July 4, 2013

California Supreme Court Rules Pre-Marital Military Service Credit Not Community Property

1193021_dark_dollar_2.jpgCalifornia is a community property state. This mean that in places like San Diego, and in cities throughout the state, all assets (as well as debts) that have been accumulated during the course of a marriage should be divided equally in divorce. Identifying marital property and properly assigning value to such items is not always a simple task. There are times when the courts have to get involved to determine the extent of community versus separate property, and how it should be divided. Laws pertaining to the division of property upon divorce can vary from state to state. It is important to contact an experienced, local family law attorney who can protect and maximize your rights to a fair and just settlement.

In California, it is established law that retirement benefits attributable to service rendered during a marriage are considered community property, divisible equally in divorce. But as we can see in the recently decided Supreme Court decision discussed below, the matter concerning the extent or limitation of community property is not necessarily clear.

In this case, a husband rendered his military service before the marriage from 1982 to 1986. He began working as a firefighter in 1989. The Fire Authority participated in the California Public Employees‟ Retirement System (CalPERS), which afforded husband the option to purchase up to four years of service credit towards his retirement benefits for his military service. The couple married in May, 1992. During the marriage, husband exercised his right to four years' worth of retirement credit for his premarital military services. Husband paid for the additional credit at least partially with community property funds.

At issue before the court was how much, if any, of the value of the four additional years of credit is community property. In determining whether retirement benefits are separate or community property, the court looked at the husband's marital status when the services on which the benefits are based were rendered. The court agreed with the trial court's conclusion that because the husband's military service was rendered before the marriage, the four years of additional credit are the husband‟s separate property. The trial court ruling compensated the wife for her share of the community's interest in the property. The Supreme Court affirmed the decision, holding that the court acted within its discretion in awarding the wife one-half of the amount (plus interest) that the community spent to obtain the credit.

Identification, valuation and division of marital versus separate property can be complicated, and often is the cause of many unexpected disputes between divorcing spouses. Here are some items to consider: 1) will retirement accounts be part of community property; 2) are there business accounts; 3) has one spouse tried to hide assets in anticipation of divorce; 4) will a house be valued at purchase price or current fair-market value; and 5) are there joint loans that you will continue to be liable for after the settlement is reached?

Identifying all marital and personal property as part of a San Diego divorce case is critical to winning what rightfully belongs to you and securing the quality-of-life and financial well-being for you and your family.

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June 27, 2013

"Putative Spouse's" State of Mind As To Validity of the Marriage Is Applicable Under California Statute

1164097_couple_in_love_3.jpgWhile not a common occurrence, people do get married with the false impression that the marriage is valid and recognizable under state law. This can occur when one of the parties has been married before and did not officially and legally dissolve the union. As one can imagine, such a situation can present all sorts of problems down the road. Divorcing spouses in San Diego are encouraged to consult with an experienced family law attorney who can handle the process with confidence and ease.

One huge problem that can occur with a marriage that is void from the very start is when the surviving spouse seeks damages in a wrongful death lawsuit. In a very recent case, the California Supreme Court was presented with the issue of whether a "putative spouse's" good faith belief that she was married to the decedent at the time of his death, is to be reviewed from an objective point of view or rather, a purely subjective one. That is, does it matter what the surviving spouse personally believed as to the validity of her marriage, or are the courts expected to look at what an ordinary objective person would believe.

Under California law, a wrongful death action may be brought by a decedent's putative spouse, which is defined as "the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid."

In this case, the couple first met in 1999 while the decedent was married -- but separated. He filed for dissolution of his marriage in 2001, and started living with plaintiff at that time. In 2003, the couple filled out a license and certificate of marriage. They marked a "0" in decedent's number of pervious marriages. Plaintiff signed an affidavit verifying the accuracy of the information, despite her awareness of his previous marriage. The marriage license was issued and they married on September 27, 2003. But the decedent was still married to his (original) wife at that time.

Three years later, the decedent died in a construction site accident. Plaintiff brought a wrongful death action against defendant-company asserting that she was his putative spouse. Defendant raised an affirmative defense challenging plaintiff's standing to bring the action based on her status as putative spouse, claiming that she did not have the required "good faith belief" that her marriage was valid.

The trial court ruled granted defendant's motion for summary judgment. But the court of appeal reversed, finding that plaintiff's subjective state of mind (if the court found it to be credible) could support a finding of good faith belief, establishing putative status. The Supreme Court affirmed, holding that the statute contemplates a subjective standard that focuses on the putative spouse's state of mind to determine whether or not she had a genuine belief in the validity of the marriage. In rendering this decision, the Court pointed out that the trial court erred in applying a "reasonable person test" - requiring plaintiff's belief to be objectively reasonable.

