San Diego Divorce Attorney Blog

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" »

The latest chapter in perhaps one of the strangest paternity disputes in recent California history comes with the arrest of Robert Powell in San Diego County over Thanksgiving weekend. The arrest, in one sense, gave Powell an opportunity to insert himself into the recent paternity dispute involving pop signer Justin Bieber. Mariah Yeater, a 20 year-old Lakeside resident, publicly claimed that Bieber is the father of her child. Powell now claims that he is the father, and that Yeater lied about the child's paternity for money.

Bieber has steadfastly denied not only being the child's father, but even knowing Yeater at all. Yeater filed a lawsuit claiming Bieber is the father of her child a few months ago, but withdrew it without prejudice in November. She alleges that she had a sexual encounter with Bieber backstage at Los Angeles' Staples Center after a concert last fall. Yeater says she had just turned 19 years old at the time. Bieber would have been 16 years old. The child was born in July 2011.

Yeater did not produce any evidence to substantiate any of her claims, but Bieber submitted to a paternity test. She dismissed the suit while results were still pending. Yeater cited the media frenzy surrounding her claims, which includes death threats from Bieber fans, led to her decision to withdraw her petition. Her lawyer stated that he expects both sides will sign confidentiality agreements regarding the paternity test. Since she dismissed her suit without prejudice, she is free to re-file it at any time.

Yeater's paternity claims have mostly met with ridicule and disdain, but it appears Bieber has followed the standard legal procedure. If Yeater was unmarried when the child was conceived and born, the law makes no presumption as to the father's identity. She may allege the father's identity, or someone claiming to be the father may come forward. A child's paternity, if in dispute, is generally established through a paternity test, which compares DNA samples from the child and the alleged father. A father may also sign a voluntary acknowledgment of paternity, or whatever equivalent form is used in his state, which he then files with a state registry. In this case, Powell may request his own paternity test. Once paternity is legally established, questions of child custody and child support come to the fore.

Continue reading "Possible Father of Alleged "Bieber Baby" Located in San Diego" »

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" »

A commonly asked question in California is "how much does a California divorce cost"? Many times in answering this question one must consider "who has the burden of proof"? Wikipedia defines legal burden of proof through different examples and Latin phrases and also states that the person who does not have the burden of proof is assumed, by law, to have the winning side of the case. In other words, the person who does not have the burden of proof does not have to say or do anything in court unless the other party meets his or her burden of proof. These rules applies to property division and other family law issues.

As a San Diego Certified Family Law Specialist lawyer, my research came across a case that addresses the question of burden of proof; and that case is Marriage of Margulis. You may read the case decision here. Inspired by the facts of the Margulis case, consider this example in order to see the role of burden of proof in a San Diego family court trial: Husband and Wife were married for 10 years. At the date of separation Husband disclosed that he had stock and financial accounts, under his name, with a value of $900,000. For many reasons, the case does not go to trial for two more years. At trial Husband claim that the $900,000 is now down to $150,000.

He says that $750,000 is gone by virtue of the downturn in the market, and money he gave to Wife for support as well as paying off marital debts; but Husband fails to bring documents to court to prove all of this. Wife's attorney at trial simply shows the evidence of the $900,000 in stock and financial accounts as they existed at the date of separation and states that Wife requests that Husband pay her $450,000. The attorney cites the presumption that funds acquired during the marriage are presumed to be community property. The attorney shows that Husband was the spouse managing these accounts and argues that the Husband has failed to show any evidence accounting for the loss of these funds. (Divorce evidence takes many forms. See video below.)

Continue reading "San Diego Divorce Evidence: Burden of Proof" »

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" »

As a San Diego Certified Family Law Specialist attorney, my family law office frequently receives questions as to child custody evaluations. What are custody evaluations? How are they conducted? Is a custody evaluation the same as a 730 child custody evaluation? A "730" evaluation comes from the reference to the California Evidence Code, Section 730 which you can see here. There are times in family law cases where an expert is needed to evaluate the facts either for one party or for the court.

Since my office extensively handles child custody cases, I have been involved in child custody evaluations for decades. I want to work with an evaluator who is fair, impartial, open minded and will bring to the case specialized knowledge that will help to explain what is going on in a particular case, and what parenting schedule is in the best interest of a child. In my first decade of my family law practice I worked with many psychologists who qualified in the San Diego Superior Court as expert child custody evaluators. One of these evaluators was Stephen Doyne, Ph.D. This psychologist quickly became a favorite by both the family law attorneys and the San Diego Superior Court judges.

