San Diego Divorce Attorneys Blog

May 28, 2015

Never Look a Gift Horse in the Mouth

The divorce battle between celebrity Chef Bobby Flay and his Wife of a little over 10 years, Stephanie March, have been anything but civil. At the heart of the divorce is a premarital agreement executed by the parties before they said their nuptials. The agreement clearly lays out what Stephanie is entitled to receive with regard to property and support. The jury is still out on whether the premarital agreement will hold up, but that is a blog for another day.

The most recent fight (of which there have been many) revolves around a racehorse named “Dad’s Crazy” which Bobby allegedly purchased for Stephanie back in 2009. Stephanie alleges the horse was purchase as a 4th anniversary gift. Apparently the horse was quite successful, raising in excess of $130,000 in winnings, which according to Stephanie, Bobby kept to himself. The horse has subsequently sold for $60,000 and, again according to Stephanie, Bobby kept the sale’s proceeds as well.

If you have followed our blog for any amount of time, you will know that any property acquired during marriage that was acquired by way of “gift” is the separate property of the recipient of the gift (Family Code §770). Seems pretty simple, right? Bobby (allegedly) gave the horse to Stephanie as a gift and therefore it is her separate property. It would then follow that the winnings and the sale’s proceeds would also be her separate property.

You know if it were that simple I would not be writing this blog. You see gifts between spouses do not work the same as gifts to a spouse from a third party. Gifts from third parties are almost always the separate property of the recipient. I say “almost always” because this is family law after all, and nothing is ever perfectly certain.

When you have a gift between spouses you need to have writing transferring the property from either the separate property or community property of the giver of the gift to the separate property of the recipient for there to be a valid transmutation; which is just a fancy word for changing the character of the property. The simple reason (and yes, I am simplifying this a great deal – I could spend several blogs discussing transmutations) is that you need to be able to prove intent. Generally this comes in the form of a writing of some kind.

The exception to the requirement for a valid transmutation is found in Family Code §852(c) which says:
“This section does not apply to a gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage.”

This short code section is the reason why parties, almost without exception, keep their engagement and wedding rings, jewelry, personal property and clothing acquired during marriage. These items are easy to distinguish, because they are specifically mentioned in the statute. The analysis becomes more difficult when you get to the line “or other tangible articles of a personal nature.”

This is one of those sentences that absolutely defies a precise definition, but as Justice of the Supreme Court of the United States, Potter Stewart, said when he was asked to describe the threshold test for obscenity, “I’ll know it when I see it.” That’s just it, it will always be a case by case basis.

As an example, in the case Marriage of Buie and Neighbors, Husband argued that Wife’s gift of a Porsche given to him for his birthday was his separate property under the exception in Section 852(c). The court disagreed holding that an automobile is not an article of a personal nature within the meaning of the section. Though it probably would not have changed the court’s holding, it is worth noting that Husband purchased the car with Wife’s separate property as a birthday gift, without first asking Wife if that was okay.

So, how will “Dad’s Crazy” be worked out? If I was a betting man (and I am…I was raised in Las Vegas after all), I would bet on the horse being deemed community property, and Bobby will be entitled to recoup any money he put into the horse’s purchase. As for the money that was earned by “Dad’s Crazy,” that will also be community property subject to reimbursement by Bobby. This all assumes there is no provision in the premarital agreement about purchases made during marriage and how they are treated upon dissolution.
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May 21, 2015

Changing Jobs When There is a Support Order

By Bickford Blado & Botros

If you’re a big fan of the “Simpson’s” you may have heard that Harry Shearer, the voice of several of the shows iconic characters, is leaving the show. When a big star makes a movie or a star leaves a television show it usually makes the news, but people retire, change jobs, or are laid off on a daily basis. What do you do if you are involved in a Family Law proceeding and your income changes?

A change in your career can have far reaching effects on many aspects of your Family Law case, but it most immediately applicable to both child and spousal support orders. If there is a current order in place, it should tell you the protocol for informing your spouse of a change in your financial circumstances, but just informing your spouse may not protect you if your ability to pay your support award is compromised. Conversely, if you are receiving support and your ex-spouses income increases you may not be entitled to the increase solely because you are informed of the change.

