be “characterized by friendly good will” or “peaceable” (definition courtesy of Merriam-Webster). Thus, “amicable divorce” may seem like quite an oxymoron. However, it is often advantageous to everyone involved if the divorce can be achieved and in a somewhat amicable fashion.

There are several things that both parties can do to overcome the major pitfalls to an amicable divorce, three of which are discussed below. In doing so, both parties are more likely to avoid the high cost, painful feelings, and adversarial aspects that are part of a litigated divorce.Often times, divorcing spouses see the divorce process as a means for revenge and thus an instrument to hurt the other spouse. However, the problem with this approach is that it usually causes the other side to respond in the same manner, thus escalating everyone’s emotions involved. The “blame game” for instance tends to increase tension and prolong the divorce process. Although it is important to recognize that feeling exists, an amicable divorce is more likely achieved when both parties attempt to minimize the role that emotions play in a divorce. Divorce attorneys frequently must advise their clients with respect to this issue.A divorce is essentially about business. Thus, an amicable divorce is best achieved when both parties can openly discuss the terms of the “business”. Communication requires open disclosure regarding assets and liabilities. The more open the parties are with each other, the less likely the attorneys are to be required to seek information through the “discovery process“. The best divorce attorneys regularly work with their clients to facilitate communication between the parties.Efforts to minimize emotions and maximize communication both begin with the delivery of the divorce papers. In a proceeding for dissolution of marriage or legal separation, the moving party must, among other requirements, serve the responding party with a Summons and a Petition for Dissolution. Being served with these papers often incites a tremendous amount of fear, anger and confusion. Thus, it is advisable that the person filing for divorce consider discussing the divorce with his/her spouse prior to actually filing the documents. This will likely minimize the “initial blow” associated with being served with divorce documents.

Implementing the above strategies does not mean that you always have to give up on important issues. Rather, it means that you and your soon to be ex-spouse are willing to work things out in a fair and cooperative manner so that you both end up with an agreement that works for everyone. Despite efforts to achieve an amicable divorce, the divorce process can be quite complicated, especially in San Diego.
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San Diego Family Courts can be intimidating for those unfamiliar with appearing before a judge. Whether appearing with a divorce attorney or in “pro per” (an unrepresented party), it is important for family law litigants to be familiar with the “dos” and “don’ts” of San Diego Family Courts. The following is a few tips on how to earn favor with local family law judges when appearing before them.

1. Be Respectful

The most important thing to remember when appearing in court is to be respectful to every individual you encounter, including the opposing party and/or attorney. Judges in a divorce proceeding are not referees and do not want to witness parties arguing or fighting with each other in open court. Therefore, it is imperative to act with civility in the courtroom by giving every person a chance to tell his/her story without interruption or argument.

Another way to respect the court and legal process is to avoid the use of cell phones and other electronic devices in the courtroom. Judges say that cell phones on vibrate are just as distracting as a cell phone ringing. So it is best to put your cell phone on silent, or better yet, turn it completely off when entering the courtroom. Further, texting in court is not advisable.

2. What to Wear and What Not to Wear

Wearing the appropriate clothing to court does not go unnoticed by the local family judges. When appearing in court, it is not necessary to wear a full suit or dress outside of your comfort zone. However, judges appreciate when parties are not distracting with their clothing and they dress modestly. Dressing conservatively is also another way to show respect to the court.

3. Facial Expressions, Commentary and Body Language

In San Diego Family Law courtrooms, the judges sit at a particularly advantageous vantage point and can see everyone’s behavior at all times. Judges are always watching the litigants, the attorneys, and even all of the people sitting in the audience. According to family law judges, it is incredibly distracting if any person makes facial expressions, nods, shakes his/her head, raises his/her hand, and otherwise takes attention from the proceeding. Remaining still and attentive in a family law hearing may be easier said than done. It is often difficult for parties to remain calm if the opposing attorney or litigant is telling the judge information the party does not want public or does not believe to be accurate. However, in such circumstances, waiting patiently for your turn is greatly appreciated by the judge.

