San Diego Divorce Attorney Blog

Victims of domestic violence in San Diego could face a situation that may be even more worrisome than threats from an abusive family member - that is, the inability to receive the necessary and immediate protection via the court system. According to a recent article appearing in The Sacramento Bee, the possibility of reducing funding to state courts means that the services will be cut back or eliminated. For victims of domestic violence, this creates an unthinkable dilemma: what if the courts, due to limited hours or possibly even closures, are unable to process a request for a restraining order in a timely manner, to ensure their immediate safety and protection? Domestic violence is a serious offense, one that requires prompt attention. If you or someone you know is involved in a domestic violence situation, it is important to contact an experienced family law attorney as soon as possible.

In California, domestic violence involves abuse or threats of abuse where the people involved have been in an intimate relationship, including those who are married, domestic partners, are dating or dated in the past, or live or lived together, or have a child together. Courts will also consider the abuse or related threats to be domestic violence if the abuser and the abused person are closely related by blood or by marriage.

The abuse can be manifested in many ways, such as: physically hurting or attempting to hurt someone, either with intent or in a reckless manner; sexual assault; threats of harm that make someone reasonably afraid that they will be seriously injured; or such menacing behavior as harassing, stalking, threatening, or hitting someone; possibly even disturbing someone's peace; or destroying another's personal property. It is also important to realize that abuse extends beyond physical actions -- it includes verbal, emotional, or psychological tactics as well.

Victims of such abuse may petition a local court for a domestic violence restraining order. This is a court order that helps to protect people from abuse or threats of abuse from someone they have a close relationship with. Victims who go to court to find some protection and relief need to know they will receive a rapid response with meaningful assistance. According to the article referenced above, it was typical for a court to attempt to process a temporary restraining order on the same day it was filed. Sometimes the abused person in a potentially explosive relationship cannot wait until the next day for help. Data indicates that victims are at a greater risk of being stalked, assaulted or even killed in the weeks immediately after moving out of the home or filing for separation or divorce.

A restraining order can require that the abuser stay away from you and your children and possibly other relatives, as well as require the person to comply with child support payments and to follow any child custody and visitation orders. It can be a life-saving tool for many people. Hopefully, the lawmakers will consider the vital needs of victims who rely on the courts for practical assistance.

Continue reading "Reduction of Court Services in California Could Pose Risks for Victims of Domestic Violence" »

In San Diego, the juvenile court handles, among other issues, juvenile dependency cases. Juvenile dependency cases involve situations where there may be abuse or neglect in the home. It is the juvenile court's job to protect the children in the family. Domestic abuse aimed at children is reprehensible for many reasons, most notably because the relationship between parent and child is innately based on trust. Parents who are struggling with issues in juvenile court should consult with an experienced family law attorney who understands the local laws applicable to your case.

In a recent California Supreme Court case, In re I.J. et al., the father had custody of his five children: three boys and two girls. The Los Angeles County Department of Children and Family Services filed a petition with the juvenile court alleging that the father sexually abused one of the daughters for a period of three years. The court determined that all five children - daughters and sons -- were dependents of the juvenile court under Section 300 of California's Welfare and Institutions Code. The kids were removed from the father's home. He appealed.

While the court of appeals unanimously agreed with the juvenile court's determination that the daughters were dependents of the court, it was divided on the issue of whether the sons should also be taken away from the father's care without additional evidence. The Supreme Court granted the father's petition for review of whether the sexual abuse of one daughter supports the decision to declare the sons to be dependents of the court.

Under Section 300 of the Welfare and Institutions Code, the juvenile court is given the authority to determine when a child is to be a dependent of the court. There are many factors the court can consider, such as whether the child has suffered, or is at substantial risk of suffering serious physical harm or illness; the child has been sexually abused or there is a substantial risk that the child will be so; and whether the child's sibling has been abused or neglected and there is a substantial risk that the child will be also.

The court pointed out that there does not have to be evidence that the sibling actually be abused or neglected before the court can assume jurisdiction over the child, just that there is a substantial risk. The court thoroughly reviewed decisions within the state's appellate courts and found conflicting decisions on the matter.

