Nancy J. Bickford

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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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Amber Rose recently filed for divorce from rapper hubby Whiz Khalifa. According to TMZ, she’s convinced that Khalifa has been cheating for quite some time now and making excuses that just don’t add up. When Rose wanted to join Khalifa on tour, he allegedly told her that she should stay home with their 1 year child instead. But Khalifa is convinced that it’s Rose who has been the one cheating and that she’s accusing him just to cover up her own infidelity.

Unfortunately many divorces, not just celebrity divorces, stem from an unfaithful partner. Unfaithfulness leads to a lack of trust between the spouses and then typically a complete breakdown of the marriage itself. Although finding out that your spouse is or has been unfaithful can be extremely painful for you and your family, here are some warning signs that you can look for to help determine whether your spouse has been or is on the verge of being an unfaithful partner.

1) There are extended periods of time where your spouse is unaccountable 2) Your spouse is spending more and more time with his/her “new friend”
3) There is distance in the bedroom between the two of you 4) Your spouse has a sudden need for privacy regarding his/her computer activity, cell phone activity, credit cards, etc.
5) Your spouse is requesting space to figure out his/her feelings 6) Your spouse’s typical work habits change (i.e. working much later or odd hours)
7) Your spouse is having secretive phone callsIf you can answer yes to any of the above then it might be time for you to consider talking to a family divorce lawyer. However, keep in mind that even though most people agree that adultery is wrong, California’ s divorce laws are actually forgiving of adultery. In fact, California was the first state to implement the concept of a no-fault divorce in 1970. This means that California Courts will not consider infidelity as a ground for divorce. Family law judges in California also cannot order the “cheater” to pay spousal support simply because of his/her misconduct. Rather, spousal support is based on the financial needs of one spouse and the other spouse’s ability to pay it. In California, adultery also does not play a factor is the Court’s decision regarding child custody and visitation. Rather, California Court looks at what is in the best interests of the children.
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After more than twenty (20) years of marriage, matriarch of the Kardashian clan filed for divorce from Olympic gold medalist, Bruce Jenner. The couple announced their split in October 2013, but continued to work to figure out their relationship on the reality show Keeping up with the Kardashians. The couple began to live separate and apart when Bruce moved out of the family home and into his own place in Malibu, California. However, they continued to take family vacations together and celebrate family events. In September 2014, Kris filed a Petition for Dissolution citing June 2013 as the parties’ date of separation – a few months earlier than previously announced. Shortly thereafter Bruce filed a Response to the Petition citing the same date of separation.

The date of separation is a crucial consideration in any divorce proceeding. Regardless when either party files a divorce petition, the marital community ends upon the date of separation. The date of separation occurs when one party has determined there marriage is over and his or her actions evidence that decision. Typically, all the earnings and accumulations of the parties from the date of marriage through the date of separation are community property. This means that those earnings and accumulations will be equally divided upon divorce. Since Bruce and Kris agree they separated in June 2013, all earnings and accumulations of either party after that date are the separate property of that party.

Pursuant to the filings, the parties agree to share joint legal and physical custody of their seventeen year-old daughter, Kylie. Out of the ten (10) children Kris and Bruce have collectively only one of their children is under the age of eighteen (18). In reality, Kris and Bruce will not likely share custody of Kylie in the normal sense of a “week on week off” schedule or “every other weekend” plan. As shown on their reality show, Kylie generally travels between her parents as her busy schedule permits. Both parents have encouraged Kylie to spend quality time with the other.

According to sources close to the Kardashian’s Kris and Bruce’s respective managers have worked out the fine details of their divorce during the past eleven (11) months of their separation. As a result, the divorce process should be relatively quick. One incentive for celebrities to reach agreements outside of the court system is privacy. As long as the Jenner’s have reached an agreement on all issues, they will likely be required to file many more documents to officially wrap up their divorce. In addition, the Jenner’s have the option to file an abbreviated version of their final judgment, keeping the specific terms out of reach for the public.
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The family residence is sometimes the parties’ biggest asset acquired during marriage. It is also typically an asset that one or both of the parties feel very attached to. When going through a divorce, the parties will have to decide whether to sell the house, continue to co-own it or have one spouse keep the house and “buyout” the other spouse’s interest in the house. A “buyout” is typically an attractive option when there are kids involved and the parent staying in the house wants to continue to provide continuity and stability for the kids. It is also an appealing option if the market conditions don’t favor the seller at the time. To “buyout” the other spouse means that the house will be assigned a certain value and the spouse not keeping the house will instead receive a percentage of the that value less the debt. The buying spouse either pays money to the selling spouse or gives up other marital property in the amount of the selling spouse’s share. Thus, the fair market value of the home makes a big difference on how much the “buyout” will cost the selling spouse.

There are a few different ways to value your marital residence. It is important for the valuation to be as fair and accurate as possible. Typically parties either get the residence appraised, have a realtor do a comparative market analysis or the parties do individual research based on online websites.

If the parties choose to value the home based on individual research, they will typically use an online website such as Zillow.com or Eappraisal.com, which gives immediate estimates of the home’s value. The parties can also ask a real estate agent to perform a Comparative Market Analysis, for little or no cost, which provides information about recent sales prices of comparable houses in the neighborhood. Then you can you’re your home’s value on those comps.

