San Diego Divorce Attorneys BlogOn October 7, 2015 news broke that the richest man in Illinois, hedge fund manager Ken Griffin, came to a settlement in his divorce from Anne Dias Griffin. The two had entered into a prenuptial agreement (also referred to as a “prenup” or “premarital agreement”) prior to their marriage in 2003. They have three young children together.
Articles Posted in Divorce
Attorney’s Fees Awards
It is no secret that hiring an attorney can be costly. A spouse may be hesitant to seek legal counsel in their divorce or related family law matter, thinking that they would be unable to afford it. However, it is extremely important to have legal representation in certain matters, and this is especially critical where the other party is represented by an attorney. In such a case, in order to ensure adequate representation, a spouse may be entitled to an attorney’s fees and costs award (hereinafter referred to as simply an “award”); or a court order that the other party is to pay attorney’s fees and costs for BOTH parties.
Private Custody Mediation
In an earlier blog I discussed what to expect from court connected child custody mediation (Family Court Services – “FCS”). If you have not read that blog yet, go back and take a look since I give a background on child custody mediation generally. In today’s blog, I am going to focus on private child custody mediation.
How does the UCCJEA “more appropriate forum” exceptions affect which State will make custody and visitation orders over children?
Earlier this week, we discussed the basics of how the UCCJEA determines which states get to make custody and visitation orders over children. We did not discuss the more appropriate forum exceptions of Family Code sections 3427 and 3428. These are discussed below.
As noted before, there are 4 types of jurisdiction under the UCCJEA: (1) Initial jurisdiction (2) Continuing, Exclusive Jurisdiction (3) Modification Jurisdiction and (4) Emergency Jurisdiction.
What Do You Do with Your Children’s Passports?
There was a time before 2010 when you could go to Mexico for a few days and all that was required to return was a valid U.S. ID or a birth certificate. That changed in 2010 when the immigration regulations changed and a valid passport was required for all citizens, including children. There are certain exceptions which are not relevant to this blog, but that can be reviewed at U.S. Department of State.
Living in San Diego, travel to Mexico is a regular activity for many families. Whether it is to visit family still living in Mexico, for medical care, or just for pleasure travel, the draw of the beautiful beaches and fresh seafood is very strong.
The Pope Has Arrived! A Discussion of Annulment in California and the Pope’s Reform to the Church’s Annulment Process
All Americans, religious or not, are in an undeniable state of excitement upon Pope Francis’ first arrival on U.S. soil. As we are bombarded with media coverage of the visit at every turn, the divorce attorneys here at Bickford Blado & Botros find it a fitting time to discuss annulment in California and the Pope’s recent reform to the Catholic Church’s annulment process, announced by the Pope’s September 2015 Letters motu propio.
An annulment under California law and an annulment in the eyes of the Church are not synonymous. The Catholic Church does not give divorced people permission to remarry. So, if a Catholic person wishes to remarry, the Church must find that their first marriage was void before they are free to do so.In California, there are three legal options available to couples wishing to end or alter their marital status: dissolution (a.k.a. divorce), nullification, and legal separation. Divorce can only be granted where there has been a valid marriage. Nullification can only be granted if there was no valid marriage to begin with. Incest (see CA Family Code §2200), bigamy (see CA Family Code §2201), and lack of a lawful marriage contract (requires both issuance of a license and solemnization, see CA Family Code §300) would be grounds for a “void” marriage, one that will never be valid in the eyes of the law. Minority (under the age of 18 in CA), prior existing marriage, unsound mind, fraud, force, and physical incapacity are factors leading to marriages that are “voidable” (see CA Family Code §2211) meaning that they are valid in the eyes of the law until the parties seek and receive a judgment of nullification from a court.
For more information on grounds for annulment in California, see our April 1, 2015 blog titled, “Do I Qualify for an Annulment.”
For Catholics wishing to remarry, even after receiving a legal judgment of dissolution or nullification, they must still seek a decree of nullity from the Church. This process has faced a lot of criticism throughout the world for being a slow, expensive, and difficult process, and in some countries it is even considered basically impossible to do. So, Pope Francis’ new reform is meant to make the Catholic annulment process quicker and more accessible especially to the Church’s low-income members.
The most notable changes to the Church’s nullification process are as follows:
1. Now only one judgment of nullification is required. Automatic appeal to a second tribunal is removed, but appeal still remains an option in contested cases;
2. The Bishop is named as the principal judge in his diocese, who is able to designate this responsibility to a cleric if so desired;
3. Creation and addition of a third, quicker, process for cases where evidence of nullity is especially clear, to be decided by the Bishop himself. There are a number of situations where the new process can be used. Some examples include cases involving very brief marriage, existence of an extramarital affair at time of wedding or very soon thereafter, malicious concealment of things like infertility or a serious contagious disease, and more; and 4. Reintroduction of the ability to appeal the Bishop’s decision to the metropolitan bishop (or the Metropolitan Bishop’s decision to the Senior Suffragan Bishop).
Regardless of religious or cultural background, dissolution and annulment can be difficult for anyone. There are strict legal requirements and specific timing requirements associated with these requests. Our team of experienced attorneys can provide you the outstanding counsel you may need during these difficult times and will ensure that your needs are met as we help you navigate through the divorce or annulment process.
