Articles Posted in San Diego

By

If you and/or your spouse are contemplating divorce, one of the initial considerations is whether you should file for divorce or wait for your spouse to file first. Specifically, is there an advantage or disadvantage to filing for divorce first? In a typical divorce proceeding, it does not make a big difference whether you are the petitioner (first to file) or respondent in your case. In the court’s view, both parties are on a level playing field. The petitioning party is not penalized for filing first, but he or she is also not rewarded in any way. In addition, the San Diego Superior Court charges the same filing fee ($435) for filing the Petition for Dissolution and the Response to Petition for Dissolution. Combined, the parties will spend $870 just to make their appearances in a divorce proceeding.

There can be a slight advantage to being the first to file for divorce if you and your spouse reside is different zip codes. Your divorce case will be assigned to a particular courthouse based on representations made in the Petition. If you would like your case heard at the courthouse near your home, you should file a Petition before your spouse. If you believe there may be some advantage to you if the case is heard at the courthouse your spouse’s zip code is assigned to, you can file a Petition and have the case assigned to that courthouse. The petitioner will decide which courthouse his or her divorce case is assigned to. Consulting with an experienced family law attorney who has worked in the different courthouses throughout San Diego County can help you make the decision regarding where to file your case.

In a small number of cases, the first party to file can have a significant outcome on the divorce proceedings. If you and your spouse live in different states or even different counties within California, you should consider filing for divorce as soon as possible. When two spouses live in different counties, the responding spouse will be required to travel to a different county to attend court hearings. This has the potential to be an inconvenience and makes communication with a local attorney slightly more difficult. However, if you and your spouse live in different states, you will want to compare the laws of that state to family code statues and cases in California. It is imperative that you consult with a divorce attorney immediately to determine if you could be greatly disadvantaged if your spouse files for divorce out of state.

If you and your spouse share minor child(ren), the jurisdictional issues involved in your case may be even more complicated. Becoming informed of your options is the first step you can take towards protecting your rights.
Continue reading

By

One of the popular marketing strategies for family law firms throughout San Diego County is promoting “divorce for men”. From billboards to newspaper ads and firm websites, many law firms advertise a focus on “husbands and fathers” and protecting their rights. “Men’s rights” is an issue that many litigants associate with divorces, custody battles and domestic violence cases. However, is there really a different skill level involved when representing husbands and fathers or is this advertisement nothing more than a way to attract male clients?

It is a common belief that men walk into divorce court, a custody battle or a domestic violence restraining order hearing with the deck stacked against them. There is an assumption that men automatically will have to pay an exorbitant amount of money in support and/or to equalize property division. In addition, the general public assumes that the court tends to give women custody of minor children. With regard to domestic violence hearings, men assume that women are given the benefit of doubt and that restraining orders are granted more often than not. In reality, although a particular judge may have a bias against one gender or the other, the law makes it clear that men and women should be treated equally in divorce proceedings, custody hearings, or in domestic violence cases.

In San Diego divorces, support comes down to clear cut numbers. If a woman is the high income earner, she is legally obligated to pay child and/or spousal support if the circumstances permit. In addition, the same is true if a man is the high income earner. With regard to property division, under the law, all community property should be divided equally regardless of the sex of the parties. There is no differentiation between men and women with regard to support or property division in California divorce cases. Consideration of gender in making these determinations is an appealable offense.

Many of the stereotypes regarding favoritism towards women in custody and visitation cases stem from actual case law and statutes. In the past, it was permissible for courts to give preference to women in custody disputes. Today, it is improper for courts to make custody determinations on the basis of gender. Men and women are equal under the law with respect to the desirability of their role as parents. Often, the Court encourages children to spend time with both parents and to mend any broken relationships.

