Bay Area Divorce Lawyer Blog

April 1, 2020

California Divorce in the Age of Coronavirus

In addition to slamming the economy and claiming lives, it appears the coronavirus is also claiming marriages.

In China, New York and elsewhere, there has been a substantial increase in filings and inquiries to attorneys from folks seeking divorce since the lockdowns and shelter-in-place orders. Being isolated in forced togetherness has a way of illuminating and amplifying marital discord. Another possible reason may be that declines in the stock market create a situation where wealthier spouses may consider this a better time to opt out while their net worth declines so as to avoid a larger settlement.

Currently, the courts in California are closed except for domestic violence filings so those who are ready to proceed have few options unless they opt for alternative process such as mediation. Working with a mediator, couples can manage the entire divorce process without ever having to step inside a court, and can typically resolve the issues far more quickly and at much less cost financially and emotionally.

January 30, 2018

Why Divorcing California Spouses Should Try to Play Nice During Discovery

by Lorna Jaynes

For those who are unable to resolve the issues in their divorce outside of court, the discovery process is often important in a litigated divorce. Discovery enables spouses to request financial and other information from each other and requires them to turn that information over unless they have a good reason for not doing so. Although in mediated divorces, this information is typically provided upon request without the exorbitant fees and time it typically takes with formal discovery. As a recent case out of California’s Second District Court of Appeals shows, stonewalling during discovery usually isn’t the best idea. It could wind up costing you.

Mother and Father had at least two kids before divorcing in 2011. A court awarded Father primary physical custody of the children and ordered that Wife get one weekend of visitation per month and some holidays. The court also ordered the parents to equally split reasonable and necessary health care costs.

Mother returned to court a year later, seeking child support, a custody modification, and broader visitation rights. Father resisted, arguing that Mother was understating her income in court filings by at least $1,000. As part of the discovery process, he asked Mother to turn over certain bank and employment statements. Father also sent subpoenas to two school districts where Mother had previously worked. Mother later told the trial court that she was refusing to provide the information because the requests were an invasion of privacy. Although Mother later dropped her requests for support and to modify custody, the trial judge ordered her to pay $2,000 in sanctions for refusing to comply with the discovery requests.

January 17, 2018

Possible Consequences When There’s a Delay Fulfilling the Terms of a California Marital Settlement Agreement — Marriage of Janes

by Lorna Jaynes

In any divorce case, one of the primary issues willl likely be the division of property. While the couple’s marital home may be the largest asset, another important asset for many couples is retirement accounts. In the recent case of one Riverside County couple, their April 2010 divorce order gave the wife a portion of the husband’s 401(k) account. The case focused upon what should happen to the gains and losses from that portion of funds when that money wasn’t immediately segregated in the wife’s name. Issues like these highlight how almost any divorce case can contain many subtleties and complexities that can benefit from the detailed knowledge of a skilled California divorce attorney.

The case involved a husband and wife who separated in 2009 after 17 years of marriage. The couple’s divorce was finalized in the spring of 2010 and included a marital settlement agreement. Among other terms, the settlement agreement awarded to the wife the sum of $113,000 from the funds contained within a 401(k) retirement account.

Several years later, all of the money, including the wife’s $113,000, was still in the husband’s 401(k). The wife then went to court to ask that, in addition to the original $113,000, she receive whichever gains and losses had accumulated in the intervening time period. The husband opposed this request, arguing that the original order gave the wife no right to gains and losses, but only the exact lump sum stated. Giving gains to the wife would be an improper modification of the original order, he contended.

January 13, 2018

Dividing a Pension in California that is Part Community Property and Part Separate Property

by Lorna Jaynes

For many divorcing couples, one of the larger and more important assets is often retirement benefits. To the extent the pension or other retirement asset was earned during the marriage it is community property and subject to division in the divorce, while whatever portion was earned before the marriage of after the date of separation is not. Assessing how much of a retirement benefit should go to a former spouse can involve some complicated calculations.

An example of a couple dealing with this issue was the recent case of Joseph and Cathye. Joseph was a 30-year veteran of the Los Angeles Police Department when his pension became effective in 2004. From 2004 forward, Joseph continued working for several years under a deferred retirement option plan. Eventually, in 2009, Joseph transferred all of his pension funds into an IRA. That sum was $700,000.

