April 2010 Archives

April 29, 2010

Tiger Woods' California Child Custody Case Catastrophe?

Justia-photo-16 sand trap.jpegApril 27, 2010 the news reported that Elin Nordegren, Wife of Tiger Woods, may soon be involved in a significant California child custody, and more specifically, California move away custody case. Here are some of the reported facts: Elin Nordegren is Swedish. During her marriage to Tiger Woods she bought a home in Sweden, reportedly worth two or three million dollars. The couple has two children--daughter Sam, age two, and son Charlie, age one. Tiger Woods is a professional golfer and plays at the highest level of professional golf which requires Tiger Woods to practice and play in numerous tournaments all over the country/world.

San Diego divorce lawyers can debate how these parents should share custody. As a California Certified Family Law Specialist handling numerous child custody cases I see a couple of child custody sand traps that I don't think Tiger Woods can pitch out of.

First, here is the standard approach: Family Code 3011 calls for an award of child custody to "both parents jointly" (although this is not mandated). Further, this section calls for both parents to have "frequent and continuing contact" with the children. These divorce attorneys would argue that the parties should have joint physical custody on a flexible schedule depending on when Tiger Woods is available. This analysis may be too superficial in this case.

Second, considering that Elin Nordegren is a stay at home mom, paid a huge sum by Tiger by way of support, she will not need to work 8 to 5 ever. She can have part time careers that are designed around the needs of her children. And when she files her move away motion to return to Sweden with the children, and prevails, she will have the children the majority of the time, to say the least.

Continue reading "Tiger Woods' California Child Custody Case Catastrophe? " »

April 27, 2010

California Domestic Violence Kardashian Claims

Justia-photo-15 dom violence.jpegAs a La Jolla divorce attorney, my perspective of this report is from the comfort of my office. Either the domestic violence occurred or not. Often, these allegations are "he said/she said". Divorce Court domestic violence allegations are significantly important to several California family law issues. According to the news report, actress Kim Kardashian claimed that she was a victim of domestic violence during her marriage to Damon Thomas. Since Kim Kardashian's divorce is reported to have occurred in 2003, this claim is apparently not connected to family law issues in court at this time. However the report of domestic violence is related to thousands of San Diego divorce cases and is used in this blog to highlight the significance of these claims.

Kim Kardashian's divorce documents alleged that she was regularly beaten or battered during their marriage. Claims of domestic violence occur in marriages all throughout the San Diego Superior Court. Not just from marriages in lower economic zones but in La Jolla divorce cases, Rancho Santa Fe divorce cases, etc.

Domestic violence is explained in the Family Code (see FC 6200)--Domestic Violence Prevention Act (or DVPA). Under the DVPA, protective orders (PO) may be issued by the Family Law Court. If warranted, a Temporary Restraining Order will be issued and a hearing will be established to determine whether a Final Restraining Order will be issued by the Court.

A documented history of domestic violence is listed in the Family Code as a factor that may be used to increase spousal support if the spousal support recipient is the domestic violence victim. Victims of domestic violence (or stalking) may result in an order regarding address confidentiality of the victim. This may result in a victim living with a child of the marriage in a location undisclosed to the other parent.

Continue reading "California Domestic Violence Kardashian Claims" »

April 24, 2010

Sandra Bullock's California Divorce Plan--Whose Plan?

Justia-photo-14 hiker.jpegApril 21, 2010 Foxnews.com reported, along with a significant number of other news agencies, that Sandra Bullock has formulated a plan for her California divorce involving Husband Jesse James. In what appeared to be an orchestrated news release--that this well known California Wife was seen hiking in the mountains without her wedding ring and therefore she must have surfaced with a divorce plan. It's unknown how the paparazzi knew she would be in the mountains.

San Diego divorce lawyers and California Certified Family Law Specialists, among others, are not surprised that Sandra Bullock, after a significant delay, is reported to have a plan and to be ready to move forward with her California divorce filing. However the whole "plan" report seems over the top. For example, if a Wife suddenly discovers that her Husband is, and has been, involved in extramarital activities with numerous other women, and she hears not only about the sordid activities but also that a significant amount of marital income was spent in these pursuits, how long does it take to formulate a plan for divorce? Was this ever in doubt?

