Articles Posted in San Diego

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If you have as much money as Tiger Woods, maybe it can buy you love. After a massive cheating scandal broke in late 2009, Elin Nordegren filed for divorce from her successful golf star husband, Tiger Woods. In a record-breaking settlement, Nordegren walked away from her marriage with $750 million. In return for her cash pay-out, Nordegren agreed to never publicly speak out about Woods’ affairs with over twenty different women. Despite their incredibly public divorce, just over two years after the couple reached a global settlement, Woods’ again proposed marriage to Nordegren.Apparently Woods is not satisfied with his not-so-new found single lifestyle. His friends say he is incredibly unhappy without his family and has not managed to hold a steady girlfriend since Nordegren. Although Woods has dated several other models since his divorce, he hasn’t recovered from his split with Nordegren. On or around Christmas 2012, Woods got down on one knee, presented her with a ring, and “re-proposed” to his former wife. Nordegren is considering Woods’ proposal, but only on the condition that he agree to include a $350 million anti-cheating clause in their prenuptial agreement. Reportedly, Woods has no problem agreeing to Nordegren’s condition despite the fact that his accountants think he is crazy. Woods is ready to sign on the dotted line, set a wedding date, and return back to his former married life.

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California is a “no fault” state. This means that in a San Diego divorce proceeding infidelity is irrelevant when dividing assets and debts, setting spousal and/or child support, and determining custody and visitation rights of the parties. Despite this default rule, parties have the ability to agree to abide by different rules. As in the Woods-Nordegren reconciliation, parties can agree to put an “anti-cheating” provision in a premarital agreement. Under such a provision, a spouse would be punished if he or she was unfaithful during marriage. If no such provision existed, neither party could be punished by the courts for infidelity. There are strict rules that a divorce attorney must follow when drafting any agreement, especially a premarital agreement, in order to have it enforceable by the courts. It is important to contact an experienced family law attorney to draft any contracts between spouses.

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January is commonly referred to as a “peak season” for divorces in Del Mar and throughout San Diego County. Although many parties file for divorce in January, their timing may be chosen for a variety of different reasons. Filing for divorce during the holiday season can cause tension within the family and significant hardship if children are involved. In an effort to avoid ruining the holidays for the children or the family, some parties put off filing until January.On the other hand, the holiday season can be a very stressful time for families causing the final straw in a marriage to break thus prompting a party to file for divorce. Making a decision to file for divorce is best done with a clear head. The holidays can be a time of chaos and tension and therefore may parties decide to “ride out” the holiday season and then re-evaluate whether they still wish to pursue divorce. In addition to the emotional and psychological reasons for filing for divorce in January, many practical explanations also exist.

As we have previously blogged, the date of separation can have a dramatic impact on the division of property. The timing of filing a divorce petition can be used as the date of separation for the parties depending on the particular facts of the case. If one spouse generally earns a significant year-end bonus or commission, it may be wise to delay filing a petition until after the first of the next year. Once spouses separate, all of their respective earnings and accumulations will remain their separate property. This is quite different than the default rule which states that all earnings and accumulations during marriage are considered community property and divided evenly. Although it is impossible to say how a year-end bonus will certainly be divided at the end of the dissolution process, waiting until after the payment is received to file for divorce may save significant litigation on the issue.

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Another Housewife is getting divorced. Bethenny Frankel, creator of the Skinnygirl franchise, is divorcing her Husband Jason Hoppy after only two years of marriage. For months Frankel has been fighting rumors that the couple is splitting but she has finally confirmed that a divorce is on the horizon. Frankel released the following statement regarding the divorce, “It brings me great sadness to say that Jason and I are separating. This was an extremely difficult decision that as a woman and a mother, I have to accept as the best choice for our family.”In 2008, Frankel agreed to join the cast of Bravo’s The Real Housewives of New York. At that time, only four short years ago, Frankel had a “mere” $8,000 in her bank account. To Frankel, The Real Housewives was an opportunity for her to build her own brand and advertise her Skinnygirl line of alcoholic beverages. It seems as if her plan worked because currently Skinnygirl is the number one fastest growing spirit in the United States. In addition, Frankel is now also a best selling author with her own skin, clothing and health products. Further, Frankel received a $40,000 check for each episode of her reality show. Considering the size and diversification of Frankel’s fortune, the first question surrounding her divorce is whether she will have to split everything with her husband. Because the Frankel and Hoppy signed an enforceable premarital agreement, all of Frankel’s empire should be safe from division.