From 1984 to 2011, Joseph was married to Cathye. A key issue in the divorce was the division of Joseph’s pension funds. In this case, the wife’s portion was calculated using something called the time rule. The time rule meant that the court took the time that Joseph worked for the LAPD during his marriage and divided it by Joseph’s total time of service. The court then multiplied that fraction by the husband’s monthly pension amount. The amount yielded from that math equation was the community property portion of the pension, which meant that Cathye got one-half of that amount.

November 23, 2016

What to do with the Family Home after a California Divorce? In re Marriage of Castellon

by Lorna Jaynes

A big question in many California divorce cases is what happens to the family home. Property held by spouses during the course of a marriage is generally split evenly between them in divorce under the state’s community property system. Still, there are a number of ways to handle the issue, including by allowing the divorcing spouses to work together to come up with a mutually agreeable solution. Even when that happens, legal issues can spring up after the agreement is reached. California’s Second District Court of Appeals recently took on some of those questions.

When Husband and Wife divorced in 2010, they agreed to share legal custody of their two children, with primary physical custody of the kids going to Wife. They also agreed to split their assets, including the net equity in the family home in Covina. The court entered a stipulated judgment covering the terms of the agreement. The judgment made clear that Wife would be able to stay in the home until the kids reached the age of 18 or otherwise were no longer living there. It also obligated the spouses to immediately sell the home and split the proceeds if Wife did anything to “transfer, encumber or convey their interest in the said real property” without an agreement with Husband or court approval. In the event that happened, the judgment also gave Wife the opportunity to buy Husband’s interest in the property.

Husband went back to court in 2014, asking a judge to force Wife to sell the property. He said he signed a quitclaim deed over to Wife after she said she wanted to buy him out, but he added that she never sent him the money and had stopped communicating with him altogether. Wife also refused several requests to have the property inspected and appraised to determine its value, according to Husband. Wife countered by alleging that Husband said shortly after he was injured in a car accident that he wanted to sign the property over to her in order to take care of the kids. He later told Wife – according to Wife – that he’d given her the property so that he could qualify financially for Medi-Cal benefits related to the accident. The judge eventually sided with Husband, ordering the spouses to sell the home and split the proceeds.

November 21, 2016

The Importance of Tracing the Money in California Divorce Disputes over the Family Home – In re Marriage of Cuk

by Lorna Jaynes

One of the many issues that often come up in California divorce cases is what to do with the family home. The state’s Fourth District Court of Appeal recently explained that a spouse who uses his or her separate money to help purchase the property is entitled to be compensated before the value of the home is divided between the former couple. To get that compensation, however, the spouse has to clearly show where the separate money originated.

Husband and Wife were married for about 18 months before they divorced in the summer of 2004. The former spouses are both Serbian nationals, and they met at a state dinner in which Wife interviewed Husband for a story for the news service where she worked as a journalist. Husband was a successful engineer who held the patents for a number of services and products. The two began living together in Southern California in 2002 and married the following year.

The couple purchased a $2 million home together in Laguna Niguel just two weeks before they separated. A trial court found that the home was community property to be split evenly between the divorcing spouses. The court further concluded, however, that Husband was entitled to a credit for the $545,000 of his own separate money that he used for a down payment on the property. After allocating that amount to Husband, the court said the property was worth less than the outstanding balance on the home’s mortgage. As a result, the court awarded the property to Husband. It also declined Wife’s request to be compensated for Husband’s exclusive use of the home from the time the couple separated until they were actually divorced. It noted that Husband used his own money to cover all of the expenses related to the house.

November 17, 2016

The Larger the Rock, The Rockier the Marriage.

by Lorna Jaynes

First there’s the bachelor/bachelorette party, the invitations, engagement party and then rehearsal dinner. Some folks, generally those with more money than brains, even hire a photographer for the engagement. Then the big day itself, along with the requisite photo booth, seemingly a necessity these days. And of course, even a website designed to share with the world the first time they laid eyes on each other.

