Nancy J. Bickford

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California child custody laws have most certainly evolved during our history as a state. Historically, it appeared that mothers were favored in court to get custody of the parties’ children just because they were female. Mothers were pretty much guaranteed to get custody of the children, while even the best fathers were only given a limited visitation schedule while the children. Perhaps this was because traditionally mothers were viewed to be the more nurturing of the two parents; they were viewed as the parent who does everything in their power to make sure the children are taken care of properly and grow up right.

Despite popular belief, such favoring of mothers in child custody arrangements is not the case today. In this modern day in age, most states’ laws actually prevent the courts from considering a party’s gender when making a ruling on child custody. In San Diego, courts grant equal rights to both mothers and fathers in child custody cases. California Family Code Section 3040 specifically states that “custody should be granted… according to the best interest of the child…and shall not prefer a parent as custodian because of that parent’s sex.” Moreover, it is the public policy of California to ensure that children have frequent and continuing contact with both the mother and father.

Read more about child custody and visitation modification

The legal standard of “the best interests of the children” requires a court to take various factors into consideration, not including gender, when making a decision regarding the care and custody of the parties’ children. The Family Code sets forth various factors that a court will consider, including but not limited to, the following:

  • Any history of abuse or neglect by either parent;
  • The habitual or continual illegal use of controlled substances;
  • The habitual or continual abuse of alcohol or prescribed controlled substances by either parent;
  • The overall health, safety and welfare of the child;
  • The requests of the parents;
  • The requests of the child if the child is of sufficient age and capacity to form an intelligent preference as to custody or visitation (Family Code 3042);

Thus, the main concern of any San Diego family law court is what custody and visitation arrangement is going to be consistent with the children’s best interests. A parties’ sex, therefore, will not determine who gets priority for being awarded the care and custody of the children involved.
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A divorce can be quite devastating for all parties involved, especially the children of divorcing couples whose lives are often affected in a variety of ways. One issue that frequently arises during a divorce is a dispute over where the children will attend school after the parents have moved their separate directions. Children with parents involved in an active divorce case at family court often worry that they will be uprooted from the friends and teachers that they have come to know, or that they will bounce around between different schools each year.

So who exactly gets to decide where the minor children will go to school after a divorce? Divorce lawyers will advise their clients that the answer depends on the custody order. When one parent has sole legal custody, then that parent has the right to choose which school the children will attend without the input of the other parent. On the other hand, when parents share joint legal custody, they have to agree on various important decisions related to the children, including which school to send their children to.Thus, one parent cannot enroll the parties’ minor children into a school without the consent of the other parent. If the joint custody/parenting plan doesn’t already address the issue of which school the children will attend, then the parents either have to come to an agreement on their own, agree in mediation, or direct their family law attorney to file a motion and take it to court for the Judge to decide. If the Judge is left to decide which school the minor children will attend, the Judge will typically look at what is in the best interests of the children. Some factors include, but are not limited to, desires of the children/parents, previous school selection by the parents, academic standard, proximity to custodial parent, children’s educational needs, commuting time from each parent’s home, tuition cost, etc. In situations where the children are already attending a certain school, then the likelihood of them continuing to attend that school is quite high, unless a compelling case is made that continuing attendance at that particular school is not in line with the children’s best interests. However, when the children are about to start kindergarten or are transitioning into a middle school, junior high school, or high school, then the decision might be a bit more complicated and the Judge will have to take various factors into consideration.
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A common issue that comes up during the divorce process with our San Diego family law clients is how to divide the beloved family pets. It’s not uncommon for pet owners to view their dogs, cats, birds, horses, etc. to be part of the family, much like a child. However, unlike children, California courts cannot divide a pet by way of a custody and visitation arrangement. Instead, pets are considered to be a piece of the marital property and can be given to only one of the pet owners in the divorce, not both of them.

Dividing Pets in Court

There really is no way to predict what a Judge will decide if you take your claim regarding the family pet to court. Judges will often consider some of the following factors of the divorce:

  • When the pet joined the family and whether one party had the pet before marriage;
  • Who the primary caretaker is (which spouse is typically responsible for grooming, feeding, walking and day-to-day care);
  • Who has more space for the pet to play and exercise;
  • Who has more time to be able to spend with the pet;
  • Whether either party has abused the pet and is therefore unfit to be awarded the pet; and
  • Which party has the greatest emotional bond with the pet.

