Recently in Jurisdiction Category

May 15, 2014

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

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

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

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

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May 8, 2014

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

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

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

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

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February 6, 2014

California Family Code Governs Jurisdiction for Child Custody Proceedings

california-flag-497343-m.jpgLegal proceedings that involve the welfare of children can be some of the most trying and stressful matters for all affected parties. Child custody disputes, in particular, require special attention to the best interests of the children. There are numerous legal issues that will need to be addressed every step of the way, many of which would never occur to parents, such as determinations related to "jurisdiction" of the matter. Because the outcome of a child custody case can significantly impact a family's future in terms of parenting arrangements, it is critical that an experienced family law attorney handle the matter with care and competence. If you are facing a child custody dispute of any kind, you are encouraged to contact a local San Diego attorney as early as possible in the proceedings.

A recent case exemplifies the need to pay attention to every detail of a child custody matter. Here, a California court of appeals concluded that the juvenile court lacked subject matter jurisdiction over a custody dispute, where there was evidence that the child lived in San Diego for less than six months, and prior to that, lived in Mexico. According to the facts of the case, the child was born in San Diego in 2005, but lived in Mexico with his parents and attended school there. In January 2013, the mother brought the child to San Diego.

Two months later, the San Diego County Health and Human Services Agency (the "Agency") received a report indicating that the paternal grandfather had abused the child in Mexico. In response, the mother presented the Agency with letters from the Mexican government to show that there was a services assessment for the child. Further, a Mexican official confirmed that there was an active case against the grandfather. In April 2013, the Agency filed a dependency action for the child, arguing that both parents were currently in jail and unable to arrange for the child's care. He was placed in a foster home.

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December 14, 2012

State Laws Present Difficulties for Transgender Man in Divorce Case

701085_49601368.jpgThe case of an Arizona man seeking a divorce from his wife has encountered difficulty based on conflicting provisions of state law. The husband in the case, Thomas Beatie, is a transgender man, having been born a woman and transitioned to male through a variety of means. He obtained legal documents stating that he is a man, and he legally married his wife. He considers himself the father of his three children, but he, rather than his wife, gave birth to them, since he still has female reproductive organs. This has created a dilemma for the judge presiding over the couple's divorce, as Arizona law does not recognize same-sex marriages, and it is not clear if the state recognizes the validity of a marriage between a transgender man and a woman.

Beatie began the process of transitioning to male in 1997, when a psychologist determined that he had "male gender identification." He underwent testosterone therapy, and had his first of a series of surgeries in 2002. Arizona law allows a person, after a sex change operation, to obtain a new birth certificate and other official documents upon written request. After the first set of surgeries, he legally became a man.

He began dating his soon-to-be ex-wife, Nancy, in 1998, and they were married in 2003. Nancy was unable to have children, so Thomas bore all three of the couple's children. He made headlines as "The Pregnant Man," giving birth to children in 2007, 2009, and 2010. The couple separated in early 2012, and filed for divorce in Maricopa County Superior Court.

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November 22, 2012

Interstate Divorce Case Lands in California, Results in Large Child Support Order

15-18_foot_swell_taken_from_Corona_Del_Mar,_California.JPGIn affirming a trial court's child support order, an appellate judge quoted from Aesop's Fables, paraphrased as "be careful what you wish for." The case, In re Marriage of Barth, involved a divorce with petitions filed in two states, Ohio and California, a trip to the Ohio Supreme Court, and a final order in California that was far less favorable to the appellant husband. Ultimately, questions of credibility regarding the husband's financial representations persuaded the appellate court to affirm the large child support order.

The parties, Jeffrey and Andrea Barth, were married in 1989. They had two children, and they lived in Ohio until 2004, when the husband took an auditing job in California and moved to Orange County. The wife and children stayed behind in Ohio for about five months, during which time she quit her job and sold the family home. Several weeks after they joined the husband in California, he confessed to extramarital affairs. The wife and children returned to Ohio within days. She filed a divorce petition in Ohio on August 24, 2004, and he filed one in California the following day.

The Ohio divorce case went through litigation for nearly three years. The husband denied that the Ohio courts had subject matter jurisdiction, as the wife no longer had the required period of residency in the state at the time she filed. The Ohio court eventually entered an order setting current and retroactive child support. The husband appealed all the way to the Ohio Supreme Court, which ruled in March 2007 that the wife's brief stay in California ended her Ohio residency. It vacated all prior orders and dismissed the case.