Even when a change in income occurs, the court can usually only enforce the current order it has on file. Therefore, whether you need to reap the benefit of increased income or reduce the burden of an order you can no longer afford, you need to file the request with the court to modify your support to match your current financial circumstances. The court will then make a ruling in keeping with you and your ex spouse’s current financial situation.

Of course financial issues always become complex if one party is self-employed and/or owns a business, and it may require a more in depth analysis. Bickford Blado & Botros are experienced in representing clients in all aspects of any financial issues that come before the Family Court and we are experienced in dealing with the complexity of self-employed parties and business owners.
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May 19, 2015

Pets are People Too, Right?

By Bickford Blado & Botros

Pets are members of our families, and we would be horrified if something happened to them. For example Johnny Depp’s dogs face being euthanized when he flew them to Australia without permission. Most of us will not face this type of situation with our pets, but what happens to your furriest family members during a divorce proceeding?

California law is surprising silent when it comes to your pets considering how important they are to our lives. Generally, the law still considers pets something that you own and treats them as property. This means custody would be decided in a civil court, not the family court.

However, it is not unheard of for your pet to be involved in your family law matter. For example, Family Code section 6320 allows you to include your pet in a Domestic Violence Restraining Order. If you have taken care of your pet since before you were married they will likely stay under your care post separation, but if you became pet parents together it can be more complicated. For some families it may make sense for the family pet to say with the parties’ children due to the bonds that develop between children and pets, but every case is different.

The court will likely sign any agreement regarding pets reached by two pet parents. However, heavily litigating these issues is not advised. In order to resolve any possible disagreements over a pet, people should put their wishes in writing via a pre-nuptial agreement or a post-nuptial agreement to avoid heartache later on.
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May 18, 2015

One Day Divorce, One Year Later

By Bickford Blado & Botros

Ask most family law litigants in San Diego County their opinion on the speed with which their divorce case progresses through the Family Court, and I promise you the results will not be positive. There are many different reasons divorce cases take so long to complete. Some are related to the parties or their case such as complex asset division, highly contested custody issues, or difficult litigants. Other issues the parties have no control over such as decreased court budgets resulting in less staff and an increased case load due to an increase in family law filings.

Recently the Connecticut House of Representative granted final legislative approval to a bill that would not only make the divorce process quicker but cheaper as well. To be eligible for the program, neither of the parties can be receiving Medicaid benefits or own any real estate. Neither part can have a defined benefit retirement plan (also called a pension), since dividing these plans complicates cases. It does not mention whether the parties can have a 401(k) plan (the most popular retirement plan offered by employers) and still qualify for the program. Finally, neither party can have a restraining order issued against them.

The goal of the new legislation is for divorces to be granted more quickly, leaving judges with more time to address contentious cases. This would help clear the calendars in the family courts and hopefully speed things up for the other litigants.

This is the same goal the One Day Divorce program in San Diego had when it launched in March 2014. We blogged about the program last year and explained the process. I encourage you to take a look at the blog if you have not read it already.

So, how is the One Day Divorce program doing a year later? Not surprisingly, it has been big success…and a popular one at that. The program has not released any data, but what I can tell you is I have heard great things about the program, and every time I walk by the One Day Divorce office it’s busy processing about five cases a day.

For more information about the One Day Divorce program, visit the San Diego Court website. From here you can complete a simple questionnaire to see if you qualify for the program.
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May 12, 2015

The End of the Nuclear Family and the Rise of the Single Parent

By Bickford Blado & Botros

The iconic image of the American Family has changed according the Pew Research Center. Today, less than half (46%) of U.S. children under the age of 18 reside with two married heterosexual parents in their first marriage. In fact, 34% of U.S. children are being raised by a single parent.

Whether you are participating in a conscious uncoupling like Gwyneth Paltrow and Chris Martinor you are a single parent raising a child, the challenges and joys of raising children on your own are enormous and the issues involving custody disputes can seem complex. Are the California Family Law courts keeping pace with our new culture?