Dividing Pets Outside of Court

Although courts will not consider options for sharing a pet, spouses do have the option to come to an agreement outside of court regarding sharing custody of the pet or giving the other spouse visitation rights of the pet after a divorce.

If keeping custody of your pet after a divorce is very important to you, it might be best to keep the issue out of court and instead try to negotiate a shared custody arrangement with your soon to be former spouse or compromise regarding giving up other marital assets in order to keep the pet. However, you have to prepare yourself to be willing to give up some pieces of marital property that your soon to be former spouse wants, so that in exchange you can keep your beloved pet. Although difficult, you have to weigh what is more important to you.

It is also important to keep the best interest of the pet in mind. For instance, if you have minor children too, it might be best for the parent who has custody of the children to also have “custody” of the pet. Also, you should consider whether you will truly be able to give the pet the love, care and attention that it requires. If you know that you have a busy schedule, your finances are going to be extremely tight following divorce, or if perhaps you are moving into a new place without adequate space for the pet, then maybe it would actually be in the pet’s best interest to be given to your soon to be former spouse.
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Along with the emotional challenges of a divorce, financial challenges often also accompany a divorce proceeding. In relation to the many financial challenges, one question that often comes to the mind of our San Diego clients is:

How does divorce affect my credit?

The fact that you are now divorced won’t directly affect your credit, credit scores or credit history. This is because your creditworthiness is not based on your marital status. However, divorce can indirectly affect your credit in a number of ways, and usually not in a good way.

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Due to the nature of California family law, divorce lawyers have a tough job when it comes to pleasing the client. Many divorce lawyers are proficient practitioners who are skilled in court room advocacy, preparing appropriate pleadings, and getting people divorced. However, at the end of a family law case, both parties walk away from each other with less than they started with and the emotional strain of separation. Undoubtedly in every divorce case, bank accounts and retirement plans will be divided, debt will be assigned, valuable property will be sold and the parties must figure out a new way of life. Family lawyers often work tirelessly to ease the stress of divorce for the client by attempting to create mutual beneficial solutions for the parties outside of the courtroom.

If the parties cannot reach an agreement on all issues in a divorce case, they must face each other as opponents in trial. Any family law trial is incredibly expensive for both parties to litigate. In fact, many trials can be more costly than the item(s) over which the parties are arguing. Another unfortunate reality about litigation in family law cases is that litigation is often funded by the liquidation of the community assets.

This means that the longer the parties battle on, the more the “pot” left to divide shrinks. After all of the arguments, hearings, and trials are over, the parties may not have any assets left to share. In order to avoid that outcome, family law attorneys work to help the client consider the cost-benefit analysis for each dispute.

Family law litigants often become frustrated with the settlement process in cases where one spouse remains firm in his or her positions and is unwilling to compromise on any issue. In these cases, the spouse who is willing to engage in “back and forth” settlement offers may feel cornered and vulnerable. The cooperative spouse will likely see no other option than to yield to every demand of the unreasonable party.The only alternative is a lengthy, expensive and draining trial. The emotional and financial cost of trial is rarely worth a potentially successful outcome. This problem is only compounded when the spouse and his/her attorney are confident they will prevail if a disputed issue is litigated; however, they must rescind their position to preserve the community estate.

There are many opportunities throughout the divorce process for parties to reach a settlement on disputed issues. If child custody and/or visitation are involved in the case, the parties are required to attend mediation at Family Court Services. A mediator will work with both parties and attempt to create a mutually agreed upon custody and child sharing arrangement.

In addition, before any issue proceeds to trial, the parties are required to attend a Mandatory Settlement Conference (“MSC“). At the MSC, a family law expert will work with the parties in an attempt to settle all issues which could potentially go to trial. Both of these services are provided without charge for family law litigants. WCENY8KDWAEH Continue reading

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A divorce almost always results in a change in housing for one or both spouses. As if qualifying for a new mortgage isn’t hard enough, unfortunately, getting a mortgage after a divorce can be further complicated by several factors related to the dissolution. During a divorce proceeding, family lawyers frequently answer the question:

“How do I get a mortgage after a divorce?”

