March 21, 2011

Child Custody, Support, Mansions

Justia-photo-90 palm beach.jpegUPI.com 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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March 15, 2011

A Case of Divorce, Trial and Jail

Justia-photo-89 Hawaii Court.jpegDaryl Huff, a KITV 4 News Reporter recently published an article as to what has been called Hawaii's most famous divorce case. The divorce case involved actor Brenda Dickson and attorney Jan Weinberg. Dickson is a well known television star and Weinberg is an experienced personal injury lawyer. For additional background on Brenda Dickson I went to Wikipedia.

Reportedly, this historically long and dramatic divorce case has gone on for years with allegations of one spouse taking marital property and hiding the assets in another state or country. Further the case involved contempt of court orders issued by the judge. These types of orders are made in rare cases when a party violates a court order in such a way that the judge fines and/or jails the party who violated the court order. Reportedly, Dickson was jailed for more than two weeks; released, then, later, jailed again for more than three months. (Reportedly, she later won an appeal that cleared her from the contempt counts which had placed her in jail.)

Later in the case, the divorce went to trial and reportedly Mr. Weinberg was not present. Ms. Dickson had a very difficult time proving anything with Mr. Weinberg not present. If he were present, he could have been called to the stand for examination and cross examination. It is unknown what divorce issues Ms. Dickson needed to address through Mr. Weinberg's testimony. Possibly his income and the identity and location of assests. As a San Diego Certified Family Law Specialist attorney, it has been my experience that the absence of a party from a trial is usually not a stumbling block as evidence is offered to the court as to the identity, value of assets as well as the income of the missing party. The missing party then hurts his/her own case by not being present to offer testimony or help his/her attorney with the points raised in court.

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February 28, 2011

Report of Child Custody, Divorce and Abduction

Thumbnail image for Justia-photo-89 police arrest.jpegReporter Evangelia Ganosellis of News-Press.com reported a story of child custody, visitation and alleged child abduction which raises many family law issues that occur every time a family court issues a custody-visitation order. Reportedly, Neil and Shannon Little shared custody pursuant to a March 2010 divorce judgment. Under California family law, "joint custody" means that the parties share legal custody and physical custody rights. The order may be structured in a way that neither parent has greater rights than the other parent. Back to the story--Reportedly, Neil picked up the eleven year old son according to his parenting time, but did not return the child to the mother at the end of his parenting time. In fact, according to the report, Neil "took off" with the child, not returning the child to the mother.

Reportedly, Neil's action led to a criminal warrant which led to publicity as to the alleged crime and the child was found in February 2011, four months after the alleged abduction. As a San Diego Certified Family Law Specialist attorney my office daily works with the issues reported in this story. How does a parent go from joint custody to a criminal warrant? Should joint custody be ordered in cases where great conflict exists? What should a father, in Neil's situation do, when he believes the custody order needs further change? What should a mother, in Shannon's position, do when the father violates a custody order? Let's explore these questions as these situations come up surprisingly more frequently than one would think.

Under California law, custody orders are to be made according to the best interest of the child. In the reported story, there is no information as to whether a court ordered joint custody or whether the parents simply agreed to joint custody. In my experience, joint custody works best when two parents can effectively work together in a co-parenting arraignment. By working together, they put aside their arguments and marital issues and amicably parent when in the presence of the child. Combative parents probably should not have joint custody.

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February 21, 2011

San Diego Divorce News: Amber Alert and Child Custody

Thumbnail image for Justia-photo-88 amber alert.jpegSan Diego 6 news reported of an alleged kidnapping of a baby resulting in an Amber Alert and an ending that was safe for the child. The baby is identified as 9 month old Elijah. There is no report that the father who took the child was ever married to the mother of Elijah. There is no dispute that the man, Edgar, is in fact the father of the child. The parents live approximately 65 miles apart from each other. Reportedly, Edgar was visiting with the nine month old child, at the mother's home, when he decided to physically take the child, driving off in his car. The mother called the authorities. A state wide Amber Report went out. The father and baby were found safe at the father's home and the child was returned to the mother.

As a San Diego Certified Family Law Specialist attorney, I am very experienced in child custody cases; child custody move away or relocation cases; applications for child custody by Fathers; defenses against such applications by Mothers; child theft cases; paternity cases with child custody issues; parenting schedule development that is age appropriate for a baby, or a child, and cases involving child custody with preferences as stated by child. There are many nuances in these cases. The primary focus under California law is the "best interest of the child"; however there is no child custody case that can be oversimplified and the various factors to the case must be considered.

