September 12, 2011

California Divorce Report: When Is A Gift Not A Gift?

Justia-photo-113 diamond ring.jpegAs a San Diego Certified Family Law Specialist Lawyer, continuing education is a part of the work of my office. Since my office only works in the field of Family Law, the research of new cases and statutes is greatly limited whereas a general practice attorney has a duty of continuing education in a variety of fields of law. One issue in family law that seems to never go away is the Husband requesting the engagement ring returned to him, from the Wife, pursuant to the divorce proceeding. The Husband may claim that the ring is very valuable, or that it is community property, or that the Wife secured it by fraud, etc.

ABC News reports of a man, Mr. Mekalian (James), who sued his former fiancee, Ms. Grazioli (Nichole) for the return of the engagement ring and a car or monetary damages to replace the value of both items. I've researched James' pleadings and you may see the Complaint here. His case is based on alleged fraud, and other. He specifically cites Civil Code Section 1590 which allows the donor (giver of the engagement ring in contemplation of marriage) to require the done to return the ring or the value of the ring if the marriage does not occur.

James accuses Nichole of acting in a fraudulent manner. Nichole is not commenting on the law suit. Presumably she may state that she had many marriage opportunities and that when she received the ring she terminated all other relationships and that she acted in good faith during this engagement. 1590 does require the judge or jury to consider all circumstances of the case and that the judge or jury find that which is just under the circumstances of the particular case. James apparently thinks that Nichole is a "gold digger" however the judge or jury may not agree. Possible James should seek a woman for marriage who has a job, and an income, and doesn't need James' money as in the video below of a five year old girl who charming millions on the Internet.

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September 7, 2011

How Does Child Custody and Child Support Go Hand In Hand?

Justia-photo-111 hand in hand.jpegYou have heard that California divorce courts make child custody decisions based on the Best Interest Of The Child. Therefore, if mom is primarily available to raise a child and she's doing a good job, while dad is hard at work making a good income, then, while unfair to some, it's easy to see that the court will order primary physical custody of the child to mom. Further, the court would order dad to pay a significant amount of child support. However, what if mom does something that causes mom to lose much of her custody time to dad? Would the court still order dad to pay a significant amount of child support to mom?

Justia-photo-112 jon cryer.jpegAs a San Diego Certified Family Law Specialist attorney, much of my time is spent in reading new cases and following changes in family law and child custody law. In researching, I came across an appellate court decision at the same time pop celebrity news was circulating the story of Jon Cryer's failed attempt to substantially lower his child support. This celebrity divorce story combines all of the elements of interesting news and legitimate legal education as to California child custody and support law. Actor Jon Cryer divorced Sarah Trigger in 2004. Reportedly, after a change of the custody order where Sarah only has a four (4) percent time share with the child, Jon motioned the court to terminate or greatly reduce his child support order. His motion failed; he appealed and lost. Why?

When the divorce judgment was entered in 2006, Sarah had a 65% time share of the child and Jon (actor on the popular Two and a Half Men TV show) was ordered to pay $10,000 per month in child support. Within a few years after the divorce, the court intervened and removed the child from Sarah pursuant to a report (and evidence presented) regarding neglect. Jon requested that his child support order be lowered to zero as Sarah, for all practical purposes, no longer was raising the child. The court reduced Sarah's child support from $10,000 per month to $8,000 per month even though her custody time had been reduced from 65% to 4%. Jon appealed however was he overlooking the factors of the child's "best interest" and his overall income available for support?

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August 29, 2011

California Child Custody Primer

Justia-photo-110 custody.jpegCornell School of Law recently published an overview as to child custody law and this reminded me that there are many people searching the internet for basic information as opposed to advanced information. As a San Diego Certified Family Law Specialist lawyer I search for blog topics that appeal to my continuing education interest; however, this article reminded me that there is a need for basic child custody information. So, this blog starts with the reference to the Cornell SOL article and this is an excellent place to start for a child custody primer.

