Published on:

California courts look at a number of factors when faced with child custody questions related to one parent’s decision to move. As the state’s First District Court of Appeals recently explained, one of those factors is the kids’ ties to their existing, local community. That includes their participation in extracurricular activities.

baseballMother and Father had two children before they divorced in 2012. A court initially ordered them to share custody of the kids. Father went back to court three years later, however, claiming that Mother was refusing to take the kids to little league and other after-school activities. Mother moved from Fairfield to San Francisco while that request was pending. She separately asked the court for permission to have the children throughout the week. She accused Father of abusing the children and said his animosity toward her had gotten in the way of the kids’ best interests.

Following a hearing on the matters, the trial court granted Father full custody of the children and offered Mother weekend visitation twice a month. The trial judge said Mother moved to San Francisco with the children without adequately discussing the situation with Father. It noted that the 50-mile commute to and from their school in Fairfield was detrimental to the kids and said Father was more supportive of their involvement in the local community, including through extracurricular activities.

Continue reading

Published on:

Marital settlement agreements can be useful in many divorce cases because they allow divorcing spouses to decide for themselves how some or all of the issues will be resolved, instead of leaving them for a judge. As a recent case out of California’s Third District Court of Appeals makes clear, however, it is important to make sure that you have all of the information you need in front of you before you sign an agreement. That’s because they’re tough to undo.

Wedding RingsHusband and Wife separated in 2009, following some 26 years of marriage in which the couple had at least one child. Husband went to medical school during the marriage and later became a doctor. Wife was in school pursuing a master’s degree in education at the time of the split. The couple eventually entered into a marital settlement agreement – approved by a court in 2011 – in which Husband pledged to pay Wife $3,750 per month in spousal support. The agreement said Wife’s goal was to become self-supporting and provided that the support payment could potentially be modified starting in 2012.

Wife went back to court in 2012, asking a judge to set aside the 2011 judgment incorporating the settlement agreement. She alleged that Husband had concealed payments to a retirement account during the negotiations leading up to the agreement. The trial court found no evidence to support that claim. It also said Wife was too late. State law required her to seek the set aside within one year from the date on which she knew or should have known about Husband’s alleged fraud. In this case, Wife asked for the set aside nearly a year after the judgement was entered and more than a year after the couple reached the agreement.

Continue reading

Published on:

There are a number of factors that go into a court’s decision about whether to order one divorcing spouse to pay the other spousal support. One of them is the receiving spouse’s age. The other is his or her ability to work. So what happens when the person is old enough to stop working? California’s Fourth District Court of Appeals recently explained that a spouse has the right to retire and may be able to get spousal support if he or she exercises that right.

Wedding RingsHusband and Wife separated in March 2014, following some 13 years of marriage. Husband was 68 years old at the time, and Wife was 66. Both spouses had retired from their jobs as a firefighter and a personal assistant in a real estate office, respectively. Although Wife was also a license real estate agent, she never used her license. The court said the spouses agreed that it was Husband who had urged Wife to retire so that the two could travel. A trial court judge eventually ordered Husband to pay Wife $4,000 per month in spousal support.

Affirming the decision on appeal, the Fourth District said Wife had the right to retire during the marriage and to remain retired following the divorce. State law instructs family courts to consider a list of factors in deciding whether to award spousal support and how to set the award. Among those factors are the spouses’ ages and the goal that each spouse had in becoming self-supporting. In this case, the Court said the trial judge didn’t abuse his discretion by simply deciding that Wife’s age outweighed the need for Wife to become self-supporting.

Continue reading

Published on:

Marital settlement agreements are an important legal tool for divorcing spouses. These binding contracts give a couple the chance to resolve many of the issues related to a divorce without leaving them for a judge to decide. As a recent decision out of California’s Fourth District Court of Appeals makes clear, however, it is important to understand that these agreements are binding. Once you enter a settlement agreement, it’s going to be tough to get out of it.

golden penHusband and Wife separated in 2010, following nearly 18 years of marriage. They later entered into a marital settlement agreement resolving issues related to their divorce. Two years later, however, Wife went back to court and asked a judge to set that agreement aside. She said Husband didn’t disclose his assets and never properly explained to her the extent of a family business. Although she primarily speaks Spanish and has a hard time understanding English, Wife said no one translated the document for her or otherwise explained to her what she was getting into by signing it.

The family court sided with Husband, finding that Wife had waited too long to ask for the agreement to be set aside. State law required her to make the request within six months from the time the court granted the divorce and incorporated the agreement, according to the judge. To the extent she was alleging fraud, the court said she had one year from the time she discovered the fraud. The court also noted that Husband and Wife used a third-party mediator to help them reach the agreement and that they met with the mediator on at least two occasions. The family judge explained that the “use of a mediator, multiple meetings, terms that include her receiving indefinite spousal support and child support, her receipt of a substantial equalization payment, and notarization of her signature, all undercut her claim that she was forced to sign a one-sided agreement.”

Continue reading

Published on:

If you don’t like a ruling from a trial court in a divorce case, you have the right to appeal. The problem, however, is that appeals courts take a fairly deferential stance in those cases. As the Fourth District Court of Appeals recently explained, appeals courts review trial judge decisions for an “abuse of discretion.” In other words, a judge must generally have abused the fairly broad discretion he or she is afforded in order for a decision to be overturned. That makes it vital that a person considering a divorce seek the advice and counsel of an experienced attorney as soon as possible in the process in order to put a strong case before a trial judge.child

Husband and Wife were married for some nine years and had two children before separating in 2009. The couple agreed to share joint legal and physical custody of the kids and split expenses. A court eventually issued a divorce judgment encompassing that agreement. That set off what appeared to be a series of disputes between the former spouses about how to parent the kids.

