Articles Posted in Divorce

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Throughout Del Mar and San Diego County, many divorcing parties are unclear about the concept of “alimony.” In California, the Family Codes and courts use the term “spousal support” instead of “alimony” to reference payments made from one spouse/former spouse to another for his or her financial support. Most parties are aware of the fact that once the divorce is over the court can order one party to pay the other spousal support. However, considering that the divorce process can take years for some litigants, many parties are unsure of what they should do in the mean time.

Temporary Spousal Support: Under the California Family Code, San Diego courts have the authority to make temporary spousal support awards. These awards are called “temporary” because they last only until the divorce is finalized. The purpose of a temporary spousal support award is to maintain the status quo until the time of trial and is intended to be a short-term solution. Based on the limited funds of the parties, it may be impossible for both to maintain the status quo of the marriage. Thus, in this situation, the judge will make an award as close to the status quo as possible. The quick and expedient method of calculating temporary spousal support is called the “guideline” formula. In order to determine guideline support, the judge will input various factors such as the incomes of the parties, tax filing status of the parties and any tax deductions and the formula will produce a guideline amount of support. However, the actual support awarded is within the family court judge’s broad discretion.

Permanent Spousal Support: “Permanent” spousal support is a misnomer. Often, even in long-term marriages, spousal support is not automatically “permanent.” Permanent spousal support simply refers to the spousal support award made at the conclusion of the divorce proceedings (as opposed to temporary support). In order to set permanent spousal support, the court is not permitted to simply use the guideline formula to come up with an amount. Instead, the family court judge will consider all of the factors listed under California Family Code section 4320. These factors include but are not limited to: the paying spouse’s ability to pay, needs of the parties based on the marital standard of living, health of the parties, the obligations and assets of both parties, the tax consequences of support, and any documented evidence of domestic violence. Additionally, the court may consider “any other factors” which would produce a “just and reasonable” result.

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In San Diego, the divorce process can range between six months and several years. This significant time span can have a serious impact on value of assets. Considering the volatility of the stock market and real estate prices, the date of valuation can become a contested issue. Consider the following example: During marriage Husband created and operated a business. After separation, Husband continued to expend efforts and the value of the business grew substantially. By the time of trial the value of the business is triple than at the time of separation.All property acquired and all income earned during marriage is community property. Upon divorce, both parties have a one-half interest in the community’s portion of an asset. Because the business was created during marriage and Husband expended efforts in the business during marriage, a portion of that business is community property. Therefore, Wife will argue that for the purposes of division, the business should be valued at the time of trial. Husband, on the other hand, will argue that the business should be valued as of the date of separation.

Under California Family Code section 2552, “for the purpose of division of the community estate upon dissolution of marriage or legal separation of the parties…the court shall value the assets and liabilities as near as practicable to the time of trial.” Thus, as a general principle of law, assets are valued at the time of trial. However, the court may, for good cause, value all or any portion of the assets and liabilities at a date after separation and before trial to accomplish an equal division of the community estate in an equitable manner.California courts have determined that good cause exists to value an asset at the date of separation rather than the date of trial if the increase in the fair market value was due to the owner’s personal services, not capital assets. This means that if the value increased due to market fluctuations or other outside factors, the asset will be valued at or as near as possible to trial. However, if goodwill, accounts receivable, or other efforts by the owner lead to an increase in value, the asset will be valued at the date of separation.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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Child support, if ordered, is an ongoing parental obligation that usually terminates when the child reaches eighteen years of age, graduates from high school, becomes married or is otherwise emancipated. The amount of child support owed is dependent upon a number of factors such as the income of both parties and the needs of the children. Child support is strictly enforced in a number of ways. Boxing champion Evander Holyfield recently learned that the court’s ability to enforce child support extends to celebrities. Holyfield was held in contempt of court for failing to pay past due child support.

In San Diego County, the Department of Child Support Services (DCSS) is one state entity that enforces child support orders. Holyfield was pursued by the Georgia Department of Human Services, which serves a similar function as DCSS. The Georgia Department of Human Services includes the Division of Child Support Services. By the time that the State of Georgia became involved in Holyfield’s case, his daughter, Emani Holyfield was eighteen years old and he owed $372,097.40 of unpaid support. By the time he was held in contempt of court, Holyfield’s debt had reached a staggering $563,000.00. The court ordered Holyfield to make payments in the amount of $2950.00 per month. In order to get a head start, Holyfield immediately made a payment of $17,700.

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Discovery is an important tool for any party to use in a Del Mar family law case. Through the process of discovery, parties can obtain the information necessary to reach an agreement or decide which issues are contested. Discovery tools include: interrogatories, demands for production, depositions and subpoenas. Each tool is used to obtain a specific type of information from a particular litigant, witness, or third party. Although family law attorneys usually propound and respond to discovery, the client can have a vital role in lowering costs and ensuring the process goes smoothly.