The U.S. Census Bureau publishes reports on a variety of child custody and support topics. Child care arrangements can be found here, up to the year 2006. The U.S. Census Bureau has more articles as to child support statistics. Statistical reports lend themselves better to numbers than to "arrangements" so this is understandable. Much of what the U.S. Census Bureau publishes pertains to the underpayment or nonpayment of child support.

Wikipedia contains a section on parents who don't pay their court ordered child support. This section immediately cites statistics from the U.S. Census Bureau. Back to child custody--the specific issues are enormous: Move away custody orders; Legal Custody orders (does the child get the medical operation or not? Which school will the child attend?); Joint Physical Custody or Sole Custody; or Right of First Refusal.

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August 24, 2011

San Diego Divorce Analysis: How to Navigate the Family Court System

Justia-photo-109 people lined up.jpegAs a San Diego Certified Family Law Specialist attorney I am involved in the family court system every work day. Change is a part of life and tremendous changes are now occurring in the San Diego divorce court. It is the job of my office to recognize the trends in family law and to work with the changes in the system to assist our clients. Journalist and TV personality Greta Van Susteren posted an article on 8/20/11 as to the California economy (mismanaged and disastrous) and used the California divorce court system to support her conclusions.

Greta's divorce court example was taken from a Wall Street Journal news report written by journalist David Ferry and published on August 20, 2011. He described the efforts of a California family going through a divorce and seeking to use the free services offered at the court house. The Husband and Wife lined up at 9 a.m. and by 4:00 p.m., when the free clinic stopped their services, the couple had still not been seen or helped by a court facilitator. These two articles are not blaming the courts, the attorney, facilitators or judges. They both use this example of the near bankrupt status of the California economy and charge those who are in charge of the economy with negligence to a degree that there are millions of victims impacted by the reduction in government services.

In recent years the California divorce system used a quasi fast track policy to push family law cases through the court in 12 months. Today, with cut backs to court personnel, loss of judges, fewer clerks, it is projected that it may take two years to get a divorce case to trial. It may take months to get into court to hear an initial child custody motion. Months--what a disaster. San Diego Family Court judges each have case loads of 4,000 and more. An extremely difficult situation. A family law "mission impossible". My office is turning more and more to private judging as a way to assist our clients.

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August 23, 2011

San Diego Divorce Evidence: Burden of Proof

Justia-photo-108 missing money.jpegA commonly asked question in California is "how much does a California divorce cost"? Many times in answering this question one must consider "who has the burden of proof"? Wikipedia defines legal burden of proof through different examples and Latin phrases and also states that the person who does not have the burden of proof is assumed, by law, to have the winning side of the case. In other words, the person who does not have the burden of proof does not have to say or do anything in court unless the other party meets his or her burden of proof. These rules applies to property division and other family law issues.

As a San Diego Certified Family Law Specialist lawyer, my research came across a case that addresses the question of burden of proof; and that case is Marriage of Margulis. You may read the case decision here. Inspired by the facts of the Margulis case, consider this example in order to see the role of burden of proof in a San Diego family court trial: Husband and Wife were married for 10 years. At the date of separation Husband disclosed that he had stock and financial accounts, under his name, with a value of $900,000. For many reasons, the case does not go to trial for two more years. At trial Husband claim that the $900,000 is now down to $150,000.

He says that $750,000 is gone by virtue of the downturn in the market, and money he gave to Wife for support as well as paying off marital debts; but Husband fails to bring documents to court to prove all of this. Wife's attorney at trial simply shows the evidence of the $900,000 in stock and financial accounts as they existed at the date of separation and states that Wife requests that Husband pay her $450,000. The attorney cites the presumption that funds acquired during the marriage are presumed to be community property. The attorney shows that Husband was the spouse managing these accounts and argues that the Husband has failed to show any evidence accounting for the loss of these funds. (Divorce evidence takes many forms. See video below.)


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August 15, 2011

San Diego Attorney with Family Law Connection Arrested

Justia-photo-107 surrogacy.jpegThe shocking news did not result in a direct hit as to San Diego divorce or child custody; however it was too close for comfort and it needs to be discussed. Journalist Bonny Russell of examiner.com provides the horrific details in her news report. This news story is discussed here even though it involves surrogacy law which is a remote area of family law. "Surrogacy" is described by Wikipedia and it involves a woman surrogate giving birth of a child for a contracting couple. The surrogate might even have the embryo of the adopting mom placed in the surrogate's uterus.