The Supreme Court ultimately agreed with the decision below, holding that there was sufficient evidence to support the juvenile court's dependency ruling. In so holding, the court reiterated the lower court's characterization of the father's behavior as "aberrant in the extreme." Such behavior indicates that the parent "abandons and contravenes the parental role" - which, the court said, justifies an interruption of parental custody.

Domestic violence is the unlawful infliction of injury on another person. The victim may be a child, as in this case, a former spouse, or partner. Domestic violence cases are serious and require prompt and proper attention. Contacting a local attorney to advise you on the applicable laws and legal requirements is essential.

Continue reading "California's Highest Court Rules That Father's Sexual Abuse of Daughter Supports Finding That Sons Are Also Juvenile Dependents" »

In San Diego and throughout California, the court may order one spouse to pay the other a certain amount of money each month when a couple divorces. This is called "spousal support" - or as many people know it, "alimony." In determining the amount, courts will look at a variety of intricate factors, including the length of the marriage, the standard of living throughout, the ability of each spouse to have a job, the potential impact on any children, age and health of the spouses, and their debts and property, just to name a few. There are countless considerations that only an experienced, local San Diego Family law attorney can help sort through to create the best possible spousal support plan.

Sometimes, the award of spousal support may not seem fair. According to Fox News accounts, when California mother Carol Abar married Ed Abar, her daughter was just nine-years-old. Shortly thereafter, Ed Abar began raping the child, who did not tell her mother for fear of his threats. Sixteen years later, when her daughter finally told Carol about the assaults, she promptly divorced him. During the divorce proceedings, a judge ordered Carol to pay her ex-husband $1,300 in alimony each month, despite her allegations of abuse toward her daughter. In rendering the support award, the judge allegedly told Carol that she had no proof of her husband's criminal conduct.

Carol has been paying alimony until last year, when further reports indicate that Ed Abar pleaded guilty to one of four rape charges and was sentenced to over a year in jail. At this point, a judge temporarily halted the spousal support payments, which had accrued to approximately $22,000 over the years. After serving the required sentence, Ed Abar was released and is now actually seeking an order from the court - to reinstate his alimony payments.

Keeping in mind that Abar was convicted of raping Carol's daughter, he nevertheless, asked the court for a resumption in support payments as well as $33,000 in past due support. There seems to be somewhat of a "loophole" in California law as it concerns domestic violence. For instance, in making determinations regarding the award of spousal support, courts will take into account, documented evidence of any history of domestic violence between the spouses. There is a "rebuttable presumption" against giving spousal support to an abusive spouse who has a criminal conviction for domestic violence against the other spouse.

Up until last year, California state law required a victim of spousal abuse to pay support to her attacker after a divorce. Governor Jerry Brown signed Assembly Bill 1522 to close that loophole, but there still happens to be no specific provision preventing child abusers from receiving spousal support.

It will be interesting to see whether the court orders a resumption of support payments. The way the law in California stands now, the court is not required to consider Ed Abar's repeated child abuse. Spousal support issues can be extremely complicated to sort through and, more often than not, require a full and comprehensive understanding of the local laws and procedures.

Continue reading "California Court Ordered Mom to Pay Spousal Support to Man Who Allegedly Raped Her Daughter for Years" »

Divorcing couples in San Diego, and throughout the state of California, have the complicated and emotional task of sorting through their community property to determine how to divide the assets. But spouses on the verge of divorce should also pay close attention to the debts that have accumulated throughout the marriage. Those too may be equally allocated. Each state has its own set of family laws and procedures to follow. In matters concerning property division, the importance of hiring an experienced, local divorce attorney who is well-versed in the particular laws of California, cannot be overstated.

The extent to which a spouse inherits the other's debt depends in large part on the laws of the state within which they were married. Because California is a "community property" state, debts incurred during the marriage will be evenly divided during the divorce proceedings. A recent Fox Business article focuses on what happens to a woman's credit after a divorce if her husband has a business credit card debt. The main message in the article was: the answer may vary from state to state. In most cases, it seems that the person who filled out and signed the credit card application agreement will be the one the company goes after in seeking to recover payment.

While the credit card company is known to go after the signatory when some type of wrong-doing has been detected, if the issuer of the credit card happens to win a judgment against that person, it can still seek the couple's joint assets to satisfy that amount.

