Recently in Divorce Category

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.

Continue reading "California Court Denies Wife's Request for Attorney's Fees in Divorce Proceedings" »

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.

Continue reading "California Court of Appeals Affirms Denial of Spousal Support" »

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.

Continue reading "California Court Reviews Standard for Renewing a Domestic Violence Prevention Restraining Order" »

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.

Continue reading "California Court of Appeals Sets Forth General Law Regarding Division of Marital Property" »

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.

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

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.

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

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.

Continue reading "California Court of Appeals Settles Dispute over Date of Separation" »

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.

Continue reading "Getting Married and Avoiding Divorce Can Be Good for The Economy and Your Health" »

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.

Continue reading "Demi Moore and Ashton Kutcher Finalize Divorce Two Years After Separation" »

October 24, 2013

How California Courts Determine Amount of Child Support Payments

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

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

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

Continue reading "How California Courts Determine Amount of Child Support Payments" »

October 10, 2013

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

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

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

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

Continue reading "Division of Property in Divorce Can Be Tricky: Tips for San Diego Spouses" »

October 3, 2013

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

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

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

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

Continue reading "Woman Seeks Divorce in Mississippi -- Though Same Sex Couple Married in California" »

September 12, 2013

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

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

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

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

Continue reading "Divorce, Legal Separation and Annulment: Options To End a Marriage in San Diego" »

September 5, 2013

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

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

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

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

Continue reading "Divorce Settlement Could Include Cost of Wife's Egg-Freezing Procedure" »

August 22, 2013

August is Child Support Awareness Month: Some Helpful Tips for San Diego Parents

man-woman-heart-5-1056041-m.jpgCalifornia Department of Child Support Services ("DCSS") reminds parents that August is Child Support Awareness Month. The DCSS supports programs to help parents be successful in supporting their children.

In California, child support is the amount of money that a court orders a parent or both parents to pay each month to help fund the support of the child (or children) and the child's living expenses. The state provides a formula (also known as a "guideline") for determining how much child support should be paid. It is important to understand that if the parents cannot come to an agreement on the amount of child support, the judge is authorized to decide the amount based on the guideline calculation.

Continue reading "August is Child Support Awareness Month: Some Helpful Tips for San Diego Parents" »