When people think of the word divorce, they typically don’t get those warm fuzzy feelings. Divorce is not only a harsh word, but a harsh process for many San Diego residents. Below are some of the realities of a divorce that you might encounter along the way. My hope is that by making you aware of these realities, you are better equipped for staring divorce in the face and overcoming these sometimes unpleasant realities while also embracing the pleasant realities.

Expect a Divorce to Take Some Time: Unfortunately, most things related to divorce take longer than expected. Not only is the legal process of a divorce a waiting game, but the grieving process, healing process and acceptance process might be quite the waiting game too. Luckily, there is a light at the end of the tunnel, but be prepared for a long tunnel in most cases.

Don’t Expect Everyone to Treat You With Compassion: Going through a divorce process is emotionally draining in many aspects. One thing that might come as a surprise is that not everyone you encounter is going to be as compassionate and empathetic of your situation as you would hope. Unfortunately, there are people out there who will judge your personal life and feel the need to express that judgment, even when you are in a tender place emotionally. There are others who will take sides and forget the relationship they once had with you. Consequently, it’s important to build a strong support system, whether that’s a group of friends, a therapist or a divorce group.You’re More Resilient Then You Think: A divorce can be an emotional rollercoaster. However, many of our clients have found that once the divorce is over and they have their lives back on track, they are able to bounce back and approach life with a new perspective.

Your Kids Are More Resilient Then You Think: Although a divorce can be very emotional for the children involved, depending on the age of the child, you might be surprised at how easily they are able to adjust to their new schedule or new surroundings as a result of the divorce. Intense therapy for your kids might not be as necessary as you once thought. However, during the divorce process it is recommended that you offer your children the option for counseling so that they have a neutral third party to talk with and express the many emotions they might be feeling.
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Beyoncé’s dad, Mathew Knowles, is best known for his management of the all-female pop group, Destiny’s Child. Since Destiny’s Child has disbanded and Beyoncé has risen to the top as a solo artist, her father is no longer a millionaire manager. Recently, Mathew Knowles has not been in the spotlight for his talent, but rather for his ongoing dispute with Alexsandra Wright, the mother of his 3-year-old son. Although Wright and Knowles were never married, Knowles was ordered to pay $12,000 per month in child support in February 2013.

A few weeks ago, Knowles appeared in court requesting a modification of his child support obligation. The judge agreed Knowles was entitled to a reduction in child support and ordered payment of $2,485 per month. The modification of child support was based on Knowles claim that he experienced a reduction in income. Further, Knowles convinced the court that he was overpaying support under the previous order. As a result, the judge concluded that Knowles overpaid child support by $110,000. In order to equalize the overpayment, the court gave Knowles credit going forward for child support up to $110,000 at the rate of $2,485 per month. Therefore, Wright will not receive child support for approximately three and a half years.The media is criticizing the judge for denying Wright child support for the next three and a half years because Wright is struggling to support herself and the parties’ son. In order to cover the cost of groceries, Wright is receiving $300 per month in food stamps. Due to the involvement of public assistance services, welfare officials may pursue Knowles for some contribution for support. Although the overall result of this child support dispute may seem unjust, the judge’s order does have some basis in California family law principles.

In San Diego, if a party files a request to modify support, that motion may not be heard for months. Or, on the other hand, it may be heard within thirty days. To level the “playing field” for those cases which might take longer to reach a courtroom (due to the court’s busy calendar or unnecessary delay of the parties), California has instituted a policy of “retroactive support”. This means that California family courts have the power to reach back to the date of filing for the motion and modify support as of that date. Often, retroactive support awards result in an overpayment or underpayment of support which is then addressed by the court. If there has been an underpayment of support, the court will look for a source from which to order payment of that amount or establish a reasonable payment plan. In this case; however, the judge determined an overpayment of support occurred and gave the father a credit for that amount.
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Often times attorneys consult with prospective clients who have very limited funds to expend on their divorce case, who are only interested in receiving minimal assistance with their divorce case or perhaps just need help getting started. An Attorney-Assisted Divorce provides the option for clients to receive top-notch legal consultation, advice and document preparation while saving the most amount of money possible. Bickford Blado & Botros now offer an Attorney-Assisted Divorce option.

