Articles Posted in California

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Many women choose to take their husband’s last name when they get married. Jennifer Lopez, known by many as “JLo”, did just that when she married Marc Anthony in 2004. According to her legal documents, JLo’s legal name is Jennifer Muniz, which is her husband’s legal last name. But, according to TMZ, now that the couple is on the road to divorce “JLo” is adamant about getting her maiden name back!

Just like you made the choice to take your soon to be ex-husband’s last name when you got married, you can chose to restore your maiden name post-divorce or just keep your married last name, despite the divorce. Some considerations to think about when deciding whether or not to change your name are the impact a name change has with regards to your children, your profession and your well-being. Some women prefer not to have a different last name as their children and therefore keep their married name. To others, this isn’t that big of a deal. If you made a name for yourself at work before marriage and then put work on hold during your marriage, perhaps you will want your maiden name back so you can return to the same industry post-divorce and be recognized a bit easier. When deciding whether or not to change your name back it’s also important to think about whether it’s worth the extra time and hassle to change your name on your driver’s license, passport, financial accounts, etc. Perhaps you are more comfortable with your married name because that’s how the people in your community know you, or maybe you want nothing to do with your soon to be ex-husband and want a fresh start. Either way, divorce attorneys will advise their clients that changing your last name back after a divorce is a personal decision and you are entitled to do as you wish. Your soon to be ex-husband cannot force you to change your last name back or to keep your married name.

Changing your name back to your maiden name can be done either at the time of the divorce or at a later date after your divorce is final. However, if you already know that you want your maiden name back, it’s a good idea to go ahead and take care of it during the divorce process. A specific provision can be included in your marital settlement agreement such as the following: “This Judgment incorporating the terms of this Agreement shall restore to Wife her former name of ____.” Doing so will allow you to avoid any stress or time related to going through the process to change your name after the divorce has already been finalized.
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As we have previously blogged, states along the East Coast have begun a movement to reform spousal support (what their laws refer to as “alimony”). The reformers argue that in many cases spousal support awards persist too long or at too high of a level after divorce. In order to reduce this problem, the reformers propose laws which focus on rebuilding the parties’ lives after divorce and encourage supported spouses to learn to take care of themselves. We discussed the potential impact of these new laws and what effect they might have on California legislation. In particular, Massachusetts enacted a new spousal support law last year that was praised as a model for future reform. Although the new law has been in place for a reasonable period of time, reformers are not very satisfied with the results.

In order to accomplish the goal of encouraging spouses to become self-supporting post-divorce, the new “alimony laws” set time limits on spousal support for marriages of 20 years or less and generally stop spousal support payments when the supporting spouse reaches retirement age. By contrast, in California, there is generally no time limit placed on spousal support awards made pursuant to a long term marriage (defined as any marriage lasting approximately 10 years or more).

In addition, the new laws place strict restrictions on cohabitation. Under the reformed laws, spousal support will end if the supported spouse cohabitates with a new partner for at least three months. One of the issues which has arisen regarding the cohabitation clause is whether it applies to supported spouses who moved in with a new partner before the new law took effect. Currently in California, cohabitation is a factor that might be considered a “material change of circumstances” in a post-judgment support modification motion; but it is not grounds for automatic termination of support. California and Massachusetts do seem to share the general public policy disfavoring continued spousal support when the supported spouse moves in with his or her new partner.

Change can be difficult to effectuate in any area of law where the decision makers are comfortable in their “old ways”. Some complain that Massachusetts judges are to blame for stifling the progress of new legislation. These judges are accused of misinterpreting or even ignoring the law which encourages spouses to become self-supporting after divorce. Family law is notorious for giving judicial officers wide discretion. Appeals are not generally successful unless the appellate can prove abuse of discretion.
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In October of 2013, Orlando Bloom and Miranda Kerr announced that they will be ending their marriage. However, TMZ reports that despite their impending divorce, they still intend to remain a family and hold no hard feelings against one another. Although this attitude could change as the divorce progresses, perhaps Bloom and Kerr will instead be an example of how divorce doesn’t always have to be a nuclear experience. However, this will likely only be achieved if they avoid some of the common mistakes described below.

1. Avoid Responding to the Divorce with Anger
The divorce process can be an extremely emotional time and it’s very typical for people to say things they do not mean or to act in uncharacteristic manners. Responding to the divorce with anger will simply create an escalating war between you and your spouse and will lead you nowhere but backwards. Instead, let a little time pass and try to blow off some steam before reacting so that you can move the divorce forward in a reasonable manner.

