March 2010 Archives

March 31, 2010

Divorce Cost in The Millions in Southern California Case

On March 29, 2010 Justia-photo-2a money.jpegTMZ reported that Jamie McCourt, Wife of the Dodgers baseball team, had already spent $800,000 in divorce lawyer fees and needed $9 million for her divorce attorney's fees. In this era of "no-fault" divorce in the State of California, many are astounded by these divorce, legal fee numbers.

The report states that Jamie McCourt is the "fired" CEO of the baseball team. There are many cases in San Diego and La Jolla where Husbands and Wives are co-owners in business entities. When these couples go through a divorce they not only have possible child custody, child support, and spousal support issues but they may also have complex business issues.

Which spouse will take over control of the business? When Jamie McCourt was reportedly fired as the team's CEO was she locked out of the business? Did she lose access to important documents and records as to business activities, sales, operating expenses and other necessary information that will now be needed for the divorce case?

Jamie McCourt is requesting a significant amount of spousal support according to TMZ and other news agencies. This is pursuant to California law that seeks to maintain the Marital Standard of Living for spouses going through a divorce. (The San Diego Superior Court uses a form that helps in the proving of the 4320 factors. Under California law she has a specified burden of proof in order to proceed with the spousal support issue. If she fails in her burden of proof she will only receive a fraction of the spousal support amount that she has requested. It is also possible that her spousal support request would be denied.

If she is locked out of the business and away from the records, her attorneys, in order to satisfy their burden of proof will diligently need to formally request documents and records that are relevant to proving the Husband's business income. The discovery laws of the state of California provide for the issuance of Inspection Demands, Form Interrogatories, Special Interrogatories, and subpoenas of business records. Thousand and likely hundreds of thousands of documents will be demanded, logged in, indexed, scrutinized, and analyzed by attorneys and accountants.

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March 23, 2010

Sandra Bullock Story Involves Child Custody Issue In San Diego

Justia-photo-3 san diego.jpegSan Diego divorce attorneys are now feeling the aftershock of the developing story as to Sandra and her husband Jesse James and his alleged mistress Michelle McGee. US Magazine reports that Ms. McGee has a child who resides in San Diego California. Reportedly, Ms. McGee is going through a custody fight involving this five year old child. Although according to the New York Post magazine, Ms. McGee refers to Mr. James as a "nice guy" she is now going to court in San Diego as the father of the child, Mr. Modica, is concerned over the child's safety if the mother, Ms. McGee, is allowed to visit.

Reportedly, Mr. Modica filed his papers last Friday asking for temporary legal and physical custody of the child stating that if Ms. McGee sees the child she will bring "curiosity seekers" with her and this would not be in the child's best interest. A search of the case file on the San Diego Superior Court web site failed to confirm a case under the reported names.

Under California divorce law, attorneys look primarily to the "best interest of the child". For example, Family Code Section 3011 specifically lists factors under the Best Interest of Child standard. Note that one of the factors simply lists the "health, safety and welfare" of the child. Possibly this is the factor to which the father of the news article refers in making his custody application. Note the argument, under this statute, that dozens, or more, curiosity seekers, paparazzi, and the like, would interfere with the welfare or safety of a child?

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March 22, 2010

California Husband Says Millionaire Wife doesn't Need Spousal Support

Justia-photo-2 money.jpegThe Los Angeles Times reports that Mr. McCourt, the owner of the Dodgers baseball team, states that his Wife should not be awarded temporary spousal support by the divorce court by virtue of her ownership of $11 million dollars in liquid assets. The Wife, Jamie McCourt, argues back that she is entitled to $1 million dollars per month in spousal support by virtue her Husband's significant monthly income. The spousal support issue is scheduled to be argued in court on March 29, 2010. (This case also involves a Pre-Marital Agreement. This article will only discuss the spousal support issue.) The income numbers and the property values are higher than the average San Diego divorce, even for spouses who live and work in La Jolla California. However we'll see below that the McCourt numbers may contain more zeros than the average person's income however the issue evaluation is the same.

The Wife argues that she needs $988,845 per month to meet her current living expenses. The Husband's accountant says that her living expenses are only $237,167. Further, the Husband declares that his liquid assets are worth less than $500,000 while his Wife's liquid assets are worth $11 million.

This seems confusing however the issues are simple - there are just several zeros added to the average income numbers that Husbands and Wives show on their Income and Expense Declarations in their divorce cases.