There are many ways that people can protect themselves in such situations. Calling the credit card issuer directly to identify the signatory is one way to ensure that you will not be the one they go after in the event of a default in payment. Another way to protect your assets after a divorce is to make sure your funds are in your name only and clearly separate from your ex-spouse's. Of course, if the couple signed a pre-nuptial agreement, all bets are off and each party should consult with a local attorney to understand their respective rights under that contract.

Once a couple has decided to divorce, in order to understand what assets and debts you jointly have, a good idea is to make lists of everything you own and owe. Part of this task is to determine which items are considered community property versus separate property. Once you have that figured out, the logical next step is to calculate the fair market value of the assets.

Under California law, divorcing spouses are required to fill out and exchange with one another a "Schedule of Assets and Debts." Essentially, it is each party's financial declaration of disclosure. Spouses are encouraged to be open and honest in preparing the schedule of information. Even after the debt allocation is completed, there could still be issues that arise later on. For instance, when spouses agree to divide up the debts they owe, it is important to realize that the entities or people you owe the money to are not required to honor or recognize the arrangement between you and your spouse. There are many complicated issues that can arise from the division of community property, especially when it comes to marital debt.

Continue reading "In California, A Spouse's Business Debts May Be Divided Evenly in Divorce" »

For spouses seeking to divorce in San Diego, California law generally requires that marital property be divided equally. Identifying marital property and determining its value are critical parts of any divorce case. In some instances, a party to a divorce settlement could later argue that because of fraud or errors made in determining the value of marital property, the court should set aside the settlement. Because the value of marital property is of crucial importance to the outcome of the settlement, spouses are encouraged to hire an experienced San Diego family law attorney who will work to get the best settlement for their case.

According to a Bloomberg news article, Jamie and Frank McCourt dissolved their marriage in 2010. They announced their divorce settlement in October 2011, which allocated to Ms. McCourt a tax-free sum of $131 million. Six months after their settlement was finalized, Frank McCourt sold the Los Angeles Dodgers for $2 billion. After learning about the sale of the team, Ms. McCourt petitioned a California Superior Court judge to set aside the settlement, claiming that it was based on fraud. She contends that as co-owner of the team, she was entitled to a great deal more than the $131 million she received under the settlement.

According to some reports, it is said that Ms. McCourt received 7% of the couple's assets, while Mr. McCourt received 93%. The motion filed recently claims that after the sale of the team, less any relevant debts, Mr. McCourt's assets turned out to be worth $1.7 billion, more than 10 times the amount Ms. McCourt received in the settlement.

Although the process can become costly and time consuming, California law does provide an avenue of relief for parties who wish to set aside a divorce settlement. Under Code of Civil Procedure Section 473, or Family Law Code Section 2122, an ex-spouse may seek to set aside the settlement on grounds such as fraud or mistake, among others.

As part of her motion to set aside the divorce settlement, Ms. McCourt sought to uncover testimony from a confidential mediation proceeding between the Dodgers, Frank McCourt and various league officials. According to another article, the U.S. Bankruptcy judge who oversaw the team's bankruptcy case refused to allow Ms. McCourt access to the information revealed during the mediation sessions. In the judge's opinion, the confidential mediation was "an essential ingredient in the success" of resolving the Dodgers' bankruptcy case.

It should be clear that the best course of action is to be fully aware -- in advance of the settlement discussions -- of all of the marital property and the respective worth of each item. Ms. McCourt admitted to being surprised at herself for making such a "huge mistake" as to the value of the marital assets, namely, the baseball team. An experienced, local divorce attorney can assist you in the thorough identification and valuation of all marital property, and should conduct an exhaustive investigation of your and your spouse's marital finances.

Continue reading "Former LA Dodgers' Owner Back in Court as Ex-Wife Petitions to Set Aside Divorce Settlement" »

Going through a divorce has been described as one of the most difficult times in a person's life. In order to lessen the stress and expense, divorcing couples in San Diego may request that the court order a settlement conference with the intention of resolving any outstanding matters in dispute. By doing so, the parties may be able to avoid taking their case to trial. Under California Law, the court also has the authority to order one or more mandatory conferences on its own motion, if doing so would serve to move the case along more efficiently. Only an experienced San Diego Family Law attorney can help you to navigate a process steeped in local rules and procedures.