An overwhelming majority of domestic violence restraining orders are filed by women against men. However, that does not mean that a restraining order filed by a woman against a man is automatically granted and that men are disadvantaged. Statistically, women are more frequently the victims of domestic violence and men who are victims are less likely to report it than women. As a factual matter, most restraining orders are granted on a temporary basis until the matter is heard by the court and the accused is given the opportunity to present a defense. In San Diego, family court judges do not take the deprivation of a person’s liberty lightly and require evidence of domestic violence before they will grant a permanent restraining order.
Considering that men and women are on a level playing field under the law, it seems that catering towards “men’s rights” might be more of an advertising technique rather than a true skill set.
Continue reading

By

San Diego is known for its large population of military members and their families. In the San Diego County there are 16 naval and military installations of the U.S. Navy, U.S. Marine Corps and U.S. Coast Guard. We at Bickford Blado & Botros are grateful for the countless sacrifices that our military men and women make. We understand that many military members receive injuries or disabilities (both mental and physical) as a result of their service, or have injuries that are made worse during service or training. In San Diego, when a veteran is going through the divorce process, he/she may be concerned about how much of his/her disability compensation from the Department of Veteran’s Affairs will be lost due to property division, spousal support and child support obligations.

VA disability compensation is a monthly tax-free benefit that is meant to provide veterans and their families with reasonable and adequate compensation for such injuries or disabilities. The amount of the disability compensation that a veteran is eligible to receive depends of the seriousness of the disability and its effect of the veteran’s ability to earn a living. VA disability compensation is not necessarily subject to the same rules of division in divorce as most other types of income or assets.

Division of Property
With regard to property division in a divorce, VA disability compensation is not considered an asset in divorce. Unlike military retirement benefits, which are considered a marital asset subject to division, the Uniformed Services Former Spouses’ Protection Act clearly exempts VA disability compensation from being treated as a marital asset subject to division upon divorce. This means that if a spouse establishes that a bank account contains only VA disability compensation then these funds would be awarded to the veteran as his/her separate property.

Spousal Support
When a Court calculates the amount of spousal support owed, typically all sources of income will be taken into account. Since VA disability compensation is nontaxable, not subject to claims of creditors and not community property subject to division, many veterans assume that their disability payments are untouchable for purposes of calculating spousal support. However, many state courts have held that VA disability compensation may be considered income for purposes of calculating a spousal support award.

Child Support
A family law judge has the right to consider VA disability compensation as income available for child support. Also, if the party fails to pay court ordered child support then the party’s VA disability compensation may be garnished.
Continue reading

By

Child actor, Corey Feldman, and his wife Susie were married in 2002 but later separated in 2009. Their divorce was recently finalized and according to the court documents that TMZ obtained, Susie gets to keep the couple’s 2002 Hyundai but not her surname. Apparently, Susie agreed to return to her maiden name of Sprague post-divorce. But what about their 10 year old child – can Susie change his last name to her maiden name also?

The issues of child custody and child support are hot topics in a divorce. However, one issue related to the children that is not very commonly addressed is the issue of the child’s last name. Even though the Wife may choose to change her last name back to her maiden name, the parents usually don’t dispute their children keeping their last name. However, in some cases a parent (typically the mother) will want to change not only her last name but also the child’s last name.

As is the case with other decisions about children during a divorce proceeding, the Court’s focus is on what is in the best interest of the child. Generally, you cannot change your child’s last name simply because you are divorcing your spouse whose last name the child has. Rather, petitioning the Court to change your child’s last name is typically done in a separate legal action after a divorce and some Court’s will consider it if it is clearly in the child’s best interest. Courts will consider several factors, including the length of time the child has had his/her current last name, the need of the child to identify with a new family unit (if there has been a remarriage), the strength of the child’s relationship with his/her father, any benefits to changing the last name and any negative impacts the child would suffer as a result of changing his/her last name. Ultimately the Court must decide what is in the child’s best interest.

Some circumstances that may specifically warrant a change of the child’s last name include the following: When the biological parent has terminated his/her parental rights, when the biological parent was abusive or engaged in criminal behavior or when the child has been adopted by a step-parent.

