Articles Posted in Post-Divorce Issues

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The cost for a college education can be astronomically high these days. Of course, most parents are still eager for their children to get a college education. However, a major concern for divorcing parents with children is not only how they will pay for college once their child graduates high school, but who exactly will pay for all of the expenses that come with a college education. For some divorcing couples, this might not be an issue if money has already been earmarked for college. For other divorcing couples, the thought of their child being accepted to college can cause bittersweet anxiety.

Generally in California, child support payments will cease when the child reaches the age of 18. Beyond that, divorce attorneys will advise that there is typically no legal obligation for either parent to pay for the child’s college education, unless so ordered by the courts. So what happens, for instance, when one of the divorcing parties plans to remarry and ends up having other children who have their own tuition needs? Will he/she even chip in when it comes time to pay for college?

The best way to ease anxiety and secure payment for college expenses from your soon-to-be ex-spouse is to include such an obligation in your Marital Settlement Agreement (MSA) that addresses college support in addition to any child support agreements. An MSA is an agreement between divorcing spouses that addresses issues such as custody, support, and property division. A provision in a Martial Settlement Agreement regarding payment of college expenses will typically include details such as what percentage of college expenses each parent will be responsible for, restrictions on which types of college the provision will apply to (if any), and exactly which expenses will be covered (this may include tuition, room and board, books, extracurricular activities, etc.).

So while there is no legal obligation for one or both of the divorcing parents to pay for their kids’ college, absent a court order, it’s advisable that the parties not overlook the possibility of including a provision regarding college expenses in their Marital Settlement Agreement. This might serve to save a considerable amount of financial worries down the road and encourage divorcing parents to start setting aside funds for their portion of the future college payments.
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Many divorcing couples wonder if there is a point in their life at which time they may be considered “too old” to divorce. Of course, a person may file for divorce in California no matter what their age is. But, still some may wonder if, after a certain age, it is even worth it. Nonetheless, as we have previously blogged, divorce among the over-50 crowd appears to be on the rise. New York Times even reports that “more Americans 50 and older are divorced than widowed, and the numbers are growing as baby boomers live longer”.

One such statistic in the over-50 crowd is well known actor, Richard Gere, and his model-actress wife, Carey Lowell, who are reportedly calling it quits after 11 years of marriage. Gere is at the ripe age of 64, while Lowell is 52 years old.

So why are older couples like Gere and Lowell headed for divorce? LA Times reports that the reason for the split between Gere and Lowell is that Gere allegedly enjoys privacy and socializing. For other couples over 50, the possibility of divorce may be more tempting as there is a greater social acceptance of divorce these days. Another reason is that people are living longer and thus still view themselves to be able to get out and have a life after divorce. This is especially the case once the children are grown up and out of the house, at which time it may actually seem easier to get out of a marriage that has grown stale.

The increased economic autonomy of women has also given women over 50 years old a greater likelihood of seeking divorce, even at a later age in life, because many women feel that they have the ability to support themselves and live a stable life after divorce, despite their older age. The increased work experience of women and greater sense of their own responsibilities is often incentive to get out of a marriage rather than to just wait it out.

Although there are many reasons for the rising divorce rate among people over 50 years old, there are also some pretty significant reasons why divorce is not a good idea for the older crowd. One big reason is that older folks have a greater likelihood of being in poor health; an emotionally draining divorce can deteriorate a person’s health even more. Those considering divorce over 50 also must consider how a divorce will affect retirement plans. Moreover, divorce between older couples with children may result in placing an even heavier burden on the children to help support each parent financially and emotionally.

If you are over the age of 50 and considering divorce or separation, it is important to seek the advice and assistance of an experienced divorce attorney.
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Spousal support is an aspect of family law that divorce attorneys frequently answer questions about. In states such as Massachusetts and Florida, second wives are lobbying for spousal support legislation reform regarding “permanent” spousal support (commonly referred to as “alimony”). To clarify, in California, “permanent” spousal support is not a guarantee of a lifetime of support. However, it is only a spousal support award made at the conclusion of a divorce case. In contrast, “temporary” (or pendente lite) support is a spousal support award made during the pendency of the proceedings.

Because of the extremely broad and generous spousal support statutes, many second wives are reaching into their own pockets to contribute to the support of their husband’s first wife. The second wives argue that they too have been sentenced to a lifetime of spousal support payments which hinder their ability to plan for retirement, prevent them from assisting their children and grandchildren financially, and generally reduce their overall standard of living.