In what may not be such a big surprise, Kris Humphries and Kim Kardashian are encountering another little hurdle in their very public divorce proceeding. According to a recent news article, Mr. Humphries failed to show up at a recent mandatory settlement hearing with a Superior Court judge in Los Angeles. It has been reported that the judge was not happy about Humphries' absence at the conference and scheduled another hearing to determine whether he should be penalized for not appearing. One reporter said the judge believed Humphries was "mocking" the entire court system by failing to appear. In addition to that hearing, the court ordered a new date for the settlement discussions in the hopes that this time Humphries will attend. The trial is still scheduled for May 6.

The Superior Court in San Diego provides a great deal of information on its website for parties who are pursuing a settlement conference. At this hearing, a judge -- or perhaps a volunteer attorney -- helps the parties by reviewing the case and evaluating its strengths and weaknesses. The ultimate purpose is to encourage the parties to negotiate a settlement of the dispute. At this point, the judge (or volunteer attorney) would not have the authority to make any decisions or orders in the case. Often, a mandatory settlement conference is held close to the parties' trial date, giving them one last opportunity to resolve their differences before spending the time and money to endure a trial.

Before the parties attend the settlement conference, they are expected to exchange a "good faith" settlement demand and offer. The attorneys representing the parties must be fully familiar with the case and have complete authority to negotiate and settle the matter.

The Humphries/Kardashian case is interesting because he wants the marriage annulled while she is seeking a traditional divorce, despite the fact that they were married for only 72 days. Humphries has alleged that the marriage was based on fraud, claiming that Kardashian only married him because of her reality show, "Keeping up With The Kardashians".

While the Humphries/Kardashian divorce proceeding has been so extensively reported on, with paparazzi and reporters cramming the courthouse, many of the issues they are facing occur in a great deal of divorce cases. A divorce proceeding and settlement conference can be a relatively smooth process with the help of a dedicated and experienced attorney

Continue reading "Kris Humphries Fails to Show Up at Court Settlement Conference with Kim Kardashian" »

California is a "community property" state. This means that in the eyes of the law, a marriage makes two people one legal "community." In effect, when couples marry in San Diego, the wealth (and debts) they accumulate become community property, which entitles each spouse to one-half of the total amount. In the event of a divorce, community property and debts are typically divided equally. It is a widely accepted principle throughout the country; in some states it is referred to as "marital property."

A recent Reuters article describes the looming divorce between Harold Hamm, chief executive of Continental Resources, described as America's fastest growing oil company, and his estranged wife, Sue Ann Hamm, who has held "key posts" at the company over the years. The article focuses a great deal on the eventual division of marital property and how that will affect Harold Hamm's current controlling stake in Continental Resources, worth approximately $11.2 billion. It is unclear whether the couple had previously signed a pre-nup agreement and without one, the divorce settlement could split up Harold Hamm's 68% ownership of the company.

In this case, the company experienced a massive financial growth that took place during the course of the couple's marriage. According to the article, the stock share price increased virtually 500 percent during the five years following the initial public offering. The increase in the value of an asset during a marriage is typically deemed part of the marital property. And while this marriage falls under the laws of Oklahoma, many of the same legal principles apply as in California. In Oklahoma, just like in California, wealth that accrues during the marriage by the efforts of either spouse would usually be subject to equal distribution between the couple.

The court is expected to take a close look at what each spouse contributed to the increase in the business' financial worth. An interesting factor here is that Sue Ann Hamm was also working at the company during the marriage. In situations like these, when the issue of company control comes up in a divorce proceeding, it is reported that a spouse will likely get paid the value of the shares to which he or she is entitled.

Separate property, not subject to division between divorcing spouses, is anything that one owns before the marriage. For example, inheritances and gifts to one spouse even during the marriage are separate property. Further, rents, profits, or other money earned from one's separate property, and items one purchases with separate property are also deemed separate property.