Mortgage lenders look at your overall debt-to-income ratio to see what you quality for. Thus, it is important to keep in mind that the following liabilities will be considered as part of your ability to qualify for a mortgage:

  • Child and Spousal Support Obligations:
    Lenders will look for any undisclosed financial obligations such as the payment of child support or spousal support pursuant to the divorce decree. These financial obligations will, unfortunately, reduce your ability to qualify for a mortgage because they are looked at as debts, which reduce your income.
  • Credit card debt, student loans, and automobile loans: These liabilities will also be considered as part of your ability to qualify for a mortgage unless you are able to prove that your ex-spouse is responsible for the credit obligation by showing twelve months of canceled checks or bank statements.

Although getting a mortgage after divorce can be complicated by the above factors, with some extra planning, discipline and awareness, it surely is not impossible. Here are some tips to help make it easier to get a mortgage after divorce:

  • Disclose receipt of child support and/or spousal support: The income received as child support and/or spousal support pursuant to your divorce decree can be used to help you qualify for a mortgage.
  • Carefully review your credit report: Make sure the accounts on your credit report belong to you only, not jointly with your ex-spouse. This can be quite a process and time some time to sort through but it is worth it because, for instance, if your ex-spouse pays a debt (pursuant to the divorce decree) late that is on your credit report, it will negatively affect your credit score and make it harder to qualify for a mortgage.
  • Provide evidence that ex-spouse is responsible for current mortgage: You can improve your ability to qualify for a new mortgage if you own a house and are currently on a mortgage with your ex-spouse but the divorce decree awards the home to your ex-spouse and he/she is willing to provide evidence that they make the mortgage payments on the home.

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The date of a premarital agreement (commonly referred to as a “prenup”) will determine the law applicable to its enforcement and validity. The law related to the validity and enforcement of premarital agreements has changed substantially throughout the past 30 years. Divorce attorneys are frequently asked the question:

“Is my prenup valid?”

Any premarital agreement executed after January 1, 1986 is subject to the Uniform Premarital Agreement Act (UPAA). However, prior law continues to govern any pre-1986 premarital agreements. In 2002, portions of the UPAA were significantly amended. Again, those changes do not apply retroactively so the 1986 version of the UPAA applies to all premarital agreements executed between January 1, 1986 and January 1, 2002. So, considering all of these timelines, the following is a list of differences to examine:

Premarital Agreement Executed Between 1/1/1986 and 1/1/2002

  • Relaxed statutory disclosure standards – Spouses are held to a lower duty to make a fair, reasonable, and full disclosure regarding property or financial obligations
  • Burden of proof – The party claiming the premarital agreement is unenforceable bears the burden of proof on that contention.
  • Representation of counsel – No requirement that party against whom enforcement is sought was represented by an attorney at the time the premarital agreement was executed.
  • Waiting period – No mandatory waiting period between presentation of premarital agreement to a party and the date it is signed.
  • Spousal Support Waiver – Relaxed statutory requirements applied to spousal support waiver.

Premarital Agreement Executed Between 1/1/2002 and the present

  • Heightened statutory disclosure standards
  • Burden of proof – Burden shifts to party attempting to enforce the premarital agreement to prove it was executed voluntarily.
  • Representation of Counsel – Party against whom enforcement is sought must have been represented by independent counsel or signed an express waiver of representation in a separate document.
  • Waiting period – There must be at least seven days between the date a party is first presented with the premarital agreement and the date it is signed.
  • Spousal Support Waiver – A spousal support waiver in a premarital agreement must meet strict statutory standards in order to be enforceable.

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The Defense of Marriage Act (DOMA) was enacted on September 21, 1996 and permitted the states to refuse to recognize same-sex marriages legally entered into in other states. This means that under DOMA, if a same-sex couple who legally married in Hawaii moved to California, California would not be required to recognize the marriage and provide state benefits otherwise provided to married couples. In June 2013, the Supreme Court of the United States declared DOMA unconstitutional. In the aftermath of that landmark decision many same-sex couples are questioning whether they will receive any retroactive relief for the various benefits they were deprived of for nearly seventeen years.

