December 19, 2013

Secretion of Community Property Assets Through Pension Plan Not Protected by Federal Law (ERISA)

dollar-in-a-box-1-1086817-s.jpgUnder California law, any property that a couple accumulates during the marriage is considered "community property." Likewise, any debt acquired becomes "community debt." Both assets and debts are typically divided equally upon divorce. Determining the property and debt that belongs to the marital property can be very complicated. Properly identifying, valuing and dividing the assets and debts is a very serious part of the divorce process, one that can have lasting effects on the parties involved. If you are facing divorce, it is critical that you contact an experienced family law attorney who is fully familiar with the process in the San Diego county court system.

A recent case illustrates one of the problems that can arise when the divorcing couple is working toward assessing the community property that will ultimately be divided between them. Here, the couple married in 1993 and the husband filed for divorce in March 2003. The court ordered the husband to pay spousal and child support, but at some point he fell behind in his support payments. Once that happened, the California Department of Child Support Services got involved and issued an order requiring Morgan Stanley to withhold funds from the husband's retirement accounts in order to collect child support arrears.

Throughout the lengthy proceedings that began in 2003, the spouses filed many motions and opposing responses, all in an effort to resolve questions about the division of assets, namely, the husband's defined benefit pension plan. In late July 2010, the trial court issued a temporary restraining order prohibiting the husband from transferring any funds in any Morgan Stanley account in his name, the name of his law firm or its pension plan. Two weeks later, the husband transferred approximately $100,000 from his pension plan into his Merrill Lynch trust account.

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December 12, 2013

California Court Applied the Wrong Standard When Ordering Payment on Child Support Arrears

the-calculator-2-1038102-m.jpgFor divorcing spouses with children, child support is one of the most important issues to resolve. It is the amount of money that a court orders one or both parents to pay each month to contribute to the support of the child, including the child's living expenses. The amount will undoubtedly impact the lifestyle of the parties involved. In California, there is a statewide formula (also known as a "guideline") for determining how much child support should be paid. If you or someone you know is confronting a divorce, it is critical to consult with a family law attorney who can guide you on the laws and procedures applicable to residents of San Diego.

In some cases, the party required to pay child support will find that they are unable to make the payments, or will fall behind in making the payments. Under California law, one must pay interest on the balance due on top of the amount that is owed. In fact, the law requires that interest charges must be applied to the amount owed and courts do not have discretion to alter those charges. In a recent case, the California Court of Appeals reviewed a family court's decision to order a monthly payment of "at least the interest owed" on the arrears.

Here, the couple divorced in 1990 and had four children. By 1999, the youngest child was 18-years-old. In 2007, a trial court ordered the husband to pay $850 a month in child support arrears. In 2012, the San Diego County Department of Child Support Services (the "Department") made a motion to increase the payment to a minimum of $10,000 per month, arguing that he owed more than $1.2 million and that the interest was accruing by an amount of $4,690 a month. The husband opposed the motion, claiming that he was unable to pay the amount of support ordered at the time of the divorce (even though records show he never moved for a downward modification). His tax returns showed that he had state and federal tax obligations totaling approximately $180,000, for which he was also making monthly payments.

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December 5, 2013

California Court of Appeals Settles Dispute over Date of Separation

times-1124434-m.jpgDivorcing spouses have plenty of serious issues to resolve before moving on with their new lives. From child custody to spousal support - there is an overwhelming number of difficult matters to deal with and hopefully settle as quickly and fairly as possible. In many cases, the date of separation can play an important role in determining the distribution of marital assets. There are many factors that a family court in San Diego will look to when making this determination. If you are considering divorce, it is critical to consult with an experienced family law attorney who can help guide you through the sometimes-tumultuous process with relative ease and confidence.

The data of a divorcing couples' separation is not always clear. Many factors can cloud the issue, such as a situation where a couple agrees that the marriage is over, but they both remain in the marital household beyond that date. Courts will look to a variety of items to make the best possible determination concerning the date. A recent decision by the California Court of Appeals sets forth a standard by which divorcing spouses may ascertain the date of separation.

