San Diego Divorce Attorneys Blog

September 27, 2012

Evander Holyfield’s Child Support Debt

Child support, if ordered, is an ongoing parental obligation that usually terminates when the child reaches eighteen years of age, graduates from high school, becomes married or is otherwise emancipated. The amount of child support owed is dependent upon a number of factors such as the income of both parties and the needs of the children. Child support is strictly enforced in a number of ways. Boxing champion Evander Holyfield recently learned that the court’s ability to enforce child support extends to celebrities. Holyfield was held in contempt of court for failing to pay past due child support.

In San Diego County, the Department of Child Support Services (DCSS) is one state entity that enforces child support orders. Holyfield was pursued by the Georgia Department of Human Services, which serves a similar function as DCSS. The Georgia Department of Human Services includes the Division of Child Support Services. By the time that the State of Georgia became involved in Holyfield’s case, his daughter, Emani Holyfield was eighteen years old and he owed $372,097.40 of unpaid support. By the time he was held in contempt of court, Holyfield’s debt had reached a staggering $563,000.00. The court ordered Holyfield to make payments in the amount of $2950.00 per month. In order to get a head start, Holyfield immediately made a payment of $17,700.

September 24, 2012

The Discovery Process in Del Mar Family Law

By Bickford Blado & Botros

Discovery is an important tool for any party to use in a Del Mar family law case. Through the process of discovery, parties can obtain the information necessary to reach an agreement or decide which issues are contested. Discovery tools include: interrogatories, demands for production, depositions and subpoenas. Each tool is used to obtain a specific type of information from a particular litigant, witness, or third party. Although family law attorneys usually propound and respond to discovery, the client can have a vital role in lowering costs and ensuring the process goes smoothly.

Once a family law case has been filed or a spouse is anticipating filing for divorce, each party is under a duty to preserve evidence. The court encourages parties to freely exchange information so that the court can have a complete picture of the case. Any destruction or spoliation of evidence is punishable. As a client, as soon as you know that you will be involved in litigation it is crucial to begin organizing all relevant information. Attorneys need a complete view of your finances in order to calculate possible support or to begin analyzing the division of the marital estate. The following is a list of records that will likely be important in your divorce: (1) tax returns for the past three calendar years, (2) Form W-2s for the last three calendar years, (3) a series of your most recent pay stubs, (4) all statements for each credit card and debt card as of the date of separation, (5) K-1 forms if relevant, and (6) accounting data such as QuickBooks if relevant.

The date of separation is often a focal point of the discovery process. The marital economic community ends upon the date of separation. Under the California Family Code, the date of separation occurs upon the conversion of two factors. First, the parties must effect a physical separation and second, at least one party must have the subjective intent not to resume the marital relationship. The parties can only accumulate community property during the marital economic community. Thus, any property acquired or earned after marriage until the date of separation is community property. As a general rule, community property is divided evenly between the parties upon divorce. Many San Diego spouses have a collection of credit and debit cards that both parties use on a regular basis. In a divorce, an attorney will need to know the balance of all of those accounts as of the date of separation. Printing out your most recent statements including those as of and surrounding the date of separation is an easy way to get a head start on the dissolution process. Additionally, if you know a divorce is pending, it is also prudent to gather your recent tax returns and pay stubs to provide to your attorney. The client’s role in discovery is crucial, by preparing and keeping organized records, you can save your attorney time and save in legal fees.

September 20, 2012

New Case Shakes Up San Diego Family Law

By Bickford Blado & Botros

Recently the California Court of Appeal handed down a decision that has settled an ongoing dispute throughout San Diego family courts. Family law attorneys agree that spouses owe each other the highest duties of good faith during marriage and undoubtedly throughout the litigation process. This duty requires parties to keep each other informed of their current financial state by exchanging Declarations of Disclosure.

