May 2011 Archives

May 31, 2011

Divorce California Style

Thumbnail image for Justia-photo-98 organization.jpegOn May 30, 2011, Monday, it is a beautiful day in La Jolla California where my family law office is located. Same as the weather slightly north from San Diego where Maria Shriver is putting together her petition for dissolution of marriage, according to reports, and finalizing her divorce plans against Husband A. Schwarzenegger. As this blog predicted a few days ago, Rogelio Baena, former Husband to Schwarzenegger's alleged sex partner, Mildred Baena, is expressing his anger directed at Schwarzenegger as reported in several news stories and we expect that he is also using this Memorial Day for his law suit planning. As a San Diego Certified Family Law Specialist lawyer I'm reviewing the latest news reports as to this developing story as the California divorce implications are significant.

At this point everyone needs a refresher course on the participants to this looming legal battle: Schwarzenegger--Husband to Maria Shriver. Maria Shriver, wife to Schwarzenegger in a California long term marriage (over twenty years). Mildred Baena is the alleged mother of Schwarzenegger's child and a former household employee of Schwarzenegger-Shriver. And, Rogelio Baena, described above, the former Husband to Mildred who reportedly states that he thought the child (of Mildred and Schwarzenegger) was his.

At this time it is anticipated that the family law attorneys and others, for Mildred, Maria and Rogelio are designing petitions and complaints directed at Schwarzenegger. Under California community property laws, 50% of Schwarzenegger's reported $400 million estate belongs to Maria (except for separate property belonging to Schwarzenegger and/or monies protected by a prenuptial agreement if there is one). Mildred will seek child support (which would be gigantic under California child support guideline laws) plus she may file a "Marvin" case against Schwarzenegger whereby she would allege that Schwarzenegger is obligated to provide support or other funds to her pursuant to contract law or trust law legal theories. Rogelio will claim, if he files, that he was the victim of Schwarzenegger's reported extramarital activities and has suffered great emotional harm.

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May 26, 2011

The Cost of a California Divorce

Justia-photo-97 Arnold and Maria.jpegThe child custody implications of the Arnold Schwarzenegger extra marital activities has been largely ignored as the news media focuses on the monetary cost of the Schwarzenegger divorce. As a San Diego Certified Family Law Specialist attorney, I've been looking for a report on the custody, child support part of this news story. The Washington Post, in an article published on 5/25/11, is the first article that I've seen that addresses this subject. Namely, that Schwarzenegger allegedly fathered a child outside of his marriage with Mildred Baena, while Mr. Baena, Mildred's ex Husband, states in shock that he thought that he (Mr. Baena) was the father.

The monetary cost of the marriage is a good angle to the story. Reportedly Schwarzenegger earned $400 million during his long term marriage to Maria Shriver. Did Maria Shriver and Schwarzenegger have a premarital contract prior to their marriage? While I haven't seen the answer to this question in any article I believe that if there is a prenuptial contract, it likely was limited to property identification instead of the more aggressive prenup types (for example, waiver of spousal support or limited payment to spouse in the event of a divorce). After all, Schwarzenegger was marrying into the Kennedy family and he might have thought that his assets were irrelevant. If this prediction is correct, Schwarzenegger is about to learn more about California divorce economics.

Back to the custody, and (to some--more importantly) the child support issue, if Ms. Baena was cohabiting with her Husband, Mr. Baena, when the child was born, and Mr. Baena was not impotent or sterile, then Mr. Baena is conclusively presumed to be the father of the child - except as provided in Family Code Section 7541. Family Code Section 7541 states the procedure for challenging paternity, by the presumed father, within the first two years of the child's life. Since this child is more than two years old, Family Code Section 7541 is not available to Mr. Baena. Has there been a judicial finding that Mr. Baena is the father of this child? That may have been done by the California Superior Court in a divorce between Mr. and Ms. Baena.

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May 16, 2011

Child Custody News: Mom Loses Custody Move Away Case

Justia-photo-96 children.jpegThis news story was reported all over the country and I found a comprehensive report of the story published in the Chicago Tribune by reporter Julie Deardorff. Briefly, a mom of two children, eleven year old daughter and 5 year old son, lived with her children in North Carolina while the father of the children moved to Illinois when he was hired by a company there. The father filed a motion in the North Carolina court seeking custody of the children, and seeking an order that the children would relocate to Illinois to live with the father. In the San Diego Superior Court this is known as a child custody move away motion or a child custody relocation motion.

