IVL'S LAW BLOG
*While this blog may reference actual laws and legal scenarios, all persons and events described herein are completely fictional.
Any resemblance to familiar persons or events is purely coincidental.
The content of this blog does not constitute legal advice and is intended only for entertainment purposes.
6.27.2016 Request for Orders from the Court in Family Law
Janis commenced a dissolution of marriage case in Alameda County against her estranged husband Jerry in March 2015. At the time Janis filed her Petition for Dissolution of Marriage, Janis and Jerry had already been living apart for several years, and their son Bobby was living with Janis. After the British vote to leave the European Union, Janice lost her job working as a financial advisor downtown San Francisco. As a result, she could no longer afford her monthly expenses living in the city, including Bobby’s school tuition. However, Jerry continues to earn a substantial income. After consulting with counsel, Janice learns that she may be entitled to child support and/or spousal support while her divorce is pending and after, and decides she would like to ask the Court make pertinent orders. What should Janice do?
From the time Janice first moves out of the home she shared with Jerry, they have always been able to agree on a parenting schedule and most significant decisions for Bobby. But, once Janice seeks spousal support her relationship with Jerry unfortunately becomes somewhat more hostile and less cooperative. Later in the summer of 2016, Jerry asks Janice for permission to travel to Colorado with Bobby for a two-week camping trip. Janice denies Jerry’s request and refuses to continue with the informal parenting schedule for Bobby that they had agreed upon. Jerry decides he would like to ask the Court to make child custody and visitation orders. What should Jerry do?
By the end of 2016, the economy recovers sufficiently for the financial job market to turn around. Janice eventually finds a competitive job as an executive financial officer at a prominent Silicon Valley hedge fund, earning far more than she ever had during her marriage with Jerry. Meanwhile, Jerry has been paying child and spousal support each month totally nearly 40% of his gross income. As a result, Jerry has fallen behind on many of his monthly expenses and is in jeopardy of losing the home he rents in Alameda. Jerry learns that Janis has obtained new employment and decides he would like to ask the Court to modify the current child support and temporary spousal support orders. What should Jerry do?
Throughout a family law case in California, it is very possible and even likely that at least one of the parties will want some type of court order, whether pendente lite (temporary) or other. As alluded to above, these court orders can relate to custody or support issues, but can also pertain to property or any other plethora of issues relevant to any particular family law case. These issues may arise anytime from the commencement of a case, such as in seeking initial child support or spousal support orders as Janice above, to even after a final Judgment of divorce or legal separation is entered by the court, such as a request to modify custody or support orders, as Jerry above. Thankfully, the courts and legislature have established procedures to request and potentially obtain these desired court orders. Currently, many family law issues are to be first addressed to the court using a Request for Orders form, obtained here. However, it is important to seek the advice of counsel and to review local Court Rules and other relevant law before completing and filing any documents with the court.
3.28.2016 To File or Not to File?
By IVL This Is a Question for Unmarried Parents
Some, if not all, parents, whether married or unmarried, are going to have disagreements when it comes to raising their children. Whether deciding if little Lizzie is going to Prep, Holy Name, or Public for elementary school, ballet or soccer, if she will be at mother’s or father’s house for Thanksgiving this year, or if she can go to Mexico this summer with paternal grandparents, the potential for conflict is endless. For the parents, there are countless reasons for disputes—logistics, social upbringing and ideals, economics, religion, failure of relationship—and these disagreements can be fundamental in nature to each of them. While, in general, resolving disputes between individuals is the reason for civil and family law systems, there are many real life examples of families happily and successfully functioning and resolving disputes without the need for formalized and enforceable court orders.
Whether or not parents need or should obtain court intervention to resolve disputes and court orders to enforce any parenting and support arrangements can depend on many factors. A common and often determining factor in these circumstances is whether the parents themselves are capable of reaching (and following) an agreement on how to raise their children. To explore this concept, consider the two different court cases in the story of Candice and Eddie below.
Candice and Eddie met at a soirée at an artists’ retreat in Berkeley during the summer of 1999. Although at the time Candice was living and running her own business in San Diego, while Eddie was traveling between San Francisco and Dallas, Texas for work, they began a committed long-distance relationship shortly after the retreat. After several years together and countless trips between Northern and Southern California, Candice become pregnant with their beautiful daughter Rosie.
For the first six months after Rosie’s birth, they were the happiest family in California. Candice left her business’s operations to a key employee, and moved into Eddie’s small apartment in Russian Hill, San Francisco. Eddie took several months off from work to spend with Candice and the baby.
But, by the time, Rosie was just reaching her seventh month, Candice’s key employee was poached by a hiring competitor, and Candice was forced to relocate back to San Diego to manage her business.
Case 1: Child Custody Orders
When Candice realized she had to return to San Diego, she and Eddie began the difficult conversation of how to deal with their parental arrangements with Rosie. After several unsuccessful attempts to reach an agreement, the tone of their discussions began to take on a certain level of contention, resulting from their fundamental disagreement as to Rosie would reside primarily—with mom in San Diego or with dad in San Francisco. When it became clear to Candice that there was no possibility of an agreement on this issue, she decided to seek the assistance of the Courts in resolving this dispute.
Case 2: Child Support Orders
Several years after Candice and Eddie had their highly contested child custody and visitation arrangements determined by the courts, Candice’s business underwent some drastic losses. Candice struggled to keep her business afloat, but due to market conditions was forced to close it. Candice quickly realized that without the ongoing consistent income from her business, she could not continue to afford Rosie’s private school tuition and afterschool daycare while she looked for new employment opportunities. Candice turned to Eddie for assistance, but he was reluctant to offer any financial help. As a final resort, Candice then Petitioned the court for child support orders per California’s guideline formula.
1.25.2016 He Gets My What?!
By IVL The Sometimes Seeming Inequality of Equal Division Between Spouses
Most married couples acquire property of some sort throughout their time together, whether in the form of personal items, real property, cash, stocks, 401(k)s, loans and/or credit card debt. If and when a couple decides to dissolve their marriage or legally separate, the division of their property is in inevitable part of the process. In California, the law generally prescribes the equal division of community property of any kind. Nevertheless, if considered from other than a legal perspective, the division is sometimes seemingly very unequal in effect. To explore this phenomena, consider the story of Herbie and Wanda Hancock.
Wanda and Herbie met in a creative writing course during their freshman year in college at Berkeley, and they were married just before their graduation several years later. Wanda was the child of two renowned lecturing professors at Stanford University, and showed great promise as a writer and poet. Herbie, on the other hand, considered himself a musician and inventor, although he did not show much talent in either area.
After graduation, they moved to Oakland to begin their lives together. Wanda wanted to write novels and Herbie wanted to make music. But, as recent graduates, they had little money and no means to support themselves while pursuing their creative endeavors. After some lengthy and emotional discussions, Herbie convinced Wanda to set her writing aside for the time being and seek a job in the corporate world, so that Herbie can focus on creating music.