In the beginning of a dissolution case, both parties complete their Preliminary Declarations of Disclosure, which consists of an Income and Expense Declaration and a Schedule of Assets and Debts. By completing these two forms and their requisite attachments the parties provide their current assets, debts, income and expenses. These figures can help the parties settle disputes regarding property division, child support or spousal support. If the court will hear a motion regarding support, the parties must also file these disclosures with the court. The judge will use the information provided to set support amounts. Because of the immense reliance on disclosure of finances, the court takes the fiduciary duties of spouses seriously.

In the recent California case, In re Marriage of Sorge, the court was faced with a slightly different scenario. The parties sought a modification of support at the trial court level; however, they were already divorced and had reached a final resolution of their case. Wife argued that Husband breached his fiduciary duties because he failed to disclose a material change in his finances. Husband argued that he was under no obligation to disclose any changes because the fiduciary duties between spouses end upon a final resolution of the case. The trial court agreed with Wife and Husband appealed the decision.

September 18, 2012

Kris Humphries and Kim Kardashian Headed to Trial

By Bickford Blado & Botros

The world watched as reality television star Kim Kardashian married NBA player Kris Humphries in August of 2011. However, the marriage lasted only seventy-two days and in October of 2011 Kardashian filed for divorce. Surprisingly, the bitter divorce battle has by far outlasted the short length of the marriage. Next month, will mark the one year mark since divorce proceedings began and the case is not likely to settle before then. Kris Humphries announced that he does not intend to settle with Kardashian and the case will likely proceed to trial. Considering the massive amount of witnesses Humphries intends to call (thirty three) and their fame and notoriety, it is no surprise that the trial has been delayed until 2013. The parties have found it difficult to coordinate the schedules of all people involved.

Considering the “iron clad” premarital agreement, the biggest question surrounding this drawn-out divorce is why the couple cannot settle. Kardashian wants her marriage to be over as soon as possible and it is clear that she has moved on with her life. Her and her attorney have no doubt sent over countless settlement proposals, all of which have been rejected. Humphries argues that Kardashian has been hiding information regarding her financial records ever since the beginning of their marriage and he intends to use the law to discover her “secrets.” Humphries also alleges that the entire marriage was a fraud and that Kardashian only entered into it for publicity. Ironically, it was Humphries who skyrocketed from a no-name basketball player to signing a $24 million extension with the Nets.

September 13, 2012

PayPal Co-Founder Divorce

By Bickford Blado & Botros

PayPal founder Elon Musk announced his divorce to actress Talulah Riley on the social media site Twitter. PayPal was created as a form of e-commerce, which would allow users to safely make purchases over the internet. Notably, in October of 2002, PayPal was purchased by the online shopping conglomerate eBay for a reported $1.5 billion. Musk and Riley met in 2008 and married in 2010. According to the Huffington Post, Musk proposed to Riley just a few weeks after filing for divorce from his first wife. Musk was with the first Ms. Riley for four years before they separated. The couple has two sons together.

The Musk-Riley divorce was final in July 2012, which puts the length of the marriage at approximately two years. Despite the short duration of their union, Riley reportedly walked away with $4.2 million. Although this amount may seem high, Musk’s entire fortune is approximately $680 million. Riley’s divorce settlement gave her 0.6% of Musk’s wealth. Additionally, there is no indication that Musk will pay any spousal support to Riley.

One advantage to the quick settlement of such a public divorce is that the parties are able to avoid dragging the divorce out in the public eye. However, many speculate that Riley could have received a larger amount had she battled Musk in court. Under California family law, Riley would have been entitled to her community property share of the community estate. Community property includes all earnings of both spouses. This means that she could have been awarded one-half of Musk’s earnings from the date of marriage to the date of separation. According to the terms of the settlement agreement, in addition to a $4.2 million pay out, Riley secured her Cartier watch, Gucci watch, various pieces of diamond jewelry and her Roadster.