Here, the couple were married in 1993 and have two children, born in 1995 and 1999. According to the facts of the case, the couple had differing opinions concerning the date of separation. The wife testified that she announced her intent to end the marriage on (or about) June 1, 2006. At that point, she prepared a financial ledger itemizing household expenses and allocated their equal contributions to the running of the home and taking care of the children's expenses. They each contributed to the joint fund and were separately responsible for their own personal expenses.

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November 28, 2013

Olympic Skier Bode Miller in a Cross-Country Custody Dispute with Ex-Girlfriend

silhouettes-7-1282782-m.jpgThe ongoing child custody battle that has divided Bode Miller and ex-girlfriend Sara McKenna, both emotionally and physically, is not yet over. Miller lives in San Diego, where he and McKenna first met and started dating. According to news reports, she now lives in New York and has recently been awarded temporary custody of their nine-month-old son by a family court referee in that state. Sadly, the baby has been back and forth in each parents' homes as the courts in two separate states attempt to work out an appropriate custody arrangement that will serve the best interests of the child. While the circumstances surrounding this widely publicized dispute are not necessarily the norm, child custody cases can evoke many intense emotions and positions by both parents. If you find yourself facing a child custody matter, it is critical that you contact an experienced San Diego family law attorney who can help you to navigate the sometimes-complicated, emotional process.

McKenna and Miller dated for a short while and although their relationship did not last, Miller did become pregnant. A former United States Marine, McKenna left California for New York to attend Columbia University with the help of the GI Bill. She was pregnant at the time, but claimed that Miller wanted nothing to do with the baby when he learned that she was pregnant. Miller initiated child custody proceedings in a San Diego family court. Once McKenna was in New York, Miller complained to a New York referee that she "absconded" with his baby by moving away. The court granted his request that the case be assigned back to California.

A California court then granted Miller custody of the baby boy. McKenna appealed. Just this month, a five-judge appeals panel in New York said that McKenna's basic rights had been violated and that jurisdiction belongs in New York because the baby was a resident of the state. This decision effectively sent the case back to the family court referee who awarded temporary custody of the baby to McKenna, until the next custody hearing that is scheduled for December 9 in New York.

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November 21, 2013

Parents Suing San Diego County for Alleged Loss of Custody over Medical Marijuana Use

pedestrian-zone-sign-1422766-m.jpgAccording to the Courthouse News Service in San Diego, a Gulf War veteran and his family are suing the county of San Diego and assorted employees for taking their two children away from them for a year. The city claims that they received a tip that the parents were running an illegal daycare center at the home and smoking marijuana around the children. Although authorities discovered that there was no illegal daycare center, they did find marijuana at the home. In his defense, the war veteran argues that he received a medical marijuana recommendation from a doctor to treat migraine headaches that resulted from exposure to chemical weapons during the war.

Although the only "hazard" the investigators found at the home was the marijuana, authorities returned three days later with instructions to take the children from the home and to bring them to an emergency shelter for allegedly abused and neglected children in San Diego County. Interestingly enough, according to the complaint, neither parent was ever criminally prosecuted for the possession and/or use of the marijuana. Under California law, there are procedures to follow when someone suspects a child is subject to abuse or neglect. When someone makes a report about the safety of a child, the police or a social worker must investigate. But taking children away from their parents, for any length of time, is a serious matter and can have lasting effects on the entire family. Parents who are facing a child custody matter of any sort are encouraged to contact a local, experienced family law attorney who can help to protect and preserve their rights.

In this case, the parents allege that the city took their children away without conducting a proper investigation into the facts of the case. The complaint alleges that the California Welfare Code obligates social workers to err on the side of keeping children at home with their parents so long as it is safe to do so. At some point during the proceedings, the juvenile court made the children "wards of the court" and placed them in a foster home.

