Nancy J. Bickford

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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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There are many great companies in San Diego. A lot of these companies offer fantastic employment benefits, such as generous amounts of vacation time. Some companies even have policies allowing their employees to accrue vacation time, as opposed to a “use it or lose it” policy. As a San Diego divorce attorney, it is important to understand this employment benefit, which is often overlooked when bigger benefits are also at stake, such as stock options, 401(k)’s and pensions.“

Vested vacation time is an asset which, if earned during marriage, is considered a community property asset. However, vested vacation time is, in and of itself, not divisible in kind. If there are 30 days of vested vacation time, the judge cannot award 15 days of vested vacation time to each party because the vacation time that is vested can only be used or taken by the employee spouse. To make the issue of vested vacation time even more complicated, there is conflicting case law on how the courts handle the division of vested vacation time.

A close reading of the various cases, in my opinion, favors that if the vested vacation time is convertible (or can be converted) into cash, then it can be considered by the court as a divisible community property asset. Thus, the employee spouse who can elect to take his or her accumulated vacation time as cash may be charged with the after-tax amount he or she could realize. The court can also order a party to cash in the vested vacation time and pay one-half (or other amount) to the non-employee spouse.

On the other hand, if the employee spouse must take the time off or lose it, and there is no cashing out of the vacation time, then the court could find that the employee spouse is not receiving an economic benefit which can be fairly valued and charged to that party. In other words, if accrued or vested vacation time can be cashed in, it should be considered an asset subject to division. If it, or a portion of it, cannot be cashed in, meaning that it must be taken or lost, then the court may determine that it has no economic benefit to the employee spouse and the court will not consider it as an asset subject to division.

In one “vacation benefit” case, Husband had accumulated 120 hours of vacation time through his employment, for which he would not receive cash if he did not use. The Trial Court found that the vested vacation time was an asset not subject to division. The Court of Appeal affirmed the decision, holding that the mere fact that a benefit exists for an employee, doesn’t mean that a value can be placed on it in a dissolution proceeding. These include: use of employer provided health club, purchasing meals in company cafeteria, or ability to buy at discount prices through employer subsidized retail establishment. Although these benefits may affect need or ability re support, they are not convertible to cash and therefore not divisible on dissolution.

However, another case held just the opposite. When that Court of Appeal considered that Supreme Court’s meaning of the phrase “vested vacation time” it believed that it was important to keep in mind the nature of vacation pay. The court went on to explain that vacation pay is not a gratuity or a gift, but is, in effect, additional wages for services performed and that the right to a paid vacation, when offered in an employer’s policy or contract of employment, constitutes deferred wages for services rendered. That Court of Appeal held that there was no reason deferred wages cannot be commuted to present value and divided.

Even if the vacation time cannot be valued and divided, the vacation time may still be taken into consideration by the court when determining spousal support. The fact is that the paid vacation time (and other similar employment benefits) reduces the employee’s reasonable living expenses and thus can be considered by the court in exercising its discretion as to the amount of spousal support to order.
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As a San Diego Divorce Attorney, when a client remarries, he or she often wonders if their new spouse’s income will impact child support and spousal support. Recently, a client in the midst of a divorce in which status was previously granted (meaning the parties were no longer married) but the issues of spousal support and attorney fees were not yet resolved, who was about to remarry, asked about the impact of new spouse income on the issue of spousal and child support.

Previously, I blogged about the impact of new mate income on child support and spousal support orders. To summarize:

1) For child support, except in “extraordinary cases,” new spouse or non-marital partner income is generally not considered when calculating guideline child support, although the court may inquire into a new spouse’s income for the purpose of seeing how it would impact the remarried party’s tax filing status and tax bracket when calculating guideline child support.

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Many of our San Diego Family Law client’s use Facebook and other social network or dating webpages. This is not surprising considering that Facebook alone has more than 800 million active users. More than 50% of those active users log on to Facebook everyday and on average more than 250 million photos are uploaded per day. Almost every social network and dating website can be accessed by a cell phone or tablet.We have previously blogged about the use of information from social network and dating websites in divorce cases. We have also previously cautioned readers of our blog (as well as our clients) regarding what not to post on Facebook and other social network and dating sites while going though a divorce. This includes NOT posting wild pictures of yourself, NOT tweeting about job woes or problems with the kids and NOT posting about drug and alcohol use. It is also important to adjust your privacy settings. In other words, do not post anything to a social network or dating website that you would want your former spouse, children or the family law judge in your case to see or read.

Recently, there have been some interesting and seemingly conflicting orders regarding requests for Facebook or other social network or dating website information.

In one case reported by the ABA Journal, a judge in a Connecticut divorce case ordered the parties’ attorneys to exchange their clients’ Facebook and dating websites passwords. Although the order stated that the parties themselves would not be given the passwords of the other, the order also stated for neither party to visit the other party’s social network website and post messages purporting to be the other. You can imagine what one party must have posted on the other party’s social network for that order to be made.

