Recently in Pre Nuptial Agreement Category

June 20, 2013

Media Mogul Rupert Murdoch Pursuing a Quiet and Quick Divorce

1221952_to_sign_a_contract_3.jpgDivorcing spouses in San Diego would probably prefer a quick divorce to one that endures unnecessarily. But sometimes the strong emotions and potential bitterness between the spouses tends to prolong an already arduous process. There are ways to proceed that can help minimize or at least attempt to contain the proceedings so that both parties can move on with their lives as soon as possible. Of course, one of the ideal ways to work toward that goal is to consult with and hire and experienced family law attorney who understands the local laws and divorce court procedures.

According to news reports, Rupert Murdoch is attempting to dissolve his 14-year marriage to Wendi Deng Murdoch as quickly as possible. Experts speculate that Murdoch's choice of lawyer, and a slew of pre- and post-nuptial agreements, all point to a quiet divorce, with minimal drama. The attorney Murdoch hired has a reputation for settling divorces in a quiet manner, and much the same has been said of his wife's selection of attorney, who is also known for her reputation in keeping matters out of the public eye.

One method of anticipating some of the difficulties divorcing parties may face is to settle certain matters before the marriage even begins by signing a prenuptial agreement. In many cases, the person with the greater accumulation of wealth before the marriage is often the party who suggests signing a prenuptial agreement. Both parties, however, are expected to thoroughly review the document, with the help of counsel, to ensure satisfaction of the terms before signing. Not surprisingly, the Murdochs signed a pre-nuptial agreement in 1999. Reports indicate that Wendi Murdoch was represented by her current divorce counsel during the execution of that agreement. The couple also signed two post-nuptial agreements in 2002 and 2004.

In California, the Uniform Premarital Agreement Act governs prenups and sets forth some ground rules. For one, the law requires parties to wait seven days from the day they first see the prenup before signing the document. Additionally, a prenup cannot settle issues relating to child support or child custody, and it cannot mandate obligations of either spouse in non-financial matters. The two most important rules governing prenups are that a prenup must be in writing and it must be fair. In order to help ensure the fairness of the document, both spouses are encouraged to hire their own attorneys, who will represent each person's separate interests.

The Murdochs of course had their own attorneys at the time of signing their agreement, which, in all likelihood, will be upheld and enforced. It has been suggested that financial matters will all be settled according to those documents. The courts in New York, where the divorce was filed in this case, are known to view prenups in a favorable light.

Many people view prenuptial agreements as only necessary for wealthy couples. But that is not necessarily the case. Anyone with any amount of assets, including people with established careers and people remarrying, should give serious consideration to a prenup. Parties who are seeking information on the benefits of a prenuptial agreement are encouraged to consult with an experienced local family law attorney.

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March 21, 2013

Appellate Court Voids Prenup on Basis of Fraud

332157_contract (1).jpgJust last month, an appeals court in New York sided with a wife who had been on the losing end of a prenuptial agreement -- and essentially threw it out. While the laws in New York do not govern marriages that take place San Diego, the unexpected decision is sending shockwaves through the Family Law community at large. Divorce attorneys throughout the country are talking about the decision, and many believe that a solidly drafted prenup will still hold up in court, despite the surprising decision. If you are contemplating marriage and believe a prenup is the right agreement for your situation, it is imperative, now more than ever, that you consult an experienced, local attorney to draft the agreement.

According to a Wall Street Journal article, four days before their wedding, Peter Petrakis asked his soon-to-be wife, Elizabeth Cioffi, to sign a prenuptial agreement. He gave her an ultimatum - if she didn't sign the document, he would call off the wedding that was already paid for by Elizabeth's father. She agreed to sign, but only after Peter promised to tear up the agreement once they had children. He also promised to put her name on the deed to the house. These last two provisions were not included in the prenup.

After having two sons and one daughter, Elizabeth claimed that Peter reneged on his end of the bargain. Under the prenup, Elizabeth is entitled to $25,000 a year. She argued in court that Peter fraudulently induced her to sign the agreement just days before their wedding. The court agreed, even though Peter's promise was not part of the prenup. It is reported that Peter will appeal the decision to the highest court in the state.

