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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December 3, 2010

California Divorce Report: Jurisdiction Part II

Justia-photo-76 Eva Longoria.jpegOn November 17, 2010, Eva Jacqueline Longoria Parker filed a petition for divorce (see it here) against William Anthony Parker II in a California Superior Court. According to the petition, there are no children. Eva Longoria does not specify any community property or separate property. She does request spousal support however she also references a Marital Agreement signed in June 2007 and amended on June 10, 2009. Eva Longoria filed her petition for divorce in California; reportedly, Tony Parker subsequently filed a petition for divorce in Texas thereby raising the Jurisdiction issue.

"Jurisdiction" is a legal concept that resolves the question of which court has the exclusive authority and power to proceed in a legal case when the same parties have filed the same lawsuit in two or more courts. As a San Diego Certified Family Law Specialist attorney, my office is trained to implement the concepts of Jurisdiction and Venue into our cases. There just is not enough factual information disclosed in the reports as to this case whether the case will proceed in California or Texas. My educated guess is that California will prevail as to the jurisdiction issue and the case will proceed to a conclusion in California. From the news reports it appears that Parker's filing in Texas was a reactionary move to force Longoria into settlement negotiations. Texas is known to complete divorce cases faster than California and to have a more conservative perspective on issues such as Marital Agreements that limit support as well as the spousal support issue.

If settlement negotiations or divorce mediation does not result in a settlement of the divorce cases, look for Longoria to aggressively seek her share of Tony's multi-million dollar basketball money. Look for Tony Parker to move forward with hearings in Texas to rule that Texas holds the exclusive jurisdiction for this case. Look for the Marital Agreement to be entered into one of the courts as evidence either in support or against the spousal support claim.

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November 30, 2010

Surprising California Divorce News: Leigh/Baumbach

Justia-photo-75 Leigh.jpegAfter reportedly stating that he would be with Jennifer Jason Leigh for the rest of his life, Noah Baumbach received a Petition for divorce from Leigh. Leigh and Baumbach met in 2001 and started their relationship. They married in 2005. Then in March, 2010, fully in line with Baumbach's prediction, this couple gave birth to a son, Rohmer Emmanuel. Then just several months after the birth of their son, Leigh files for divorce in a California Superior Court based upon the grounds of Irreconcilable Differences.

As a San Diego Certified Family Law Specialist attorney this case appears unusual. A five year marriage resulting in the birth of a child five months ago; and overall, this couple has been together for nine years. They have intersecting careers, so it appeared that they had a strong commitment to their marital union, which was underscored by the commitment to have a child born five months ago. Then, in November 2010 filing for a divorce, based on the grounds of differences which could not be reconciled.

China Daily reports of a increase in the divorce rate in China calling the trend "impulsive divorce". This news source reported that Tina Wang married her boyfriend in 2008 and divorced him in 2009 stating that she wanted to meet someone who would be a better match for her. A program in the United States, known as Controlled Separation, helps to prevent impulsive decisions to divorce.

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November 22, 2010

California Divorce Report: Marital Tort

Justia-photo-73 sugar daddie.jpegThe Daily Mail published a report of a wealthy California Husband, Mr. Saadian, who reportedly engaged in extramarital activities, contracted a STD (sexually transmitted disease) and passed the STD on to his Wife. This alone is not "news" as this situation occurs all the time in modern day America. What makes this case different, according to the report, is that the Wife retained a Family Law lawyer, filed for a divorce, and hired a tort lawyer then sued her Husband for sexual battery, fraud, infliction of emotional distress, among other civil tort claims.

The Saadian tort case was filed in the Los Angeles Superior Court and was tried in front of a jury. The jury came back with an award in favor of the Wife in the amount of $2.49 million. The news report states that the Wife was awarded future medical treatment, approximately $2 million for past and future pain and suffering plus punitive damages.

As a San Diego Certified Family Law Specialist attorney I am referred cases which occasionally involve a tort case inside the divorce case. Researching the law, it is clear that the ability of a spouse to sue the spouse for a marital tort has changed significantly in recent years. If you are filing for a divorce and you have been the victim of a domestic violence incident(s), or other marital torts (for example, rape, fraud, conversion, etc.) disclose this to your family law attorney so that important procedural decisions may be made as to both legal actions. More than once I have brought a civil litigation trial attorney into the divorce case so that the marital tort may be correctly handled. Keep in mind that the Saadian case went to a jury. A family law trial will never go to a jury so the civil litigation attorney may not want to join the marital tort case to the divorce case.

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November 22, 2010

Mel Gibson Custody Case Goes to Court

Justia-photo-74 Larry King Live.jpgWe've heard about it all summer. We've heard of the allegations affecting the child custody outcome. We've heard the audio tapes or at least some of them. We've noticed the silent denial as to the tapes. We've seen the reports of Oksana on the Larry King show. We know that the issues include, child's best interest; the Father is out of control and shouldn't have any child custody rights because of his untreated medical condition; we've heard that the Mother should only have limited or supervised visitation because of her monetary extortion attempt. As a San Diego Certified Family Law Specialist attorney, I am well aware of the arguments that will be made on both sides, however, which side will make the better argument?

According to news coverage as to this case, we will soon have our answers to these issues and questions as reportedly, the Mel Gibson and Oksana Grigorieva child custody hearing will occur on Monday, November 21, 2010. Reportedly, Oksana will say that Mel Gibson is out of control. He must take his medication. Oksana claims to be a domestic violence victim. She states that she fears for her safety, and also for the safety of baby Lucia. Conversely, Mel Gibson intends to show up in court and to request the physical custody of the child because, reportedly, he alleges that Oksana is out of control; she is angry with Mel Gibson and only seeking a monetary extortion from Mr. Gibson thereby resulting in her not acting in the child's best interst.