In the years that followed, Wanda excelled at her corporate position. After several years, Wanda was promoted to the vice-president of marketing for a major national clothing retailer based out of San Francisco, earning nearly $500,000 annually in cash and stocks. After the promotion, Wanda received substantial vacation time from work and, during the last few years of their marriage before Separation, Wanda was able to draft and publish two best-selling novels.
Herbie, on the other, did not experience any personal successes. Soon after Wanda began working long corporate hours, Herbie lost his creative drive. Within a couple of years after marriage, his efforts to make music became almost negligible, and he had resigned himself to living a comfortable life off of Wanda’s earnings.
Notwithstanding Herbie’s relative musical failure in light of his wife’s success, their marriage was going well for many years. However, the acclaim of Wanda’s published novel quickly began to enflame feelings of jealously and resentment in Herbie, and this eventually lead to their Separation and dissolution of marriage.
Upon divorce, Herbie receives one-half of the massive savings and stock accounts accumulated by Wanda through her hard work during marriage. Herbie even receives half of any future royalties Wanda is set to receive for her books. Wanda, on the other hand, receives from Herbie no more than half of a $15,000 credit card debt accrued by Herbie during the marriage.
In many instances, this questions arises for clients as well: if Wanda was supporting Herbie throughout their entire marriage, has he not already received his fair share and benefitted more than fairly from Wanda’s hard work and property? The answer: not in the eyes of the law. As mentioned in several articles below, in the absence of a premarital agreement, property that either spouse obtains during marriage and before Separation is generally considered community property under California law. Meaning, generally, that each spouse has an equal interest and right to any property acquired by either of the spouses during that period of time, regardless of which one actually put forth the labor to earn, obtain, or accrue it.
11.23.2015 Barry Bonds and Premarital Agreements
In theory, many statutes under the California Family Code were created with the intent of equitably dividing spouses’ property and determining parental rights and obligations in accordance with California policy. Some other Family Law Code sections are enacted more particularly for the protection of spouses, such as Family Code § 2040 which relates to the Automatic Temporary Family Law Restraining Orders, as discussed in the October 26, 2014 piece below. Another such similar protective statute is Family Code § 1615, which pertains to the enforceability of premarital agreements in relation to the conscionability of the terms and the voluntariness of each spouses’ agreement to enter the contract.
Interestingly, Barry Bonds, the former San Francisco Giant and Pittsburg Pirate, may have had a substantial impact on a portion of Family Code § 1615. While Barry Bonds is known to most for his record-setting twenty-two season baseball career, he is also famous among family law attorneys for the contributions his family law case has made to the present state of the law concerning the “voluntariness” of premarital agreements.
As described in the Supreme Court's opinion, Barry Bonds met his former wife Susan in Montreal sometime in the summer of 1987, early in his baseball career when he was allegedly earning not much more than $100,000 annually. Shortly after, sometime in November 1987, Susan moved to Phoenix, Arizona to live with the baseball legend, and one week later the two were engaged to be married. On February 5, 1988, Barry and Susan went to Barry’s attorney’s office, where the two were presented with a Premarital Agreement, which they both signed that very day. Later that day, the couple flew to Las Vegas, where they were then married the next day, on February 6, 1988.
As one may expect, the circumstances under which Susan and Barry signed their premarital agreement, including but not limited to Susan's lack of legal representation and the time frame for the presentation and signing of the agreement, eventually lead a drawn-out legal dispute after Barry Bonds filed for legal separation in California on May 27, 1994. The ensuing legal matter eventually resulted in a 2000 Supreme Court of California decision, which is often at least partially credited with leading to the eventual amendment of Family Code § 1615.
At this time, Family Code § 1615 states:
“(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:
(A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.
(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:
(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.
(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.
(4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.
(5) Any other factors the court deems relevant.”
10.5.2015 On Separation and Child Custody
One may notice that the word “Separation” is mentioned often throughout the earlier-dated articles below. As one might presume, in Family Law separation, in any of its many amorphous meanings (see 1.19.2015 article below), is a significant issue for the parties involved and even the legal case itself. In fact, most family law matters begin with some form of separation.
The dissolution of a marriage, one of the more common legal actions in the Family Law courts in California, can in many ways be said to commence with Separation (meant as the legal term of art). Nevertheless, the physical separation of spouses and their property are inevitable steps for a divorcing couple. This physical distancing of a couple often results in the creation of two homes from a single home—just one of the corporeal manifestations of the emotional and psychological separation parties to a divorce typically experience. This is often an underlying cause of the commencement of child custody and visitation legal proceedings for unmarried couples as well.
Coping with the end of a relationship with whom one has cared about or loved for an extended period time can be one of the most challenging and even painful experiences in a lifetime. When a separating couple has children living at home, the emotional difficulty and complexity resulting from the physical separation of the parents and their lives is immensely amplified.
Unfortunately for divorcing families, dividing parenting time and parental rights is not formulaic and straightforward like the division of a couple’s property and child support rights and obligations. Unlike the more definitive laws for the division of property and mathematic laws for child support, child custody and visitation issues are not so easily decided by the Family Law courts or separating couples. Separating couples are looking to do just that—distance and disassociate from one another in every sense. In the process, a couple that was at one time a single parenting unit, a team working towards the best interests of their children, may separate in this regard too. When separating parents are unable to work together and cannot mutually agree on the child custody and visitation terms of their Family Law case, the determination of the amount time they spend with their children and their custodial rights will be taken out of their hands and left to a Judge or some other third party with no meaningful connection or relationship to the family.
Why is this important? Because most agree that parents should chose for themselves when they see their children and the extent of the roles they play in their children’s lives. The point to take away here is, for separating parents, to be attentive to the distance created in the parental relationship, which may have to survive separation.
7.27.2015 Dividing Violet’s 401(k)
It is not uncommon for a retirement account, such as a 401(k), IRA, or pension, to be the most substantial asset in one’s possession at the time of dissolution of marriage or legal separation. As explained in greater detail in several articles below, if a party contributed into his or her retirement account(s) during the period of time between the date of marriage and the date of Separation, a portion of the retirement account(s) may be considered community property, which is typically divided equally between the parties, absent a premarital agreement stating otherwise.
There are many complex and potentially difficult-to-navigate procedural and substantive requirements for valuing and dividing the various types of retirement accounts. To explore some of these requirements, consider Jason’s efforts to divide Violet’s 401(k) below.
Violet was born in a small town outside of Nashville, Tennessee. At the age of fourteen, Violet ran away from home and hitchhiked her way to Berkeley, California. After several rough weeks of sleeping in parks and on the street, she befriended the owner of a local co-op grocery store. The owner offered Violet a job at the grocery and rented her the small studio apartment above the store. More importantly, the owner of the grocery encouraged Violet to finish high school and introduced her to the world botany.