With the prenup decision under her belt, Elizabeth plans to initiate divorce proceedings and will seek half of her husband's assets, estimated at $20 million. Some divorce attorneys have speculated that this decision could be quoted in every case going forward. Others are not sure whether the ruling will establish precedent or if it will be considered a singular decision, applicable only to the facts in this case.

California law requires parties to wait seven days from the day they first see the prenup before signing the document. And as we discussed in an earlier blog post, two important rules governing prenups dictate that the agreement must be in writing and must be fair. "Fair" means that the parties are expected to disclose all relevant financial information, a party must not coerce the other party to sign, and both parties must fully understand what they are signing. As we have seen from the decision in New York, the court agreed that the prenup was not fairly executed, as Elizabeth relied on her husband's verbal promises to tear up the agreement after they had children.

In order to avoid, or at least minimize, unexpected arguments concerning the validity of a prenup, parties are strongly encouraged to contact a local, experienced family law attorney for guidance through this complicated process.

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March 7, 2013

California Appellate Court Ruled Waiver of Spousal Support in Prenuptial Agreement Violated Public Policy at Time of Execution

1221952_to_sign_a_contract_3.jpg Raymond and Roberta Melissa were married on August 8, 1985. He was 41 and she was 32. He owned a Newport Beach home, a jaguar and had a net worth of over $2 million. She rented an apartment and worked as a nurse. As a condition to getting married, Raymond required Roberta to sign a prenuptial agreement that was drafted by a neighbor's attorney-son, Craig Wilford. Roberta did not hire her own attorney to review the document, even though Wilford told her she could. The parties signed the agreement in 1985.

The issue contested in this case pertains a clause that relieves both parties of the responsibility to provide spousal support in the event of a divorce or legal separation. This part of the prenuptial agreement specifically and explicitly recognized that California law (at the time of the document's execution) prohibited the future waiver of spousal support. The agreement even cited the case, In re Marriage of Higgason, as standing for that current state of the law. However, the agreement further provided that the law regarding waiver of spousal support was in "a state of flux" and because of that, they agreed to mutually waive such rights.

The parties subsequently had a son who has autism and suffers from Fragile-X syndrome. Back in 1997, Roberta stopped working full-time. In the fall of 2009, the parties separated and then Roberta filed a petition for divorce shortly thereafter. Roberta continued to care for their son who is now 24-years-old, and works as a part-time janitor, earning $9 per hour. Roberta is unemployed.

The issue before the trial court was whether the prenuptial agreement was valid. The court's main two concerns were (1) whether it was required to apply the law in effect in 1985 when the agreement was executed; and (2) if so, whether the waiver of spousal support clause was void as against public policy. The court reviewed the Higgason case, relevant statutes and the later decision in In re Marriage of Pendleton & Fireman, and ultimately decided that it was required to apply the law at the time of execution. In so doing, the court held that it was "very clear" that spousal support waivers were void as against public policy in 1985. The court noted that relevant statutory amendments, as well as the decision in the Pendleton case, failed to overrule the Higgason case. The court entered a partial judgment holding the spousal support waiver invalid. Raymond appealed.

The court of appeals affirmed the decision. After reviewing the evolution of spousal support waivers, and the reasons for holding such provisions as against public policy (namely the preservation of marriage and its connection to society's welfare), the court pointed out that things have changed over time. In Higgason, the court held the waiver of support to be against public policy because it sought to change the wife's statutory obligation to support her husband. A later case, In re Marriage of Dawley, added to this notion by holding that public policy renders an agreement unenforceable when it promotes or encourages dissolution of the marriage.

The status of the law in 1985 was that any written waiver of the statutory duty to mutually support each other was void as against public policy. The court of appeals refused to accept the language in the parties' agreement as circumventing the law in 1985. Despite the enactment of the Uniform Premarital Agreement Act in 1986 (which failed to specifically address waivers of spousal support at the time), and the later decision in Pendleton that acknowledged the shift in public policy regarding such waivers, the court concluded that it was required to apply the law as it existed in 1985.