Family Code Section 4320 mandates that "In ordering spousal support under this part, the court shall consider all of the following circumstances:" Notice that the word "shall" is used. This means that the court must consider the following 4320 factors--

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March 19, 2010

Sandra Bullock Reportedly Plans To Divorce Her Husband

A celebrity watching publication reports of a well known California couple that may end up in divorce court. The report is that the Husband had an affair of eleven (11) months while he was with his Wife. The Wife reportedly, during this time, helping her Husband in his separate court case at the same time she was working very hard for the betterment of the family and the marriage. Ms. Bullock is reported in this article as being "devastated". These facts are well known in divorce cases in San Diego and all over the state. There are two sides to every story and the complete truth as to this story may never fully be known. However we do know that despite the efforts of the law of the state of California to make divorce a "no fault" ordeal, fault, wrongdoing, actions which are extremely hurtful are still the norm.

The Substance Abuse and Mental Health Services Administration (SAMHSA) report that 20% to 25% of children have trouble with their parent's divorce.

The University of Arizona has studied whether there is a significant connection between children who drop out of school, have substance abuse problems, have behavioral problems and depression is divorce in the child's family.

In 2007 the federal government funded a federal grant, provided by the U.S. Department of Justice entitled Sexual Assault During and After Separation/Divorce: An Exploratory Study to study whether there was a significant connection between separation and divorce and violence perpetrated on women.

Under current law in the State of California, the prevailing ground for dissolution of marriage is "irreconcilable differences". This simply means that one spouse has found that a difference has arisen that cannot be resolved. That spouse's conclusion cannot be rebutted by any evidence to the contrary. Therefore, it takes two to get married and one to divorce. There is nothing to prove. Only one spouse needs to verify that he/she cannot continue with the marriage. However, this easy way to establish the grounds for dissolution of marriage should not be confused with the significant real life adult (and child) concerns surrounding this decision.

Below is a video as to whether Ms. Bullock will seek a divorce.


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March 16, 2010

California Couple Divorces But Fails To Include House

Carrie and her Husband completed their California divorce however their failure to resolve the house issue. One year after the California divorce the former spouses were still connected by a shared mortgage on their home. Their settlement agreement failed to state how they were going to dispose of (what was likely) their biggest asset--their home. Carrie stated that had she and her Husband been better informed they would have resolved the issue of the home, likely selling the home and have realized a substantial profit. Then the market went down and they continued to be connected with an undisposed asset and a joint mortgage.

In San Diego as well as the rest of California, every asset should be disposed of in the divorce. Follow this four step process when it comes to your assets in a California divorce:

Identify: One of the first tasks to be performed in a divorce is to discover all assets. Use Discovery Methods if necessary. California requires both spouses to file a Declaration of Disclosure in a divorce and this will help in the discovery/identification process.

Characterize: Once all assets are known, determine the character of the asset. In other words, is the asset an item of community property or separate property or a combination of the two.

Value: Determine the Fair Market Value of the asses. Often this will involve appraisals (for example, with a house or a business) however in the case of bank accounts or 401k accounts simply start by finding the balance of the account as of the date of separation.

Disposition: in Carrie's case, she did not resolve the disposition of the family residence. In the case of a home the choices are:

1. Wife buys out Husband.
2. Husband buys out Wife.
3. Sell the home.

By selling the home the spouses no longer have a mortgage. If either the Husband or the Wife buys out the other the question is whether the buying spouse will refinance the mortgage into the buyer's name. in Carrie's case, she and her Husband continued to share the joint mortgage and this led to continuing problems one year after their divorce.

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March 14, 2010

California Parents Use The Internet In Child Custody Cases

Attorneys in Victorville, California report that they are using social programs on the Internet, such as MySpace, to find information to help them in child custody cases in court. Reportedly, parents go to social networking websites to find photos of the mother or father of a child showing that the parent is doing something adverse to the best interest of the child. For example, using alcohol or drugs in the presence of the child, according to photos posted on the websites.

In family law, in the State of California, evidence is testimony given under penalty of perjury, but also may include documentary and photographic exhibits. Evidence may include any document or exhibit that the trier of fact finds is relevant to the best interest of the child.

Conduct of Parents: California cases report or incidents involving parental conduct that one parent has tried to use against the other parent in a child custody case. A review of cases show that a parent's past conduct in these areas has been used in child custody
cases:

Adultery
Cohabitation
Domestic violence
Homosexuality
Past Acts/Crimes
Religion
Unclean hands
Unconventional lifestyle
Visitation Frustration
Working mothers

The case of Evans v. Evans (2008) 162 Cal.App.4th 1157, 76 Cal.Rptr.3d 859 involved a case where a former Husband filed a motion against his former Wife who was publishing defamatory information about Husband on the internet. This case did not involve a child custody issue however it raises the possibility that a parent may have harmful information about him or her on the Internet that was not posted by that parent.