However, in another recent personal injury case involving an accident from 1993 in which the insurance companies denial of benefits did not question Plaintiff’s limitations or need for care, the insurance company still sought, through discovery, the Plaintiff’s Facebook password, a list of his Facebook friends, along with other Facebook activity and information including, all photographs, messages, status posts, wall posts, comments, groups, and group memberships. When the Plaintiff refused to provide the information, the insurance company filed a Motion to Compel to force the Plaintiff to provide the information. Fortunately for the Plaintiff, the court denied the Motion to Compel on the grounds that the Facebook information was not relevant or likely to make any disputed fact more or less likely, despite the insurance company’s argument that Plaintiff’s Facebook posts would likely contain information about the Plaintiff’s daily activities and thoughts. The court found that any possible relevant information which could be gleaned through the Plaintiff’s Facebook information would also be available to the insurance company through less intrusive, less annoying and less speculative means. The court characterized the insurance company’s request for Facebook information as a fishing expedition at best and harassment at worst.

However, unlike in most civil cases, the information contained on a social networks and dating websites is often very relevant in family law cases, particularly to the issues of custody and visitation. It may also be relevant to the issues of property division and fiduciary duties.

In the Connecticut divorce case discussed above, one party was requesting full custody of the children and argued that the Facebook and dating website information was relevant to the other party’s ability to take care of their children. Apparently, the Court was persuaded by the argument and ordered the exchange of passwords.

Another interesting argument, that has not yet been determined by the courts, is whether the type of order issued in the Connecticut divorce case is valid or enforceable in light of Facebook’s Terms of Use Provisions. Following the Connecticut order would arguably violate the these two Terms of Use Provisions:

1) You will not solicit login information or access an account belonging to someone else. and;

2) You will not share your password, (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account.

As long as social networks and dating websites continue to be popular, we anticipate that requests for information and pictures from them will become more and more frequent in divorce cases.
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As a San Diego Family Law Attorney, I often receive calls from former clients asking if they can find out their former spouses current income without incurring a lot of attorney fees or filing an expensive, time-consuming motion. Here are two examples of those calls:

• One former client suspected her Ex-Husband was earning significantly more than he was a year ago when their divorce was finalized because he recently bought a new car and moved into a bigger house. He refused to tell her his current income. If true, the amount of child support she receives could increase.

• Another former client knew that his Ex-Wife received a promotion, but did not know if a raise came with the promotion. She refused to tell him if she received a raise. If she received a raise along with her promotion, then his child support obligation would decrease, or depending on how much of a raise she received, he might be eligible to receive child support from her.Fortunately for both clients, the Family Code provides for a way to obtain a current Income and Expense Declaration by permitting a party to engage in inexpensive post-Judgment discovery prior to filing a Motion for Modification of Child, Family or Spousal Support. More specifically, at any time after the entry of a Judgment of Dissolution or Legal Separation that provides for the payment of child or family support, either party, no more than once per year, may request the other party to produce a completed current Income and Expense Declaration with copies of that party’s pay stubs and prior year state and federal income tax returns attached.

A request for a current Income and Expense Declaration with a copy of the prior year tax return and pay stubs is the only limited discovery allowed if a Motion for Modification or Termination of the Support Order is not pending. That means if a party wants to engage in other methods of discovery, such as Interrogatories (which are questions asked of the other party) or a Request for Documents, then he or she would first need to file a Motion for Modification or Termination of the Support Order.

By allowing a party to obtain an Income and Expense Declaration from their former spouse, the requesting party can determine whether filing a Motion for Modification is appropriate. If it turns out that there is no change of income, then the filing of a Motion for Modification could be expensive, especially if there is no (or minimal) change to the amount of support paid or received.

Sometimes, a former spouse will ignore the request for a current Income and Expense Declaration. If this occurs, the Family Code provides that if there is no response within 35 days, or if the Income and Expense Declaration is incomplete as to any wage information, or if pay stubs and income tax returns are not attached, then the requesting party may serve a Request for Income and Benefit Information directly on the employer of the other party. The non-responding party may also be sanctioned by the court for his or her failure to comply with the initial request.

Please contact us if you wish to obtain a current Income and Expense Declaration from your former spouse, or if you have received a Request for Production of An Income and Expense Declaration After Judgment from your former spouse.
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As San Diego divorce attorneys, we know that a relationship is not over until it is over. A recent article in USA Today titled, Some Couples Pull Back From the Edge of Divorce, focused on couples who called off their divorce proceedings to get back together. One couple, just weeks away form their divorce being finalized, attended a last ditch marriage weekend seminar which they say saved their marriage. Another couple, after already spending $20,000 in attorney fees, took classes to bolster communication and conflict resolution which lead to them calling off their divorce. A third couple that worked at the same place were forced to share rides to work for a week when one of their cars broke down. They ended up having so much fun together that they called off their divorce even though both had started new relationships.