Once a family law case has been filed or a spouse is anticipating filing for divorce, each party is under a duty to preserve evidence. The court encourages parties to freely exchange information so that the court can have a complete picture of the case. Any destruction or spoliation of evidence is punishable. As a client, as soon as you know that you will be involved in litigation it is crucial to begin organizing all relevant information. Attorneys need a complete view of your finances in order to calculate possible support or to begin analyzing the division of the marital estate. The following is a list of records that will likely be important in your divorce: (1) tax returns for the past three calendar years, (2) Form W-2s for the last three calendar years, (3) a series of your most recent pay stubs, (4) all statements for each credit card and debt card as of the date of separation, (5) K-1 forms if relevant, and (6) accounting data such as QuickBooks if relevant.

The date of separation is often a focal point of the discovery process. The marital economic community ends upon the date of separation. Under the California Family Code, the date of separation occurs upon the conversion of two factors. First, the parties must effect a physical separation and second, at least one party must have the subjective intent not to resume the marital relationship. The parties can only accumulate community property during the marital economic community. Thus, any property acquired or earned after marriage until the date of separation is community property. As a general rule, community property is divided evenly between the parties upon divorce. Many San Diego spouses have a collection of credit and debit cards that both parties use on a regular basis. In a divorce, an attorney will need to know the balance of all of those accounts as of the date of separation. Printing out your most recent statements including those as of and surrounding the date of separation is an easy way to get a head start on the dissolution process. Additionally, if you know a divorce is pending, it is also prudent to gather your recent tax returns and pay stubs to provide to your attorney. The client’s role in discovery is crucial, by preparing and keeping organized records, you can save your attorney time and save in legal fees.

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Recently the California Court of Appeal handed down a decision that has settled an ongoing dispute throughout San Diego family courts. Family law attorneys agree that spouses owe each other the highest duties of good faith during marriage and undoubtedly throughout the litigation process. This duty requires parties to keep each other informed of their current financial state by exchanging Declarations of Disclosure.

In the beginning of a dissolution case, both parties complete their Preliminary Declarations of Disclosure, which consists of an Income and Expense Declaration and a Schedule of Assets and Debts. By completing these two forms and their requisite attachments the parties provide their current assets, debts, income and expenses. These figures can help the parties settle disputes regarding property division, child support or spousal support. If the court will hear a motion regarding support, the parties must also file these disclosures with the court. The judge will use the information provided to set support amounts. Because of the immense reliance on disclosure of finances, the court takes the fiduciary duties of spouses seriously.

In the recent California case, In re Marriage of Sorge, the court was faced with a slightly different scenario. The parties sought a modification of support at the trial court level; however, they were already divorced and had reached a final resolution of their case. Wife argued that Husband breached his fiduciary duties because he failed to disclose a material change in his finances. Husband argued that he was under no obligation to disclose any changes because the fiduciary duties between spouses end upon a final resolution of the case. The trial court agreed with Wife and Husband appealed the decision.

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The world watched as reality television star Kim Kardashian married NBA player Kris Humphries in August of 2011. However, the marriage lasted only seventy-two days and in October of 2011 Kardashian filed for divorce. Surprisingly, the bitter divorce battle has by far outlasted the short length of the marriage. Next month, will mark the one year mark since divorce proceedings began and the case is not likely to settle before then. Kris Humphries announced that he does not intend to settle with Kardashian and the case will likely proceed to trial. Considering the massive amount of witnesses Humphries intends to call (thirty three) and their fame and notoriety, it is no surprise that the trial has been delayed until 2013. The parties have found it difficult to coordinate the schedules of all people involved.

Considering the “iron clad” premarital agreement, the biggest question surrounding this drawn-out divorce is why the couple cannot settle. Kardashian wants her marriage to be over as soon as possible and it is clear that she has moved on with her life. Her and her attorney have no doubt sent over countless settlement proposals, all of which have been rejected. Humphries argues that Kardashian has been hiding information regarding her financial records ever since the beginning of their marriage and he intends to use the law to discover her “secrets.” Humphries also alleges that the entire marriage was a fraud and that Kardashian only entered into it for publicity. Ironically, it was Humphries who skyrocketed from a no-name basketball player to signing a $24 million extension with the Nets.

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PayPal founder Elon Musk announced his divorce to actress Talulah Riley on the social media site Twitter. PayPal was created as a form of e-commerce, which would allow users to safely make purchases over the internet. Notably, in October of 2002, PayPal was purchased by the online shopping conglomerate eBay for a reported $1.5 billion. Musk and Riley met in 2008 and married in 2010. According to the Huffington Post, Musk proposed to Riley just a few weeks after filing for divorce from his first wife. Musk was with the first Ms. Riley for four years before they separated. The couple has two sons together.

The Musk-Riley divorce was final in July 2012, which puts the length of the marriage at approximately two years. Despite the short duration of their union, Riley reportedly walked away with $4.2 million. Although this amount may seem high, Musk’s entire fortune is approximately $680 million. Riley’s divorce settlement gave her 0.6% of Musk’s wealth. Additionally, there is no indication that Musk will pay any spousal support to Riley.