It’s important to note that even if the Court does decide to grant a name change for the child, this will not affect the legally recognized identity of the child’s biological father. In other words, the father’s relationship with the child as it relates to his rights to custody/visitation, his obligation for child support and rights of inheritance will not be affected simply by the changing the child’s last name.
Continue reading

By

The family residence is sometimes the parties’ biggest asset acquired during marriage. It is also typically an asset that one or both of the parties feel very attached to. When going through a divorce, the parties will have to decide whether to sell the house, continue to co-own it or have one spouse keep the house and “buyout” the other spouse’s interest in the house. A “buyout” is typically an attractive option when there are kids involved and the parent staying in the house wants to continue to provide continuity and stability for the kids. It is also an appealing option if the market conditions don’t favor the seller at the time. To “buyout” the other spouse means that the house will be assigned a certain value and the spouse not keeping the house will instead receive a percentage of the that value less the debt. The buying spouse either pays money to the selling spouse or gives up other marital property in the amount of the selling spouse’s share. Thus, the fair market value of the home makes a big difference on how much the “buyout” will cost the selling spouse.

There are a few different ways to value your marital residence. It is important for the valuation to be as fair and accurate as possible. Typically parties either get the residence appraised, have a realtor do a comparative market analysis or the parties do individual research based on online websites.

If the parties choose to value the home based on individual research, they will typically use an online website such as Zillow.com or Eappraisal.com, which gives immediate estimates of the home’s value. The parties can also ask a real estate agent to perform a Comparative Market Analysis, for little or no cost, which provides information about recent sales prices of comparable houses in the neighborhood. Then you can you’re your home’s value on those comps.

However, not all houses are the same, and thus comps and online websites are not always the most accurate way to determine the fair market value of a house. Instead, the most accurate way to determine the fair market value of a house is to have an appraisal done by a neutral and licensed appraiser. Of course this method will cost the parties a small chuck of change. The parties can either agree on a joint appraiser and perhaps split the cost, or they can each pay to have their own appraisers do an appraisal and split the difference between the fair market value. The cost of an appraisal is usually worth it to make sure that you are using an accurate number to value your home and thus calculate the buyout amount.
Continue reading

By

In California child support cases, the parties may be surprised to learn that a parent’s duty to financially support his or her child may continue after the child becomes a legal adult at the age of eighteen (18). This idea is often confusing to the parties because child support is inextricably linked to the time the child spends with each parent. Generally, the more time the supporting parent spends with the child, the lower the child support amount will be. On the other hand, the lower the amount of time the supporting parent spends with the child, the higher the child support obligation will be.

Pursuant to Family Code section 3901, “the duty of support imposed by [Fam. Code §3900] continues as to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first”. As stated in this code section, even if a child attains the age of 18 years, a parent will still be obligated to financially support the child until the child finishes high school. However, despite the ability of the family court to order child support, the court cannot make corresponding custody and visitation orders of an 18 year-old adult. Therefore, a parent may be ordered to pay child support for a child who is not required to spend specified time periods with either parent.Considering the fact that timeshare with the children is such a major factor in calculating child support, parties are faced with a conundrum when one child requiring financial support is a legal adult and cannot be forced to comply with a custody and visitation order. In these cases, the court bases child support on actual timeshare instead of timeshare which is ordered pursuant to a custody and visitation agreement or order. This means that if the 18 year-old student does not want to spend time with the supporting parent, child support will be calculated with the supporting parent have minimal time with the child. As a result, the supporting parent’s child support obligation will be higher than if the parties shared equal time with the child.