Attorney-Assisted Divorce differs from traditional attorney representation in two main ways: 1) the amount/type of services provided and 2) the cost. Attorney-Assisted Divorce is a unique form of “consulting” based legal services in which the attorney merely advises the client, helps correct legal paperwork and oversees the divorce process. The attorney will not appear on behalf of the client in court proceedings nor be available on a constant basis for phone calls and emails from the client. Since Attorney-Assisted Divorce does not involve formal representation, there is no retainer or hourly rates. Rather, the client is charged a flat fee for particular services.

For instance, if you are at the beginning stages of your divorce, an Attorney-Assisted Divorce package may consist of the following:

1. The client will first have a free 30 minute confidential consultation with a highly experienced and knowledgeable divorce attorney to determine eligibility for the attorney-assisted divorce option and the scope of the case;

2. The paralegal will prepare your Petition/Response, preliminary disclosure documents, and, if there are minor children, a UCCJEA form. All of these documents will then be reviewed by one of the attorneys;

3. The paralegal will file your Petition or Response in court;

4. The paralegal or attorney will inform you on how to serve your spouse or offer for you to use our process server; and
5. If the client and his/her spouse agree on all of their issues, a Marital Settlement Agreement can be prepared for an additional fee.

Going through a divorce can be a complicated yet expensive process. Thus, many individuals appreciate the option to get advice and oversight from an attorney and also get the necessary paperwork and documentation completed all for a flat fee. In addition, many clients appreciate not having to endure the long lines, congestion and potential rejection notices that often come with simply going through the Family Law Facilitator’s Office. However, the client must understand and be comfortable with representing himself/herself. The client’s name will still appear on all of the paperwork as a self-represented litigant to indicate that he/she is not being represented by an attorney, despite the fact that the attorney may be assisting with preparation of documents and filing within the appropriate court.
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For divorce attorneys in San Diego, one of the most hotly contested issues is typically spousal support. At the end of a divorce case, the parties must agree to a spousal support amount (even if that amount is zero) or have the judge rule on the issue. Spousal support tends to be a contested issue because the law in this area is very subjective and leaves the judge broad discretion to make a fair and just award. In comparison, child support is easier to reach an agreement on because the court is bound by guideline rules and therefore a judge’s ruling is much more predicable. Many parties opt to agree to an amount rather than battle it out and incur significant legal fees and costs.

When making a spousal support award at the end of a divorce case, the court must consider a laundry list of factors outlined in Family Code § 4320. These factors focus mostly on the relative income and assets of the parties. The judge will use information regarding the income and assets of the parties to determine each party’s ability to pay support and/or need for support. Another important consideration for this analysis is the marital standard of living. A court will not usually make an award of spousal support which would increase the standard of living of the supported spouse above the marital lifestyle. The marital standard of living is sometimes referred to a “glass ceiling” for spousal support.

In contrast, if one spouse has increased earnings post-separation, the children are entitled to share in those greater earnings. Therefore, child support will not be capped based on any standard of living. A problem presents, however, when the supported spouse receives significant child support which may increase his/her own standard of living beyond what he/she experienced during marriage. In a 2006 California case, the court held that child support is properly considered as income available to the supported spouse to satisfy the marital standard of living.

This seems to be a logical result because the supported spouse is not likely keeping all of the child support received in a separate account and only applying it towards the children’s expenses or the children’s “share” of household bills. Courts do not keep tabs on parents receiving child support to ensure every dollar is used for the sole benefit of the children. In fact, in previous cases the Court found use of child support funds specifically for the receiving parent’s own benefit as a proper use of child support. Although only one case is currently “on the books” regarding this issue, as the law stands, it is proper to ask a court to consider child support as income available to a supported spouse to meet and marital standard of living in a spousal support case.