As a side note, in response to the decision in Pendleton, in 2002, the Legislature amended the statute requiring spouses to be represented by counsel before waiving spousal support in a prenuptial agreement, among other things.

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December 27, 2012

Court Upholds Order Unsealing Pleadings in NASCAR CEO's Divorce Matter

file8651274380509.jpgThe issue of confidentiality of financial records in a divorce matter recently came before the North Carolina Court of Appeals. The court affirmed a lower court's order unsealing the documents in a man's post-divorce proceeding against his ex-wife, in which he alleges that she breached confidentiality provisions in their pre-nuptial agreement. After one judge initially sealed the pleadings, a different judge unsealed them, citing the public's interest in open judicial proceedings. The appellate court affirmed this decision in France v. France, No. COA12-284, slip op. (N.C. App., Dec. 31, 2012).

The plaintiff, Brian France, was married to and divorced the defendant, Megan France, on two separate occasions. Their second marriage, which began in December 2007, included a pre-nuptial agreement. In exchange for certain financial benefits in the event of divorce, the defendant agreed to keep any financial information in her possession about the plaintiff confidential, unless she was compelled by law to disclose such information. Breach of the confidentiality provisions, according to the pre-nuptial agreement, would constitute a material breach creating a cause of action for damages.

The couple separated in 2008. While the details of their divorce were kept confidential, statements made on the record in court indicated that the plaintiff, who is the chief executive officer of the National Association for Stock Car Auto Racing (NASCAR), would pay the defendant $9 million, as well as child support of $10,000 per month and alimony, for a period of ten years, of $32,000 per month.

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April 26, 2012

Does Cohabitation Before Marriage Make Divorce More Likely? The Debate Rages On.

1381938_39880399_04302012.jpgThe number and percentage of couples choosing to live together before, or instead of, getting married has vastly increased over the past few decades. Couples in America may choose to cohabit either as a prelude or an alternative to marriage, and they may do so for a variety of reasons, from the purely financial to the deeply personal. The practice remains controversial for some, though, and studies conducted over the years have reached conflicting conclusions about what, if any, effect cohabitation may have on a couple's prospects for success in marriage.

A recent opinion piece in the New York Times claims that the total number of cohabiting couples in the U.S. has increased by over 1,500 percent in fifty years, from around 450,000 in 1960 to about 7.5 million today. According to a 2001 nationwide survey conducted by the National Marriage Project, two-thirds of respondents believed living together before marriage would help prevent divorce. The Times author claims that experience suggests otherwise, although she cites a government report that suggests the divorce rate among cohabiting couples is declining. Citing stereotypes about women viewing cohabitation as a step towards marriage and men viewing it as a means of avoiding commitment, she concludes that cohabitation leads to people getting "locked" into marriage and then later divorcing.

A writer at the Huffington Post offers a mismatched comparison of a ten percent cohabitation rate in the 1970's that increased to a rate of fifty percent among women ages fifteen to forty-four in the 1990's. The writer cites research from the University of Denver that claims that people who do not cohabitate, and people who only cohabitate after getting engaged, have "more positive marital relationships," meaning fewer divorces. The researchers reportedly concluded that people who cohabitate before marriage "drift into marriage" with a different level of commitment, a somewhat similar conclusion to that of the New York Times piece.

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March 15, 2012

"Baby-Selling" Scandal Illuminates Some Features of Contracts in Family Cases

1281126_37028477_03142012.jpgA scandal that the news media describe as a "baby-selling ring" has led to prison sentences for a San Diego attorney and another woman implicated in the matter. The case involves some relatively-unknown areas of both family and criminal law. Some aspects of the case relate to more familiar areas of the law, however, such as pre-nuptial agreements and child custody agreements. The case illuminates in some ways the care that must be taken in drafting agreements that relate to the custody and support of children.