In all situations local family law attorneys should lead by example and demonstrate civil and appropriate behavior for litigants in court. If you have a question regarding courtroom decorum, please ask an experienced family law attorney.

Learn more about the divorce attorneys at Bickford Blado & Botros
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Often when non-lawyers imagine going to court they picture themselves being represented by a knowledgeable and experienced attorney. The courtroom and legal system can be intimidating to those unfamiliar with the process because of the immense amount of specific procedures and rules that must be followed. However, despite their inexperience in the legal field, many California spouses are self-represented in their divorce. When a party to a divorce action is not represented by an attorney he or she will be considered “pro per”.

San Diego spouses decide not to retain attorneys in divorce actions for a variety of reasons. One of the most prevalent reasons is the cost. Family law attorneys in San Diego typically charge between $175.00 and $450.00 per hour depending on the experience level of the attorney. Depending on the particular case and the work involved, a spouse’s attorney fee bill can potentially cost tens of thousands of dollars. In order to avoid that cost, many litigants utilize free legal resources available throughout the San Diego community. Unlike in criminal law, family law parties are not entitled to representation. Therefore, there is no “public defender” equivalent in the family law system.

Learn more about jurisdiction and divorce in California

In order to reduce the cost of getting divorced, if the parties are splitting amicably, some divorcing couples will elect to have one spouse hire an attorney to handle all of the formalities. In this type of case, only one of the spouses is represented by the divorce attorney. The attorney will only owe professional duties to their client, not the other spouse. If the parties are in agreement regarding all issues, the attorney can prepare all of the paperwork for an uncontested divorce while the spouses only incurs one set of legal fees.

Another alternative often utilized by San Diego family law litigants is limited scope representation. Spouses can retain an attorney to review work they have done alone on their case. Additionally, parties can hire an attorney to represent them in an important hearing or for one or two issues in the case. If you cannot afford full representation and are worried about the custody and visitation or property issues in your divorce, you may be able to find a divorce attorney willing to handle those limited issues.

Read more about limited scope issues in divorce

Despite the cost of legal representation, it is important to consider what is at stake in a family law case and whether it is worth the risk of self-representation. The consequences of making a mistake in a family law proceeding can be devastating and may persist long-term. Also, it may be prudent to consider the time and effort that is often required in a family law case and whether you will have the ability to miss days of work for court hearings and devote hours to preparation. If you are unsure about whether you want to handle your divorce alone, contact a San Diego family law attorney for a consultation to find out more information.

www.BickfordLaw.com


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In a San Diego divorce, a party’s date of separation is the first date when either party subjectively (mentally) decided the marriage was over, finished, and not salvageable. The parties’ overt actions usually demonstrate that subjective frame of mind. For instance, there can’t be ongoing marriage counseling to save the marriage after the date of separation. The date of separation of the parties to a divorce can be a hotly contested issue. Sometimes, when parties do not agree on the date that they separated, the court must step in to help.

In fact, it is quite common for divorcing spouses to disagree about when their date of separation is. These disagreements are usually financially motivated since California is a community property state. This means that in California, community property rights only accrue from the date of marriage until the date of separation. Thus, the date of separation can significantly affect the size of the divisible community estate during a divorce. Some legal, financial, and other practical considerations for the parties to keep in mind when considering divorce and arriving at a date of separation (by way of agreement or decided by the Court) include the following:

  • Stock options: Divorce attorneys will advise their clients that a later date of separation will usually give the community more interest in a stock option.
  • Post-separation bonuses: A later date of separation will give the community a greater interest in a post-separation bonus upon divorce.
  • Pensions: A later date of separation in a divorce will give the community more interest in a pension.
  • Spousal support: A later date of separation from your spouse may provide for more spousal support. The duration of the marriage is one of the twelve factors a California court will weigh in determining the amount and duration of permanent spousal support.
  • Value of a business: A later date of separation in a San Diego divorce will value a sole practitioner’s business at a later date.
  • Pereira or Van Kamp considerations: If the separate property business was brought into the marriage, the community’s interest would stop growing at the date of separation.