Divorce can be difficult and complicated. An experienced family law attorney can simplify the process enabling both parties to get on with their lives as quickly and painlessly as possible.

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June 20, 2013

Media Mogul Rupert Murdoch Pursuing a Quiet and Quick Divorce

1221952_to_sign_a_contract_3.jpgDivorcing spouses in San Diego would probably prefer a quick divorce to one that endures unnecessarily. But sometimes the strong emotions and potential bitterness between the spouses tends to prolong an already arduous process. There are ways to proceed that can help minimize or at least attempt to contain the proceedings so that both parties can move on with their lives as soon as possible. Of course, one of the ideal ways to work toward that goal is to consult with and hire and experienced family law attorney who understands the local laws and divorce court procedures.

According to news reports, Rupert Murdoch is attempting to dissolve his 14-year marriage to Wendi Deng Murdoch as quickly as possible. Experts speculate that Murdoch's choice of lawyer, and a slew of pre- and post-nuptial agreements, all point to a quiet divorce, with minimal drama. The attorney Murdoch hired has a reputation for settling divorces in a quiet manner, and much the same has been said of his wife's selection of attorney, who is also known for her reputation in keeping matters out of the public eye.

One method of anticipating some of the difficulties divorcing parties may face is to settle certain matters before the marriage even begins by signing a prenuptial agreement. In many cases, the person with the greater accumulation of wealth before the marriage is often the party who suggests signing a prenuptial agreement. Both parties, however, are expected to thoroughly review the document, with the help of counsel, to ensure satisfaction of the terms before signing. Not surprisingly, the Murdochs signed a pre-nuptial agreement in 1999. Reports indicate that Wendi Murdoch was represented by her current divorce counsel during the execution of that agreement. The couple also signed two post-nuptial agreements in 2002 and 2004.

In California, the Uniform Premarital Agreement Act governs prenups and sets forth some ground rules. For one, the law requires parties to wait seven days from the day they first see the prenup before signing the document. Additionally, a prenup cannot settle issues relating to child support or child custody, and it cannot mandate obligations of either spouse in non-financial matters. The two most important rules governing prenups are that a prenup must be in writing and it must be fair. In order to help ensure the fairness of the document, both spouses are encouraged to hire their own attorneys, who will represent each person's separate interests.

The Murdochs of course had their own attorneys at the time of signing their agreement, which, in all likelihood, will be upheld and enforced. It has been suggested that financial matters will all be settled according to those documents. The courts in New York, where the divorce was filed in this case, are known to view prenups in a favorable light.

Many people view prenuptial agreements as only necessary for wealthy couples. But that is not necessarily the case. Anyone with any amount of assets, including people with established careers and people remarrying, should give serious consideration to a prenup. Parties who are seeking information on the benefits of a prenuptial agreement are encouraged to consult with an experienced local family law attorney.

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June 13, 2013

Finding Hidden Assets Can Be a Big Part of Divorce Proceedings

1149867_army_of_dollars_1.jpgIt would be terrific if all divorcing couples in San Diego and throughout California were open and honest about their marital finances, namely, the assets to be allocated between the spouses. Because California is a "community property" state, all marital property, debts and assets alike, should be divided equally. But estranged spouses have been known to conceal or otherwise channel marital funds into unknown repositories, in order to avoid sharing the accrued marriage wealth. If you are contemplating divorce, it is imperative that you contact a local attorney with a great deal of experience assisting clients in securing the optimal divorce settlement.

A recent Bloomberg article recounts the many ways that business owners seek to hide money, in an effort to save on paying taxes. If and when this business owner -- and his or her spouse -- decide to divorce, the owner often continues this fraud to try to "shortchange" the estranged spouse when it comes time to divide the assets. In effect, the hidden money reduces the value of the business, which is, in all likelihood, part of the marital property to be split evenly.

Spouses who are not involved in business matters are, nonetheless, typically in a unique position to know the true value of a business. After all, even though a certain number is reported as the business owner's official salary, their lifestyle and other expenses may reveal that much more money is earned than is reported. One reporter indicated that many professionals find ways to "hide" income by either understating revenue or inflating their business expenses. In divorce proceedings, many businesses coincidentally see their profits drop drastically right around the time that the married couple decides to separate. It is suggested that judges have seen this occur time and time again.

There are many other ways that a spouse may attempt to hide property during a divorce: 1) delaying raises, stock options or bonuses until after a divorce is finalized; 2) waiting until after a divorce is finalized to sign lucrative financial, business or other contracts; 3) paying a friend, relative or business partner for services not rendered; 4) skimming cash from a business or personal account; 5) hiding valuable assets, such as artwork, antiques, or hobby collections; and 6) hiding investments or cash.