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November 14, 2013

Getting Married and Avoiding Divorce Can Be Good for The Economy and Your Health

valentines-series-ii-6-1414426-m.jpgIn two separate but equally intriguing studies, getting and staying married has been proven to be good for your health and beneficial for the economy. This may come as no real surprise. Getting married is usually a joyous occasion; when couples embark on a new life together, they are usually filled with hope and optimism for the future. At this point in their lives, couples are not usually anticipating the possibility of divorce and any attending negative ramifications (unless they decide to prepare a prenuptial agreement).

Divorce can impact many aspects of a person's life, including one's financial situation, living arrangements, relationships with other family members, including in-laws, and of course, if children are involved, the extent to which they may spend time with them. And now it seems, divorce may be bad for your health. At the end of a marriage, many of the issues that arise are complicated and require strict attention to detail and knowledge of the local court process. If you are considering divorce, it is important that you reach out to an experienced San Diego family law attorney as early in the proceedings as possible.

According to a recent Gallup Poll, married people spend more money than single folks, suggesting that if more people got married, then the economy would likely improve. The poll was conducted by telephone interviews with more than 135,000 Americans aged 18 and older. Of those polled, Americans who are married reported spending $102 on average each day. That number decreased to $98 for couples in domestic partnerships, $74 for people who are divorced, $67 for single -- and never married people, and $62 for widowers and widows. A research scientist who has examined wealth in relation to marital status essentially confirmed these results by suggesting that married couples had about four times the wealth of those who had never been married.

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November 7, 2013

Demi Moore and Ashton Kutcher Finalize Divorce Two Years After Separation

1193021_dark_dollar_2.jpgIn their highly publicized divorce, actors Demi Moore and Ashton Kutcher have finally reached a settlement. According to reports, both parties are satisfied with the agreement and have signed the paperwork to end their marriage. While they were only married for six years, it took the two famous actors two years to resolve their differences, many of them financial. One of the contested issues was Moore's request for spousal support. Under California law, when a couple divorces or enters into a legal separation, a court may find it appropriate to order one spouse to pay the other a certain amount of money each month.

In an earlier blog post, we reported on the two actors' separate filings for divorce. Moore, who is 50-years-old, asked Kutcher for spousal support and, to pay her attorney's fees, despite that she is worth (financially) more than he is. This case seems to be more about hurt feelings than any real financial need: Kutcher was thought to be having an affair with a 23-year-old woman right before their separation. Contrary to this scenario, most spousal support cases involve one spouse's financial need to maintain the marital standard of living.

In San Diego County, there are no legal guidelines for courts to follow when rendering an award of spousal support. Therefore, when a couple is considering a divorce, it is extremely important to consult with, and ultimately hire, a widely experienced, local family law attorney. The California court system sets forth procedural steps to follow when seeking spousal support. The very first item is to initiate a divorce or legal separation case with the court. As in the Moore/Kutcher divorce, sometimes it takes a great deal of time to work through the contested issues. Parties may seek a temporary order for spousal support to get through the process until there is a final judgment in the case.

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October 24, 2013

How California Courts Determine Amount of Child Support Payments

market-movements-2-1388612-m.jpgAs most people know, child support is a designated amount of money that one or both parents pays each month to support a child and to take care of related living expenses. When a couple divorces, separates or annuls a marriage, either parent may ask a judge to render a child support order. In San Diego and throughout California, there are guidelines that a court will look to when determining the amount of money to award. But this area of family law is not without its own nuances, and any parent who is seeking support or ultimately paying support for their children is encouraged to contact a local family law attorney with experience handling such cases.

In a widely publicized child custody and support case involving the famous actor, Jon Cryer, news reports say that his ex-wife, Sarah Trigger, is asking a judge to increase her child support payments from $8,000 to an exorbitant $89,000 a month. When the "Two and a Half Men" actor and his former wife divorced in 2004, the court allocated custody between the parents by awarding Trigger with 65 percent custody and $10,000 per month in child support. Trigger says she is seeking the additional support, claiming her son is humiliated that he does not have the lavish lifestyle that his fellow students have because she cannot afford it. Although he attends an expensive private school, his mother says that her son's fellow students have extravagant parties, expensive vacations, and fancy summer camps, all things she cannot provide.

