Articles Posted in Divorce

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Having your deposition taken can be one of the most nerve-racking experiences for any family law litigant. One of the best ways to dispel your nerves about your upcoming deposition is to gather as much information about the process as possible. You will always have advance notice of your deposition before it occurs so you will have plenty of time to prepare with your attorney. The deposition notice must contain information regarding the date, time and location for the deposition. However, the deposition notice often does not contain an end time because it is hard to predict how long the question and answer session will last.

According to the California Code of Civil Procedure section 2025.290(a), a family law deposition shall not exceed seven hours. Although this general rule seems simple, there are a few exceptions and other factors to consider. For example, the deposition of an expert witness may exceed seven hours. Depositions of parties in family law cases that have been designated as “complex” may also exceed seven hours. If your case does not fall within any of the general exceptions, you may also ask the court for an order extending the permitted length of a deposition. In order to be granted an extension of the permitted deposition length, it is important to show the judge that your case falls outside the norm.A seven-hour deposition can also take place over the period of one or several days. At the beginning of the case, the attorney may need some preliminary questions answered to determine what the major points of disagreement are. Later in the case, the attorney might finish the deposition by delving into the major remaining issues. In addition, the parties and attorneys cannot ride out the seven-hour time limit by taking several breaks and interrupting the process. At the outset of the deposition, the examining attorney may instruct the court reporter to make notations of all breaks and interruptions in order to get an accurate figure for the true length of questioning. Therefore, although the entire deposition process will likely exceed seven hours, the examiner is entitled to seven hours of pure questioning and answers.

If you and your attorney are conducting the deposition of the other party, it will be crucial to meet and confer regarding the most crucial aspects of the case. Your attorney must decide what questions will be the top priority to ensure those questions are asked prior to the expiration of the seven-hour time limit. In addition, if the question and answer portion of the deposition does exceed seven hours and the other side does not object, the testimony taken after seven hours will not be excluded. A failure to object to the length of a deposition will be viewed as a waiver of the seven-hour time limit.
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It is not uncommon in San Diego divorce cases for spouses to accuse each other of improperly hiding or failing to disclose community assets. However, before pursuing any legal course of action for relief in court, it is advisable to collect substantial evidence of misconduct. Often times what seems like wrongdoing at first can simply be explained by clarification of a misunderstanding or the production of supplemental information. In the instance where a spouse is failing to disclose property or making substantial efforts to conceal assets, it may be necessary to seek court intervention. One common thread to accusations of concealment of property is the involvement of a third party.

Obtaining relief from a third party is much more difficult in the family law arena than it is in general civil litigation. In a general civil case or criminal prosecution, any party involved in a conspiracy can be joined in the action and held directly accountable for their involvement. Family law judges hear much more personal types of cases and therefore are hesitant to drag third parties or businesses into divorce or custody disputes.

There are two categories of joinder, mandatory joinder and permissive joinder. Mandatory joinder is used in a limited set of circumstances which are largely procedural. Permissive joinder is a much more arguable area of these laws because the exercise of the court’s discretion in making a decision regarding permissive joinder is the “reasonableness” standard. Whether joinder is considered “reasonable” is highly fact driven and the “reasonableness” of joinder may vary greatly from judge to judge. With such broad discretion and open-ended guidelines, it is impossible to predict with any certainty the outcome of a motion for joinder.A request to join a third party you believe has been conspiring with your spouse to hide property is within the court’s broad permissive joinder criteria. Pursuant to California case law, the court may order joinder of a third party to which one spouse purportedly made an unauthorized gift of community property. For example, if you have evidence to suggest that your spouse is “selling” off community assets to a friend for little to no consideration, you may be able to join the third party who has “bought” community property. Many times, the friend will be holding the property for the spouse until the divorce has concluded and then will return the property to the spouse. These types of cases are difficult to prosecute without substantial evidence of misconduct. However, if you can prove your spouse gifted community property to a third party you may be able to join the third party in your divorce action.
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During a divorce, a judge, a mediator or the parties will make decisions regarding how to divide the marital property, like the residence, the vehicle, savings accounts, and stocks accounts. But what about the couple’s digital assets, like their iTunes music library, MP3s, Kindle eBooks library, etc.? These assets aren’t exactly tangible, yet they may still be considered martial property subject to division during a divorce.

Digital assets are comprised of intangible goods such as digital books, music and movies. These are most typically stored in iTunes accounts or other MP3 storage accounts and Kindle eBook accounts. Digital assets can even include digital storage, social media accounts and blogs. These digital assets raise the question of whether they are subject to division during a divorce and whether or not they can be valued.

