Nancy J. Bickford

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A New York Court recently granted the state’s first contested no-fault divorce. While New York’s no-fault divorce law is only one year old, California enacted no-fault divorce over 40 years ago, in 1970.

Wife filed for divorce under New York’s year old no-fault divorce law on the grounds that her marriage was “irretrievably broken.” Wife testified that she has not had marital relations with her Husband for over five years, they slept in separate bedrooms and never ate meals together. Although she is in poor health, she testified that her Husband had not taken her to her doctor’s appointments in the last five years or even asked about her health for the past ten years. She further testified that she had “no hope for the marriage … and that her only wish is for a divorce so that she can have one-half of her marital assets and leave them to her four children before her demise.”
Husband contested the divorce because he wanted to remain married saying he “worked hard to acquire everything the parties had” and didn’t want to lose it in a divorce.

The Court applied the new no-fault law and granted Wife’s request for a divorce stating, “[I]t is this Court’s determination that the parties’ relationship has so deteriorated irretrievably …the plaintiff is entitled to a judgment of absolute divorce,”

In California, a no-fault divorce allows for a divorce without requiring either party to present evidence of wrong doing or breach of the marital contract. The idea behind a no-fault divorce was that removing the fault requirement would also remove some of the bad blood from the divorce process, and allow couples who wanted to break up to do so without having to make false allegations to justify the divorce to the court. No longer would couples, or even just one party, who wanted a divorce have to choose between lying under oath in open court or remain married.

Prior to no-fault divorce in California, a divorce could be obtained only through a showing of fault. This requirement meant that one spouse had to plead that the other had committed adultery, abandoned them, was cruel, or some other culpable acts. To get a divorce, parties often lied, colluded and committed fraud upon the court in order to get around the statutory limitations of the fault based requirement. Prior to the enactment of no-fault divorce, many prominent attorneys and judges in California believed that the “legal fictions” used by parties to satisfy the requirements for divorce made oaths meaningless and threatened the integrity of our legal system by encouraging perjury. Without committing perjury, many couple could not obtain a divorce, even if both parties wanted a divorce.

California’s no-fault divorce law provided a straightforward ground for ending a marriage – irreconcilable differences. Not only did California’s no-fault divorce laws eliminate the fault requirements to obtain a divorce for spouses seeking a divorce by mutual consent, but also in cases where only one party to a marriage wanted a divorce.

No-fault divorce ushered in other changes to divorce laws. Under no-fault divorce, gender-based responsibilities such as the Husband always being responsible for child support while the Wife was always responsible for custody gave way to gender-neutral responsibilities such as both parties being eligible for custody and responsible for child support.

As an interesting side-note, California’s no-fault divorce policy even invalided a Marital Agreement that was intended, after Husband had an affair, to “preserve, protect and assure the longevity and integrity of an amicable and beneficial marital relationship between them.” In the Diosdado case, rather than divorcing, the parties agreed to be subjected to a legal obligation of emotional and sexual fidelity to the other. If either party volitionally engaged in certain acts with any person outside of the marital relationship, that party would be in breach of the Marital Agreement, which provided for liquidated damages should the obligation of sexual fidelity be breached. Damages included that the party in breach would be: (1) required to vacate the family residence, (2) solely responsible for all attorney fees and court costs, and (3) pay $50,000 over and above any settlement or support obligations. Of course, Husband had another affair and Wife sued for breach of contract, seeking to enforce the liquidated damages clause of Marital Agreement. However, the Trial Court granted Husband’s judgment on pleadings, because the Marital Agreement was contrary to the public policy underlying California’s no-fault divorce laws. Wife appealed, but the Court of Appeal affirmed stating, “Here, where the agreement attempts to impose a penalty on one of the parties as a result of that party’s ‘fault’ during the marriage, it is contrary to the public policy underlying the no-fault provisions for dissolution of marriage. [See Family Code §2310, Family Code §2335.] For that reason, the agreement is unenforceable.”
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It is that time of year when you need to file your income taxes and we want you to be informed. Your filing status for taxes depends partly on your marital status on the last day of the year. If you were still legally married (meaning there is no final divorce decree) as of December 31, 2011 you are considered to have been married for the full year and must file as either married filing jointly or married filing separately. For federal tax purposes, “marriage” currently only means a legal union between a man and a woman as husband and wife. Your filing status is important and is used for many things on your tax return, such as determining your standard deduction, whether you need to file a return, the amount of tax you owe, and whether you qualify for various deductions and credits. When it comes to your filing status, you do have options.