At some point, Trigger's support payments were reduced to $8,000 per month at a time when Cryer essentially had full custody of the boy. According to Trigger's attorney, the two are now sharing custody 50-50, and she is seeking an increase in support payments. In California, there is a statewide formula (also known as a "guideline") for determining how much child support should be paid. In an ideal situation, the parents agree to the amount. But in many divorce cases, the parents do not come to a mutually satisfactory amount for child support. In those cases, the judge will use the guideline formula to decide the amount of child support.

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October 17, 2013

California Governor Signs Bill Allowing Children to Have More Than Two Legal Parents

family-990508-m.jpgUntil very recently, under California law, a child could have only two legal parents. For many families, that is just fine and serves the best interests of the child. But there are situations where limiting the number of parents can be detrimental to a child. According to an article in a San Diego newspaper, Governor Jerry Brown signed a bill that now allows children, under certain circumstances, to have more than two legal parents. The issue of parentage or paternity can arise in many different scenarios. Anyone who is confronting family law issues concerning custody and paternity of a child is encouraged to contact a local attorney with experience handling such serious matters.

Senator Mark Leno (D-San Francisco) introduced Senate Bill 274, a measure allowing a judge to legally recognize additional parents where not doing so would result in detriment to a child. Once the governor signed the bill, California became the fifth state in the country to allow a child to have more than two legal parents. According to an extensive article on the subject, the bill was passed in reaction to the 2011 case, In re M.C. In that case, a man and two women appeared to meet the criteria to be a legal parent of the same child. The Los Angeles Times reported that one woman was in the hospital and the other was in jail, but their child was sent to foster care because her biological father did not have parental rights.

The California appellate court held that it could not award legal parent status to all three due to prior rulings on the subject from the state's highest court. Because of this legal dilemma, the court invited the legislature to reconsider the limitation of only two legal parents. Proponents of the new law argue that judges will not be forced to rule in a way that may actually be a detriment to the child's interests. It is suggested that the law will be invoked mainly when a child does not have enough parents, not when he or she has too many. Opponents of the bill include advocates for traditional families, who anticipate that children will see greater indecision and conflict over matters involving their well-being.

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October 10, 2013

Division of Property in Divorce Can Be Tricky: Tips for San Diego Spouses

my-last-cash-5-1138574-m.jpgCalifornia is a community property state, meaning that upon divorce, marital property (as well as any debt owed) is typically divided evenly. This is one of the most important and potentially impactful parts of a divorce proceeding. Identifying, valuing and dividing marital property can affect the whole family's future in significant ways. The risk of making a mistake during this particular phase of the process can be very costly down the road. Anyone in San Diego who is contemplating divorce is encouraged to contact a local family law attorney with experience handling all aspects of a family law case.

Under California law, there are several ways to characterize property in divorce, and certain categories are subject to equal division between the spouses while others are not. The first type is "community property," or property that the couple acquires during the marriage. It includes everything the couple purchased or attained while married -- including debt. What some people may not realize is that gifts and inheritances do not fall within the definition of community property and are not subject to division, even if attained during the marriage.

Community property covers not only earnings during the marriage, but anything purchased with those earnings. Essentially, each spouse owns one half of the community property. This includes any debts that were incurred during the marriage as well. Spouses may not realize the extent of the community property and debts and may want to seek the help of an attorney to sort it all out. The U-T San Diego recently ran a piece describing one woman's quest to get a hold of her inheritance assets that had been managed by her husband. They are now in the middle of a divorce and he has refused to tell her where the money is. The bottom line is that the inheritance money and related assets belong to the person to whom it was given.