We can picture Mel Gibson's attorney arguing that the law of the state of California, in the attorney's opinion, requires that both parents share the child. And, that Oksana's obsession with cashing in Mr. Gibson's wealth has caused her to fight viciously and deplorably in a manner that prevents her from being willing to share child custody with Mr. Gibson. We can picture Oksana's attorney equally passionate with the counter argument:

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November 16, 2010

California Divorce Report: What is "Jurisdiction"?

Justia-photo-72 Wall Street.jpegAs a La Jolla divorce attorney, my office receives telephone calls from people in different geographic areas with questions as to where their case should be filed. Which state in the United States should hear a court case is a similar question as to which county within California should hear a California divorce case. (The question as to which of the San Diego County courts should handle your case, go to the San Diego Superior Court website here.)

In 1987 Michael Douglas, actor, starred in the movie Wall Street playing the role of Gordon Gekko. The movie won many best actor awards. Michael Douglas received an Academy Award - Best Actor. In 1977 Michael married Diandra Luker and their marriage lasted until the year 2000, or 23 years. Wall Street was a financial success so it was no surprise that the sequel, Wall Street: Money Never Sleeps (2010) was expected to bring in millions in profits. By virtue of the California divorce between Michael Douglas and ex-wife Diandra, a claim was made by Diandra to receive a portion of the profits of the sequel film according to news reports. Diandra reasoned that since Wall Street was created during the marriage (thus community property) any movie that was a spin off from Wall Street (namely Wall Street 2) would be so related to the movie created during the marriage that Diandra would have some community property rights to the sequel. She and her attorney made a jurisdiction decision and filed her claim in New York city.

The movie Wall Street sought to portray the excitement and greed generated by working in an industry that has access to millions and billions of dollars. (See movie trailer below.) Appropriate to the movie theme, Diandra decided to file her case near the actual Wall Street in New York. Was this the correct decision?

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November 14, 2010

San Diego Divorce Report: Marriage and Children

Justia-photo-71 Berkely.jpegIn the last article posted by this blog, we considered how divorce can significantly affect children. As a San Diego Certified Family Law Specialist attorney for more than 30 years I have seen children hurt in the divorce process. However, I don't join in with those who say that divorce is bad and it must be stopped or made more difficult to obtain. Divorce is permitted because people are flawed. In some cases, people are bad or even evil. Divorce is a tool allowing correction and relief in these cases. The tool should be allowed even though its misused by some.

Approximately 30 years ago a psychologist, Judith Wallerstein, started conducting studies concerning children and divorce. Her studies became controversial when her opinions started to affect California divorce and child custody legislation and court decisions. Often her opinions were misunderstood leading to controversial results. However, all of these years later, she is still garnering attention regarding her views. The Huffington Post recently published an article by journalist Katie Hafner involving questions to, and answers from, Dr. Wallerstein regarding her twenty five year study of children involved in California divorces.

Judith Wallerstein is a psychologist. She is now 88 years old. She was a senior lecturer at the School of Social Welfare, UC Berkeley. She is shown in the video below providing thoughts, along with other professionals, as to how to make marriage better.

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November 11, 2010

San Diego Divorce Report: Miley Cyrus Blames Herself for Parent's Divorce

Justia-photo-70 Miley Cyrus.jpegMonsters and Critics online reports that celebrity Miley Cyrus blames herself for the announced divorce of her parents, Tish and Billy Ray Cyrus. As a San Diego Certified Family Law Specialist lawyer I have heard this report, regarding the children of divorcing parents, many times before. Therefore, I believe this story.

The parents give a different account for the breakdown of their marital relationship. Reportedly they stated that they were equally involved in the comprehensive and probably exhausting goal of seeing their child achieve stardom. Now that this goal has been achieved they no longer have anything strong to hold them together. There are some cases where a parent will blame the child for a divorce. This is unusual. The parents know the real reasons however, often, the child sees himself or herself as the cause.

Doing some research on this topic, I found an article by the National Network for Child Care. This may be found online at nncc.org. The article states that the "National Network for Child Care - NNCC. Part of CYFERNET, the National Extension Service Children Youth and Family Educational Research Network. Permission is granted to reproduce these materials in whole or in part for educational purposes only (not for profit beyond the cost of reproduction) provided that the author and Network receive acknowledgment and this notice is included." Recognizing the importance of this study I include the additional information: The author was Lesia Oesterreich, M.S., Family Life Extension Specialist, Human Development and Family Studies, Iowa State University. This blog thanks you for your study.

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November 5, 2010

California Divorce News: Charlie Sheen's Wife is Angry

Justia-photo-69 Sheen and Brooke.jpgIs it true that La Jolla divorces are more civilized? As a Certified Family Law Specialist attorney with a law office is La Jolla I have found that some couples work very hard to control the emotions that may lead to a very time consuming divorce.

Isn't divorce in California no-fault based? What difference does it make that Charlie Sheen did the numerous things that are now appearing on Internet news stories? Probably not much in his California divorce case; however, he allegedly committed the biggest mistake--he didn't discuss the highly public divorce with his wife prior to filing.

We've all heard of the notification that the "marriage is off" by voice mail or by text message. What's now? Notice by Facebook? Twitter? My Space? According to the San Francisco Chronicle, Charlie Sheen's wife, Brooke Mueller, alleges that she was not consulted (notified) by Charlie that he was filing for a divorce, which the actor Sheen did in the last few days. Never mind that Charlie reportedly pleaded guilty to a criminal assault last summer. Or that just recently he reportedly trashed a New York City hotel room in an event that did not include his family. Afterwards, Charlie files for the divorce against Ms. Mueller. This is the ultimate proof that California is a no-fault divorce law state.

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