However, not all houses are the same, and thus comps and online websites are not always the most accurate way to determine the fair market value of a house. Instead, the most accurate way to determine the fair market value of a house is to have an appraisal done by a neutral and licensed appraiser. Of course this method will cost the parties a small chuck of change. The parties can either agree on a joint appraiser and perhaps split the cost, or they can each pay to have their own appraisers do an appraisal and split the difference between the fair market value. The cost of an appraisal is usually worth it to make sure that you are using an accurate number to value your home and thus calculate the buyout amount.
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The beginning of a new school year is an exciting and stressful time for children and their parents. Parents are worried about getting their children clothes for the cooler season, school supplies for new classes, and making sure they get back into the rhythm of homework and extra- curricular programs. If you are recently divorced, getting the kids back to school will be even more challenging and it is important to consider different issues which tend to arise. The following is a list of tips for newly divorced families to help ensure the first transition back to school is successful for the children.

Have a Meet and Greet with the New Teacher
It is important to the success of your child that parents and teachers are on the same page regarding the child’s education and any behavioral issues. Especially if your child is established at his or her school, it may be a good idea to discuss your recent divorce with your child’s teacher. Let the teacher know about the new custody and visitation arrangement and how your child is handling the divorce. Teachers at the school may be used to only calling or emailing a particular parent whenever an issue arises. To ensure the lines of communication are open, ask the new teacher to provide duplicate handouts to your child and to update both parents whenever he or she has information to report. That way both parents can stay equally involved in the child’s education.Update Contact Information with the School
Many divorcing parents opt to sell their marital residence in order to reduce overall costs for the two households which now must be financed. It is important to make sure your child’s school is aware that your child has moved, if applicable. In addition, your child’s school should have updated contact information for both parents.

Coordinate Child Sharing with your Co-Parent – not your Child
Now that a new school year has started, there are a lot of small details to be worked out regarding who will drop the child off at school, what time school starts, who will pick the child up from school, making sure homework is completed on time, and scheduling extracurricular activities. It is important to work these details out with your co-parent without involving the children. Putting the children in the middle of these discussions is stressful and confusing. Try to stay organized with your co-parent so that the children have a smooth transition between school and their two new homes.
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At the core of a custody dispute in a divorce is your child. You may think that the child should be in your sole custody but your spouse might wholly disagree and think that the child should be in his sole custody. The court will take the both sides’ arguments into consideration when determining custody division. But when will the Court look to the child and ask for his/her preference for living with mom and/or dad? Does the child even get a say in the matter?

The conventional thought has typically been that a courtroom is not a place for a child and as mature adults we should not be directly entangling children in custody disputes. Consequently, there was a time in California when a child’s preference regarding custody after his/her parents divorced really wasn’t considered by family law judges unless the child was in his/her late teenage years. However, a child’s preference regarding which he/she lives with, how the child can make that preference known to the court and the appropriate age for a child to be able to make a choice has evolved over the years.

Family Code Section 3042 became operative in January 2012 and changed the game with regard to a child’s custody preference. Family Code Section 3042 provides that: “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.” Although the law does not require children to testify, if the child is 14 years of age or older and wishes to address the court regarding his/her preference for custody or visitation, the court is required to hear from that child absent a good cause finding that it would not be in the child’s best interest to do so (and the judge states the reasons on the record). If the child is under the age of 14 and wishes to address the family law court regarding his/her custody preference, then the court may allow the child to testify “if the court determines that it is appropriate pursuant to the child’s best interests.” California Rules of Court 5.250 is intended to implement Family Code section 3042.

The above changes in the law are significant considering that previously courts seldom allowed children to testify. Again, no law or court rule requires children to participate in the custody proceedings in court. However, when a child wishes to participate, the court must balance its duty to consider the child’s input with its duty to protect the child. While family law judges have the discretion to listen to a child’s custody preference, this does not mean that the judge will follow every aspect of the child’s preference.

Regardless of whether you are the parent who seeks custody based on your child’s preference or you are the parent opposing your child’s preference, we understand that this is a sensitive situation that could greatly affect your family and your relationship with your children. Our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California’s child custody laws, we encourage you to contact us as soon as possible.
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Although divorce is typically filled with heavy emotions, the end result of the divorce process should be for couples to move forward to a happier life. Unfortunately, in today’s legal system, many couples come out of a divorce feeling more embittered after litigating a divorce. Choosing to mediate your divorce case, rather than litigate it, provides a much less adversarial means of getting a divorce.

Mediation is very different from hiring an attorney and appearing before a Judge in court. Mediation is also different than both parties and their individual attorneys working together to settle a divorce case. Rather, mediation (as discussed below) simply involves two parties and a credentialed mediator. The mediator is a neutral person and does not represent either party. There are no attorneys or specialist present in this type of mediation.

Once you and your spouse jointly select and retain a mediator, the three of you will meet and work through the issues you need to resolve in order to end your marriage as amicably and cost effective as possible. The process is done in a controlled and non-confrontation process so that you and your spouse will ultimately be able to decide your own divorce terms based on what is best for the both of you and your children, if any. You do not have to follow the traditional rules of dividing assets and calculating support, but your settlement must still be fair and not against public policy.

Sometimes agreements between spouses come easy but when these agreements are harder to reach the mediator will intervene. The mediator’s purpose is to help brainstorm ideas, keep the communication between the parties open and assist the couple with their decision making process by keeping them focused on the issues at hand. The mediator, unlike a judge, will not make any judgments or decisions. Rather, the mediator will facilitate the process and make sure that both parties’ interests are met and that any decisions made by the parties are mutually satisfactory to both parties.

Once the parties come to a full and final agreement, the terms of the agreement will be drafted into a Marital Settlement Agreement. Each party will have an opportunity to review the Marital Settlement Agreement before signing. The Marital Settlement Agreement will then be filed with the San Diego Family Court with the required court documents and will then become an enforceable court order.

Mediation is an ideal choice for many divorcing couples. Not only is the process much quicker and less expensive than hiring an attorney to litigate, but it also gives both parties the power to create a unique solution to their divorce that best fits the needs of the parties. As a result, the parties have much more control over the potential outcome of their divorce.
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