Under California’s community property system, any property obtained by one or both spouses during the course of a marriage and up until they separate is generally split evenly upon divorce. As the state’s Second District Court of Appeals recently explained, the value of community property is usually based on the property’s value at the time of a divorce trial, not the time of separation. That is, of course, unless the spouses agree to another valuation date.

Husband and Wife separated in January 2012, after roughly 37 years of marriage. Ten months later, Husband stated in an income and expenses disclosure that he planned to close his accounting and financial services practice. The business had generated $115,000 to $140,000 in net profits per year over each of the previous three years. In 2014, he began winding up the practice, advising clients that he was retiring and that they would need to find a new accountant for the upcoming tax season.

A trial court denied Wife’s request to value the business based on what it was worth at the time the couple separated, rather than at the time of trial. Wife had sought this ruling because it was likely that the business would be worth significantly less by the time trial rolled around, given that Husband was winding down the practice and his clients were going elsewhere. The court said Family Code Section 2552 required it to assess the business’ value as of the date of the trial unless Wife showed that there was “good cause” to use another value date “in order to accomplish an equal division of the community estate of the parties in an equitable manner.” Here, it said Husband’s plan to retire was legitimate and did not seem designed to devalue the business for purposes of the divorce proceedings.

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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.

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.

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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:

  1. Staying married is usually not better for the kids.

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.

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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.

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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.

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“These are some of the dirtiest hands we have seen.”California’s Second District Court of Appeals wasn’t talking about in In re the Marriage of Boswell was not referring to literal dirty hands, but about the family law doctrine of “unclean hands,” a principle that in this case cost a divorced spouse more than $92,000 in unpaid child support. As the Court explained, a person who has acted unethically can’t seek legal redress in a family law court for a situation that the unethical action helped create.

After Husband and Wife divorced in 1985, a trial judge awarded physical custody of the couple’s two children to Wife and ordered Husband to pay $70 per month in child support. Just two months after this ruling, according to the appeals court, Wife moved with the children out of California. She also changed their names and didn’t inform Husband of their new whereabouts. As a result, Husband didn’t see or communicate with the kids for 15 years. That changed when Wife suddenly sent the youngest child, then 16 years old, to live with his father.

In 2013, Wife sued Husband for arrearages on the child support, claiming that he owed her more than $92,000 in child support and interest that wasn’t paid after she skipped town with the kids. Both of the children were more than 30 years old at the time. Denying the claim, a trial court ruled that Wife was judicially estopped from seeking unpaid child support because she had “unclean hands.” Specifically, the trial judge said Wife had unjustly removed the children from their father’s life.

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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.

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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.

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If you watch a lot of TV crime dramas, you may already be familiar with a criminal defendant’s right to an attorney, and, of course, the person’s right to be told that he or she is entitled to an attorney. In fact, the right to seek legal counsel is important in a wide variety of litigation contexts, including divorce and other related proceedings. In In re Marriage of Metzger, California’s Fourth District Court of Appeals explains that the right to counsel may also extend to a child who is the subject of a custody dispute between parents.Husband and Wife were married in November 2003 and had a daughter, M, one year later. Wife filed a petition to dissolve the marriage in June 2009. Following a number of delays, extensions, and squabbles over depositions, and autism screenings for M, the trial court granted the dissolution and scheduled a separate trial on the issue of child custody in 2012.

Over Husband’s opposition, the lower court later issued an order appointing a lawyer to represent M in the proceedings and obligating Husband to advance $100,000 for the attorney’s retainer, an amount the trial judge said should ultimately be reimbursed from the spouses’ community property. The trial court said the move was justified by Wife’s concerns about whether the child might be autistic. Husband had previously dismissed the concerns as delay tactics, while Wife argued that M showed some signs of developmental delay. The trial judge said M was caught in the middle of the debate and “needs someone to speak for her.”

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