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Same-Sex Divorce
In recent years, same-sex marriage has undergone a radical transformation in California and in the rest of the nation. Bickford Blado & Botros are well aware of these important changes in the law.
On June 16, 2008, the Supreme Court of California held that California’s same-sex marriage ban was not permitted under the California constitution. On November 5, 2008, however, the California electorate amended the California constitution through Proposition 8. This reinstated the same-sex marriage ban in California.
On August 4, 2010, United States District Court Chief Judge Vaughn Walker declared that Proposition 8 was unconstitutional under the Federal (not California) constitution. However, through appeal, the order was stayed until the United States Supreme Court reinstated Judge Walker’s ruling on technical grounds in Hollingsworth v. Perry. The Hollingsworth v. Perry opinion was issued on June 26, 2013 and allowed same-sex marriages to resume in California.On that same date, the United States Supreme Court issued the landmark Windsor v. United States decision, striking down language in the Defense of Marriage Act (DOMA) that limited the definition of marriage to opposite-sex couples. Before Windsor v. United States, same-sex couples throughout the nation were deprived of many federal benefits opposite sex couples enjoyed. Justice Kennedy, describing some of these benefits, wrote as follows in the majority opinion:
“Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive… It deprives them of the Bankruptcy Code’s special protections for domestic-support obligations … It forces them to follow a complicated procedure to file their state and federal taxes jointly … It prohibits them from being buried together in veterans’ cemeteries.”
After the Windsor decision, same-sex married couples did not face these burdens in California or other states that allowed same-sex marriage. However, it was not until June 26, 2015 that the Supreme Court ruled that all same-sex marriage bans were unconstitutional in Obergefell v. Hodges. This has a practical effect for same-sex couples in California that were already married: they can now freely move to any other state and that state will be required to recognize the marriage. This was an unsettled issue until Obergefell.
There are still unique issues that same-sex couples face. For example, what happens when a same-sex couple had a domestic partnership and then married after it became legal to do so in California? Does this couple have to both terminate the domestic partnership and dissolve the marriage? In cases like this, what is the length of the “marriage” for purposes of spousal support?
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There is Life After Divorce
There may have been a general consensus that the stress of a relationship ending and divorce are damaging to your health, but those effects do not have a long term impact. Researchers from the University College London institute of education, London School of Economics and London School of Hygiene and Tropical Medicine have studied the issue and have found that “transitions such as separation and divorce do not have a long-term effect.”
While this may not be great news while you are struggling through a divorce, it shows that the pain of ending a marriage, especially an unhealthy one, has no lasting effect on you. In fact, this study cites previous research which “suggests that individuals in poor-quality couple relationships have worse health than those in happier ones and those who are unhappily married are at greater risk of poor health than divorced people.” So, in other words, the move to end an unhealthy marriage has health benefits.Regardless, when going through a divorce you need a knowledgeable and caring attorney to help you navigate both the complexities of family law and who knows the emotional toll a divorce can take on a person. A knowledgeable attorney can ease the burden of a divorce by providing accurate information so you are not blindsided during court proceedings.
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What do I do with my Thrift Savings Plan during my divorce?
If you are a member of the uniformed services or work for the Federal Government you are eligible to sign up for a Thrift Savings Plan (“TSP”). A TSP is a retirement savings plan similar to a 401(k), and it often supplements other retirement plans such as Federal Employee Retirement System (FERS) or your military retirement. Even though it is similar to a regular 401(k) it is managed by the Federal Thrift Investment Board, which is an independent government agency, as opposed to a private financial services company.
When you retire your TSP is treated the same as a 401(k). During your working years you place a portion of your pretax earnings into your TSP account and those funds are taxed when removed post retirement. Because a TSP is similar to a 401(k) they are treated in the same way during a divorce. The community portion of the TSP (the amount accrued during marriage), are divided pursuant to a specially prepared order. A Thrift Savings Plan does not fall under the Employees Retirement Income Security Act (“ERISA”), rather the order must meet different requirements under Federal Law (5 United States Code sections 8435(c) and 8467, and 5 Code of Federal Regulations part 1653, subpart A).
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Pets are People Too, Right?
Pets are members of our families, and we would be horrified if something happened to them. For example Johnny Depp’s dogs face being euthanized when he flew them to Australia without permission. Most of us will not face this type of situation with our pets, but what happens to your furriest family members during a divorce proceeding?
California law is surprising silent when it comes to your pets considering how important they are to our lives. Generally, the law still considers pets something that you own and treats them as property. This means custody would be decided in a civil court, not the family court.
However, it is not unheard of for your pet to be involved in your family law matter. For example, Family Code section 6320 allows you to include your pet in a Domestic Violence Restraining Order. If you have taken care of your pet since before you were married they will likely stay under your care post separation, but if you became pet parents together it can be more complicated. For some families it may make sense for the family pet to say with the parties’ children due to the bonds that develop between children and pets, but every case is different.
The court will likely sign any agreement regarding pets reached by two pet parents. However, heavily litigating these issues is not advised. In order to resolve any possible disagreements over a pet, people should put their wishes in writing via a pre-nuptial agreement or a post-nuptial agreement to avoid heartache later on.
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