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Frequently conservatorship issues arise in California family law cases. On Tuesday March 20, 2012, Francesca Hilton, daughter of superstar Zsa Zsa Gabor, asked the court to grant a conservatorship over her ninety-five year old mother. Hilton claims that her mother’s husband is mishandling her finances and possibly tampering with her medical treatment. In an effort to protect her mother’s estate and health, Hilton requested that the court give her power over her mother’s finances and medical care. If the court decides not to appoint Hilton as her mother’s conservator, Hilton’s attorney stated that she would be willing to allow a third party to do the job. In response to her accusations, Gabor’s husband has alleged that Hilton is filing for conservatorship in an effort to get her mother’s money. A hearing has been scheduled on May 2, 2012 to litigate the conservatorship.

While conservatorships are relatively common for older adults like Zsa Zsa Gabor, it is not often that a conservatorship is granted over a young and healthy adult. Recently Jamie Spears’ conservatorship over his daughter’s estate has been the subject of celebrity gossip. Pop icon Britney Spears was declared mentally incompetent in 2007 when her father became the conservator over her affairs. Britney’s team has been accused of using the conservatorship as a form of protection for Spears. Many lawsuits have been filed against Britney and/or her affiliates and, considering she is mentally incompetent, she has not been forced to participate in the litigation including depositions. The conservatorship has also had consequences for Spears’ personal life and career including the sale of her home, the postponement of her wedding, and a new contract to act as a judge on The X Factor.

On Tuesday, February 7, 2012, the U.S. Ninth Circuit Court of Appeals ruled Proposition 8 unconstitutional. The voter-passed initiative banned gay marriage in the State of California. As a result, California’s state constitution was amended to read; “only marriage between a man and a woman is valid or recognized in California.” Activists argued that, by allowing gay marriage, California schools would be infiltrated with inappropriate material that undermined heterosexual marriage. Immediately, lawsuits were filed challenging the ban. There are many supporters on both sides of this issue and the Ninth Circuit’s ruling is likely to be appealed to the United States Supreme Court. Anticipating this move, the Ninth Circuit stayed it’s ruling. However, counties across the state are beginning to prepare for the anticipated influx of same-sex marriages that will most definitely ensue once the stay is lifted.Some of Proposition 8 supporters and opposition can agree that once the voters speak, their decisions should be honored. In the Federal District Court of the Northern District of California, Judge Vaughn R. Walker found that Proposition 8 violated the equal-protection rights of the same-sex couple who filed the lawsuit. Judge Walker and the Ninth Circuit agree that banning same-sex marriage is a violation of the 14th Amendment of the United States Constitution because it discriminates against a group of people. The voters of California have rejected same-sex marriage twice and twice they have been challenged in the courts.

Currently, a total of six states grant same-sex marriage licenses including: Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont. The government of Washington D.C. also grants same-sex marriage licenses. In addition, Maryland recognizes same-sex marriages performed in other states, however it does not grant same-sex marriage licenses. On Tuesday February 8, 2012 the State of Washington Legislature passed a bill permitting gay marriage. That bill was signed into law on February 13, 12.

California voters were not alone when they rejected gay marriage. State after state has followed suit. When put to a popular vote, gay marriage is frequently vetoed. In fact, in 31 of the 31 states where gay marriage was put to a vote, the voters refused to pass the referendum. Interestingly, a Field Poll taken in 2008 concluded the majority of Californians approved of legal same-sex marriage. In 2010, a CNN poll reached similar results. The poll found that, on a national scale, the majority of Americans approved of legal same-sex marriage. In 2011, the Pew Research Center reached the same conclusion finding 46% of Americans in favor of same-sex marriage and 44% opposed. Considering all of these statistics, why do voters reject same-sex marriage in the polls? Whatever the reason, a conclusion to this tumultuous battle is not on the horizon anytime soon.Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer in San Diego who also holds an MBA and a CPA. Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

As a San Diego divorce attorney, while recently reviewing a Marital Settlement Agreement with a client, the client asked what happens if one of us later realizes that we did not list an asset and it is missing from the Marital Settlement Agreement? A Marital Settlement Agreement is a document that is usually attached to a Judgment for Dissolution of Marriage setting forth the final agreement of the parties which, among other things, identifies and divides each marital asset, including bank accounts, investment account and retirement accounts.

