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, 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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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 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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April 25, 2011

Charlie Sheen Child Custody Case Explained

Justia-photo-93 Sheen.jpegAs a San Diego Certified Family Law Specialist attorney, I've had thousands of child custody and custody move away cases handled in my family law office. I've had to research the Charlie Sheen custody story from many different reports. Charlie Sheen is the father of twin boys with mother Brooke Mueller. They lived together until reportedly Charlie pulled a knife on Brooke in 2009. The parents lived separately and raised their two, young children, until 3/21/11 when Brooke filed for a restraining order claiming that Charlie had threatened her. (Bob and Max were 23 months old at the time of the March 1, Domestic Violence Restraining Order request.) Mail Online published a detailed story as to the restraining order and you can see the first page of the restraining order, and the story summary, here.

Brooke was successful in obtaining the temporary restraining order on 3/1/2011. However, Domestic Violence Restraining Orders, granted on a temporary basis, must be heard in court 21 days later and, at this second restraining order hearing, the court will decide whether to grant a permanent restraining order. Domestic Violence Restraining Orders grant orders intended to offer protection to the victim (for example, by a stay away order, an order to "kick out" the perpetrator from the family residence, an order that the perpetrator turn over all of his/her guns to law enforcement, etc. And the Domestic Violence Restraining Order may include a child custody and visitation order. The restraining order served on Charlie Sheen did contain a custody order as Charlie had to turn over the twins to Brooke's custody.

Almost immediately after the restraining order was filed, granted and served, Charlie's lawyers, according to a news report, vigorously pursued and obtained a child custody agreement between Charlie and Brooke. This maneuver is frequently overlooked by those less experienced in child custody litigation. Instead of waiting to litigate the child custody case in court (with witnesses, evidence, mediators, etc...) Charlie and Brooke reach an out of court agreement.

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April 11, 2011

Reports of Two Divorces

Justia-photo-92 Longoria.jpegRecently I had lunch with a client who is a very successful businessman who develops innovative businesses, starts them up, then sells them for a very nice profit. We talked about divorces where the Husband and the Wife battle each other to the point that their marital estate is devastated. We discussed why do people allow emotional decisions to cause economic destruction.

As a San Diego Certified Family Law Specialist attorney I've seen divorces where will quickly compromise and settle, or, in the alternative, act out of emotion and hurt themselves regarding their property and children. Typically I hear that the family law lawyers are to blame; however this is not always, or even mostly, the case.

Two news stories come to mind. One involved a very bitter, angry and devastating divorce as reported in detail by journalist Lisa Kroll for Forbes. She summarizes the story of Mr. Blixseth, who was worth 1.3 billion in 2007 then became engaged in a 2008 divorce that became a battle royal over money and businesses. This battle set off a chain reaction of bankruptcy, investigations and other problems which all had their Genesis with the divorce. Then there was another story of Eva Longoria's divorce (which was covered by this Blog), which was wrapped up in a timely fashion with little, if any, economic damage. Ms. Longoria (Desperate Housewives) filed for a divorce and claimed that her professional basketball Husband was having an affair.

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March 31, 2011

The Lauren, Brent and Kevin (?) Child Custody Case

Justia-photo-92 two fathers.jpgScott v Superior Court states at page 544 "There can be only two parents, not three." Accordingly the appellate court in Lauren W. v Brent A. (Court of Appeals California, Fourth District, Division Three) ended the game of musical chairs allowing Brent and Lauren to have a seat and told Kevin that he had to leave the party. You can read the case here. (This is an unpublished case and may not be cited as legal authority in a courtroom; however it is educational as to issues of child custody rights and standing to sue for custody or visitation pursuant to the laws of the State of California.) This is actually the end of the story. Here is how the appellate court got to this point.