Married Filing Jointly

If you are still legally married, you and your spouse can file a joint tax return. Married couples do not have to be living together to file jointly. If you file a joint return you both must include all your income, exemptions, deductions, and credits on that return. Even if you or your spouse had no income or deductions, you can still file a joint return. You must balance taxes due against your risk of being jointly and separately liable for taxes, interest, and penalties on a joint return. If you question whether your spouse is reporting all income, or have little or no knowledge of your spouse’s income and finances, discuss this issue with legal counsel before signing a joint return. The Internal Revenue Service (IRS) can hold you liable for all taxes due on a jointly filed return, as well as penalties and interest, even if your spouse alone earned the underlying income.

Married Filing Separately

Legally married couples can also file “married filing separate” whether they live together or not. If you and your spouse file separate returns, you should each report only your own income, exemptions, deductions, and credits on your individual return. You can file a separate return even if only one of you had income. However, the married filing separately status rarely works to lower the family tax bill. For example, one major disadvantage is that you can’t have one spouse itemize and claim all the deductions while the other claims the standard deduction. Both husband and wife must either itemize or use the standard deduction. You can’t mix and match. So if one spouse itemizes and the other has nothing to itemize, that spouse would not then be able to claim the standard deduction, which might have reduced the amount of taxes owed.

Another disadvantage with “married filing separate” filers is that they can no longer take any relevant exclusions, credits, or deductions for adoption or education expenses. Likewise, various exclusion and exemption amounts will be cut for child and dependent care expenses, employer dependent care assistance, and alternative minimum tax. Here are some examples if you file separate returns with your spouse:

• You cannot take the Earned Income Credit.
• You cannot take the Child and Dependent Care Credit in most cases.
• You cannot exclude any interest income from U.S. savings bonds that you used for education expenses.
• You cannot take the Credit for the Elderly or Disabled unless you lived apart from your spouse all year.
• You may owe more taxes on Social Security income or railroad retirement benefits than if you filed jointly.
• You cannot deduct interest paid on student loans.
• You cannot take any education credits.
• You cannot take an exclusion for adoption expenses or the Adoption Credit in most cases.

Benefits of filing under this status include only having liability for the tax, interest, and penalties on your own return. The IRS would not pursue you for your spouse’s tax obligation for that same year. If the return is filed electronically, any refund due can be divided up and directly deposited by the IRS in up to three different separate accounts. Note, however, that some financial institutions will not allow a refund for a joint return to be deposited into an individual account, so if this option is being considered, the taxpayer should check with his or her bank.
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It is surprising to think that, in California, a parent can be arrested and criminally prosecuted for kidnapping his or her own child. This surprising truth became all too real for a Twin Falls woman who was charged with custodial interference in Idaho. In the recent case, Stefanie Contreras pleaded guilty to abducting her own 4-year-old son. Contreras entered the father’s home with three others intending to take her son from father’s custody. To follow up with Contreras’ case, stay tuned for her sentencing hearing, which is scheduled to occur on March 26, 2012. Few San Diego residents are aware that they can be found guilty of abduction for moving their own children outside of California. If you are considering taking your child outside of San Diego or California it is important to consult the other parent involved.

There are many misconceptions about what is required to charge an individual with kidnapping. A stranger to the child is not necessarily the only person who can kidnap a child. If a parent disobeys a custody or visitation arrangement he or she may be arrested for kidnapping. Whether the parent has sole legal custody, meaning the exclusive right to made decisions regarding the child’s health, safety, or wellbeing, is irrelevant. Under California law, if the parent takes, entices away, keeps, withholds, or conceals his or her own child intending to deprive the other parent of his or her lawful visitation or custodial rights, he or she can be prosecuted for kidnapping. It is important to note that a parent can be charged with kidnapping regardless of whether there is a formal court order regarding custody and visitation.