Despite a spouse/business owner's attempts to hide assets from an estranged spouse, there will usually be warning signs, such as a rich lifestyle, including expensive dinners and costly social engagements.

Identification of property is critical in a divorce case. Determining what is considered a marital asset, and identifying all assets to be considered, can have a dramatic impact on your case. It is also important to be aware that one spouse may attempt to empty a joint bank account or run up huge cash advances or credit card debt in preparation for a divorce.

Unfortunately, divorce has the potential to bring out the worst in people. The best course of action is to have an experienced attorney on your side to help vigorously protect your share of the marital assets, in an effort to achieve a fair settlement.

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June 6, 2013

In a California Divorce, Who Gets Custody of the Family Pet?

1421011_kitten_and_terrier.jpgIn San Diego, and in many cities throughout the country, pets are considered property, items to be allocated between the spouses much the same way other items of value are divided. Because California is a community property state, the couples' marital assets will be divided according to a 50-50 split. In most cases, the family pet would fall within that category. But, according to an article posted on the Animal Legal Defense Fund website, courts are beginning to intermittently acknowledge that a family's relationship with their pet may not adequately be categorized as "property" to be neatly assigned at the time of divorce. For assistance deciphering the local laws and climate of the courts in your jurisdiction concerning the handling of pets in a custody case, it is important to contact a local family law attorney to help clarify your potential rights.

The Humane Society of the United States reports that in 2011, there were approximately 78.2 million owned dogs and 86.4 million owned cats in the country. The data also indicates that 39 percent of U.S. households own a dog, while 33 percent own a cat. Further, we are spending great sums of money on the health and well-being of our pets: on average, dog owners spent $248 each year on veterinary visits, while cat owners spent $219 annually for routine vet visits.

As more and more people view their pets as part of the family, and in many cases, feel a strong emotional bond with their pets, it is no surprise that the courts have also begun to treat the custody of pets differently. As the law stands right now in California, courts would still consider a family pet to be community property, divisible at divorce. But because pets are becoming an even greater part of our lives, some courts have treated dogs like children, pondering what is in the best interest of the pets, in deciding who gets custody of them. According to one article, some courts have even awarded shared custody, visitation and support payments to the owners of the pets.

Most judges are extremely busy, with crowded dockets and serious matters to consider. Divorcing parties may be advised by their attorneys to settle the matter of pet custody ahead of time, so that their wishes can be finalized in the court order. If the parties cannot reach a mutually acceptable resolution, and a judge agrees to hear and decide the pet custody dispute, there are several factors which may be relevant: 1) whether one of the spouses owned the pet separately before getting married or whether they acquired the pet together, during the marriage; 2) who has been the primary caretaker of the pet over the years, that is, which party brought the pet to the vet, walked and fed the pet and spent the most time with the pet; 3) which spouse is the pet more attached to; and 4) if there are also children involved, which parent is going to receive primary physical custody of the children, who are most likely also attached to the family pet.

We seem to be on the cusp of some potential changes in the area of pet custody law - due to the evolving nature of our relationship with our pets and the willingness on behalf of many parties to fight for custody. But for the immediate time being, pets are considered property, to be divided between the spouses.

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May 30, 2013

In Ongoing Support Battle, Lakers' Steve Nash's Ex-Wife is Barred From Relocating to California

1015486_basketball.jpgThe divorce laws in San Diego may be different from those in Arizona, according to a recent article depicting the latest drama in the unfolding Nash-Amarilla family break up. Steve Nash's ex-wife, Alejandra Amarilla, currently lives in Arizona with the couple's three children. Nash successfully convinced a judge there to deny Amarilla child support, arguing that she already received millions in the divorce settlement. Under Arizona law, no child support is required if the adjusted incomes of both parents are relatively equal. There has been some speculation that if she moves to California, Amarilla would have another opportunity to seek child support from Nash from the local courts.

In most states, "child support" consists of the amount of money that a court orders a parent or both parents to pay each month for the child's (or children's) support and living expenses. California has a statewide formula (known as a "guideline") for determining how much child support should be awarded. Parents may first attempt to agree on an appropriate amount, but if they cannot, the judge will decide the child support amount based on the guideline calculation.

The guideline calculation takes into account the following items (among others): the amount of money the parents earn or have the ability to earn; any other income each parent receives; the amount of time each parent spends with the children; the number of children the parents have together; whether the children receive any support from other relationships; each parent's tax filing status; health insurance costs; expenses associated with daycare and uninsured health-care costs; and any mandatory union fees or retirement contributions.