For clarification, property is anything that can be bought or sold, such as a home, cars, clothing, or furniture. Property also includes other items that have measurable value, such as a business (as in the case here), bank accounts and cash, pension and 401(k) plans, stocks, security deposits on an apartment, life insurance with cash value, or a patent.

Determining what is marital or community property versus separate property can be complicated and typically has its roots in established local laws. Divorcing spouses are encouraged to contact an experienced Family Law attorney who practices in the San Diego area.

Continue reading "Under Community Property Principles, Impending Divorce Could Threaten Chief Executive's Control of Billion Dollar Oil Company" »

Fortunately for San Diego residents, California has one of the strictest laws on gun rights with respect to orders of protection. This is welcoming news to people, mostly women, who have been the victims of domestic violence. According to a New York Times article, some states do not require gun owners to relinquish their firearms, despite the issuance of an order of protection. Advocates cite constitutionally protected rights to bear arms, even in the face of a domestic violence court order. If you are involved in a domestic violence situation, it is imperative that you contact a local, experienced family law attorney to help you protect your safety and your rights.

California domestic violence laws prohibit the use of physical force or threats to traumatize household members. The laws also take into account that victims of domestic violence can include anyone with whom the alleged perpetrator shares a relationship. This may include dates, fiancées, roommates, children, current and former spouses, and biological parents of a child. Statistics show that, more often than not, when a woman dies in a domestic violence encounter, it is by the use of a gun. Advocates for victim's rights argue that the need to protect a woman's life should trump the right to bear arms.

Pursuant to California law, judges are mandated to order the surrender of firearms in virtually every domestic violence order. There is evidence that laws of this kind are making an impact: according to a 2010 study, there has been a 19 percent reduction in intimate partner homicides. In California, anyone who is served with a temporary restraining order has just 24 hours to hand over any weapons to law enforcement or they may sell the items to a licensed gun dealer.

Although these efforts are commendable, enforcement still remains an issue. In response to these concerns, the state set up a pilot program in 2006 to increase enforcement in San Mateo and Butte Counties. In 2010, when the state experienced fiscal problems, the program's funding was taken away. But San Mateo pursued other means of financing because, as far as they were concerned, their program was saving lives.

According to the head of the major crimes unit in San Mateo County, they have not had a firearm-related domestic violence homicide in the past three years. Just last year alone, they received 324 firearms by virtue of surrender or seizure from 81 people out of more than 800 protective orders. Under the program, each day a detective reviews a handful of protective orders and will follow up on the ones that make some reference to guns by going out and serving restraining orders and attempting to collect the firearms at that moment.

Threats and the use of firearms are not the only forms of domestic violence. Other examples of the infliction of a "corporal injury" on another may be accomplished through striking or hitting, exerting force or violence, cruel or inhumane punishment, physical, emotional, or sexual abuse, communicating criminal threats of harm, and neglect or endangerment of health or safety.

Anyone who is the victim of domestic violence should contact the appropriate authorities and seek the assistance of an experienced attorney to help you protect your safety and your rights.

Continue reading "California Law Requires The Surrender of Firearms for Virtually All Domestic Violence Court Orders" »

Just last month, an appeals court in New York sided with a wife who had been on the losing end of a prenuptial agreement -- and essentially threw it out. While the laws in New York do not govern marriages that take place San Diego, the unexpected decision is sending shockwaves through the Family Law community at large. Divorce attorneys throughout the country are talking about the decision, and many believe that a solidly drafted prenup will still hold up in court, despite the surprising decision. If you are contemplating marriage and believe a prenup is the right agreement for your situation, it is imperative, now more than ever, that you consult an experienced, local attorney to draft the agreement.

According to a Wall Street Journal article, four days before their wedding, Peter Petrakis asked his soon-to-be wife, Elizabeth Cioffi, to sign a prenuptial agreement. He gave her an ultimatum - if she didn't sign the document, he would call off the wedding that was already paid for by Elizabeth's father. She agreed to sign, but only after Peter promised to tear up the agreement once they had children. He also promised to put her name on the deed to the house. These last two provisions were not included in the prenup.

After having two sons and one daughter, Elizabeth claimed that Peter reneged on his end of the bargain. Under the prenup, Elizabeth is entitled to $25,000 a year. She argued in court that Peter fraudulently induced her to sign the agreement just days before their wedding. The court agreed, even though Peter's promise was not part of the prenup. It is reported that Peter will appeal the decision to the highest court in the state.