On the other hand, while the "plan" story and stories about deliberating as to what to do, and going into seclusion to meditate, then the story as to hiking in the mountains with determination and conviction as to how to proceed, all seem hokey, they are at the same time brilliant. The stories, in my opinion, have been woven and scripted by professionals who are acting in Ms. Bullock's best interest.

Ms. Bullock's occupation, her business, is worth millions. If there is no prenuptial agreement changing the characterization of her business then some of it is community property however this is beside the point. The point is that Ms. Bullock is an entity; an owner of a multi-million dollar business. The goodwill of her business is based in part on her image. She is adored by millions of fans who are her customers.

Continue reading "Sandra Bullock's California Divorce Plan--Whose Plan?" »

April 22, 2010

San Diego Report of Child Custody Divorce Issue in Wood's Case

Justia-photo-13 airplane take off.jpegThe Examiner.com (San Diego) reports that Elin Nordegren, the wife of Tiger Woods, boarded a plane to Sweden with the party's two minor children (boys, ages 1 and 2). Reportedly, Tiger Woods did not approve or agree to this trip as the two appeared to be arguing before she left. Reportedly, Elin is interviewing divorce lawyers in both California and Florida.

The Examiner.com previously reported of the possibility of a custody fight in this case as Elin's family lives in Sweden, she has reportedly bought a home in Sweden, and has little reason to want to stay in the US if her marriage to Tiger Woods is over. Tiger is reported to be very attached to his children.

To San Diego divorce lawyers this not only appears to be the set up for a high conflict child custody case, but also a move away custody case (also known as a relocation custody case). Was the plane trip a vacation or a move away, or relocation, of the children back to Sweden? The report that this Mother and Father were arguing before the Mother boarded a plan with the children to leave the country, serves as evidence that the Father did not agree to the trip/move. Thus, the trip, if it turns out to be a move-away, was not authorized by one of the parents. This would allow the parent who is staying behind, to file a motion in court for the ordered return of the children.

Continue reading "San Diego Report of Child Custody Divorce Issue in Wood's Case" »

April 20, 2010

King's California Divorce--What Property Division After 13 Year Marriage?

Justia-photo-12 piggy bank.jpegThursday, April 15th 2010, the New York Daily News reported that Larry King is worth approximately $144 million. The marriage has been 13 years. There are two children to the marriage. There will be family law issues of child custody, child support, spousal support and property division among dozens of issues to the side of these major topic areas for the divorce court.

Numerous news reports state that Larry King failed to get a prenuptial contract from his wife Shawn Southwick. At my office we are very familiar with La Jolla divorces and Rancho Santa Fe divorces, to name a couple of affluent areas in San Diego County. Frequently a client will come to us seeking a prenuptial agreement. Some of the prenuptial agreements being written today will strip all of the influences of California divorce law from the agreement. For example, no community property; very limited or no spousal support, and other clauses that will turn a "marriage" into little more than living together.

Often, when a woman is marrying a very wealthy man in one of these affluent areas, and the man is offering a dream life in his mansion, the desire for the life style will overshadow the woman's ability to negotiate a better premarital contract. The result is a marriage that offers almost no protection of California divorce law for the woman.

In this case, if the reports are true, Ms. Southwick may have leveraged a great deal from Larry King by refusing to marry him with a prenuptial agreement. Reportedly, Mr. King received a CNN contract worth more than $50 million and money received by this contract appears to have been earned during the marriage; thus community property. Since California is a mandatory 50/50 division of community property state, Ms. Southwick negotiated wisely from the start.

If the reports of no premarital agreement are true, look for Mr. King to do all that he can do to keep the marriage together. A divorce would be too economically devastating for him.

Continue reading "King's California Divorce--What Property Division After 13 Year Marriage?" »

April 19, 2010

San Diego News Reports California King Divorce and Custody Concerns

Justia-photo-11 Larry King.jpegNBC news in San Diego reports of the divorce case initiated between Larry King and his seventh wife, Shawy Southwick. Reportedly, the welfare of the children is Larry King's major concern. These parents have two children, ages 11 and 9. Mr. King is age 76 and Ms. Southwick is 50. According to the reports, Larry King's divorce attorney requested joint custody and Ms. Southwick's divorce lawyer requested physical custody.