One advantage to the quick settlement of such a public divorce is that the parties are able to avoid dragging the divorce out in the public eye. However, many speculate that Riley could have received a larger amount had she battled Musk in court. Under California family law, Riley would have been entitled to her community property share of the community estate. Community property includes all earnings of both spouses. This means that she could have been awarded one-half of Musk’s earnings from the date of marriage to the date of separation. According to the terms of the settlement agreement, in addition to a $4.2 million pay out, Riley secured her Cartier watch, Gucci watch, various pieces of diamond jewelry and her Roadster.

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Another “Real Housewife” marriage is over. Dr. Paul Nassif filed for divorce from Beverly Hills Housewife Adrienne Maloof. Originally, Nassif filed for legal separation in July but has now decided to proceed with a divorce. Maloof is worth an estimated $300 million but she did not earn that money simply by being a housewife. Maloof earned her millions as a co-owner of her family business named Maloof Companies. Maloof Companies is famous for its ownership interest in the Sacramento Kings and the Palms Casino Resort in Las Vegas. Although his fortune nowhere near rivals that of his wife, Nassif is worth an estimated $14 million, which he earned as a successful cosmetic surgeon.

The couple married in 2002 and has three children together, Gavin, 9 years old, and 6 year-old twins, Christian and Collin. Considering the large fortune at stake and the long-term nature of the marriage, the most prominent issue in the divorce will be the validity of a premarital agreement. According to Nassif’s lawyer, Lisa Helfend, a premarital agreement is in place. The divorce petition affirms the existence of a premarital agreement. However, there is no indication of whether either party will challenge it. Depending on the terms of the agreement, Nassif may have a motive to argue that it should not be enforced.

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Before and during marriage, grandparents can provide substantial financial and emotional support to a family. Grandparents often pay for weddings, put down payments on the family home, and create college funds. In addition to lending or gifting money, grandparents also volunteer to babysit daily when both parents have to return to work. The grandparent who provides daycare often transports the children to extracurricular activities and enriches their education. Grandparents may also volunteer to take the children for overnights when the parents need a date night and time alone to nurture their relationship. During marriage, grandparents can play an integral role in child rearing. However, this potentially close and beneficial relationship between grandparent and grandchild may not be so honored upon divorce.

According to the statistics released by AARP, the average grandparent spends approximately $1,000 on his or her grandchild each year. However, despite their generosity and support, grandparents receive little protection in a divorce proceeding. Upon divorce, for a variety of reasons, one parent may limit the visitation of a grandparent. The grandparent may be prohibited from visiting with his or her grandchild while that child is in the care of one parent. The consequences of this prohibition can be devastating if the hostile parent is awarded physical custody while the other is only permitted specific visitation. This sudden change in the grandparent-grandchild relationship is traumatizing for both parties involved.

Although many grandparents attempt to intervene in divorce proceedings to assert their rights to visitation, they are rarely rewarded with victory. In 2000, the United States Supreme Court decided the case of Troxel v. Granville. In this case, grandparents petitioned for visitation rights after the mother limited visitation to one day per month and some holidays. The Supreme Court relied on a parent’s fundamental right under the Constitution to make decisions regarding the upbringing of their children in making their decision. The Court held that requiring a parent to facilitate grandparent visitation against his or her wishes violates that parent’s right to make decisions regarding the “care, custody and control” of his or her children. Despite this particular holding, the Court did not find that visitation laws are per se unconstitutional, therefore California still allows grandparents to seek visitation rights.

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There has been a back and forth trend in custody and visitation legislation preferring one sex to the other. The first custody laws in the United States automatically granted father custody of the child unless he was determined to be unfit, unavailable, or agreed to grant the mother custody. Later, the “tender years presumption” replaced the paternalistic custody laws. Under this new presumption, mothers became the preferred custodian because they were seen as nurturing and in the best position to provide children with the care they needed. Eventually, this notion faded because it merely perpetrated a gender stereotype and opponents argued that it was unconstitutional. Under the California Family Code today there is no stated gender preference. However, both men and women argue that gender bias exists in the courts against their respective sexes.

The Father’s Rights Movement began in the 1970’s as a new perspective on which parent is the preferable custodian in a custody dispute. Supporters argue that the family courts are consumed with gender bias against men and blindly award support and custody to women by virtue of their sex. These groups promote changes to family law that emphasize the rights of parents or the child’s rights to both parents.

Divorce lawyers have begun targeting husbands who may subscribe to the notion that the family laws and courts are predisposed to favor women. This new type of law firm advertises to men through sports magazines, on the radio, and on television. It targets programming most often viewed by men and less likely to be watched or listened to by women. The men who hire the “divorce for men” law firms fear losing their children and money on the basis of gender. They argue that women are automatically awarded custody and spousal support because of the existence of gender stereotypes and bias. One such firm claims to “specialize in men’s issues.” This statement is based on the assumption that “men’s issues” exist currently in San Diego family law courts. The controlling standard in any child custody and visitation case is the best interest of the child. When considering the various factors outlined by the family code, there is no indication that the gender of each parent should be addressed at all.

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