Although there is not much law on this subject, when it comes to the division of digital assets, many states will divide the digital assets using an “equitable distribution” system to divide, allocate and value these assets. The “marital property” will be assigned a value and then it will be distributed equitably, or fairly, between the spouses. Such division does not always result in a 50/50 split, but rather it is what is considered a fair split.However, just like a car cannot be split in half, neither can many digital assets. Additionally, unlike the ownership of a car which can typically be transferred quite easily to the other spouse, transferring ownership of digital assets is not always feasible. In fact, some user agreements do not even allow for transferring ownership. A judge’s ruling will not even supersede these user agreements. To resolve the issues that division of digital assets pose, the spouse who owns the iTunes and Kindle libraries may be awarded them, while the other spouse may be awarded a different asset in leui. Another option is for the spouse who is awarded the asset to “buy-out” the other spouse based on the value of the asset awarded to him/her.

Although the division of digital assets is a relatively new area of the law, as more digital products continue to develop, I suspect that divorce attorneys will see a lot more issues involving digital assets and thus a lot more law on the topic.
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It is a common fear in family law cases that one spouse will lie about his or her income in order to avoid a high child support or spousal support order. This can become a serious concern if the spouse is self-employed or a business owner who can manipulate evidence regarding his or her income. Especially in the case of a long-term marriage, the parties believe they can make a good approximation regarding the income of their former spouse. Often, spouses are shocked when they receive a copy of the income and expense information form prepared by the other party. Although there may be a disconnect between what you believe your spouse earns and what your spouse is telling the court he or she earns, it is important to do your due diligence and investigate your suspicions before making accusations to the court.

The first thing you can do to find out if your spouse is really lying about his or her income is to conduct formal and informal discovery regarding your claim. Informally, you can begin gathering documents which can provide you and your attorney with a snap shot of the monthly family spending. Review bank statements and credit card statements for information regarding how much money your family spends each month to maintain your current lifestyle. Once you have gathered documents which can provide you with information regarding your monthly family expenditures, you and your attorney can compare that information to the gross income your spouse is claiming he or she earns. In addition, you can gather joint tax returns and financial documents for previous years from your CPA or through your online tax service. It is helpful to compare prior tax returns with your spouse’s current claims regarding his or her income.Formally, your attorney can propound demands for production of specific documents and requests for specific information. If you do not believe your spouse will be truthful, even under oath, your attorney can subpoena various entities which have relevant documents in its possession. If you determine that your spouse’s statements regarding his or her income are inconsistent with the evidence which has been acquired, you may have a cause of action against your spouse for breach of fiduciary duty. San Diego family courts impose a strict duty on spouses to disclose all material facts and information regarding income, expenses, assets and debts. If one spouse is not truthful with the other party and/or with the court he or she may face serious financial or criminal penalties.
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In most states, the right to a jury trial in a divorce proceeding does not exist. In California, no such right exists. Rather, all divorces in California will be heard solely by the Judge, not a jury. However, in a limited number of states, including Texas and Georgia, whether you are the spouse who filed for divorce or the spouse who received a divorce petition, you have the option to request a jury trial during your divorce proceeding. Most of these states limit the right for a jury to only decide certain issues. In New York, for example, the circumstances are very narrow; a jury is only allowed to decide whether the parties meet the state criteria for divorce.

Texas offers the jury trial rights most broadly. In Texas, the jury consists of 12 jurors who may decide a number of issues. However, certain issues are still reserved for the Judge to decide. For example, the jurors in Texas can decide the issue of child custody, but the Judge will be the one to decide visitation and child support. Jurors in Texas can also determine the value of the assets, and determine which assets are considered separate property versus community property. However, the Judge will be the one to actually determine the division of such assets.

Offering the option of a jury trial in divorce proceedings is a hot topic of dispute. Supporters of offering a jury trial argue that it helps to ensure fairness by thwarting the Judge’s potential bias. Many also support jury trials because they believe that it gives litigants more of an opportunity to tell their side of the story. Another benefit of offering the option of a jury trial in a divorce proceeding is that it encourages parties to try and settle outside of court, since a jury trial is a risk for both sides no matter what the facts of the case are.However, many oppose the idea of a jury trial in a divorce because they aren’t keen on the idea of having the details of their private lives displayed before a dozen strangers. Additionally, divorce proceedings are expensive enough. Adding the option for a jury trial is likely to cause the divorce proceeding to be even more time consuming and expensive Continue reading

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In San Diego and throughout the state of California there are two types of spousal support which can be awarded by a family court judge. The two types of spousal support are temporary (pendente lite) spousal support and permanent (long-term) spousal support. The type of spousal support awarded is dependent on what point in the case the award is made. Often times family law litigants have various questions about spousal support especially after their first spousal support hearing. One of the most frequent questions asked is, “How long will the spousal support order last?”

