Nancy J. Bickford

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Family law is such an emotional and unpredictable area of law. Because of the various personal, economical, and emotional factors that are involved in divorce cases, it is difficult to pin down the “right” path for each family. If a divorce case proceeds to trial and a judge ultimately decides the outcome of a case, there is a clear “right” and “wrong” analysis for the issues before the court. It is a judge’s job to hear all of the facts and evidence presented and then to apply the law as directed by the family code and case law precedent. But what if the parties want to reach an agreement for an outcome that would not be obtained in court? Is it “wrong” for the parties to enter into agreements that are outside the scope of potential outcomes in the courtroom?

Many California divorce lawyers use what a court might do in a particular case as the measuring stick for settlement negotiations. Some attorneys highly discourage their clients from entering into agreements which are outside of the norm. However, courts will apply the family code and case law which only amount to “default” rules. Just as if the parties’ entered into a premarital agreement (commonly referred to as a “prenup”), divorcing parties can decide to avoid the default rules and opt for a different agreement. At Andrew J. Botros, APC, we encourage our clients to come up with creative solutions to their divorce case in order to avoid trial.The default code sections and case law are not for everyone. It is impossible to structure a “one size fits all” solution for divorces. Sometimes parties do not believe that the law applied to their case generates a “fair” outcome. For example, the parties may think it is fair to divide their assets equally after a long term marriage without consideration for separate property rights of reimbursement. However, although settlement is encouraged by both attorneys and judges, it is important to ensure both parties are adequately informed regarding their legal rights before they sign off on any agreement.

In order to appropriately weigh the costs and benefits of settlement versus litigation, both parties should sit down with their respective attorneys and discuss their legal rights and likely outcomes at trial. Both parties should also carefully consider the potential emotional and financial cost of litigation.
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At some point during your divorce you will inevitably be feeling emotionally drained. You may feel like the only person in the world going through your type of situation or you may wonder if there is hope for you to someday remarry again. Here are some fun facts regarding world record holders for marriage and divorce to help lighten your mood for those difficult times during a divorce.

According to the Guinness Book of World Records:

Highest Divorce Rate:
The Maldives is the country with the highest divorce rate in the world. The Maldives has 10.97 divorces per 1,000 inhabitants per year. The Unites States is third in line, with 4.34 divorces per 1,000 inhabitants. So even when you feel like the only one going through a difficult time, think of all the other people going through a divorce right alongside you!

Hollywood Stars to Marry the Most Amount of Times:
We are constantly hearing the latest gossip about celebrity marriage and divorces. Well, Lana Turner, Mickey Rooney, Zsa Zsa Gabor, Elizabeth Taylor and Georgia Holt, have surely had plenty of attention as they have each been married eight times. So even if you’re going through your second or third divorce, just remember that some people have gone through seven divorces!Oldest Person to Get Divorced:
Harry Bidwell of the United Kingdom is the oldest known divorcee. He divorced his 65 year old wife on November 21, 1980 at the age of 101. Just imagine trying to handle all of the divorce paperwork at age 101, seems a bit daunting. Bidwell is proof that you’re never too old to get divorced.

Oldest Couple to Get Married:
In February 2002, Francois Fernandez and Madeleine Francineau exchanged marriage vows in France at the age of 96 years 290 days and 94 years 201 days, respectively. Even if your dating life seems bleak during or after a divorce, remember that there is still hope of finding a mate as you get older.

Most Marriage Vow Renewals by the Same Couple:
Apparently one wedding wasn’t enough for US couple Lauren Lubeck Blair and David E. Hough Blair, who as of November 2011 have renewed their marriage vows 101 times since they first got married in 1984. Additionally, all of those wedding ceremonies have been in separate locations. Oddly enough, the first time that David proposed Lauren said no!

Couple to be Married the Longest:
If you’re thinking about getting married again after your divorce maybe you should get some advice from Herbert Fisher and Zelmyra Fisher who, as of February 2011, were married for over 86 years.
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As one would expect, going through a divorce is typically a time of emotional upheaval and chaos. You will likely be required to spend a significant amount of time preparing legal paperwork, attending court hearings, going to your attorney’s office and dealing with the day-to-day drama that comes with a divorce. Your life might seem like one chaotic mess as a result of having to suddenly move out of your residence or divide up your belongings. And the time that you get with your children, well you surely won’t want to sacrifice a minute of that to focus on work instead. So with all of this going on during a divorce, how can you properly manage your career and avoid losing your job??Keep Your Professional Reputation Intact
If you are going through a very tumultuous and heated divorce, your soon to be ex-spouse may be inclined to attempt to ruin your reputation in the workplace. He/She may feel the need to reach out to your boss or your coworkers and make disparaging remarks about you. To avoid the potential aftermath of this, it would behoove you to take preventative steps and pull your boss aside for a private meeting to let him/her know that you are going through a divorce but that it will in no way, shape or form affect your work ethic. Although it’s really none of your boss’s business perhaps giving him/her a heads up that your spouse is not in a good place emotionally, will prepare your boss in case a phone call or email comes his/her way from your spouse.