In the Nash divorce, Amarilla is claiming that her ex-husband will not let her move to California so that he can avoid paying child support. Nash was granted a restraining order barring Amarilla from relocating with her children to Los Angeles. According to another news article, Nash previously convinced the Arizona divorce judge that his wife didn't need child support because the divorce awarded her millions and that she also receives approximately $30,000 per month. Amarilla is appealing the ruling. She has argued that Nash makes a million dollars more than her every month, and that he should be required to spend some of that money on their children. Nash claims to be paying 90% of the children's medical, school and extracurricular activities, as well as 82% of the nanny's salary. According to reports, Nash has said that his ex-wife spends money excessively, and if he is gives her more, she will spoil the children with too many luxuries.

The worrisome part of this widely publicized divorce proceeding is the effect it will have on the children. By battling with his ex-wife over child support payments and fighting to have her remain in another state with the children is sending a disturbing message.

In California, the guideline calculation system affords a somewhat predictable measure by which parents can estimate the child support payments that will be awarded. The best course of action in any divorce case in this state is to contact an experienced family law attorney who understands the intricacies of the local court rules and procedures.

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May 23, 2013

Reduction of Court Services in California Could Pose Risks for Victims of Domestic Violence

1330873_courthouse.jpgVictims of domestic violence in San Diego could face a situation that may be even more worrisome than threats from an abusive family member - that is, the inability to receive the necessary and immediate protection via the court system. According to a recent article appearing in The Sacramento Bee, the possibility of reducing funding to state courts means that the services will be cut back or eliminated. For victims of domestic violence, this creates an unthinkable dilemma: what if the courts, due to limited hours or possibly even closures, are unable to process a request for a restraining order in a timely manner, to ensure their immediate safety and protection? Domestic violence is a serious offense, one that requires prompt attention. If you or someone you know is involved in a domestic violence situation, it is important to contact an experienced family law attorney as soon as possible.

In California, domestic violence involves abuse or threats of abuse where the people involved have been in an intimate relationship, including those who are married, domestic partners, are dating or dated in the past, or live or lived together, or have a child together. Courts will also consider the abuse or related threats to be domestic violence if the abuser and the abused person are closely related by blood or by marriage.

The abuse can be manifested in many ways, such as: physically hurting or attempting to hurt someone, either with intent or in a reckless manner; sexual assault; threats of harm that make someone reasonably afraid that they will be seriously injured; or such menacing behavior as harassing, stalking, threatening, or hitting someone; possibly even disturbing someone's peace; or destroying another's personal property. It is also important to realize that abuse extends beyond physical actions -- it includes verbal, emotional, or psychological tactics as well.

Victims of such abuse may petition a local court for a domestic violence restraining order. This is a court order that helps to protect people from abuse or threats of abuse from someone they have a close relationship with. Victims who go to court to find some protection and relief need to know they will receive a rapid response with meaningful assistance. According to the article referenced above, it was typical for a court to attempt to process a temporary restraining order on the same day it was filed. Sometimes the abused person in a potentially explosive relationship cannot wait until the next day for help. Data indicates that victims are at a greater risk of being stalked, assaulted or even killed in the weeks immediately after moving out of the home or filing for separation or divorce.

A restraining order can require that the abuser stay away from you and your children and possibly other relatives, as well as require the person to comply with child support payments and to follow any child custody and visitation orders. It can be a life-saving tool for many people. Hopefully, the lawmakers will consider the vital needs of victims who rely on the courts for practical assistance.

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May 16, 2013

California's Highest Court Rules That Father's Sexual Abuse of Daughter Supports Finding That Sons Are Also Juvenile Dependents

1215912_paper_chain_in_the_dark.jpgIn San Diego, the juvenile court handles, among other issues, juvenile dependency cases. Juvenile dependency cases involve situations where there may be abuse or neglect in the home. It is the juvenile court's job to protect the children in the family. Domestic abuse aimed at children is reprehensible for many reasons, most notably because the relationship between parent and child is innately based on trust. Parents who are struggling with issues in juvenile court should consult with an experienced family law attorney who understands the local laws applicable to your case.

In a recent California Supreme Court case, In re I.J. et al., the father had custody of his five children: three boys and two girls. The Los Angeles County Department of Children and Family Services filed a petition with the juvenile court alleging that the father sexually abused one of the daughters for a period of three years. The court determined that all five children - daughters and sons -- were dependents of the juvenile court under Section 300 of California's Welfare and Institutions Code. The kids were removed from the father's home. He appealed.

While the court of appeals unanimously agreed with the juvenile court's determination that the daughters were dependents of the court, it was divided on the issue of whether the sons should also be taken away from the father's care without additional evidence. The Supreme Court granted the father's petition for review of whether the sexual abuse of one daughter supports the decision to declare the sons to be dependents of the court.