However, do not underestimate how emotional child custody evaluations can become. In one such evaluation, one parent of a child who was the subject of a custody evaluation, in which Dr. Doyne was involved, reportedly took great offense of Dr. Doyne's custody findings. To make a long and involved story short, an attack was launched on Dr. Doyne's credentials which are a necessary part in becoming qualified as an expert witness before the court. This attack went through the court system for years threatening to destroy a career and to undermine many child custody evaluations and court orders. In a June 30, 2011 press release from the San Francisco Chronicle (which you can view here) the news has just been released that this "false credentials" lawsuit has been dismissed.

Continue reading "San Diego Child Custody Evaluation News" »

It is well known that there is no right to counsel in civil matters. "Right to counsel" means that if a party to the case cannot afford an attorney must the state provide that person with an attorney. There is right to counsel in criminal cases. The reasoning is that your life and - or liberty might be lost in a criminal case. However, what if you are in a child custody case and your parenting rights might be lost? What if you try to protect your children from an abusive parent and by doing so you keep the children away from the parent. When the abusive parent files a contempt of court case against you do you then have the right to counsel?

As a San Diego Certified Family Law Specialist attorney I have filed contempt citations in family law cases. Here is a brief description as to when a contempt citation may be filed: There must be a valid court order. The citee (person accused of violating the order) knew of the order, and willfully violated the order and he/she had the ability to comply with the order. If all of these items are proved to the court, then the citee may be found to be in contempt and is subject to monetary fines as well as jail time. Caution: you can go to jail if found in contempt by virtue of violating a court order. (In video below an attorney describes contempt under Florida law.)

The ABA Journal reports of the US Supreme Court case of Turner v. Rogers where a father was ordered to pay child support in the amount of $51.73 per week. You can see the article here, and the Supreme Court opinion here. The father reportedly failed to pay as ordered; was found in contempt and he was sentenced to twelve (12) months in jail. The father represented himself. The question to the high court was whether the father had a right to counsel in a contempt case which carried the possibility of a sentence to jail if convicted. In a 5-4 opinion the Supreme Court stated that there is no right to counsel in a civil case (such as this family law case held in family court).

Continue reading "Right to a Lawyer in a California Divorce?" »

This news story was reported all over the country and I found a comprehensive report of the story published in the Chicago Tribune by reporter Julie Deardorff. Briefly, a mom of two children, eleven year old daughter and 5 year old son, lived with her children in North Carolina while the father of the children moved to Illinois when he was hired by a company there. The father filed a motion in the North Carolina court seeking custody of the children, and seeking an order that the children would relocate to Illinois to live with the father. In the San Diego Superior Court this is known as a child custody move away motion or a child custody relocation motion.

As a San Diego Certified Family Law Specialist lawyer, I am very familiar with these motions. My office handles many move away custody cases; especially at this time of year in The Family Court as parents who are seeking a move-away custody order want to reestablish themselves in the new area and enroll the children in the new school prior to September. The reported reasons that the father used in this case is probably what caused this case to make the news all over the country. Reportedly, the father said that the children should be removed from their mother in North Carolina because the mother has stage four breast cancer; and, that he (recently hired) had a job whereas the mother was unemployed.

Not surprisingly, the national news exploded with this story when a North Carolina judge agreed with the father. Losing custody of your children, and having your children moved to another part of the country because you have cancer? Or that you are unemployed? However, a North Carolina attorney states that there are reasons for the change of custody other than the illness or the employment status of the mother. The point of the story to me is that every child custody case is unique. Every case has a wide range of facts and each case requires the skill, training and experience of the family law attorney to discern which facts will enhance the likelihood that the child custody motion will be granted. The mom's family posted the below video on You Tube. This blog takes no position as to the outcome of the case.

Continue reading "Child Custody News: Mom Loses Custody Move Away Case" »

Recently I had lunch with a client who is a very successful businessman who develops innovative businesses, starts them up, then sells them for a very nice profit. We talked about divorces where the Husband and the Wife battle each other to the point that their marital estate is devastated. We discussed why do people allow emotional decisions to cause economic destruction.

As a San Diego Certified Family Law Specialist attorney I've seen divorces where will quickly compromise and settle, or, in the alternative, act out of emotion and hurt themselves regarding their property and children. Typically I hear that the family law lawyers are to blame; however this is not always, or even mostly, the case.

Two news stories come to mind. One involved a very bitter, angry and devastating divorce as reported in detail by journalist Lisa Kroll for Forbes. She summarizes the story of Mr. Blixseth, who was worth 1.3 billion in 2007 then became engaged in a 2008 divorce that became a battle royal over money and businesses. This battle set off a chain reaction of bankruptcy, investigations and other problems which all had their Genesis with the divorce. Then there was another story of Eva Longoria's divorce (which was covered by this Blog), which was wrapped up in a timely fashion with little, if any, economic damage. Ms. Longoria (Desperate Housewives) filed for a divorce and claimed that her professional basketball Husband was having an affair.

