Divorce

April 21, 2015

Revising Spousal Support Awards in California Divorce Cases – In re Marriage of Gartman

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.

Husband 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.

April 7, 2015

Why Divorcing Spouses Should Consider Avoiding the California Court System, an Example – In re Marriage of Ma

by Lorna Jaynes

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.

In 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.

March 9, 2015

When Divorce Might Be The Right Choice

by Lorna Jaynes

As a divorce lawyer and mediator, I often encounter people struggling with the decision of whether or not to divorce. Since I have no idea what is the right decision for anyone else, I often say that a decision to divorce will be made when the pain of staying is greater than the fear of leaving. That’s how it was for me anyway. It is always a good idea to keep working on a marriage if both are committed and invested and hopefully the effort will lead to a more joyful union. But sometimes it does not and divorce is the right choice. And the pain of leaving will pass. The pain of staying will not.

Here are a few reasons why, in some cases, divorce might be the right choice:

Staying married is usually not better for the kids.

December 31, 2014

Court: No Spousal Support for Domestic Abusers – In re Marriage of Kelkar

by Lorna Jaynes

California law allows a family court judge to deny or reduce spousal support payments in a divorce case when the spouse requesting or receiving the support has been convicted of domestic violence against the other spouse during the last five years. The law, set out in Section 4325 of the California Court of Appeals, was enacted in January 2004. The state’s Second District Court of Appeals recently explained that the law can nevertheless be applied retroactively to cover domestic abuse convictions before the statute went into effect.

Husband filed for divorce from Wife in July 2002. He alleged at the time that Wife had physically and verbally abused him roughly 200 times over the course of their marriage, including by punching him, threatening him with knives, and trying to push him down a flight of stairs. Wife was charged with a crime following an incident in 2000, in which Husband said he awoke to find her yelling at him and brandishing two knives. Wife proceeded to stab holes into the waterbed in which Husband had been sleeping, according to a police report, and Husband was cut in a struggle for the knives.

Husband and Wife entered into an agreement in 2004, under which they settled various property distribution issues and in which Husband agreed to pay Wife monthly spousal support. The appeals court later recounted that Wife continued to pepper Husband with profane and threatening text messages following their divorce, and she also harassed Husband’s fiancé. She violated restraining orders obtained by both Husband and the fiancé, according to the Court.

November 12, 2014

Earning Capacity and Immigration Status in California Child Support Calculations – In re Marriage of Parker

by Lorna Jaynes

Decisions about whether and how much child support a divorcing spouse or co-parent should pay often depend on both how much money he or she makes or could make. The latter factor, usually referred to as “earning capacity,” can be difficult to quantify in many cases, and even more so when the parent’s immigration status prevents them from legally working. The state’s First District Court of Appeals recently considered one such case.

Husband filed for divorce from Wife in 2011, and the parties agreed the following year to a stipulation where Wife retained sole physical custody of the couple’s only child. The stipulation also gave Husband visitation rights but didn’t require him to pay child support. In 2013, Husband filed a motion seeking shared physical custody and for the Wife to pay him child support. Husband explained to the court that he was an undocumented immigrant who had overstayed his visa. Because of this status, Husband said he wasn’t able to work as a traditional employee. Nevertheless, he said that he’d worked as a carpenter for roughly 20 years and was planning to be a self-employed carpenter.

At the time, Husband said he was making about $750 per month. Opposing the child support request, Wife said the trial court should impute to him an income of $2,600 per week based on past earnings. She pointed to a 2011 income declaration in which Husband said he was making $65 an hour as a carpenter and working 40 hours per week. Instead, the court imputed a “minimum wage earning capacity” to Husband and awarded him 15 percent custody of the child. The court also ordered Wife to pay Husband $54 a month in child support. Husband appealed the decision.

August 20, 2014

Appeals in California Divorce Cases – In re Marriage of Shimpi and Sonawane

by Lorna Jaynes

Sometimes courts get it wrong. If you’re unhappy with the outcome of a divorce case, you have the legal right to file an appeal. As California’s First District Court of Appeals recently explained in In re Marriage of Shimpi and Sonawane, however, a party filing an appeal bears the burden of providing a detailed record of the proceedings in order to show where the lower court made an error.Husband and Wife were married in January 2003, and Wife gave birth to their only child 11 months later. Wife filed for divorce in October 2008. In the litigation that followed, the spouses disputed the date on which they separated. Wife claimed that the separation date was Aug. 1, 2008, while Husband maintained that the separation actually happened in December 2006. Husband submitted a number of e-mail exchanges between the two spouses and family members, which the First District later said “reflect the demise of the parties’ relationship,” in support of his claim.

After a January 2013 hearing, however, a trial court ordered that the marriage be dissolved and set the separation date at Aug. 1, 2008, per Wife’s request. It also ordered Husband to pay nearly $550 in temporary spousal support and nearly $1,100 in child support. The spouses later agreed to a settlement during a mandatory conference.