Lauren gave birth to (child) and filed a petition under the UPA (Uniform Parentage Act) naming Brent as the Father. Brent responded, acknowledged that he was the child's Father (he had signed a declaration of paternity) and requested visitation. The parties agreed to visitation and a court order was entered finding Lauren was mom; Brent was dad and adopting the agreed upon visitation schedule. Shortly thereafter, Kevin filed a joinder motion (motion seeking to join the Lauren and Brent UPA case so that he could assert his parenting rights to the child. Kevin's joinder motion was granted so now the paternity, child custody, visitation case included one mom and two men claiming to be dad. A trial court issued an order finding Kevin to be the "legal father". The appellate court stepped in at this point.

As a San Diego Certified Family Law Specialist attorney, my office works exclusively in the law field known as Family Law. It is our goal to correctly analyze legal cases as to divorce, paternity, child custody, custody move away cases and other areas of family law. It is our goal to assist the trial court to reach a proper legal analysis of a case so that a proper order is entered at the trial level. This case is a good example of how a flawed analysis can lead to confusion and appeal. Next you will see how the appellate court resolved this matter.

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March 28, 2011

Badly Brain Damaged Mom Wins Visitation Rights

Justia-photo-91 disabled.jpegAbbie Dorn was excited; she was giving birth to triplets. She went into the hospital as a vibrant, alive, mother to be of triplets, and something horrible occurred. The reports vary in their clarity of the medical procedure and this post is not about the medical issues; however when Abbie left the hospital, she left behind her hopes and expectations of being the mom that she had wanted to be. She was so badly damaged that she could no longer walk or eat and it is debatable to what extent her cognitive functions were damaged.

In the reports that I read, there was no question that Abbie could not have custody and care of the children. She cannot care for herself. I saw one report mention "unfit" parent; however this term seems misapplied to Abbie. She cannot care for her children as she is badly disabled, not that she won't care for her children. Abbie's former Husband, Daniel Dorn, maintained that it was not in the best interest of the children to visit their so badly disabled mom. This issue of Abbie's visitation went to court and the court ruled in favor of Abbie's visitation. In person visitation and visitation by Skype - virtual visitation. The "story" is not adequately described in the news reports.

So here is the real story to this "child visitation" case. The following is what I think was really behind this case, and where the lawyer on Abbie's side outmaneuvered the Father's legal effort. This is really a story of grandparent visitation rights; not the visitation rights of a disabled parent. Abbie lives with, and is cared for, by her parents--the maternal grandparents of the minor children. As a San Diego Certified Family Law Specialist attorney, handling many child custody cases, I've learned that grandparents are the hidden victims in child custody battles. They want to have frequent and continuous visitation with the grandchild however, directly, many states like California, highly restrict grandparent rights.

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March 21, 2011

Child Custody, Support, Mansions

Justia-photo-90 palm and many other news agencies report that the former wife of Tiger Woods, Elin Nordegren, has purchased a mansion in Palm Beach for $12 million. Reportedly, the home is 17,000 square feet and built in 1932. You can see a photo of the mansion here. It is a part of the divorce settlement that Ms. Nordegren received which has been estimated to be in the range of $100 million to $200 million. The settlement is private and confidential however the estimates are fairly accurate as Mr. Wood's marital estate was fairly well known. This blog posted many articles as to the Woods' divorce; correctly assessing how much Ms. Nordegren would receive by way of child support, spousal support and/or property division.

As a San Diego Certified Family Law Specialist attorney my office in La Jolla (UTC area) handles many child custody cases and, related to the Woods' divorce, child custody move away cases. A move away, or child custody relocation case, is defined and connected to a significant amount of California law including the reported decisions of two California Supreme Court cases. The law defines whether a parent has the right to relocate to another geographic area with a child or children or the marriage. Further, the law defines whether the other parent has the rights to keep the child or children from relocating with the moving parent. This blog posted an article as to the Woods' divorce predicting that Ms. Nordegren would be successful in asserting her right to relocate with the children back to her home country Sweden.

Evidently, Mr. Woods and his attorney came to the same conclusion that I did as to the move away issue. The following is my educated guess as to how Mr. Woods resolved the case: He assertively moved forward with a generous monetary settlement. His wealth was identifiable so he openly offered a quick and substantial settlement to his wife with (likely) a provision as to his visitation. Reportedly, this settlement included the Palm Beach mansion which is geographically located near to Mr. Woods' residence.

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