Articles Posted in Divorce

California law allows a party to a divorce proceeding to ask a court to set aside a judgment in certain circumstances, including those in which the other party has committed fraud. In In re Marriage of Nhothsiri, the Fifth District Court of Appeals explains that a person seeking to set aside a judgment must do so within strict time limits.

1384053_wedding_rings_-_african_american.jpgWife filed a Petition for Dissolution in 2007. Husband alleged in his response that the couple had married Jan. 5, 2000. Following a hearing, the trial court approved the divorce in January 2010 and awarded spousal support to Wife, citing Jan. 5, 2000 as the date of marriage.

Wife later sought to set aside the judgment, pursuant to section 2122 of the Family Code, after she was notified that the support would end in June 2011. Claiming that Husband “fraudulently provided the incorrect date of marriage,” Wife argued that the couple was actually married in Laos in 1981 in a religious ceremony that did “not require a marriage certificate.” She further stated that the couple obtained a marriage certificate in California in January 2000.

Noting that January 5, 2000, was repeatedly and consistently used as the date of marriage throughout the proceedings, the trial court denied Wife’s motion to set aside the judgment. The court held that Wife was barred from seeking to set aside the judgment based on fraud because she didn’t file the motion within a year of when she knew or should have known about the fraud, as required by section 2122.

The Fifth District affirmed the lower court’s decision on appeal, finding that it was supported by substantial evidence. “The credibility of appellant’s claim that she learned of respondent’s assertion of the 2000 marriage date only in 2011 was rejected by the trial court on ample evidence, including appellant’s recitation of that same date in her response to the petition for dissolution she filed in 2007,” the appeals court found.

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If you’ve gone to one of those retirement planning sessions lately, you may already know that saving for life after work is not only incredibly important but also can be very complicated. These matters often become even more difficult in divorce cases, where spouses or a court have to decide how to divide savings that the parties can’t actually access yet. California’s Second District Court of Appeals recently considered such a case.

tightened-100-dollar-roll-1377964-mHusband and Wife separated in April 1998 after nearly 11 years of marriage. Husband had been working for the Los Angeles Fire Department for 18 years at the time and was eligible to retire in 2000. The couple entered into a marital settlement agreement in December 2000. The agreement divided the couple’s assets between the spouses and provided that all “income, earnings, employment benefits, or other property” acquired by one spouse after the separation date would be considered the spouse’s separate property. It also stated that Wife was entitled to half of Husband’s pension/retirement plan, due after he reached 30 years of service, if he decided to keep working past his earliest retirement date.

In 2010, Husband began participating in a new LAFD retirement program, the DROP program, which provides firefighters a lump sum payment upon their retirement, along with any monthly retirement allowance to which they are entitled under another plan. As a condition to the program, Husband agreed that his years of service and accrual amounts would freeze upon the date of his entry in the program. Money would be credited to his DROP account during the five-year period, and he would be able to access that money directly upon retirement.

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Child support payments are intended to help cover kids’ basic costs, including money for food, clothing, and shelter. Sometimes, other costs come up. As California’s Fourth District Court of Appeals recently explained, any healthcare-related costs that arise along the way are usually considered additional child support costs to be split evenly between divorced parents.

tightened-100-dollar-roll-1377964-mHusband and Wife separated in 2007. A court awarded Husband primary custody of the couple’s daughter in 2012 and ordered Wife to pay him $540 in monthly child support. The court also ordered Husband to pay Wife $1,800 in monthly spousal support. In reaching the decision, the court found that Wife was making about $2,000 per month, while Husband was bringing in roughly five times that amount.

Father went back to the court about five months later, informing it that a juvenile court had ordered the couple’s daughter to spend four months in an inpatient substance abuse program in juvenile hall or be placed in an inpatient rehabilitation facility. Father asked that Wife be ordered to pay half of the $8,000 per month it was going to cost to send Daughter to the out-of-state facility. He said Wife had insisted on sending Daughter to an inpatient facility and had agreed to foot half of the bill. Husband added that his savings were rapidly depleting and that he could no longer afford to pay spousal support, since he was paying for Daughter’s care.

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Many divorcing couples who wish to resolve the issues in their divorce with their personal and economic dignity intact, preserve or create a positive co-parenting relationship for the benefit of their children, save money and preserve assets, or for a host of other good reasons, choose mediation or Collaborative Divorce rather than litigation and traditional attorneys. Such folks tend to see divorce as a problem to be solved rather than a battle to be won.

But whatever process is used, divorce in California requires that a Petition for Dissolution and Summons be filed by one spouse and served on the other spouse in order to commence the dissolution process and to establish the court’s jurisdiction to terminate the marriage.

The Summons, in particular, can be problematic. The first page states, “You are being sued” and “you have 30 days to respond” and the second page sets forth numerous rules called automatic restraining orders. It is not uncommon for spouses who are trying to work together in a civil and respectful process to be shocked and somewhat hurt when faced with a document telling them they are being sued by their spouse.

