San Diego Divorce Attorneys Blog

July 1, 2015

When is a Custody Order Really “FINAL”?

Having to litigate the issue of child custody can be an emotionally exhausting process. Litigation also tends to fray the relationship between the parents and the resulting tension almost always affects the children in some form. Clients justifiably want to know: when will it end?

Under California law, the Court continues to have the power to make child custody and visitation orders until a child turns 18. The orders can be changed at any time upon the filing of a motion. However, this doesn’t mean that the Court starts from scratch each time a parent files a motion to change the parenting plan. Sometimes, the law requires that the Court apply the changed circumstances rule, which makes it significantly more difficult to change custody. In these cases, the Court must find that there are significant changed circumstances exigent to the health, safety, and welfare of the child before it changes custody.

So when does the changed circumstances rule apply? It applies when there is a “final judicial custody determination” as stated in the Montenegro v. Diaz California Supreme Court case. If the parents litigate the issue of child custody at a trial or post-judgment hearing, these custody orders would be “final” and subject to the changed circumstances rule. A stipulated custody order or judgment that contains a clear, affirmative indication that the parties intended the stipulation to be a final judicial determination of custody will also invoke the changed circumstances rule.It is important to note that there are many circumstances where the Court makes an order after a contested hearing, but the order is not considered final. Temporary child custody orders and custody orders made pursuant to a Domestic Violence Restraining Order request, for example, are not considered final judicial custody determinations. Therefore, the changed circumstances rule does not apply to these types of orders.

Even though a finding of changed circumstances may be required to change custody, the Court never has to find changed circumstances to make slight modifications to the visitation schedule, pursuant to the Enrique M. v. Angelina V. case. Adding an overnight, for example, would probably not invoke the changed circumstances rule. In these situations, the Court would apply the best interests of the child standard as set forth in Family Code section 3011.
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June 29, 2015

They Want to Move Where?!

By Bickford Blado & Botros

People from around the world settle in California and specifically San Diego for many reasons, for example, our beautiful weather, or to work in the booming biotech industry. When they arrive, they marry, have children and become an integral part of the diverse San Diego community. While oftentimes people plan on staying permanently, sometimes they decide to return home. What happens when your divorced spouse wants to move with your child overseas?

For example, actress, Kelly Rutherford, is involved in a very contentious international custody dispute. After an initial joint custody award, her ex-husband gained custody of their children when his visa required him to return to Monaco. The ability of a parent to move with a child out of state or even out of the country can be very contentious. One parent’s relationship with the child will be irrevocably changed. While the determination of a move-away case can be extremely complex and fact specific, as with all matters involving children, the court relies on what it believes are in your children’s best interests before issuing a ruling.However, if one parent moves without permission from the court, you may have recourse if your spouse moved to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). The Hague Convention gives parents recourse if the moving parent has taken a child without permission, or sometimes if they are in non-compliance with a custody and visitation order. The Hague Convention attempts to return the custodial arrangement to the status quo before the abduction and it gives a framework for different jurisdictions with different laws to work together for the benefit of the child. The issues surrounding the Hague Convention are complex and require diligence to ensure the best outcome for your child.
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June 25, 2015

Why Mediation?

By Bickford Blado & Botros

County music singer Trace Adkins has just ended his divorce from his wife of 17 years, Rhonda. While the split has been in the news, the terms of the divorce have remained quiet. The reason why the parties were able to reach a resolution of their issues without a judge making a ruling and there is being a public record is because they utilized mediation.

Mediation is a process wherein the parties involved in a dissolution meet with a neutral third party mediator to work toward a settlement. The mediation process is voluntary and private to allow for flexibility in the process. In order to facilitate open communication and dialogue between the parties in mediation the State of California enacted Evidence Code §§1115-1128, which protects the confidentiality of the process. This means that disclosures made during mediation generally cannot be used if the parties decide later to litigate their matter in the Family Court.

Mediation is a valuable process to allow for parties to speak candidly and can be beneficial in complex, high asset cases. The parties can represent themselves or utilize attorneys to advocate for them during the process. Mediation can often keep legal costs down and allow for personalized settlement results in a less formal atmosphere.
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June 8, 2015

What do I do with my Thrift Savings Plan during my divorce?

By Bickford Blado & Botros

If you are a member of the uniformed services or work for the Federal Government you are eligible to sign up for a Thrift Savings Plan (“TSP”). A TSP is a retirement savings plan similar to a 401(k), and it often supplements other retirement plans such as Federal Employee Retirement System (FERS) or your military retirement. Even though it is similar to a regular 401(k) it is managed by the Federal Thrift Investment Board, which is an independent government agency, as opposed to a private financial services company.

When you retire your TSP is treated the same as a 401(k). During your working years you place a portion of your pretax earnings into your TSP account and those funds are taxed when removed post retirement. Because a TSP is similar to a 401(k) they are treated in the same way during a divorce. The community portion of the TSP (the amount accrued during marriage), are divided pursuant to a specially prepared order. A Thrift Savings Plan does not fall under the Employees Retirement Income Security Act (“ERISA”), rather the order must meet different requirements under Federal Law (5 United States Code sections 8435(c) and 8467, and 5 Code of Federal Regulations part 1653, subpart A).
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May 28, 2015

Never Look a Gift Horse in the Mouth

By Bickford Blado & Botros

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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