August 20th, 2010
The division of assets and debts in a California divorce depends on their character. Giving assets and debts a “character” sounds quite odd. But how assets and debts are labeled ultimately determines who gets to keep what, and who is responsible for what.
Under California Family Code section 910 the community (meaning both spouses) is liable for all debts incurred during the marriage and prior to separation. It does not matter whether the debt was incurred by one spouse for his or her own benefit or for the family. It also doesn’t matter whose name appears on the bill or the credit card statements. If the debt was incurred during the marriage and before separation, it is a community debt and both spouses are equally liable. Debt incurred after separation may be either community or separate debt, depending on the circumstances. Read the rest of this entry »
Posted in Divorce
August 20th, 2010
One would think that the spouses with assets worth millions of dollars would have entered into an iron-clad prenuptial agreement for dividing those assets if there was ever a divorce. However, even seemingly iron-clad agreements are often challenged in California divorce cases involving well-to-do spouses.
Grounds for Challenging a Prenuptial Agreement
The method for challenging a prenuptial is to demonstrate that it is defective in some manner and therefore should not be enforced. This is never an easy undertaking, because much of the evidence will be disputed testimony about what each spouse said or did, or did not say or do – facts that are very difficult to establish without other supporting evidence. The dispute typically centers on whether the prenuptial agreement was revoked, amended, or invalid from the start because it was entered into as a result of fraud or duress. Read the rest of this entry »
Posted in Alimony / Spousal Support, Divorce, Marriage, Premarital agreement
June 21st, 2010
Is Divorce Law Changing?
The idea that a husband should financially support his ex-wife in the form of monthly alimony payments after a divorce has remained a tenet in divorce law throughout the United States and in California. According to the U.S. Census Bureau, in 2009, men accounted for 97% of alimony. Alternatively, the idea that a dissolution order wherein both parties waive any right to past, present, or future alimony is FINAL has been perceived as an absolute in divorce law. Yet, both of these concepts are being challenged as the recession has given rise to greater numbers of unemployment and has depleted retirement and saving accounts. According to statistics gathered by the American Academy of Matrimonial Lawyers, there has been a “spike” in clients seeking modification of their alimony obligations and attempts to rewrite divorce agreements.
The Taylor Case
The Wall Street Journal’s article “The New Art of Alimony” profiles a number of cases which cause one to question the conclusiveness of court ordered alimony. For example, consider the case of the Taylors. Paul and Theresa Taylor had been married for 17 years. When they divorced Paul got the family’s vacation cottage, and Theresa got the family home. Both parties agreed to waive any right to past, present, future alimony payments. Yet, more than 20 years after their divorce Mr. Taylor who had since remarried was ordered to pay $400.00 per week to support his ex-wife for the next 5 years. The circumstances which led Ms. Taylor to sue her ex-husband for support included being diagnosed with cancer, losing her job of 38 years, filing for bankruptcy, and losing her home. The state probate court said that these “changed circumstances” created a “dire and immediate” need. These “changed circumstances” coupled with Mr. Taylor’s ability to pay resulted in the court ordering Mr. Taylor to pay Ms. Taylor $400 per week for 5 years and $250 per week thereafter for the rest of her life.
The Pierce Case
The Pierce case presents a different scenario. The Pieces divorced after 32 years of marriage. In the divorce they equally divided $1.4 million dollars in assets, and the court ordered Mr. Pierce to pay Ms. Pierce annual alimony of $110,000 until she remarried or until the death of either. After Mr. Pierce retired his income dropped to about half of what he was making at the time of his divorce. The state probate court reduced the annual obligation to $42,000 but refused to terminate it because according to the court, Mr. Pierce had enough earning power to garner more income. The attorneys for Ms. Pierce argued that because Ms. Pierces’ retirement funds had been dwindled down to 50% of what they were once worth and since she no longer worked, that there was a financial disparity between the couple. Further, it would be wrong to reverse a divorce agreement that had already been made.
Can What Happened in the Taylor or Pierce Case Happen to You in California?
First, one thing you should know is that a spousal support award is not mandatory in California. Under the California Family Code, the Court has discretion to either deny spousal support or limit it in duration and amount. Ultimately, the court must base its spousal support award on such factors as the standard of living established during the marriage and the parties’ respective abilities and needs. The courts in California have to base a decision to award alimony on the facts, the evidence, and the circumstances of each case. There can be no speculation to account for future medical, retirement, or employment contingencies. The factors the court considers are numerous and include everything from the supporting spouse’s ability to pay to whether or not there has ever been a history of domestic violence in the marriage.