Continue reading "Reports of Two Divorces" »

Scott v Superior Court states at page 544 "There can be only two parents, not three." Accordingly the appellate court in Lauren W. v Brent A. (Court of Appeals California, Fourth District, Division Three) ended the game of musical chairs allowing Brent and Lauren to have a seat and told Kevin that he had to leave the party. You can read the case here. (This is an unpublished case and may not be cited as legal authority in a courtroom; however it is educational as to issues of child custody rights and standing to sue for custody or visitation pursuant to the laws of the State of California.) This is actually the end of the story. Here is how the appellate court got to this point.

Lauren gave birth to (child) and filed a petition under the UPA (Uniform Parentage Act) naming Brent as the Father. Brent responded, acknowledged that he was the child's Father (he had signed a declaration of paternity) and requested visitation. The parties agreed to visitation and a court order was entered finding Lauren was mom; Brent was dad and adopting the agreed upon visitation schedule. Shortly thereafter, Kevin filed a joinder motion (motion seeking to join the Lauren and Brent UPA case so that he could assert his parenting rights to the child. Kevin's joinder motion was granted so now the paternity, child custody, visitation case included one mom and two men claiming to be dad. A trial court issued an order finding Kevin to be the "legal father". The appellate court stepped in at this point.

As a San Diego Certified Family Law Specialist attorney, my office works exclusively in the law field known as Family Law. It is our goal to correctly analyze legal cases as to divorce, paternity, child custody, custody move away cases and other areas of family law. It is our goal to assist the trial court to reach a proper legal analysis of a case so that a proper order is entered at the trial level. This case is a good example of how a flawed analysis can lead to confusion and appeal. Next you will see how the appellate court resolved this matter.

Continue reading "The Lauren, Brent and Kevin (?) Child Custody Case" »

Abbie Dorn was excited; she was giving birth to triplets. She went into the hospital as a vibrant, alive, mother to be of triplets, and something horrible occurred. The reports vary in their clarity of the medical procedure and this post is not about the medical issues; however when Abbie left the hospital, she left behind her hopes and expectations of being the mom that she had wanted to be. She was so badly damaged that she could no longer walk or eat and it is debatable to what extent her cognitive functions were damaged.

In the reports that I read, there was no question that Abbie could not have custody and care of the children. She cannot care for herself. I saw one report mention "unfit" parent; however this term seems misapplied to Abbie. She cannot care for her children as she is badly disabled, not that she won't care for her children. Abbie's former Husband, Daniel Dorn, maintained that it was not in the best interest of the children to visit their so badly disabled mom. This issue of Abbie's visitation went to court and the court ruled in favor of Abbie's visitation. In person visitation and visitation by Skype - virtual visitation. The "story" is not adequately described in the news reports.

So here is the real story to this "child visitation" case. The following is what I think was really behind this case, and where the lawyer on Abbie's side outmaneuvered the Father's legal effort. This is really a story of grandparent visitation rights; not the visitation rights of a disabled parent. Abbie lives with, and is cared for, by her parents--the maternal grandparents of the minor children. As a San Diego Certified Family Law Specialist attorney, handling many child custody cases, I've learned that grandparents are the hidden victims in child custody battles. They want to have frequent and continuous visitation with the grandchild however, directly, many states like California, highly restrict grandparent rights.

Continue reading "Badly Brain Damaged Mom Wins Visitation Rights" »

Daryl Huff, a KITV 4 News Reporter recently published an article as to what has been called Hawaii's most famous divorce case. The divorce case involved actor Brenda Dickson and attorney Jan Weinberg. Dickson is a well known television star and Weinberg is an experienced personal injury lawyer. For additional background on Brenda Dickson I went to Wikipedia.

Reportedly, this historically long and dramatic divorce case has gone on for years with allegations of one spouse taking marital property and hiding the assets in another state or country. Further the case involved contempt of court orders issued by the judge. These types of orders are made in rare cases when a party violates a court order in such a way that the judge fines and/or jails the party who violated the court order. Reportedly, Dickson was jailed for more than two weeks; released, then, later, jailed again for more than three months. (Reportedly, she later won an appeal that cleared her from the contempt counts which had placed her in jail.)