2. Avoid Bringing a Significant Other Into the Mix
While you might have the urge to announce your new lover as a form of revenge to prove to your spouse that someone else finds you attractive and that you can be happy without your spouse, the divorce process is already potentially volatile so just mentioning that you have a new lover has the potential to absolutely infuriate your spouse. The more infuriated your spouse is with you, the less chance you have of a quick and painless divorce. Thus, it might just be best to wait until the divorce is over before you think about engaging in a new relationship.

3. Avoid Concealing Information
Many people going through a divorce find it quite tempting to omit or conceal pertinent information in their divorce case, typically surrounding finances. If you think that nobody will ever find out, think again. The majority of times someone like a forensic accountant or a private investigator for instance, does find out. And when this happens, you immediately lose credibility and cause increased litigation costs. All in all, hiding information is just not worth it.

4. Avoid Reducing the Time Spent With Your KidsDuring the divorce one spouse typically moves out of the family home at some point. When this happens, that spouse tends to get preoccupied with the divorce process, or gets busy with work trying to make more money to be able to afford living away from the family home. As a result, time spent with the kids is often much less than what it used to be. This is one mistake to surely avoid. During your divorce, spending time with your children should be one of your top priorities. It might also be a good idea to keep a journal logging hours spent with your kids and what you did during those times. When it comes to child custody determination this might be helpful. More importantly, spending time with your children will probably help make you feel whole, despite the destruction that divorce is causing.
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In our modern world, it is no longer uncommon for the wife to be the breadwinner of the family. Research has actually shown that in more than 40% of households the wife is the main breadwinner. More and more husbands, on the other hand, are becoming stay at home fathers, taking over traditional female roles and running the home front while the wives are out in the working world and taking responsibility for “bringing home the bacon.” Divorce attorneys are encountering this type of family dynamic more and more in dissolution cases. This increase in female breadwinners challenges the societal norms and traditional gender-based expectations of men being the financial contributor and women taking care of the house and family.

Along with this new and rising family dynamic also comes a rise in new relationship challenges. In fact, research findings report that both husbands and wives tend to be less happy when the female is the breadwinner. Given these findings it isn’t too shocking that the risk of divorce rises when the wife is the breadwinner. Recent studies even report that the divorce rate is 50% higher when the wife earns more than her husband.

So why is it that women who earn more than their husbands have a much less chance of a successful marriage? Perhaps it’s because couples don’t discuss and define their financial and support roles and come to some kind of agreement – something that could be addressed in a premarital agreement. It might be that expectations become muddled and lead to an increase in relationship conflicts. Or perhaps it’s because the women are shouldering all of the financial burdens by working long, tiring hours and yet the men are perceived to be failing to take on a comparable amount of responsibilities on the domestic front. Research also suggests that the social stigma attached to a female breadwinner is also the culprit of subconscious anger and jealousy in marital relationships because the women are more likely to feel that their husbands are not pulling enough weight in the marriage.
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American Idol winner Kelly Clarkson married fiancé Brandon Blackstone on October 20, 2013 in a quiet Tennessee ceremony. Although Clarkson has won 3 Grammys, 4 American Music Awards, and 13 Billboard awards throughout her successful singing career, no premarital agreement was reported before her wedding. Clarkson has been known to frequently “Tweet” about her happy relationship with Blackstone; however, even the happiest couples sign premarital agreements in some cases.

A premarital agreement, often referred to as a “pre-nup,” is a contract containing spousal support and/or property division terms that would control in the event of a divorce. Without a premarital agreement, the community property laws of the State of California control property division upon divorce. Celebrities and high powered business people are the first ones to come to mind when discussing pre-nups; however, divorce attorneys report a jump in these agreements between people from all walks of life over the past ten years.

Many family law attorneys attribute the rise in premarital agreements to the fact that more people remarry later in life and are now looking to protect existing separate property assets. In addition, considering that many people are marrying for the second and third time as they get older, they also enter into premarital agreements to protect their children from their first and/or second marriages. Premarital agreements become more crucial when people enter into marriages with a significant amount of wealth or property. However, they can be entered into by any couple when they marry and can be altered over time as the parties acquire wealth and property.

If a couple marries without a premarital agreement but later wish they had taken that legal step, they have the option of entering into a post-nuptial agreement. A post-nuptial agreement can serve the same purposes as a premarital agreement. The only major difference between a premarital agreement and a post-nuptial agreement is that a post-nuptial agreement is signed after marriage. Therefore if Clarkson and Blackstone would like to reach a legally binding agreement regarding property and/or spousal support in the event of divorce, they could easily do so by signing a post-nuptial agreement.

Many couples avoid premarital agreements because of the stigma attached to signing one. Engaged couples considering a premarital agreement may not discuss it with their significant others or family in order to avoid accusations that they don’t believe their marriage will last. Singing a premarital agreement does not mean that the parties are already considering divorce or that they don’t trust each other. In fact, a premarital agreement can be a great tool to get couples talking about financial issues and improve communication on these topics.
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So you’ve been married for 9 years and you know your marriage has hit a point where you are ready to get out. Perhaps you and your spouse have talked about your impending divorce or maybe it’s just a thought you’ve had in the back of your mind lately.