Violet eventually graduated with a degree in botany from the University of California, Berkeley, with honors and under a full academic scholarship. Shortly after graduation, she founded her own company for the development of advanced hydroponic floral growth systems, which she initially operated out of the unfinished garage in her apartment building. Violet’s first employee, Jason, was appointed her CFO and became an integral part in the growth of the company. After working so closely with one another, Jason and Violet’s relationship developed into something romantic, and they eventually fell and love and married.
Several months after their marriage, Violet decided to expand the company and sought creative ways to maneuver company funds to allow for it. At Jason’s suggestion, Violet stopped paying herself a salary and instead was received only maximum contributions to her 401(k). To further reduce company costs, Jason agreed to stop any and all company contributions to his 401(k), although he continued to receive his salary so that they would have money to pay their personal expenses.
After more than twenty years of running her company, Violet’s business was forced to file for bankruptcy and close when the market collapsed in 2008. The stress of losing nearly all of their savings in trying to save the business caused strife to arise between Violet and Jason. They eventually Separated, and Violate filed for dissolution of marriage. Violet and Jason survived on Jason’s salary alone throughout most of their long-term marriage, while Violet alone continued to build her 401(k). At the time of their divorce, Violet’s 401(k) was their only asset to divide.
With the assistance of his attorney, Jason was able to correctly identify Violet’s 401(k) as the Hydro-Violet Inc. Employee Benefits 401(k) Plan. Jason’s counsel then filed the necessary pleadings to effectively cause the joinder of the 401(k) Plan to Violet and Jason’s divorce case, and those pleadings were personally served on the Plan’s agent for service of process. Jason and Violet eventually come to an agreement for the division of property and on all other issues in their case, and execute a Stipulated Judgment reflecting their agreed upon terms, which is subsequently filed with the court. Once they receive their filed Stipulated Judgment back from the court, Violet and Jason jointly hire a forensic accountant to value their respective community and separate property in Violet’s 401(k). Once the values are determined, Jason’s attorney then prepares a Qualified Domestic Relations Order (QDRO), which they then sign and have filed with the court. The filed QDRO is then served on the plan administrator for the Hydro-Violet Inc. Employee Benefits 401(k) Plan, who then implements the terms of the QDRO and effectuates the actual division of the account.
6.1.2015 Three Types of
Financial Support Available During Divorce
For those involved in a dissolution of marriage or legal
separation action in California, there are generally three types of financial
support arrangements that may be available depending on the particular
circumstances of each case. Financial support may also be available to
unmarried parents involved in certain legal proceedings, as discussed below.
1. Child Support
In dissolution of marriage and legal separation cases
involving minor children, it is common for the court to make orders requiring
one party to make periodic (often monthly) payments to the other party in
particularly calculated amounts, referred to as child support. Child support is often available to unmarried
parents as well, if sought through the appropriate legal process in the family
The underlying principals behind the child support
requirement for parents in California are set forth primarily in Family Code §
4053. In particular, these principals
include, among others (see Family Code § 4053 for a complete list):
A parent's first and principal obligation is to
support his or her minor children according to the parent's circumstances and
station in life;
Both parents are mutually responsible for the
support of their children;
The guideline takes into account each parent's
actual income and level of responsibility for the children;
Each parent should pay for the support of the
children according to his or her ability;
The guideline seeks to place the interests of
children as the state's top priority." Family Code §
The “guideline” referred to above is, in essence, the algebraic
equation enacted by the California State Legislature and set forth in Family
Code § 4055, which is used for calculating child support. The guideline formula
is considered presumptively correct in each case, although it may be possible
to deviate from this guideline amount under certain factual circumstances or by
2. Spousal Support
Spousal support is a separate type of financial support,
distinct from child support in its manner of calculation, duration, tax consequences,
legal standards, and purpose, in that it is intended to provide financial
support to a spouse rather than a child. However, similarly to child support,
spousal support is often ordered by the court during dissolution of marriage
and legal separation cases, such that the higher-wage earning spouse is often
required to make periodic spousal support payments to the lower-wage earning
spouse in specific amounts and often for a particular duration of time.
3. Family Support
Family support, often made a court order only after an agreement of two
parties to a divorce or legal separation case, is a financial support order
intended to provide support for both a spouse and child(ren), without
allocating particular amounts between them. Per the Family Code, “‘Family
Support’ means an agreement between the parents, or an order or judgment, that
combines child support and spousal support without designating the amount to be
paid for child support and the amount to be paid for spousal support.” Family
Code § 92. Similar to the above forms of court ordered financial support,
family support has its own distant legal significance and tax consequences.
4.27.2015 What Will be the
Total Cost of My Family Law Case?
by IVL An Indirect Response to the Common Inquiry
With good reason, many of those involved in or contemplating
commencing a family law case with the court ask the question: “How much will
the case cost me?” There are often many factors to consider, some less
foreseeable than others, which make estimating the total cost a fairly complex
endeavor, and it can be difficult to do so with accuracy. This is true of divorce matters, dissolutions
of domestic partnerships, paternity cases, child custody or support issues,
drafting premarital agreements, etc.
Nevertheless, an answer is usually provided, and if not by an attorney
then often by friends and family members who have experienced a similar type of
legal matter. The danger there, of course, is that every family law case is unique
and may require a wide variety of differing ancillary costs and substantially
unequal amounts of time and labor.
From the onset, there are several different types of fees
and costs that can be incurred in a family law case. Among the types of
expenses to be incurred in a family case are, nonexclusively, court costs,
attorney fees and costs, and ancillary costs such as process service fees and
the costs of the preparation of a Qualified Domestic Relations Order. These
various fees and costs may or may not be incurred in a family law case, but
this is highly dependent on the circumstances of the parties, the facts of each
case, and the type of case, among other factors.
1. Court Costs.
First, there are the court costs associated with most family
law matters. For example, the commencement of a legal separation, dissolution
of a marriage, or domestic partnership case there is a mandatory initial filing
fee of, currently, $435 for the Petitioner and Respondent. However, this cost
can even vary, as many counties have additional or different fees for certain
actions. Fee schedules can often be found on court websites. (See the Alameda County fee schedule here; see the San Francisco County fee schedule here). Aside from the initial filing fee, there may be
additional fees paid to the court for filing fees for motions or certain
stipulations, trial fees, and possibly even some types of sanctions. Many of
these fees will arise depending on the direction a case progresses, which can
be somewhat unpredictable in certain circumstances. Without a court-approved
fee waiver, these fees are generally unavoidable.
2. Attorney and/or
Document Preparation Fees and Costs
Most legal professionals would agree that it is in litigants’
best interests to retain an attorney when involved in any legal matter,
including a family law case. The fees incurred for retaining an attorney can
vary a great deal depending on the attorney’s rates, the terms of a retainer agreement,
the time and work involved in the case, and, less commonly, whether there is a
particular type of flat-fee arrangement.