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A premarital agreement is an important tool that can be used to protect assets of ambitious entrepreneurs. As a default rule, under California community property laws, any earnings or accumulations of a spouse during marriage is community property. Thus, one of the main functions of a premarital agreement is to alter that default rule and order that any earnings or accumulations of a spouse during marriage remain that spouse’s separate property.

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The divorce proceedings between reality star Kim Kardashian and athlete Kris Humphries have by far exceed the length of the couple’s 72-day marriage. Recently, Kardashian’s new boyfriend, rapper Kanye West, was deposed by Kris Humphries’ lawyers. During a deposition, the deponent must answer a series of questions while under oath. This means that any lie told during a deposition may constitute perjury. Humphries’ deposition of West may have been an attempt to invalidate his premarital agreement. Many speculate that the premarital agreement contained an infidelity clause and that Humphries is attempting to show Kardashian violated it by starting a relationship with West before the date of separation.

In response, Kardashian’s lawyers argue that Humphries’ postponed arguments to invalidate the straightforward premarital agreement is simply a delay tactic to draw out the divorce proceeding. Despite Humphries’ alleged attempts to extend his litigation with Kardashian, the judge assigned to the case has set a trial date. The former couple will appear on February 15, 2013 and argue their case before the court. As long as the trial date is not pushed further back by Humphries’ legal team, Kim Kardashian should finally get a resolution to her second marriage.Common Family Law Terms Learn more about family law

Depositions are a common form of discovery in family law proceedings. Discovery is the process in which the parties can formally ask each other for documents and information in order to gather all relevant facts in the case. Although expensive, depositions can provide attorneys an opportunity to ask the parties and/or other witnesses for the information needed to proceed to trial or to negotiate settlement. Other forms of discovery such as special interrogatories are available to ask parties questions under oath. However, special interrogatories can be less effective than deposing a party because the lawyer is only permitted to ask follow-up questions after receiving a response. This question and answer process can continue for months because each party is entitled to 30 days to respond to interrogatories.

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According to a new research study conducted by sociologists Susan Brown and I-Fen Lin, the divorce rate of people over fifty years old is increasing. The paper, which cites the research for this conclusion, has been dubbed “The Gray Divorce Revolution.” Interestingly between 1990 and 2009, the overall divorce rate throughout the United States has declined while the divorce rate of those over fifty has risen. Professor Brown states that in 1990, only one in ten divorces were between people over the age fifty. In 2009, the number swelled, and now one in four people who get divorced are age fifty or older.

Brown and her colleagues have speculated the various causes for this drastic change in statistics. One possible reason behind this change is the different version of empty-nest syndrome these gray divorcés experience. One of the study’s participants, Dawn, states that during her marriage her and her husband pushed past all of their issues for the sake of the children. After the children all graduated from high school, Dawn says that her and her husband of two decades had grown apart and became involved in two separate lives. After being unable to communicate or reconnect, Dawn filed for divorce at the age of fifty-one.

Not unlike Dawn, a national survey conducted by AARP found that women are more often initiating the divorce proceedings. In the older age group, women report pursuing divorce 66% of the time. We previously blogged about the various reasons young couples tend to call it quits. However, the reasons for divorce amongst the older demographic appear to be vastly different. One of the leading causes of divorce among the younger generation is infidelity. Interestingly, this reason is not often cited as the compelling force behind the gray divorces. Although infidelity is not leading to these divorces, it still does occur in the relationships that are ending for those in their fifties.

Another factor that has been explored is the life expectancy of the gray divorcé. Many previous marriages ended in death before or near the time one of the spouses reached the age of fifty. Now, those over fifty are still looking forward to decades more of healthy life. Further, those who married in the 1970’s also began to focus on individual happiness as a goal in a fulfilling marriage. Taking that same principal, many spouses who are no longer happy are more willing to get a divorce.
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San Diego is known for having a vast military community. Among the many military bases in San Diego County are the Marine Corps Air Station Miramar, the Marine Corps Base Camp Pendleton, the Naval Base Coronado, the Naval Base San Diego, and the Naval Base Point Loma. In fact, the Naval Base San Diego is the largest base of the United States Navy on the west coast. Having a parent in the military can bring out a new set of child custody and visitation complications. It is important to consider possible deployments when creating any parenting plan.California Family Code section 3047 directly addresses a parent’s military obligations, “a party’s absence, relocation, or failure to comply with custody and visitation orders shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party’s activation to military duty…or military deployment out of state.” Under this statute, one parent may not use the other’s military duties against them in a child custody proceeding. If the sole or joint physical custodian is required to move a substantial distance or is otherwise unable to exercise his or her custodial rights, the court may order a temporary modification in custody. Once the military parent is able to resume his or her custodial duties, the temporary order is subject to review. However, there shall be a presumption that the previous order will resume in place of the temporary modification. This presumption can be overcome if the court finds it is not the best interest of the child.

