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June 12, 2014

California Courts Oversee Amount of Child Support

my-last-cash-5-1138574-m.jpgWhen parents divorce, they must address many serious and life-changing issues, including custody, visitation, and child support. In many cases, these issues will arise during family law proceedings involving parents who never married but had children together. Whether or not the couple was married, they are legally obligated to ensure that the best interests of their children are met, even after they split up. One way to do that is to provide child support, a court-ordered amount of money that one or both parents is required to pay for the support of the child. California law provides a set of guidelines for the court to consider when calculating that amount. To protect the financial interests of your family, you are encouraged to contact a local San Diego family law attorney with extensive experience handling such delicate matters.

The amount of child support ordered by a court can vary a great deal, depending on the circumstances and financial well-being of the parties. In a recent highly publicized case, a California Superior Court judge approved a child support agreement between Halle Berry and her ex-boyfriend Gabriel Aubrey in the amount of $16,000 a month. Ms. Berry will be required to pay Aubrey nearly $200,000 for the support of their one daughter until she graduates high school or turns 19 years old, whichever date comes first.

In this instance, it seems that the parties who had recently been arguing over certain custody matters have come to a mutually acceptable agreement for support. If they had not, the court would have reviewed the statewide guidelines for calculating the amount, including each parent's income or earning potential, the number of children they have together, the amount of time each parent spends with the children, their respective tax filing status, any support of children from other relationships, and health care and day care costs, among other factors.

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June 5, 2014

Court Upholds Divorce Judgment by Default, Despite Allegations of Fraud

calendar-840874-m.jpgCalifornia is a no-fault divorce state. This means that if one person wants to end the marriage, the court has the power to do so, without any "cause" and even if the other spouse does not want it to end. It is important to understand the laws affecting the dissolution of marriage in California. Once a party files a petition for divorce, the court has the authority to enter a default judgment of dissolution if the other party fails to respond to the petition. But failing to respond to a petition could result in a forfeiture of any rights under the proceedings. Since the manner in which a spouse responds to a divorce petition can affect his or her rights to property, custody, and support, people are encouraged to consult with an experienced San Diego family law attorney as soon as possible.

In a recent case, a California court entered a default judgment of dissolution back in 2007, at the husband's request. More than five years later, the wife filed a motion to set aside the default judgment on the basis of fraud. Under section 2122 of the California Family Code, a party may set aside a default judgment based on fraud, but that action must be brought within one year of the date that the moving party discovered the fraud or should have discovered the fraud.

In this case, the parties were married in 1997 and had one child the following year. In 2006, the husband filed a petition for dissolution of marriage. There seems to be no question as to whether the wife was aware of the proceedings, since she personally appeared in court on three separate occasions in the spring and summer of 2006. The wife, however, failed to respond to the divorce petition. At this point, the husband asked the clerk to enter the wife's default. On February 16, 2007, the court entered a default judgment of dissolution, which provided for joint legal custody, with primary physical custody to the mother. The facts reveal that neither the request for entry of default nor the notice of entry of judgment was served to the wife's proper address.

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May 29, 2014

Highest Court in California Rules Life Insurance Policy is Community Property

bank-loan-concept-2-1415802-m.jpgWhen people get divorced in California, the law mandates that their "community property" be divided equally between them. This means that any property accumulated during the marriage, with the exception of inheritances and gifts, is subject to even distribution. While this sounds like a simple premise, if the spouses have property and assets of significant value, the whole procedure can become complicated fairly quickly. To ensure that you are sufficiently aware of the marital assets to be divided between you and your spouse, it is important that you consult with an experienced San Diego family law attorney as soon as possible.

Properly preserving the right to marital property that is eligible for distribution has the potential to affect each spouse's future financial position. By most accounts, this is a critical phase in the proceedings. One challenging aspect is determining what is separate and community property, respectively. A recent court of appeals case involving Frankie Valli and his wife, Randy Valli, addressed the issue of whether a life insurance policy is deemed community property to be split during the dissolution of the marriage. The parties had been married for 20 years when they decided to separate in 2004. The year before the separation, the husband used community property funds from a joint back account to pay for a life insurance policy valued at $3.75 million. His wife was named the sole owner and beneficiary.

At trial, the court determined that the life insurance policy was community property because it was acquired with community funds during the marriage. In crafting its judgment, the court awarded the policy to the husband but required him to buy out his wife's interest, namely one-half of the policy's cash value at the time of trial. The court of appeals reversed, concluding that the insurance policy was the wife's separate property.