Although child custody and visitation orders originate in the family court system, kidnapping is a criminal charge and may result in a criminal record and/or incarceration. For example, under California Penal Code section 278, any person found guilty of kidnapping shall be punished by imprisonment in a county jail for up to a year, a fine not exceeding $1,000 or both. Sentences and fines may vary depending on whether the parent is prosecuted for a felony or misdemeanor.
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The most recent controversy in Hollywood is the split between multi platinum recording artist, Katy Perry, and movie actor, Russell Brand, who announced the end of their marriage on December 30, 2011 after only 14 months. Rumor has it that the couple did NOT have a prenuptial agreement. Katy Perry made a record breaking $45 Million during the marriage. Russell Brand only made about $7 Million. In California, which is a community property state, assets are split evenly among the couple if there is no pre-nup, meaning Perry stands to lose over $20 million not including the two homes the ex-couple purchased together during the marriage.

A prenuptial agreement is a contract between two people about to get married that spells out how assets will be distributed in the event of divorce or death. Premarital agreements or “pre-nups” establish the property and financial rights of each spouse.

At one time, a premarital agreement that was not made in contemplation that the parties would remain married until death was considered to be against public policy in California and other jurisdictions, but the CA Supreme Court concluded in 1976 that the validity of a premarital agreement “does not turn on whether the parties contemplated a lifelong marriage” and in 1985, the California Legislature adopted most of the provisions of the Uniform Premarital Agreement Act. Pursuant to Family Code section 1615, a premarital agreement will be enforced unless the party resisting enforcement of the agreement can demonstrate either (1) that he or she did not enter into the contract voluntarily, or (2) that the contract was unconscionable when entered into and that he or she did not have actual or constructive knowledge of the assets and obligations of the other party and did not voluntarily waive knowledge of such assets and obligations.

The most important factor of a solid premarital agreement is honesty. Both parties must fully and completely disclose of their assets. If it turns out either person was hiding something, a judge can throw out the entire contract. The document should be signed as early before the nuptials as possible to avoid the appearance of coercion, another key reason why some agreements are rendered null and void by the court. A valid pre-nup should also be “fair” and will not leave one of the parties destitute.

You should consider getting a pre-nup if you fall into any of the following categories:

• You have assets such as a home, timeshare, stock or retirement funds
• Own all or part of a private or family business
• You may be receiving an inheritance
• You have children and/or grandchildren from a previous marriage
• You or your spouse is much wealthier than the other
• One of you will be supporting the other through college
• You have loved ones who need to be taken care of, such as elderly parents • You have or are pursuing a degree or license in a potentially lucrative profession Continue reading

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According to FOX news, former NFL superstar Deion Sanders has filed for divorce. His wife, Pilar Sanders, filed a response this week in which she alleges Deion was unfaithful. “She accuses him unkind, uncaring, insensitive, cruel and unusual treatment, as well as physical, mental and emotional abuse of her and their three children.” The response urges the court to punish Deion for “immoral, corrupt, lewd, perverted, unnatural, sinful conduct.” Ironically, the response is similar to that filed by Deion’s first wife Carolyn. Carolyn also accused Deion of adultery and “cruel treatment.”

Pilar is requesting that the judge throw out the couple’s prenuptial agreement and instead grant her most of the marital estate. As grounds for this request, Pilar alleges she was under duress when she signed the agreement. Prenuptial agreements, otherwise known as premarital agreements, must be carefully drafted in order to be enforceable in a California family courts.

California Family Code section 1615(a) states that a premarital agreement is unenforceable if not entered into voluntarily. A premarital agreement is presumed involuntary if the party had less than seven calendar days between the day the party was presented with the contract and advised to seek independent legal counsel and the time the party signed the contract. However, it is important to note that this rule does not apply to a party represented by legal counsel throughout the premarital agreement process. Therefore, if a judge concludes that Pilar was in fact under duress when she signed the premarital agreement, the judge is likely to find the agreement unenforceable.