With the prenup decision under her belt, Elizabeth plans to initiate divorce proceedings and will seek half of her husband's assets, estimated at $20 million. Some divorce attorneys have speculated that this decision could be quoted in every case going forward. Others are not sure whether the ruling will establish precedent or if it will be considered a singular decision, applicable only to the facts in this case.

California law requires parties to wait seven days from the day they first see the prenup before signing the document. And as we discussed in an earlier blog post, two important rules governing prenups dictate that the agreement must be in writing and must be fair. "Fair" means that the parties are expected to disclose all relevant financial information, a party must not coerce the other party to sign, and both parties must fully understand what they are signing. As we have seen from the decision in New York, the court agreed that the prenup was not fairly executed, as Elizabeth relied on her husband's verbal promises to tear up the agreement after they had children.

In order to avoid, or at least minimize, unexpected arguments concerning the validity of a prenup, parties are strongly encouraged to contact a local, experienced family law attorney for guidance through this complicated process.

Continue reading "Appellate Court Voids Prenup on Basis of Fraud" »

It is no secret that Demi Moore and Ashton Kutcher separated more than a year ago. The news spread through the tabloids in no time. But it took until this past December for one of the parties to file for divorce. According to a Huffington Post article, Kutcher filed first and Moore just recently responded by filing her own papers. The intriguing, and perhaps surprising part of this story is that Demi Moore is seeking spousal support from Kutcher. When a couple decides to end their marriage, often one of the parties is entitled to spousal support. If you or someone you know is contemplating divorce, it is imperative that you seek the advice of an experienced San Diego family law attorney, as early in the proceedings as possible, to identify and help protect your rights.

The article reports that Moore, who is 50-years-old, is asking Kutcher for spousal support and, to pay her attorney's fees, despite that she is worth (financially) more than he is. Some news sources have speculated that Moore was hurt by an affair Kutcher was thought to be having with a 23-year-old woman right before their separation. Reports also suggest that Moore is upset about Kutcher's publicly known relationship with Mila Kunis, an actress who starred in "That 70's Show" years ago, along with Kutcher.

From a financial standpoint, the request for spousal support seems to be stemming from bad feelings rather than a need to get by. According to the article, when Moore divorced Bruce Willis, she received $90 million. Currently, she is reported to be worth $150 million, compared to Kutcher's reported worth of $140 million. The decision on the amount, if any, of spousal support Demi Moore is entitled to will be determined by the court.

Under California law, when parties are divorcing, the court may order one spouse to pay the other a specified amount of money for support each month. A judge will look at what each spouse is able to earn to keep their standard of living as close to what they had during the marriage. In order to do this, the court will consider a variety of factors: (1) any marketable skills of the spouse receiving the support; (2) the current job market for those skills; (3) the expense and time it will take for the spouse who receives the support to obtain the training or education to get a job or to develop marketable skills or; (4) the extent that the earning capacity of the spouse who receives the support was adversely affected by unemployment during the marriage due to domestic responsibilities.

When one considers the above factors, it will be interesting to see what a court will order in terms of spousal support for Demi Moore. She seems to have earning potential and to be worth a great deal of money. For divorcing spouses who are not famous actors, the situation can be quite different. In order to ensure that you are treated fairly when it comes to spousal support, it is important to have an attorney who you can trust to protect your rights.

Continue reading "Demi Moore is Seeking Spousal Support in Divorce From Ashton Kutcher" »

Raymond and Roberta Melissa were married on August 8, 1985. He was 41 and she was 32. He owned a Newport Beach home, a jaguar and had a net worth of over $2 million. She rented an apartment and worked as a nurse. As a condition to getting married, Raymond required Roberta to sign a prenuptial agreement that was drafted by a neighbor's attorney-son, Craig Wilford. Roberta did not hire her own attorney to review the document, even though Wilford told her she could. The parties signed the agreement in 1985.