The answer is yes. California is at the forefront of ensuring that no matter what your personal situation, you are dealt with fairly and respectfully. The law does not distinguish between previously married and unmarried parents in custody cases. That makes the Family Court a vital resource in protecting your rights as a single parent, whether you are seeking a custody order you require child support. If you are not married to the other parent, a Judgment of Paternity is an important first step. However, navigating the Family Court system in California can be daunting, especially when you are trying to put your side of the story before the court. Bickford Blado & Botros are experienced in representing clients in their paternity and custody disputes in the Family Court and we are experienced in dealing with the complexity of the modern family dynamic.
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May 11, 2015

Mental Health and Your Custody Dispute

By Bickford Blado & Botros

Issues revolving mental health and welfare are often stigmatized in our society. Whether someone is suffering from a short term situational depression, or suffers from depression and bipolar disorder, they oftentimes suffer in silence; afraid of how others will perceive them. This week Kim Kardashian participated in a Google hangout, wherein she discussed her passion for mental health issues and the documentary she produced called #redflag. Her documentary is about mental health in the age of social media.

If you or your ex-spouse is suffering from an issue involving mental health, seeking treatment is always the best course of action. However, how do issues of mental health affect your child custody dispute?

The California Constitution provides a broad right to medical privacy; this is generally referred to as doctor-patient privilege, but it also covers psychotherapists, which is a broad category that encompasses Marriage and Family Therapists. Usually your records remain private. However, in child custody cases in California this right is not absolute. The court may decide to review your medical records to help determine what is in your child’s best interests. This requires the side seeking to access the records show that issues involving mental health will affect your child.

However, the court is aware that just suffering from a mental health issue does not preclude you from having a loving and happy relationship with your child. So as long as you are receiving treatment and taking care of yourself the court will support your relationship with your child.

If you feel that issues of mental health and medical privacy are being raised in your case, Bickford Blado & Botros are experienced in dealing with the privacy protections at issue in custody cases to ensure your privacy is respected.
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May 6, 2015

Step-Parent Adoptions

By Bickford Blado & Botros

Blended families, a family consisting of a couple and their children from their current and all previous relationships, are a regular part of American life. That is why the following statistics should not be surprising:
• 48% of all first marriage will eventually end in divorce;
• 79% of women and 89% of men will marry again within 5 years;
• 43% of marriages today in America involve a 2nd or 3rd (re)marriage;
• 68% of re-marriages involve children from prior marriages;
• 2,100 new blended families are formed every day in America;
• Over 65% of Americans are now a step-parent, a step-child, a step-sibling, a step-grandparent or touched directly by a step-family scenario
In many cases, the children will grow very close to a step-parent and in cases where one of the biological parent’s is absent from that child’s life, the step-parent may consider adopting their step-child.

In a step-parent adoption, one biological parent retains full parental rights and the other biological parent’s rights are terminated. The parental rights are then passed to the adopting step-parent; meaning the biological parent no longer has any rights or responsibilities owed to the child and the step-parent has all the rights and responsibilities originally held by the biological parent.It is important to give due consideration to a decision to adopt a step-child, because step-parent adoption is a permanent transfer of parental rights and responsibilities. Once a step-parent adoption is finalized, it cannot be revoked or nullified, except in very rare situations. More importantly, the adoption is not terminated if the step-parent and biological parent divorce.

A step-parent must meet certain criteria in order to proceed with a step-parent adoption, specifically:
1. The biological parent and the step-parent must be legally married or in a registered domestic partnership;
2. The step-parent must be at least 18 years old and at least 10 years older than the step-child they are seeking to adopt – though in certain circumstances the 10 year rule may be waived;
3. The step-parent’s spouse must consent to the adoption;
4. The other biological parent (i.e. the biological parent whose parental right will be terminated by the adoption), must consent to the adoption – this requirement can be overcome, as I will discuss below, in certain circumstances; and 5. If the step-child is 12 years old or older, the step-child must consent to the adoption.

