San Diego Divorce Attorney Blog

The California Fourth District Court of Appeals in San Diego ruled earlier this month that a parent or spouse's obligation under the Family Code to disclose changes in financial status to the other party does not extend past the date a court enters a final judgment. The court reversed the trial court's order imposing sanctions against an obligor ex-husband and father, which were based in part on a failure to disclose certain financial changes after a divorce decree was granted.

This case could have a significant impact on how California parents handle child support issues after entry of a decree, and it will be important for parents who have child support orders, both as obligor and obligee. An obligee, who receives payments from the other parent, has an interest in knowing if that parent is not paying the full amount of which they are capable.

The parties in this case have three children. All of the children were minors when the mother filed for divorce from the father in Wyoming in 2003. A Wyoming court granted the divorce in 2003. The wife and children relocated to San Diego, and a California court confirmed the decree in 2005. At the time of the divorce, the father declared an annual income of $800,000 and agreed to pay $8,500 per month in child support. The child support amount would reduce to $4,000 per month when only one child remained a minor. The father also agreed to pay monthly spousal maintenance of $12,000 for a ten-year period.

The mother brought an action in San Diego in 2007 to modify and enforce support. She requested an increase in the child support amount, enforcement of arrears on spousal maintenance, and court costs. Her financial declaration to the court indicated that she had a net worth at the time of $14 million and monthly expenses of over $40,000. The father's financial declaration showed significant changes from the time of the divorce. He had sold his business, his monthly income was less than $11,000, and he claimed to have $60,000 per month in expenses. He had earned $3 million from his business in 2006, which he had not disclosed to the mother. He had also brought in over $100 million in 2007 from the sale of the business, but later ventures had not been successful.

The mother asked for sanctions against the father for failing to disclose these sources of income. The trial court agreed, finding that he had "unnecessarily prolonged litigation" and breached his fiduciary duty. It increased his child support to $18,000 per month and ordered him to pay attorney fees and sanctions. The father appealed some of the trial court's holdings.

Continue reading "San Diego Court Places Limits on Parents' Duty to Disclose Financial Changes" »

Contra Costa County is in the process of clearing some of its old cases, and parents with an overdue child support balance may be in for a shock. The county has reportedly changed its computer systems four times in the past decade, and in the course of doing so failed to charge interest to some parents in arrears. Now it is adding interest to overdue balances on its books, including ones where previous audits indicated that no interest was due.

According to the Contra Costa Times, a glitch in the county's original software, installed in 1983, lacked the ability to calculate interest. An upgrade in 1998 included an interest-compounding function, but staffers at the Child Support Services Department were legally required to individually audit each case before applying interest charges. With a backlog at the time of over 70,000 cases, the county could not keep up with such audits. A statewide computer system to track child support payments took over individual county systems in 2008, but cases from before the 1998 upgrade in Contra Costa County still may not have interest applied to unpaid amounts. The Department estimates that about 1,000 cases remain from that period, and that it will need six months to audit them all.

A serious problem with many of these cases is that it will unexpectedly hit parents with an enormous bill that they almost certainly cannot pay. Although California law clearly permits the county to charge interest on overdue payments, the fact remains that substantial time had gone by with no notice to the obligor parents. The Times quotes one parent, now on Social Security disability, whose total overdue balance went overnight from $1,842 to $55,806 once interest was applied. The man states that the missed payments occurred between 1991, when he could no longer work due to health issues, and 1999, when the state began taking payments from his disability checks. The state never notified him of accrued interest on his missed payments during that time, although some bills noted that the balance "may not include accrued interest." His two children, the nominal beneficiaries of his payments, are now in their 30's, and his ex-wife continues to collect the payments.

The other side of the argument, of course, is that the obligee parent presumably had custody of the children and paid for their care the whole time the other parent's debt accrued. From the standpoint of that parent and the children, generally speaking, they simply were not receiving money to which they had both a need and a legal right. Just about any other debt includes interest penalties when it goes unpaid, so a lack of notice from the state may not be such a great excuse.