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May 15, 2014

Spouses File for Divorce in Separate States, Which Court Has Jurisdiction?

usa-map-869935-m.jpgMaking the decision to divorce is no simple task. Very often the decision is made somewhat reluctantly, since couples typically must address many emotional and painful issues in order to reach that point. But once the choice is made, parties must realize that there are procedural steps to take in order to preserve and protect one's legal rights, whether it be for child support, spousal support, custody and visitation, or rights to certain marital property. The California family code governs family law matters in the San Diego area and throughout the state. If you are facing dissolution of marriage, you are encouraged to contact a family law attorney who has extensive knowledge of the local laws and procedures.

In a recent divorce case, the husband and wife were living in different states when they decided to end the marriage: California and Colorado. Both parties had significant ties to California before they were married. The husband founded a company in Mountain View in 1992 and later relocated another company he founded to Palo Alto. The wife went to Stanford University and later to the University of California at Berkeley for a law degree. She was admitted to practice law in California in 1987. The couple got married in 1999 in Carmel. But during their marriage, they lived with their three children primarily in Aspen, Colorado.

According to the facts of the case, between 2002 and 2011, the parties were registered to vote in Colorado, paid state income taxes only to Colorado, and had Colorado state driver's licenses. Despite this connection to Colorado, the parties also maintained ties to California. They own real estate in Carmel and two homes in Los Altos. The husband also maintains an airplane hangar and an apartment in Monterey. Additionally, the couple founded a company in Sunnyvale, California. Typically, the husband worked in California during the week and flew back to Aspen each weekend to be with his family.

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May 8, 2014

California Court May Modify a Child Support Order Issued in Another Jurisdiction

simple-earth-2-1358288-m.jpgDivorce can take a toll on many aspects of a family's life. There are decisions to make that will affect the parents and children - both emotionally and financially. The financial implications of divorce can be measured in different ways - from an award of child support and/or spousal support, to the division of marital property. No matter what the issue, it is imperative that you protect your rights every step throughout the sometimes-complicated procedure. One of the most effective ways to accomplish this is to contact a local San Diego family law attorney as early in the process as possible.

As most people know, child support is an amount of money that a court orders a parent or both parents to pay each month for the support of the child and his or her related living expenses. Child support is a very serious matter. In California, courts cannot enforce a child support obligation without an official order of support. Questions have arisen as to what power a court has to modify an order for child support that has been rendered in a different jurisdiction.

For example, a recent case involved a dispute over a California court's jurisdiction to modify a child support order that was rendered in Mexico. The father claimed that the court did not have subject matter jurisdiction under the Uniform Interstate Family Support Act (the "UIFSA"), because his "domicile and residence" is in Mexicali, Mexico. Here, the parties were married in Mexico in 1990 and in 2000, entered into an agreement for divorce in Mexico. The agreement required the husband to pay monthly child support in the amount of 1,000 pesos for each of the two children.

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April 24, 2014

Wife's Conduct During Divorce Proceedings Factors into Court's Division of Marital Assets

market-movements-3-1388613-m.jpgDivorce is often synonymous with acrimony. Whether you live in San Diego or New York City, divorcing spouses typically face many difficult and potentially divisive issues, such as spousal support, identification and division of marital property, child custody and support (if there are children from the marriage), and many other logistical, financial and emotional considerations. And while some cases are worse than others, in terms of the extent of the spouses' civility and courtesy toward one another, there are couples that, with the proper guidance, can dissolve their marriage in an efficient and civilized manner. Reaching out to an experienced family law attorney, who is fully familiar with the legal procedures in and around the San Diego area, will surely help the parties to approach the case with poise, dignity and a strong sense of what they can expect every step of the way.

A recent case making news headlines on the east coast is a prime example of the need to "keep your cool" during a divorce proceeding. A New York judge found that the wife's conduct in bad mouthing her husband on various websites and in a New York newspaper article, contributed to a decline in value of the husband's partnership (along with the economy). According to reports, the wife was the source of a newspaper article that reported that the husband bought a $215,000 diamond engagement ring for his "model fiancée" - but allegedly refused to spend $12,000 for his daughter's hearing aids.

The husband is a corporate partner at a law firm. He claimed his earning potential is largely derived from his ability to bring in business. At trial, the husband argued that his wife's conduct from the beginning of the divorce has interfered with his ability to retain clients, causing the value of his partnership interest to decline. The court found that the evidence established that the wife's Internet postings injured the husband's professional standing and ability to keep his clients, citing "incessant postings and discussions about her husband."