Surrogacy, the process by which someone agrees to be implanted with a fertilized egg from another couple, carry it to term, and then turn the child over to that couple after it is born, is not subject to an uniform set of regulations. The parents and the surrogate enter into a contract outlining expenses, fees, and arrangements for the child. State statutes relating to surrogacy vary in how they treat contracts between parents and surrogates. The alleged baby-selling ring, according to prosecutors, involved recruiting surrogates and potential adoptive parents. Theresa Erickson, a San Diego lawyer specializing in surrogacy issues, Carla Chambers of New Zealand, and several other people were reportedly involved in the recruiting process. They would fly surrogates from the U.S. to a clinic in Ukraine, where the surrogates would be impregnated with "designer embryos" from various donors. The children would then be "sold" to adoptive parents back in the United States during the second trimester. Adoptive parents would be told that a prior surrogacy contract had "fallen through." People would reportedly pay up to $200,000 for an adoption.

The federal criminal case against Erickson and Chambers revolved around the fact that the children in question were conceived, and sometimes born, before there was a valid surrogacy or adoption contract. The defendants thus created an "inventory" of babies. According to prosecutors, neither the surrogates nor the adoptive parents were aware of this. The law requires that a surrogacy contract be in place before the surrogate is implanted with the fertilized egg. The specific criminal charges related to falsified surrogacy documents sent to California courts.

Erickson, Chambers, and Maryland attorney Hilary Neiman pleaded guilty in 2011 to conspiracy to commit wire fraud. A judge sentence Neiman to one year of confinement, including both prison and house arrest, later last year. A judge sentenced Erickson to five months in prison and nine months house arrest in February. Chambers received a five-month prison sentence and seven months' house arrest.

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February 15, 2012

Just in Time for Valentine's Day, a Primer on Prenups

1377807_75600706_02152012.jpgValentine's Day is a time to celebrate love and romance, or at least to buy flowers and fancy dinners. While no rigorous scientific studies have been conducted on the issue, it is also a time for marriage proposals of varying degrees of creativity and success. With so much romance in the air, it may seem like the last time that couples would want to talk about something so technical and unromantic as prenuptial agreements ("prenups" for short). It is most definitely something couples should discuss, though, before they run off and get married.

In California, the Uniform Premarital Agreement Act governs prenups and lays out some ground rules. A prenup is an agreement between two individuals who are engaged to be married, which will take effect upon the event of their marriage. It can cover issues relating to property and financial issues, such as how to handle property owned before the marriage, how to characterize property acquired during the marriage, and how to divide property in the event of a divorce. A prenup cannot predetermine issues relating to child support or child custody, and it cannot dictate obligations of either spouse in non-financial matters, such as cleaning the house or visiting the mother-in-law.

Many people believe, incorrectly, that prenups are only necessary for couples where one spouse has substantial assets, or where there is a big difference in the ages of the couple. Anyone with any amount of assets, including people with established careers and people remarrying should give serious consideration to a prenup. People who already have children should consider a prenup in order to safeguard a legacy for those children. This is not to say that a new spouse would overtly interfere with such a legacy, but rather that California family law can complicate a person's financial arrangement when they remarry, unless they plan ahead.

Prenups are becoming more acceptable in society, although calling them "popular" may not be entirely accurate. No two marriages are alike, and spouses are embarking on a variety of financial arrangements in their marriages rather than necessarily pursuing the traditional merging of finances. Economic factors, namely the economy being bad, might make a prenup an effective method of helping spouses keep their finances sorted.

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January 26, 2012

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

1343743_51706269_01302012.jpgYet another Hollywood love story is coming to an end with the news last month that comedian Russell Brand filed for divorce from singer Katy Perry. The couple had gotten married just over a year earlier, in a traditional Hindu ceremony in Rajasthan, India on October 23, 2010. Brand filed for divorce on December 30, 2011, citing irreconcilable differences.

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

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

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

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November 11, 2011

The Kardashian/Humphries Wedding Saga Continues with a Divorce

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

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

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

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

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September 12, 2011

California Divorce Report: When Is A Gift Not A Gift?