Under Section 300 of the Welfare and Institutions Code, the juvenile court is given the authority to determine when a child is to be a dependent of the court. There are many factors the court can consider, such as whether the child has suffered, or is at substantial risk of suffering serious physical harm or illness; the child has been sexually abused or there is a substantial risk that the child will be so; and whether the child's sibling has been abused or neglected and there is a substantial risk that the child will be also.

The court pointed out that there does not have to be evidence that the sibling actually be abused or neglected before the court can assume jurisdiction over the child, just that there is a substantial risk. The court thoroughly reviewed decisions within the state's appellate courts and found conflicting decisions on the matter.

The Supreme Court ultimately agreed with the decision below, holding that there was sufficient evidence to support the juvenile court's dependency ruling. In so holding, the court reiterated the lower court's characterization of the father's behavior as "aberrant in the extreme." Such behavior indicates that the parent "abandons and contravenes the parental role" - which, the court said, justifies an interruption of parental custody.

Domestic violence is the unlawful infliction of injury on another person. The victim may be a child, as in this case, a former spouse, or partner. Domestic violence cases are serious and require prompt and proper attention. Contacting a local attorney to advise you on the applicable laws and legal requirements is essential.

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May 9, 2013

California Court Ordered Mom to Pay Spousal Support to Man Who Allegedly Raped Her Daughter for Years

875412_balance.jpgIn San Diego and throughout California, the court may order one spouse to pay the other a certain amount of money each month when a couple divorces. This is called "spousal support" - or as many people know it, "alimony." In determining the amount, courts will look at a variety of intricate factors, including the length of the marriage, the standard of living throughout, the ability of each spouse to have a job, the potential impact on any children, age and health of the spouses, and their debts and property, just to name a few. There are countless considerations that only an experienced, local San Diego Family law attorney can help sort through to create the best possible spousal support plan.

Sometimes, the award of spousal support may not seem fair. According to Fox News accounts, when California mother Carol Abar married Ed Abar, her daughter was just nine-years-old. Shortly thereafter, Ed Abar began raping the child, who did not tell her mother for fear of his threats. Sixteen years later, when her daughter finally told Carol about the assaults, she promptly divorced him. During the divorce proceedings, a judge ordered Carol to pay her ex-husband $1,300 in alimony each month, despite her allegations of abuse toward her daughter. In rendering the support award, the judge allegedly told Carol that she had no proof of her husband's criminal conduct.

Carol has been paying alimony until last year, when further reports indicate that Ed Abar pleaded guilty to one of four rape charges and was sentenced to over a year in jail. At this point, a judge temporarily halted the spousal support payments, which had accrued to approximately $22,000 over the years. After serving the required sentence, Ed Abar was released and is now actually seeking an order from the court - to reinstate his alimony payments.

Keeping in mind that Abar was convicted of raping Carol's daughter, he nevertheless, asked the court for a resumption in support payments as well as $33,000 in past due support. There seems to be somewhat of a "loophole" in California law as it concerns domestic violence. For instance, in making determinations regarding the award of spousal support, courts will take into account, documented evidence of any history of domestic violence between the spouses. There is a "rebuttable presumption" against giving spousal support to an abusive spouse who has a criminal conviction for domestic violence against the other spouse.

Up until last year, California state law required a victim of spousal abuse to pay support to her attacker after a divorce. Governor Jerry Brown signed Assembly Bill 1522 to close that loophole, but there still happens to be no specific provision preventing child abusers from receiving spousal support.

It will be interesting to see whether the court orders a resumption of support payments. The way the law in California stands now, the court is not required to consider Ed Abar's repeated child abuse. Spousal support issues can be extremely complicated to sort through and, more often than not, require a full and comprehensive understanding of the local laws and procedures.

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April 25, 2013

In California, A Spouse's Business Debts May Be Divided Evenly in Divorce

1415802_bank_loan_concept__2.jpgDivorcing couples in San Diego, and throughout the state of California, have the complicated and emotional task of sorting through their community property to determine how to divide the assets. But spouses on the verge of divorce should also pay close attention to the debts that have accumulated throughout the marriage. Those too may be equally allocated. Each state has its own set of family laws and procedures to follow. In matters concerning property division, the importance of hiring an experienced, local divorce attorney who is well-versed in the particular laws of California, cannot be overstated.

The extent to which a spouse inherits the other's debt depends in large part on the laws of the state within which they were married. Because California is a "community property" state, debts incurred during the marriage will be evenly divided during the divorce proceedings. A recent Fox Business article focuses on what happens to a woman's credit after a divorce if her husband has a business credit card debt. The main message in the article was: the answer may vary from state to state. In most cases, it seems that the person who filled out and signed the credit card application agreement will be the one the company goes after in seeking to recover payment.