In essence, the total amount of attorney fees and costs
incurred in family law matter will often depend upon the amount of work
involved in the case. This, in turn, is often substantially impacted by how
well the parties are able to cooperate with one another and agree on issues,
such that the more disagreements and contentiousness between the parties, often
the more costly and drawn out the case will become. While educated estimates
can be made as to this total amount of time and cost, there are many
unpredictable and unforeseeable occurrences that can alter the course of a case
and greatly impact the overall costs.
3. Ancillary Costs.
Beyond the fees and costs noted above, family law litigants
may also incur many other fees and costs as their case progresses. These fees
and costs will depend a great deal upon which legal issues are in dispute and
the resources of the parties.
Several examples of these potential additional costs are as
follows (note: this list is not inclusive of all potential costs):
(a) Appraisals and expert reports and testimony;
(b) Process server fees and court-runner fees;
(c) Fees for private mediator and/or child custody
(d) Vocational evaluation;
(e) Discovery costs, including but not limited to subpoenas;
(f) Trial costs;
(g) Supervised visitation or custody exchanges; and
(h) Costs incurred to an actuary firm for the preparation of
a Qualified Domestic Relations Order.
by IVL (Or, Contracts in Anticipation of Dissolution of Marriage)
In California, there are default laws in place that
determine the property and financial rights and obligations of two married
individuals. For example, consider general community property laws. These
rights and obligations are implicated automatically upon marriage and effect
(ex)-spouses upon the dissolution of their marriage.
As an illustration, consider this common scenario involving
the marriage and divorce of Athena and Heracles. Athena and Heracles were
married in 1994 and separated in 2015. Heracles filed for dissolution of
marriage shortly thereafter. Throughout their marriage, Athena earned and saved
a great deal of money through her employment as an executive at Hermes, the
fashion and apparel company. Also throughout marriage, Heracles remained
unemployed and spent his time training at a gym for his anticipated twelve
trials. Per default community property laws, upon their divorce, the savings
and earnings Athena acquired during marriage and before separation are divided
equally between her and Heracles, despite that Heracles himself did not
contribute any income to the accounts.
Notwithstanding the default property and other laws that
take effect by operation of law upon marriage, two marrying parties have the statutory
ability to alter these default rights to a certain extent. This alteration in
marital rights is typically accomplished through a Premarital or Prenuptial
Agreement. In this regard, Family Code § 1612 states:
“(a) Parties to a premarital agreement may contract with respect
to all of the following:
(1) The rights and obligations of each of the parties in any
of the property of either or both of them whenever and wherever acquired or
(2) The right to buy, sell, use, transfer, exchange,
abandon, lease, consume, expend, assign, create a security interest in, mortgage,
encumber, dispose of, or otherwise manage and control property.
(3) The disposition of property upon separation, marital dissolution,
death, or the occurrence or nonoccurrence of any other event.
(4) The making of a will, trust, or other arrangement to
carry out the provisions of the agreement.
(5) The ownership rights in and disposition of the death
benefit from a life insurance policy.
(6) The choice of law governing the construction of the
(7) Any other matter, including their personal rights and obligations,
not in violation of public policy or a statute imposing a criminal penalty.
(b) The right of a child to support may not be adversely
affected by a premarital agreement.
(c) Any provision in a premarital agreement regarding
spousal support, including, but not limited to, a waiver of it, is not enforceable
if the party against whom enforcement of the spousal support provision is sought was not represented by
independent counsel at the time the agreement containing the provision was signed,
or if the provision regarding spousal support is unconscionable at the time of enforcement. An otherwise unenforceable provision
in a premarital agreement regarding spousal support may not become enforceable
solely because the party against whom enforcement is sought was represented by
2.23.2015 Discovery (Of the Information the Other Party Doesn't Want You to Have)
In many lawsuits and legal matters, at least one of the
parties usually does not have all of the information needed to form a proper
claim or defense. In a family law matter, this lack of information often arises
in the contexts of child and spousal support and in the division of property. Typically,
the missing information pertains to a spouse’s actual income or the value,
location, and/or existence of certain property, such as bank and retirement
Under California law, each party to a dissolution of
marriage action has an affirmative duty to disclose all income, assets, and
debts to the other party. See generally, Family Code §§
2103-2105. However, in practice this
obligation is not always satisfied by a voluntary disclosure of this relevant
information. In anticipation of this issue, there are legal mechanisms
prescribed in the Code of Civil Procedure to, in essence, force the other party to provide certain needed information. These
various legal mechanisms are generally referred to as forms of “discovery.”
Among the more frequently utilized methods of discovery are interrogatories, a
demand for the production of documents and/or other tangible things, requests
for the admission or denial of particular facts, and depositions of a party or
The scope of discoverable information is fairly broad, as
well. Generally, unless limited by court order, “any party may obtain discovery
regarding any matter, not privileged, that is relevant to the subject matter involved
in the pending action or to the determination of any motion made in that
action, if the matter either is itself admissible in evidence or appears
reasonably calculated to lead to the discovery of admissible evidence.
Discovery may relate to the claim or defense of the party seeking discovery or
of any other party to the action. Discovery may be obtained of the identity and
location of persons having knowledge of any discoverable matter, as well as of
the existence, description, nature, custody, condition, and location of any
document, electronically stored information, tangible thing, or land or other
property.” Code of Civil Procedure §
To explore how discovery may be used a particular
circumstance, consider the following scenario of Mimi and Ben.
Mimi and Ben were married in 2004, just months before Mimi
began working for her current employer as the Director of Human Resources at an
international online floral delivery service headquartered in Alameda. At the
time of marriage, Ben was working as an insurance broker in Oakland, but
retired about nine months after their honeymoon, when their daughter Natalie
was born. Since Natalie’s birth, Ben has been a stay-at-home father.