Continue reading "Northern California County Pushes for Overdue Child Support" »

You have heard that California divorce courts make child custody decisions based on the Best Interest Of The Child. Therefore, if mom is primarily available to raise a child and she's doing a good job, while dad is hard at work making a good income, then, while unfair to some, it's easy to see that the court will order primary physical custody of the child to mom. Further, the court would order dad to pay a significant amount of child support. However, what if mom does something that causes mom to lose much of her custody time to dad? Would the court still order dad to pay a significant amount of child support to mom?

As a San Diego Certified Family Law Specialist attorney, much of my time is spent in reading new cases and following changes in family law and child custody law. In researching, I came across an appellate court decision at the same time pop celebrity news was circulating the story of Jon Cryer's failed attempt to substantially lower his child support. This celebrity divorce story combines all of the elements of interesting news and legitimate legal education as to California child custody and support law. Actor Jon Cryer divorced Sarah Trigger in 2004. Reportedly, after a change of the custody order where Sarah only has a four (4) percent time share with the child, Jon motioned the court to terminate or greatly reduce his child support order. His motion failed; he appealed and lost. Why?

When the divorce judgment was entered in 2006, Sarah had a 65% time share of the child and Jon (actor on the popular Two and a Half Men TV show) was ordered to pay $10,000 per month in child support. Within a few years after the divorce, the court intervened and removed the child from Sarah pursuant to a report (and evidence presented) regarding neglect. Jon requested that his child support order be lowered to zero as Sarah, for all practical purposes, no longer was raising the child. The court reduced Sarah's child support from $10,000 per month to $8,000 per month even though her custody time had been reduced from 65% to 4%. Jon appealed however was he overlooking the factors of the child's "best interest" and his overall income available for support?

Continue reading "How Does Child Custody and Child Support Go Hand In Hand?" »

CBS 8, San Diego, reports a story of a congressman who reportedly owes over $100,000 in unpaid child support. Those opposed to the politics of the congressman are responding to this news by stating that his career is not effectively over. That he cannot go out into the public and campaign or speak as to financial matters when he cannot legally and properly handle his own financial matters. The congressman reports that the news stories are politically motivated and that individuals are attacking him to make him less effective as they disagree with his political views.

As a San Diego Certified Family Law Specialist attorney, my office handles cases involving the two family law issues that go hand in hand, namely child custody and child support. The child support laws in California provide that there are many factors that will determine the amount of a child support order. One such factor is the amount of child custody time that is awarded to the child support paying parent. In other words a parent who has 50% child custody will pay less child support than a parent who has 20% child custody.

I further researched the child support delinquency problem and found a web page that claims that it has the father's point of view. Whether or not this is true, it quoted government sources that provided interesting statistics as to this problem. In a study from many years ago, $10 billion per year in child support in not paid. Likely the unpaid child support is much higher now than at the time of this study. The article goes on to state that government is not very effective in collecting unpaid child support. At this point I turned to the National Coalition for Child Support Options. The NCCSO is an organization that describes itself as a coalition of people from all around the country who are devoted to address the "national epidemic" of unpaid child support.

Continue reading "California Divorce Report: Child Support News" »

On May 30, 2011, Monday, it is a beautiful day in La Jolla California where my family law office is located. Same as the weather slightly north from San Diego where Maria Shriver is putting together her petition for dissolution of marriage, according to reports, and finalizing her divorce plans against Husband A. Schwarzenegger. As this blog predicted a few days ago, Rogelio Baena, former Husband to Schwarzenegger's alleged sex partner, Mildred Baena, is expressing his anger directed at Schwarzenegger as reported in several news stories and we expect that he is also using this Memorial Day for his law suit planning. As a San Diego Certified Family Law Specialist lawyer I'm reviewing the latest news reports as to this developing story as the California divorce implications are significant.

At this point everyone needs a refresher course on the participants to this looming legal battle: Schwarzenegger--Husband to Maria Shriver. Maria Shriver, wife to Schwarzenegger in a California long term marriage (over twenty years). Mildred Baena is the alleged mother of Schwarzenegger's child and a former household employee of Schwarzenegger-Shriver. And, Rogelio Baena, described above, the former Husband to Mildred who reportedly states that he thought the child (of Mildred and Schwarzenegger) was his.