Prior to entry of Judgment, any spousal support award made by the family court judges will be a “temporary” spousal support order. At the end of a dissolution case, the court will reevaluate the amount of spousal support being paid and make an ongoing “permanent” spousal support order. When parties first separate, one spouse may not have access to community funds and therefore he or she must request a hearing immediately to obtain an order for support. At times, that first rush to judgment can result in a slightly higher or slightly lower amount of support than may be appropriate on a more permanent basis.

In making a “temporary” spousal support order, the family courts in California are not as restricted using discretion than other court systems. For example, many other state court judges are required to apply a specific formula which considers the parties’ incomes and various other factors. In California, although many family court judges make spousal support awards using a default formula, they are not required to. In practice, family court judges often refer to the spousal support amount as suggested by guideline formulas and make awards based on that information.When family court judges make “permanent” spousal support orders, they must consider all of the factors outlined in Family Code § 4320. Most importantly, the court will consider the ability of the supporting spouse to pay support and the need of the supported spouse for spousal support. Family Code § 4320 also lists factors such as the length of the marriage, the age of the parties, the health of the parties, and any history of domestic violence. Becoming familiar with these methods for calculating spousal support can be especially helpful for parties’ in settlement negotiations. The measuring stick for any proposal in negotiation is what the judge would likely do if the matter were to proceed to court. Therefore, having that information available can assist the parties with proposing and accepting reasonable solutions.
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In this day in age, social media seems to run our lives. We wake up in the morning and check our Facebook account. We upload a photo of our breakfast to Instagram. And we tweet about how our day at work is going. Social media sites like Facebook, Instagram and Twitter seem to dictate how we run our lives. Accessing these social media sites is as easy as a click of a button on your smartphone. Well it turns out that social media is not only running our lives, but also playing a part in both ruining our marriages and helping our divorces.

Divorce attorneys commonly note that irreconcilable differences are the reason for the divorce. Research has shown that these commonly used digital communications may be the culprit of the “irreconcilable differences” that develop between spouses. Social media websites are so easily accessible and so often used that they not only help create relationships but they also play a role in destroying relationships. For instance, due to the anonymity on some of the sites and the often encouraged non face-to-face contact, people seem to be more susceptible to temptations. Old flames tend to resurface or new flames are more likely to continue because retrieving contact information is so easy and opens the door to further communication. Social media sites also often times open the door to arguments because things posted by one spouse are misinterpreted by the other spouse. A harmless remark by one spouse may cause the other spouse to have major suspicions begin stirring. In essence, these social media sites are the culprit in facilitating emotional and physical affairs among married people.However, after a relationship ends and a divorce begins, social media may play a big role in helping your divorce litigation. Many San Diego divorce attorneys note that their clients are closely monitoring the social media sites of their soon to be ex-spouse. Not only are they reading what their soon to be ex-spouse has to say or photos he/she has to post, but they are taking screen shots of the social media page and downloading photos the spouse has uploaded onto the site. Spouses are noting down anything and everything that might impact their divorce proceeding, especially with regard to child custody determinations and hidden assets. Thus, spouses should be conscientious of what they post while participating in social media during divorce litigation.
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According to Fox News, a Florida man called his ex 145 times over the span of a mere 11 hours. Although he has been released from jail on bail, he now faces charges of aggravated stalking. If this situation were to occur in California, would the man’s actions perhaps warrant an order of protection in the realm of domestic violence? Could he face any criminal consequences for his actions?