When Mimi and Ben Separated (see below) in February 2015, Mimi immediately
moves out of the family home in Berkeley and finds an apartment of her own just
a few blocks away. Once Mimi commences the dissolution of marriage process, Ben
quickly files a Request for Order seeking temporary spousal support, due to the
financial difficulty he has been facing in maintaining the family residence and
caring for Natalie without any income. He is also curious whether Mimi has any
community property retirement account he might be able to rely on. However,
Mimi is reluctant to provide financial support to Ben, and refuses to furnish
any of her income information for the calculation of spousal support. In
response, Ben’s attorney quickly serves Mimi with a set of Form
Interrogatories—Family Law, seeking the production of information and
documentation regarding Mimi’s current income, as well as a listing of Mimi’s
2.9.2015 A Blameless System:
by IVL Briefly on the History of the No-Fault Divorce in California
Think of the grounds
for divorce, the legal authority you must rely upon and allege to the court as
to why your marriage should be terminated. A common impression of family law,
and divorce in particular, is that one party to a marriage must show some fault
or misconduct on their spouse’s behalf to end their marriage, to “win” custody
of the children, to be awarded the family home, or to obtain spousal support or
prevent the other party from receiving it. While this impression is likely
derived from the depiction of the family law system in film and literature—the
scenes where Husband hires a private investigator to prove Wife’s infidelity,
or the shot of Wife on the witness stand telling the judge and a courtroom of
sobbing and sympathetic onlookers of how distant and neglectful Husband has
been lately—this is in inaccurate reflection of the state of family law in
However, the film and literary depiction of divorce is
rooted in historical fact. Until 1969, California, and much of the United
States, had a fault-based divorce process. In essence, to obtain a divorce in
California prior to 1969, it was required that one spouse prove some type of
misconduct on the other’s spouses behalf. As a policy, one can imagine the
endless possibilities for contention and the likelihood for emotional and
psychological damage this may have caused for countless families and divorcing
Thankfully, California’s state legislature realized the
error of the fault-based family law system and adopted the Family Law Act of
1969. Signed into law by then-Governor of California Ronald Reagan on September
4, 1969, the Family Law Act of 1969 effectively abolished and replaced the
fault requirement for divorce.
Today, the grounds for dissolution of marriage as set forth on the
Petition for Dissolution of Marriage are: (a) “irreconcilable differences” or
(b) “permanent legal incapacity to make decisions” (previously, “incurable
insanity”). Throughout the years following the dramatic change to California’s
family law process by the passing of the Family Law Act of 1969, similar reform
was systematically adopted, with particular variations and in various manners,
by most other states.
1.19.2015 The Significance Your
In early October of 2014, an article discussing the
differences in the meanings of legal separation, “separation” as used in the
Standard English dictionary, and “Separation” as a legal term of art was posted
below. The intent of that piece was to help distinguish the meaning in the
seemingly amorphous word “separation” in the context of a family law setting. But
the previous article begs the unanswered question—what is the meaning of this
legal distinction from the Standard English definition?
Without doubt, the emotional and psychological importance of
the time of Separation is substantial for all persons involved in a divorce or
legal separation case. The date of Separation, in some aspects, can represent
the critical moment in time at which it was understood by both spouses that one
or both of them do not intend or desire to continue with the marriage. The
acknowledgment of this moment can be both devastating and freeing, among the
plethora of other emotions and thoughts involved.
The legal significance of the date of Separation, on the
other hand, is primarily financial in essence and is of considerable relevance in the division of marital property. Generally, and with many nuances
and some exceptions, property acquired after the date of Separation is
considered the separate property of the acquiring spouse. (See generally, Family Code § 771). Whereas, with its own nuances
and exceptions, any property acquired during marriage and before the date of
Separation is generally considered community property.
To explore a potential impact of the date of Separation in
practice, consider the expanded scenario of the Separation of Robert and Nicole,
the characters from the October 2014 article.
At the time of their Separation (big “S), Robert is no
longer employed or employable due to his medical condition, while Nicole is
working as an event planner with a small company in San Francisco. During
marriage, Nicole amassed a substantial savings from her income, and a separate
401(k) with a hefty balance. Shortly after the date of their Separation, Nicole
leaves her San Francisco employer due to an internal management dispute. Her
employer ends up paying Nicole a substantial severance package intended to
replace future wages, and with this money Nicole begins her own event planning
company based in Oakland. Other than the time she devotes to baby Gina, Nicole
puts all of her efforts into building her business up from the ground. By the
time Nicole files her Petition for Legal Separation, Nicole’s company is a
great success, valued at millions of dollars.
In this fact pattern, it is likely that Robert would be entitled to a
portion of Nicole’s savings and 401(k) from her previous employer due to the
time these assets were acquired—i.e. during marriage and before the date of
Separation. However, the date of Separation may be the distinguishing factor in
Nicole maintaining sole proprietary and financial ownership of the business she
worked so hard to create.
1.5.2015 Dear Judge, Please Excuse My Neglect: Setting Aside a Default in Pro
In November 2014, an article discussing default judgments
was posted below. In that piece, the significance and effect of the failure to
file a responsive pleading in a dissolution of marriage case was explored with
an example about Erica and Colin. In that scenario, Colin filed a Petition for Dissolution
of Marriage and Erica chose to refrain from filing a Response, which prompted
Colin to seek a default judgment from the court. But, what if Erica wanted to file a Response and
participate in the divorce case, but failed to do so for some reason that has
yet to be mentioned?
The first of several sentences comprising Code of Civil
Procedure § 473(b) reads: “The court may, upon any terms as may be just,
relieve a party or his or her legal representative from a judgment, dismissal,
order, or other proceeding taken against him or her through his or her mistake,
inadvertence, surprise, or excusable neglect.” In effect, in certain
circumstances and within certain legal limitations, this statute may allow a
responding party to a divorce, legal separation, or nullity of marriage case to
set aside a default that has been entered against them. Consider the following
scenarios in which Erica, while unrepresented by an attorney, might ask the
court to set aside the default entered against her.
As in the previous fact pattern, Erica has a demanding
position as a studio executive in Los Angeles at the time Colin files his
Summons and Petition for Dissolution of Marriage. At the moment Colin’s process
server hands Erica the divorce papers, she is getting into her Mercedes to
drive to the airport to catch a flight to Japan where she is tasked with
managing the final stages of the production of a high-budget and
highly-anticipated film. In a rush, Erica places the unopened envelope
containing the divorce papers into her suitcase, which she then checks in at
the ticketing counter at LAX. Once Erica arrives in Japan, she learns that her
suitcase was lost in transit and she does not receive it into her possession
for nearly three months. By that time, Colin has already filed his request to
enter Erica’s default.
Colin filed his Summons and Petition for Dissolution of
Marriage in Alameda County, where they always lived throughout marriage, on
November 1st. By December 10th, the court had granted
Colin’s request to enter a default against Erica. However, Erica promptly filed
her Response and Request for Dissolution of Marriage on November 25th in
the family law courthouse in Martinez, which was down the street from where Erica
works. Erica mistakenly believed that the Martinez family law courthouse was an
acceptable location to file her response, although Martinez is in Contra Costa
In this scenario, prior to Colin filing his Petition for Dissolution of
Marriage, he files a Petition to Establish Parental Relationship, seeking child
custody and child support orders prior to seeking the termination of their
marital status. Three weeks after Colin serves Erica with the Petition to
Establish Parental Relationship and Summons, Colin then serves the divorce
paperwork on Erica. Erica inadvertently believes that these two petitions are
for the same case and she promptly files a Response and Request for Dissolution
of Marriage using the paternity case’s case number, which is different than the
divorce case number. As a result of Erica’s inadvertence regarding the case
numbers, she failed to file a Response in the divorce case and the court enters
a default against her.
