San Diego Divorce Attorneys Blog

December 15, 2011

Is Accrued Vacation Time a Community Property Asset Subject to Division?

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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November 29, 2011

The Impact of New Mate or Partner Income on Attorney Fees

By Bickford Blado & Botros

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.

November 15, 2011

Judge Orders Exchange of Facebook and Dating Website Passwords in Custody Fight

By Bickford Blado & Botros

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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November 1, 2011

CAN I FIND OUT HOW MUCH MY EX SPOUSE CURRENTLY EARNS?

By Bickford Blado & Botros

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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October 27, 2011

Let’s Stay Together

By Bickford Blado & Botros

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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September 30, 2011

Alimony, Child Support, Property Division, a Financial Trifecta in San Diego Divorces

By Bickford Blado & Botros

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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September 27, 2011

Social Networking and Divorce in San Diego

By Bickford Blado & Botros

Shh. Big Brother is Watching!

Do you use Facebook, Twitter or other social media? If so, and you have filed for divorce in San Diego, you need to be aware that your posts, tweets and pictures may end up being entered as evidence in a court of law.San Diego divorce lawyers are seeing many more cases involving social media. In just a few short years, this technology has become so pervasive that a California divorce lawyer would be remiss for not seeing what public information is available about a client’s former spouse online. Whether as a source of information or evidence in a pending family law action, or the actual impetus for the divorce itself, social media has arrived on the scene in a big way. Consider the following:

In March, the U.K’s Guardian reported that social networking sites are becoming a primary source of evidence in divorce proceedings. The article even blames Facebook for connecting old flames and causing marital problems.

A survey last year by the American Academy of Matrimonial Lawyers found that 4 of 5 lawyers had seen an increase in divorce cases involving social media evidence.

This month’s Men’s Health features an article detailing Twitter relationships a divorcing party participates in with multiple partners.

Although the Wall Street Journal reports the notion that 1 in 5 divorces are caused by Facebook is a fallacy, there is no doubt social media is a contributing cause in a substantial number of divorces. More and more attorneys are asking to see a spouse’s Facebook page as a matter of course.

There have been sociological studies into the issue of why people behave the way they do on social networking sites. These studies reveal that people treat such social technology the way they would a close friend — and that they confide information in a very public way — information that is often best left unsaid, particularly if you are in the middle of a contentious divorce or child custody proceeding. For example:

Posting wild and crazy pictures of you while on vacation is not a good idea. You should simply refrain from posting such pictures.

Tweeting about job woes or problems with the kids is a bad idea. It is best to keep this information confidential.

Posting about your alcohol or drug use (especially pictures) is a very, very bad idea. Do not do this under any circumstances.

A good rule of thumb is to not post anything to a social media site that you would want a judge to see. Otherwise, you may end up in the very uncomfortable position of explaining your posts, tweets or pictures to a judge in a court of law.

One more thing to consider is reviewing your friends as well as your privacy settings on Facebook and any other social media sites that you use. Your friends may still be talking to your ex, or to your ex’s friends, allowing your ex, and his or her attorney, full access to all of the information you share on your social media sites. An increasing body of evidence continues to suggest this is advice best followed even if you are not in the midst of a divorce.

Your attorney will warn you about social media sites. Whether you heed the warning is up to you. There are few things can torpedo your case like your own words or pictures posted on a social media site for all to see.
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September 15, 2011

Support Stipulations

By Bickford Blado & Botros

The Associate Press is reporting that Los Angeles Dodgers owner Frank McCourt will keep paying $225,000 in temporary spousal support to his ex-wife, Jamie McCourt, over the next couple of months, but that money once used toward the mortgages of six luxurious homes will come from a $1.1 million escrow account funded by the sale of one of their other homes that was located near the Playboy Mansion.

When child and spousal support are at issue in a San Diego divorce, the issues can be resolved two way; either by agreement of the parties, or the court will make an order after having a hearing on the issue.

When parties reach a support agreement outside of a court hearing, either on their own or through their attorneys, the agreement is called a “Stipulation.” To become effective, the terms of the Stipulation must be written down and filed with the court.

September 1, 2011

Revisiting Move-Aways

By Bickford Blado & Botros

In a previous San Diego Divorce Attorney blog post, I discussed the factors the court looks at when a party is requesting to move with the children.In two recent San Diego divorce cases, the court of appeal determined that the trial court misapplied the applicable legal standard when denying move away requests.

In both Mark T. v. Jamie Z. and F.T. v. L.J., the trial court was reversed for failing to assume that the move by the parent requesting the move will take place, and then under those circumstances, make a decision about with whom and under what circumstances the child should live. Instead, in both cases, the court denied the move-away and made its orders on the assumption that if the move was denied, the custodial parent would not move.