California Child custody attorneys will inform that "joint custody" means that the Husband and Wife share the legal custody (rights to make decisions and/or participate in the child's health, education and welfare issues) and that "physical custody" for Ms. Southwick means that the children will live with her and visit with Larry King.

Is Mr. King's age a factor? The child custody attorneys may allude to this information as Mr. King will be in his 80s as his children are going through their teens. However recent videos show that Mr. King appears to be in great health. (See this video below.)

Disabled parents have obtained joint custody from the California courts and Mr. King is very mobile. The above video was obtained on or about April 15, 2010. The child custody issue cannot be underestimated. This may be a major piece of litigation in the King divorce. The California Supreme Court ruled in the Carney Case (In re Marriage of Carney (1979) 24 Cal.3d 725, 157 Cal.Rptr. 383, 598 P.2d 36) Physical handicap not sufficient reason to deny custody to Husband. Rather than questioning his age and making assumptions as to his future health, a child custody lawyer would focus in on the needs of the children and which parent has been meeting those needs. Further, what after divorce custody schedule provides for the stability regarding the children.

Continue reading "San Diego News Reports California King Divorce and Custody Concerns" »

April 15, 2010

California Divorce Next for Mel Gibson and Oksana Grigorieva?

Justia-photo-10 divorce cake.jpegOn 4/14/2010 there were several news reports that Mel Gibson and his current wife are separating and that divorce will follow. Divorce attorneys and Certified Family Law Specialists in California are well aware that this case is full with significant consequences depending on how the issues are handled.

Reportedly, Mel Gibson has a five month old child with his current wife; they plan to raise their child together; and they are worth approximately$900 million.

How did the parties build a $900 million estate in a marriage of approximately one year? Didn't Mr. Gibson marry with a prenuptial agreement prepared by a divorce lawyer specialist? With a premarital agreement, the parties would have a $0 community property estate. Mr. Gibson's only liability to his wife would be for child support and this liability is significant enough on its own.

As to the effect of the custody sharing on the amount of child support, this is insignificant. For example, using the DissoMasterâ„¢ program (a software application used in many courtrooms to calculate child and spousal support) we come up with the following results (using a simple calculation since unique facts as to the couples tax deductions and other factors are unknown to this writer). All of the calculations are performed with the assumption that Mr. Gibson's income is $1 million per month and his wife's income is $50,000 per month:

Child support and spousal support based on Mr. Gibson having a 20% timeshare with the child:
Child support-$65,000 per month; spousal support $312,000 per month. (The spousal support will have a termination date due to the short duration of the marriage.)
Child support if the parties share the child 50/50: $49,000 per month.
You may perform calculations online using this software application.

Therefore, child support (per the assumptions above) is significant regardless of the sharing of the child according to the reports. The other issue is whether the wife will agree to share the child given Mr. Gibson's work schedule and/or other issues she could raise.

Online, you can see a video as to this story:

Continue reading "California Divorce Next for Mel Gibson and Oksana Grigorieva?" »

April 14, 2010

San Diego Story of Divorced Father Seeking to Lower Child Support

Justia-photo-9 prisoner.jpegOn 4/12/10 San Diego 6 reported that singer Boby Brown was returning regarding his motion to modify and lower the child support order. Reportedly, his child support from the divorce is $5,500 per month to the child's mother.

Additional it is reported that Mr. Brown was jailed at one point for non-payment of child support. Further that the mother claims Mr. Brown owes her $45,000 in unpaid support.

The San Diego Family Law Court would have many issues to resolve if this child support modification hearing were held in a California divorce court. The purpose of this blog is to consider some of the California family law issues raised by this story.

Child support in California is modifiable based on a change of circumstances. Assuming, as in this story, that the paying parent is the Father and the child support is paid to the child's Mother. The modification motion is usually based on the Mother's income going up; the Father's income going down; the parenting time for the child significantly changing and these are the most widely used factors used to modify a support order.

Child support in California is a mathematical formula and almost any Certified Family Law Specialist in San Diego will have the very expensive child support guideline calculating software on his/her computer. This program is important as the San Diego Family Court judges will run the support calculations in court on this same application (for example, Dissomaster).