12.8.2014 Summary Dissolution: An Alternative Divorce Procedure
Obtaining a divorce in California, although necessary to
accomplish the goals of those involved, can be an expensive and time consuming
endeavor. With court procedures, filing deadlines, service requirements,
mandatory financial disclosures, and other procedural and statutory time
constraints, many dissolution of marriage cases last longer than a year between
the filing of the Petition for Dissolution of Marriage and the final entry of
Beyond the time and effort involved in completing, filing,
and serving all necessary documentation, there are also court fees and often
attorney fees and costs. The filing fees for each party’s initial Petition and
Response alone currently amounts to $435 per person. With the added expenses to
each party of the preparation of their separate initial pleadings, financial
disclosures, motions, Settlement Conference Statements, and other common legal
work, the costs for each party to a divorce can be substantial in certain
circumstances. To add to these necessary expenses of divorce, these costs are
typically incurred at a time when the parties are in the process of
transitioning from a single household with two incomes, to two households each
with one source of income.
For those parties with marriages of less than five years, no
minor children, and little to no assets and debts, as well as other qualifying characteristics
(see Family Code §§ 2400-2406 for the particular requirements), there may be an
alternative procedure available, which is intended to expedite the divorce
process and reduce the total costs of both parties. This alternative procedure
is referred to as Summary Judgment. Summary Judgment is, for certain parties,
an ideal alternative to reduce costs, as it calls for less paperwork, provides
a more simplified procedure for parties to complete some of the paperwork
themselves, and allows the parties to consult a single attorney to review their
paperwork, should they so choose. To briefly explore a scenario in which
Summary Judgment is appropriate, consider Joshua and Mary’s path to Summary
Joshua and Mary were married on March 17, 2012, on the first
anniversary of the day they met. They separated December 1, 2014, when Mary
moved out of their leased apartment in Piedmont. Joshua continues to reside at their Piedmont
apartment, but is seeking a home because their lease expires at the end of the
year. Joshua and Mary do not have any children together.
Joshua works as an analyst for a mobile advertising start-up
in Berkeley, while Mary is a manager of a small restaurant group in San
Francisco. While Joshua used to be the greater earner of the two, Mary has
recently received a raise and she currently earns slightly more than Joshua.
Nevertheless, both Joshua and Mary are independent and self-sufficient, and
neither has any desire to be financially supported by the other after their
divorce is processed with the court.
Although the decision to divorce was mutual, Joshua and Mary still get
along well enough and have an easy time communicating with one another. Shortly
after Mary moved out of their apartment, they met to discuss the division of
their property. Mary, always the more organized of the two, brought a spread
sheet she prepared listing all of the assets and debts they accumulated
together during their short marriage. With Joshua’s skill for mathematics, they
determined that their community property had a total value of $15,000, not
including Joshua’s pickup truck or Mary’s Smart Car. The only community
property debts, they realized, were Mary’s credit card debts totaling $1,250.
After a few hours of discussion, negotiation, and compromise, Joshua and Mary
were able to come to a complete agreement regarding the division of their
property. With the assistance of an attorney, they reduced their agreement to a
written form, which they then signed and submitted to the court as part of
11.17.2014 What Happens When a
Spouse Will Not Participate in the Divorce?
by IVL Default Judgments for Dissolution
Divorce is often imagined as involving two spouses arguing
or settling the terms of the dissolution of their marriage. This is the image
consistently depicted in film and literature—two people participating and
usually disputing their property and other rights. In California, the typical
legal procedure leading to this scenario is as follows: Colin and Erica’s marriage
has not worked as anticipated and they both want to be divorced. Colin files a
Petition for Dissolution of Marriage and a Summons (Family Law) and has Erica
appropriately served. Erica then files a Response and Request for Dissolution
of Marriage and serves Colin. They are both then parties to a divorce case. Eventually,
they settle the issues involved with their division of property and have a
trial before a judge on the issue of spousal support. At the trial, the judge
terminates their marital status and they are both then legally single.
But what happens if Erica does not file her Response and
Request for Dissolution of Marriage and they cannot have a trial to determine
their rights? What if Erica refuses to discuss the divorce with Colin and they
cannot settle any issues? How can Colin divorce Erica if she will not
participate in the divorce?
While Americans generally have Constitutional rights to
notice of any legal action involving their rights, and the chance to respond in
such an action, it is not uncommon for a lawsuit to proceed to judgment with
the involvement of only one party. Whether the second party avoids involvement
in the legal action by choice or because of the circumstances, if they have
been properly served and then fail to file an appropriate response in the
designated amount of time, a default may be entered against them. To learn more
about the law relating to default judgments, see Code of Civil Procedure §§
585-587 and consider the alternative scenario of Colin and Erica below.
Colin and Erica have been married for twenty-five years.
However, they separated on March 15, 2008 when, after a heated argument, Erica
packed her bags and drove off for Los Angeles, leaving Colin in their marital
home in Emeryville. Erica and Colin have not seen or spoken to one another
since Erica left for Southern California on that definitive Ides of March.
Shortly after Erica moved to Los Angeles, Colin met Katrina
at a charity even in Oakland and they have been romantically involved since
then. Several months ago, Colin and Katrina became engaged to be married, but
before they can take their vows, Colin must first divorce Erica.
With the help of his attorney, Colin files a Petition for
Dissolution of Marriage and a Summons (Family Law) and has Erica appropriately
served at her new home in Los Angeles. Erica, however, has obtained a demanding
position as a studio executive and has a child with her new boyfriend. She
decides she does not have the time or motivation to deal with a divorce and
lawsuit in the Bay Area. Erica chooses to ignore the warning on the Summons
(Family Law) and neither files a Response to the Petition for Dissolution of Marriage
nor does she respond to any of Colin’s emails or phone calls about the divorce
and possible settlement.
As a result of Erica’s refusal to participate in the divorce, Colin is
left with no choice but to seek a Default Judgment. After more than thirty days
elapse from the date Erica is served with the Petition and Summons, Colin files
a request that the court enter Erica’s default and simultaneously submits a
proposed Default Judgment to terminate his marriage to Erica and determine
their rights upon divorce.
10.26.2014 Automatic Temporary Restraining Orders
At the commencement of most dissolution of marriage and
legal separation cases, one spouse will serve, among other documents, a Judicial
Council form entitled “Summons (Family Law)” on their spouse. While this
document is significant for several reasons, it is not uncommon for litigants
to overlook the often relevant Standard Family Law Restraining Orders set forth
on the second page.
These Standard Family Law Restraining Orders, often referred
to as Automatic Temporary Restraining Orders or ATROs, are a set of roughly
four statutory restraining orders that have the effect of limiting parties’
legal rights as related to their minor children and property. These restraining
orders typically impact a parties’ rights from the onset of litigation, and can
offer some valuable protections in certain situations.