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October 13, 2011

Supreme Court Denies Review of Louisiana Adoption Decision for Same-Sex Couple

Oren Adar and Mickey Ray Smith, a same-sex couple, adopted a 1 year-old boy in Shreveport, Louisiana in 2006 and took him home to New York. They completed the adoption process in New York and legally became the child's parents. The family later moved to San Diego, where they live now. The problem arose when they tried to obtain an amended birth certificate for their son from the state of Louisiana. Their case demonstrates how family law can vary from state to state and the difficulty in bringing a family case from one jurisdiction to another.

fatherson10112011.jpgThe Louisiana registrar of vital records and statistics denied Adar and Smith's request to be listed jointly as the child's parents on the birth certificate. Louisiana only allows joint adoption of a child by married couples. Louisiana does not recognize same-sex marriage. Therefore, as far as the state of Louisiana was concerned, the two were not married and could not both appear on the birth certificate.

While the registrar's office agreed to recognize the legality of the adoption and list one of them as a parent on the birth certificate, Adar and Smith insisted that they both be listed. They filed a federal civil rights claim, alleging that Louisiana's actions denied full recognition of the New York adoption decree and thus violated the Constitution's "full faith and credit" clause. That clause declares that each state must give "full faith and credit" to the judicial decrees of each other state. By refusing to list both legal parents on the birth certificate, Louisiana was effectively trying to negate the full legal effect of the adoption decree, according to Adar and Smith's suit.

The Fifth Circuit Court of Appeals in New Orleans disagreed with Adar and Smith and dismissed the case. The court held in April 2011 that the question was actually legislative, not judicial, so the "full faith and credit" clause does not apply. It also concluded that each state has the right to create its own laws regarding birth certificates based on its own findings about what would benefit families and children in that state. Louisiana, the court declared, could conclude that adopted children would be best served by either a married couple or single person rather than "the freely severable relationship of unmarried partners." Of course, the court's logic only applies in a state that does not recognize same-sex marriage.

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October 3, 2011

Which Court Has Custody Of A Child Custody Case?

Justia-photo-117 Texas Court.jpegFox News published a story on Thursday, 22 Sep 2011, regarding Jesse James's child custody case. (Jesse James was married to Sandra Bullock and this marriage was dissolved in 2010.) The custody motion was filed by Mr. James to change the venue of the court case from Orange County California to the state of Texas. The case was between Mr. James and Janine Lindemulder. Wikipedia reports that Mr. James and Ms. Lindemulder have a daughter and that Ms. Lindemulder is an adult film star. (A photo of the Hays County courthouse is to the right.)

As a San Diego Certified Family Law Specialist attorney, my office receives calls from people all over the country and jurisdiction and venue issues are frequently involved. Just today a mom with a case in the Los Angeles court wanted to know which court would take over the case if she moved to San Diego and the father moved to Idaho. Similarly, Mr. James now reportedly lives in Texas while Ms. Lindemulder lives in Oregon. The news report did not say why Ms. Lindemulder opposed the motion to move the case to Texas, or whether she filed to move the case to Oregon. The report stated that the motion had been filed approximately one year ago. (Mr. James is shown in the video walking in Orange County California.)

There are extensive rules under the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) which helps courts to resolve which state should take over a child custody case. Years ago a parent could file a motion for the custody of a child in one state, for example, Indiana; then if the parent lost the custody motion, he or she could grab the child and file for custody in another state, for example, California. The UCCJEA law was passed in each and every state in the country and the law seeks to end this problem by only allowing one state to proceed with a custody case, to the exclusion of all other states.

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December 15, 2010

California Divorce--Where Do You File The Motion?

Justia-photo-78 Michael Douglas.jpegMy Family Law office is located in La Jolla California which is a beautiful community continuously connected to Wall Street by high speed Internet connections. Just up the road from my office an epic divorce court battle is taking shape and we will closely follow this case.

This blog posted an article recently regarding Diandra Douglas' attempt to obtain a payment from the profits to Michael Douglas recent release (and success) of the movie Wall Street: Money Never Sleeps. When Diandra lost her motion which she filed in New York City, news releases claimed that she had lost in her attempt to obtain her claimed share of the payments to Michael. However, as posted by this blog, she didn't lose a motion. She simply failed to file the motion in the correct court house. The article posted by this blog explained the legal concept of "jurisdiction" which explains which court has the authority and power to issue orders regarding legal claims between litigating parties.

