Recently in Marital Settlement Agreement Category

April 17, 2014

Parents May Restrict Court's Review of Adult Child Support Order

market-movements-2-1388612-m.jpgUnder California law, support orders may be modified or terminated at any time, as the court deems necessary. The law further defines "support order" as including a child, family or spousal support order. These provisions apply to cases filed in family courts in San Diego and throughout the state. And court decisions interpreting the statutory language, in relation to the underlying facts and circumstances of a case, can impact the way future family court cases are decided. Families facing child support disputes are encouraged to contact an experienced family law attorney who is fully knowledgeable of the local and recent court decisions affecting a party's right to child support.

It is important to understand the complexity of child support laws and how they apply to adult versus minor children. While California law specifies that a parent's child support obligation typically extends until a child reaches the age of 19 or completes the 12th grade, parents may agree to provide additional support. The question then arises, does a court have the authority to modify such an agreed upon extension of support for an adult child?

In a case of first impression in California, the court of appeals was asked to decide whether, under the state family code, parents may contractually limit the court's jurisdiction to modify an adult child support order that was made under the parents' marital settlement agreement. Here, the court looked at the interplay of two applicable family code statutes: section 3651 and section 3587. Section 3651 provides a court the authority to modify or terminate a support order - subject to section 3587, which gives a court the authority to approve a stipulated agreement by the parents to pay for the support of an adult child.

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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.

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April 18, 2013

Former LA Dodgers' Owner Back in Court as Ex-Wife Petitions to Set Aside Divorce Settlement

216494_dodgers_baseball_game.jpgFor spouses seeking to divorce in San Diego, California law generally requires that marital property be divided equally. Identifying marital property and determining its value are critical parts of any divorce case. In some instances, a party to a divorce settlement could later argue that because of fraud or errors made in determining the value of marital property, the court should set aside the settlement. Because the value of marital property is of crucial importance to the outcome of the settlement, spouses are encouraged to hire an experienced San Diego family law attorney who will work to get the best settlement for their case.

According to a Bloomberg news article, Jamie and Frank McCourt dissolved their marriage in 2010. They announced their divorce settlement in October 2011, which allocated to Ms. McCourt a tax-free sum of $131 million. Six months after their settlement was finalized, Frank McCourt sold the Los Angeles Dodgers for $2 billion. After learning about the sale of the team, Ms. McCourt petitioned a California Superior Court judge to set aside the settlement, claiming that it was based on fraud. She contends that as co-owner of the team, she was entitled to a great deal more than the $131 million she received under the settlement.

According to some reports, it is said that Ms. McCourt received 7% of the couple's assets, while Mr. McCourt received 93%. The motion filed recently claims that after the sale of the team, less any relevant debts, Mr. McCourt's assets turned out to be worth $1.7 billion, more than 10 times the amount Ms. McCourt received in the settlement.

Although the process can become costly and time consuming, California law does provide an avenue of relief for parties who wish to set aside a divorce settlement. Under Code of Civil Procedure Section 473, or Family Law Code Section 2122, an ex-spouse may seek to set aside the settlement on grounds such as fraud or mistake, among others.

As part of her motion to set aside the divorce settlement, Ms. McCourt sought to uncover testimony from a confidential mediation proceeding between the Dodgers, Frank McCourt and various league officials. According to another article, the U.S. Bankruptcy judge who oversaw the team's bankruptcy case refused to allow Ms. McCourt access to the information revealed during the mediation sessions. In the judge's opinion, the confidential mediation was "an essential ingredient in the success" of resolving the Dodgers' bankruptcy case.

It should be clear that the best course of action is to be fully aware -- in advance of the settlement discussions -- of all of the marital property and the respective worth of each item. Ms. McCourt admitted to being surprised at herself for making such a "huge mistake" as to the value of the marital assets, namely, the baseball team. An experienced, local divorce attorney can assist you in the thorough identification and valuation of all marital property, and should conduct an exhaustive investigation of your and your spouse's marital finances.

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July 12, 2012

California Divorce Report: Child Custody Issues in the Divorce of Tom Cruise and Katie Holmes

335px-Tom_Cruise_&_Katie_Holmes_WHCAD.jpgHollywood actors Tom Cruise and Katie Holmes made headlines when they began dating, and they continue to be the subject of tabloid scrutiny up to this day. Their divorce, filed by Holmes in June and finalized in less than two weeks, brought media attention to the marriage once again, particularly to their six year-old daughter Suri. Issues of child custody and alleged concerns over the child's safety appeared to play a major part in the divorce. Much of the coverage of the case amounted to speculation about possible discord over religious issues. While the media offered many theories, it offered few confirmed facts. Since the parties have asked for privacy, details of the divorce will likely remain out of the public eye. Conflicts between parents over religious issues is quite common in divorce, so if that did play a role, this case is far from unique.

Cruise and Holmes began dating in 2005, and were married in November 2006. Both are well-known actors. Cruise, who is now 50 years old, has been acting in Hollywood movies for more than thirty years. Holmes, who at age thirty-three is seventeen years Cruise's junior, is best known for the 1990's television series Dawson's Creek. Cruise is a prominent member of the Church of Scientology, and Holmes reportedly began studying the Church when the two started dating. Their daughter was born in April 2006.

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April 11, 2011

Reports of Two Divorces

Justia-photo-92 Longoria.jpegRecently 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.

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October 1, 2010

San Diego Divorce Report of Celebrity Filing

Justia-photo-65 Nancy Wilson.jpegThe San Diego Union Tribune reports that a well known couple, married for more than 20 years, has filed for divorce. The couple is rock singer Nancy Wilson and director Cameron Crowe. The purpose of this blog will be to discuss the actual Petition for Dissolution of Marriage filed by Nancy on September 16, 2010, and the raised issue of filing for a divorce in a cooperative way leading to mutual resolution rather than resolving the case in court on a contested basis.

As a San Diego Certified Family Law Specialist attorney for more than 30 years, I have resolved cases out of court (for example, through mediation) and through the contested process involving trial. I have recently posted blogs on mediation and vigorously contested divorces (for example, here) and there is no question that resolving a case on an uncontested basis is the best way to go for most divorcing couples. However, here is the math for California divorce: It takes two to marry (so far in the State of California), one to dissolve the marriage, and two to dissolve the marriage in an uncontested fashion.

The Petition in this case indicates that Nancy has hired an attorney who does not engage in divorce litigation. Specifically, the attorney describes himself as a "collaborative law" attorney. "Collaborative law" definitions are somewhat in dispute however the phrase is generally defined as an attorney who will resolve the case on an uncontested basis and involve other professionals, as needed, such as CPAs or psychologists, to address the issues in the specific case. Most of the cases in my office are resolved by mutual agreement. It is our belief that resolving a case with a Marital Settlement Agreement is preferable for our clients; however, there are also situations when it is in the client's best legal interest to litigate.

While the Petition was filed just recently, the Petition states that the date of separation was on 6/15/2008. The date of separation is a significant event in Family Law as it signifies a change as to the characterization of money and property (for example, money earned after the date of separation is generally the separate property of the earning spouse). The Petition lists two children. (This blog does not discuss the names and ages of children involved in divorce cases.) Later in the Petition, Nancy requests "joint" legal and physical custody of the children. This means that the parties intend to "co-parent" the children. It does not necessarily mean a 50/50 sharing of custody.

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