The best interest of the child is the controlling theme throughout San Diego family law. The court considers a number of factors and makes determinations of custody and visitation. Among the factors the court will consider are:

(1) The health safety and welfare of the child;

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The State of Alaska is reforming the way a divorce case proceeds through the court system. The new program named the Early Resolution Project is aimed at resolving divorce cases quickly and efficiently. One distinguishing characteristic of Early Resolution is the emphasis on settlement. Under the program, the Anchorage Superior Court addresses several divorce cases in one afternoon on a biweekly basis. On this afternoon, the parties are give free legal advice and encouraged to reach a mutually beneficial agreement.Superior Court Judge Stephanie Joannides envisioned the program as a result of her experience in the Alaskan family court system. She was concerned because many divorce cases are assigned a court date that is several months after the initial filing. This waiting period caused the parties to become firm in their positions and unwilling to compromise. Judge Joannides proposed to attempt to resolve these divorce cases early in the process and has seen promising results. In the first year, eighty percent of cases settled as a result of Early Resolution.

Besides a quick resolution to the case, the Early Resolution program and others like it offer a number of fringe benefits to the parties. Like any case that settles early in the litigation process, a divorce settlement can save the parties a great amount of money. Litigating a family law case in San Diego involves filing fees, court costs and attorney’s fees. If a case settles early, the parties will not be responsible for any further costs and fees. Another benefit to dispute resolution is the preservation of the relationship between the parties. Litigation has the tendency to ruin the relationship between the parties indefinitely. However, in family law cases involving children, it is crucial for the parents to maintain a co-parenting relationship. Although the California Family Code is often clear, family court judges have an element of unpredictability. The facts of a case may be disputed and therefore the outcome can be uncertain. If parties reach a settlement they are in control of the outcome of the case. In family law cases, the outcome often has life-changing consequences for both parties. In order to have input in the final decision, the parties much reach an agreement.

The San Diego family court system has a program similar to Alaska’s Early Resolution Project. In San Diego, the family court judge will assign the parties a Mandatory Settlement Conference (MSC) date before any case will proceed to trial. Unlike in Alaska, the MSC will occur toward the end of the parties’ case. The MSC will take place at the San Diego Superior Court where the parties have been litigating their case. A settlement conference judge will be assigned to the case. These judges are experienced local family law attorneys who have volunteered their time to help parties resolve their cases before trial. Because they have so much experience with San Diego family law, the settlement judges are able to help the parties predict what the judge will likely do at trial and reach a settlement agreement based on the probable outcome. The benefit to reaching an agreement during the MSC is avoiding trial. The parties are able to avoid the cost, time and emotional toll of a trial.

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Under California family law statutes, paternity can be established in a number of ways depending on the relationship between the father and mother. Through the combination of statute-mandated presumptions and DNA testing, determinations regarding paternity made by the court can have a significant impact on child custody and child support.

An unmarried father must sign a paternity declaration in order for his name to appear on a child’s birth certificate. The paternity declaration is significant because it creates both support obligations and parental rights for the father. In San Diego, there is a rebuttable presumption that a man who accepts a child into his home and openly holds that child out to be his own is the child’s biological father. This presumption is rebuttable through the use of blood tests to determine paternity. If no blood tests are conducted and introduced into paternity proceedings, the man is presumed to be the child’s father.

A child conceived during a martial relationship in which the wife is cohabitating with the husband is presumed to be a child of the marriage. In other words, the mother’s husband is presumptively the child’s father. If the husband is sterile or impotent, the marital presumption will not apply. This presumption may be overcome through the use of blood or DNA testing to determine paternity. The presumed father must petition for court-ordered blood testing within two years of the child’s birth. Therefore, unless a motion is filed within the two-year statute of limitations and blood testing establishes the husband is not the father, the mother’s husband is conclusively presumed to be the father. The presumption will still apply even if another man is proven to be the biological father of the child.