The ending of this story, involving nine month old Elijah, was happy. The baby was unharmed. Possibly the father, Edgar, was well intentioned and simply wanted to be with his child. However, many of these stories do not have a happy ending. Children are frequently harmed by a distressed and irrational parent. Here, the state spent a significant amount of money searching for, and executing a State wide Amber Alert for, baby Elijah. How will this visitation method of Edgar affect his parenting rights in the future? Possibly, Edgar was persuaded by "father's rights" activists that he had a right to remove the child. In reality, his actions were naïve, and may have harmed his potential rights.

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February 14, 2011

California Child Custody Move Away Request Granted

Justia-photo-86 mom and child.jpgIn a recent "Not To Be Published" (this case cannot be cited in legal Points and Authorities) appellate court decision, In re the Marriage of CELIA L. and ROBERT N. BURNS, a Father's appeal of a trial court decision, allowing the Mother to move away with the minor child, was dismissed. The purpose of this posting is to provide a brief analysis of this case to better understand why the motion was successful for the Mother and why the Father's effort to block the move away failed.

As a San Diego Certified Family Law Specialist lawyer, I have handled many child custody move away cases (also known as child custody relocation cases). With a La Jolla family law office, we see clients who are financially mobile. We see clients who have school or work opportunities in other parts of the country or the world. Also, it is common that when a marriage breaks up, the primary custody parent will want to move back home with his/her family in another state. The United States is a very mobile country. People have a desire or a need to move. It is our job to know when the Court is likely to allow the move or likely to deny that a parent may relocate with a child.

In the Burns case, the Father stated that when the mother left the marriage, she moved, with a child of the marriage, to another city, and that relocation was unlawful and should not have permitted by the trial court. The parties met in 2004 and married in 2005. The marriage was unsuccessful, almost from the start. Allegations of anger, domestic violence and irreconcilable differences led to the Mother filing for divorce in 2007. Amidst Order to Show Cause motions for custody and Domestic Violence Restraining Order filings, the Mother moved away with the child. Immediately we see that the Father made procedural mistakes at this early stage of the case. Possibly the Father was a self represented litigant at this stage as the court proceedings contain many over the top statements by the Father in connection with the custody case. Hyperbole and drama is not a good substitute for evidence.

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February 9, 2011

California Divorce Update Regarding Spousal Duties

Thumbnail image for Justia-photo-87 fiduciary.jpegA "fiduciary duty" is a duty to act in the best interest of a person to whom a duty is owed under the law. As a San Diego Certified Family Law Specialist my office has followed the developments of California Family Law regarding the definition and expanding obligations of fiduciary duties owed by a spouse to the other spouse. With a family law office located in La Jolla California, I am in a community where fiduciary duties are often associated with corporations and estate planning. However, fiduciary duty is a lawful concept and significant obligation under California Family Law.

For example, is a fiduciary duty may be violated when, during the marriage, the Husband has the Wife sign over (quitclaim) joint tenancy deeds to the Husband so that the properties are owned solely under the Husband's name? (Changing community property to Husband's separate property.) Has a Wife violated a fiduciary duty when, during the marriage, the Wife has the Husband transfer real estate under his name (owned prior to the marriage) to Husband and Wife as "joint tenants"? Does it matter that the marriage is a short term marriage as opposed to a long term marriage? Does a parent violate a fiduciary duty when the parent seeks to turn a child against the other parent, immediately prior to separation, thus seeking to affect the child custody orders?

Surprises can be nice during a marriage. For example, consider a spouse who secretly buys a diamond ring to give to the marital partner on Valentine's Day. Such a gift may involve a unilateral act, by a spouse, without the knowledge or consent of the other spouse. Does this violate a fiduciary duty? What if the spouse gives the ring to a woman friend, not his Wife? Without the Wife's knowledge or consent, a gift of significant expense to a woman friend hardly seems to be an action in the best interest of the Wife. And when fiduciary duties are violated, what action will the San Diego Superior Court take? Consider the case of Fossum (IRMO Fossum) now certified for publication by the California Appellate Court.

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February 3, 2011

California Joint Physical Custody Request

Justia-photo-85 Halle Berry.jpegThe Huffington Post published a story stating that actor Halle Berry cancelled a movie role which was to start shooting in New York at this time. The cancellation was tied to her desire to more actively participate in the child custody dispute that is building between herself and her ex Gabriel Aubry. As a San Diego Certified Family Law Specialist attorney I handle and my La Jolla Family Law office handles many child custody cases. Details are lacking in this report; however, possibly, by this report, we are informed that Ms. Berry is very serious about the child custody issue and that she will diligently work with her family law lawyer to prepare for the custody litigation. This is exactly what my office would want from a client.

