Nancy J. Bickford

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TMZ.com reports that Charlie Sheen and Brooke Mueller have reached a custody agreement, which includes mutual drug testing. In the case of Sheen and Mueller, it appears the parties volunteered to submit to drug tests. But what if they didn’t volunteer to do so? Could the court order one, or both of them, to take a drug test?

Family Code section 3041.5, provides that “[i]n any custody or visitation proceeding…the court may order any person who is seeking custody of, or visitation with, a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent…”

Thus, the court may order a drug test, but only if it first determines, by a preponderance of evidence, that there is the habitual, frequent, or continual illegal use of controlled substances. Among the ways to show this is a conviction within the last five years for the illegal use or possession of a controlled substance. Family Code section 3041.5.

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If you are a fan of Who’s the Boss? star Tony Danza, you may recall that in 2006 he separated from his wife, Tracy. Four and a half years later, Tony Danza has filed for divorce according to People.com.

As a San Diego divorce lawyer, I have had clients in similar situations; specifically, clients who have waited some length of time after separating to file for divorce. Although I do not know the reason Tony Danza personally waited to file for divorce, sometimes parties wait to file for divorce because they are attempting reconciliation. In my work as a San Diego family law attorney, I have been asked how an attempt at reconciliation effects how property is divided, and specifically how an attempt at reconciliation effects how a spouse’s earnings will be characterized by a court, that is as separate property or community property.

Generally, except as otherwise provided by statue, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property. Family Code section 760. One such statutory exception is that earnings and accumulations of a spouse while living separate and apart from the other spouse are separate property. Family Code section 771.

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As reported in The San Francisco Chronicle, retired San Francisco judge Isabella Horton Grant died of cancer on Saturday at age 87.

Judge Grant made many contributions to family law, including her participation in the drafting and passage of California’s no-fault divorce rule, which went into effect January 1, 1970 with the enactment of the Family Law Act of 1969.

Prior to the enactment of California’s no-fault divorce rule, the moving party in a divorce was a plaintiff who charged the other spouse, as a defendant, with being “at fault” for the divorce for reasons such as adultery, abuse, etc.

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Last month, recording artist Ashlee Simpson filed for divorce from Fall Out Boy band member Pete Wentz. The parties have a 2 year old son, Bronx.

According to People.com, in Simpson’s Petition for Dissolution of Marriage she requested sole custody of their son with visitation rights to Wentz. On Tuesday, Wentz filed his Response requesting joint custody of their son. While there is speculation that this may mean Simpson and Wentz are headed for a custody battle, my experience as a San Diego divorce attorney tells me that isn’t necessarily the case.

One of the first steps in the divorce process is to file the Petition or, depending on what side of the case you are on, the Response. When there are children involved, the Petition and Response are how the parties first tell the court what type of custody and visitation order they would like. The options include: legal custody to the Petitioner or Respondent or joint legal custody, physical custody to the Petitioner or Respondent or joint physical custody, and child visitation to the Petitioner or Respondent. Because the Petition and Response are forms, once a party determines which option is best, they simply check the appropriate box. (Of course, this is just what is being requested, and not necessarily what the court will ultimately order.)

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Time.com recently posted an article titled: 5 New Reasons to Get (or Stay) Married this Year. What was their number one reason? Children of divorce pay more for college.

The article cites an analysis of student financial aid statistics which concludes, generally, that parents who are divorced contribute less to college expenses than parents who are married. And, even if a parent divorces and then remarries increasing their household income, they still contribute a smaller percentage of that income to college expenses. The article states that, according to the study, a college student with divorced parents pays an average of 58% of all college expenses, whereas a college student whose parents are still married pays only an average of 23% of all college expenses. For a college student whose parents divorce, and then remarry, the student pays an average of 47% of all college expenses.

As a San Diego family law attorney who handles child support cases, I have been asked whether a court can order a parent to pay for a child’s college expenses. In my experience, absent an agreement between the parents, a judge will not order a parent to pay for a child’s college expenses.

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As a San Diego family law attorney, many of my clients come to me with the goal of obtaining an order for child support. Many times, my clients do not know that generally, when a court makes an order for child support, the court must also make an order for health insurance for the supported child. Specifically, the court must order that either or both parents maintain health insurance for the supported child if that insurance is available at no cost or at a reasonable cost to the parent.

Because many of my clients do not have the benefit of health insurance at no cost, one question I am asked in child support cases is what will the judge think is a resonable cost for health insurance?