Unfortunately, divorce attorneys often deal with clients who are being abused by their ex or their soon to be ex and need legal protection from such abuse. Harassment may be considered a form of abuse. If the client and the other person have a close relationship (i.e. they are divorced, separated, dating, use to date, living together, used to live together or closely related) and the client has been abused or harassed by that other person, it falls within the realm of domestic violence. Divorce attorneys will typically assist the client with getting a domestic violence restraining order against the other person.A restraining order, also known as an order of protection, is an order by the court that sets forth what conduct is or is not permitted between a person who has committed threats or violence against another person. Behavior that constitutes domestic violence for purposes of seeking an order of protection can be physical abuse, sexual assault, making someone reasonably afraid of being hurt, or harassing, stalking, disturbing someone’s peace, etc. First, a Temporary Restraining Order must be obtained. Then, the Court will set a date for the parties to return to Court and request that the Restraining Order be made a Permanent Order. Also, according to Family Code 6320(a), “The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, making annoying telephone calls”

Depending on the severity of the situation, you can also pursue criminal prosecution against the abuser or harasser. In fact, California Penal Code Section 653m (b) provides that “Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor.” So your ex calling you over 145 times during the span of a mere 11 hours, like what recently happened in Florida, could not only warrant an order of protection but may also be considered a crime punishable pursuant to the California Penal Code. Of course, excessive phone calls or electronic contacts that are made in good faith or during the ordinary course and scope of business, would not be punishable under the Penal Code.
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In every California divorce proceeding, both parties must take a good hard look at their joint and individual finances. This is because, at the outset of the divorce process, both parties are required to provide an exhaustive list of all assets, debts, income and expenses. This aids in the division of property and determination of support. However, sometimes once all the facts are laid out in black and white for the parties, they realize that they have much more debt than they originally thought. If the parties’ financial situation is dire enough, one or both parties may file bankruptcy.

If you are going through a divorce and are considering filing bankruptcy it is important to discuss this decision with both a bankruptcy attorney and a certified family law specialist. Together, these professionals should be able to give you all of the information necessary to make the decision regarding whether to file for bankruptcy or not. If you decide you would like to file for bankruptcy, you should consider the timing of your filing and the effect it will have on your divorce case.

Once a party to a divorce action files bankruptcy, the bankruptcy case operates as a stay to all proceedings regarding the division of community property that is the property of the bankruptcy estate. The stay does not operate to prevent proceedings to collect, modify or enforce child and/or spousal support payments against current income. Further, the divorce proceeding itself is not stayed. However, a dissolution proceeding cannot be completed until all property is divided. If property division is stayed pursuant to an ongoing bankruptcy case, the resolution of the divorce case will likewise be stayed.

If a divorce judgment is entered in violation of a bankruptcy imposed stay of proceedings, the divorce judgment is still valid. However, the divorce judgment will have no legally binding effect on the bankruptcy case. The divorce judgment is effective and binding as between the parties but has no legal effect on the bankruptcy authorities. The bankruptcy court does have the option to deflect jurisdiction to the family court to establish the character or title to property held in the debtor’s estate. Unless and until the bankruptcy court deflects such jurisdiction to the family court, the property of the estate will be controlled by the bankruptcy court. In the context of a post-judgment motion or case where the parties to a family law matter were never married, filing bankruptcy does not stay a request to establish or modify child or spousal support.
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In a typical California divorce case, spousal support is awarded based on the need and ability to pay of the parties. However, if there is a history of domestic violence in a case, the spousal support analysis is not so simple. Embedded within California Family Code and cases is the public policy disfavoring an awarded of spousal support from a victim of domestic violence payable to his or her abuser. In making a decision regarding long term spousal support the court is required to consider all of the factors outlined in Family Code § 4320 including domestic violence. In addition, the family courts can make support and property orders in a proceeding brought under the Domestic Violence Prevention Act.

Family Code § 4320(i) provides that the court shall consider the following circumstances: “Documented evidence of any history of domestic violence, as defined in [Fam. Code §6211], between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.” The Family Code also has provisions creating a presumption that a spousal support award should not be made in favor of a person convicted of a crime of domestic violence.Although the law is clear regarding cases where a finding of domestic violence has been made or where one party has been convicted of a crime of domestic violence, what happens if a spousal support hearing is conducted while a domestic violence case is pending? Recently, a California appellate court held that a court may award spousal support in a proceeding brought under the Domestic Violence Prevention Act prior to reaching a conclusion that domestic violence has occurred. Contrary to cases where an alleged domestic violence abuser is requesting support, this recent case addressed the issue of support due to the alleged victim. Domestic violence hearings can get continued out (for months sometimes) for a variety of reasons. The court reasoned that is should not withhold support for an extended period of time just because the domestic violence issues have not been decided.

Domestic violence cases are always emotionally charged and carry significant implications for both parties. It is always important to discuss your domestic violence case with an experienced family law attorney to ensure that your rights are protected.
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