San Diego Divorce Attorneys Blog

January 14, 2013

January is Peak Season for Divorces

January is commonly referred to as a “peak season” for divorces in Del Mar and throughout San Diego County. Although many parties file for divorce in January, their timing may be chosen for a variety of different reasons. Filing for divorce during the holiday season can cause tension within the family and significant hardship if children are involved. In an effort to avoid ruining the holidays for the children or the family, some parties put off filing until January.On the other hand, the holiday season can be a very stressful time for families causing the final straw in a marriage to break thus prompting a party to file for divorce. Making a decision to file for divorce is best done with a clear head. The holidays can be a time of chaos and tension and therefore may parties decide to “ride out” the holiday season and then re-evaluate whether they still wish to pursue divorce. In addition to the emotional and psychological reasons for filing for divorce in January, many practical explanations also exist.

As we have previously blogged, the date of separation can have a dramatic impact on the division of property. The timing of filing a divorce petition can be used as the date of separation for the parties depending on the particular facts of the case. If one spouse generally earns a significant year-end bonus or commission, it may be wise to delay filing a petition until after the first of the next year. Once spouses separate, all of their respective earnings and accumulations will remain their separate property. This is quite different than the default rule which states that all earnings and accumulations during marriage are considered community property and divided evenly. Although it is impossible to say how a year-end bonus will certainly be divided at the end of the dissolution process, waiting until after the payment is received to file for divorce may save significant litigation on the issue.

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January 8, 2013

Update – Ashton Kutcher Finally Files for Divorce

By Bickford Blado & Botros

As we have previously blogged, Ashton Kutcher and Demi Moore separated nearly a year ago. However, neither party had filed for divorce, until now. Early on the parties claimed to be working out all of the details of their marital settlement before involving the court system in their divorce. Despite their year-long attempt at an amicable resolution, Kutcher filed for divorce shortly before Christmas. Media outlets speculate that Kutcher’s new girlfriend, Mila Kunis, may have pressured him to file. This is based on the theory that Kutcher intended to give Moore time to heal from the couple’s traumatic split and that Kunis could no longer handle letting Moore still have that much control. Besides the emotional implications involved, there are a few legal ramifications of filing for divorce that might have appealed to Kutcher and prompted him to finally take this step.

In California there is a mandatory six-month waiting period between when a spouse files for divorce and when the court has the ability to terminate his or her marital status. This means that if Kutcher intends to re-marry within the next year or so, filing a Petition for Dissolution of Marriage six months prior to that date would be necessary. Even if Kutcher and Moore agreed upon a final settlement of their estate and submitted their agreement to the court, they would still remain legally married until the six month waiting period had passed.

January 4, 2013

Is her Divorce Putting Frankel’s Skinnygirl Fortune in Jeopardy?

By Bickford Blado & Botros

Another Housewife is getting divorced. Bethenny Frankel, creator of the Skinnygirl franchise, is divorcing her Husband Jason Hoppy after only two years of marriage. For months Frankel has been fighting rumors that the couple is splitting but she has finally confirmed that a divorce is on the horizon. Frankel released the following statement regarding the divorce, “It brings me great sadness to say that Jason and I are separating. This was an extremely difficult decision that as a woman and a mother, I have to accept as the best choice for our family.”In 2008, Frankel agreed to join the cast of Bravo’s The Real Housewives of New York. At that time, only four short years ago, Frankel had a “mere” $8,000 in her bank account. To Frankel, The Real Housewives was an opportunity for her to build her own brand and advertise her Skinnygirl line of alcoholic beverages. It seems as if her plan worked because currently Skinnygirl is the number one fastest growing spirit in the United States. In addition, Frankel is now also a best selling author with her own skin, clothing and health products. Further, Frankel received a $40,000 check for each episode of her reality show. Considering the size and diversification of Frankel’s fortune, the first question surrounding her divorce is whether she will have to split everything with her husband. Because the Frankel and Hoppy signed an enforceable premarital agreement, all of Frankel’s empire should be safe from division.

Learn more about the divorce process in San Diego

A premarital agreement is an important tool that can be used to protect assets of ambitious entrepreneurs. As a default rule, under California community property laws, any earnings or accumulations of a spouse during marriage is community property. Thus, one of the main functions of a premarital agreement is to alter that default rule and order that any earnings or accumulations of a spouse during marriage remain that spouse’s separate property.