At this time it is anticipated that the family law attorneys and others, for Mildred, Maria and Rogelio are designing petitions and complaints directed at Schwarzenegger. Under California community property laws, 50% of Schwarzenegger's reported $400 million estate belongs to Maria (except for separate property belonging to Schwarzenegger and/or monies protected by a prenuptial agreement if there is one). Mildred will seek child support (which would be gigantic under California child support guideline laws) plus she may file a "Marvin" case against Schwarzenegger whereby she would allege that Schwarzenegger is obligated to provide support or other funds to her pursuant to contract law or trust law legal theories. Rogelio will claim, if he files, that he was the victim of Schwarzenegger's reported extramarital activities and has suffered great emotional harm.

Continue reading "Divorce California Style" »

The child custody implications of the Arnold Schwarzenegger extra marital activities has been largely ignored as the news media focuses on the monetary cost of the Schwarzenegger divorce. As a San Diego Certified Family Law Specialist attorney, I've been looking for a report on the custody, child support part of this news story. The Washington Post, in an article published on 5/25/11, is the first article that I've seen that addresses this subject. Namely, that Schwarzenegger allegedly fathered a child outside of his marriage with Mildred Baena, while Mr. Baena, Mildred's ex Husband, states in shock that he thought that he (Mr. Baena) was the father.

The monetary cost of the marriage is a good angle to the story. Reportedly Schwarzenegger earned $400 million during his long term marriage to Maria Shriver. Did Maria Shriver and Schwarzenegger have a premarital contract prior to their marriage? While I haven't seen the answer to this question in any article I believe that if there is a prenuptial contract, it likely was limited to property identification instead of the more aggressive prenup types (for example, waiver of spousal support or limited payment to spouse in the event of a divorce). After all, Schwarzenegger was marrying into the Kennedy family and he might have thought that his assets were irrelevant. If this prediction is correct, Schwarzenegger is about to learn more about California divorce economics.

Back to the custody, and (to some--more importantly) the child support issue, if Ms. Baena was cohabiting with her Husband, Mr. Baena, when the child was born, and Mr. Baena was not impotent or sterile, then Mr. Baena is conclusively presumed to be the father of the child - except as provided in Family Code Section 7541. Family Code Section 7541 states the procedure for challenging paternity, by the presumed father, within the first two years of the child's life. Since this child is more than two years old, Family Code Section 7541 is not available to Mr. Baena. Has there been a judicial finding that Mr. Baena is the father of this child? That may have been done by the California Superior Court in a divorce between Mr. and Ms. Baena.

Continue reading "The Cost of a California Divorce" »

Monsters 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.

Continue reading "San Diego Divorce Report: Miley Cyrus Blames Herself for Parent's Divorce" »

As 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.

Continue reading "Divorce Issues of Custody and Support Raised by Former San Diego Athlete" »

News reports continue regarding the Mel Gibson case and two of them are described in this blog. As you may know, Mel Gibson, affluent Hollywood actor commenced a relationship with Oksana , Russian pianist. A child reportedly of this relationship was born on October 30, 2009. During the summer of 2010, Oksana obtained a restraining order against Mel Gibson wherein she claimed domestic violence. A number of voice tapes found their way into the media. Recently there was a report that the tapes were altered in some way. Law enforcement has yet to decide whether or not to prosecute Mel Gibson; and last, but not least, Oksana filed for and received a temporary child support order. Reportedly, Mel Gibson pays Oksana $5000 per month plus he pays the expenses (in an amount unknown) for a home in Los Angeles where Oksana and the child lives.

This blog has previously reported on the Mel Gibson-Oksana Grigorieva case. Particularly as to the Domestic Violence Restraining Order and the tape recording evidence that is being used in Oksana's case and which may itself constitute a legal violation.