In a follow up story from The Huffington Post, the report is that the child custody case is beginning to take shape centered around allegations that the young child "cries hysterically" and acting out when the father, Mr. Aubry, comes to pick up the child for his parenting time. It has been my experience that a child acting out, at this child's young age (age 3), raises issues of (one the one hand) child abuse, and (on the other hand) parental alienation. If the allegation is true, an evaluation as to the cause of the child's reaction should commence.

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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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December 21, 2010

San Diego Divorce: Family Law Changes for 2011

Justia-photo-79 Christmas.jpgDecember 20, 2010: Year 2010 is almost over. What will be improved about the San Diego family law system in 2011? Here is the news at this time. The court budget will be limited; likely the court calendar will be overloaded and this means that hearing times in court may be delayed and limited. Nevertheless, approximately 50% of the parties to a family law case will leave the courtroom encouraged and approximately 50% leave discouraged.

San Diego Certified Family Law Specialist attorneys are analyzing The Elkins Family Law Task Force Final Report and this report will bring about many changes as to how cases are heard in court. Essentially, requests that present a legitimate reason for oral testimony will likely be granted. This will add to the case time estimates and the level of expertise required to handle a contested case in court. La Jolla divorce attorneys are pouring over the new laws set to take effect on January 1, 2011. So exactly how will changes in the family court system affect you?

After many years of working as an AV rated attorney, I have come to the conclusion that it is the job of my office, the lawyers in the office and the staff to know and understand the changes in the law so that we may cause these changes to benefit our clients. We are not advocates of any particular legal philosophy; we don't lobby for changes in the law; it is simply our job to understand how to best operate under a system with changing policies and laws that we cannot control. So what can you control that will benefit you and/or your legal matter in 2011?


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December 15, 2010

California Divorce--Where Do You File The Motion?

Justia-photo-78 Michael Douglas.jpegMy Family Law office is located in La Jolla California which is a beautiful community continuously connected to Wall Street by high speed Internet connections. Just up the road from my office an epic divorce court battle is taking shape and we will closely follow this case.

This blog posted an article recently regarding Diandra Douglas' attempt to obtain a payment from the profits to Michael Douglas recent release (and success) of the movie Wall Street: Money Never Sleeps. When Diandra lost her motion which she filed in New York City, news releases claimed that she had lost in her attempt to obtain her claimed share of the payments to Michael. However, as posted by this blog, she didn't lose a motion. She simply failed to file the motion in the correct court house. The article posted by this blog explained the legal concept of "jurisdiction" which explains which court has the authority and power to issue orders regarding legal claims between litigating parties.

By way of background, Diandra and Michael were married, then divorced in a California family law court. They separated and signed a settlement agreement in the 1990s. Diandra received 50% of the community property in the divorce settlement. When Wall Street: Money Never Sleeps was released in 2010, Diandra claimed that this movie was so related to the 1987 original that she was entitled to 50% of the funds received by Michael from the 2010 movie. As a San Diego Certified Family Law Specialist attorney I work with concepts of community property, separate property, and jurisdiction on a daily basis. The news reports were wrong. Diandra didn't lose her motion; her motion was dismissed in New York as the court in which she filed the motion, didn't have jurisdiction to resolve this issue.

Just this week, the news reports stated that Diandra is looking for lawyers to re-file this motion in a California court. This blog predicts that she will file. Her decision to file in New York was unsuccessful; however it showed her determination regarding this issue. While research does not disclose the amount of the income to Michael from Money Never Sleeps, all sources agree that it is significant amount.

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December 9, 2010

California Divorce Determines Property Ownership

Justia-photo-77 Dodgers.jpegIn a Los Angeles Times article, written by journalist Bill Shaikin on 12/7/2010, we learn that a California divorce court invalidated a post marital agreement whereby Frank McCourt claimed that his wife, Jamie McCourt, agreed that the Los Angeles Dodger baseball team was Frank's separate property. As a result of this decision, the Dodgers are the community property of both Frank and Jamie and must be equally divided as a result of the pending McCourt divorce. This is a significant blow to Frank and likely means that the team must be sold.

As a San Diego Certified Family Law Specialist attorney I have closely followed this case. This blog posted articles on this case in August and September 2010. We predicted the outcome that was reached by the court just in the last several days. After the first day of trial on the post marital contract issue, this blog directed a comment at Frank telling him that he had swung at the ball and missed and that "I just don't know if that was strike one, two or three." We stated that the trial was not going well for Frank after one day in court.

Later, the attorney who drafted the post marital contract appeared in this trial to testify as a witness. This blog posted an article regarding his testimony. The article stated that my professional opinion regarding the contract issue was now even stronger in favor of Jamie McCourt's position--that the contract was invalid therefore the team was the community property of the McCourt's. Typically, a post marital agreement seeks to change the characterization of property from community property to separate property (or visa versa).

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