For more information on the ATROs, see Family Code § 2040 or
the Summons (Family Law). For some examples of how these automatic restraining
orders might impact a family law litigant, consider the situation of Alex and Chris.
Alex and Chris have been married for six years and have one
minor child together, their adopted daughter Cameron. Although both Alex and
Chris are from Scottsdale, Arizona, they have resided in Oakland for the last
four years because of Alex’s job in the tech industry. Unfortunately, their
relationship falls apart and Chris files for divorce and has Alex served with,
among other documents, a Summons (Family Law).
Children from the State
Shortly after having Alex served, Chris wants to move out of
their marital home, but cannot afford an apartment of her own. She decides to
move back in with her parents in Scottsdale while she gets back on her feet,
and she tells Alex that she wants to bring Cameron to Scottsdale with her.
However, Alex was recently promoted at work and wants to remain in Oakland with
Hypothecating, Concealing, or Disposing of Property
Shortly after being served, Alex for the first time realizes
that she is about to begin a new chapter of her life. While the divorce case is
pending she decides that now is the time for her to start the event planning side-business
she had always wanted. With most of her funds caught up in investments, she
wants to take out a second mortgage on the family home to raise the capital she
needs to start her business.
of, Changing the Beneficiaries of any Insurance or Other Coverage
Alex’s position at her company affords her an excellent, though
expensive, benefits package that includes great medical, dental, and vision
insurance coverage. However, while Alex’s coverage is free, about $600 is
deducted from her paycheck each month to provide coverage for Chris as well. After being served, Alex wants to remove Chris from
her insurance policy to reduce her monthly costs.
Creating or Modifying
a Nonprobate Transfer that Affects the Disposition of Property
Early in their marriage, Chris acquired an office building
downtown Oakland that has been under construction since the acquisition. Once
the divorce begins, Chris learns that the construction is near completion and
that the building will soon be producing income through office leases. Chris
decides that she wants to place this asset into a living trust to preserve it
10.2.2014 Are You Legally
Separated, Separated, or separated?
In a standard English dictionary, “separate” (little “s”)
generally means to keep or force apart. However, as a legal term of art, “Separated”
(big “S”) has a distinct meaning with the potential for a substantial impact in
any dissolution of marriage case. Still, “Legally Separated” has a whole
different meaning apart from separated and Separated. Chances are, you have
heard a (former) couple refer to their relationship in one or more of these
terms. To explore these distinct meanings, consider Robert and Nicole’s
separated (little “S”)
Robert and Nicole have been married for six years and have a
beautiful child together, their young daughter Gina. Robert and Nicole, along
with baby Gina, live in a quaint house they purchased off of Hearst Avenue in
Several months ago, a medical condition caused Robert to lose
his job as an analyst at a tech start-up in San Francisco. Due to Robert’s
inability to find more work because of the medical condition, he has been increasingly
frustrated, depressed, and angry. As a result, Robert and Nicole have been
fighting more and more frequently. As responsible parents, they have both been concerned
about the impact their fighting is having on little Gina.
After a lengthy discussion, Nicole and Robert decide they
need space from each other while they continue to work on their relationship.
Robert rents an apartment nearby on a month-to-month basis, while Nicole remains
at the home on Hearst Avenue with baby Gina. Nevertheless, Robert and Nicole
begin couples counseling, continue to go on dinner dates together and family
outings with Gina, and still have sexual relations.
Robert and Nicole are separated.
Separated (big “S”)
After about six months of living apart, Robert and Nicole have
made little progress with their relationship and decide to stop attending couple’s
counseling. The frequency of their dinner dates gradually decreases until,
without even realizing it, they are no longer seeing one another socially. Then
they are no longer sexually involved.
After a few more months, Nicole and Robert meet again to
discuss their marriage, and Nicole mentions offhandedly that she wants to start
dating one of her co-workers, who has been helping her through this difficult
time. Together, Robert and Nicole decide and communicate to one another that
they no longer desire to carry on as husband and wife.
Robert and Nicole are Separated.
Although Separated, Robert and Nicole remain friendly with
one another and are hopeful that, one day in the future, they will try at their
relationship again, for the sake of baby Gina if for nothing else. Also, after Nicole
consults with an attorney, she learns that her employer will not cover Robert’s
medical insurance premiums if they are no longer married. Given Robert’s unemployable
medical condition, she is concerned for the well-being of the father of her
Notwithstanding their future hopes of trying again, and
Nicole’s concern for Robert’s health, both Robert and Nicole still desire to
separate their assets and their lives. They also want child custody and
visitation orders, just in case they are unable to agree on a parenting plan
At the suggestion of Nicole’s attorney, Nicole and Robert
file for their Legal Separation, which allows them to maintain their marital
status, while separating assets and making child custody and visitation orders.
9.19.2014 Three Reasons You May
Prefer Settlement to Trial: Family Law Edition
In a family law case, there are generally two methods for
resolving an issue, whether that issue involves child custody or visitation,
child or spousal support, or the division of property. One method involves an
agreement between both (or all) of the parties. The second method is to obtain
a court order after a hearing or trial on any particular issue. Of course,
settlement is not always possible, as some issues involve fundamental
disagreements with little or no middle ground. However, most issues can and
likely should settle. Below are some of the reasons why you may prefer settling
your case rather than taking an issue before the court.
1. Eliminate Risk and
One of the most significant benefits of settling a case is
to eliminate risk and uncertainty—the risk that the judge will rule in the
other side’s favor, the uncertainty of the end result. When a case is settled,
all parties involved are in agreement on every term, so you leave the
negotiations or signing of the settlement agreement knowing exactly what you
and the other parties will walk away with. However, if left to the court’s
discretion, there is no guarantee as to how the judge will rule.
2. Save Time
With legal procedural requirements and court scheduling,
getting any issue resolved by a judge inevitably takes a great deal of time (except
for the potential ex parte or emergency
court orders). When a motion is filed asking the court to rule on an issue, service
requirements and court scheduling will often require between four and eight
weeks, if not longer, before your motion will be heard by the court. If a
long-cause hearing or trial is to be set after that hearing, you may end up
waiting months or even a year to have an issue finally determined by the court.
3. Judges May Not Know
or Care About What You Want for Yourself or Your Family
When it comes to any family law issue—children, support,
division of property, etc.—who knows what you and the other party want more
than you two? Would you rather decide your visitation schedule with your
spouse, or have some third party that has never met your children and does not
know your thoughts and concerns decide for you? Except for your brief sessions
in court and the review of filed documents, judges do not know you or your
family and may not care about you, your family, or what you or anyone in your
family actually wants. Judges act based on legal standards and principles,
which may not align with your desires or best interests.