Learn more about marital standard of living

In many states, the family code and court rulings permit the Court to consider the income or assets of a second spouse where the income of such spouse contributes to the support of the household, giving the paying spouse more of his own income with which to satisfy spousal support obligations. Under California Family Code § 4323, family courts are prohibited from considering the income of the supporting spouse’s subsequent spouse when determining or modifying spousal support. Despite this blanket prohibition, cases which held that a new spouse’s income may be considered to the extent that the income reduces the paying spouse’s living expenses (and thus increased the ability to pay) may still be viable. It seems even California has a giant loophole which grants Courts discretion to consider income of new spouses when considering a divorce attorney’s request for spousal support determinations or modifications for their client.

With second wives demanding reform, legislators are in a difficult position as they will be balancing the interest of the first wife and her right to support against public policies such as a supported spouse’s obligation to become self supporting and the supporting spouse’s right to move forward after divorce. The Second Wives Club has a few suggestions which it feels fairly addresses the rights of all parties.

Read more about divorce and alimony reform

The reformers are pushing for durational spousal support awards which are sufficient to permit the supported spouse to gain the education, training, or experience necessary to become self-supporting. The duration of the spousal support will be contingent on the length of the marriage, the age of the supported spouse and the supported spouse’s ability to become employed. Upon the date set for payments to end, the supporting spouse’s obligation to pay spousal support will end regardless of whether supported spouse has become gainfully employed. Although the Second Wives Club is lobbying strong in various states, divorce attorneys feel that California will likely not experience significant reform in this area any time soon.

www.BickfordLaw.com


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In January 2013, divorce attorneys were abuzz as our local Court of Appeal took a strong stance with regard to enforceability of Marital Settlement Agreements (“MSA’s”). In San Diego family law cases, the parties to a divorce have the ability to enter into agreements regarding any area of their case. Settling issues such as child custody/visitation, support, and property division is advantageous to the parties because they have the opportunity to craft unique provisions which meet their individual needs. San Diego family courts are limited by the California Family Code and local/state guidelines in what types of orders they can make. However, when parties and/or their divorce attorneys draft their own settlement terms it is imperative to consider all possible future scenarios before signing a Marital Settlement Agreement.

In the unfortunate case of Marriage of Hibbard, the parties to the divorce agreed that spousal support “shall not be reduced to an amount lower than two thousand dollars per month” and would only terminate upon Wife’s death or remarriage or the death of Husband. In this case, the parties were married for thirty years from 1971 to 2001. At the time of separation, Husband and Wife were both lawyers. Husband earned $84,000 per year and Wife earned $24,000 per year. In 2011, Husband’s post traumatic stress disorder (“PTSD”) fully manifested and hindered his ability to work. Husband’s PSTD symptoms began in 1970 after he served in combat in Vietnam.

In 2012, unable to work more than a few hours a day and drowning in debt, Husband filed a motion in family court to modify spousal support. After shutting down his law practice, Husband only expected to receive $4,040 per month in income from disability and Social Security. Wife opposed Husband’s request to modify support stating she was only receiving $1,738 per month in teacher’s retirement and Social Security. Wife also stated she was similarly unable to work. The trial court held that it was unable to modify spousal support outside of the terms of the marital settlement agreement and therefore refused to reduce support lower than $2,000 per month. The Court of Appeal upheld the trial court’s decision.

Marriage of Hibbard is a great example of the importance of carefully considering and drafting Marital Settlement Agreement provisions. Before singing their Marital Settlement Agreement, the Hibbards could have easily imagined a situation where Husband would be financially unable to pay Wife $2,000 per month in spousal support. However, they did not provide any exceptions to the blanket prohibition on a spousal support award lower than $2,000 per month. The Court upheld their agreement despite its unfair applicability to the parties’ current circumstances. Marital Settlement Agreements are interpreted under general contract laws which hold that contracting parties have the right to enter into any agreement of their choosing. Divorce attorneys will advise their clients that the role of the court is not to re-write agreements but rather to enforce them as written.