Modification of Spousal Support Orders
If you are under a court order to pay, you can petition the court to modify the agreement if the supported party is no longer in need, or there has been a change in the alimony payer’s ability to pay. Thus, like the Taylor case, proceedings can be brought on the basis of “changed circumstances”.
Termination of Spousal Support Orders
If you are looking to terminate a spousal support order, your ability to do so may depend on the type of order. Under the California Family Code an order can last for a fixed term or be contingent upon the happening of an event, such as, the death of either party or the supported party’s remarriage.
Spousal support is no doubt a tricky aspect of divorce law in California. There are many factors the court must consider in exercising its discretion. And, the order must be justified by hard core facts and evidence. So whether you are in a position where you need to know what, if any, spousal support obligations you may incur in your California divorce, you want to modify a California alimony award, or you want to terminate a California alimony award, you are going to need the advice of a seasoned family law attorney. The family law attorneys at San Diego Law Firm are able to answer all of your questions about these particular issues. Call the attorneys at San Diego Law Firm for advice at 619-794-0243.
Posted in Alimony / Spousal Support
June 21st, 2010
The Role of Grandparents
Did you know that over 1 million children in the United States are being cared for by a grandparent with no parent present? Or that over 3.2 million children in the United States live in their grandparents’ home? Given these statistics it’s clear the role of a Grandparent in a child’s life is often invaluable.
It can be devastating for all parties involved when a nuclear family has to be restructured due to divorce or legal separation and that disconnect results in the end of a relationship a grandparent has established with a grandchild. Today, grandparents’ rights are a growing issue in family law throughout the United States and in California. While grandparents’ rights are not constitutional, the law is evolving.
The History of Grandparents’ Rights
Currently, all 50 states have some type of “Grandparent Visitation Statute” through which grandparents can petition a court to grant them the legal right to visitation. Some states will grant visitation only if the child’s parents are divorcing. Other states have less restrictive laws that allow the courts to consider a request for visitation even without the dissolution of a marriage as long as the visitation would serve the best interests of the child. Under California family law a grandparent can request reasonable visitation rights when the parents divorce, even if both parents object.
The facts of the U.S. Supreme Court decision which have shaped the current laws afforded to grandparents in the United States are sad and unfortunate. In that case, Troxel v. Granville, a father, Brad Troxel, left behind two daughters and their mother Tommie Granville at the time of his death. The two parents were estranged. But Brad’s parents still maintained a strong relationship with their grandchildren and visited their grandchildren regularly after Brad’s death. After Tommie remarried, she limited the grandparents’ visits.
Ultimately, Brad’s parents went to court. The trial court agreed that the state law which allowed for grandparent visitation applied to the Troxels’ as long as they were able to prove that visitation was in the best interest of the child. However, the U.S. Supreme Court disagreed by stating that the applicable state law was “too broad” and that it infringed on a parent’s fundamental right to make decisions for her children. In the end, the U.S. Supreme Court struck down the trial court’s decision that granted the Troxel grandparents’ right to more visitation.
Seeking Visitation or Custody in California
California law gives grandparents the right to petition for visitation in one of many circumstances. For example, a grandparent can file for visitation when the grandchild’s parents are divorced, not married, or separated. It also allows a grandparent to make a claim for visitation when the grandchild is not living with either parent. However, one of many factors that may have to be proven is that a relationship between the grandparent and child existed prior to the grandparent’s petition seeking visitation rights.
Under California law, one situation that would allow a grandparent to file for custody of a grandchild would be one where both parents have died or parental rights have been terminated due to a number of reasons. There are many more circumstances in which custodial rights could be granted if it can be shown that it would be in the child’s best interest to take custody away from a parent.
Do Parents in California Have Rights When a Grandparent Petitions for Visitation?
The answer to this question is yes. Unlike the evolving laws regarding grandparents’ rights, the right of parents to make decisions about raising their children is fundamental. In the wake of the Troxel case, groups such as the Coalition for the Restoration of Parental Rights and the American Civil Liberties Union have championed the rights of parents and the U.S. Supreme Court’s decision. This is primarily because the decision affirmed the right of a fit parent to have the final say on how to rear their children. This is so even if such decisions include limiting or excluding grandparent visitation based on the parents’ own belief that it is in the best interest of his or her child to have no visits, or only brief visits, from grandparents.