September 10, 2012

Halle Berry’s International Move Away

By Bickford Blado & Botros

Oscar-winning actress Halle Berry is entrenched in a bitter custody battle with her ex-husband Gabriel Aubry. The couple split in February of 2010 but has been in court recently fighting for custody of their four-year-old daughter, Nahla. Berry is now engaged to Oliver Martinez who is both a French actor and French citizen. Currently the main issue in the Berry-Aubry custody dispute is Berry’s request to move with Nahla to France. Although her new fiancé conveniently lives in France, Berry claims that she is motivated to move by a desire to keep her daughter safe. Berry argues that the paparazzi are endangering Nahla. Unlike the United States, France has laws that protect celebrities from the constant snapping of photos by the paparazzi. Additionally, Berry’s stalker Richard Franco has recently been released from prison and she argues that he is again a threat to her and Nahla.

Under California child custody laws, the standard for a move away case such as this depends on whether the parties already have a final custody and visitation order. However, regardless of whether a final order is in place, a judge will likely deny or grant a move-away request on the basis of the best interests of the child. Additional factors the judge will consider include but are not limited to: (1) the child’s interest in the stability of the current arrangement, (2) the distance of the move, (3) the current relationship the child has with both parents, (4) the reasons for the proposed move and (5) any other factors the court deems relevant. Although Berry argues that the move is motivated by a good faith desire to protect her daughter, the Family Court Services recommendation suggests that the move is not in Nahla’s best interest. Considering the distance between California and France, Nahla’s relationship with her father would be deeply affected by the move. According to the report, Nahla has a close relationship with Aubry and separating her from her father would be detrimental.

September 6, 2012

Jennifer Aniston Refuses a Premarital Agreement

By Bickford Blado & Botros

America has waited on the edge of its seat for Jennifer Aniston to find true love ever since her divorce from Hollywood bombshell Brad Pitt in 2005. This August Aniston announced her engagement to boyfriend Justin Theroux. The couple met while filming their recent comedy “Wanderlust.” Because Aniston has obviously been husband shopping since her previous divorce, the engagement was not a big surprise. However, the media was shocked to learn that Aniston refused to consider a premarital agreement.

Advisors reportedly insisted that Aniston sign a premarital agreement in order to protect her current fortune worth an estimated $150 million and her future earnings. Aniston continues to star in successful films and is still collecting millions. According to a source close to the star, “Jen is a hopeless romantic, so money is the last thing on her mind now. The way she sees it, Justin is her soul mate, and she trusts him implicitly with every aspect of her life – including her finances.” This decision has made Aniston’s friends and family a bit nervous but she insists she is madly in love and that this marriage will last an eternity.

September 4, 2012

The Richest “Real Housewife” is Getting Divorced

By Bickford Blado & Botros

Another “Real Housewife” marriage is over. Dr. Paul Nassif filed for divorce from Beverly Hills Housewife Adrienne Maloof. Originally, Nassif filed for legal separation in July but has now decided to proceed with a divorce. Maloof is worth an estimated $300 million but she did not earn that money simply by being a housewife. Maloof earned her millions as a co-owner of her family business named Maloof Companies. Maloof Companies is famous for its ownership interest in the Sacramento Kings and the Palms Casino Resort in Las Vegas. Although his fortune nowhere near rivals that of his wife, Nassif is worth an estimated $14 million, which he earned as a successful cosmetic surgeon.

The couple married in 2002 and has three children together, Gavin, 9 years old, and 6 year-old twins, Christian and Collin. Considering the large fortune at stake and the long-term nature of the marriage, the most prominent issue in the divorce will be the validity of a premarital agreement. According to Nassif’s lawyer, Lisa Helfend, a premarital agreement is in place. The divorce petition affirms the existence of a premarital agreement. However, there is no indication of whether either party will challenge it. Depending on the terms of the agreement, Nassif may have a motive to argue that it should not be enforced.

