San Diego Divorce Attorney Blog

Yet another Hollywood love story is coming to an end with the news last month that comedian Russell Brand filed for divorce from singer Katy Perry. The couple had gotten married just over a year earlier, in a traditional Hindu ceremony in Rajasthan, India on October 23, 2010. Brand filed for divorce on December 30, 2011, citing irreconcilable differences.

The news of their split first brought on speculation about the division of property, since Brand reportedly refused to sign a prenuptial agreement. With no prenup, they could end up with a straight 50/50 split of the marital estate. Perry likely has the bigger fortune of the two, meaning that Brand may end up collecting a large share of her assets, something of a reversal of the stereotypical situation in high-profile divorces. She reportedly made about $45 million during their fourteen months of marriage from touring and endorsements. Brand, meanwhile, made somewhere between $6 million and $8 million during that time. This is no small sum, but it pales by comparison. They also own a Los Angeles mansion valued at around $6.5 million.

Their split has brought up an interesting question not often seen in California divorces--at least, not in California divorces outside of Hollywood. Reports from their wedding indicated that Brand gave Perry an unusual gift, a female Bengal tiger named Machli who lived at Ranthambhore National Park, where they held their wedding. In the realm of extravagant wedding gifts, Machli is perhaps among the most unusual. This led some to wonder what would become of Machli in the divorce proceeding.

According to The Today Show, the couple never actually brought the tiger back to California. Instead, it remained in its habitat at the national park in India, which is partly a tiger preserve. The money Brand "paid" for Machli would go towards her care and conservation plans at the national park. Divorces occasionally bring up complicated questions about ownership or custody of pets, and those disputes can be as contentious as custody battles over children. In this case, however, the gift of the tiger was more symbolic than anything else. Since the tiger is not present in California, and it is unlikely that Brand or Perry ever obtained anything like legal title, it probably will not be part of any property division.

Continue reading "California Divorce Report: Russell Brand's Unique Wedding Gift to Katy Perry Never Left India" »

With the start of a new year, new laws go into effect around the country. Most are unremarkable, but every so often something interesting happens. Passage of the Domestic Partnership Equality Act (DPEA), known colloquially as the "Gay Divorce Bill," in California is a major event in the ongoing debate over same-sex marriage. With states adopting different laws relating to same-sex marriage, and the federal government still largely bound by the Defense of Marriage Act (DOMA) passed in 1996, same-sex couples have encountered unexpected difficulties if they move from one state to another.

California officially does not recognize same-sex "marriage" since the passage of Proposition 8 in 2008, which amended the state constitution to define "marriage" as a union of a man and woman. It did not affect same-sex marriages performed before November 5, 2008, and California's system of "domestic partnerships" remains in place. "Domestic partnerships" grant a couple the same rights and benefits as marriage within the state, but with some differences. It does not include any of the benefits available to married couples under federal law. Under DOMA, other states do not have to recognize California domestic partnerships. A series of lawsuits have challenged Proposition 8, and a federal judge ordered it overturned in 2010 but stayed enforcement of the order. An appeal is still pending.

The DPEA eliminates a number of differences between "marriage" and "domestic partnership." For example, state law requires that a couple live together for a specified period of time before they may legally enter into a domestic partnership, but couples wishing to marry have no such requirement. An unmarried opposite-sex couple that lives together may obtain a confidential marriage license, but a same-sex couple cannot. The DPEA changes both of these laws to make "marriage" and "domestic partnership" more equal.

Perhaps most significant is how the DPEA deals with divorce among same-sex couples. Existing Calfornia law required at least one spouse to have resided in the state for at least six months in order to file a petition for divorce. This excludes people who have moved away from the state, and it leaves some same-sex couples in a bind if they have moved to a state that does not recognize any sort of same-sex union. Those states have refused to grant divorces to same-sex couples, since they contend the marriage or partnership never legally existed in the first place. The DPEA allows California courts to grant a dissolution of a domestic partnership if they entered into the partnership in California and now reside in states that refuse to dissolve the union.

Continue reading "New California Laws for 2012 Include "Gay Divorce Bill"" »

Vanessa Bryant filed for divorce in Orange County Superior Court on Friday, December 16, 2011, citing "irreconcilable differences" in her marriage to Los Angeles Lakers guard Kobe Bryant. The couple released a statement to the media later that day indicating that they will privately resolve all issues related to the divorce. Still, this is California, and when celebrities get divorced, discussion and speculation must run rampant. Their attempts to keep the details of their divorce private have not stopped various "legal experts" from offering up their own opinions on the couple's split and what sort of settlement they might reach.