New York legalized same-sex marriage in June 2011 and extended equal rights under estate tax law to legally married same-sex couples in July that same year. Estate tax rights were even extended to those married in other states before New York legalized same-sex marriage. However, federal laws prevented New York from implementing any retroactive application of the estate tax law. This problem came to light when Edie Windsor sued the IRS for denial of her right to inherit granted to other married couples. In 2009, Edie paid $363,000 in federal taxes upon the death of her spouse. As their marriage was not federally recognized under the tax code, she was unable to reap estate tax benefits available to married couples. The Supreme Court held Edie was entitled to a tax refund.Similarly, since Massachusetts issued the first marriage license in the United States to a same-sex couple in 2004, wedded same-sex couples have been unable to file joint federal tax returns. Although a same-sex couple may be married under the laws of their home state, they were unable to claim any federal tax benefits. Now that such federal tax laws have been overturned, same-sex couples question whether they can retroactively realize federal tax benefits back to the date of their marriage.

In general, a tax refund can be claimed within three years of filing the incorrect tax return or within two years of the overpayment. Under this common rule, same-sex married couples may be able to collect overpaid taxes for the past three tax years. Some have rumored that the IRS will extend this typical statue of limitations to allow same-sex married couples to collect tax refunds even further back.

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In January 2009, Madonna and Guy Ritchie finalized their divorce after eight years of marriage. At the time of their split, many rumors surfaced regarding an acrimonious divorce and possible affairs. Madonna is often cited as the source of the “adoption trend” for celebrities. In fact, as a mother of four children, Madonna only has one biological child with Ritchie, their son Rocco. In July 2013, Ritchie had his bar mitzvah at the Kabbalah Centre in New York City. Despite any lingering bitterness between Madonna and Ritchie, both parents attended their son’s bar mitzvah and behaved admirably. Continue reading

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One of the biggest battles in many contested divorce cases is the issue of spousal support (also commonly referred to as alimony) and analysis of California spousal support factors. The most prominent factors a court typically considers when making a spousal support award are the supported spouse’s needs and the supporting spouse’s ability to pay support. Therefore, the supported spouse wants to make sure the court considers every single source of income the supporting spouse has available for support. The supporting spouse wants to minimize his/her income as much as possible without misleading the Court or the other party. One issue that has been litigated in California courts is whether fringe benefits or “perks” received through employment are income available when calculating support.

Many companies offer alternative compensation or perks to employees such as car allowances, cell phones, business meals, and company-provided day care. Parties and attorneys often debate whether these “non-cash” perks should be considered income from which the supporting spouse can pay support. Under California law, perks can be considered as income available for support if the benefit is not being divided as an asset and it has an economic value which can be added to the spouse’s income for the purposes of support calculation.

Learn more about division of property in divorceIn cases where a benefit will directly reduce the supporting spouse’s monthly expenses, divorce attorneys will argue that it should be considered as income for support purposes. For example, if the supporting party’s employer pays for his/her cell phone every month and the cell phone is not limited to company use, the supporting party will not have to pay monthly cell phone premiums for personal use of a cell phone.

Likewise, if a company pays for the supporting party’s gas or auto insurance, the supporting party will not pay those expenses out of pocket. In these situations, the fringe benefit will likely be valued and included as income available for support.

Another major issue of contention in this area of law is whether the value the benefit assessed should be considered “taxable” or “non-taxable” income. According to the divorce attorneys at the firm, one California case holds that tangible benefits should be included as taxable income. However, until the employee actually pays taxes on such benefits it is unfair to consider them as gross deductions.In addition, some benefits such as a business meal may not reflect the cost of a normal meal. The supporting spouse may get to eat a $50.00 lunch on the company’s dime; however, if he/she had bought their own lunch, he/she would likely have spent less than $10.00. The court will use discretion in considering a request from a party or divorce attorney to categorize these types of benefits as income where the result might seem unreasonable.

Read more about the effect of divorce on taxes and finances

Unfortunately, there is no such thing as a San Diego spousal support calculator, and analysis of the factors affecting spousal support in California is complicated. Often times, a person will need to rely on the advice of an experienced and knowledgeable divorce lawyer in order to understand the theories and process involved.
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