As a San Diego Certified Family Law Specialist attorney who has handled many cases of this nature, I can see that the parties are actually moving toward expanded litigation in court at this time. Occasionally, behind the scenes negotiations are moving forward in an effort to settle the case; however here, all of the reports lead this blog to conclude that settlement is not necessary. Consider the following reasons:

Continue reading "California Divorce Update: Mel Gibson" »

This blog has posted several articles on the Jamie and Frank McCourt divorce and specifically the legal issue as to the validity of a post marital agreement signed by Mr. and Mrs. McCourt by which Frank McCourt claims sole ownership to the LA Dodgers baseball team. The trial is ongoing at this time as to this issue in a California divorce court. A LA Times article describes the second day in trial. To the surprise of many, Jamie McCourt had a great second day in this trial.
Meaning of post nuptial agreement: A "premarital" or "prenuptial" or "ante nuptial" agreement all mean the same thing--an agreement before the marriage. A "post marital" or "post nuptial" agreement is an agreement finalized after the marriage. These agreements are permitted under California law; however California limits what they can do. They can change the ownership of property; change property characterization; for example, community property to separate property or separate property to community property. They can provide for the amount and duration of spousal support. They cannot dictate child support or child custody. San Diego Certified Family Law Specialist attorneys frequently create and review premarital and post marital agreements.

The post marital agreement in the McCourt case transferred all ownership of the LA Dodgers to Frank and transferred the real estate to Jamie. Or did it? Frank has entered into evidence a signed post marital agreement that transfers the team to him. However, Jamie has now entered a signed agreement into evidence showing that Frank transferred all of the homes to Jamie and it does not mention the Dodgers. So, we have two signed agreements. Further, bank and loan documents indicate that the parties were acting co-owners to the team. Further, loan documents, signed by the parties showed that a loan was made to both of them as co-owners. Under California law, a loan creates funding and the money is either community property or separate property in character depending on how the loan was arranged.

Continue reading "California Post Marital Agreement--Or Not?" »

As a La Jolla divorce attorney, I have seen many Petitions for divorce (dissolution of marriage) in the San Diego Superior Court. Many simply glance at the petition document assuming that the document only contains superficial information. I don't agree. This blog will examine the petition for divorce by Patricia Arquette wherein Patricia Arquette is the Petitioner and Thomas Jane is the Respondent.

Brief background: Patricia Arquette was born in 1968 and is 42 years old. She was raised in an actor centric family; commenced her acting career in 1986 and has appeared in many Hollywood movies. She was married to Nicolas Cage for 6 years and has been married to Thomas Jane since 2006.

On August 13, 2010 Patricia Arquette filed for divorce in the Central District Los Angeles Court. She lists one child, age 7. (This blog does not provide names of children.) The child was born three years prior to the marriage. Therefore there is a potential "Marvin" case which the attorneys will consider. (Michelle Marvin sued actor Lee Marvin to establish her common law marital rights as she and Lee were never married.)

She lists some separate property (for example, "jewelry") but states that there are other items which are "not presently known". As to community property Patricia Arquette states that there are such items however they are also "unknown". Some attorneys seek to extensively list all separate property and all community property however I don't see the value of doing this in the Petition. Possibly the "unknown" statement could be attacked as disingenuous. I like to simply state that the items will be listed in the mandatory Preliminary Declaration of Disclosure. The Declaration of Disclosure is mandatory in divorce cases and lists property, debt, income and expenses.

Continue reading "Arquette California Divorce Petition Analysis" »

A San Diego divorce news report summed up the Sandra Bullock Jesse James marriage and divorce. Here, a San Diego divorce attorney provides an analysis to the case. What did we learn? How did the parties go from picture perfect marriage, to divorce in an instant? Why didn't Sandra see the high probability of this ending with divorce?

The San Diego news story originated from work performed by AP Entertainment writer, Sandy Cohen. It's a well researched article and added to my knowledge of this case. Reportedly, the couple met in 2003 and married in 2005. So many marriages that end in divorce were marriages entered into by impulse. Here, two years of dating should have exposed all personality traits and faults. However, reportedly, Jesse was married twice previously and this was Sandra's first marriage. Sandra was approximately 41 years old when she married Jesse. Reportedly, Sandra had previously dated actors (for example, Matthew McConaughey), and football star Troy Aikman. At age 41 wouldn't she be a fairly good judge of character? And, how did she go from the clean cut type to Jesse?

The 'not previously married' phrase may be the answer; however at age 41 and after dating Jesse for two years one would think that she knew what she was getting into. The Discovery Channel reportedly linked Jesse's genealogy to the infamous Jesse James outlaw. However more recently, his second wife was reportedly an adult movie actor. One reasonable conclusion is that Sandra took a calculated risk and proceeded with the marriage believing that the relationship would be beneficial to her career.