Cases where a child does not want to spend time with one or both parents are very difficult. If you feel like the relationship between your child and you and/or your former spouse is deteriorating, it is important to discuss your options with your divorce attorney to work towards repairing that important relationship before the child turns 18.
Continue reading

By

As one would expect, going through a divorce is typically a time of emotional upheaval and chaos. You will likely be required to spend a significant amount of time preparing legal paperwork, attending court hearings, going to your attorney’s office and dealing with the day-to-day drama that comes with a divorce. Your life might seem like one chaotic mess as a result of having to suddenly move out of your residence or divide up your belongings. And the time that you get with your children, well you surely won’t want to sacrifice a minute of that to focus on work instead. So with all of this going on during a divorce, how can you properly manage your career and avoid losing your job??Keep Your Professional Reputation Intact
If you are going through a very tumultuous and heated divorce, your soon to be ex-spouse may be inclined to attempt to ruin your reputation in the workplace. He/She may feel the need to reach out to your boss or your coworkers and make disparaging remarks about you. To avoid the potential aftermath of this, it would behoove you to take preventative steps and pull your boss aside for a private meeting to let him/her know that you are going through a divorce but that it will in no way, shape or form affect your work ethic. Although it’s really none of your boss’s business perhaps giving him/her a heads up that your spouse is not in a good place emotionally, will prepare your boss in case a phone call or email comes his/her way from your spouse.

Another way of keeping your professional reputation intact is to not allow your performance to slip. Although your mind might be focused on the divorce, try to keep your attention on the job during working hours. One motivator to keep your performance at its peak is the potential that you will be paying spousal and/or child support to your ex-spouse. It is likely a critical time for you to be sure that you have a continuous stream of income.Save Your Vacation and Sick Days
During the divorce, you might need to take partial or whole days off to attend court hearings, meet with your attorney, attend mediation, pick your children up from school, etc. You are probably limited on the number of paid vacation and sick days that you are allowed to take from work so do your best to save those while going through a divorce. Having to take an unpaid day off or jeopardizing your career is just added stress that you will want to avoid during a divorce.

Separate Work and Family
Although easier said than done, you should focus on separating your work and family life as much as possible. Working on divorce papers or taking phone calls from your soon to be ex-spouse while at work will only serve to distract you from getting your job done. Also, keeping your personal life to yourself will help avoid unnecessary gossip around the office. It’s also important to leave your work at work when you come home. Your custody arrangement might not provide you with as much time with your children as you would like, so every moment you spend with them should be cherished and not distracted by work. If you don’t have children, then your alone time is still critical to allow you the time to cope with your divorce emotions or perhaps meet new people.
Continue reading

By

Considering the intimate nature of family law cases, especially divorces, both parties often know incriminating information about each other. For example, if one party has not been completely truthful on his or her tax returns filed with the IRS the other spouse likely knows about it. In some cases, one party may have the grounds for a domestic violence restraining order against the other or be a victim of illegal wiretapping, which was committed by his or her spouse. In a contentious divorce, spouses are often tempted to use sensitive information as leverage in negotiations.

Divorce lawyers have a reputation for being ferocious litigators who have no ethical boundaries when it comes to “taking down” the opposing party. Clients are often surprised when their divorce attorneys actually refuse to threaten civil, criminal or federal prosecution in the negotiation process. Clients imagine that they can tell the other side “Agree to pay me ‘X’ amount of spousal support for ten years or I will file a restraining order against you” or “If you don’t agree to give me full legal and physical custody of the children I will report your real income to the IRS”. They often become frustrated that their lawyer will not “fight” for them by using all of the tools in their arsenal.Contrary to how the lawyer’s behavior will seem to the client, a lawyer is actually acting in the client’s best interest by refusing to threaten the other side to gain an advantage in litigation. The California Rules of Professional Conduct prohibit all attorneys from threatening “criminal, procedural, administrative, or disciplinary charges to obtain an advantage in a civil dispute”. Therefore, a lawyer’s hands are tied by his or her ethical obligations. A lawyer would put his or her reputation and career in jeopardy if he or she were to threaten to use misconduct against the other side in a divorce negotiation. In addition to putting the lawyer in a position where he or she may be disciplined by the California state bar, the client risks extortion charges.