Later in the case, the divorce went to trial and reportedly Mr. Weinberg was not present. Ms. Dickson had a very difficult time proving anything with Mr. Weinberg not present. If he were present, he could have been called to the stand for examination and cross examination. It is unknown what divorce issues Ms. Dickson needed to address through Mr. Weinberg's testimony. Possibly his income and the identity and location of assests. As a San Diego Certified Family Law Specialist attorney, it has been my experience that the absence of a party from a trial is usually not a stumbling block as evidence is offered to the court as to the identity, value of assets as well as the income of the missing party. The missing party then hurts his/her own case by not being present to offer testimony or help his/her attorney with the points raised in court.

Continue reading "A Case of Divorce, Trial and Jail" »

You can find the unpublished appellate decision of In Re Marriage of McCown here. "Unpublished" means that this case cannot be cited in court as any legal authority; however it is always a good exercise to read and analyze appellate court opinions to understand how certain child custody decisions are reached. As a San Diego Certified Family Law Specialist my office handles many child custody move away cases. These cases are also known as child custody relocation cases. Specifically, these cases involve a custodial parent's decision to move away, or relocate to another area, with the minor child or children. If the other parent opposes the relocation, a motion is filed in the family law court to permit the move and the court rules on whether the custodial parent may move the children.

In the unpublished McCown case, the mom argued that she was the custodial parent. Dad had visitation on the first, third and fifth weekends of every month. The family law trial was located in the Coachella Valley (Riverside County). Mom's new Husband was a pilot in the military and he was stationed at Miramar in San Diego (a military base located down the road, east of my La Jolla Family Law Office). The dad objected to the move stating that the child had always lived in the Coachella Valley where the child was very involved with the relatives on the Father's side of the family. The court appointed mediator (similar to the Family Court Services mediator of the San Diego Family Court) opined that the child was doing well under the parenting order but did not make a recommendation as to the move away request. The court found that it was in the best interest of the child to remain in Coachella Valley.

According to this decision the mom would have to remain living in Coachella Valley rather than to move to San Diego County where she would reside with her new Husband. Mom appealed the court's decision to the Fourth District, Division Two, Court of Appeals.

Continue reading "Mom's San Diego Move Away Motion Denied" »

I almost passed over an Internet news story about people requesting help to prevent divorce. Something caught my eye just as I was turning away from the headline. The story was that people were asking churches in California to help prevent divorce. I opened up the story and read it and was impressed with the fact that people are seeking help in keeping their marriages and family together. I compared this story with my recent observations that many Californians are in the family court without seeking out solutions to their family law problem.

As a San Diego Certified Family Law Specialist attorney for over thirty years I've seen that marriages and relationships in general, are increasingly disposable. It almost appears that some people are trying out marriage and family as you would take a new car home from the dealership to drive it for a day in order to determine whether you wanted to buy the car. Or, the buyer who returns the item the next day with "buyer's remorse". Increasingly, at my Family Law office in La Jolla, California, we are receiving calls from a spouse who wants to end his or her one year marriage. Most of these calls involve a child or children that were born during this "marriage".

I researched on the Internet to see whether churches in San Diego were offering marriage classes (in response of this articles' report that churches are being asked to make marriages more stable). I found that there are many, many resources out there and more on that below.

Continue reading "California Divorce Assistance Requested From Churches" »

Reporter Jill Serjeant reports in this published article that Kelsey Grammer's request to be single by the end of this month is opposed. This article raises the question as to how can you get a divorce when you are only in the middle of your divorce proceeding.

The legal procedure is called Bifurcation. As a San Diego Certified Family Law Specialist (Board of Legal Specialization, State Bar of California), I have filed bifurcation motions and opposed bifurcation motions. I think that Camille Grammer has a chance to block Kelsey's attempt to be single by the end of January. But let's go back to the basics:

"Bifurcation" means to divide. In California Family Law it is a court procedure in a family law case whereby the judge separates out one issue from all of the rest and the court generally approves a bifurcation request for two typical reasons. First, that a party to the divorce is getting remarried. And, second, that there is one issue in the case that, if separated from the remainder of the case, and resolved, would assist in the resolution of the remainder of the issues. All bifurcation requests require that the divorce case has satisfied the six month waiting period that is mandated by California law.

In Mr. Grammer's case, Mr. Grammer filed a motion for bifurcation requesting that the court separate out the issue of terminating the marriage so that he will be single and free to marry his woman friend, Kayte Walsh. The Grammers were married for thirteen years however the divorce was filed and served more than six months ago and Kelsey argues that he is entitled under California law to the bifurcation of the marital status. Nearly 100 times out of 100 such requests would be granted in a California divorce court. However Camille Grammer has filed a response in opposition to this motion. I've read the response (you can see it here), and it appears to me that she has done an excellent job in raising significant reasons why the bifurcation should not be granted at this time. Why do I say this?

Continue reading "California Divorce and Bifurcation" »