Nancy J. Bickford

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If you are recently divorced or still in the midst of the divorce process, this holiday season will likely be the first that your children spend time away from you. Throughout the divorce process, when minor children are involved, the main focus of the case is the best interest of the children and making the transition as smooth as possible for them. Divorce can be very distracting as litigants are dividing property, dividing money, dividing time with their children, and unraveling a life together. Once the process is complete and the divorcées settle into new routines, it can be hard to adjust to time alone without the children. Having the children gone for a whole weekend or a couple nights during the week is hard, but manageable. However, when the children are not home on Thanksgiving or Christmas, it is devastating for many parents. Although the holidays will not be the same after your divorce, below is a list of tips to make the transition easier for you.

Make your own plans: Planning is crucial to easing your family through the first holiday season after or during a divorce. In addition to making plans ahead of time with your former spouse regarding how you will share the children over the holidays, make your own plans with people you love. After your children leave to spend a holiday/part of a holiday with the other parent, you should be ready to head to a friend or family member’s place for your own festivity. Although you might not feel up to celebrating with friends and family, they will make the day easier for you and you might just have some fun.Do something for you: If your children will be away for an extended period of time over the holiday break, plan to treat yourself to something you really enjoy. You might book a massage, buy tickets to a show, go out for a nice meal or spend some extra money to upgrade to the NFL network. Giving yourself something to look forward to while the kids are away will make the time apart easier.

Get organized: Once you have a plan for how you and your co-parent will share the children over the holidays, keep the kids in the loop. Talk with your children about their “exciting” holiday plans and the new traditions you are going to start this year. Instead of focusing on how things used to be in the past, have fun with your kids by coming up with new ideas and holiday traditions. Have a plan for the holiday exchange with your spouse that is short and sweet. Saying a brief goodbye without heartbreak and tears will leave both you and the children with a more comfortable feeling about the separation.
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After you retain a family law attorney and file your petition or response for dissolution or separation, one of the first things that your divorce attorney will likely do is hand you a blank Form-150 and Form 142 and ask you to start gathering a plethora of documents related to your income, assets and debts. This can be very overwhelming for clients, especially those who are still dealing with the emotions and shock of grasping that they are about to go through a divorce. Consequently, the importance of preparing complete and accurate preliminary declarations of disclosure (“PDODs”) is often ignored because it appears to be a very daunting task for divorcing spouses.

Family Code Section 2100 specifically states that “a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties.” It’s important that the parties get started on their PDODs right away because pursuant to Family Code Section 2104, the petition must serve his/her within 60 days of filing the petition and the Respondent must serve hers/his within 60 days of filing the response. Also, having PDODs allows the parties to move forward in identifying potential issues of dispute and resolving financial issues early on.

The PDODs are comprised of the following:

1) Declaration of Disclosure (FL-140): This form is signed by the party and is simply a summary of the attachments enclosed with the PDODs. You will note that all tax returns (personal, corporate, etc.) filed in the past two years need to be included.

2) Income and Expense Declaration (FL-150): This form is a summary of the party’s current income from all sources and his/her monthly expenses. Paystubs from the past two months need to be attached to the form.

3) Schedule of Assets and Debts (FL-142): This form sets forth a summary of the party’s assets and debts. Many people think that their separate property doesn’t have to be disclosed; however, all known assets and debts, including your separate property, community property and your spouse’s separate property that you know of must all be disclosed. This means all tangible and intangible items ranging from a residence to airline frequent flyer miles to student loans. Along with each asset or debt listed, you need to attach supporting documents. You may redact part of the account number on the account statements to protect your privacy.

4) Declaration Regarding Service of Preliminary Declaration of Disclosure (FL-141): This form is confirmation that of the date that you served your PDODs on the other party.

5) Proof of Service (FL-335): The proof of service is what is actually filed with the Court to let the Court know when you served the other party with your PDODs.

Failing to have complete and accurate preliminary declarations of disclosure can lead to potentially significant monetary and other sanctions. However, if you serve your PDODs and later realize that you have changes or updates, you can amend your PDOD at any time. However, you must file a Proof of Service of each amendment with the court.
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Heidi Klum and Seal are officially divorced and back on the market. TMZ reports that their split was actually quite amicable and they had no issues with dividing property and figuring out spousal support thanks to a post-nuptial agreement that they signed after marriage. Although they did not have a pre-nup, their post-nup kept most of their earnings separate and their divorce process was streamlined because they didn’t fight over money. It is reported that neither party will get spousal support from the other and they have even worked out a custody agreement for their four children.

If couples, like Klum and Seal, marry without a prenuptial agreement (aka “pre-nup”) there is still an opportunity to enter into a legally binding agreement regarding property division and support in the event of a divorce. They can do so after they are already married in what is known as a post-nuptial agreement (aka “post-nup”). This is common when couples don’t like the stigma attached with a pre-nup, have a very short engagement and don’t necessarily have time to draft a pre-nup, have children from a previous marriage or perhaps their circumstances have changed such that they wish they would have taken the step to sign a pre-nup. Really the only difference between a pre-nup and a post-nup is that a post-nup is signed after marriage, rather than before. Other than that, it is still a legally binding agreement should the parties decide to get divorced later on.

