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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October 12, 2010

Divorce Issues of Custody and Support Raised by Former San Diego Athlete

Justia-photo-68 Cromartie.jpegAs a San Diego Certified Family Law Specialist with a La Jolla California law office that only handles family law cases, a lot of time every day is devoted to obtaining and organizing facts in individual cases. However, when I read the story from the New York Post, written by reporter Susan Edelman, about professional football player Antonio Cromartie's birth moms and his children (born by the "birth moms"), I felt as if I had just read a trial brief. Their were more birth moms than witnesses in the Frank and Jamie McCourt divorce trial to determine the ownership of the Los Angeles Dodger baseball team.

With a little more research I found a video on YouTube where Antonio Cromartie is trying to name all of his children. (Watch this video below.) We live in a diverse society. Some will laugh at Antonio Cromartie's video and admire his ability to cause women to line up to give birth to his children. Others will be more critical. The purpose of this posting is to bring a San Diego divorce perspective to this story.

California child support laws will provide child support to the various moms, according to the algebraic formula, and this should be a significant amount given Antonio Cromartie's current high income as a New York Jet football player. However, the children are very young. The oldest is approximately 5 years old. Otherwise, the children are ages 3, 2 and less than 1. This means that support will continue for the next 18 years. Antonio Cromartie may only be in football with a high salary for a fraction of this time. Child support is modifiable and may be greatly reduced in the future.

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October 7, 2010

San Diego Child Custody News--Birth Required

Justia-photo-67 baby.jpegI work as a San Diego Certified Family Law Specialist attorney in a Family Law office located in La Jolla that only handles legal cases in that area of law know as Family Law. We handle many child custody cases and cases involving one parent's move-away, relocation or move-apart decision involving a child of the relationship. However, it seems too simplistic to say that at the start of our work in the legal service industry, someone made a choice for birth, or life as some would say.

The Money Central at MSN tells us how expensive it is to raise a child to the age of 18 -- $170,000 to $250,000 for most families. These parents must have a job so that they can pay their landlord or bank for their housing; their grocer, their car salesperson, medical doctors, nurses, school educators who work with our children, clothing store owners and many, many others. And as a result of all of this society is functioning is it not? Families are working and people throughout every segment of society are put to work by this simple decision to give life.

This leads to two stories. The first took place here in San Diego California, as reported by journalist Debbie Baker for the San Diego Union involving a mom who showed up at a fire station to turn over her newly born child under the SSB law (Safely Surrendered Baby implemented in the State of California in 2001. Under this law, if you have legal custody of the child, within 72 hours of the baby's birth the parent may turn the child over to a designated safe site and have the right to reclaim the baby for a limited period of time if the parent changes his/her mind. This is so much better for all of the service providers mentioned above, not to mention the baby, to deposit the child at a safe location, as opposed to a garbage bin.

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October 5, 2010

California Divorce Appeal Granted

Justia-photo-66 Appellate court.jpegThis blog will refer to In Re Marriage of Tharp and the decision of the Court of Appeals of California, Fifth District regarding the appeal filed by the Wife (Mary Beth) which was granted on several points in a decision certified for publication. A published version of this decision may be found here. This is a decision that is must reading for California Certified Family Law Specialist attorneys and students of California Family Law as it provides a model as to how family law cases should be handled at the trial level.

The decision publication that I reviewed was 41 pages. This posting will discuss an isolated issue and hopefully future posting will describe other important points raised in the Appellate case. Briefly, the parties were married for more than ten years ("long term marriage"); they have three minor children; the Husband is a self employed businessman with substantial earnings (not fully described in the decision but reportedly over $100,000 or $150,000 and possibly much more).

The Wife immediately, upon the filing of the divorce petition by Husband, initiated discovery requests requiring Husband to supply documents and information as to income, expenses, property and debt. Wife also filed a request for attorney's fees as she had little or no income and Husband was in control of the marital income. When Husband did not respond to the discovery requests, Wife filed motions to compel discovery by the Husband and repeated her requests for attorney's fees. The trial court initially granted some of Wife's discovery motions; however the award for fees was quite small--in an amount that later was referred to by Wife's attorney as inadequate to allow Wife the same legal representation as Husband enjoyed.

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October 1, 2010

San Diego Divorce Report of Celebrity Filing

Justia-photo-65 Nancy Wilson.jpegThe San Diego Union Tribune reports that a well known couple, married for more than 20 years, has filed for divorce. The couple is rock singer Nancy Wilson and director Cameron Crowe. The purpose of this blog will be to discuss the actual Petition for Dissolution of Marriage filed by Nancy on September 16, 2010, and the raised issue of filing for a divorce in a cooperative way leading to mutual resolution rather than resolving the case in court on a contested basis.

As a San Diego Certified Family Law Specialist attorney for more than 30 years, I have resolved cases out of court (for example, through mediation) and through the contested process involving trial. I have recently posted blogs on mediation and vigorously contested divorces (for example, here) and there is no question that resolving a case on an uncontested basis is the best way to go for most divorcing couples. However, here is the math for California divorce: It takes two to marry (so far in the State of California), one to dissolve the marriage, and two to dissolve the marriage in an uncontested fashion.

The Petition in this case indicates that Nancy has hired an attorney who does not engage in divorce litigation. Specifically, the attorney describes himself as a "collaborative law" attorney. "Collaborative law" definitions are somewhat in dispute however the phrase is generally defined as an attorney who will resolve the case on an uncontested basis and involve other professionals, as needed, such as CPAs or psychologists, to address the issues in the specific case. Most of the cases in my office are resolved by mutual agreement. It is our belief that resolving a case with a Marital Settlement Agreement is preferable for our clients; however, there are also situations when it is in the client's best legal interest to litigate.