In Mark T. v. Jamie Z., Mother who had primary physical custody of Child, requested to move to Minnesota with the Child because she was unemployed and could not find work in San Diego, despite receiving child support and emergency state aid she was borrowing money from relatives to make ends meet, and she had family in Minnesota with whom she could live and provide child care assistance, the cost of living was lower and she planned to return to school part-time and had an internship in Minnesota. Although the FCS mediator recommended that Mother be allowed to move, the child psychologist believed the move should not be permitted because it was in the Child’s best interest not to remove him from a loving and capable Father. The psychologist’s recommendation assumed Mother would remain the primary care-taker with Father’s time increasing from 30% to 50% when the Child turned 5 years old. The court denied the move-away and adopted the psychologist’s recommendations, assuming that if the move-away was denied, that Mother would remain in San Diego with the child. The court of appeal reversed holding that the court misapplied the legal standard and avoided the ultimate question – what custody arrangement would be in the Child’s best interests, assuming Mother moved. The court also did not base its decision on all of the move-away factors and the one’s that were used, such as finding the move “suspect”, were without a basis for the findings.

In F.T. v. L.J., Father, who had primary custody of Child, requested to move Washington state with the Child because he was marrying a Washington state resident. Father originally obtained primary custody after Mother abused the Child, and Mother was convicted for battery against the Child. Mother had supervised visitation, which was later modified to unsupervised visitation. Both FCS and the psychologist recommended against the move. FCS proposed alternative child sharing schedules depending on whether Father remained in San Diego or moved. The court denied the move-away, finding that the move was not in the Child’s best interest and made an order assuming that Father would remain in San Diego. The Court of Appeal reversed holding that the court misapplied the legal standard, did not treat the Father’s plan to move as serious, erroneously required Father to show the move was necessary, only considered impact on Child’s relationship with Mother instead of all the move-away factors and failed to apply Family Code Section 3044’s rebuttable presumption that Mother should not be awarded custody because of her criminal conviction for battery of the Child.

The court must apply all of the move-away factors, including:
• Reason for the move;
• Whether the move is to frustrate the other parent’s contact;
• The child’s interest in stability and continuity;
• Distance of the move;
• Age of the children;
• Child’s relationship with both parents;
• Current child sharing.
• Child’s Existing contact with both parents;
• The relationship between the parents;
• The wishes of the children if mature enough;
• Child’s community ties;
• Child’s health and educational needs;
• Child’s circle of friends; and • Child’s sports/academic activities.
and make orders based on the assumption that the party requesting the move will move regardless of the court’s decision. The court can also make conditional orders, stating what the parenting plan will be effective upon the party actually making the move.
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August 30, 2011

Is There a Good Time to Get Divorced in San Diego?

By Bickford Blado & Botros

Few people would agree that there is a good time to get divorced. It can be a long, drawn out process and complex. Not only that, but it can lead to overwhelming stress and problems with other family relationships if not handled well.

A new article published on MSNBC.com by Investopedia looks at the best and worst times to consider a divorce in San Diego. Many people are struggling financially right now because of the effects of the Great Recession. Some people have the desire to get a divorce, but feel as if they can’t afford it and stay together in order to save money.That can lead to volatile situation that can lead to domestic violence issues as tempers flare, egos are bruised and feelings hurt. Even if you think your finances prohibit you from getting a divorce, it would be prudent to set up a consultation with an experienced San Diego Divorce Lawyer to discuss your options and talk about your situation.

Here are some events that can impact a divorce:

An up and down real estate market: At one time, a house was a major asset that couples might fight tooth-and-nail to obtain, but times have changed. According to foreclosure tracking site Realtytrac, every zip code but one in San Diego has “high” foreclosure activity level, with nearly 1 in every 147 housing units in foreclosure.

San Diego, like many parts of the country, has seen housing prices drop as foreclosures saturate the market, leaving many people upside down on their mortgages. For that reason, a house in a divorce may be less of an asset and more of a debt that must handled. While in past divorces, one spouse may be awarded the house and the other spouse would be awarded other assets in exchange, now the other spouse may have to give up assets if an ex agrees to take on an upside-down house.

A shaky economy: With the economy slowly recovering (and some would argue slowly is an exaggeration), many people are hurting financially. Going through a divorce at this time can be difficult.

A poor credit score: A bad credit history coupled with a divorce can be bad news for a person going through the process. Having to obtain a car loan or perhaps rent a house on your own can be more difficult without the added security of a second income or a house that may already be paid off in full. Again, a trusted attorney will be invaluable in assisting you in avoiding the common pitfalls of the divorce process.

If one of the two spouses has a bad credit score, negotiating to keep the car or house to avoid having to venture out for a loan may be prudent.

Minor children: Divorce is more complex and stressful when children are involved. Child custody in San Diego divorces can make a divorce more contentious and more financially difficult. With two sets of living expenses instead of pooled money, each parent will have less to give to college funds and other expenses, but financial aid may be easier to obtain.
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