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October 3, 2013

Woman Seeks Divorce in Mississippi -- Though Same Sex Couple Married in California

usa-maps-1055633-m (1).jpgThe U-T San Diego recently ran an article reporting on one woman's divorce filing in Jackson, Mississippi, from a woman she married in California. Her wife responded to the filing by asking the court to dismiss the divorce petition, arguing that Mississippi cannot grant a divorce in this case because the state does not recognize same sex marriage. Because of the variations among the states and their respective marriage laws, the regulation of marriage and divorce among same sex couples is sure to present complications for years to come. An experienced, local family law attorney can help sort through the details and competently guide you through the challenging process.

The spouse who filed the motion to dismiss the divorce petition asserted in her brief that Mississippi law prohibits same sex marriage. Specifically, she stated that the law provides that any marriage between two people of the same gender is prohibited and null and void from the beginning. The petition further argued that same sex marriage that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi. Essentially, she is arguing that because the state of Mississippi does not recognize same sex marriage, it has no legal basis on which to dissolve such a union.

According to the article, the divorce petition could potentially have been filed in California, which exempts some out-of-state same-sex couples from residency requirements for divorces. But there is some concern that the courts in California may not have the authority to issue rulings on many of the significant matters that arise during a divorce proceeding. The California courts maintain a website that provides a great deal of information for couples seeking to divorce or dissolve their marriage. The site suggests that if domestic partners do not live in California at the time of filing to end a domestic partnership, the local court may not have the authority to make orders concerning property and debt, partner support, or the couple's children.

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September 26, 2013

Change in Child Custody Order Triggers Unthinkable Violence Against Kids

courthouse-1330873-m.jpgAn article in the UT-San Diego describes a mother's violent and deadly reaction to a court-ordered change in the family's child custody arrangement. Under the Georgia court's order, the mother had several days to hand over custody of her two children, ages 13 and 10, to their father. The day before she was expected to do so, the children were found dead in a California hotel room. Police found evidence of poison in the room. There are many reasons a judge may find it necessary to change or modify a child custody arrangement. Parents facing such potential changes, or any child custody matter, are encouraged to reach out to an experienced San Diego family law attorney who can help ease you through the process.

The couple in this case divorced in 2007 after nearly 10 years of marriage. According to court documents, the mother had claimed that her former husband failed to make child support payments. In the fall of 2009, the court awarded the mother full custody of the children. Just a couple of weeks ago, a judge reduced the child support payments and ordered joint custody. At that point, the mother moved to Arizona, stating that she received a job transfer. Due to the sudden move, it seems, a judge found that the mother was alienating her children from her ex-husband. The court changed the order awarding the father full custody of the children.

In this tragic case, as the judge was rendering his decision regarding the custody change, the mother walked out of the courtroom in the middle of his order. Reports indicate that the mother said she would bring the children back to the father. Instead, the two kids were found in dead in a California hotel room. When police found her, she had been driving a car that crashed into an electrical box outside a shopping complex in Costa Mesa. Apparently, the mother has since asked the court for the death penalty.

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September 19, 2013

Husband Indicted for Hiding Millions in Divorce Proceedings

dollar-army-1-1162216-m.jpgA recent news report underscores the extraordinary measures some people will take to hide assets from their soon to be ex-spouse. After being married for 28 years, Sheila Brandner filed for divorce in Alaska in 2007. According to the indictment by the United States' Attorney's Office, her husband Michael Brandner, a 64-year-old plastic surgeon, reacted to the divorce filing by secretly planning a scheme to defraud his wife by hiding assets from her. In any divorce proceeding, a huge issue is the division of marital assets. The ultimate outcome can significantly impact each spouse's lifestyle and comfort. Seeking the help of a local San Diego family law attorney with a record of success cannot be overstated.

The husband in this case is accused of setting up fake companies, loans and accounts in California, Colorado and Central America, to prevent his wife and the court handling the couple's divorce from learning the extent of his wealth. The indictment alleges that Brandner sought to hide property and money for his "personal control and use," and he allegedly did so through two corporate entities he created. The government seized more than $4.6 million from a bank in California that was deemed to be part of the scheme. According to prosecutors, the money was seized as Michael Brandner was trying to hide it via a fraudulent investment that ultimately would have been written off as a loss, when in fact he would still have the funds.