Another way of keeping your professional reputation intact is to not allow your performance to slip. Although your mind might be focused on the divorce, try to keep your attention on the job during working hours. One motivator to keep your performance at its peak is the potential that you will be paying spousal and/or child support to your ex-spouse. It is likely a critical time for you to be sure that you have a continuous stream of income.Save Your Vacation and Sick Days
During the divorce, you might need to take partial or whole days off to attend court hearings, meet with your attorney, attend mediation, pick your children up from school, etc. You are probably limited on the number of paid vacation and sick days that you are allowed to take from work so do your best to save those while going through a divorce. Having to take an unpaid day off or jeopardizing your career is just added stress that you will want to avoid during a divorce.

Separate Work and Family
Although easier said than done, you should focus on separating your work and family life as much as possible. Working on divorce papers or taking phone calls from your soon to be ex-spouse while at work will only serve to distract you from getting your job done. Also, keeping your personal life to yourself will help avoid unnecessary gossip around the office. It’s also important to leave your work at work when you come home. Your custody arrangement might not provide you with as much time with your children as you would like, so every moment you spend with them should be cherished and not distracted by work. If you don’t have children, then your alone time is still critical to allow you the time to cope with your divorce emotions or perhaps meet new people.
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The practice of divorce law can be a complicated process; however, family law can be boiled down to the following basic areas: property division; child custody and visitation, support, credits and reimbursements, and attorney fees and costs.

Property Division
In every divorce case the parties must characterize and divide all of the property they own. Absent a different agreement by the parties, all property acquired during marriage by either party is community property and should be divided equally. All property acquired prior to marriage or post-separation is the separate property of the acquiring party. In addition, all property acquired at any time by gift, devise, or bequest is the separate property by the acquiring party. These basic principles are the guidelines for division of property in a divorce case.

Child Custody and Visitation
If divorcing parties share minor children, they must reach an agreement (or receive an order from the court) regarding legal and physical custody of their children. Legal custody is the right to make decisions regarding the health, wellbeing, and education of a child. In most divorces, the parties agree to share legal custody. Physical custody is the determination of how the parties will share time with the child. Disputes over visitation and timeshare have the potential to drag a divorce case out for years. If the parties keep in mind that the gold standard for custody and visitation is the “best interests of the child” they should be able to resolve custody disputes amicably.

SupportIn all divorce cases the parties must address the issue of spousal support in order to determine whether it is appropriate under the circumstances. If the parties have minor children they also must consider whether child support is appropriate. As a basic starting point, the parties or their counsel can use the DissoMaster program which provides guideline child and spousal support amounts based on both parties’ income, tax status, and other guideline deductions. Although the law regarding child support is different than spousal support, guideline amounts are a great starting point for discussion.

Credits and Reimbursements
Separating one household’s finances into two can be a complicated process. Post-separation, both parties typically pay for expenses incurred by or for the benefit the other. In addition, one party may also have exclusive use and possession of a community asset such as the marital residence. Depending on the case, the parties may want to create an accounting of their requests for reimbursements and/or credits. These requests are within the court’s discretion and the parties do not often get a dollar for dollar reimbursement for each joint expense paid post-separation. Further, credits and reimbursements are often offset against support that was not paid during the beginning of the divorce process.

Attorney Fees and Costs
If either party is represented by counsel in the divorce process, the parties must determine how responsibility for attorney fees and costs must be allocated. If the parties cannot resolve this issue by agreement, the Court will determine the proper allocation of attorney fees and costs.
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Looks like the second go around didn’t work out for former Baywatch star, Pamela Anderson, and husband Rick Salomon. The couple married for the first time in 2007 and were together only a couple of months before getting an annulment. Then this past October Pamela revealed that she was seeing her ex-husband again. By January 2014 the couple was married again. However a mere six months later their married has fizzled yet again and they have filed for divorce based on “irreconcilable differences.”

Anderson and Salomon aren’t the first couple to marry each other twice and file for divorce twice. In fact, this situation isn’t all too uncommon these days. However, one question that divorce attorneys are often asked is what is the length of marriage when couples divorce, remarry and then divorce again? Are the lengths of the two marriages added together? Or are each of the marriages treated completely separately for purposes of determining the length of marriage?

