Articles Posted in Divorce

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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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On July 26, 2012, Stevie Wonder signed a petition for divorce with two of his fingerprints. After eleven years of marriage, Wonder cited “irreconcilable differences” as the reason for his divorce from wife Kai Millard Morris. Wonder and Morris have been living separately for nearly three years since October 2009. According to the divorce petition, Wonder is seeking joint custody of the couple’s two children, Kailand, 10, and Mandla, 7. From 1970 to 1972 Wonder was married to singer Syreeta Wright and is the father to a total of seven kids from both marriages and other relationships. The petition also states that Wonder agrees to pay child and spousal support.California is a community property state. This means that all property acquired by either spouse during marriage is to be divided equally between the spouses upon divorce. These assets are called community property. Community property can only be acquired after the date of marriage but before the date of separation. The date of separation is determined by a combination of two factors. First, the spouses must be living separately and apart. Second, at least one spouse must intend not to resume the marital relationship. The court will evaluate whether a separation has occurred based on a mixture of relevant objective and subjective intentions and behaviors. Because Wonder and Morris began living separately in 2009, the first factor is satisfied. The court will next look at the actions of either party including but not limited to: whether they continued to commingle finances, celebrated anniversaries and/or romantic holidays together, and whether either party continued to perform marital duties.

Stevie Wonder amassed most of fortune before his marriage to Morris thus; Morris will not be entitled to any of these premarital earnings. All of Wonder’s earnings before marriage are separate property. Upon divorce, separate property is awarded entirely to the separate property estate. If the parties entered into a valid premarital agreement, default community property laws will not apply to asset division and Morris may be entitled to some of Wonder’s premarital earnings. Kai Morris is famous in her own right as a fashion designer. She earned notoriety from the support of the First Lady, Michelle Obama. Wonder may be entitled to a portion of Morris’ earnings acquired during the marriage, before the date of separation.The issue of child custody will be decided by the court under the guidance of the best interest of the child standard. Unless the court is presented evidence that either parent is somehow unfit, Wonder’s request for joint custody will likely be granted. The parties may reach an independent agreement regarding child custody and avoid a divorce trial.

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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On December 30, 2011 Russell Brand filed for divorce from pop icon, Katy Perry. After only 14 months of marriage Brand cited “irreconcilable differences” as the reason for the split. The couple married on October 23, 2010 in an extravagant ceremony in India. When the pending divorce caught the attention of the media Brand released the following statement: “Sadly, Katy and I are ending our marriage. I’ll always adore her and I know we’ll remain friends.” The divorce petition does not list a date of separation for the couple. However, it is undisputed that Perry earned approximately $44 million during their short marriage.

Once Russell filed for divorce, rumors swirled about whether the Hollywood couple had signed a premarital agreement. The Perry-Brand divorce was finalized on July 16, 2012 and it is clear that no premarital agreement was signed. The pair reached a marital settlement agreement in February; however, were required to wait the requisite six-month period before obtaining a legal divorce. In San Diego, there is a mandatory six-month period between the date of service of the divorce petition and the termination of marital status. Apparently the marriage happened so quickly that neither star had the time to consult an attorney before tying the not.

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The average divorce in San Diego involves more than just dividing up the family house and vehicles. Today, most Americans are connected to some mobile device from the moment they wake up each morning. Courts, according to California community property law, have traditionally divided tangible family assets between the spouses. However, parties are now wondering who will be awarded cell phones, iPads, iTunes accounts and access to iCloud. During marriage, many spouses store family data on one iCloud account. This account could potentially be a virtual asset the parties wish to divide.

As we have previously blogged, social media is becoming an important tool in divorce proceedings. Websites such as Facebook are used to provide courts with evidence of a spouse’s wrongdoing or misconduct. However technology is invading San Diego family courts in a new way. Spouses now have digital community property assets to be divided upon divorce. As a general rule, each community property asset is divided equally upon divorce. An asset is a community asset if it was acquired during the marriage and before the date of separation. All other property acquired before marriage and after the date of separation is separate property.

Virtual property presents a new challenge to the community property system. How can a shared iTunes account be divided in half? Will the court allow each party to present a case as to which songs they would like to receive as part of the judgment? How can a court divide digital storage space, books, movies, or games? Many spouses also have amassed a large collection of characters, virtual clothing, weapons, and currency in online communities and games. These virtual acquisitions become community property when they are purchased with actual community funds.

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