August 30, 2012

Grandparents and the Aftermath of Divorce

By Bickford Blado & Botros

Before and during marriage, grandparents can provide substantial financial and emotional support to a family. Grandparents often pay for weddings, put down payments on the family home, and create college funds. In addition to lending or gifting money, grandparents also volunteer to babysit daily when both parents have to return to work. The grandparent who provides daycare often transports the children to extracurricular activities and enriches their education. Grandparents may also volunteer to take the children for overnights when the parents need a date night and time alone to nurture their relationship. During marriage, grandparents can play an integral role in child rearing. However, this potentially close and beneficial relationship between grandparent and grandchild may not be so honored upon divorce.

According to the statistics released by AARP, the average grandparent spends approximately $1,000 on his or her grandchild each year. However, despite their generosity and support, grandparents receive little protection in a divorce proceeding. Upon divorce, for a variety of reasons, one parent may limit the visitation of a grandparent. The grandparent may be prohibited from visiting with his or her grandchild while that child is in the care of one parent. The consequences of this prohibition can be devastating if the hostile parent is awarded physical custody while the other is only permitted specific visitation. This sudden change in the grandparent-grandchild relationship is traumatizing for both parties involved.

Although many grandparents attempt to intervene in divorce proceedings to assert their rights to visitation, they are rarely rewarded with victory. In 2000, the United States Supreme Court decided the case of Troxel v. Granville. In this case, grandparents petitioned for visitation rights after the mother limited visitation to one day per month and some holidays. The Supreme Court relied on a parent’s fundamental right under the Constitution to make decisions regarding the upbringing of their children in making their decision. The Court held that requiring a parent to facilitate grandparent visitation against his or her wishes violates that parent’s right to make decisions regarding the “care, custody and control” of his or her children. Despite this particular holding, the Court did not find that visitation laws are per se unconstitutional, therefore California still allows grandparents to seek visitation rights.

August 28, 2012

The New Frontier in Custody Cases

By Bickford Blado & Botros

As we have previously blogged, child custody laws and presumptions have evolved over time in San Diego. Recently, some states, including the Commonwealth of Virginia, are moving toward a new way of thinking when it comes to child custody and visitation. These states intend to eliminate the concept of “custody” all together. Instead of determining custodial rights of parents upon divorce, courts would instead determine “parental responsibilities.” This change would reflect a shift in how children are viewed in society. The idea of “child custody” originated when children were still seen as “possessions” to either be won or lost in a divorce proceeding. Just as the term “wife” has evolved, the concept of children as property has faded from the American conscious. Now, certain states are beginning to change the wording of family law statutes to reflect this modern shift.

By eliminating the word “custody” in favor of phrases such as “parenting time” and “decision making,” litigants can better focus on the specific actions of each parent in order to determine which future course of action is in the best interest of the child. The intent behind the new wording is to create a different mindset for all those involved in the case. The change encourages parents to narrow in on parental duties, instead of viewing children as property. Additionally, family courts will have greater latitude and more options when creating a comprehensive parenting plan. The judge will not be forced to place every case in a predesigned box such as those labeled “joint custody” or “sole custody.”

Under the California Family Code, a judge may award physical or legal custody. Although the word “custody” is used to describe both, the two terms have drastically different consequences. A parent awarded legal custody has the right and responsibility to make decisions regarding the child’s health, safety and wellbeing. A parent awarded physical custody will have the right to spend time with the child. The proposals for change in other states attempt to clearly establish a separation between parenting time and decision-making. The spirit of the existing law will be preserved in this area; however, the new terminology is intended to change how these parental responsibilities are viewed. Proponents argue that the use of the word “custody” to describe both parenting time and decision-making is confusing to the layperson and average litigant. By actually describing “legal custody” as decision-making and “physical custody” as parenting time, the two concepts will be better understood throughout the litigation process. Additionally, the word “visitation” will also be eliminated from family law jargon. If one parent is awarded physical custody of the child, usually the noncustodial parent is awarded visitation rights. This term will be replaced with “parenting time” as well in order to reduce confusion.