June 2013 Archives

June 27, 2013

"Putative Spouse's" State of Mind As To Validity of the Marriage Is Applicable Under California Statute

1164097_couple_in_love_3.jpgWhile not a common occurrence, people do get married with the false impression that the marriage is valid and recognizable under state law. This can occur when one of the parties has been married before and did not officially and legally dissolve the union. As one can imagine, such a situation can present all sorts of problems down the road. Divorcing spouses in San Diego are encouraged to consult with an experienced family law attorney who can handle the process with confidence and ease.

One huge problem that can occur with a marriage that is void from the very start is when the surviving spouse seeks damages in a wrongful death lawsuit. In a very recent case, the California Supreme Court was presented with the issue of whether a "putative spouse's" good faith belief that she was married to the decedent at the time of his death, is to be reviewed from an objective point of view or rather, a purely subjective one. That is, does it matter what the surviving spouse personally believed as to the validity of her marriage, or are the courts expected to look at what an ordinary objective person would believe.

Under California law, a wrongful death action may be brought by a decedent's putative spouse, which is defined as "the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid."

In this case, the couple first met in 1999 while the decedent was married -- but separated. He filed for dissolution of his marriage in 2001, and started living with plaintiff at that time. In 2003, the couple filled out a license and certificate of marriage. They marked a "0" in decedent's number of pervious marriages. Plaintiff signed an affidavit verifying the accuracy of the information, despite her awareness of his previous marriage. The marriage license was issued and they married on September 27, 2003. But the decedent was still married to his (original) wife at that time.

Three years later, the decedent died in a construction site accident. Plaintiff brought a wrongful death action against defendant-company asserting that she was his putative spouse. Defendant raised an affirmative defense challenging plaintiff's standing to bring the action based on her status as putative spouse, claiming that she did not have the required "good faith belief" that her marriage was valid.

The trial court ruled granted defendant's motion for summary judgment. But the court of appeal reversed, finding that plaintiff's subjective state of mind (if the court found it to be credible) could support a finding of good faith belief, establishing putative status. The Supreme Court affirmed, holding that the statute contemplates a subjective standard that focuses on the putative spouse's state of mind to determine whether or not she had a genuine belief in the validity of the marriage. In rendering this decision, the Court pointed out that the trial court erred in applying a "reasonable person test" - requiring plaintiff's belief to be objectively reasonable.

Divorce can be difficult and complicated. An experienced family law attorney can simplify the process enabling both parties to get on with their lives as quickly and painlessly as possible.

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June 20, 2013

Media Mogul Rupert Murdoch Pursuing a Quiet and Quick Divorce

1221952_to_sign_a_contract_3.jpgDivorcing spouses in San Diego would probably prefer a quick divorce to one that endures unnecessarily. But sometimes the strong emotions and potential bitterness between the spouses tends to prolong an already arduous process. There are ways to proceed that can help minimize or at least attempt to contain the proceedings so that both parties can move on with their lives as soon as possible. Of course, one of the ideal ways to work toward that goal is to consult with and hire and experienced family law attorney who understands the local laws and divorce court procedures.

According to news reports, Rupert Murdoch is attempting to dissolve his 14-year marriage to Wendi Deng Murdoch as quickly as possible. Experts speculate that Murdoch's choice of lawyer, and a slew of pre- and post-nuptial agreements, all point to a quiet divorce, with minimal drama. The attorney Murdoch hired has a reputation for settling divorces in a quiet manner, and much the same has been said of his wife's selection of attorney, who is also known for her reputation in keeping matters out of the public eye.

One method of anticipating some of the difficulties divorcing parties may face is to settle certain matters before the marriage even begins by signing a prenuptial agreement. In many cases, the person with the greater accumulation of wealth before the marriage is often the party who suggests signing a prenuptial agreement. Both parties, however, are expected to thoroughly review the document, with the help of counsel, to ensure satisfaction of the terms before signing. Not surprisingly, the Murdochs signed a pre-nuptial agreement in 1999. Reports indicate that Wendi Murdoch was represented by her current divorce counsel during the execution of that agreement. The couple also signed two post-nuptial agreements in 2002 and 2004.

In California, the Uniform Premarital Agreement Act governs prenups and sets forth some ground rules. For one, the law requires parties to wait seven days from the day they first see the prenup before signing the document. Additionally, a prenup cannot settle issues relating to child support or child custody, and it cannot mandate obligations of either spouse in non-financial matters. The two most important rules governing prenups are that a prenup must be in writing and it must be fair. In order to help ensure the fairness of the document, both spouses are encouraged to hire their own attorneys, who will represent each person's separate interests.

The Murdochs of course had their own attorneys at the time of signing their agreement, which, in all likelihood, will be upheld and enforced. It has been suggested that financial matters will all be settled according to those documents. The courts in New York, where the divorce was filed in this case, are known to view prenups in a favorable light.

Many people view prenuptial agreements as only necessary for wealthy couples. But that is not necessarily the case. Anyone with any amount of assets, including people with established careers and people remarrying, should give serious consideration to a prenup. Parties who are seeking information on the benefits of a prenuptial agreement are encouraged to consult with an experienced local family law attorney.