A post-nup must be in writing and signed by both of the parties. While the parties are free to negotiate the terms of their post-nup, they should be fully informed about all of their assets and debts and they should be represented by independent counsel. Drafting a post-nuptial agreement is an opportunity for married couples to analyze their assets and debts and then set terms that are acceptable to both parties. It will allow the parties to gain a common understanding of how to handle contentious financial issues.A post-nup might include designations regarding which assets and debts are to be considered separate property, the amount of spousal support to paid to one party, the right to manage or dispose of property, the role of a spouse in a business, and division of community property in the event of a divorce or separation. A post-nup might also address how to divide money in a blended family where one or both spouses have children from a previous marriage. However, a post-nuptial agreement cannot address child custody or child support. If the parties’ marriage does eventually dissolve, the post-nup will essentially serve as the framework for drafting a marital settlement agreement.
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It is common in contested divorce cases for one or both parties to hire a family law attorney. Divorce attorneys are experts in the law; however, they are not all necessarily experts in specialized areas that some divorces involve. Throughout San Diego County there are a variety of experts who work with family law attorneys to help clients in the divorce process. Depending on the issues in the particular case, a psychological, vocational, medical, or financial expert may help the parties overcome impasse and move the case forward. However, although experts can be invaluable assets in a divorce, hiring an expert can be expensive and may lead to a battle of experts in the courtroom.

Financial Experts & Vocational Experts

Disputes over child support and spousal support can drag a divorce out for months or even years. When one spouse is self-employed, the parties often take vastly different positions on the paying spouse’s income. In order to save time and significant attorney fees, some attorneys recommend hiring a neutral expert to conduct an income analysis. The financial expert will examine all materials provided by both parties and has the ability to request additional documents needed to conduct the analysis. The expert will then provide both sides with a report outlining his or her opinion on the self-employed spouse’s income available for support.

If one or both parties disagree with the analysis for some reason, he or she may hire an independent expert to conduct a similar analysis or review the work of the neutral. However, if both parties accept the analysis, they can reach an agreement on support quickly and move forward in the case. In addition to performing an income analysis, a financial expert may also be hired to value a business or analyze various accountings.

Another common reason for a support dispute is a disagreement over the level of income one or both spouses should be earning. If one or both parties are unemployed or underemployed the parties can hire a vocational expert to conduct an evaluation of the ability and opportunity for the party to become employed. Pursuant to the findings of the vocational expert, the parties can agree to impute income to the unemployed or underemployed spouse.

Psychological Experts

Just as support disputes prolong the divorce process, custody and visitation battles can do the same. Sometimes it is helpful for the parties to hire an expert to evaluate the custody and visitation issues and make a recommendation to the parties. In addition, psychological experts also may be hired to evaluate one or both parent’s ability to parent the children. Therapists can be used in family law cases to conduct reunification therapy in an attempt to repair the relationship between one party and his or her children.
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If you and/or your spouse are contemplating divorce, one of the initial considerations is whether you should file for divorce or wait for your spouse to file first. Specifically, is there an advantage or disadvantage to filing for divorce first? In a typical divorce proceeding, it does not make a big difference whether you are the petitioner (first to file) or respondent in your case. In the court’s view, both parties are on a level playing field. The petitioning party is not penalized for filing first, but he or she is also not rewarded in any way. In addition, the San Diego Superior Court charges the same filing fee ($435) for filing the Petition for Dissolution and the Response to Petition for Dissolution. Combined, the parties will spend $870 just to make their appearances in a divorce proceeding.

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

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

If you and your spouse share minor child(ren), the jurisdictional issues involved in your case may be even more complicated. Becoming informed of your options is the first step you can take towards protecting your rights.
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Gender neutral language has not always been present in the California Family Code.
For instance, the current California Family Code Section 4323(a)(1) reads as follows:

“Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1.” [emphasis added]

In other words, as the current provision stands, if you are paying spousal support to your ex-wife and she is now living with a member of the opposite sex (i.e. a new boyfriend) then a family law judge will presume that your ex-wife doesn’t need as much spousal support and you could perhaps petition the court for a modification of spousal support. This of course is merely a presumption, not a certainty, so your ex would have an opportunity to show the judge that there is not a reduced need for spousal support.

The problem with the provision as it is currently written is that many divorce attorneys represent clients who are paying spousal support to their ex who is actually cohabiting with a same-sex partner, with whom they are in a romantic relationship. If your ex-wife is now living with a female roommate and you have established that their relationship is indeed intimate then you would want the family law judge to presume that her need for support is now reduced. But because the presumption only applies to cohabitation with a person of the opposite sex, herein lies the problem that many San Diego attorneys come across.