Within days of their original report on the divorce filing, the Los Angeles Times weighed in with the conclusion of unnamed "legal experts" that Vanessa Bryant, as the spouse of a highly-paid professional basketball player, stood to receive a "windfall" in the division of the marital estate. The couple has been married for more than ten years, during which Vanessa Bryant has stood by her husband through scandals and a criminal charge of sexual assault in 2003. Kobe Bryant's overall net worth is estimated to be as much as $150 million, and the couple reportedly did not sign a pre-nuptial agreement when they married in 2001. Under California law, this could entitle Vanessa Bryant to half of the estate, or roughly $75 million. Times reporters Rick Rojas and Richard Winton described this sum as a "windfall" for Vanessa Bryant.

In a follow-up to this article, the Times' "reader Representative" Deirdre Edgar addressed a comment from a reader challenging the use of the word "windfall," suggesting it had sexist undertones with its implication that Vanessa Bryant was either not legally entitled to half the estate or was somehow undeserving. Edgar acknowledged that "windfall" was the wrong word to use in the context of this story, but disputed that it implies that the recipient of a windfall is undeserving. A windfall is commonly understood to be a surprise or a stroke of luck, whereas a divorce settlement is typically the result of, first, a lengthy marriage and, second, lengthy negotiations.

Continue reading "California Divorce Report: Bryant Divorce Produces Dialogue on Sexist Language in Legal Terminology" »

Divorce is often a messy and emotional ordeal, and it can bring out the worst in some people. When a couple has built up a substantial marital estate, one spouse can do considerable damage in a moment of anger, perhaps seeking a sense of revenge or just a moment of "victory." Actions like running up a credit card bill, emptying a bank account, or even withholding child support or visitation with a child may offer some momentary satisfaction, but ultimately only hurt everyone involved. California law provides some protection against such actions, but a person going into a divorce can also take steps to protect themselves against the potential vindictiveness of a soon-to-be ex-spouse.

When a person files a petition to dissolve a marriage in California, the law immediately imposes an Automatic Temporary Restraining Order (ATRO) that protects the parties, their children, and their property while the case is pending. The ATRO applies equally to both parties, and it remains in effect until the court enters a final judgment or another order terminating or modifying the ATRO, or until the parties dismiss the divorce suit.

An ATRO prohibits both parties from removing their child or children from the state without either the other spouse's permission or a court order. It prohibits them from selling or otherwise disposing of any property, whether that property belongs to the marital community or is owned separately by one spouse. It also prohibits the spouses from incurring any indebtedness or pledging any property as collateral. Spouses cannot change the beneficiary designations on any insurance policies without consent, nor can they cash in any policies. They also cannot close or substantially draw down any bank accounts.

The spouses are allowed to spend money, incur debts, or transfer property if it is strictly necessary for living expenses or divorce-related attorneys' fees. They are also permitted to make modifications to their wills, since most divorcing spouses would probably want to make a few changes as to whom they designate as an heir. Violations of these prohibitions could result in a contempt order from the court, with all of the potential penalties that carries.

Continue reading "Guarding Against Property Destruction in a California Divorce" »

Demi Moore announced her intention to divorce Ashton Kutcher, her husband of over six years. A San Diego woman had publicly claimed she had an affair with Kutcher several weeks earlier, leading to reports of trouble in the marriage. Both Moore and Kutcher have expressed remorse and regret over their split. Celebrity marriages and break-ups are familiar to most California divorce lawyers, but this case offers a glimpse into how "fault"-based concepts like adultery could still factor into the divorce process, but often do not.

Moore and Kutcher married on September 24, 2005, after a tabloid-fodder two-year romance. The media made much of the 15-year age difference between the 40-something Moore and the 20-something Kutcher, but they settled into the role of a Hollywood couple soon after their wedding. This is Kutcher's first marriage and Moore's third. Moore was previously married to actor Bruce Willis from 1987 to 2000, with whom she has three children. They started a charitable organization, the Demi and Ashton Foundation, earlier this year to combat child sex slavery and human trafficking.

Problems began when a San Diego woman alleged that she had unprotected sexual intercourse with Kutcher. This allegedly occurred at the Hard Rock Hotel in downtown San Diego after a night of partying on September 24. It may be worth noting that this was Moore and Kutcher's sixth wedding anniversary. The woman claims that Kutcher told her at the time that he was separated from Moore. While the adultery allegation may not be the sole cause of the couple's split, it did not help the situation.