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April 3, 2014

California Court Denies Wife's Request for Attorney's Fees in Divorce Proceedings

law-education-series-3-68918-m.jpgThe overwhelming sentiment is that parties to divorce proceedings should be represented by counsel, especially when there are children involved. There are many intricate legal details and requirements that must be followed throughout the entire process. For example, the California Family Code governs many issues that arise during the dissolution of a marriage. And the law certainly serves to protect the interests of parties to a divorce proceeding. If you are considering divorce, it is important to consult with an experienced San Diego family law attorney as early in the process as possible.

Because legal representation is particularly helpful to "level the playing field" in a divorce proceeding, state law provides that courts must make sure that each party has access to an attorney. Specifically, Section 2030 of the California Family Code provides in relevant part that in a dissolution of marriage proceeding, as well as any proceeding following the entry of a related judgment, the court shall ensure that both parties have access to an attorney. According to the statute, this includes access early in the proceedings, to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party to pay to the other party, an amount that is reasonably necessary for attorney's fees as well as other costs associated with maintaining or defending the proceeding.

In a recent case, the wife sought "need-based" attorney's fees (among other relief) in a divorce trial that lasted four days. The trial court refused to award the relief she requested, finding that the evidence did not support such a ruling. The court found that there had not been a disparity in access to funds to retain counsel and that neither party was in a position to pay the attorney's fees and costs of the other party. The wife appealed this ruling, arguing, 1) that her husband's testimony lacked credibility and, 2) that he made frivolous motions and forced her to compel his mandatory disclosures.

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March 27, 2014

California Court of Appeals Affirms Denial of Spousal Support

colorful-symbols-2-949759-m.jpgSpouses who seek to divorce are often faced with many emotional and practical decisions. Breaking up a family can be a very trying time for everyone involved. But there are issues that must be addressed, including financial matters that will likely affect the family's lifestyle going forward. For example, in California, courts have the discretion whether to order one party to pay for the support of the other, i.e., spousal support, for a certain period of time after the divorce. But keep in mind that spousal support is not mandatory. If you are considering a divorce, it is critical that you contact an experienced family law attorney from the San Diego area who can help to protect your financial interests in the outcome of the proceedings.

In a recent case, the court of appeals agreed with the trial court in its refusal to award spousal support to the wife. Here, the parties were married in 2005, had one child in 2007, and subsequently separated in 2011. The husband graduated from high school and works at a country club as a "starter." His earnings total between $3,000 and $3,200 per month, plus an annual bonus during the holidays. The wife has an Associate's degree in accounting. While she worked as an accountant at the same country club, she had to leave her position due to a significant illness that left her hospitalized and in a coma for a time.

During her hospitalization and then after she was released, the wife took high doses of narcotic painkillers. Just before the couple separated, the wife attacked the husband in a domestic violence incident. The court issued a two-year restraining order against the wife. At the divorce trial, the court awarded the husband sole physical custody of the child and denied the wife's request for spousal support. She appealed.

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March 20, 2014

California Court Reviews Standard for Renewing a Domestic Violence Prevention Restraining Order

law-badge-1164850-m.jpgDomestic violence is a very serious matter. Whether you have been the victim of domestic violence or accused of the crime, there are many important issues to address. The first, as far as a victim is concerned, is one's future safety and protection from harm. There are various remedies available under California law for victims and those who have been accused. In order to determine your rights and the laws applicable to your case, it is critical that you contact an experienced family law attorney who is fully familiar with the legal procedures in and around the San Diego area.

In a recent court of appeals case, the ex-wife sought a renewal of a domestic violence restraining order that had expired. The trial court refused to grant the renewal, citing applicable law - and concluding that the facts of the case did not support such renewal. The court of appeals reversed, pointing to the lower court's erroneous legal conclusions. Here, the couple divorced in May 2010 after seven years of marriage. During the divorce proceedings, the wife filed a request for a domestic violence prevention restraining order against her soon-to-be ex-husband. In support of the request, she described a history of verbal and physical abuse by her husband. She alleged that on various occasions, he slapped her, shoved her to the ground and attempted to choke her. In 2009, the court issued the protection order for a term of three years.

In July 2012, the ex-wife sought to renew the order, claiming that she still feared her ex-husband due to the abuse during the marriage. She further described various instances where he violated the original restraining order. The trial court denied the request, concluding that it did not meet the legal standard of "a reasonable apprehension of future physical abuse." The court pointed out that not only did the abuse occur a long time ago, but also it was of a nature that would not - alone - support renewal of the order. Significantly, the court concluded that because nothing happened in three years, there was no "reasonable apprehension." The ex-wife appealed.