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It is that time of year when you need to file your income taxes and we want you to be informed. Your filing status for taxes depends partly on your marital status on the last day of the year. If you were still legally married (meaning there is no final divorce decree) as of December 31, 2011 you are considered to have been married for the full year and must file as either married filing jointly or married filing separately. For federal tax purposes, “marriage” currently only means a legal union between a man and a woman as husband and wife. Your filing status is important and is used for many things on your tax return, such as determining your standard deduction, whether you need to file a return, the amount of tax you owe, and whether you qualify for various deductions and credits. When it comes to your filing status, you do have options.

Married Filing Jointly

If you are still legally married, you and your spouse can file a joint tax return. Married couples do not have to be living together to file jointly. If you file a joint return you both must include all your income, exemptions, deductions, and credits on that return. Even if you or your spouse had no income or deductions, you can still file a joint return. You must balance taxes due against your risk of being jointly and separately liable for taxes, interest, and penalties on a joint return. If you question whether your spouse is reporting all income, or have little or no knowledge of your spouse’s income and finances, discuss this issue with legal counsel before signing a joint return. The Internal Revenue Service (IRS) can hold you liable for all taxes due on a jointly filed return, as well as penalties and interest, even if your spouse alone earned the underlying income.

Married Filing Separately

Legally married couples can also file “married filing separate” whether they live together or not. If you and your spouse file separate returns, you should each report only your own income, exemptions, deductions, and credits on your individual return. You can file a separate return even if only one of you had income. However, the married filing separately status rarely works to lower the family tax bill. For example, one major disadvantage is that you can’t have one spouse itemize and claim all the deductions while the other claims the standard deduction. Both husband and wife must either itemize or use the standard deduction. You can’t mix and match. So if one spouse itemizes and the other has nothing to itemize, that spouse would not then be able to claim the standard deduction, which might have reduced the amount of taxes owed.

Another disadvantage with “married filing separate” filers is that they can no longer take any relevant exclusions, credits, or deductions for adoption or education expenses. Likewise, various exclusion and exemption amounts will be cut for child and dependent care expenses, employer dependent care assistance, and alternative minimum tax. Here are some examples if you file separate returns with your spouse:

• You cannot take the Earned Income Credit.
• You cannot take the Child and Dependent Care Credit in most cases.
• You cannot exclude any interest income from U.S. savings bonds that you used for education expenses.
• You cannot take the Credit for the Elderly or Disabled unless you lived apart from your spouse all year.
• You may owe more taxes on Social Security income or railroad retirement benefits than if you filed jointly.
• You cannot deduct interest paid on student loans.
• You cannot take any education credits.
• You cannot take an exclusion for adoption expenses or the Adoption Credit in most cases.

Benefits of filing under this status include only having liability for the tax, interest, and penalties on your own return. The IRS would not pursue you for your spouse’s tax obligation for that same year. If the return is filed electronically, any refund due can be divided up and directly deposited by the IRS in up to three different separate accounts. Note, however, that some financial institutions will not allow a refund for a joint return to be deposited into an individual account, so if this option is being considered, the taxpayer should check with his or her bank.
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It’s official, Kelsey and Camille Grammer are divorced. Reflecting on the divorce process, as well as what is to come, Camille told US Magazine: “I am grateful to my family and friends who have stood by me through this time – I will never forget their love and support. What I most hope is that Kelsey and I can improve our communications and truly co-parent our two wonderful children…”

As a family law attorney, many of my clients face the challenge of co-parenting after a divorce. Sometimes, a court will grant one parent sole legal custody, in which case that parent is solely responsible for making decisions relating to the minor child’s care, upbringing, educational training, religious training, social and recreational activities, medical care and treatment, and treatment of emotional needs. Other times, parents will share joint legal custody. When both parents are responsible for making decisions relating to their child’s welfare, and they need to make those decisions together, challenges can arise.

While some might think that parents inherently know how to co-parent after a divorce, realistically, it’s a learned skill. Think back to when you brought your son or daughter home from the hospital. Over those first few days, weeks and months, you had to learn how to be a parent; you had to learn how to change a diaper, what to feed the baby, and what her different cries meant. In this same way, co-parenting after a divorce is a skill that needs to be learned. You will need to learn how to put your relationship issues aside, and work together for the benefit of your children.

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