Determining the length of marriage is important in divorce cases because it is used to help calculate the length of a spousal support award and also to figure out what is community property (property acquired during the marriage) versus separate property (property acquired before marriage). Spousal support, in particular, gets a bit complicated when the parties decide that they want a second divorce from each other. The Court might add the length of the first marriage to the length of the second marriage for purposes of determining the “length of marriage”. Or the Court might determine that just like cohabitation prior to marriage is not considered when calculating a couple’s length of marriage, a party’s previous marriage to the same person should not be included in the length of marriage calculation.

In the case of In re Marriage of Chapman, the parties married in 1960, divorce in 1981, reconciled and separated on and off for three years and then remarried in 1982. The second marriage ended after only 3 ½ months. (191 Cal.App.3d 1308). The trial court held that the length of marriage was only 3 ½ months and consequently ordered a brief period of spousal support. However, Wife appealed and the appellate court held that the parties’ 1st marriage of 19 years could be considered by the trial court in determining spousal support. The court reasoned that it would be unjust to not consider the entire marital history of the parties because of the brevity of time between the end of the first marriage and commencement of the second marriage, the collective length of their martial relationships and the uninterrupted nature of Husband’s legal responsibility to support Wife. The Court further reasoned that if only second marriages are taken into consideration then it would create an incentive for the spousal support payor to convince his/her ex-spouse to remarry and then quickly divorce him/her again.

Remarrying your ex-spouse for a second time doesn’t always mean that the court will consider the combined length of both marriages. In the case of In re Marriage of Bukaty, for example, the parties were first married for 12 years, then remarried each other 27 years later for a period of only 19 months. (180 Cal.App.3d 143). The Court in that case determined that spousal support should be based on the length of second marriage only.
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Prior to marriage, it is not uncommon for people to incur debts or obligations to their significant others. For example, in a long term relationship a boyfriend might loan his girlfriend money for a down payment on a new car or money for car repairs. If the couple cohabitates, the couple might have an agreement that the girlfriend will pay all of the household expenses while her boyfriend attends school full time. In another common scenario, a couple agrees that one of the parties will lend the other money for tuition. Significant others can also incur debts to each other by one party providing professional services to the other such as legal or tax preparation assistance. As long as an agreement exists for repayment (either orally or in writing) and other contract requirements are met, the parties have entered into an enforceable contract.

What happens to a debt or obligation between significant others if the parties get married? During marriage all earnings, accumulations, and liabilities acquired by either party during marriage are community property. However, in general, all property (and liabilities) acquired prior to marriage is the separate property of the acquiring spouse. A pre-marriage debt owed by one spouse to the other is by default a separate property receivable for one spouse and a separate property obligation of the other. According to California statues and case law, a pre-marriage debt between spouses is not extinguished by marriage. This means that after separation, the lending spouse may collect the debt from his or her spouse.Even if a pre-marriage debt between spouses survives marriage, what happens if the marriage lasts longer than the statute of limitations on collections? In civil cases, a lender generally has a limited period of time to collect money owed to him or her from a debtor. Typically, statutes of limitations range from two to three years depending on the particular cause of action. Because a significant number of marriages last longer than two to three years, the statute of limitations on collection of a pre-marriage debt may expire before the parties seek a divorce. However, California courts have carved out specific rules regarding debts owed between people who get married. In California, the statute of limitations on debt collection is tolled (is put on pause) from the date a lender and debtor get married through the date of separation.

There is an important distinction in this area of law between couples who are married and couples who merely cohabitate. Because California does not recognize any form of common law marriage, couples must legally marry to toll any pending statutes of limitations on debt collections. If a couple cohabitates, all standard statute of limitations will still apply.
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So, you have battled with your former spouse in court, attended countless hearings and mediation sessions, spent thousands of dollars on attorney fees and finally won primary physical custody of your child. Most parents are willing to deal with the pain of litigation, the financial stress of attorney fees, and the long court delays if it means getting to spend more time with their child. However, it can be devastating to discover that after all of your sacrifice to get more time with your child, your child does not want to live with you. For a variety of reasons, this is not an uncommon result at the end of a custody battle.