The story that Ms. Russell breaks is that of a surrogacy attorney who reportedly went too far and broke the law. San Diego attorney Theresa Erickson, operating out of a Poway office, represented, according to the report, that she specialized in surrogacy law, involving egg donation and international clients. However the very expensive arrangements were reportedly fraudulent and violated law. According to the news, attorney Erickson pled guilty last week to charges related to fraud and faces sentencing in October 2011 which could bring a fine of $250,000 or five years in prison. Another defendant in this case reportedly described herself as a member of the American Bar Association Family Law panel.

If you research, you will find a photo of attorney Erickson; however it is not licensed for reuse so it is not included here. You will also find a book on Amazon which was reportedly authored by the attorney. I researched the State Bar of California website and found attorney Erickson still listed. Her listing states that she is involved in "Family Law". As a San Diego Certified Family Law Specialist attorney I picked up on this story and it leads to the topic of how can the public have some assurance that a divorce attorney is a solid choice.

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August 8, 2011

What Is The cost Of A California Divorce?

Justia-photo-106 mccourts.jpegIn a recent Los Angeles Times article journalist and sports writer Bill Shaikin discloses that Jamie McCourt might petition the divorce court to ask for the sale of the LA Dodgers baseball team. If you have not been following this case, the McCourts, Jamie and Frank, are involved in what might be the most expensive divorce in California history. They own the Los Angeles Dodgers baseball team as well as numerous properties in California. This blog has posted several articles regarding this case. We correctly predicted that Jamie would be successful in her motion for spousal support and we predicted that Jamie would be successful in her motion to set aside the pre marital agreement.

As a San Diego Certified Family Law Specialist attorney it is my field to follow legal trends in divorce law and family law in general. In recent months reports have described this case as financially destructive. The Australian just reported that this case could cost $35 million in legal fees. My office recently represented a spouse in a high income case. This couple had successfully sold businesses for millions and in one case for over a hundred million dollars. The case quickly was analyzed and successfully resolved. One of the spouses stated that one should never become emotional about business or financial issues.

So, where did this all go wrong for the McCourts? Both Frank and Jamie McCourt have expert, top rated, legal teams. I especially like the way that they have associated attorneys into the case to pull legal talent into their side of the case. Association of counsel is a practice that I use in some of my cases. However a quick scan of news articles* on this case show that the case is continuing to generate pre trial motions rather than to wrap this case up with a trial, or better, end this case with a successful mediation or negotiation. (*LA Times reports that Frank may request the court to lower Jamie's spousal support order; and, myfoxLA.com reports that the McCourts are heading for a mini trial as to the characterization of marital property.)

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August 4, 2011

California Divorce Report: Child Support News

Justia-photo-105 child support.jpegCBS 8, San Diego, reports a story of a congressman who reportedly owes over $100,000 in unpaid child support. Those opposed to the politics of the congressman are responding to this news by stating that his career is not effectively over. That he cannot go out into the public and campaign or speak as to financial matters when he cannot legally and properly handle his own financial matters. The congressman reports that the news stories are politically motivated and that individuals are attacking him to make him less effective as they disagree with his political views.

As a San Diego Certified Family Law Specialist attorney, my office handles cases involving the two family law issues that go hand in hand, namely child custody and child support. The child support laws in California provide that there are many factors that will determine the amount of a child support order. One such factor is the amount of child custody time that is awarded to the child support paying parent. In other words a parent who has 50% child custody will pay less child support than a parent who has 20% child custody.

I further researched the child support delinquency problem and found a web page that claims that it has the father's point of view. Whether or not this is true, it quoted government sources that provided interesting statistics as to this problem. In a study from many years ago, $10 billion per year in child support in not paid. Likely the unpaid child support is much higher now than at the time of this study. The article goes on to state that government is not very effective in collecting unpaid child support. At this point I turned to the National Coalition for Child Support Options. The NCCSO is an organization that describes itself as a coalition of people from all around the country who are devoted to address the "national epidemic" of unpaid child support.