Either way, is it worth it to stretch the marriage past that ten-year mark? In California, there are several reasons why it might be in your best interest to reach the ten-year marriage mark before seeking to get a divorce

Spousal Support

There are special spousal support rules in California for marriages that are ten years or longer in duration. If a marriage lasted less than ten years, the court will typically order spousal support for a period equal to one half the length of the marriage. However, for a marriage that lasted more than ten years (from date of marriage to the date of separation), the court recognizes it as a “marriage of long duration“. This means that the court retains jurisdiction over spousal support and may not set a termination of spousal support date without the parties’ agreement. Thus, the spouse entitled to spousal support may be entitled to receive spousal support for life or until remarriage. The parties will be required to come back to court in the future to determine whether the spousal support obligation will continue.

Military Benefits

A marriage lasting at least ten years is also important if your soon-to-be ex-spouse is in the military and will be eligible for retirement benefits. If you were married for at least ten years and that time overlaps with ten years of military service, then you will be eligible to qualify for direct enforcement. This means that your portion of military retirement pay will be paid directly to you by the military finance office (who will garnish the service member’s retirement and pay the ex-spouse directly), rather than the service member writing you a check each month.

Social Security Benefits

Another benefit of a marriage of at least ten years is that the Social Security Administration considers it to be a “long-term marriage,” making you eligible for Social Security benefits based on your soon to be ex-spouse’s earnings record when you reach the age of retirement (as long as you aren’t remarried to another person at the time). Read more about retirement benefits and divorce.

No matter how good the financial benefits seem for a marriage lasting longer than ten years, there are some situations in which you should not wait. If, for instance, there is any danger to you or your children, then it is important for you to focus on your safety rather than the potential benefits of staying in the marriage for a longer period of time.
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Divorce can have a devastating effect on many aspects of the parties’ lives. In some cases, the parties may not even realize the full effect of the divorce for years to come. For example, in the heat of litigation many spouses may not consider how divorce will impact their social security benefits. In order to get specific information regarding your case, it is important to consult with a divorce attorney who is a financial specialist. However, below are a few general principles to consider.

The first factor to consider in any social security analysis in the context of divorce is the date of separation, and accordingly, the length of the marriage. Neither spouse will be entitled to the other spouse’s social security benefits unless the marriage lasted 10 years or more. A marriage which lasts 10 years or more is typically considered a “long-term marriage“. For the purposes of spousal support, if a marriage lasts less than 10 years, the length of a spouse’s spousal support obligation is generally limited to half the length of the marriage. In a marriage of long duration, the term of spousal support will likely not be limited to half the length of the marriage. Therefore, the length of the marriage will be a significant issue in the context of social security and the divorce in general.

If you are looking to collect social security benefits based on your former spouse’s earning record, the next factor that your divorce attorney will ask you to consider is your marital status. You cannot collect social security benefits based on your former spouse’s earning record if you are currently married. However, if you remarried following your divorce and your second marriage ended in death, divorce or annulment, you may still be able to collect social security benefits as a result of your first marriage. Further, the benefit you would collect based on your former spouse’s earning record must be higher than what you are eligible to collect based on your own earning record.

In order to collect social security benefits as described above, you must meet age requirements and your spouse must meet eligibility requirements. The minimum age to collect social security benefits is age 62. In addition, your former spouse must be eligible to collect or currently receiving social security benefits. In other words, you cannot collect benefits based on your former spouse’s income if he or she is not eligible to collect. If your former spouse is eligible to collect his or her social security benefits but has elected not to receive them yet, you must have been divorced for a minimum of two years before you can collect based on your former spouse’s earnings. If you are considering a divorce, the effect it may have on your social security benefits is another factor to keep in mind when planning for your retirement years.

Read more from SSA.gov about qualifying for divorced spouse benefits
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Laura Wasser is an LA divorce attorney who represents Hollywood’s most famous celebrities. Considering her clientele, Wasser encounters her fair share of drama in her practice. Recently Wasser published a new book entitled “It Doesn’t Have to Be That Way” full of intriguing divorce stories and advice for any divorcing couple. Although Wasser has been involved in many divorce battles, she provides her readers with the following ten tips for a civilized divorce.