While these reconciliation stories are unusual, some couples in the middle of a divorce do want to make one final attempt to save the marriage. When this occurs, the parties usually want time away from the court proceedings to attempt their reconciliation. In San Diego County, there are two main options which allow time to attempt reconciliation.

The first and usually the best option is to file a Stipulation of Attempted Reconciliation. The San Diego County Rules of Court allow parties to file a stipulation indicating that they are attempting reconciliation. This will effectively put a hold on their case for approximately 12 months. If either a Dismissal of the Petition for Dissolution or a Judgment is not filed within 12 months of the filing of the Petition for Dissolution, then the court will set a Status Conference to find out what is going on. At that point he court can dismiss the case, continue to keep the case on hold, or encourage the parties to move the case forward. Filing a Stipulation of Attempted Reconciliation is a good option when both parties want to attempt reconciliation, but do not want to have to re-file paperwork if the reconciliation fails. If the reconciliation does not work, then the case will pick up right where it left off. Be sure to consult with your attorney regarding the benefits and risks of exercising this option.

The second is to end the divorce proceedings. This can be done by filing a Request for Dismissal, which will dismiss the case in its entirety and if anything is on calendar, it will be taken off the court’s calendar. It is often not a good idea to file a Request for Dismissal unless the parties have spent some time working on reconciliation and both parties are confident that the reconciliation will last. Otherwise, the case will need to be started all over again. One time a client called after an unexpected “romantic” weekend with the ex and asked to dismiss the case because they reconciled over the weekend. After advising the client to wait a few weeks to see if the reconciliation will work out, it took the parties about two weeks to realize that they were not going to be able to sucessfully reconcile. By not filing a Request for Dismissal right away, the client’s custody and support motion remained on calendar and proceeded a few weeks later.

Unfortunately, what often happens is that the client disappears, meaning he or she stops communicating with their attorney and/or the court, thinking if they ignore the pending divorce, nothing will happen in it. That is not thecase. Disappearing does not stop or halt the divorce proceedings. Clients who choose to disappear may lose legal rights (especially regarding time sensative discovery deadlines) or suffer other adverse consequences should the reconciliation fail.

If you are in the middle of a divorce and wish to make a final attempt at reconciliation, you need to discuss it with your San Diego Divorce Attorney, who can advise you on the best way to protect your legal interests, whether the reconciliation succeeds or not.
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Massachusetts has passed a landmark law regarding alimony payments, The Wall Street Journal reports. The new law aims to end lifetime payments, particularly in retirement or once a former spouse finds a new partner.

Divorcing couples should know and understand the distinct differences between child support and alimony or spousal support in San Diego. Spousal support is generally treated as taxable income for the receiver and as a tax deduction for the payer. Child support is tax free for the recipient but not deductible for the payer.Child support may be more collectible than spousal support — i.e. the court system may be more likely to enforce the court’s orders. And, of course, as we reported this summer on our San Diego Divorce Attorneys Blog, cohabitation or remarriage generally does not impact child support payments in San Diego or elsewhere in California. That is not necessarily true of alimony or spousal support.

Spousal support can be awarded on a temporary or permanent basis. Temporary spousal support usually covers the period of time between separation and when a divorce ends. Permanent alimony is typically awarded based on the length of the marriage. A short-term marriage in California, one lasting less than 10 years, may result in an alimony award lasting up to half the length of the marriage. In long-term marriages, judges are given great discretion and payments may be awarded indefinitely.

Together with the initial property awarded to each spouse, the trifecta will go a long way toward determining your future quality of life.

As the Wall Street Journal reported, the recession has brought the contentious issue of long-term alimony to a boiling point. Statistics show unemployment has hit males the hardest. And, as the Baby Boomer generation hits the gates to retirement, many former husbands are looking to reduce or eliminate payments. The Tennessee Supreme Court recently ruled lifetime alimony was inappropriate if a woman was in good health, had a stable job and had received considerable assets during a division of property. And Florida recently set a higher bar for permanent spousal support awards.

The new law in Massachusetts takes effect next March. Those paying lifetime alimony can apply for modifications beginning in 2013. For women counting on these payments in retirement, a reversal could be financially devastating. The New York Times reports the Massachusetts law calls for alimony for up to half the length of a marriage lasting less than five years. For long-term marriages — those lasting 15 to 20 years — payments could last for up to 80 percent of the length of the marriage.

Your attorney needs to work toward a divorce agreement that adequately provides in all three areas: property division, spousal support and child support. The pros and cons of each award must be weighed with the client’s financial future in mind.
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