Articles Posted in Judgment

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puzzle-3223941_1280-300x182Whether you are getting ready to file for divorce, or already have, you probably have seen or heard the words “community property” and “separate property” many times.  These are common family law terms that parties will need to understand throughout their proceeding for dissolution.  Pursuant to Family Code section 760, “Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.”  This statute is followed by Family Code section 770, which states, “Separate property of a married person includes all of the following: (1) all property owned by the person before marriage, (2) all property acquired by the person after marriage by gift, bequest, devise, or descent, and (3) the rents, issues, and profits of the property described in this section.” Continue reading

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What does the “date of separation” mean and why is it so important?separation-date-300x202

When a spouse files for divorce the first issue to tackle is often the parties’ date of separation.  One might think that the date of separation is when the petition was filed in the divorce, or when one spouse moved out.  However, the date of separation is often fact driven and can be a complicated issue to resolve.

Pursuant to Family Code section 70 the “date of separation” means that a complete and final break in the marital relationship has occurred, such that (1) the spouse has expressed to the other spouse his or her intent to end the marriage, and (2) the conduct of the spouse is consistent with his or her intent to end the marriage.  The court has stated that there must be problems “so impaired” in the marriage that there is no reasonable possibility of “eliminating, correcting, or resolving these problems.”  (In re Marriage of Hardin (1995) 38 Cal.App.4th 448.)  Ultimately, the court will look towards the parties’ subjective intent to end the marriage, and the parties’ outward persona should not be considered. Continue reading

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For most people, the decision to get divorced is not reached on a whim.  More often than not, “Breaking up is like knocking over a Coke machine.  You can’t do it in one push.  You gotta rock it back and forth a few times, and then it goes over.” (-Jerry Seinfeld)

It is not uncommon for those going through the divorce process to at some point become frustrated by the amount it is taking to, what in itself sounds simple, end their marriage! While sometimes bittersweet, many people returning to checking the “single” box, provides, a sense of progress, relief, satisfaction, accomplishment, or even freedom. This is especially true for those who have been enmeshed in lengthy highly contentious and stressful litigation. Continue reading

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Yes, even Spice Girls get divorced just like any one of us. In March 2017, former Spice Girl Mel B, perhaps better known as “Scary Spice” or as a current judge on America’s Got Talent, filed for divorce from her husband of 10 years, Stephen Belafonte.

Mel B, worth a reported $60 million, filed for divorce in a Los Angeles Superior Court after she and Belafonte separated in December 2016. While Mel B’s nickname might have been “Scary,” it seems as though her marriage to Belafonte was in fact scary, as she filed for a restraining order against him shortly after filing for divorce. It appears that she had been covering up injuries from abuse from Belafonte for years. And, while Mel B’s petition reportedly requests joint custody of the couple’s daughter, it also requests that the Court to deny spousal support to Belafonte. Continue reading

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We’ve written blogs in the past about the time it takes to get a divorce in California and the infamous six-month statutory minimum waiting period. Even so, we are constantly faced with clients who come in with the misconception that their divorce will be completely over in 6 months. While that may be the case, experience tells us that a six month divorce is pretty rare.

First, let me repeat: six months is the MINIMUM length of time your divorce can take to be finalized in the state of California. This statutory waiting period is without exception. Whether you are self-represented or you retain an attorney in your divorce case, you cannot legally be “single” until six months has passed from the day you (or your spouse) filed the petition for divorce. Continue reading

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If you have been through or are going through a divorce, you likely learned the hard way that a divorce is a longer and more complicated process than you previously expected. Wouldn’t it be nice if you could finalize your divorce in one weekend? Well, a Dutch company called DivorceHotel International has recognized this desire in divorcing couples and come up with a solution: a weekend divorce getaway, where divorcing couples stay at a hotel and in one friendly weekend sort out all of the details of their divorce. Continue reading

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Child custody is one of the most difficult and emotional parts of any contested divorce.  It is not uncommon for two parents to agree on all of the financial issues, child and spousal support, and property division, only to find it impossible to come to any agreements about how their children will be raised post-divorce.  It is understandable too; we love our children and we want what is best for them. This point, wanting the best for our children, is the great irony of child custody litigation.  Ask any parent whether they believe dragging their children through months or years of custody litigation is healthy for them.  They answer will be a resounding, “No.”  Yet that is exactly what happens in so many family law cases. Continue reading

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Appeals can be a lengthy, difficult, and expensive process. In fact, most civil appeals in the Fourth District Court of Appeals, Division One (San Diego) take about a year from start to finish. If a trial court’s error is the result of a minor oversight or a mathematical error, it might be a better idea to simply direct the Court’s attention to the oversight or error than go through the trouble of an appeal. In our experience, judges have been almost universally open to correcting these kinds of minor oversights or errors at the trial level, particularly if the oversight or error resulted from the judge’s own mistake.

It is very important, therefore, for one to use the proper procedures. There are two procedures that come to mind. The first is a motion pursuant to Code of Civil Procedure 473(d), which is designed to allow for the correction of clerical mistakes. Code of Civil Procedure section 473(d) reads as follows: Continue reading

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Divorce is hard. Divorce where minor children are involved is harder.

As divorce attorneys, child custody disputes often become the most contentious issues that we face.  Of course this is understandable. When parents divorce, they have to face the reality that they will no longer be with their children 100% of the time. This is a hard pill to swallow for almost every parent, and it seems to be more difficult the younger the children are.

Often, each parent becomes stuck in the mindset that the children are better off with him or her, and 50/50 custody quickly becomes an unacceptable proposal. Unfortunately though, many times this is because the parents are caught up their own feelings about their soon-to-be ex-spouse, and forget to consider what is really in their children’s best interest.  Continue reading

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Family Code section 3580 et seq. provides that spouses may enter into agreements regarding support upon separation. In Pendleton and Fireman, our Supreme Court held that parties could agree to limit or waive spousal support in premarital agreements. What about the time in between? Can married spouses who have not yet separated enter into enforceable agreements to limit or waive spousal support?

Although the answer to this question has not been definitively settled by our appellate courts, there is a strong argument to be made that married couples who have not yet separated cannot agree to limit or waive spousal support. Continue reading

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