California adopted "no fault" divorce decades ago. As such, adultery is not a significant issue for a court in determining whether or not to grant a divorce. The California Family Code lists only two grounds for granting a divorce: "irreconcilable differences" and "incurable insanity." As a general principle, adultery is also not a substantial factor in determinations of child custody, support, and property division. It could be an issue where one spouse expended marital resources on the affair, such as using funds from a joint bank account on gifts for the paramour or spending community money on hotel rooms or other affair-related costs. If an adulterous relationship adversely affects the children of a marriage, that may also be a factor for a court to consider. Taken by itself, however, the simple fact (or allegation) of adultery often has little effect on a divorce proceeding.

Continue reading "Demi Moore Seeks Divorce from Ashton Kutcher after Adultery Allegations" »

The stories are finally coming to an end as to the Kim Kardashian and Kris Humphries 72 day marriage. Reportedly, Kris Humphries was upset by Kim's decision and conclusion that the "irreconcilable differences" could not be resolved by marriage counseling. Kim filed for dissolution of marriage in a California Superior Court 72 days after the marriage ceremony. And, further, reportedly the LGBT community was enraged by Kim's filing for divorce after just 72 days. I understood from this article that many persons in the LGBT community felt that their right to marry was denied to them on the basis that this "right" only belonged too sacred for them; however, then persons in the heterosexual community treat the right disrespectfully.

In the hundreds of articles that were coming out, after Ms. Kardashian's filing, the two articles above were good examples of the strong feelings expressed. As a San Diego Certified Family Law Specialist attorney, I see some clarity in this event. Actually, both of these articles and hundreds of others expressing disapproval for the filing after 72 days, are all united in a common thought: Something is wrong when a marriage fails. Something is wrong; someone is wrong. Sorrow or grief is natural. And it is unnatural to marry and divorce for frivolous or reasons that are unworthy. However, let me offer the following in Ms. Kardashian's defense.

When the state of California passed legislation ending fault divorces and instituting no-fault as the standard, "irreconcilable differences" became the universal statement by the Petitioner to justify his or her divorce under California Family Law. Irreconcilable differences are supposed to be "substantial" as you can see if you look un Family Code Section 2311. In reality, the Petitioner never has to specify his or her exact reasons and the reasons are not questioned. In cases where there are children and child custody issues, the event of a divorce may be very significant in the lives of the parents and the children.

Continue reading ""Until Death Do Us Part"--California Divorce " »

Any recent news not related to the economy or the upcoming presidential election, it would seem, has covered television star Kim Kardashian's wedding to, and now divorce from, basketball player Kris Humphries. Whirlwind romances, weddings, and divorces in quick succession are seemingly common these days, and they should come as no surprise to any California divorce attorney. The story still sheds a light on how the legal process of divorce can take over in a marriage.

Kardashian began dating Humphries in October 2010. They announced their engagement in May 2011. Their wedding on August 20, 2011 was widely publicized, rivalling even the royal wedding of Prince William and Kate Middleton (now Catherine, Duchess of Cambridge) earlier in the year. The wedding reportedly cost nearly $20 million, almost all of which was donated or given as a gift, and the couple allegedly made $17.9 million from related publicity.

Kardashian filed for divorce on October 31, 2011, after only 72 days of marriage. She cited "irreconcilable differences" in her divorce petition. This appears to continue a long tradition of brief unions in the entertainment business, and in California in particular, where stars marry and split with amazing speed. The divorce filing prompted much speculation as to the wedding and the marriage itself. Was the marriage just a sham to gain publicity and make money? Will Kardashian and Humphries have to return all those gifts? Can she keep the ring? Aside from the one about the ring, these questions do not usually concern divorce lawyers. Divorce lawyers deal specifically with helping their client obtain a divorce or some other outcome within the legal system. They look almost exclusively at the relationship between the spouses, the property they have acquired, and the best way to help the client reach his or her goals. If this is possible through negotiation and settlement, all the better. If not, they go to court.

California allows "no fault" divorces, meaning a spouse may obtain a divorce without proving any wrongdoing by the other spouse. In legal terms, a spouse seeking divorce must plead to the court that the couple has "irreconcilable differences" that prevent continuation of the marriage. After filing the divorce, spouses must wait six months before a court can grant a divorce, although more complicated cases often take much longer than that. One might think dissolving a marriage of only 72 days would not be complicated, but this is no ordinary marriage.