A fundamental element of any contract formation is freely given consent of the parties. This consent is defeated if one of the parties enters into the contract under duress. Duress often appears in California law as a defense to any type of contract actions. It is crucial when drafting and executing premarital agreements to ensure no party signs the contract under duress.
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In San Diego County an estimated one out of four children is exposed to domestic violence either as a victim or a witness. According to the San Diego Domestic Violence Council over 500 women and children need to stay in a shelter each day. In a relationship that involves a history of domestic violence, if a partner decides to leave, he or she will have many questions about how that history can impact a child custody case.

Understanding what constitutes domestic violence can be complex. Under California Family Code section 6211, domestic violence is defined as abuse perpetrated against specific categories of family members. Mental health professionals agree that domestic violence is a pattern of behavior characterized by an abusers attempt to control his or her victim through the use of a variety of techniques.

In a case that does not involve domestic violence, the court decides the outcome of a custody case based on the best interest of the child. The court considers a variety of factors such as:

1. The health safety, and welfare of the child 2. Any history of abuse by one parent
3. The nature and amount of contact with both parents 4. Habitual or continual illegal drug or alcohol abuse by either parent
There is a prevalent belief in society that when a couple separates, it is in the best interest of the child to have the most extensive relationship possible with both parents. This assumption is true in a typical separation. However, a separation involving domestic violence is not a typical separation. Family Court judges have many options to consider when deciding which parent, or combination of parents, will make decisions on behalf of a child and take care of that child. If a parent has sole legal custody, he or she has the exclusive right and responsibility to make decisions for the child regarding his or her health, education and welfare. If a parent has sole physical custody, the child will live with that parent subject to the visitation rights of the other. Any joint custody arrangement involves the sharing of these rights and responsibilities.
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More than 5,000 phone calls of domestic violence are reported to the domestic violence hotline in San Diego County per year. It is a serious problem that has life threatening consequences. It is estimated that there are thousands of domestic violence incidents that go unreported in San Diego alone. There are many different forms of domestic violence that go unreported because victims don’t realize they qualify for a domestic violence restraining order.

A restraining order is an order made by the Family Court to protect victims, children and families from abuse (physical, emotional, verbal, sexual), threats of abuse, stalking and harassment. The abuse can be spoken, written or physical. In order to qualify for a domestic violence restraining order you must have a “relationship” with the abuser. You qualify if you are married, divorced, separated, registered domestic partners, have children together, are dating or used to date, living together or used to live together with the abuser.

You may qualify if you have experienced any of the following types of abuse:

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As a San Diego divorce attorney, while recently reviewing a Marital Settlement Agreement with a client, the client asked what happens if one of us later realizes that we did not list an asset and it is missing from the Marital Settlement Agreement? A Marital Settlement Agreement is a document that is usually attached to a Judgment for Dissolution of Marriage setting forth the final agreement of the parties which, among other things, identifies and divides each marital asset, including bank accounts, investment account and retirement accounts.

Fortunately the California Family Code addresses this issue. The court has continuing jurisdiction to award community assets and debts to the parties that have not been previously adjudicated by a judgment in the proceeding.

For example, suppose Husband and Wife opened a 1-year term Certificate of Deposit (“CD”) when they married 25 years ago and each year the CD automatically rolled over into a new 1-year term CD. Over the years, the parties moved several times, did not update their address with the bank and the statements eventually stopped arriving. Both parties forgot about the CD. When the parties divorced, neither listed the CD on the Schedule of Assets and Debts and it was not identified or divided by the Marital Settlement Agreement. Five years later, Wife comes across a box of old bank records, including an old CD statement.

Suppose the parties are on good terms. Wife may call ex-Husband, tell him that she found the old bank records regarding the forgotten CD, propose they cash it out and equally split the proceeds. If Husband agrees, then the parties can simply file a Supplemental Judgment identifying and dividing the CD.

Suppose the parties are on bad terms and do not communicate. Wife may file a motion requesting the court adjudicate the asset or liability omitted or not adjudicated by the Judgment. In these cases, the court is required to equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability.