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February 13, 2014

California Court of Appeals Sets Forth General Law Regarding Division of Marital Property

mortgage-and-money-6-966070-m.jpgCalifornia is a community property state. This means that marital property -- items acquired during the marriage -- will typically be divided equally upon divorce. A significant part of most divorce proceedings is identifying (and then valuing) marital property. But there are many complicated factors to take into account, such as whether one spouse or another separately holds the title to any of the property accrued during the marriage. To protect and maximize your rights in a divorce proceeding, it is essential that you contact an experienced family law attorney who is well versed in the local laws and the San Diego court rules and procedures.

In a recent California court case, the wife appealed from a judgment in her marital dissolution action. She argued that the trial court erred by identifying certain property as belonging solely and separately to her husband, including real estate as well as rights and benefits in a pension plan. The couple's first marriage together lasted from 1974 to 1986 when they divorced. They chose to remarry in 1990 but later separated in 2007, and are now going through their second divorce. At various points throughout these proceedings, the parties were represented by counsel, but as of the date of trial, both spouses were representing themselves.

Before, and during their marriage, the parties acquired various real properties in California, Nevada and Mississippi. At some point after the separation, the court approved the parties' stipulation that they each would retain temporary possession of certain personal property that they would not sell or otherwise dispose of until the court issued an order. The trial lasted two days and each spouse presented various items of evidence. The court ultimately handed down several findings, identifying certain real properties as belonging separately and solely to each of the spouses, respectively. The court also awarded each party the furniture and furnishings currently in his or her possession.

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January 9, 2014

California Court of Appeals Affirms Decision Ordering Wife to Reimburse Husband's Spousal Support Payments

mortgage-and-money-2-963935-m.jpgDuring separation or divorce, spousal support is the payment that a court orders one spouse to pay to the other, on a monthly basis, for general support. Determining the amount of spousal support is a complicated process, and one that is not governed by any specific legal guidelines. The amount awarded fluctuates from case to case. Parties are encouraged to consult with an experienced San Diego family law attorney, someone who has detailed knowledge of the local laws and practices. Doing so will help to ensure that your right to receive a suitable amount of support is met (or to protect you from paying an unreasonable amount of spousal support).

Many surprising disputes have arisen over the right to receive spousal support in family law cases throughout California. In a recent court of appeals case, a husband sought to terminate his spousal support payments to his wife based on evidence that she remarried. The wife opposed the motion, arguing that she never actually remarried, but rather, merely procured a marriage license in Arizona without "consummating" the marriage. The parties later obtained an annulment, which she claimed was not the same as a divorce.

Here, the parties were married in 1985 and had two children who are both adults. The wife filed for divorce in 2000 and the judgment of dissolution was entered in 2001. After being awarded a temporary monthly support of $1,423, the wife was later awarded $2,400 in spousal support for five years beginning July 2002. At that point, the husband was also ordered to pay wife's attorney's fees of $25,000. Five years later, in October 2007, the wife sought a modification of spousal support - to permanent support, claiming that she had several medical conditions that prevented her from obtaining full-time employment. In June 2008, the court reinstated the $2,400 monthly payment, and the following year the award became permanent. The court ordered the husband to pay additional attorney's fees of $10,000.

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December 26, 2013

California Court of Appeals Reviews Characterization, Valuation and Division of Wife's Bonuses in Divorce

dollars-1412644-m.jpgWhen it comes to divorce and the division of property, spouses should understand that California is a community property state. This means that an integral part of the marriage dissolution process entails the characterization of property as community, separate or quasi-community. This is a critical stage in the divorce proceedings, as proper characterization of property can impact the family's lifestyle long after the parties have gone their separate ways. A San Diego family law attorney, with extensive experience handling divorce and related matters, can be a tremendous asset when working through property division issues.

Under California Family Code section 760, there is a presumption that any property acquired during the marriage, by either spouse - other than by gift or inheritance - is considered to be community property (unless traceable to separate property sources). In order to determine whether property is community or otherwise, the parties (and/or the courts) must ascertain the time period during which the property was acquired. In a recent unpublished decision, the court of appeals was asked to review a trial court's ruling concerning the characterization, valuation and division of a wife's employment-related bonuses. In this case, there were several bonuses at issue, either conditionally received or earned from her employer before the couple separated.

The spouses argued over whether and to what extent the husband was entitled to the wife's "book of business" and certain bonuses that her employer, Wells Fargo, conditionally agreed to pay her. The trial court awarded the wife's book of business to her, concluding that since she could not sell her client list, it had no value and the husband, therefore, had no interest in it. The lower court also ruled on the status of several other bonuses, holding that a portion of a "transitional" bonus was earned before the separation and constituted community property subject to division. As for the other bonuses, the court ruled that they were the wife's property because they were not paid or due until after the parties separated.

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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 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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