January 2011 Archives

January 27, 2011

Mom's San Diego Move Away Motion Denied

Justia-photo-84 Coachella Valley.jpegYou can find the unpublished appellate decision of In Re Marriage of McCown here. "Unpublished" means that this case cannot be cited in court as any legal authority; however it is always a good exercise to read and analyze appellate court opinions to understand how certain child custody decisions are reached. As a San Diego Certified Family Law Specialist my office handles many child custody move away cases. These cases are also known as child custody relocation cases. Specifically, these cases involve a custodial parent's decision to move away, or relocate to another area, with the minor child or children. If the other parent opposes the relocation, a motion is filed in the family law court to permit the move and the court rules on whether the custodial parent may move the children.

In the unpublished McCown case, the mom argued that she was the custodial parent. Dad had visitation on the first, third and fifth weekends of every month. The family law trial was located in the Coachella Valley (Riverside County). Mom's new Husband was a pilot in the military and he was stationed at Miramar in San Diego (a military base located down the road, east of my La Jolla Family Law Office). The dad objected to the move stating that the child had always lived in the Coachella Valley where the child was very involved with the relatives on the Father's side of the family. The court appointed mediator (similar to the Family Court Services mediator of the San Diego Family Court) opined that the child was doing well under the parenting order but did not make a recommendation as to the move away request. The court found that it was in the best interest of the child to remain in Coachella Valley.

According to this decision the mom would have to remain living in Coachella Valley rather than to move to San Diego County where she would reside with her new Husband. Mom appealed the court's decision to the Fourth District, Division Two, Court of Appeals.

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January 25, 2011

California Divorce Assistance Requested From Churches

Justia-photo-83 church.jpgI almost passed over an Internet news story about people requesting help to prevent divorce. Something caught my eye just as I was turning away from the headline. The story was that people were asking churches in California to help prevent divorce. I opened up the story and read it and was impressed with the fact that people are seeking help in keeping their marriages and family together. I compared this story with my recent observations that many Californians are in the family court without seeking out solutions to their family law problem.

As a San Diego Certified Family Law Specialist attorney for over thirty years I've seen that marriages and relationships in general, are increasingly disposable. It almost appears that some people are trying out marriage and family as you would take a new car home from the dealership to drive it for a day in order to determine whether you wanted to buy the car. Or, the buyer who returns the item the next day with "buyer's remorse". Increasingly, at my Family Law office in La Jolla, California, we are receiving calls from a spouse who wants to end his or her one year marriage. Most of these calls involve a child or children that were born during this "marriage".

I researched on the Internet to see whether churches in San Diego were offering marriage classes (in response of this articles' report that churches are being asked to make marriages more stable). I found that there are many, many resources out there and more on that below.

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January 18, 2011

California Divorce and Bifurcation

Justia-photo-82 Grammers.jpgReporter Jill Serjeant reports in this published article that Kelsey Grammer's request to be single by the end of this month is opposed. This article raises the question as to how can you get a divorce when you are only in the middle of your divorce proceeding.

The legal procedure is called Bifurcation. As a San Diego Certified Family Law Specialist (Board of Legal Specialization, State Bar of California), I have filed bifurcation motions and opposed bifurcation motions. I think that Camille Grammer has a chance to block Kelsey's attempt to be single by the end of January. But let's go back to the basics:

"Bifurcation" means to divide. In California Family Law it is a court procedure in a family law case whereby the judge separates out one issue from all of the rest and the court generally approves a bifurcation request for two typical reasons. First, that a party to the divorce is getting remarried. And, second, that there is one issue in the case that, if separated from the remainder of the case, and resolved, would assist in the resolution of the remainder of the issues. All bifurcation requests require that the divorce case has satisfied the six month waiting period that is mandated by California law.

In Mr. Grammer's case, Mr. Grammer filed a motion for bifurcation requesting that the court separate out the issue of terminating the marriage so that he will be single and free to marry his woman friend, Kayte Walsh. The Grammers were married for thirteen years however the divorce was filed and served more than six months ago and Kelsey argues that he is entitled under California law to the bifurcation of the marital status. Nearly 100 times out of 100 such requests would be granted in a California divorce court. However Camille Grammer has filed a response in opposition to this motion. I've read the response (you can see it here), and it appears to me that she has done an excellent job in raising significant reasons why the bifurcation should not be granted at this time. Why do I say this?

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January 13, 2011

California Divorce Report: Discovery of Income and Assets

Justia-photo-81 tax return.jpegDivorces in the State of California consist of many different types: Short Term Marriages (marriages of less than ten years); Long Term Marriages (marriages of ten years or more); high income marriages; marriages with a significant community property estate; as well as marriages with or without children; and this is only a short list to describe how individual marital circumstances can be.

The Huffington Post recently published an article written by journalist and tax attorney Julian Block describing the use of a powerful tool to look for income and assets--the tax return. As a San Diego Certified Family Law Specialist I work with tax returns and, in more involved cases, forensic witnesses, expert witnesses, CPAs and private investigators. It has been my experience that there are spouses who don't want any such help by virtue of a firm belief that both spouses have been completely honest about the disclosure of all marital income and property. However, the reasons that have led a spouse to a divorce often involve beliefs of betrayal and dishonesty. The investigation for hidden assets and income may or may not be successful. Dishonest people are either good or bad at dishonesty.

"Discovery" in a legal proceeding is a significantly large and complex legal topic describing how a spouse may demand and access information, data and documents pertaining to the case. Simply put, this process involves Form Interrogatories, Special Interrogatories, Inspection Demands, Depositions and Subpoenas. Mr. Block's article informs that the simple tax return may be the best starting point for the discovery effort. Schedule B contains information as to mutual funds, dividends, interests and financial institutions. Schedule D contains information as to the sale of certain types of assets and this information may lead to additional information as to income or hidden assets.

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January 8, 2011

California Divorce Report: Sean Penn "Lost Half"

Justia-photo-80 penn and wright.jpgThe purpose of a prenuptial (premarital, ante nuptial) agreement is to change the nature of the divorce laws of the state of California. California is a community property state. Generally this means that one-half of all income and property earned or acquired in a marriage belongs equally to each spouse. So, when the spouses divorce, each gets one-half of the property.

As a San Diego Certified Family Law Specialist attorney with a family law office in La Jolla, I am frequently asked to prepare a premarital agreement. Typically, a person is to marry in the next two to four months and they do not want the marriage to operate under the community property system. They may also want to include provisions as to spousal support. This takes us back to the recent news article regarding actor Sean Penn.

According to the article, (Mail Online) Mr. Penn told a reporter, "'I had just got taken for one half of everything I had in the divorce..." Mr. Penn was referring to his 2010 divorce from actor Robin Wright. Another article states that the community property estate was worth $123 million and that Sean "got taken" for $61 million. Possibly if your ex-wife just left the marriage with $61 million of money that you had earned during the marriage, you too would be bitter. However, this was so foreseeable; so predictable; so preventable.

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