A family law litigant that threatens the other side in order to get what they want in a divorce case is also at risk of being sanctioned. In family court, one of the most powerful tools at the judge’s discretion is a monetary sanction. If one party frustrates California’s policy of settlement between litigants in a divorce action, he or she may be ordered to pay attorney fees and costs to the other side. Depending on the assets of the parties and the egregiousness of the misconduct, significant sanctions can be ordered for tens of thousands of dollars. Overall, threats of criminal, civil or federal prosecution may get you more than you bargained for in a family law case.
Continue reading

By

Going through a divorce (or any family law case) can create anxiety and become consuming for the parties involved. It is easy for family court judges and attorneys to become jaded by the volume of domestic issues they deal with on a daily basis. However, the average family law litigant has little to no experience with the court system. Considering the sensitive nature of family law cases, it is not surprising that litigants become frantic as each new problem or issue arises. Despite the sensitive nature of family law requests, it can be months for a litigant to obtain relief from the court.

In the case of true emergencies, the court offers ex parte hearings, which will be conducted with notice of twenty-four hours or less. However, ex parte relief will only be granted in a limited number of circumstances. Pursuant to the California Rules of Court, the Court will grant relief on an emergency basis in the following cases:

  1. Make orders to prevent an immediate danger or irreparable harm to a party or to the children involved in the matter;

  2. Make orders to help prevent immediate loss or damage to property subject to disposition in the case; or

  3. Make orders about procedural matters, including the following:
    a.) Setting a date for a hearing on the matter that is sooner than that of a regular hearing (granting an order shortening time for a hearing)
    b.) Shortening or extending the time required for a moving party to serve the other party with the notice of the hearing and supporting papers (grant an order shortening time for service) and c.) Continuing a hearing or trial.

Family law litigants will often run into court (or insist their attorneys run into court) requesting relief on an ex parte basis. However, as stated above, the requesting party must justify the lack of notice for his or her request with immediate danger, irreparable harm, to prevent immediate loss or damage to property, or for procedural issues. It is important for parties to carefully consider their decision to request emergency relief before filing a motion with the court. Too many unfounded ex parte requests will begin to create a “boy who cried wolf” reputation for the litigant. This means that if emergency relief is really necessary in the case, the court may not take the request seriously.
Continue reading

By

Once parents have split and begin residing in separate homes, a common issue in divorces involving children is the decision of where the child will go to school. This is particularly of concern when the parents begin residing in different school districts and don’t see eye to eye on where the child should be getting their education. It wouldn’t be fair to make the child switch schools each week when he/she switches households. So, who decides where the child will go to school in this situation?

Determining where your child will go to school depends on the parties’ custody agreement that has been made an order of the court. There are two types of custody in a divorce case, physical custody and legal custody. Physical custody refers to where the child will live after separation or divorce. Legal custody, on the other hand, refers to who will have the right to make major decisions about the child’s health, welfare and education.

If one parent is awarded sole legal and physical custody of the child then the decision of where that child will go to school is left solely up to that parent and typically based on that parent’s residence. The other parent won’t have any legal rights to chirp in regarding where to enroll the child. However, in many California divorces, the parents are awarded joint physical and legal custody of their children. This means that both parents will have significant periods of physical custody such that the child has frequent and continuing contact with both parents. Additionally, both parents will have equal rights to make decisions about the child’s education. This often becomes a problem when the parents reside in different school districts and their preferences don’t align regarding where the child should attend school.Unless the custody agreement provides otherwise, the child will typically be able to attend school in either the school district in which mom resides or the school district in which dad resides. One parent may prefer his/her school district because it will be easier for transportation purposes. Or maybe the other parent thinks that his/her school district has a better sports team for the child. Whatever the parent’s reasoning may be, the issue needs to be resolved before the school year begins. If the parents are unable to reach a mutual agreement on which school their child will attend, then the issue will need to be litigated.
Continue reading

Contact Information
Del Mar Technology Center
12348 High Bluff Dr, #220
San Diego, CA 92130
Phone: 858-793-8884
Fax: 858-793-8874

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2025, Bickford Blado & Botros
JUSTIA Law Firm Blog Design