As a San Diego Certified Family Law Specialist lawyer, I am very familiar with these motions. My office handles many move away custody cases; especially at this time of year in The Family Court as parents who are seeking a move-away custody order want to reestablish themselves in the new area and enroll the children in the new school prior to September. The reported reasons that the father used in this case is probably what caused this case to make the news all over the country. Reportedly, the father said that the children should be removed from their mother in North Carolina because the mother has stage four breast cancer; and, that he (recently hired) had a job whereas the mother was unemployed.

Not surprisingly, the national news exploded with this story when a North Carolina judge agreed with the father. Losing custody of your children, and having your children moved to another part of the country because you have cancer? Or that you are unemployed? However, a North Carolina attorney states that there are reasons for the change of custody other than the illness or the employment status of the mother. The point of the story to me is that every child custody case is unique. Every case has a wide range of facts and each case requires the skill, training and experience of the family law attorney to discern which facts will enhance the likelihood that the child custody motion will be granted. The mom's family posted the below video on You Tube. This blog takes no position as to the outcome of the case.

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May 9, 2011

Learning From Sandra Bullock's Divorce

Justia-photo-95 kat von d.jpegAn article was posted, May 4, 2011, on X17online.com regarding the Sandra Bullock-Jesse James divorce. The article contained an interview of Jesse James conducted by ABC News. The statements by Mr. James are interesting as they deviate from the initial statements of Mr. James, made immediately after the separation. This blog posted several articles as to the divorce and it is recalled how Mr. James expressed his sorrow regarding the separation and that he would enter rehab to address the issues raised.

As a San Diego Certified Family Law Specialist lawyer I have found that the end of a marriage is often used by both parties to reflect on whether the marriage could have been saved and what conduct was responsible for the separation. However in the article mentioned above, Mr. James stated that possibly he wanted Ms. Bullock to catch him in his extra marital activities. He also stated that he has not seen the baby, since the separation, that Ms. Bullock (and presumably Mr. James) adopted during the marriage. And, the best quote from Mr. James--that he spent six years "worrying" about what Ms. Bullock thought and wanted; and that it was now time to "worry about Jesse".

The article is interesting and compatible with what I have found: Namely, that people don't change unless they really want to change. Mr. James' statements suggested that he tried to be what Ms. Bullock wanted; however, he wasn't committed to changing. And, that he now fully embraces a lifestyle to which he identifies. He announces that he is now seeing a reality TV personality, Kat Von D, and her photo is posted with this article.

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May 2, 2011

Divorce Court Restraining Order Considerations

Justia-photo-89 police arrest.jpegAttorney Liz Mandarano wrote in the Huffington Post that the "worst thing" a woman can do, in a family law case, is to use the Domestic Violence Restraining Order protection law to falsely accuse the other party and to gain some of the substantial procedural advantages which are intended for the real victims of domestic abuse. She makes several points in support of her conclusion (as to "worst thing") and the focus on this post will be to report the argument that she makes. Nowhere does the article suggest that the protection that the Domestic Violence Restraining Order process brings to the victim is not needed in our society. Her argument is that the process allows significant abuse to those who act in bad faith.

Ms. Mandarano states that there is little accountability in making domestic violence accusations or allegations. The restraining order process is brought to a conclusion so quickly that there is no opportunity for discovery efforts to test the accuracy of the allegations prior to the final hearing. The restraining order may be used to gain an advantage in a child custody case. As a San Diego Certified Family Law Specialist attorney my office has filed and defended against Domestic Violence Restraining Order cases. "Discovery" is a term for legal procedures of issuing subpoenas, Inspection Demand, interrogatories and conducting depositions. Ms. Mandarano's point is well taken in that these procedures should be allowed prior to the final hearing on a Domestic Violence Restraining Order petition.

The article provides an excellent example regarding a restraining order brought against David Letterman by a woman who claimed that Mr. Letterman was talking in code on his show--speaking in a way that was intended to personally threaten this woman who brought the restraining order application into a New Mexico court. The court initially granted a temporary restraining order based on these difficult to believe allegations. Subsequently another judge denied the restraining order request.

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