The restraining orders prohibit either spouse from doing any of the following:

  1. Remove the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court;
  2. Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their minor child or children;
  3. Transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life; and
  4. Creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.

Parties must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective.

The principles and policies underlying the restraining orders generally make sense and are rules that should be followed by divorcing spouses for all of the right reasons. For example, assets should not be hidden, new debt should not be created, and insurance should stay intact until there has been adequate disclosure and agreements made.

Fortunately, divorcing couples using mediation or Collaborative divorce processes need never step foot inside the courtroom, but must comply with the requisite judicial paperwork, some more useful than others, to obtain a divorce. Issues of property division, child custody and child support, and spousal support can all be resolved by gathering all of the financial disclosure information and brainstorming and creating optimal outcomes for the entire family.

But there should be a way for those folks who are willing and able to resolve the issues with respect and civility outside of the courts, to obtain a divorce without the harsh and decidedly uncivil service of a summons. And furthermore, those folks who can solve their problems without the aid of the courts should have substantially reduced filing fees and not have to pay $435 for filing a Petition and another $435 for filing a Response.

However, since the state of California is unlikely to see the wisdom of this anytime in the near future, the best that divorcing couples can do is work with professionals who will explain the process to them together so that both can hear and understand at the same time and have their questions answered. It is very helpful in reducing the fear and anxiety that normally arises when one is served with a document that says, “You Are Being Sued.”

With offices throughout the San Francisco Bay Area, Collaborative divorce attorney and mediator Lorna Jaynes provides innovative legal tools to resolve many family law disputes without the bitterness, acrimony and out of control costs engendered by the adversarial process.




In a new commercial in India for Tanishq jewellery, a woman preparing for her wedding puts on a Tanishq necklace. At the ceremony, her daughter calls her asking if she can participate in the pheras, an Indian ceremony where the couple walk around a fire seven times while saying their vows. The groom is moved by the girl and picks her up, filling his bride with emotion.

A non-Indian would likely miss this point, but it is clear in the ad that this is a second marriage for both bride and groom, and since historically in India, divorced or widowed women are outcasts, the ad is contrary to Indian tradition. The ad is apparently causing quite a stir in India with viewers talking about the cultural taboos and also about the bride’s relatively dark complexion, a turn away from the country’s mainstream obsession with light-skinned lead actresses.

The ad has sparked conversations on Twitter, with celebrities and politicians also weighing in. Parliament member and industrialist Naveen Jindal praised the bride’s darker skin tone and the non-traditional marriage. Apparently, the team that created the ad chose the actors to ensure the couple would look like one of respectable equals, because otherwise traditional-minded Indians might otherwise have assumed that the man was marrying the divorced or widowed woman out of pity.

Living and working in a town that is majority Asian, I have many divorcing Indian clients who invariably express their concerns that divorce is dishonorable and shameful in their culture. I feel sad for them because divorce is hard enough without this added burden. Most everyone feels sadness and a sense of failure at some level, among many other difficult emotions. These feelings should not be exacerbated by familial and social shaming and dishonor. Hopefully this ad will start a much needed conversation among Indians about the need to support each other in these difficult times, not shame each other and add to the pain.

Another way to minimize the financial and emotional pain of divorce is to resolve the issues outside of court through Collaborative divorce or mediation, private and voluntary processes that enable spouses to divorce privately and in accordance with their own values.

With offices throughout the Bay Area, California divorce lawyer Lorna Jaynes provides options and processes to resolve family law disputes and divorce without the bitterness and hostility engendered by the adversarial process.

baby-clothes-1406945-m.jpgChild custody and support are often common issues in California divorce proceedings, both for children born during the marriage, as well as those born prior to one or both spouses prior to their marriage.  In In re Marriage of Abbate, the Fourth District Court of Appeals explains the circumstances where a divorcing spouse may be required to pay support even if he or she isn’t the natural parent.

Ms. Camarata had a three-year old son when she married Mr. Abbate in 2005 and the parental rights of the biological father of the boy were terminated one year later. Abbate agreed to assume the role as the boy’s father, and the couple filed a petition for Abbate to become the child’s adoptive father the same year, but they divorced before the petition was approved.

In 2007, Camarata took her son to a hospital for treatment, asserting that that he’d been sexually molested. The boy was sent for therapy, which the court said continued until at least June 2010. Believing it was Abbate who had molested her son, Camarata left the marriage and filed a petition for divorce. She named Abbate as the child’s adoptive parent and asked for child support. A court granted a dissolution of the marriage in 2010, but denied the request for child support.

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The State of California operates under a community property regime in which assets and debts derived from the efforts or actions of either spouse during the course of a marriage are considered joint property to be divided equally between the spouses in the event of divorce. In In re Marriage of Rynda, the California Court of Appeals for the First District explains what happens to community property when one of the divorcing spouses also files for bankruptcy.

dollar-2-1003609-m.jpgCarolina and David were married in January 1996. The couple worked together as owners of a small insurance company until Carolina filed for divorce more than eight years later. A superior court dissolved the marriage in May 2005 and ordered that all community property – including the business – be divided equally among the former spouses. When Carolina filed for bankruptcy in 2009, however, the court ordered that all valuations of the couple’s assets for the purpose of dividing it between them be halted until the bankruptcy proceedings were completed. A bankruptcy court-appointed trustee later sold much of the property. That included Carolina’s stock in the company, which the trustee sold to David.