Justia-photo-113 diamond ring.jpegAs a San Diego Certified Family Law Specialist Lawyer, continuing education is a part of the work of my office. Since my office only works in the field of Family Law, the research of new cases and statutes is greatly limited whereas a general practice attorney has a duty of continuing education in a variety of fields of law. One issue in family law that seems to never go away is the Husband requesting the engagement ring returned to him, from the Wife, pursuant to the divorce proceeding. The Husband may claim that the ring is very valuable, or that it is community property, or that the Wife secured it by fraud, etc.

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

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

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May 31, 2011

Divorce California Style

Thumbnail image for Justia-photo-98 organization.jpegOn May 30, 2011, Monday, it is a beautiful day in La Jolla California where my family law office is located. Same as the weather slightly north from San Diego where Maria Shriver is putting together her petition for dissolution of marriage, according to reports, and finalizing her divorce plans against Husband A. Schwarzenegger. As this blog predicted a few days ago, Rogelio Baena, former Husband to Schwarzenegger's alleged sex partner, Mildred Baena, is expressing his anger directed at Schwarzenegger as reported in several news stories and we expect that he is also using this Memorial Day for his law suit planning. As a San Diego Certified Family Law Specialist lawyer I'm reviewing the latest news reports as to this developing story as the California divorce implications are significant.

At this point everyone needs a refresher course on the participants to this looming legal battle: Schwarzenegger--Husband to Maria Shriver. Maria Shriver, wife to Schwarzenegger in a California long term marriage (over twenty years). Mildred Baena is the alleged mother of Schwarzenegger's child and a former household employee of Schwarzenegger-Shriver. And, Rogelio Baena, described above, the former Husband to Mildred who reportedly states that he thought the child (of Mildred and Schwarzenegger) was his.

At this time it is anticipated that the family law attorneys and others, for Mildred, Maria and Rogelio are designing petitions and complaints directed at Schwarzenegger. Under California community property laws, 50% of Schwarzenegger's reported $400 million estate belongs to Maria (except for separate property belonging to Schwarzenegger and/or monies protected by a prenuptial agreement if there is one). Mildred will seek child support (which would be gigantic under California child support guideline laws) plus she may file a "Marvin" case against Schwarzenegger whereby she would allege that Schwarzenegger is obligated to provide support or other funds to her pursuant to contract law or trust law legal theories. Rogelio will claim, if he files, that he was the victim of Schwarzenegger's reported extramarital activities and has suffered great emotional harm.

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January 8, 2011

California Divorce Report: Sean Penn "Lost Half"

Justia-photo-80 penn and wright.jpgThe purpose of a prenuptial (premarital, ante nuptial) agreement is to change the nature of the divorce laws of the state of California. California is a community property state. Generally this means that one-half of all income and property earned or acquired in a marriage belongs equally to each spouse. So, when the spouses divorce, each gets one-half of the property.

As a San Diego Certified Family Law Specialist attorney with a family law office in La Jolla, I am frequently asked to prepare a premarital agreement. Typically, a person is to marry in the next two to four months and they do not want the marriage to operate under the community property system. They may also want to include provisions as to spousal support. This takes us back to the recent news article regarding actor Sean Penn.

According to the article, (Mail Online) Mr. Penn told a reporter, "'I had just got taken for one half of everything I had in the divorce..." Mr. Penn was referring to his 2010 divorce from actor Robin Wright. Another article states that the community property estate was worth $123 million and that Sean "got taken" for $61 million. Possibly if your ex-wife just left the marriage with $61 million of money that you had earned during the marriage, you too would be bitter. However, this was so foreseeable; so predictable; so preventable.


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November 5, 2010

California Divorce News: Charlie Sheen's Wife is Angry

Justia-photo-69 Sheen and Brooke.jpgIs it true that La Jolla divorces are more civilized? As a Certified Family Law Specialist attorney with a law office is La Jolla I have found that some couples work very hard to control the emotions that may lead to a very time consuming divorce.