While the credit card company is known to go after the signatory when some type of wrong-doing has been detected, if the issuer of the credit card happens to win a judgment against that person, it can still seek the couple's joint assets to satisfy that amount.

There are many ways that people can protect themselves in such situations. Calling the credit card issuer directly to identify the signatory is one way to ensure that you will not be the one they go after in the event of a default in payment. Another way to protect your assets after a divorce is to make sure your funds are in your name only and clearly separate from your ex-spouse's. Of course, if the couple signed a pre-nuptial agreement, all bets are off and each party should consult with a local attorney to understand their respective rights under that contract.

Once a couple has decided to divorce, in order to understand what assets and debts you jointly have, a good idea is to make lists of everything you own and owe. Part of this task is to determine which items are considered community property versus separate property. Once you have that figured out, the logical next step is to calculate the fair market value of the assets.

Under California law, divorcing spouses are required to fill out and exchange with one another a "Schedule of Assets and Debts." Essentially, it is each party's financial declaration of disclosure. Spouses are encouraged to be open and honest in preparing the schedule of information. Even after the debt allocation is completed, there could still be issues that arise later on. For instance, when spouses agree to divide up the debts they owe, it is important to realize that the entities or people you owe the money to are not required to honor or recognize the arrangement between you and your spouse. There are many complicated issues that can arise from the division of community property, especially when it comes to marital debt.

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April 18, 2013

Former LA Dodgers' Owner Back in Court as Ex-Wife Petitions to Set Aside Divorce Settlement

216494_dodgers_baseball_game.jpgFor spouses seeking to divorce in San Diego, California law generally requires that marital property be divided equally. Identifying marital property and determining its value are critical parts of any divorce case. In some instances, a party to a divorce settlement could later argue that because of fraud or errors made in determining the value of marital property, the court should set aside the settlement. Because the value of marital property is of crucial importance to the outcome of the settlement, spouses are encouraged to hire an experienced San Diego family law attorney who will work to get the best settlement for their case.

According to a Bloomberg news article, Jamie and Frank McCourt dissolved their marriage in 2010. They announced their divorce settlement in October 2011, which allocated to Ms. McCourt a tax-free sum of $131 million. Six months after their settlement was finalized, Frank McCourt sold the Los Angeles Dodgers for $2 billion. After learning about the sale of the team, Ms. McCourt petitioned a California Superior Court judge to set aside the settlement, claiming that it was based on fraud. She contends that as co-owner of the team, she was entitled to a great deal more than the $131 million she received under the settlement.

According to some reports, it is said that Ms. McCourt received 7% of the couple's assets, while Mr. McCourt received 93%. The motion filed recently claims that after the sale of the team, less any relevant debts, Mr. McCourt's assets turned out to be worth $1.7 billion, more than 10 times the amount Ms. McCourt received in the settlement.

Although the process can become costly and time consuming, California law does provide an avenue of relief for parties who wish to set aside a divorce settlement. Under Code of Civil Procedure Section 473, or Family Law Code Section 2122, an ex-spouse may seek to set aside the settlement on grounds such as fraud or mistake, among others.

As part of her motion to set aside the divorce settlement, Ms. McCourt sought to uncover testimony from a confidential mediation proceeding between the Dodgers, Frank McCourt and various league officials. According to another article, the U.S. Bankruptcy judge who oversaw the team's bankruptcy case refused to allow Ms. McCourt access to the information revealed during the mediation sessions. In the judge's opinion, the confidential mediation was "an essential ingredient in the success" of resolving the Dodgers' bankruptcy case.

It should be clear that the best course of action is to be fully aware -- in advance of the settlement discussions -- of all of the marital property and the respective worth of each item. Ms. McCourt admitted to being surprised at herself for making such a "huge mistake" as to the value of the marital assets, namely, the baseball team. An experienced, local divorce attorney can assist you in the thorough identification and valuation of all marital property, and should conduct an exhaustive investigation of your and your spouse's marital finances.

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April 11, 2013

Kris Humphries Fails to Show Up at Court Settlement Conference with Kim Kardashian

869848_roads_sign.jpgGoing through a divorce has been described as one of the most difficult times in a person's life. In order to lessen the stress and expense, divorcing couples in San Diego may request that the court order a settlement conference with the intention of resolving any outstanding matters in dispute. By doing so, the parties may be able to avoid taking their case to trial. Under California Law, the court also has the authority to order one or more mandatory conferences on its own motion, if doing so would serve to move the case along more efficiently. Only an experienced San Diego Family Law attorney can help you to navigate a process steeped in local rules and procedures.