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August 1, 2011

California Divorce News: Schwarzenegger Spousal Support Strategy

Justia-photo-103 Arnold Maria.jpegJournalist Megan Johnson of the Boston Herald reports that Arnold Schwarzenegger filed an amended divorce petition on or about July 25, 2011 under which places the issue of his Wife's spousal support before the California divorce court. Previously, his petition stated that Maria Shriver should be denied any right to spousal support. There can be no question that this was a significant change as every news reporting agency picked up this story. As a San Diego Certified Family Law Specialist attorney I want to raise the question of why Arnold Schwarzenegger changed his pleadings.

With a La Jolla divorce office, we handle spousal support issues in ordinary cases as well as high income cases. As to why Arnold Schwarzenegger would change his petition lets first consider whether he initially committed a mistake in the typing of his divorce petition. Divorce litigants, especially self represented litigants, commonly make mistakes in their divorce pleadings. My office took over a case last week from a self represented litigant (formerly known as a "pro per" litigant) and found a significant mistake on the petition that would have resulted in a significant waiver of legal rights. However, it is unlikely that Arnold Schwarzenegger's high priced and highly specialized divorce attorney made a mistake.

So next we turn to the reason of strategy (or, political correctness) as the explanation. Do you remember just a few weeks ago when Arnold Schwarzenegger's Wife, Maria Shriver, was found walking on the Santa Monica beach by the paparazzi? And similarly, when Sandra Bullock was found by the paparazzi walking alone in the mountains? Walking alone in an area of great natural beauty signifies humility and one reflecting on his/her life and the eternal lessons to be learned in going forward. It shows great inner strength and morality; even a spiritual side to the person. The opposite of this would be a celebrity who surrounds oneself in gaudy selfish displays such as riding in a chauffeured limousine to a ridiculously expensive bar or night club while in the midst of a divorce. These cases do get publicity as seen by the video below.

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July 11, 2011

California High Income and Asset Divorce

Justia-photo-102 mansion.jpegDespite the economy, which has particularly hurt California, there are many married couples who enjoy a high income and/or are wealthy with respect to the value of their marital estate. Frequently, when these couples divorce they keep their emotions in check and work intelligently to preserve their income and assets for their mutual enjoyment after divorce. On July 8, 2011, the Huffington Post reported that Arnold Schwarzenegger and Maria Shriver are working productively in reaching a settlement in their case. This, if true, is significant as Maria has significant reason to become emotional and to strike back in anger based on the reports of her Husband's extra marital activities which led to their separation and divorce.

With a La Jolla divorce office, my office frequently works with couples who have a high income (more than one million dollars per year) or a high asset case (marital estate worth tens of millions). We appreciate the Schwarzenegger-Shriver story as it confirms our practices in these cases; for example, our recommendation to keep the case private to work cooperatively in accounting for income and assets; and to work in the private judging system so that no one sees your case in a public courthouse. As a San Diego Certified Family Law Specialist attorney I must keep informed as to what forensic experts are out there and what skills they have to bring to assist in the resolution of a high income/asset case.

The issues in these cases involve all of the same issues involved in any family law case; however especially issues involving property division, community property laws and laws involving reimbursement of separate property contributions to community property. Spousal support rights in high income cases. The use of forensic witnesses to assist determining the income available for support. Even custody is affected in a high income case due to a nuance in the law in support of a child living in similar circumstances in the homes of both parents.

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July 5, 2011

San Diego Child Custody Evaluation News

Justia-photo-101 psychologist.jpegAs a San Diego Certified Family Law Specialist attorney, my family law office frequently receives questions as to child custody evaluations. What are custody evaluations? How are they conducted? Is a custody evaluation the same as a 730 child custody evaluation? A "730" evaluation comes from the reference to the California Evidence Code, Section 730 which you can see here. There are times in family law cases where an expert is needed to evaluate the facts either for one party or for the court.