The issue contested in this case pertains a clause that relieves both parties of the responsibility to provide spousal support in the event of a divorce or legal separation. This part of the prenuptial agreement specifically and explicitly recognized that California law (at the time of the document's execution) prohibited the future waiver of spousal support. The agreement even cited the case, In re Marriage of Higgason, as standing for that current state of the law. However, the agreement further provided that the law regarding waiver of spousal support was in "a state of flux" and because of that, they agreed to mutually waive such rights.

The parties subsequently had a son who has autism and suffers from Fragile-X syndrome. Back in 1997, Roberta stopped working full-time. In the fall of 2009, the parties separated and then Roberta filed a petition for divorce shortly thereafter. Roberta continued to care for their son who is now 24-years-old, and works as a part-time janitor, earning $9 per hour. Roberta is unemployed.

The issue before the trial court was whether the prenuptial agreement was valid. The court's main two concerns were (1) whether it was required to apply the law in effect in 1985 when the agreement was executed; and (2) if so, whether the waiver of spousal support clause was void as against public policy. The court reviewed the Higgason case, relevant statutes and the later decision in In re Marriage of Pendleton & Fireman, and ultimately decided that it was required to apply the law at the time of execution. In so doing, the court held that it was "very clear" that spousal support waivers were void as against public policy in 1985. The court noted that relevant statutory amendments, as well as the decision in the Pendleton case, failed to overrule the Higgason case. The court entered a partial judgment holding the spousal support waiver invalid. Raymond appealed.

The court of appeals affirmed the decision. After reviewing the evolution of spousal support waivers, and the reasons for holding such provisions as against public policy (namely the preservation of marriage and its connection to society's welfare), the court pointed out that things have changed over time. In Higgason, the court held the waiver of support to be against public policy because it sought to change the wife's statutory obligation to support her husband. A later case, In re Marriage of Dawley, added to this notion by holding that public policy renders an agreement unenforceable when it promotes or encourages dissolution of the marriage.

The status of the law in 1985 was that any written waiver of the statutory duty to mutually support each other was void as against public policy. The court of appeals refused to accept the language in the parties' agreement as circumventing the law in 1985. Despite the enactment of the Uniform Premarital Agreement Act in 1986 (which failed to specifically address waivers of spousal support at the time), and the later decision in Pendleton that acknowledged the shift in public policy regarding such waivers, the court concluded that it was required to apply the law as it existed in 1985.

As a side note, in response to the decision in Pendleton, in 2002, the Legislature amended the statute requiring spouses to be represented by counsel before waiving spousal support in a prenuptial agreement, among other things.

Continue reading "California Appellate Court Ruled Waiver of Spousal Support in Prenuptial Agreement Violated Public Policy at Time of Execution" »

The U.S. House of Representatives passed the Violence Against Women Act (VAWA) on February 28, 2013, ending months of wrangling over various expanded terms included in the reauthorization of the law passed by the Senate. First enacted in 1994, VAWA provides federal funding to support investigation and prosecution of violent crimes against women, including domestic violence, and by allowing civil claims by victims of violent crimes. The reauthorized version, which will now go to the president for his signature, includes expanded protections for Native American, immigrant, and LGBT populations.

Domestic violence is a tragic and unnecessary occurrence in divorce. A simple search on the web of words like "divorce" will quickly lead to news stories of domestic violence incidents, some fatal. While domestic violence can affect anyone, the common perception is of men or husbands as the perpetrators. We condemn all domestic violence, and we support efforts at prevention and support of victims.

Then-Senator Joseph Biden drafted the original VAWA bill. It passed both houses of Congress with bipartisan support, and was signed into law by President Clinton on September 13, 1994. Congress has reauthorized it twice before this year, in 2000 and 2005. The White House claimed earlier this year that domestic violence rates decreased by sixty-seven percent between 1993 and 2010, and that more victims are willing to report assaults. VAWA created the Office on Violence Against Women (OVW) in the Department of Justice, which assists communities in creating policies and programs to combat "domestic violence, dating violence, sexual assault, and stalking." It also administers grant programs that support local governments, nonprofit and community organizations, and schools that are developing programs to assist victims and improve law enforcement.