Family Code Section 8604(b) describes how you can overcome the other parent’s lack of consent to the adoption of the child by a step-parent. Specifically, “If one birth parent has been awarded custody by judicial order, or has custody by agreement of both parents, and the other birth parent for a period of one year willfully fails to communicate with, and to pay for, the care, support, and education of the child when able to do so, then the birth parent having sole custody may consent to the adoption, but only after the birth parent not having custody has been served with a copy of a citation in the manner provided by law for the service of a summons in a civil action that requires the birth parent not having custody to appear at the time and place set for the appearance in court…”

Family Code Section 8604(c), states:

“Failure of a birth parent to pay for the care, support, and education of the child for the period of one year or failure of a birth parent to communicate with the child for the period of one year is prima facie evidence that the failure was willful and without lawful excuse. If the birth parent or parents have made only token efforts to support or communicate with the child, the court may disregard those token efforts.”

If you are considering a step-parent adoption, or if you were served with papers notifying you that your child’s step-parent has filed an Adoption Request, it is important that you discuss your rights with an experienced family law attorney.
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May 5, 2015

“Infinity”: What do you do when you Ex has nothing nice to say?

By Bickford Blado & Botros

Divorce can be a stressful time and while Bickford Blado & Botros endeavors to ensure our cases are resolved amicably, sometimes emotions can run wild and your ex-spouse can lash out at you. For Example Mariah Carey’s new single “Infinity” appears to bad mouth her ex Nick Cannon. While most of us do not have the national exposure of Mariah Carey, we all have broad networks of friends and colleges that we often share with a spouse. So what can you do when your ex-spouse starts badmouthing you to others, especially to your children?

Your ex-spouse disparaging you to others is a tricky situation that can affect your family law case, but it all depends on who is within earshot. You or your ex-spouse venting privately to friends and colleagues can be a normal aspect of any divorce case; we are all only human after all and it is usually benign. Even if these statements get back to you, there is little that can be done unless you feel threatened or unduly harassed and require a domestic violence restraining order. The disparaging language can become much more serious when your ex-spouse continually disparages you to your child directly or by using a third party and it can become a very serious issue in child custody disputes. Another phrase for this is type of behavior is parental alienation; when one parent tries through various means to hinder the relationship between a parent and child.

So how do you know if your ex spouse’s behavior rises to the level requiring you to take action? As a parent you’ll notice if your child’s behavior has changed towards you, beyond the normal stresses of his or her parent’s splitting up. You may notice your child acting out toward you and/or blaming you for the divorce or custody proceeding. They may be withdrawing and not wanting to spend time with you.While your ex-spouse may be acting purposefully, they also may be having trouble dealing with their own emotions regarding the divorce. There are several common ways one parent can disparage the other. First, the parent can speak badly about the other parent directly to their child. This can include saying that the other parent is the cause of the divorce, that the other parent does not love the child, that the other parent chose a new romantic partner over the child, or other inappropriate comments. Second, one parent can utilize third parties, such as siblings or grandparents, to speak ill of the other parent. Third, involving the child in a family law proceeding, this can include either allowing the child access to court paperwork, or distorting the family law proceedings to make the other parent look like the bad actor.

You may wonder why the court frowns on this behavior? There are multiple reasons but the main one is that it can affect the child’s relationship with their parents. During any custody dispute, the court is always going to try to make decisions based upon what the judge determines is your child’s best interest. One fact they will consider is the ability for your child to have meaningful and continual contact with both parents and whether both parents have the ability to co-parent with one another. In the case of Mariah Carey and Nick Cannon, the entire world is privy to her thoughts on Nick, but the most important people in the eyes of the court would likely be their children, Monroe and Moroccan Scott Cannon. The court does not approve of one parent making negative comments to the children about the other parent. If your ex-spouse’s behavior is hurting your relationship with your child the court has multiple ways it can intervene to try and help from ordering reunification therapy, to ordering the appointment of minor’s counsel.

If you feel that your relationship with your child is being damaged by your ex-spouse, Bickford Blado & Botros are experienced in dealing with complex, emotionally charged child custody cases and has the tools you need to ensure you are able to maintain a good relationship with your children.
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April 27, 2015

Medical Marijuana and Child Custody in California

By Bickford Blado & Botros

California has always been at the forefront of progressive social change. In 1996, California became the first state to establish a medical marijuana program, allowing residents to grow and possess marijuana for personal use, so long as they had a prescription from a licensed physician (“Compassionate Use Act”). Several states followed, and in 2012, Colorado legalized marijuana for recreational use by adults over the age of 21. Though possession and use of marijuana has been legalized in several states, it remains a Schedule 1 drug (e.g. heroin, cocaine, methamphetamines) under federal law, so the line between state and federal law is very grey. So is the line between medical marijuana users and parents in California Courts.