9.2.2014 Three Steps Leading to a "3044 Presumption"
1. “Abuse” Committed by Person with a Certain
Relationship to the Victim
Wendy and Harry live together and have two beautiful young
children with one another, Charles and Cindy. Although never married, they’ve
been romantically involved on and off for the past eight years. Wendy has
always been the more dominant member of the relationship, their friends often
commenting that Wendy is “a type ‘A’ personality.” Partially due to a difficult
childhood, Wendy suffers severe issues with anger and violence, the effects of which
Harry has experienced periodically over the course of their relationship.
During the last several months, Wendy has been drinking more and more
frequently, eroding her ability to control her anger. One night, Wendy gets
more inebriated than usual. Upon Harry confronting Wendy about her drinking
problem that evening, Wendy falls into a fit of rage directed at Harry. In the
heat of passion, Wendy grabs a baseball bat from their closet and runs at Harry
swinging the bat wildly, causing substantial damage to their home and Harry. Harry
was admitted to the hospital that evening with a concussion and two broken ribs.
2. An “Abused” Person Requests a Domestic Violence
After Harry is released from the hospital Wendy’s violence
continues and escalates, causing Harry to truly fear for the safety of himself
and their children. After seeking the advice of an attorney for a way to
protect Cindy, Charles, and himself, Harry files a Request for a Domestic
Violence Restraining Order, simultaneously requesting sole custody of the children
until Wendy is sober and completes an anger management course. The court grants
a Temporary Restraining order and Harry has Wendy personally served with the
appropriate documentation before the court hearing.
3. The Court Grants a Permanent Restraining Order and
Makes Child Custody Orders
Both Harry and Wendy testify at the court hearing, and the
judge eventually finds that Wendy committed abuse against Harry within the
meaning of the Domestic Violence Prevention Act. The judge then grants a
Domestic Violence Restraining Order protecting Harry from Wendy for a period of
three years. Next, the court awards Harry sole legal and physical custody of
Cindy and Charles, citing as its basis the Family Code statute stating that “there
is a rebuttable presumption that an award of sole or joint physical or legal
custody of a child to a person who has perpetrated domestic violence is detrimental
to the best interest of the child.” Family Code § 3044.
8.15.2014 Protect Yourself…From Your Business
The idea came to Gina when she was working as a Marketing Manager with a hotel group in Sonoma County. She would make custom and artistic hand-made guitars. It was her dream job, creative and musically related. It was the job she had been looking for since she took that guitar-making workshop during her senior year in college. She thought she figured it all out: she knew the niche market and had her first two buyers lined up. After that, she would sell her guitars through her own website and through the small storefront location by her home in Oakland.
At first it all went perfectly well. The first six guitars she made were beautiful pieces of art, which hung decoratively in her store and adorned the Products page of her website in a festive fashion. Her first two customers each referred friends and she was operating at a profit after the first week her store was open. Her dream had come true, or so it seemed.
About two months after Gina began operating her business, she received a demand letter from a personal injury attorney, claiming that her first buyer, Dan, severed a vital artery in his wrist when the neck on one of Gina’s custom guitars snapped while he was playing the Grateful Dead’s Uncle John’s Band. A sharp splinter of wood from the broken neck caught his wrist mid strum, rendering Dan badly wounded. Dan lost massive amount of blood and was admitted to the hospital. The operating surgeons were unable to close the artery without amputating Dan at the wrist. By the time Dan filed a lawsuit against Gina and her business, Dan was missing his right hand and had accumulated more than $250,000 in medical bills.
At trial, Gina was found liable for Dan’s injuries and the jury awarded him over $500,000 in damages. When Dan tried to collect on his judgment he learned that Gina’s business accounts only had about $15,000 in total. But, Gina’s business was operated as a sole proprietorship. To satisfy his judgment, Dan went after all of Gina’s personal assets. In the end, Gina’s personal bank accounts and her 401(k) from her previous Marketing Manager position were completely drained to satisfy Dan’s judgment. Gina’s business was closed and she eventually was forced to file for bankruptcy.
What could Gina have done to protect her personal accounts and her 401(k)? The answer is simple: contact an attorney to create a separate business entity with limited liability, whether that is a LLC, LLP, Corporation, or other type of entity.
Why the Court May Order You to Pay Spousal Support
(Even When You Don’t Think You Should)
In certain situations, the obligation to pay spousal support
can be among the most difficult court orders to accept during a divorce—for former
husbands, wives, and same-sex couples. As a more extreme example of this,
consider Wendy’s side of the story below.
Harry and Wendy have been married for twelve years and do
not have any children together. Wendy is the Vice President of Human Resources
at a successful and expanding hospitality management company in San Francisco,
where she earns $15,000 each month, plus a large annual bonus, and receives an
excellent health insurance package partially paid for by her employer. Harry,
on the other hand, was injured four years ago in an automobile accident and has
not attempted to work since then. Harry was eventually declared permanently
disabled by a physician and he now receives about $1,200 each month in Social
Security Disability benefits. However, Harry never pursued a personal injury
lawsuit and he has been paying his medical bills with Wendy’s income. Since the
injury, Harry has been increasingly depressed and bitter, and spends his
weekdays mostly playing online computer games while slowly getting drunk. Most days,
when Wendy returns home from work Harry will often, out of drunken bitterness,
berate and criticize her until she comes to tears.
In the years following Harry’s automobile accident, Harry
continued to delve down his path of depression, alcoholism, and verbal abuse to
the point where Wendy could no longer withstand her mistreatment. With the
support of her friends and attorney, Wendy moved out of family home and filed a
Petition for Dissolution of Marriage. Soon after, Harry filed a Request for
Order for spousal support. At the subsequent court hearing, the judge ordered
Wendy to pay Harry $4,500 in spousal support, continue providing Harry’s health
insurance coverage, and to continue paying for the entire cost of their
mortgage for their house at which only Harry still lived.
Regardless of the underlying circumstances of your case, it
is understandably difficult to give up a portion of your paycheck to pay for
the monthly expenses of the person from whom you are trying to divorce.
However, while there are an endless number of facts and circumstances that
influence the potential moral and ethical requirement for one spouse to support
another after or during a divorce, the law is mostly concerned with each
parties’ financial circumstances.
There are only about twenty factors the court is required to
consider in determining the amount and duration of spousal support (see, Family Code § 4320), and blame is generally
not one of them. Nevertheless, for many of those ordered to pay spousal support
like Wendy above, their argument against it can often be fairly convincing.
At its roots, the obligation to support your spouse for the
duration of their life is not created at the time of divorce. Instead, this obligation
arises at the time of marriage with the promise to support one another, which is
even often a part of a couple’s marriage vows. The obligation to pay spousal
support should be viewed as a contractual obligation, set forth in a contract for
marriage. And, marriage is just that—a contract between two people. Marriage is
a state-controlled binding agreement to combine lives and property and to
support one another for life. So,
regardless of the causes for divorce, or how unfair it may be to pay now, the
fact remains that you had already agreed to support your spouse for life. And,
if the circumstances are right, the courts may make you do just that.