By way of background, Diandra and Michael were married, then divorced in a California family law court. They separated and signed a settlement agreement in the 1990s. Diandra received 50% of the community property in the divorce settlement. When Wall Street: Money Never Sleeps was released in 2010, Diandra claimed that this movie was so related to the 1987 original that she was entitled to 50% of the funds received by Michael from the 2010 movie. As a San Diego Certified Family Law Specialist attorney I work with concepts of community property, separate property, and jurisdiction on a daily basis. The news reports were wrong. Diandra didn't lose her motion; her motion was dismissed in New York as the court in which she filed the motion, didn't have jurisdiction to resolve this issue.

Just this week, the news reports stated that Diandra is looking for lawyers to re-file this motion in a California court. This blog predicts that she will file. Her decision to file in New York was unsuccessful; however it showed her determination regarding this issue. While research does not disclose the amount of the income to Michael from Money Never Sleeps, all sources agree that it is significant amount.

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December 3, 2010

California Divorce Report: Jurisdiction Part II

Justia-photo-76 Eva Longoria.jpegOn November 17, 2010, Eva Jacqueline Longoria Parker filed a petition for divorce (see it here) against William Anthony Parker II in a California Superior Court. According to the petition, there are no children. Eva Longoria does not specify any community property or separate property. She does request spousal support however she also references a Marital Agreement signed in June 2007 and amended on June 10, 2009. Eva Longoria filed her petition for divorce in California; reportedly, Tony Parker subsequently filed a petition for divorce in Texas thereby raising the Jurisdiction issue.

"Jurisdiction" is a legal concept that resolves the question of which court has the exclusive authority and power to proceed in a legal case when the same parties have filed the same lawsuit in two or more courts. As a San Diego Certified Family Law Specialist attorney, my office is trained to implement the concepts of Jurisdiction and Venue into our cases. There just is not enough factual information disclosed in the reports as to this case whether the case will proceed in California or Texas. My educated guess is that California will prevail as to the jurisdiction issue and the case will proceed to a conclusion in California. From the news reports it appears that Parker's filing in Texas was a reactionary move to force Longoria into settlement negotiations. Texas is known to complete divorce cases faster than California and to have a more conservative perspective on issues such as Marital Agreements that limit support as well as the spousal support issue.

If settlement negotiations or divorce mediation does not result in a settlement of the divorce cases, look for Longoria to aggressively seek her share of Tony's multi-million dollar basketball money. Look for Tony Parker to move forward with hearings in Texas to rule that Texas holds the exclusive jurisdiction for this case. Look for the Marital Agreement to be entered into one of the courts as evidence either in support or against the spousal support claim.

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November 16, 2010

California Divorce Report: What is "Jurisdiction"?

Justia-photo-72 Wall Street.jpegAs a La Jolla divorce attorney, my office receives telephone calls from people in different geographic areas with questions as to where their case should be filed. Which state in the United States should hear a court case is a similar question as to which county within California should hear a California divorce case. (The question as to which of the San Diego County courts should handle your case, go to the San Diego Superior Court website here.)

In 1987 Michael Douglas, actor, starred in the movie Wall Street playing the role of Gordon Gekko. The movie won many best actor awards. Michael Douglas received an Academy Award - Best Actor. In 1977 Michael married Diandra Luker and their marriage lasted until the year 2000, or 23 years. Wall Street was a financial success so it was no surprise that the sequel, Wall Street: Money Never Sleeps (2010) was expected to bring in millions in profits. By virtue of the California divorce between Michael Douglas and ex-wife Diandra, a claim was made by Diandra to receive a portion of the profits of the sequel film according to news reports. Diandra reasoned that since Wall Street was created during the marriage (thus community property) any movie that was a spin off from Wall Street (namely Wall Street 2) would be so related to the movie created during the marriage that Diandra would have some community property rights to the sequel. She and her attorney made a jurisdiction decision and filed her claim in New York city.

The movie Wall Street sought to portray the excitement and greed generated by working in an industry that has access to millions and billions of dollars. (See movie trailer below.) Appropriate to the movie theme, Diandra decided to file her case near the actual Wall Street in New York. Was this the correct decision?

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