Back in the superior court, Carolina filed a motion claiming that she was entitled to a 50 percent ownership interest in the business and to be compensated for the community debts that were extinguished during the bankruptcy process. She also argued that there remained community property from the marriage for the superior court to divide. The court disagreed. “[T]he bankruptcy court has superior jurisdiction to the superior court,” the judge said. “And if the bankruptcy court divided your businesses or sold them, then they’re done with them. I can’t do anything about that.”

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So, sadly I was in court recently for what I hope will be my last litigation matter ever. Both clients and attorneys waited for nearly three hours because we were called last, a process that costs most clients a great deal of money for little to no effort on the part of the attorney except that I was helping my client at no cost. One more example of how divorce litigation costs can spiral out of control.

So we sat for three hours watching the other matters. One couple and their attorneys came before the judge and said they had reached an agreement on child custody and visitation where the eldest boy would live primarily with the Dad and the two younger kids would stay with the mum, but the parents lived in different towns about 2-3 hours apart.

The mom explained cogently and with heartfelt emotion why they felt this was in the best interest of the children and their family. The dad agreed. The judge, however, had other ideas and decided that she, someone who does not know this family from a hole in the ground, would supplant their thoughtful decisions with her own and rejected their agreement.

Generally, separating children is not considered an optimal solution, but there is no right answer and no perfect arrangement for every family. But, absent abuse or neglect, every family should have the right to make these decisions for themselves. This family had clearly given considerable thought to their circumstances and had good reasons for their decision. And, moreover, the parents had worked through and resolved their own conflicts, so that the children would not be subjected to the anxiety and trauma that is experienced with parental conflict over custody and visitation.

It is outrageous, in my opinion, that the opinions of a disinterested third party should supplant the thoughtful decisions of caring and committed parents. In retrospect I wish I had had the presence of mind to follow the couple out of the court room and tell them to forget the judge, to tell them that they can make their own decisions. The parents could easily have filed a judgment or an order that would have enabled them to co-parent in accordance with their family’s needs and that satisfied the court.

So, if you don’t want a black robed politician making important, intimate decisions about your life, don’t go to court- mediate, collaborate, whatever it takes, stay in charge of your life, be the master of your own destiny and make your own decisions.

Resolve conflict out of court and just say no to state interference in your personal life.

With offices throughout the San Francisco Bay Area, Collaborative divorce attorney and mediator Lorna Jaynes provides innovative legal tools to resolve many family law disputes without the bitterness and acrimony engendered by the adversarial process.


A person seeking to increase or decrease spousal support payments in California generally has to show that the circumstances have significantly changed since the support award was initially ordered. In a recent case, the state’s Third District Court of Appeals explained that a court can’t modify a support award if it doesn’t know how the first court originally determined the award amount.

indian-money-4-1400712-mHusband and Wife separated some time before 2008, the year in which they went to trial on various issues related to their divorce, one of them being spousal support. Husband filed documentation indicating that his monthly income was roughly $34,000 in salary, wages, and bonuses, that his monthly expenses were just under $9,500, and that he owned real property worth about $450,000. Wife, on the other hand, said she was making about $8,300 per month and had more than $8,400 per month in expenses. She also stated that she owned about $700,000 in real estate.

A trial judge dissolved the marriage and ordered Husband to pay Wife spousal support on a sliding scale through 2023. Husband was ordered to pay Wife $3,000 per month and 30 percent of his annual bonus in the first five years, $2,000 per month and 20 percent of his annual bonus over the next five years, and $1,000 per month and 10 percent over the last five years.

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If you’ve previously read this blog, you may already know that we generally advise divorcing spouses to avoid the court system as much as possible and to strongly consider alternatives to traditional divorce litigation, including mediation and collaborative divorce. A recent case out of California’s Fourth District Court of Appeals is a good reminder of one of the major drawbacks of the traditional system:  the significant possibility for unreasonable delay and improper judgments.

courthouse-1330873-mIn this particular case, the spouses’ divorce was assigned to a court commissioner. Since the judiciary is flooded with work, the powers that be have devised a system in which non-judge commissioners act as “temporary judges” to hold hearings and render decisions in divorce and other matters. However, this particular commissioner was not qualified to render a decision.

Husband and Wife divorced in 2004 and entered into a marital settlement agreement in which the couple agreed to split child care and health care expenses for their children, and Husband pledged to pay child support on a sliding scale that eventually increased to more than $800 per month. In March 2011, the San Diego Department of Child Support Services levied money from Husband’s bank account for unpaid support and filed two motions against him:  one seeking to modify the payments and require Husband to look for a job and the other asking a court to determine the amount that he owed Wife in past due support payments.

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