The party requesting the modification has the burden of proof as to the changed circumstances and, here, the Father must prove these critical facts by the use of proper evidence filed and served according to the required procedural laws. Additionally, the Father

Continue reading "San Diego Story of Divorced Father Seeking to Lower Child Support" »

April 10, 2010

Divorce and Bigamy California Style (Two Related Stories)

Justia-photo-8 bigamy.jpegIn a news report out of Southern California it now appears that a write in initiative will not go before the California voters at this time. The legislative effort seeks to ban divorce. In the state the desire to ban divorce has support but evidently the support is not wide enough for the initiative to qualify. This support is said to come from many who have strong conservative values and others with firm religious beliefs. The issue has been around for a long time. The issue is discussed in parts of both the New and the Old Testament.

Would people be better persons, behave better, have higher moral values if a law passed which prevented Husband's and Wife's from divorcing each other? If divorce is banned would more spouses file for Legal Separation? Under California Law a Legal Separation may be obtained for the same reasons as a divorce; namely irreconcilable differences and incurable insanity. However, a spouse with a legal separation judgment cannot re-marry. The spouse cannot remarry because the legal separation judgment does not terminate the marital status. The spouse is still married.

Bigamy is a crime in California. Bigamy is committed when a married person marries another while the marriage is still in place. You cannot legally be married to two spouses.

The Associated Press, on April 8, 2010 reported that a minister in California has been charged with the crime of bigamy. Of course persons in California who are charged with a crime are innocent until proven guilty and we cannot assume guilt here. Nevertheless, the report states that the minister married a second wife without divorcing his first wife. The minister was separated from his wife and his separated wife has gone on record that the minister husband asked her not to file a divorce against him.

Continue reading "Divorce and Bigamy California Style (Two Related Stories)" »

April 8, 2010

Sex Tape Denial in California Divorce

Justia-photo-7 tape.jpegThe news from numerous sources has picked up on the California divorce story that Jesse James may possess a sex tape involving himself and his wife, Sandra Bullock. People all over California are asking how this question is relevant to a marriage which involving no child custody issue. Many wonder why it is relevant even if there is a child custody issue. In my community of La Jolla, I know that San Diego Certified Family Law Specialists can answer this question in different ways. Here's one explanation:

Let's assume that Sandra Bullock and Jesse James have a pre nuptial agreement which would limit or eliminate Mr. James' right to Ms. Bullock's property acquired during the marriage, her income and to spousal support. Such a pre marital agreement would be commonly drafted by San Diego divorce attorneys and signed by the couple prior to marriage. Such a document could mean that Mr. James will leave this marriage with nothing other than that which he owned coming into the marriage and his earnings/acquisitions from his work during the marriage. Without knowing how much was acquired by this California celebrity couple during the marriage, one cannot say who benefits the most from such a pre marital agreement however common sense tells us that this document could be economically devastating to Mr. James.

Further, many reports claim that Mr. James has made several sex tapes with others. It is unknown at this time whether this is true; however Ms. Bullock may believe that this is true and she may wonder if she was a party to such a tape. In the last few days she has vehemently denied that there is (or ever will be) such a tape. Is the denial too strong? As I see it, Ms. Bullock's character is worth millions to her career. Her character is of a decent, moral, upstanding and stable person and she is beloved by millions who see her as a role model. Her marriage to Jesse James does not hurt this image as all reports are that she did not know of his extracurricular activities. She was an innocent victim.

Please see the below regarding Ms. Bullock's denial of a tape:

Continue reading "Sex Tape Denial in California Divorce" »

April 5, 2010

Will The Health Care Bill Result in More Divorce

Justia-photo-6 capital.jpegOn March 30, 2010, the Huffington Post asked what affect, if any, the Health Care Legislation will have on divorce. There are many throughout San Diego California and Southern California that want to know if the Health Care Bill will make divorce easier for spouses to regain critical medical insurance coverage for high medical life risk situations.

The article focused on a California married couple who have wanted to get divorce since they separated in 2004; more than a half of a decade ago. They have not finalized their divorce, although they could have pursuant to California's divorce laws, because to do so would have left the wife uninsured due to her uninsurable health care condition. A medical doctor in California has been able to treat the wife and to provide her with a series of pacemakers which reportedly have kept her alive. The wife feared that if divorced, she would have been uninsured and without the means to continue with her costly treatments.