Continue reading "Sandra and Jesse are 'no mas': Analysis" »

This blog has previously considered the numerous family law issues involved in this case. The latest news is that the couple is close to a settlement. San Diego child custody attorneys have been following the custody and move away issues in this case. This posting will consider the settlement issues that should be involved once the news breaks.

Cash To Tiger's Wife Elin: Reportedly $750 million. All news sources are going with this amount so there is a likelihood that the amount has been leaked to the press from someone inside and this is probably an accurate number. Reportedly, Michael Jordan paid his ex Wife slightly less than this amount so the amount is not out of line with previous settlements paid by multi millionaire sports stars.

Compare Settlement with Musk Case: This blog has posted an analysis of the Elon and Justine Musk divorce. Reportedly, Mr. Musk, CEO of SpaceX and Tesla automobile companies, has "run out of cash" which is a problem since Mr. Musk reportedly acknowledges that his monthly expenses and Ms. Musk's monthly expenses are approximately $200,000 per month. There are two major differences between these two cases: Mr. Musk heads up private companies. The income available for support is debatable. Expert, forensic witnesses may be paid over $100,000 to prove that there is no money in these cases. Tiger's income is transparent. Further, there was a post marital agreement in the Musk case which, if upheld, will limit the settlement paid to Ms. Musk.

Continue reading "San Diego Divorce Analysis: Tiger Wood's Possible Divorce Settlement" »

I was in law school when the divorce law changed in California. In this county we went from San Diego Divorce fault evidence required, to Divorce No-Fault. For those who have not lived in a fault state, California divorce at one time required that the Petitioner filing for the divorce provide sufficient evidence to the divorce court proving that he/she is entitled to a divorce pursuant to the grounds for divorce as specified in the divorce law. For example, this might require proof of adultery, or abandonment, or some type of cruelty claim. San Diego Certified Family Law Specialist attorneys must regularly review changes in the law as the legal system quickly evolves.

New York State is now debating whether to change from a fault state to a no-fault state. There have been some informative articles in the New York Times as to this debate. In a recent article opposing points of view are described which accurately capture the pros and cons of the issue. Here is a summary of some of the points:

Children: A woman described her opposition to no-fault as it adversely affected children. However her argument was that it really was a disadvantage to stay at home moms who were raising children. She stated that child support and spousal support does not support the marital standard of living. The divorce would adversely affect them economically and I have witnessed this in La Jolla divorce cases.

Too Easy: Another woman expressed her fear that no-fault opened the door to adultery and children born out of wedlock and that appeared to be a step backwards morally.

Continue reading "California Divorce Laws: Whose fault is it?" »

On April 29, 2010 I posted a blog predicting a child custody move away maneuver by the Wife of Tiger Woods, Elin Nordegren. I referenced that Elin is Swedish. She bought a multimillion dollar home in Sweden during the marriage (why? could she see this coming?). During the separation from Tiger, after the facts first surfaced as to Tiger's extramarital activities and the alleged golf club attack on Tiger, Elin took the children to Sweden. She claimed it was for a short trip. Tiger didn't want her to go. The couple reportedly was seen arguing over this trip. My blog concluded that Elin was moving the children back to Sweden and this was prior to any such news report.

Timeslive.com just reported as to the status of divorce negotiations between Tiger and Elin: First, she reportedly wants $750 million as a settlement payment. Second, Tiger wants a confidentiality clause. Third, Elin wants full custody of the children.

Let me tell you what this report means, if true: Tiger's wealth is not fully known however the amount that Elin is reportedly requesting is not surprising. She is entitled to a share of the marital property as well as spousal support and child support. Tiger Woods is a business that makes money from multiple sources. For example, professional golf and endorsements. Tiger is going to cave into Elin's settlement demands as he wants no more publicity about the divorce as this publicity always returns to reports of Tiger's extramarital activities. Such reports kill off endorsements and this is costing Tiger millions.

Continue reading "California Child Custody Move Away Issues Considered Through Reports Regarding Tiger" »