Since my office extensively handles child custody cases, I have been involved in child custody evaluations for decades. I want to work with an evaluator who is fair, impartial, open minded and will bring to the case specialized knowledge that will help to explain what is going on in a particular case, and what parenting schedule is in the best interest of a child. In my first decade of my family law practice I worked with many psychologists who qualified in the San Diego Superior Court as expert child custody evaluators. One of these evaluators was Stephen Doyne, Ph.D. This psychologist quickly became a favorite by both the family law attorneys and the San Diego Superior Court judges.

However, do not underestimate how emotional child custody evaluations can become. In one such evaluation, one parent of a child who was the subject of a custody evaluation, in which Dr. Doyne was involved, reportedly took great offense of Dr. Doyne's custody findings. To make a long and involved story short, an attack was launched on Dr. Doyne's credentials which are a necessary part in becoming qualified as an expert witness before the court. This attack went through the court system for years threatening to destroy a career and to undermine many child custody evaluations and court orders. In a June 30, 2011 press release from the San Francisco Chronicle (which you can view here) the news has just been released that this "false credentials" lawsuit has been dismissed.

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June 23, 2011

Right to a Lawyer in a California Divorce?

Justia-photo-100 jail.jpegIt is well known that there is no right to counsel in civil matters. "Right to counsel" means that if a party to the case cannot afford an attorney must the state provide that person with an attorney. There is right to counsel in criminal cases. The reasoning is that your life and - or liberty might be lost in a criminal case. However, what if you are in a child custody case and your parenting rights might be lost? What if you try to protect your children from an abusive parent and by doing so you keep the children away from the parent. When the abusive parent files a contempt of court case against you do you then have the right to counsel?

As a San Diego Certified Family Law Specialist attorney I have filed contempt citations in family law cases. Here is a brief description as to when a contempt citation may be filed: There must be a valid court order. The citee (person accused of violating the order) knew of the order, and willfully violated the order and he/she had the ability to comply with the order. If all of these items are proved to the court, then the citee may be found to be in contempt and is subject to monetary fines as well as jail time. Caution: you can go to jail if found in contempt by virtue of violating a court order. (In video below an attorney describes contempt under Florida law.)

The ABA Journal reports of the US Supreme Court case of Turner v. Rogers where a father was ordered to pay child support in the amount of $51.73 per week. You can see the article here, and the Supreme Court opinion here. The father reportedly failed to pay as ordered; was found in contempt and he was sentenced to twelve (12) months in jail. The father represented himself. The question to the high court was whether the father had a right to counsel in a contempt case which carried the possibility of a sentence to jail if convicted. In a 5-4 opinion the Supreme Court stated that there is no right to counsel in a civil case (such as this family law case held in family court).

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June 14, 2011

Child Custody and Domestic Violence Explored

Justia-photo-99 GPS.jpegIn a well researched and written article in examiner.com, writer Bonnie Russell's focus is the San Diego Mayoral race; however her article raises relevant issues regarding the Family Law Court, District Attorney's Office, domestic violence cases, new technology to protect victims and a growing number of family members and children killed while public servants reportedly fail to take family violence seriously. This is a significant accusation and one needs to read the entire article with all of the links to appreciate the expressed point of view.

With a La Jolla divorce law office I know that I am operating at a distance, along with my clientele, from the reality of family law and domestic violence from the view at street level. As a San Diego Certified Family Law Specialist attorney my cases involve high income support issues, business and income valuations, custody and move away custody (including International move away custody) cases. Ms. Russell's article raises the question of whether law enforcement treats an allegation of violence differently if the perpetrator and victim are in a family law child custody case. Does our government take family crime less seriously than other types of crime? However, every family law office, including mine, has encountered cases involving threats and actions of alarming family violence.

Mr. Russell links her article to a web page showing domestic violence statistics and another page detailing the murder of children in domestic violence matters. The article expresses opinions as to some specific public officials that are not my opinions. However the focus of her article is that there is new technology that may protect victims of domestic violence; namely a GPs devise that warns the victim when the perpetrator has violated the restraining order by coming dangerously close to the victim. The video below explains how this device may work.

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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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