There used to be a rebuttable presumption that any employment-related group health insurance or other group health insurance was reasonable in cost. However, beginning January 1, 2011, this has changed. Now, there is a rebuttable presumption that any health insurance cost which does not exceed 5% of the parent’s gross income is reasonable. In determining whether the health insurance cost exceeds 5% of the parent’s gross income, we look at the difference in cost between self coverage and family coverage, and it is that amount that cannot exceed 5%.

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San Diego has a long and proud military history. San Diego, which started as a Spanish military outpost and continued to be a military town throughout the years, is currently home to numerous U.S. Navy, Marine Corps and Coast Guard facilities.

Whether you are in the military or married to a military service member the California Court of Appeals recently made a decision that will impact how support is calculated in divorces where one or both parties are in the military.

In the case of In re Marriage of Stanton, Mr. Stanton, a member of the US Navy, filed a request to modify support. At the time of the hearing, his base pay was $4,474.80/mo, Basic Allowance Housing (“BAH”) was $2,199/mo, Basic Allowance Subsistence (“BAS”) was $323.87/mo and special duty pay was $300/mo. The trial court included his military allowances as non-taxable income when calculating support stating, “If it looks like income, it is income no matter how it’s paid to you. And this court has always considered BAH and BAS to be income.”

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Yahoo Finance recently ran an article listing the top 10 signs the economy is on the upswing. Item Number 10 on the list was “More couples are calling it quits.” The article reported that members of the American Academy of Matrimonial Lawyers had a 37% drop in divorce cases in 2008 and a 57% drop in 2009. Although no numbers were given for 2010 or the first two months of 2011, many divorce lawyers reported that they have more business than they can handle. The article concluded the reason for the increase is due in part to credit loosening up.

There are many ways that the loosening of credit may help increase divorce rates. A spouse who operates a community property business may now be able to obtain credit to buy out the non-operating spouse’s interest in the business. A spouse who wishes to retain the marital residence (or other real property) may be able to obtain credit to buy out the other spouse’s interest in the residence.

On the other hand, if the parties decide to sell their residence, looser credit may enable more potential buyers to qualify for a loan to purchase the residence. This is particularly good news for San Diego residents who are contemplating a divorce because the Los Angeles Times reported on February 22, 2011, that the Standard & Poor’s/Case Shiller Index, which tracks the real estate market in 20 major U.S. cities, shows that San Diego is one of two cities on the Index that reflected an increase in value from December 2009 through December 2010. San Diego’s increase was 1.7%. So, not only may more buyers qualify for a loan to purchase the residence, the selling price could be higher than a year ago as well.
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This year’s Academy Awards will be held at the Kodak Theater in Hollywood, California on February 27, 2011. It airs live in San Diego on ABC at 5 p.m.

Among the awards to be given out, perhaps one of the most anticipated is best director. This year’s nominees for best director include: Darren Aronofsky for Black Swan, David O. Russell for The Fighter, Tom Hooper for The Kings Speech, David Fincher for The Social Network, and Joel and Ethan Coen for True Grit. Who the Oscar will ultimately go to is anyone’s guess. But, regardless of who wins, all of the nominees share one thing in common: they are all celebrities.

The status of celebrity brings a twist on the issue of valuing goodwill in a divorce. Generally, goodwill, as defined by the California Business & Professions Code § 14100, is the expectation of continued public patronage of a business. In a divorce, if a community property business is found to have goodwill, that goodwill is valued and then included in the community property to be divided equally between the spouses.

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It’s official, Kelsey and Camille Grammer are divorced. Reflecting on the divorce process, as well as what is to come, Camille told US Magazine: “I am grateful to my family and friends who have stood by me through this time – I will never forget their love and support. What I most hope is that Kelsey and I can improve our communications and truly co-parent our two wonderful children…”

As a family law attorney, many of my clients face the challenge of co-parenting after a divorce. Sometimes, a court will grant one parent sole legal custody, in which case that parent is solely responsible for making decisions relating to the minor child’s care, upbringing, educational training, religious training, social and recreational activities, medical care and treatment, and treatment of emotional needs. Other times, parents will share joint legal custody. When both parents are responsible for making decisions relating to their child’s welfare, and they need to make those decisions together, challenges can arise.

While some might think that parents inherently know how to co-parent after a divorce, realistically, it’s a learned skill. Think back to when you brought your son or daughter home from the hospital. Over those first few days, weeks and months, you had to learn how to be a parent; you had to learn how to change a diaper, what to feed the baby, and what her different cries meant. In this same way, co-parenting after a divorce is a skill that needs to be learned. You will need to learn how to put your relationship issues aside, and work together for the benefit of your children.

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