December 27, 2012

Kanye West Deposed in Kardashian Divorce

By Bickford Blado & Botros

The divorce proceedings between reality star Kim Kardashian and athlete Kris Humphries have by far exceed the length of the couple’s 72-day marriage. Recently, Kardashian’s new boyfriend, rapper Kanye West, was deposed by Kris Humphries’ lawyers. During a deposition, the deponent must answer a series of questions while under oath. This means that any lie told during a deposition may constitute perjury. Humphries’ deposition of West may have been an attempt to invalidate his premarital agreement. Many speculate that the premarital agreement contained an infidelity clause and that Humphries is attempting to show Kardashian violated it by starting a relationship with West before the date of separation.

In response, Kardashian’s lawyers argue that Humphries’ postponed arguments to invalidate the straightforward premarital agreement is simply a delay tactic to draw out the divorce proceeding. Despite Humphries’ alleged attempts to extend his litigation with Kardashian, the judge assigned to the case has set a trial date. The former couple will appear on February 15, 2013 and argue their case before the court. As long as the trial date is not pushed further back by Humphries’ legal team, Kim Kardashian should finally get a resolution to her second marriage.Common Family Law Terms Learn more about family law

Depositions are a common form of discovery in family law proceedings. Discovery is the process in which the parties can formally ask each other for documents and information in order to gather all relevant facts in the case. Although expensive, depositions can provide attorneys an opportunity to ask the parties and/or other witnesses for the information needed to proceed to trial or to negotiate settlement. Other forms of discovery such as special interrogatories are available to ask parties questions under oath. However, special interrogatories can be less effective than deposing a party because the lawyer is only permitted to ask follow-up questions after receiving a response. This question and answer process can continue for months because each party is entitled to 30 days to respond to interrogatories.

December 17, 2012

Technology Fosters Cooperation in Modern Divorces

By Bickford Blado & Botros

We have previously blogged about different ways technology can be used to gain an advantage or gather evidence in a dissolution proceeding. However, ex-spouses are now learning how to use the advances in technology to foster cooperation and harmony post-separation. Many divorcing couples would prefer to sever the ties between them completely after their divorce is final. This goal is unattainable for ex-spouses who will continue to share custody of minor children for years after separation. The new trend called “joint custody – at a distance” encourages splitting couples to communicate electronically rather than during “in person” exchanges in order to reduce the emotional tension during a “drop off” or “pick up”.Many parents have found that they fight and argue less in front of their children if they are able to express their emotions through other outlets. E-mail communication, online calendars and a number of other online resources are all available to conflicting parties who share children. By sharing an online calendar parents can easily coordinate a child-sharing schedule. All of the child’s activities and plans are readily available to view and change without any need for in-person or telephonic communication between the parents.

Our Family Wizard is a common solution for parents in conflict. A judge may order parties to use Our Family Wizard, a program which tracks all communication, expenses, and even sends notices to the parties regarding their obligations. Because the communication between parents can be supervised by the judge and attorneys involved in the case, the parties are incentivized to speak civilly to each other. This form of communication can take away the aggravation and emotional side of child-sharing and ease the tension and stress for the children involved. The program can be purchased for approximately $100 per year.

Another form of technology frequently appearing in custody orders is Skype. Skype is a free program that allows two or more people to have an online video conversation. In cases where both parties cannot easily see a child frequently, the court may order “Skype visitation”. During a Skype visit, a parent can have a video conversation with the child. Skype also permits conversations to be recorded and can ensure that the visiting parent is getting enough video time with the child. Additionally, a parent may be ordered to purchase a cell phone for the child in order to avoid any telephonic communication between the parties. This way, if a parent wishes to speak to his or her child during the child’s scheduled time with the other parent, he or she can reach the child directly.

November 27, 2012

Ariel Winter’s Emotional Abuse

By Bickford Blado & Botros

November 22, 2012

Legalizing Polygamy?

By Bickford Blado & Botros

As we have previously blogged, it is illegal in San Diego for any married person to marry anyone other than his or her current spouse. Polygamy describes a marriage between more than two people. TLC brought the spotlight to this mysterious form of marriage with its reality show Sister Wives. Sister Wives is a show about the Brown family in which one man is married to four different women. After the show aired, rumors spread that the authorities were investigating the Browns for polygamy. The thought of criminal prosecution for their lifestyle forced the Browns out of the State of Utah, where they were living, to Nevada where they believed they would be more easily accepted.