Continue reading "U.S. Congress Passes Renewal, Expansion of Violence Against Women Act" »

When married couples and domestic partners in California seek a formal end to their relationship, the most common procedure is divorce, legally described as a dissolution of marriage or domestic partnership. California law allows alternatives to jumping head-first into a divorce. In relatively rare instances, couples may be able to annul their marriage, which wipes the slate clean in a legal sense. Couples can legally separate, either to make gradual changes to their finances, or to conduct a "trial separation" before divorce. Some couples choose to remain legally separated but never divorce, while other reconcile after a period of separation.

Grounds for Divorce or Legal Separation

Divorce and legal separation follow the same procedural rules. A spouse seeking a divorce or legal separation must petition a court, and must first state grounds for the divorce or legal separation. California is a "no fault" state, meaning that a spouse does not need to show specific wrongdoing by the other spouse in order to obtain a divorce or legal separation. The two grounds for divorce in California are "irreconcilable differences" and "incurable insanity." Irreconcilable differences, defined as reasons identified by the court that show that the marriage should not be continued, is by far the more common ground cited in divorces and legal separations. Incurable insanity requires medical or psychiatric evidence showing that the spouse was insane at the time the other spouse filed for divorce or legal separation, and continued to be insane up to the present.

Continue reading "Nullify, Dissolve, or Legally Separate? Understanding California's Divorce and Annulment Laws" »

A group of prospective adoptive parents from around the United States, including California, learned that they may be able to adopt the children they have grown to know and love after multiple years of waiting. The government of Kyrgyzstan in central Asia announced that it has amended its Family Code to allow international adoptions, after blocking the American families several times. International adoption has been a popular procedure among Americans in recent years. California law also provides several methods for adopting within the state or the U.S.

Kyrgyzstan suspended all international adoptions in 2008 due to multiple allegations of fraud in its social services programs. At that time, American families were waiting for final approval to adopt sixty-five Kyrgyz children. Those families, now known as the "Kyrgyz 65," have continued to wait for more than five years. During that time, Kyrgyzstan experienced a revolution in 2010 and a civil war between the country's Kyrgyz majority and Uzbek minority groups. A few of the Americans gave up during that time, and a few of the children were adopted domestically.

The Kyrgyz government lifted the ban on international adoptions in 2011, allowing some of the adoptions to go through. It reinstated a ban on most of the remaining adoptions in progress in 2012, pending further corruption investigations. Many international adoptions rely on the Hague Adoption Convention, which sets international standards for adoptions between countries, including safeguards of children's welfare and protections against fraud, corruption, and abuse. The U.S. signed the Hague Convention in 1994, shortly after its creation, and it gained the full force of law here in April 2008. Kyrgyzstan has not signed the Hague Convention, but many of its reforms since freezing international adoptions are purportedly intended to bring the country's system in line with the Convention. As of February 26, 2013, the country has lifted the ban.

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Actress and model Liberty Ross filed for divorce from her husband, director Rupert Sanders, in late January 2013 in Los Angeles. The couple was in the news last summer after the story broke of an "affair" between Sanders and Kristen Stewart, who was the lead actress in his first feature film. Neither spouse has made a public statement, so the role of the affair in the divorce is only speculation.

Ross reportedly filed a divorce petition in Los Angeles County Superior Court on January 25, 2013. She and Sanders have been married for nearly ten years, and have two children, ages eight and six. Both Ross and Sanders are British, and they moved to Los Angeles for his film career. Ross has had a successful career as a model, and has also acted in several films. She had a role in Sanders' first feature film, Snow White and the Huntsman. Ross pleaded irreconcilable differences in her divorce petition. She is seeking custody of the two children and spousal support. Sanders is reportedly asking for joint custody and shared attorney's fees.

Actress Kristen Stewart played the title role in Snow White. Sanders cast Ross in the role of Snow White's mother. A story appeared in July 2012, around the time of the film's theatrical release, that Sanders and Stewart had a "massive makeout session." Descriptions of the incident range from an "affair" to a "hook-up" or "fling," depending on who is describing it. By most accounts, it was a single incident as opposed to a lengthy relationship. Both Sanders and Stewart issued public apologies. A lengthy series of deconstructions of the "affair," as well as media examinations of Sanders' marriage to Ross and Stewart's relationship to then-boyfriend Robert Pattinson, ensued for much of the rest of the summer.

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