Fortunately the California Family Code addresses this issue. The court has continuing jurisdiction to award community assets and debts to the parties that have not been previously adjudicated by a judgment in the proceeding.

For example, suppose Husband and Wife opened a 1-year term Certificate of Deposit (“CD”) when they married 25 years ago and each year the CD automatically rolled over into a new 1-year term CD. Over the years, the parties moved several times, did not update their address with the bank and the statements eventually stopped arriving. Both parties forgot about the CD. When the parties divorced, neither listed the CD on the Schedule of Assets and Debts and it was not identified or divided by the Marital Settlement Agreement. Five years later, Wife comes across a box of old bank records, including an old CD statement.

Suppose the parties are on good terms. Wife may call ex-Husband, tell him that she found the old bank records regarding the forgotten CD, propose they cash it out and equally split the proceeds. If Husband agrees, then the parties can simply file a Supplemental Judgment identifying and dividing the CD.

Suppose the parties are on bad terms and do not communicate. Wife may file a motion requesting the court adjudicate the asset or liability omitted or not adjudicated by the Judgment. In these cases, the court is required to equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability.

Thus, in the situation above where the parties legitimately forgot about the CD, the court would equally divide the CD one-half to each party. However, there are situations where the court may order an unequal division of an omitted or unadjudicated asset or liability.

One situation where the court may order an unequal division is if one party hides an asset from the other. For example, in the situation above, suppose Husband remembered the CD, decided not to list the CD in his Schedule of Assets and Debt or in the Marital Settlement Agreement to see if Wife would remember the CD. A few years after Judgment is entered, Husband has used a quarter of the monies from the CD, Wife finds the old box of bank documents, remembers the CD and files a motion for the court to adjudicate the CD. In that case, the court has discretion to award the remaining monies Wife. The court may also order Husband to pay Wife the amount of money he used from the CD. Husband may have also breached his fiduciary duties to Wife. If the court finds fraud on Husband’s part, it may award Wife 100% of the omitted or unadjudicated asset in question. The lesson to be learned is that full disclosure of all marital assets and debts is absolutely essential.

Another example where the court might not divide an omitted asset equally is when one spouse delays making a claim to divide an omitted asset, during which time the omitted asset greatly appreciates in value, perhaps due to the post separation efforts of the other. This may occur with a small home business that neither party bother listing on the Schedules of Assets and Debts or in the Marital Settlement Agreement, and that small home business is later developed into a giant successful internet business. For example, Husband may have a bee hive and harvests the honey which he sells at the swap meet on weekends under the name “Hubby’s Honey.”After the parties divorce, Husband expands the business, develops a website and 5 years later, “Hubby’s Honey” becomes the largest online honey seller in the country. In that situation, it was Husband’s post-separation efforts that caused “Hubby’s Honey” to increase in value, and the court will likely award the majority if not all of “Hubby’s Honey” to Husband.

Another interesting wrinkle to “omitted assets” is a case called In re Marriage of Melton in which the court held that when a judgment divides only a portion of an asset, the undivided portion can be treated as an omitted asset. In Melton, only a portion of Husband’s pension was explicitly divided by the stipulated judgment. The bulk of it was left undivided. The Court of Appeal found no reason why the omitted portion of Husband’s pension should not be treated the same way as an omitted asset, and remanded the case back to the trial court to determine how to divide the omitted portion.

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