Continue reading "The Kardashian/Humphries Wedding Saga Continues with a Divorce" »

CBS 8 San Diego reports that child custody relocation cases have increased during our economic recession. In a story dated September 26, 2011, a survey from the AAML (American Academy of Matrimonial Lawyers) is cited and discussed. The survey cites that a significant increase in housing debt during the last three years is connected with an increase in custody move away cases. As a San Diego Certified Family Law Specialist lawyer my office has witnessed similar events over the last three years.

This is easy to understand. For example, picture a couple coming to a point where one spouse files for a divorce. Assume that the Husband moves out of the family residence leaving the Wife and children behind. The Wife, with or without a job, finds herself unable to afford the mortgage. This is common. (The Ventura County Star reported on August 10, 2011, that foreclosures in California led the country in July 2011. That over 56,000 foreclosure filings occurred during the month.) The Wife, in our hypothetical, is the primary caretaker of the children. She cannot afford the home. Rental units are expensive in San Diego and she has family who will assist her in the mid-west. She files for a child custody order and permission to relocate with the children.

Child custody under California law is comprised of Physical Custody and Legal Custody. Simply put, these terms define where the child primarily lives and the rights of the parents as to information and decision making concerning the health, education and welfare of the child. The issue of "move away" or "relocation" is whether the physical custody parent may take the child with him or her when the custody parent relocates to another geographic area.

Continue reading "Child Custody Move Away Cases Increase" »

As a San Diego Certified Family Law Specialist Lawyer, continuing education is a part of the work of my office. Since my office only works in the field of Family Law, the research of new cases and statutes is greatly limited whereas a general practice attorney has a duty of continuing education in a variety of fields of law. One issue in family law that seems to never go away is the Husband requesting the engagement ring returned to him, from the Wife, pursuant to the divorce proceeding. The Husband may claim that the ring is very valuable, or that it is community property, or that the Wife secured it by fraud, etc.

ABC News reports of a man, Mr. Mekalian (James), who sued his former fiancee, Ms. Grazioli (Nichole) for the return of the engagement ring and a car or monetary damages to replace the value of both items. I've researched James' pleadings and you may see the Complaint here. His case is based on alleged fraud, and other. He specifically cites Civil Code Section 1590 which allows the donor (giver of the engagement ring in contemplation of marriage) to require the done to return the ring or the value of the ring if the marriage does not occur.

James accuses Nichole of acting in a fraudulent manner. Nichole is not commenting on the law suit. Presumably she may state that she had many marriage opportunities and that when she received the ring she terminated all other relationships and that she acted in good faith during this engagement. 1590 does require the judge or jury to consider all circumstances of the case and that the judge or jury find that which is just under the circumstances of the particular case. James apparently thinks that Nichole is a "gold digger" however the judge or jury may not agree. Possible James should seek a woman for marriage who has a job, and an income, and doesn't need James' money as in the video below of a five year old girl who charming millions on the Internet.

Continue reading "California Divorce Report: When Is A Gift Not A Gift?" »

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?" »

Cornell School of Law recently published an overview as to child custody law and this reminded me that there are many people searching the internet for basic information as opposed to advanced information. As a San Diego Certified Family Law Specialist lawyer I search for blog topics that appeal to my continuing education interest; however, this article reminded me that there is a need for basic child custody information. So, this blog starts with the reference to the Cornell SOL article and this is an excellent place to start for a child custody primer.

The U.S. Census Bureau publishes reports on a variety of child custody and support topics. Child care arrangements can be found here, up to the year 2006. The U.S. Census Bureau has more articles as to child support statistics. Statistical reports lend themselves better to numbers than to "arrangements" so this is understandable. Much of what the U.S. Census Bureau publishes pertains to the underpayment or nonpayment of child support.

Wikipedia contains a section on parents who don't pay their court ordered child support. This section immediately cites statistics from the U.S. Census Bureau. Back to child custody--the specific issues are enormous: Move away custody orders; Legal Custody orders (does the child get the medical operation or not? Which school will the child attend?); Joint Physical Custody or Sole Custody; or Right of First Refusal.

Continue reading "California Child Custody Primer" »

As a San Diego Certified Family Law Specialist attorney I am involved in the family court system every work day. Change is a part of life and tremendous changes are now occurring in the San Diego divorce court. It is the job of my office to recognize the trends in family law and to work with the changes in the system to assist our clients. Journalist and TV personality Greta Van Susteren posted an article on 8/20/11 as to the California economy (mismanaged and disastrous) and used the California divorce court system to support her conclusions.