The implications of the date of separation in a divorce can be quite significant. With the above considerations in mind, if for example Husband is the primary breadwinner and Wife is a stay-at-home mom, Wife may want to establish a later date of separation in order to maximize the community estate. Husband, on the other hand, may want to establish an earlier date of separation for the divorce so that his income, bonuses, commissions, etc. earned after the date of separation will be characterized as his separate property instead of community property. Clearly, selecting the date of separation can be a complicated matter that may require the advice of an experienced divorce attorney.

www.BickfordLaw.com


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Spousal support is an issue commonly litigated in a divorce in San Diego. Carol Abar filed for divorce after sixteen years of marriage, when she learned that her husband had sexually assaulted her daughter. In a hearing on spousal support (commonly referred to as alimony in San Diego), a California family court ordered Ms. Abar to pay $1,300 per month in support to her daughter’s abuser. Although Ms. Abar presented evidence to the court that her husband molested her daughter for years, the court determined that an award of spousal support was appropriate in the divorce case based on the parties’ relative income.

In 2012, Ms. Abar’s ex-husband, Ed Abar, plead guilty to the rape of her daughter and was sentenced to approximately one year in jail. At that time, Ms. Abar had paid about $22,000 in spousal support. While Mr. Abar served his sentence, the family court temporarily stopped payment of support. Recently, Mr. Abar was released and is now requesting $33,000 in arrears. Mr. Abar is also requesting the court to order Ms. Abar to resume support payments.

Learn more about divorce and family support

It is clear that such a spousal support award is an outrageous miscarriage of justice. In order to tighten the gaps in the California Family Code which may allow perpetrators of domestic violence to collect spousal support, Governor Jerry Brown signed more stringent legislation last year. As divorce attorneys in San Diego are aware, if at the end of a case either party has requested spousal support, the court will weigh 14 factors which are listed in Family Code §4320. Upon consideration of these factors, the court will determine how much spousal support to award in a divorce case, if any. Family Court judges were always required to consider documented history of domestic violence between the parties to the divorce, and were also required to consider criminal conviction of an abusive spouse in making a decision. However, the new legislation added a different twist to those old provisions.

Newly enacted Family Code §4324.5 states that “in any dissolution of marriage where there is a criminal conviction for a violent sexual felony…an award of spousal support to the convicted spouse from the injured spouse is prohibited”. This code section applies as long as the divorce is filed within 5 years of the conviction, time served, end of probation or end of parole. Now, a San Diego family court judge will have no discretion to make an award of spousal support in a divorce matter where the supporting spouse was a victim of a violent sexual felony perpetrated by his or her spouse.

Read more about spousal support from the divorce attorneys at the firm

Despite this added layer of protection for spouses, currently there is no family code provision preventing child abusers from receiving spousal support. The family code has evolved since the first support order was made in the Abar divorce case, but it seems that it will not be able to offer Ms. Abar any relief from her obligation to support her ex-husband.

www.BickfordLaw.com


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In San Diego, once parties decide to file for divorce, it is not uncommon for them to be in a rush to just “get it over with”. However, rushing through the divorce process is easier said than done.

One of the most important factors in determining the length of the divorce process is whether the parties and their attorneys decide to take the litigation path, the mediation path, or a combination of both.

The Litigation Path

If the parties and their attorneys determine that they are unable to work cooperatively with the other side and that court intervention is necessary, they must follow the litigation process outlined below. A highly litigated divorce typically proceeds as follows:

Petition
If a Petition has not already been filed, one party must file a Petition and Summons and formally serve these documents on the other side. This process is commonly referred to by San Diego family attorneys as “filing for divorce“. The party who filed the Petition is known as the “Petitioner” and the other party is known as the “Respondent”.