As mentioned at the beginning, having to restructure the family unit during or after a divorce is not an easy task. Every family is different, but every parent, every child, every grandparent will no doubt feel loss when relationships change due to dissolution. Whether you are a parent trying to figure out the best way to maintain the stability of relationships that your kids have with the parents of an already, or a soon-to-be ex-spouse, or a grandparent who feels alienated from a grandchild, it is important to seek good legal advice. The family law attorneys at San Diego Law Firm have much experience dealing with the many issues that face families upon divorce. Call our attorneys at 679-794-0243 if you are a parent or grandparent who needs help understanding or protecting your rights. The procedures for seeking visitation and or protecting your rights are complicated; we can help you.
Posted in Custody & Visitation
May 14th, 2010
Let’s say that a husband works full-time to support his wife while she goes to medical school. The couple’s joint money is used to pay for the wife’s medical school, but not long after the wife becomes a doctor, the two decide to divorce. Since the money used to pay for the wife’s education was community property (usually property is “community” if it was earned while married), should the wife pay this money back to the community estate upon divorce?
Many married couples in California have spent a lot of money on one spouse’s education. Despite the steep price of an education, many couples feel it’s worth the cost because of the potential financial benefits they’ll both share down the road. But what if there’s a divorce? Read the rest of this entry »
Posted in Alimony / Spousal Support, Divorce, Premarital agreement
May 14th, 2010
In most California divorces, the family home is one of the biggest assets at stake in the divorce. No matter what you do, remember that how your property is divided can affect you long after the divorce is final.
What happens if one spouse keeps the house?
Option 1: The Buyout
If one of you does keep the home, then you’ll have to buy the other spouse out. To buy out your spouse’s share, you might even things out by making trade-offs. Often, the spouse keeping the house will give up a share in other community property with equal value. As with your other assets, getting an accurate appraisal of the property’s value is critical. Read the rest of this entry »
Posted in Divorce, Marriage, Property: Value & Division
April 23rd, 2010
Courts throughout California and the country have dealt with questions about child custody and religion for decades. What will happen if divorced parents (or unmarried parents who are no longer together) have different religions and disagree about which faith to raise their children in? The truth is, unless and until the U.S. Supreme Court decides this question, there’s no black and white answer that applies nationwide. Read the rest of this entry »
Posted in Custody & Visitation, Divorce
April 23rd, 2010
The road toward getting your California divorce judgment probably felt long and rough at times. You worked hard to protect your family and financial interests during the divorce, and now you need to do the same after the divorce. While not quite “deadly sins,” it’s still essential that you avoid these post-divorce mistakes before any damage is done. You may want to ask yourself, are you guilty of any of the following? Read the rest of this entry »
Posted in Divorce
March 12th, 2010
Divorces in San Diego and throughout California can’t become final until at least six months after a spouse is served with divorce papers. Usually, a divorce will take longer than this minimum waiting period. Many steps need to be taken during the transition to protect your family, business, and finances.
For divorcing spouses who have kids, a Divorcesupport.com blog provides advice on how to best meet your children’s emotional needs during a divorce. It cautions that you shouldn’t be the only one providing your kids with emotional support. When family and friends aren’t enough, then look for counseling options. You’re also encouraged to get emotional support for yourself, such as through a local support group, family, and friends. Read the rest of this entry »
Posted in Alimony / Spousal Support, Asset Protection, Child Support, Custody & Visitation, Divorce, Property: Value & Division, Restraining Orders
March 12th, 2010
Here in San Diego, there’s no shortage of ways for a divorcing spouse to spend away all of the couple’s assets during a divorce, if he or she really wanted to. Thankfully for the other spouse or domestic partner, one important way that California deals with this concern is with “automatic temporary restraining orders.”
An automatic temporary restraining order (ATRO) sets out many ground rules that both spouses have to comply with during the divorce process, known as “dissolution of marriage” in California. For the spouse who begins the divorce, the ATROs are effective when the divorce papers are filed in court. For the spouse responding to the divorce, the order goes into effect once the divorce papers are served. Read the rest of this entry »
Posted in Divorce, Restraining Orders
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