The first consideration in determining the proper reaction to a child’s preference on where he or she would like to live is the age of the child. If the child is around age ten (10) or younger, it is important to be speculative regarding the motivation behind his or her preference. Especially in a contentious custody battle, parental alienation may be a factor influencing the child. The child may also prefer to live with one parent over another because that parent is more lenient and lacks discipline. However, more serious issues such as alcoholism, drug use, or abuse may be causing the child to vocalize his or her parental preference. If the child displays a strong aversion to spending time with one parent, the court will likely order an evaluation and depending on the findings, modify custody and visitation. However, at such a young age, the child’s preference is not dispositive.If the child is a teenager it is much more difficult to set aside his or her strong preference to live with one parent versus the other. As long as alcoholism, drug use, and abuse are ruled out as factors in the case, the teen’s preference should be given serious thought. One of the most difficult jobs of a parent is to put the best interests of the child ahead of his or her own. If you were awarded primary physical custody of your teen by the court, but your teen would prefer to live with your former spouse you have the option of permitting the teen to do so. Often children are unable to see the full picture; therefore, it is important to consider whether (considering your teen’s preference) it would be in the best interest of the child to live with the other parent.

If you have decided to deny your teen’s request to live with your former spouse, that decision may have a negative impact on your relationship with your teen. Your teen may resent you and this hostility could create a stressful living environment. In some cases, respecting your teens wishes can strengthen the parent-child relationship. Ultimately, where a teen will live is up to his or her parents and in each case the parents will have to decide what is best for their child in their unique case.
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An MSC is the shorthand term for a Mandatory Settlement Conference in family law cases. In essence, an MSC is a procedure by which the parties can meet to attempt to settle their case before heading to trial. According to the San Diego Superior Court Local Rule 5.2.8, divorcing litigants are actually required to attend an MSC before the court will give them a trial date.

Both parties and their counsel, if they have counsel, must be present at the MSC. A family law attorney will be appointed by the court to act as a temporary judge and assist the parties and their respective counsel with attempting to reach a settlement at the MSC. If the parties reach a settlement, then the terms of their settlement will be written down and all parties will sign the necessary paperwork to finalize their judgment. If a complete settlement is not reached, then the court will assign a trial date for the parties and their counsel to come back to court and litigate the contested issues.

Prior to the MSC, you or your attorney will need to prepare a settlement conference brief, which must state your proposal for resolution of each contested issue and the reasons for each proposed resolution. This settlement conference brief must be served to your spouse/your spouse’s attorney and the settlement judge no later than 4 p.m. three court days before the MSC date. The purpose of the brief is to help the settlement judge become familiar with your case and your position on each of the issues. In addition to preparing and serving the settlement conference brief, your attorneys are required to “meet and confer” either in person or over the phone at least five court days before the MSC. The goal is to identify the open issues and attempt to resolve as many of them as possible prior to the MSC. The results of the discussion must be included in your settlement conference brief.The process of an MSC may sound similar to that of a mediation. However, an MSC differs in that it takes place in the courthouse rather than at an attorney’s or mediator’s office, it is conducted by a judge/temporary judge, and the parties do not have to pay a mediator’s fee. Also, MSCs are typically much shorter in time than mediation. Consequently, MSCs usually don’t result in settlements as often as mediations do. However, both MSCs and mediations are a voluntary process, meaning that the case will only settle if both parties are willing to compromise. The MSC judge will not make a binding decision about your case, like he/she will at trial.
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Spousal support is typically a contentious aspect of many divorces here in San Diego. Many divorcing couples spend a lot of time litigating the amount of spousal support to be paid by one party to the other. However, once the parties have settled or the Court makes a decision regarding the amount of spousal support, the party receiving the spousal support should also consider securing future payment of spousal support through a life insurance policy.

California Family Code Section 4360 specifically gives the family law court authority to order the supporting spouse to maintain life insurance on his/her life for the benefit of the supported spouse. The purposes of the life insurance is to ensure that the supported spouse will not be left without means of support in the event that the spousal support is terminated by the death of the party who has a continuing obligation to pay spousal support.

If you are the supporting spouse, you likely won’t want to be ordered to purchase and maintain life insurance for the benefit of your ex-spouse because then your ex-spouse will essentially “benefit” from your death. This can be a very unsettling feeling, especially in high conflict divorces where the supporting spouse is already bitter about paying spousal support.The amount of insurance provided pursuant to Family Code Section 4360 should relate to the actual amount of the spousal support obligation the supporting party was ordered to pay and the length of said obligation. A present value calculation as well as any potential tax savings (as a result of receiving the life insurance proceeds instead of taxable spousal support) should be considered in determining the level of life insurance to be maintained.

If you are the supported spouse, then it would behoove you to stress to the court that you want your ex-spouse to be ordered to maintain life insurance for your benefit. You will also want to make sure that the policy benefits are adequate and to that you are listed as the beneficiary of the policy so that you receive payment in the event of your ex-spouse passing away. Securing spousal support with life insurance may be very necessary for you to maintain your lifestyle or be able to support your children when your ex passes away.
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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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