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June 13, 2013

Finding Hidden Assets Can Be a Big Part of Divorce Proceedings

1149867_army_of_dollars_1.jpgIt would be terrific if all divorcing couples in San Diego and throughout California were open and honest about their marital finances, namely, the assets to be allocated between the spouses. Because California is a "community property" state, all marital property, debts and assets alike, should be divided equally. But estranged spouses have been known to conceal or otherwise channel marital funds into unknown repositories, in order to avoid sharing the accrued marriage wealth. If you are contemplating divorce, it is imperative that you contact a local attorney with a great deal of experience assisting clients in securing the optimal divorce settlement.

A recent Bloomberg article recounts the many ways that business owners seek to hide money, in an effort to save on paying taxes. If and when this business owner -- and his or her spouse -- decide to divorce, the owner often continues this fraud to try to "shortchange" the estranged spouse when it comes time to divide the assets. In effect, the hidden money reduces the value of the business, which is, in all likelihood, part of the marital property to be split evenly.

Spouses who are not involved in business matters are, nonetheless, typically in a unique position to know the true value of a business. After all, even though a certain number is reported as the business owner's official salary, their lifestyle and other expenses may reveal that much more money is earned than is reported. One reporter indicated that many professionals find ways to "hide" income by either understating revenue or inflating their business expenses. In divorce proceedings, many businesses coincidentally see their profits drop drastically right around the time that the married couple decides to separate. It is suggested that judges have seen this occur time and time again.

There are many other ways that a spouse may attempt to hide property during a divorce: 1) delaying raises, stock options or bonuses until after a divorce is finalized; 2) waiting until after a divorce is finalized to sign lucrative financial, business or other contracts; 3) paying a friend, relative or business partner for services not rendered; 4) skimming cash from a business or personal account; 5) hiding valuable assets, such as artwork, antiques, or hobby collections; and 6) hiding investments or cash.

Despite a spouse/business owner's attempts to hide assets from an estranged spouse, there will usually be warning signs, such as a rich lifestyle, including expensive dinners and costly social engagements.

Identification of property is critical in a divorce case. Determining what is considered a marital asset, and identifying all assets to be considered, can have a dramatic impact on your case. It is also important to be aware that one spouse may attempt to empty a joint bank account or run up huge cash advances or credit card debt in preparation for a divorce.

Unfortunately, divorce has the potential to bring out the worst in people. The best course of action is to have an experienced attorney on your side to help vigorously protect your share of the marital assets, in an effort to achieve a fair settlement.

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June 6, 2013

In a California Divorce, Who Gets Custody of the Family Pet?

1421011_kitten_and_terrier.jpgIn San Diego, and in many cities throughout the country, pets are considered property, items to be allocated between the spouses much the same way other items of value are divided. Because California is a community property state, the couples' marital assets will be divided according to a 50-50 split. In most cases, the family pet would fall within that category. But, according to an article posted on the Animal Legal Defense Fund website, courts are beginning to intermittently acknowledge that a family's relationship with their pet may not adequately be categorized as "property" to be neatly assigned at the time of divorce. For assistance deciphering the local laws and climate of the courts in your jurisdiction concerning the handling of pets in a custody case, it is important to contact a local family law attorney to help clarify your potential rights.

The Humane Society of the United States reports that in 2011, there were approximately 78.2 million owned dogs and 86.4 million owned cats in the country. The data also indicates that 39 percent of U.S. households own a dog, while 33 percent own a cat. Further, we are spending great sums of money on the health and well-being of our pets: on average, dog owners spent $248 each year on veterinary visits, while cat owners spent $219 annually for routine vet visits.

As more and more people view their pets as part of the family, and in many cases, feel a strong emotional bond with their pets, it is no surprise that the courts have also begun to treat the custody of pets differently. As the law stands right now in California, courts would still consider a family pet to be community property, divisible at divorce. But because pets are becoming an even greater part of our lives, some courts have treated dogs like children, pondering what is in the best interest of the pets, in deciding who gets custody of them. According to one article, some courts have even awarded shared custody, visitation and support payments to the owners of the pets.

Most judges are extremely busy, with crowded dockets and serious matters to consider. Divorcing parties may be advised by their attorneys to settle the matter of pet custody ahead of time, so that their wishes can be finalized in the court order. If the parties cannot reach a mutually acceptable resolution, and a judge agrees to hear and decide the pet custody dispute, there are several factors which may be relevant: 1) whether one of the spouses owned the pet separately before getting married or whether they acquired the pet together, during the marriage; 2) who has been the primary caretaker of the pet over the years, that is, which party brought the pet to the vet, walked and fed the pet and spent the most time with the pet; 3) which spouse is the pet more attached to; and 4) if there are also children involved, which parent is going to receive primary physical custody of the children, who are most likely also attached to the family pet.

We seem to be on the cusp of some potential changes in the area of pet custody law - due to the evolving nature of our relationship with our pets and the willingness on behalf of many parties to fight for custody. But for the immediate time being, pets are considered property, to be divided between the spouses.

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