Response
The Respondent must then file a “Response” to the Petition within 30 days of service. Both parties will then begin completing their Preliminary Declarations of Disclosure which includes a Schedule of Assets and Debts and an Income and Expense Declaration. Within these documents, the parties will explain their income and their monthly expenses in addition to identifying all community property assets and obligations.

Motions
Next, the parties can file various motions requesting relief such as temporary child or spousal support, temporary child custody and visitation orders and attorney fees. The timeline for all motions to be heard ranges from an average of 30 days to a year depending on the number of motions, complexity of issues and requests for continuances. If custody and visitation is a disputed issue in the case, the parties must attend Family Court Services mediation or another private mediation.

Discovery
The parties may conduct discovery to find out more information regarding disputed issues. If spousal support is disputed, the parties may investigate issues such as income and assets. If any disputes arise during the discovery process, the parties may file Motions to Compel with the Court to enforce their rights. Should the parties have complex assets or income which is difficult to ascertain, one or both parties may elect to hire experts to weigh in on these issues.

Mandatory Settlement Conference
In San Diego, before the case proceeds to trial, the parties must attend a Mandatory Settlement Conference. This is a meeting between all parties, attorneys, and an independent experienced local family law attorney. If the parties do not reach an agreement, the case may proceed to trial. At trial, both parties present their side of the story with regard to disputed issues. The judge will make a ruling and determine the outcome of all disputed issues.

It is evident from the above timeline that a litigated divorce takes a significant amount of time, money and effort. Even with the assistance of counsel, many divorcing spouses who litigate a large amount of issues call their divorce a “full time job”. In our next blog post, the divorce attorneys at the firm will post about “The Mediation Path”. Stay tuned!

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Sharing Custody of Children During Religious Holidays

As previously blogged about in “Part I: Religion and Child Custody,” a common issue in divorce revolves around which religion a child will follow after parents separate. Another common issue recognized by divorce attorneys is how to fairly share custody of children during religious holidays. The recent passing of the Easter holiday likely posed a special concern for divorcing parents with children. In our previous post, we discussed parents with sole legal custody.

Read more about custody and divorce in Del MarJoint legal custody presents divorce attorneys with unique issues. If both parents share joint legal custody, and one parent objects to the other parent’s decisions regarding the child’s religion, a judge will have to determine whether the child can be raised as a Catholic, Buddhist, Jewish, etc. The courts will generally first consider the religion that the child was raised in while the parents were still married and order that the child continue to be raised in that same religion.

Since the right to raise a child as the parent sees fit and the right to freedom of religion are both protected by the Constitution, courts must be careful not to infringe on these constitutional rights while still protecting the best interests of the child.

Joint physical custody means that both parents share in the right to spend time with the child or children. Despite custody agreements, problems always seem to arise with regards to holidays, especially when each parent has his/her own religious beliefs and traditions. Holidays like Mother’s Day and Father’s Day are usually easy to compromise, because they have alternative days to give each parent equivalent time. However, the same cannot be said for religious holidays such as Easter. Easter does not have an alternative celebration date. Divorce lawyers must consider their client’s faiths when providing legal advice.

In order to deal with this problem, many divorce attorneys will advise their clients to agree to alternate custody between holidays each year, such as Easter and Thanksgiving. However, for some parents who are particularly religious or have long-lived family traditions, they do not consider the Easter holiday to be equivalent to the Thanksgiving holiday. Thus, shared custody on holidays needs to be determined well ahead of time and with the children’s best interests in mind.

Children With Parents of Different Faiths

Another problem arises where divorcing parents are of differing faiths. For example, where one parent is Christian and the other is Jewish, the Easter and Passover holidays usually pose a concern regarding child custody because the holidays often fall near each other on a calendar. Sometime these two holidays will even occur on the very same day. Therefore, it is extremely important that these situations are discussed early on, and that divorce lawyers draft custody agreements that spell-out exactly what will happen with regards to custody to the greatest extent possible.

www.BickfordLaw.com
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