In what may not be such a big surprise, Kris Humphries and Kim Kardashian are encountering another little hurdle in their very public divorce proceeding. According to a recent news article, Mr. Humphries failed to show up at a recent mandatory settlement hearing with a Superior Court judge in Los Angeles. It has been reported that the judge was not happy about Humphries' absence at the conference and scheduled another hearing to determine whether he should be penalized for not appearing. One reporter said the judge believed Humphries was "mocking" the entire court system by failing to appear. In addition to that hearing, the court ordered a new date for the settlement discussions in the hopes that this time Humphries will attend. The trial is still scheduled for May 6.

The Superior Court in San Diego provides a great deal of information on its website for parties who are pursuing a settlement conference. At this hearing, a judge -- or perhaps a volunteer attorney -- helps the parties by reviewing the case and evaluating its strengths and weaknesses. The ultimate purpose is to encourage the parties to negotiate a settlement of the dispute. At this point, the judge (or volunteer attorney) would not have the authority to make any decisions or orders in the case. Often, a mandatory settlement conference is held close to the parties' trial date, giving them one last opportunity to resolve their differences before spending the time and money to endure a trial.

Before the parties attend the settlement conference, they are expected to exchange a "good faith" settlement demand and offer. The attorneys representing the parties must be fully familiar with the case and have complete authority to negotiate and settle the matter.

The Humphries/Kardashian case is interesting because he wants the marriage annulled while she is seeking a traditional divorce, despite the fact that they were married for only 72 days. Humphries has alleged that the marriage was based on fraud, claiming that Kardashian only married him because of her reality show, "Keeping up With The Kardashians".

While the Humphries/Kardashian divorce proceeding has been so extensively reported on, with paparazzi and reporters cramming the courthouse, many of the issues they are facing occur in a great deal of divorce cases. A divorce proceeding and settlement conference can be a relatively smooth process with the help of a dedicated and experienced attorney

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April 4, 2013

Under Community Property Principles, Impending Divorce Could Threaten Chief Executive's Control of Billion Dollar Oil Company

1388612_market_movements_2.jpgCalifornia is a "community property" state. This means that in the eyes of the law, a marriage makes two people one legal "community." In effect, when couples marry in San Diego, the wealth (and debts) they accumulate become community property, which entitles each spouse to one-half of the total amount. In the event of a divorce, community property and debts are typically divided equally. It is a widely accepted principle throughout the country; in some states it is referred to as "marital property."

A recent Reuters article describes the looming divorce between Harold Hamm, chief executive of Continental Resources, described as America's fastest growing oil company, and his estranged wife, Sue Ann Hamm, who has held "key posts" at the company over the years. The article focuses a great deal on the eventual division of marital property and how that will affect Harold Hamm's current controlling stake in Continental Resources, worth approximately $11.2 billion. It is unclear whether the couple had previously signed a pre-nup agreement and without one, the divorce settlement could split up Harold Hamm's 68% ownership of the company.

In this case, the company experienced a massive financial growth that took place during the course of the couple's marriage. According to the article, the stock share price increased virtually 500 percent during the five years following the initial public offering. The increase in the value of an asset during a marriage is typically deemed part of the marital property. And while this marriage falls under the laws of Oklahoma, many of the same legal principles apply as in California. In Oklahoma, just like in California, wealth that accrues during the marriage by the efforts of either spouse would usually be subject to equal distribution between the couple.

The court is expected to take a close look at what each spouse contributed to the increase in the business' financial worth. An interesting factor here is that Sue Ann Hamm was also working at the company during the marriage. In situations like these, when the issue of company control comes up in a divorce proceeding, it is reported that a spouse will likely get paid the value of the shares to which he or she is entitled.

Separate property, not subject to division between divorcing spouses, is anything that one owns before the marriage. For example, inheritances and gifts to one spouse even during the marriage are separate property. Further, rents, profits, or other money earned from one's separate property, and items one purchases with separate property are also deemed separate property.

For clarification, property is anything that can be bought or sold, such as a home, cars, clothing, or furniture. Property also includes other items that have measurable value, such as a business (as in the case here), bank accounts and cash, pension and 401(k) plans, stocks, security deposits on an apartment, life insurance with cash value, or a patent.

Determining what is marital or community property versus separate property can be complicated and typically has its roots in established local laws. Divorcing spouses are encouraged to contact an experienced Family Law attorney who practices in the San Diego area.