July 27, 2014

Reconciliation and the Five-Year Dismissal Rule – In re Marriage of Honarkar

by Lorna Jaynes

Spouses considering a divorce often have second thoughts, and many choose to give the marriage another chance before calling it quits. For those who try to reconcile after a petition for divorce has been filed in court, it’s important to keep in mind how this may affect the case from a legal perspective. In In re Marriage of Honarkar, the Fourth District Court of Appeals recently looked at one of these issues: the application of the five-year dismissal rule.

Husband filed a petition for divorce in September 2000, alleging that the couple had separated two months earlier. They’d been married for 16 years at the time and had two children. Wife responded to the petition by arguing that the couple had, in fact, not separated. Nothing further was filed and no action taken until Wife filed an amended response nearly six years later. This time, she said the parties had separated in December 2005. She also filed a motion asking the court to rule on custody of the children and support.

After Husband failed to respond to Wife’s motion and didn’t appear at the scheduled hearing, the court entered a November 2006 order granting the couple joint custody of their minor child and requiring Husband to pay Wife more than $24,000 per month in child and spousal support.

July 10, 2014

When to Value Community Property in California Divorce Cases? In re Marriage of Charles

by Lorna Jaynes

As the Fourth District Court of Appeals explains in In re Marriage of Charles, community property, including a couple’s shared interest in a business, is usually valued at a time as close as possible to the time of trial, unless there is a good reason for valuing the property at the time of the couple’s separation.”The subtext of this date of business valuation case illustrates for family law practitioners in how a strategy can backfire,” the court warned in describing the case. As the court went on to explain, a spouse who doesn’t operate or manage a business owned by the couple often asks a reviewing court to value the company based on the date of the couple’s separation rather than the date of the legal marriage dissolution proceedings. This is because the “non-operating spouse” is typically concerned that the business’s value may diminish over time. The operating spouse, on the other hand, has no incentive to dial back the valuation date. “Time is on their side as value slip slides away,” the court wrote.

In this case, Mr. and Ms. Charles separated in May 2006, but trial in the dissolution proceedings did not begin until more than five years later in August 2011. At the time of the separation, a certified public accountant valued Genesis Associates – Mr. Charles’s design partnership – at $226,000. Three years later, the same CPA valued the business at $198,000. The business flourished following the second valuation, however, and by October 2010 was valued by the same CPA at $716,000.

As the court describes it, Mr. Charles sprung into action. He hired a new attorney and filed a motion in December 2010 asking the trial court to value the business as of the time of the couple’s separation. At this point, all discovery had been completed and a trial date set for February. The trial judge denied Mr. Charles’s motion as untimely, noting that Mr. Charles waited until shortly before trial to file it.

Based on expert opinion, the trial court found that the total value of Genesis Associates – as of the date of the trial – was about $1.8 million.

July 2, 2014

Jersey Boy Awarded Half of His Own Life Insurance Policy by California Supreme Court – In re Marriage of Valli

by Lorna Jaynes

Celebrities: they’re just like us, well sort of anyway. Among other things, that means that they often encounter the same types of issues as regular folks in divorce cases.California is a community property state, in which property acquired by a spouse during the marriage, except for gifts or inheritance, is shared equally between the spouses in the event of divorce. That might seem like a pretty clear-cut rule, but divorcing spouses often resort to the courts to decide disputes over how certain property should be characterized or divided. The California Supreme Court recently took on the issue as it applies to a life insurance policy taken out by one spouse – legendary singer Frankie Valli – for the benefits of the other.

Husband and Wife separated in September 2004 after 20 years of marriage. More than a year before, Husband used money from a joint bank account to purchase a $3.75 million life insurance policy. He named Wife as the sole owner and beneficiary of the policy and paid premiums with funds from the joint bank account.

June 24, 2014

Untangling Shared Business Interests in California Divorce Cases – In re Marriage of Greaux and Mermin

by Lorna Jaynes

Anyone who has been through a divorce probably already knows that it can be a stressful, complicated, and emotionally and financially draining experience. The legal issues involved may be even more complex in situations where the couple work together running a business. In In re Marriage of Greaux and Mermin, California’s First District Court of Appeals explains that the spouse who is ultimately awarded the business has the right to protect it from being devalued by the other spouse. In some cases, that may include seeking a court order to stop the spouse from starting a competing business.In this case Wife filed for divorce in 2009. During the six-day trial that occurred two years later, one of the few remaining disputed and unresolved issues was what to do with the beverage company they owned and jointly operated during the marriage. The company distributed and sold a type of rum.

The business was community property and the judge determined that both spouses brought “unique talents to it.” Husband had little education, training, or experience running a business, but the judge said his considerable effort and determination were “crucial” to the business’ success. Husband also developed relationships with others in the industry whose experience and personal relationships were very helpful to the business. Wife, on the other hand, had marketing and sales skills also crucial to the business, and her family history in the Caribbean served as the “brand story.” The trial judge also noted that Wife had a deep understanding of the rum, its ingredients, and the process for making it, and had qualified as an official industry “taster.” She was designated in company investment materials as the “face of the brand.”