Greta's divorce court example was taken from a Wall Street Journal news report written by journalist David Ferry and published on August 20, 2011. He described the efforts of a California family going through a divorce and seeking to use the free services offered at the court house. The Husband and Wife lined up at 9 a.m. and by 4:00 p.m., when the free clinic stopped their services, the couple had still not been seen or helped by a court facilitator. These two articles are not blaming the courts, the attorney, facilitators or judges. They both use this example of the near bankrupt status of the California economy and charge those who are in charge of the economy with negligence to a degree that there are millions of victims impacted by the reduction in government services.

In recent years the California divorce system used a quasi fast track policy to push family law cases through the court in 12 months. Today, with cut backs to court personnel, loss of judges, fewer clerks, it is projected that it may take two years to get a divorce case to trial. It may take months to get into court to hear an initial child custody motion. Months--what a disaster. San Diego Family Court judges each have case loads of 4,000 and more. An extremely difficult situation. A family law "mission impossible". My office is turning more and more to private judging as a way to assist our clients.

Continue reading "San Diego Divorce Analysis: How to Navigate the Family Court System" »

In a recent Los Angeles Times article journalist and sports writer Bill Shaikin discloses that Jamie McCourt might petition the divorce court to ask for the sale of the LA Dodgers baseball team. If you have not been following this case, the McCourts, Jamie and Frank, are involved in what might be the most expensive divorce in California history. They own the Los Angeles Dodgers baseball team as well as numerous properties in California. This blog has posted several articles regarding this case. We correctly predicted that Jamie would be successful in her motion for spousal support and we predicted that Jamie would be successful in her motion to set aside the pre marital agreement.

As a San Diego Certified Family Law Specialist attorney it is my field to follow legal trends in divorce law and family law in general. In recent months reports have described this case as financially destructive. The Australian just reported that this case could cost $35 million in legal fees. My office recently represented a spouse in a high income case. This couple had successfully sold businesses for millions and in one case for over a hundred million dollars. The case quickly was analyzed and successfully resolved. One of the spouses stated that one should never become emotional about business or financial issues.

So, where did this all go wrong for the McCourts? Both Frank and Jamie McCourt have expert, top rated, legal teams. I especially like the way that they have associated attorneys into the case to pull legal talent into their side of the case. Association of counsel is a practice that I use in some of my cases. However a quick scan of news articles* on this case show that the case is continuing to generate pre trial motions rather than to wrap this case up with a trial, or better, end this case with a successful mediation or negotiation. (*LA Times reports that Frank may request the court to lower Jamie's spousal support order; and, myfoxLA.com reports that the McCourts are heading for a mini trial as to the characterization of marital property.)

Continue reading "What Is The cost Of A California Divorce?" »

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" »

Journalist Megan Johnson of the Boston Herald reports that Arnold Schwarzenegger filed an amended divorce petition on or about July 25, 2011 under which places the issue of his Wife's spousal support before the California divorce court. Previously, his petition stated that Maria Shriver should be denied any right to spousal support. There can be no question that this was a significant change as every news reporting agency picked up this story. As a San Diego Certified Family Law Specialist attorney I want to raise the question of why Arnold Schwarzenegger changed his pleadings.

With a La Jolla divorce office, we handle spousal support issues in ordinary cases as well as high income cases. As to why Arnold Schwarzenegger would change his petition lets first consider whether he initially committed a mistake in the typing of his divorce petition. Divorce litigants, especially self represented litigants, commonly make mistakes in their divorce pleadings. My office took over a case last week from a self represented litigant (formerly known as a "pro per" litigant) and found a significant mistake on the petition that would have resulted in a significant waiver of legal rights. However, it is unlikely that Arnold Schwarzenegger's high priced and highly specialized divorce attorney made a mistake.

So next we turn to the reason of strategy (or, political correctness) as the explanation. Do you remember just a few weeks ago when Arnold Schwarzenegger's Wife, Maria Shriver, was found walking on the Santa Monica beach by the paparazzi? And similarly, when Sandra Bullock was found by the paparazzi walking alone in the mountains? Walking alone in an area of great natural beauty signifies humility and one reflecting on his/her life and the eternal lessons to be learned in going forward. It shows great inner strength and morality; even a spiritual side to the person. The opposite of this would be a celebrity who surrounds oneself in gaudy selfish displays such as riding in a chauffeured limousine to a ridiculously expensive bar or night club while in the midst of a divorce. These cases do get publicity as seen by the video below.

Continue reading "California Divorce News: Schwarzenegger Spousal Support Strategy" »