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March 28, 2013

California Law Requires The Surrender of Firearms for Virtually All Domestic Violence Court Orders

997480_sign.jpgFortunately for San Diego residents, California has one of the strictest laws on gun rights with respect to orders of protection. This is welcoming news to people, mostly women, who have been the victims of domestic violence. According to a New York Times article, some states do not require gun owners to relinquish their firearms, despite the issuance of an order of protection. Advocates cite constitutionally protected rights to bear arms, even in the face of a domestic violence court order. If you are involved in a domestic violence situation, it is imperative that you contact a local, experienced family law attorney to help you protect your safety and your rights.

California domestic violence laws prohibit the use of physical force or threats to traumatize household members. The laws also take into account that victims of domestic violence can include anyone with whom the alleged perpetrator shares a relationship. This may include dates, fiancées, roommates, children, current and former spouses, and biological parents of a child. Statistics show that, more often than not, when a woman dies in a domestic violence encounter, it is by the use of a gun. Advocates for victim's rights argue that the need to protect a woman's life should trump the right to bear arms.

Pursuant to California law, judges are mandated to order the surrender of firearms in virtually every domestic violence order. There is evidence that laws of this kind are making an impact: according to a 2010 study, there has been a 19 percent reduction in intimate partner homicides. In California, anyone who is served with a temporary restraining order has just 24 hours to hand over any weapons to law enforcement or they may sell the items to a licensed gun dealer.

Although these efforts are commendable, enforcement still remains an issue. In response to these concerns, the state set up a pilot program in 2006 to increase enforcement in San Mateo and Butte Counties. In 2010, when the state experienced fiscal problems, the program's funding was taken away. But San Mateo pursued other means of financing because, as far as they were concerned, their program was saving lives.

According to the head of the major crimes unit in San Mateo County, they have not had a firearm-related domestic violence homicide in the past three years. Just last year alone, they received 324 firearms by virtue of surrender or seizure from 81 people out of more than 800 protective orders. Under the program, each day a detective reviews a handful of protective orders and will follow up on the ones that make some reference to guns by going out and serving restraining orders and attempting to collect the firearms at that moment.

Threats and the use of firearms are not the only forms of domestic violence. Other examples of the infliction of a "corporal injury" on another may be accomplished through striking or hitting, exerting force or violence, cruel or inhumane punishment, physical, emotional, or sexual abuse, communicating criminal threats of harm, and neglect or endangerment of health or safety.

Anyone who is the victim of domestic violence should contact the appropriate authorities and seek the assistance of an experienced attorney to help you protect your safety and your rights.

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March 21, 2013

Appellate Court Voids Prenup on Basis of Fraud

332157_contract (1).jpgJust last month, an appeals court in New York sided with a wife who had been on the losing end of a prenuptial agreement -- and essentially threw it out. While the laws in New York do not govern marriages that take place San Diego, the unexpected decision is sending shockwaves through the Family Law community at large. Divorce attorneys throughout the country are talking about the decision, and many believe that a solidly drafted prenup will still hold up in court, despite the surprising decision. If you are contemplating marriage and believe a prenup is the right agreement for your situation, it is imperative, now more than ever, that you consult an experienced, local attorney to draft the agreement.

According to a Wall Street Journal article, four days before their wedding, Peter Petrakis asked his soon-to-be wife, Elizabeth Cioffi, to sign a prenuptial agreement. He gave her an ultimatum - if she didn't sign the document, he would call off the wedding that was already paid for by Elizabeth's father. She agreed to sign, but only after Peter promised to tear up the agreement once they had children. He also promised to put her name on the deed to the house. These last two provisions were not included in the prenup.

After having two sons and one daughter, Elizabeth claimed that Peter reneged on his end of the bargain. Under the prenup, Elizabeth is entitled to $25,000 a year. She argued in court that Peter fraudulently induced her to sign the agreement just days before their wedding. The court agreed, even though Peter's promise was not part of the prenup. It is reported that Peter will appeal the decision to the highest court in the state.

With the prenup decision under her belt, Elizabeth plans to initiate divorce proceedings and will seek half of her husband's assets, estimated at $20 million. Some divorce attorneys have speculated that this decision could be quoted in every case going forward. Others are not sure whether the ruling will establish precedent or if it will be considered a singular decision, applicable only to the facts in this case.

California law requires parties to wait seven days from the day they first see the prenup before signing the document. And as we discussed in an earlier blog post, two important rules governing prenups dictate that the agreement must be in writing and must be fair. "Fair" means that the parties are expected to disclose all relevant financial information, a party must not coerce the other party to sign, and both parties must fully understand what they are signing. As we have seen from the decision in New York, the court agreed that the prenup was not fairly executed, as Elizabeth relied on her husband's verbal promises to tear up the agreement after they had children.

In order to avoid, or at least minimize, unexpected arguments concerning the validity of a prenup, parties are strongly encouraged to contact a local, experienced family law attorney for guidance through this complicated process.

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