Isn't divorce in California no-fault based? What difference does it make that Charlie Sheen did the numerous things that are now appearing on Internet news stories? Probably not much in his California divorce case; however, he allegedly committed the biggest mistake--he didn't discuss the highly public divorce with his wife prior to filing.

We've all heard of the notification that the "marriage is off" by voice mail or by text message. What's now? Notice by Facebook? Twitter? My Space? According to the San Francisco Chronicle, Charlie Sheen's wife, Brooke Mueller, alleges that she was not consulted (notified) by Charlie that he was filing for a divorce, which the actor Sheen did in the last few days. Never mind that Charlie reportedly pleaded guilty to a criminal assault last summer. Or that just recently he reportedly trashed a New York City hotel room in an event that did not include his family. Afterwards, Charlie files for the divorce against Ms. Mueller. This is the ultimate proof that California is a no-fault divorce law state.

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September 29, 2010

California Divorce -- Got Mediation?

Justia-photo-65 mediation.gifAn AP story written by reporter Greg Risling stated that the McCourt trial will head immediately into mediation after this week of testimony. The legal issue of this trial is the characterization of the LA Dodgers. In other words are the Dodgers the separate property of Frank McCourt or the community property of both Frank and Jamie McCourt.

As a San Diego Certified Family Law Specialist I am trained in divorce litigation (including trials) as well as divorce resolution (including mediation and arbitration). In a trial, the finder of fact is the judge (California divorce does not permit jury trials), and the judge will then apply California family law to the facts resulting in a decision. At the end of this trial the judge will rule that the LA Dodgers are either owned jointly by Frank and Jamie or solely by Frank McCourt. Mediation cannot force a conclusion to a case as resolution in court; however, mediation should be a tool in every lawyer's toolbox.

Mediation hearings are usually less formal than trials. In a trial, one side of the issue will prevail; however in mediation, compromise is encouraged so that both sides secure something. Trials can be tremendously expensive as the attorneys pore out their skills in their legal research, procedural maneuvers, evidentiary objections and courtroom training into the trial. Mediation is typically not as expensive as witnesses are usually not called and the primary skill involves negotiation techniques.

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September 27, 2010

San Diego Divorce Report of Contract Catastrophe

Justia-photo-63 gibberish.jpgA San Diego news article described how the McCourt pre marital contract is more convoluted than ever. The ongoing bifurcated trial (a trial on an issue separated out from the rest of the divorce case) as to the ownership of the LA Dodgers, resulted in the attorney who drafted the contract testifying that he changed the contract after the parties signed the contract. The LA Times also published an article authored by Bill Shaikin and Carla Hall on this topic that was helpful to this blog.

One of your first days in law school, learning about California contractual law, you learn that a "Contract" indicates a "meeting of the minds" resulting in an agreement between two (or more) parties. The contract may be verbal or written. Written is preferred so that the terms of the agreement are specified and ambiguities are eliminated. Many years after law school I am a Jolla divorce attorney who prepares and reads marital contracts on a regular basis.

In a California divorce, property must be identified, characterized, valued and disposed by division between the parties or by a sale to a third person. In the California divorce case of Jamie and Frank McCourt (owners of the LA Dodgers baseball team, six written contracts have been presented to the court to dispose of the ownership of the baseball team. These contracts, all written, signed and notarized, are post marital agreements (also known as "ante nuptial" or "post nuptial") The purpose of a post marital agreement is to make the court rulings as to property (and other issues) very quick and simple, not to mention low cost. However, the problem here is that three contracts provide that the team is Frank's separate property and three contracts provide that the team is community property. How could this have happened?


In an earlier blog on this topic (here) I wrote that the trial was not going well for Frank. This is just my opinion as a California Certified Family Law Specialist. This was after just the first day of the trial. My opinion is now stronger. There are two contracts, signed by both parties. One supports the conclusion that the team is community property. The one that makes the property Frank's separate property was changed by the drafting attorney, after the contract was signed (approved) without notice to either party that the change would be made. No "meeting of the minds" = no contract. I don't see how this will go well for Frank.

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