Fortunately in this case, the authorities were able to identify and locate the marital funds that the husband was trying to conceal. Identification of marital property is a critical component to every divorce case. California is a community property state. This means that the law treats married couples as one "legal community." Therefore, any property acquired during marriage is deemed to be "community property." Likewise, any debts that the couple acquires during the marriage also belong to the "community debt." All items must be divided equally.

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September 12, 2013

Divorce, Legal Separation and Annulment: Options To End a Marriage in San Diego

heart-rules---no-love-1130935-m.jpgA recent news article reports that Clint Eastwood's wife, Dina Eastwood, filed for legal separation in California. The couple has been married for 17 years. There is some question as to whether Ms. Eastwood will eventually seek a divorce. Divorce and legal separation proceedings each require the parties to follow specific steps as prescribed by state law. If you or someone you know is contemplating divorce or separation, it is important to fully understand your options and the ramifications of each process. An experienced family law attorney can help parties navigate the local court system, to reach a desirable outcome.

Making the decision to end a marriage is not an easy one. Often couples stay married longer than they would prefer, in an effort to avoid the many disagreeable matters that inevitably arise -- both emotional and financial. In California, there are three ways to end a marriage: by divorce, legal separation or annulment. What some people may not realize is it is not necessary for both spouses to agree to end the marriage. It could be the sole decision of one of them. If one spouse refuses to participate in the divorce, the proceedings will still go forward and the court may order a "default judgment."

Like many other places, California is a "no-fault" divorce state, meaning that the person asking for the divorce does not need to prove that the other party did anything wrong. Instead, the person filing for divorce need only state that the couple cannot get along, which is familiarly known as "irreconcilable differences." It also does not matter which spouse files first; the court will not favor one party over the other based on that reason. In any event, the person who initiates the divorce or separation (the "petitioner") must fill out forms required by the local courts. Before you even get to this point, be sure to go over your options with a local family law attorney who can give you information about the pros and cons of filing for divorce versus legal separation.

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September 5, 2013

Divorce Settlement Could Include Cost of Wife's Egg-Freezing Procedure

roads-sign-869848-m.jpgIn dissolving a marriage, divorcing spouses typically must sort through many important issues, such as spousal support, child custody and visitation, and child support, to name but a few. Add to these items the matter of a woman's fertility -- and spouses may have yet another, unexpected item to negotiate at the bargaining table. Navigating the San Diego family court system can be complicated and overwhelming, especially when facing the end of a marriage. It is vital that you contact an experienced, local family law attorney to help you get through the process with ease and a sense of confidence in the outcome.

According to a news article, a woman from New Jersey is asking her soon-to-be ex-husband to pay $20,000 for costs associated with an "egg-freezing" procedure, with the hope of preserving her fertility after the divorce. The couple had been married for eight years and had always anticipated that they would have a family. The wife is now 38-years-old and getting divorced. During the marriage, she had an expectation of having children. With the advent of fertility treatments, and advances in medical science, women now have the opportunity to preserve their eggs until they are ready to bear children. With this opportunity comes a way to measure the value of fertility: costs associated with egg extraction surgery, the number of eggs one can expect to obtain and preserve, freezing, the number of children one hopes to have, as well as the success rate of the clinic used. That amount is estimated at anywhere between $5,000 and $13,000.

In this case, the couple made several attempts at in-vitro fertilization during the marriage. The wife's attorney is suggesting that because of this, fertility treatments were part of the marriage and should be considered part of the marital lifestyle and, therefore, maintained as much as possible after the divorce. There is no state case law precisely on this issue. In some rare cases, courts have recognized the limits of a woman's fertility and awarded her custody of previously fertilized embryos. As the article indicates, the question of whether the cost of egg freezing should be included as part of a divorce settlement is complex.

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