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Is it possible to go after my ex-husband’s new wife’s income in order to increase his child support obligation? This question probably comes across a divorcée’s mind more often than not. Unfortunately, if your ex-husband remarries, you will most likely be unsuccessful in pursuing his new wife’s income as family law courts have proven to be quite reluctant to include a new spouse’s income for purposes of calculating child support. The court’s logic behind this is that the payment of child support should be the parent’s obligation rather than that of the new spouse.

Prior to 1994, courts had authority and discretion to consider a subsequent spouse’s income when setting a child support award. However, as San Diego divorce attorneys know, when an ex-spouse remarries, child support adjustments are now governed by Family Code Section 4057.5. This statute prohibits courts from considering a subsequent spouse’s income unless the exclusion of the subsequent spouse’s income would cause the child to suffer extreme and severe hardship. In other words, if you are the parent seeking to modify the child support order after your ex-husband has remarried, then you should attempt to prove that the child would suffer an extreme and severe hardship if the earnings of your ex-husband’s new wife were excluded in considering an award for child support. Thus, courts look exclusively to the needs of the child.Pursuant to Family Code Section 4057.5 (b), an extraordinary situation that might constitute an “extreme and severe hardship” is where the ex-spouse voluntarily or intentionally quits working or intentionally remains unemployed or underemployed and relies on his subsequent spouse’s income. Such a situation would warrant consideration of all of the community property of ex-husband and his subsequent spouse in modifying the ex-husband’s child support obligation.

Read more about child and spousal support

As an aside, seeking to modify child support by attempting to include the subsequent spouse’s income, might in fact backfire and actually reduce the child support award instead. For instance, if your ex-husband remarries and his new wife makes a considerable amount of money, then he will likely be in a higher tax bracket (if married filing jointly), thereby reducing the amount of his disposable income. In turn, this will then likely reduce the amount of child support that your ex-husband has to pay. However, it is likely that such a decrease would only be a minimal amount each month, depending on how much his subsequent spouse makes. Nevertheless, the subsequent spouse’s income certainly won’t increase your husband’s child support obligation unless the “extreme and severe hardship” exception is met.
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The U.S. peered into the private lives of Jamie and Frank McCourt, owners of the Dodgers, as they publicly litigated their contentious divorce in California. The former couple’s dispute over ownership of the California baseball team resulted in what is rumored to be one of the world’s most expensive divorces. After substantial attorney fees and costs were racked up throughout the proceeding, the McCourt’s reached a divorce settlement in October 2011.

In consideration for relinquishing any rights to the Dodgers, Ms. McCourt received $131 million tax-free in addition to several expensive pieces of real property. Despite receiving what seems like an enormous amount of money, Ms. McCourt and her divorce attorney now want the settlement thrown out as the Dodgers were later sold for $2 billion. Assuming the Dodgers were a community property asset, Ms. McCourt settled for $770 million less than she would have received if the proceeds of the sale were divided equally.

Read more about property division and divorce in California

The basis of Ms. McCourt’s request to set aside the Marital Settlement Agreement is fraud. She argues that her former husband deliberately misled her regarding the true value of the Dodgers. At a recent court hearing, Mr. McCourt’s divorce lawyers argued that Ms. McCourt is not entitled to set aside the settlement because she willingly agreed its terms and her recent claims are baseless. If the judge agrees with Ms. McCourt and sets aside the judgment, the parties and their attorneys will re-litigate all issues related to the Dodgers. The court will have to determine, under California family law provisions, whether the Dodgers were community property or the separate property of Mr. McCourt. Prior to settlement, the court determined that the parties’ post-marital agreement giving Mr. McCourt full ownership of the Dodgers was invalid.As divorce attorneys will advise their clients, under the California Family Code, the commission of perjury on the Final Declaration of Disclosure is a legal basis to set aside a judgment. At the end of each divorce case in San Diego, the parties are required to complete a Final Declaration of Disclosure, unless a proper waiver is effectuated. The Final Declaration of Disclosure is a series of forms, which are signed under the penalty of perjury, on which the parties list the value of all assets.

Learn more about fiduciary duty in divorce

Ms. McCourt’s attorney argues that she relied on the most recent figures presented to her in accepting the settlement. If Mr. McCourt in fact lied on those forms, Ms. McCourt may be able to set aside their judgment subject to statute of limitation requirements. The court has the ability to limit the set aside only to those portions of the agreement which were materially affected by the nondisclosure. In this case, only the portions related to the Dodgers would be addressed.

www.BickfordLaw.com


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