  1. Marriage is a contract. Although this “tip” seems harsh, it is true. Marriage is a contract between adults and when that contract ends, parties must wrap up their relationship in accordance with default California community property laws (unless a premarital agreement is in place). Further, once the relationship originally established between two people has changed, a new relationship must be discussed and negotiated.
  2. Divorce is a business transaction. Another harsh reality regarding divorce is that it is a business transaction. It may be difficult to calmly divide up the life you shared with your spouse, but emotional outbursts will only hinder the process. Wasser recommends parties keep their cool when negotiating divorce issues. Taking unreasonable positions in an attempt to punish your ex-partner will inevitably increase fees and delay the divorce process.
  3. Dissolve it before it gets ugly. The dissolution process will proceed more smoothly if the parties have maintained amicable feelings toward each other. If the parties still respect and care for each other, they are more apt to reaching mutually beneficial resolutions in the event of a dispute.
  4. Before discussing divorce, consider what you want to say. The opening discussion regarding divorce can set the tone for the entire dissolution process. If the parties openly discuss their options and agree to proceed in a collaborative manner, the divorce will likely proceed much smoother than if the parties open the dialogue with insults and threats.
  5. Keep your feelings to yourself. By wrapping up family, friends and co-workers in your divorce you may disclose too much information. It is important to keep the details of your divorce confidential by only sharing them with your attorney and a therapist if you are seeing one.
  6. Be prepared to share. If you have been the primary earner in the marriage you should be prepared to split all of your marital assets and to pay child and/or spousal support. This legal principal applies regardless of gender. The Court will order a female breadwinner to pay support just as a male breadwinner. Additionally, the parties should begin considering sharing their children and the difficulties of being apart from them.
  7. Do not behave badly in front of your children. For the well-being of your children, it is always best to make every effort not to involve them in the divorce process. This requires both parents to refrain from making disparaging remarks about the other in the presence of the children.
  8. Be graceful under pressure. In the event your spouse takes a “less than graceful” approach to the divorce process, it is important to remain stoic. Regardless of the poor behavior of one party, it is not appropriate to retaliate.
  9. Split assets together. Parties can save significant attorney fees and costs by reaching agreements together regarding smaller assets such as personal property in the family home. Often couples walk through the family home together and discuss what they would like. Read more about property division methods
  10. Don’t sleep with your ex-partner. Having a sexual relationship with your ex-partner post-separation can greatly impact your divorce case. A sexual relationship implies the marriage is not over and may change the date of separation.

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Another one bites the dust. TMZ reports that singer, Ben Harper, and actress, Laura Dern, are officially divorced. In 2010, after five years of marriage and two children later, Harper filed for divorce to Dern’s surprise. The couple reportedly tried to reconcile back in 2012, which turned out to be an utter failure. Now a year later, a Judge has signed off so they are officially divorced and will now be restored to their “single person” status.

Read more about the divorce from TMZ.com

So how exactly do divorcing couples, like Harper and Dern, know when their divorce is officially finalized? In other words, when can they truly move on with their lives and know that their marital status has been restored to “single” person status? In California, a divorce cannot be absolutely finalized until: all of the issues are resolved, a judgment has been signed by a judge and processed by the court, and the six month waiting period has lapsed.

Resolution of All Issues

Issues related to divorce (division of property, custody, child and spousal support, etc.) can be resolved by default, agreement by the parties, through court proceedings where the judge makes an order, or a combination thereof.

The California Divorce 6 Month Waiting Period

Many of our San Diego clients are familiar with the “six month rule”. This rule is codified in California Family Code Section 2339(a), which states that marital status cannot be terminated any sooner than six months from the date that the Respondent was served with the petition for dissolution of marriage or the date of appearance of the Respondent, whichever occurs first. One purpose of this six-month waiting period in California is to give the parties a chance to reconcile or reconsider pursuing the dissolution. Many divorcing couples will often times give the marriage one last shot. However, if the parties fail at reconciling, like Harper and Dern did, or have simply have no intention at all to reconcile, then they still cannot get a divorce until the six month waiting period has been met. The parties may prepare and even finalize their divorce judgment prior to the end of the six month date, however, they will not become “officially” divorced until the six months has lapsed. However, if the parties do not resolve all of the issues prior to the six month date, then they will not be automatically divorced on that date.

Final Divorce Judgment

Once all issues have been resolved, then all of the necessary paperwork must be filed with the court. Thus, even if all issues have been resolved and the six month rule is met, a divorce is not truly final until there is actually a judgment signed by a judge and processed by the Court. The parties will receive a Notice of Entry of Judgment, which means the Judgment is or has been processed but they need to wait for the rest of the Judgment documents, which will be returned to the person who filed them once the Court is done processing them and it will note the date upon which the parties will be restored to the status of single persons.

If you are interested in properly finalizing a divorce from your spouse we can provide you with information and guide you through the process. Our team of experienced attorneys is prepared to litigate on your behalf. If you wish you schedule a consultation with Bickford Blado & Botros, please call us at (858) 793-8884.
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