That begs the questions, “How does the use of medical marijuana affect my child custody case?”

Whether you are the parent with a medical marijuana prescription or the other parent has the prescription, the analysis will depend on the facts and circumstances of your case. There is no hard and fast rule for the use of medical marijuana by parents involved in a custody dispute.

By way of history, the Compassionate Use Act of 1996 allows “seriously ill Californians” the right to use marijuana under certain circumstances. The right to use medical marijuana, however, is limited just as any other right, so as not to cause harm or injury to another.

This principle applies equally to parents and minors. For example, it is legal for adults to consume alcohol and to have alcohol present in their home. However, the government may lawfully remove children from their legal guardians, should a court determine that the children have been unduly exposed to alcohol abuse or a threat or injury as a result of neglect reckless conduct.The same principle goes for the use of medical marijuana. If the Court determines that a parent’s use of medical marijuana affects their ability to care for the children or put the children in harm’s way, the court could take the children away from that parent. From a family law perspective, that could include reducing or suspending a parent’s visitation with their child.

From a criminal law perspective this could lead to child neglect or endangerment charges being filed. Child Protective Services could become involved and your children could be taken even if you are not the parent using marijuana or the use of marijuana is legal under the Compassionate Use Act.

Another consideration will be the Judge your case is assigned to. Some Judges take a very strict approach to the use of any drug when caring for children; whether that is marijuana or alcohol. The fact that a parent has a valid prescription will not make a difference to many Judges. Other Judges take a more relaxed stance on the use of medical marijuana. That is why it is important to discuss your case with an experienced family law attorney so you can understand how the particular facts of your case may be viewed by your Judge.

If you are concerned that the other parent’s use of medical marijuana is impacting their parenting ability it is important for you to take steps to protect your children. Any acquiescence to the other parent’s use of marijuana while caring for the children could be considered your approval. That is why it is important to seek the advice of an experienced family law attorney to discuss your rights.
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April 22, 2015

Discovery in Family Law Cases

By Bickford Blado & Botros

Once initial papers are filed to get the divorce process started (the petition and response) the next step is typically to gather all pertinent information regarding each spouse’s financial and personal information. Although both parties are required to prepare and serve declarations of disclosure, which outline each party’s income, expenses, assets and debts, discovery is usually a necessary tactic to gather additional information.

Discovery is vital to the divorce process because it allows both sides to examine exchanged information and documentation before determining how to properly divide up assets and debts. Revelations made during the discovery process are also helpful in calculating the appropriate amount of child support and spousal support.

Discovery can occur informally, formally or both. Informal discovery is when the parties and their attorneys simply request specific information or documentation in an email or letter to the opposing party/opposing counsel. Informal discovery indicates that the parties are willing to work together, but simply need more information to move forward in the case.

Formal discovery, on the other hand, typically indicates that the party is more litigious because formal discovery requires that opposing party and opposing counsel follow rigid procedures and timelines in responding to the discovery requests.

Discovery, whether formal or informal, may include some or all of the following: Interrogatories, Requests for Admission, Document Production and depositions.

Interrogatories are written questions from one spouse to the other that must be answered under penalty of perjury. The interrogatories may relate to any issue that is relevant to the divorce proceeding, such as employment information, details regarding financial accounts and information regarding the party’s health or living situation.
Requests for Admission, although not often utilized in family law, can be helpful when you need a party to admit or deny specific facts regarding divorce related issues.
Demand for Production of Documents are particularly helpful when the so called “out-spouse” does not have access to financial statements, documentation relating to a spouse’s business, tax documents, etc. It also is a way to get important information that a spouse may be trying to hide.
Depositions are when an attorney asks the opposing party (or expert, witness, etc.) a handful of questions during a face-to-face interview. Responses are required to made under oath. A court reporter will draft a transcript of everything that is said during the deposition. Depositions are helpful to get important facts out of the other party and also to see how that person will appear and conduct themselves at trial.