The problem is that traditional private health insurance policies will only to continue to protect the insured spouse, and his/her immediate family, after the divorce. This may leave the other spouse without insurance. If the other spouse has a medical condition that renders that spouse uninsurable, that spouse's pre-existing medical conditions may no longer be covered by insurance. This spouse may find that the pre-existing condition renders the spouse uninsured after divorce.

The Post reports that one of the provisions of the Health Care Bill will be to target high risk medical care patients who are uninsurable and subject to life threatening medical conditions. If this Bill causes the Department of Health and Human Services to move fast enough and effectively enough, the wife in this story may complete her divorce and seek the critical medical care that she has needed for years.

Continue reading "Will The Health Care Bill Result in More Divorce" »

April 3, 2010

California Celebrity Couple Signs Contract Regarding Custody and Support

In March 2010 the Justia-photo-5 parent child.jpegExaminer (examiner.com--San Diego) reported that Jude Law and Samantha Burke agreed to terms providing for the paternity status of their minor child, child support and Jude Law's visitation. Ms. Burke reportedly gave birth to a girl baby Sophia, on September 22, 2009. Reportedly paternity tests demonstrated that Jude Law is the father of this child. Further, that this unmarried couple, living under the Family Law jurisdiction of the California courts, agreed that Mr. Law would have visitation a couple of times a year, or more, and that he would pay $5,000 per month as and for child support.

This report, if true, raises many questions and would be found confusing by Certified Family Law divorce attorneys throughout San Diego and the rest of California. California family law provides for a mathematical child support guideline law that is mandatory unless both parents agree not to follow the guidelines. If one parent requests the guideline support calculations then these calculated child support results are mandatory.

Visitation of a couple of times per year appears to mean a parenting time of less than 5%. For example, two full weeks of parenting a child (assuming the visits are twice a year lasting for one week each visit) equals 336 hours of parenting time. Since there are 8,760 hours in a year, two weeks of visits is equal to less than 4% parenting.

Assuming that a Mother earns $60,000 per year, and the Father earns $500,000 with a 4% parenting time, and both parents are single, pursuant to these facts alone, the Father would owe the Mother nearly $15,000 per month for child support. If, in this example, the Father earns $1 million per year, the guideline support calculation provides for more than $32,000 per month in child support. Ms.Burke, are you reading this blog?

Continue reading "California Celebrity Couple Signs Contract Regarding Custody and Support" »

April 2, 2010

San Diego Divorce Lawyers Examine Their Pre Nuptial Agreement Skills

On March 26 and 27, 2010, news reports came out claiming that Jesse James, Husband of super actor Sandra Bullock, had a fourth mistress during his marriage to Sandra. According to such reports, Sandra Bullock is returning to California to seek a divorce. Although to many, the fact that Sandra Bullock would seek a divorce, even when only one mistress, a reported San Diego stripper, was never in doubt.

While the divorce laws of the State of California are based on a "no fault" system, the primary ground for dissolutionJustia-photo-4 contract.jpeg of marriage, or divorce, is that of Irreconcilable Differences. This simply means that it takes two to consent to and form a marriage but it only takes one spouse to say that the marriage is over.

The Pre Nuptial issue is this: Two people marry in California. It may not be their first marriage. One or both of the parties to the marriage has a significant income and/or significant earning potential. After the marriage one spouse works dutifully towards fulfilling the earning potential and, as frequently experienced in La Jolla, Rancho Santa Fe, Beverly Hills, and other parts of Southern California, he/she earns millions. Meanwhile, under this hypothetical example, the other spouse, not earning a significant income, spends his/her time during the marriage cheating on the earning spouse. When the earning spouse learns of this fact, a divorce is filed and, under California community property laws, one-half of the property earned by the hard working spouse belongs to the cheating spouse.

A Pre Nuptial agreement can change California law. It can alter the effects of the community property laws. In some cases, it can change the amount of spousal support ordered after a divorce from that which a California court would order. Did Sandra Bullock and Jesse James have a Pre Nuptial agreement signed prior to their marriage?

Continue reading "San Diego Divorce Lawyers Examine Their Pre Nuptial Agreement Skills" »