However, in July 2014, Governor Jerry Brown passed Senate Bill 1306, which will remove biased language from the California Family Code and instead recognize married spouses equally, regardless of their gender. With the passing of SB 1306 and the subsequent changes to Family Code Section 4323 (a)(1), gender distinction in this family code section is essentially being rendered obsolete. Family Code Section 4323(a)(1) will read as follows and will take effect on January 1, 2015:

“Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a nonmarital partner. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1.” [emphasis added]
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One of the popular marketing strategies for family law firms throughout San Diego County is promoting “divorce for men”. From billboards to newspaper ads and firm websites, many law firms advertise a focus on “husbands and fathers” and protecting their rights. “Men’s rights” is an issue that many litigants associate with divorces, custody battles and domestic violence cases. However, is there really a different skill level involved when representing husbands and fathers or is this advertisement nothing more than a way to attract male clients?

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

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

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

An overwhelming majority of domestic violence restraining orders are filed by women against men. However, that does not mean that a restraining order filed by a woman against a man is automatically granted and that men are disadvantaged. Statistically, women are more frequently the victims of domestic violence and men who are victims are less likely to report it than women. As a factual matter, most restraining orders are granted on a temporary basis until the matter is heard by the court and the accused is given the opportunity to present a defense. In San Diego, family court judges do not take the deprivation of a person’s liberty lightly and require evidence of domestic violence before they will grant a permanent restraining order.
Considering that men and women are on a level playing field under the law, it seems that catering towards “men’s rights” might be more of an advertising technique rather than a true skill set.
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San Diego is known for its large population of military members and their families. In the San Diego County there are 16 naval and military installations of the U.S. Navy, U.S. Marine Corps and U.S. Coast Guard. We at Bickford Blado & Botros are grateful for the countless sacrifices that our military men and women make. We understand that many military members receive injuries or disabilities (both mental and physical) as a result of their service, or have injuries that are made worse during service or training. In San Diego, when a veteran is going through the divorce process, he/she may be concerned about how much of his/her disability compensation from the Department of Veteran’s Affairs will be lost due to property division, spousal support and child support obligations.

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

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

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

Child Support
A family law judge has the right to consider VA disability compensation as income available for child support. Also, if the party fails to pay court ordered child support then the party’s VA disability compensation may be garnished.
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Stars of the hit Food Network show Down Home with the Neelys, Gina and Pat Neely are getting divorced after twenty (20) years of marriage. Gina and Pat were high school sweethearts and have built a family brand consisting of products and restaurants across the United States. The Neely’s show Down Home with the Neelys is a cooking demonstration show that features the fun banter between husband and wife. Gina and Pat’s careers are so carefully intertwined with their relationship as a married couple that they will each have to pursue a new path after separation. In addition, the Neelys will have to divide up the empire they established throughout their twenty (20) years of marriage.

According to media reports covering the Neely divorce, the Neely’s were on the verge of separation when they were discovered by the Food Network and offered their own show in 2009. The Neelys were surprised when the show became a fast hit and decided to ride the wave out and garner fame. Pat Neely believes that his former wife will not sustain the same level of success after their separation because he was the only trained chef and because most of the recipes the couple featured are owned by his family. Gina plans to branch out and develop her own brand of Green Giant products.

Although the Neelys are getting a divorce, they do not plan to sell their popular barbeque restaurants. If the parties to a divorce reach an agreement regarding asset division outside of the courtroom, they have the ability to craft creative terms that fits the best interests of both parties. In the Neely divorce, the parties will be able to create a marital settlement agreement that allows them to keep their restaurants in tact while dividing responsibilities and income accordingly. The lawyers will have the difficult task of drafting appropriate enforceable provisions that allow the parties to continue to jointly own their restaurants.

When divorcing parties want to work towards an agreement whereby they continue to jointly own an asset after separation, an experienced family law attorney will carefully discuss the pros and cons of that arrangement with his or her client. While it will seem appealing for the parties to keep their assets in tact and still reap the profits, it can become complicated when the relationship changes between the parties. Depending on the level of animosity and the level of involvement necessary for the parties jointly own an asset, it may or may not be beneficial for a divorced couple to jointly retain property. One possible solution to the issues that arise when divorced parties who wish to jointly own an asset is to create an arrangement where the parties have the least amount of interaction possible. Overall these agreements can be successful if they are drafted properly and each party clearly articulates his or her expectations.
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Child actor, Corey Feldman, and his wife Susie were married in 2002 but later separated in 2009. Their divorce was recently finalized and according to the court documents that TMZ obtained, Susie gets to keep the couple’s 2002 Hyundai but not her surname. Apparently, Susie agreed to return to her maiden name of Sprague post-divorce. But what about their 10 year old child – can Susie change his last name to her maiden name also?

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

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

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

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