Although Utah authorities investigated the Browns, many people are speaking out against laws prohibiting polygamy. Polygamy is often linked to the Mormon faith, thus those who are speaking out against its prohibition cite laws protecting religious freedom. Those condemning anti-polygamy laws argue that the laws inhibit religious freedom in the same way that laws prohibiting contraception did.

Legally, polygamists argue that anti-polygamy laws violate the U.S. Constitution’s Free Exercise Clause. The Free Exercise Clause prohibits the states from imposing restrictions on someone on the basis of the person’s religious beliefs. The state may only impose a restriction if that restriction is necessary to achieve a compelling state interest. However, a law of general applicability, which only incidentally burdens religious practices, will not be subject to invalidation. Any state which prohibits polygamy defends this law by arguing that a compelling interest (protection of women and children) exists and that anti-polygamy laws are necessary to achieve that compelling interest.

November 20, 2012

Dennis Quaid’s Wife Files for Legal Separation

By Bickford Blado & Botros

After eight years of marriage to the famous actor, Dennis Quaid’s wife, Kimberly Buffington, recently filed for legal separation. In March of 2012 Buffington filed a petition for dissolution of marriage citing “discord or conflict of personalities” as the reason for the split. However, just three months after she filed, Buffington withdrew her divorce petition. The couple seemed to be working on their relationship when they celebrated their eight-year anniversary in Bora Bora. In her petition for legal separation Buffington requested joint legal and physical custody of the couple’s twins. Additionally, Buffington asked the court to award her spousal support and order Quaid to contribute toward her attorney fees and court costs.

Quaid and Buffington recently moved to California from Texas. Although Buffington filed for legal separation, she reportedly intends to file for a full divorce once the six-month waiting period has expired. In California, only parties who have resided in the state for a minimum of six months may file for divorce in California family courts. Deciding to file for legal separation or divorce is an important decision. If a party files for legal separation, the court has the ability to make custody and visitation, support, and property division orders. Unlike in divorce proceedings, there is no requisite waiting period to obtain a legal separation.

November 15, 2012

What Could You Lose in a San Diego Divorce?

By Bickford Blado & Botros

In the 1950’s it was common for a husband to be the breadwinner for his family and for a wife to stay at home to care for the children, but how much of that traditional stereotype persists today? In divorces, the traditional view of marriage creates assumptions such as “husbands are ordered to pay spousal support more often than wives” and “women are more often awarded custody of the children”. A study conducted by the University of Michigan tends to show that these old traditions and stereotypical roles may still endure today.

According to the study conducted by the University of Michigan, each year approximately 115,000 women are left without health insurance following a divorce. Additionally, two years after their initial divorce, the health insurance rate for divorced women remains low. Many health insurance companies allow employees who receive health insurance benefits to claim their spouses as dependents for insurance purposes. This allows the employee to obtain health insurance on behalf of his or her spouse through his or her employer. However, upon divorce, employees are generally not permitted to claim former spouses as dependents. Therefore, any divorcé formerly covered by his or her spouse’s health insurance must find new coverage.

The intriguing part of the University of Michigan study is that so many women, not men, are left without health insurance following divorce. Does this mean that men are typically still the breadwinners in modern marriages? The study also noted that even employed women had a difficult time maintaining health insurance through their employers. Because of the financial difficulties that can come with divorce, many women had to sacrifice paying health insurance premiums in order to pay for basic necessities.

November 13, 2012

Halle Berry International Move-Away Update

By Bickford Blado & Botros

As we have previously blogged, Halle Berry is entrenched in a bitter custody battle with Gabriel Aubry. Berry and Aubry separated in 2010 and reached a custody agreement in 2011; however, the former couple’s agreement did not suit Berry after she got engaged to Oliver Martinez. Berry intends to relocate to France with her new fiancé, Oliver Martinez, but requested the court’s permission to bring her daughter along first. On Friday November 10th, the judge denied Berry’s request to allow her daughter, Nahla, to move to France.

In determining whether to grant or deny a parent’s request to move away with a child, the court must assume that the requesting parent will move regardless of the court’s ruling. Although it is not generally reality, this presumption requires the court to consider if it would be in the child’s best interest to maintain the same lifestyle or live further away from the moving parent. It is generally in a child’s best interest to remain in the same neighborhood, attend the same school, interact with the same friends, and maintain as much stability as possible. This is because schedules and routines can help a child adjust to the separation of his or her parents. However, move-away cases present a more complicated scenario. The court must consider two alternatives: either the child will be uprooted from his or her current life or the child will remain in the same location without one of his or her parents.