While the Petition was filed just recently, the Petition states that the date of separation was on 6/15/2008. The date of separation is a significant event in Family Law as it signifies a change as to the characterization of money and property (for example, money earned after the date of separation is generally the separate property of the earning spouse). The Petition lists two children. (This blog does not discuss the names and ages of children involved in divorce cases.) Later in the Petition, Nancy requests "joint" legal and physical custody of the children. This means that the parties intend to "co-parent" the children. It does not necessarily mean a 50/50 sharing of custody.

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September 29, 2010

California Divorce -- Got Mediation?

Justia-photo-65 mediation.gifAn AP story written by reporter Greg Risling stated that the McCourt trial will head immediately into mediation after this week of testimony. The legal issue of this trial is the characterization of the LA Dodgers. In other words are the Dodgers the separate property of Frank McCourt or the community property of both Frank and Jamie McCourt.

As a San Diego Certified Family Law Specialist I am trained in divorce litigation (including trials) as well as divorce resolution (including mediation and arbitration). In a trial, the finder of fact is the judge (California divorce does not permit jury trials), and the judge will then apply California family law to the facts resulting in a decision. At the end of this trial the judge will rule that the LA Dodgers are either owned jointly by Frank and Jamie or solely by Frank McCourt. Mediation cannot force a conclusion to a case as resolution in court; however, mediation should be a tool in every lawyer's toolbox.

Mediation hearings are usually less formal than trials. In a trial, one side of the issue will prevail; however in mediation, compromise is encouraged so that both sides secure something. Trials can be tremendously expensive as the attorneys pore out their skills in their legal research, procedural maneuvers, evidentiary objections and courtroom training into the trial. Mediation is typically not as expensive as witnesses are usually not called and the primary skill involves negotiation techniques.

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September 27, 2010

San Diego Divorce Report of Contract Catastrophe

Justia-photo-63 gibberish.jpgA San Diego news article described how the McCourt pre marital contract is more convoluted than ever. The ongoing bifurcated trial (a trial on an issue separated out from the rest of the divorce case) as to the ownership of the LA Dodgers, resulted in the attorney who drafted the contract testifying that he changed the contract after the parties signed the contract. The LA Times also published an article authored by Bill Shaikin and Carla Hall on this topic that was helpful to this blog.

One of your first days in law school, learning about California contractual law, you learn that a "Contract" indicates a "meeting of the minds" resulting in an agreement between two (or more) parties. The contract may be verbal or written. Written is preferred so that the terms of the agreement are specified and ambiguities are eliminated. Many years after law school I am a Jolla divorce attorney who prepares and reads marital contracts on a regular basis.

In a California divorce, property must be identified, characterized, valued and disposed by division between the parties or by a sale to a third person. In the California divorce case of Jamie and Frank McCourt (owners of the LA Dodgers baseball team, six written contracts have been presented to the court to dispose of the ownership of the baseball team. These contracts, all written, signed and notarized, are post marital agreements (also known as "ante nuptial" or "post nuptial") The purpose of a post marital agreement is to make the court rulings as to property (and other issues) very quick and simple, not to mention low cost. However, the problem here is that three contracts provide that the team is Frank's separate property and three contracts provide that the team is community property. How could this have happened?


In an earlier blog on this topic (here) I wrote that the trial was not going well for Frank. This is just my opinion as a California Certified Family Law Specialist. This was after just the first day of the trial. My opinion is now stronger. There are two contracts, signed by both parties. One supports the conclusion that the team is community property. The one that makes the property Frank's separate property was changed by the drafting attorney, after the contract was signed (approved) without notice to either party that the change would be made. No "meeting of the minds" = no contract. I don't see how this will go well for Frank.

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September 17, 2010

San Diego Divorce News--Domestic Violence Trial and Conviction

Justia-photo-62 butcher knife.jpgThis blog has posted two articles about the Trial of Shelley Malil, Los Angeles actor who dated and was arrested for stabbing Kendra Beebe in 2008 when he came to her home uninvited and found her conversing with another man. On September 16, 2010, the jury reached a Guilty verdict for premeditated attempted murder as reported by Dana Littlefield of the San Diego Union Tribune. La Jolla divorce attorneys are not shocked as domestic violence can occur in relationships all over town and all sections of society.

The first blog (found here) discussed how Malil's defense attorney tried to use a "lie" from the victim, Beebe, which occurred in her divorce, child custody, case, against her in the criminal case. The blog discussed the significance of truthful testimony in San Diego divorce cases and how a lie, when discovered, can be used against a person in the divorce case and in other proceedings. This blog was significant as it displayed how Kendra Beebe could have been stabbed with a butcher knife over 20 times and the perpetrator of this domestic violence gave the jury a reason to return with a "not guilty" verdict simply based on the fact that the victim had previously lied in another court about an unrelated matter. San Diego Certified Family Law Specialist attorneys are familiar with the significance of lies in family law cases.

The second blog (found here) reported defendant Malil's testimony and commented on how difficult it was to believe his testimony. Should he not have taken the stand to testify? Did he think his acting experience would assist his presentation in front of the jury? When he took the stand he told a seemingly convoluted story which directly confronted and appeared to contradict the foundational facts of the criminal trial. The victim, Beebe, called the testimony "bizarre fiction" after the jury verdict. Apparently, the jury, after hearing Malil call Beebe a liar, did not believe Malil's testimony.

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