Most sane folks would certainly agree with sociologist and sexologist Dr. Pepper Schwartz who says, “The whole thing has gotten way out of hand.” The whole thing being the never-ending list of high priced accouterments that now accompany a wedding.

Couples spend an average of $28,000 – $30,000 on the Big Day … but apparently, the more you spend, the shorter the marriage.

November 15, 2016

Want to Appeal a California Divorce Decision? The Clock is Ticking – In re Marriage of Hill

by Lorna Jaynes

Divorcing spouses who take their cases to court generally have the right to appeal a decision that they don’t like, although appellate courts usually give trial judges much discretion in weighing the facts and applying the law in each case. Appellate also operate under strict deadlines that can deprive you of your chance to obtain a new decision changed if you don’t seek a second opinion soon enough. California’s Fourth District Court of Appeals recently considered a case involving those time limits.Husband and Wife separated in January 2009, just 10 months into their marriage. The spouses submitted, and the trial court entered, a stipulated judgment setting forth how they would divide their property and handle other issues. Husband was awarded all of the spouses’ community property and debt and was to pay Wife $50,000 for her share of the assets. Once that payment was made, Husband was no longer required to pay Wife spousal support. The spouses acknowledged that they were resolving the issues “without a full and complete assessment of the value of the property.”

Wife went back to court in 2012 and asked a judge to set aside the judgment stating that she was under duress at the time that she agreed to the terms of the judgment. Wife also asserted that Husband failed to make certain legally required financial disclosures before the agreement was signed and the judgment was entered. The trial court held a hearing on the request and issued a decision denying the motion to set aside the previous judgment later the same day.

November 1, 2016

Gauging a Spouse’s Ability to Work in California Alimony Cases – Bufkin v. Bufkin

by Lorna Jaynes

When a California court considers a divorcing spouse’s request for alimony or spousal support, it generally looks at two things: the requesting spouse’s need for the money and the other spouse’s ability to pay. The first inquiry includes looking at the requesting spouse’s ability to work or otherwise earn income. As the state’s Second District Court of Appeals recently explained, the burden is usually on a spouse who says he or she can’t work to prove it.Husband and Wife separated in January 2013, following 26 years of marriage. More than one year later, a trial court granted Wife’s motion for a domestic violence restraining order that barred Husband from going within 100 yards of Wife. The trial judge later denied Husband’s request for spousal support, in which he claimed that he was no longer able to work in sheet metal because of an unidentified physical disability. The court noted that the Social Security Administration had denied Husband’s request for disability insurance benefits and that he had said during the litigation that he was actively looking for work.

Husband appealed the decision, arguing that the trial court wrongly denied his motion for spousal support based on the domestic violence restraining order. The Second District disagreed. Instead, the Court said the trial judge’s decision was based on the finding that Husband could still support himself. The Court noted in particular that Husband was relatively young, had retired for reasons unrelated to his supposed disability, and could find other work without jeopardizing his pension. The Court also observed that Husband had been turned down for Social Security Disability Insurance benefits, that he said he was actively looking for work, and that there was evidence showing that he was still physically capable of doing repairs on his home.

October 25, 2016

Grandparent Visitation Rights in California – Stuard v. Stuard

by Lorna Jaynes

Separating and divorcing parents must always address issues regarding the custody and visitation of their minor children. And sometimes this also includes the grandparents. California law also gives grandparents the right to spend time with their grandkids under certain circumstances. As the state’s Third District Court of Appeals recently explained, courts considering a request for grandparent visitation rights focus on the grandchild’s best interests, among other factors.Father and Mother were married when Mother gave birth to Daughter in 2004. Father’s parents moved from Sacramento to a residence three blocks from the family’s home in Roseville a year later, and Grandfather became the child’s primary caregiver. When Father and Mother separated and then divorced four years later, the grandparents watched Daughter as much as 25 days per month.

Husband’s relationship with his parents started to sour, however, after Daughter and he moved in with the grandparents. They said Father’s mood changed when he started taking certain medication. Father and Daughter eventually moved out of the house, supposedly after the grandparents asked him to leave. Father then told his parents that they would never see the child again. Their time with Daughter decreased over the following months, and the grandparents eventually asked a court to award them visitation time.