Thus, in the situation above where the parties legitimately forgot about the CD, the court would equally divide the CD one-half to each party. However, there are situations where the court may order an unequal division of an omitted or unadjudicated asset or liability.

One situation where the court may order an unequal division is if one party hides an asset from the other. For example, in the situation above, suppose Husband remembered the CD, decided not to list the CD in his Schedule of Assets and Debt or in the Marital Settlement Agreement to see if Wife would remember the CD. A few years after Judgment is entered, Husband has used a quarter of the monies from the CD, Wife finds the old box of bank documents, remembers the CD and files a motion for the court to adjudicate the CD. In that case, the court has discretion to award the remaining monies Wife. The court may also order Husband to pay Wife the amount of money he used from the CD. Husband may have also breached his fiduciary duties to Wife. If the court finds fraud on Husband’s part, it may award Wife 100% of the omitted or unadjudicated asset in question. The lesson to be learned is that full disclosure of all marital assets and debts is absolutely essential.

Another example where the court might not divide an omitted asset equally is when one spouse delays making a claim to divide an omitted asset, during which time the omitted asset greatly appreciates in value, perhaps due to the post separation efforts of the other. This may occur with a small home business that neither party bother listing on the Schedules of Assets and Debts or in the Marital Settlement Agreement, and that small home business is later developed into a giant successful internet business. For example, Husband may have a bee hive and harvests the honey which he sells at the swap meet on weekends under the name “Hubby’s Honey.”After the parties divorce, Husband expands the business, develops a website and 5 years later, “Hubby’s Honey” becomes the largest online honey seller in the country. In that situation, it was Husband’s post-separation efforts that caused “Hubby’s Honey” to increase in value, and the court will likely award the majority if not all of “Hubby’s Honey” to Husband.

Another interesting wrinkle to “omitted assets” is a case called In re Marriage of Melton in which the court held that when a judgment divides only a portion of an asset, the undivided portion can be treated as an omitted asset. In Melton, only a portion of Husband’s pension was explicitly divided by the stipulated judgment. The bulk of it was left undivided. The Court of Appeal found no reason why the omitted portion of Husband’s pension should not be treated the same way as an omitted asset, and remanded the case back to the trial court to determine how to divide the omitted portion.

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Many couples that were married in San Diego have since moved out of state. In fact, it is not uncommon for a couple to get married in California even if they are not currently residents. California, especially San Diego, offers many beautiful destination-wedding venues. However, if a spouse wants to obtain a divorce in California, there are two residency requirements that must be met. Under California Family Code section 2320, a judgment for dissolution (divorce) will not be entered unless one of the parties has been a California resident for at least six months and a resident of the county he or she filed in for at least three months. It is important to consider that unless the issue of residency is contested within thirty days, any defect in the residency requirements is waived.

There are no residency requirements for a couple to obtain a legal separation. This law creates a small tactical opportunity for a spouse that wishes to obtain a divorce in California. If the spouse intends to satisfy the minimum six-months/three-months residency requirements, he or she can file for legal separation and later amend the petition to request a divorce. This allows the spouse to start the divorce process without delay. There is a six-month waiting period for a judgment terminating marital status. When the legal separation petition is filed, this clock will start ticking. The spouse can obtain a divorce in the same amount of time as if he or she was a California resident at the beginning of the proceedings.

The residency requirements are also inapplicable to registered domestic partnerships. This is one area of the law where the rules governing marriages differ from the domestic partnership laws. Domestic partners who register their partnership with the Secretary of State consent to California jurisdiction therefore there are no minimum residence requirements. However, to dissolve a domestic partnership established out of state, one of the partners must satisfy the residency requirements.

Prior to January 1, 2012, same-sex couples encountered a serious problem. During a few short months in 2008, California granted marriage licenses to same-sex couples. From June 17, 2008 until September 17, an estimated 11,000 same-sex couples got married. Under The Federal Defense of Marriage Act (DOMA), states are not required to recognize same-sex marriages entered into in other states. A dilemma arose for a same-sex couple married in California and living in other states that refused to recognize their marriage. This couple could not obtain a divorce in California because they did not satisfy the residency requirements and could not obtain a divorce in their current state because it did not recognize their marriage.
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