Additional litigation ensued, and Wife eventually asked for greater visitation rights, child support, and spousal support. In response, Husband asked a court to give him sole physical custody of the children. He argued that Wife wasn’t using all of her visitation time with the kids and said she had violated the terms of the divorce judgment by proposing to change their daughter’s therapist without consulting him. He also said that the switch to full custody would be in the children’s best interests. The trial court disagreed and ordered the spouses to continue with joint custody. It also made Husband’s home the primary physical residence for the kids.

Continue reading

Published on:

The family home is often a source of much debate in California divorce cases. State law generally treats real estate obtained by one or both spouses during the marriage as community property to be divided equally upon divorce. Spouses have the power, however, to make their own arrangements via settlement agreements. Courts also have significant authority to enforce those agreements, including by forcing the sale of a home. California’s Second District Court of Appeals recently took up one of those cases.house

Wife filed for  divorce from Husband in September 2010, following 11 years of marriage. She’d purchased a $640,000 home during the marriage. Typically, that home would be considered community property to be split evenly between the spouses in the event of divorce. As part of a marital settlement agreement, however, Wife agreed to give Husband the property. She signed a quitclaim deed transferring the property to Husband and agreed to pay him $2,500 a month in arrearages on the home mortgage. Husband was responsible for removing Wife’s name from the mortgage, making the monthly mortgage payments, and paying property taxes. The agreement also stated that both parties intended for the home to be sold.

A trial court granted the divorce and ordered the former spouses to abide by the terms of the agreement.

Continue reading

Published on:

Marijuana is now legal in California for both medicinal and recreational use. But, as the state’s Fourth District Court of Appeals recently explained, that doesn’t mean pot is off limits for courts considering child custody cases.

Mother and Father divorced in 2012, following some 17 years of marriage in which they had four children. “The couple enjoyed a lavish lifestyle during their marriage,” according to the Fourth District, thanks largely to investment income of more than $1 million per year. Mother moved to California with the three youngest kids after separating from Father. He and the oldest child later also moved west.child

A trial judge wasn’t pleased with either parent when it came time to determine custody. The judge found that both Mother and Father “lied about important facts” and appeared more concerned about their own needs than those of the children. Although Father appeared to be more involved than Mother in the kids’ lives, the court found that the children were not his first priority. It said Father “involved the children in a destructive loyalty contest by constantly bad-mouthing Mother and referring to her by derogatory terms.” Mother, on the other hand, appeared to relegate most of her child-rearing duties to her employees. The court said she was “not able to put the children’s needs ahead of her personal and social life.”

Continue reading

Published on:

If you’ve previously read this blog, you may already know that California is a community property state. That means any property obtained by one or both spouses during the course of a marriage is generally split between them upon divorce. Things can get a little tricky, however, when one spouse takes property out of the state while living outside California. The state’s First District Court of Appeals recently explained the rules of the road for this kind of dispute.map

Husband and Wife had been married for roughly two decades when Wife moved from Iran to California in 1982. Husband said he would visit sporadically on 90-day tourist visas. The couple divorced in Nevada in 1987 but remarried in California five years later. Husband and Wife bought a home in Lafayette in the time between the two weddings, and Husband visited Wife in the U.S. for months at a time with tourist visas. Wife filed for divorce a second time in 1993. Wife obtained a default judgment of divorce from a California court after she explained that Husband was in the Middle East, and she was unable to locate him.

Wife went back to court in 2012, this time asking a judge to set aside the divorce judgment and alleging that Husband had committed fraud and misappropriated assets in Iran. She said specifically that Husband transferred various real estate holdings abroad – which should have been shared by the former spouses as community property – in order to evade creditors. After a hearing on the issue, however, the trial court found that Wife didn’t show that Husband was actually living in California during the marriage. As a result, the court said it didn’t have the authority to divide out-of-state property obtained by Husband during that time.

Continue reading

Published on:

For the tens of thousands of military members and their families who live in California, government benefits often help them remain financially secure. Those benefits and the programs under which they’re provided can also raise unique issues when a military member and his or her spouse decide to divorce. California’s Third District Court of Appeals recently considered some of these issues.

soldiersHusband and Wife divorced in 2003, following 29 years of marriage. They entered into a marital settlement agreement at the time of the divorce, which laid out how they split community assets and other property. Husband served in the U.S. Navy for 17 years during the marriage and began receiving military retirement benefits in 1991. The spouses stipulated in the agreement that Wife’s share of Husband’s military retirement benefits was about $475 per month. Wife waived her right to a piece of Husband’s Social Security and disability benefits, as well as “any and all work related benefits,” under the terms of the agreement.

Husband was diagnosed with post-traumatic stress disorder related to his tours of duty in the military. After the spouses divorced, the Department of Veterans Affairs offered him special combat-related compensation in lieu of his retirement benefits. Although the amount was the same as his retirement benefits, the combat-related compensation wasn’t subject to taxes. Husband accepted the change in benefits and stopped paying half to Wife. A trial court eventually sided with Wife, however, ruling that she was entitled to continue receiving $475 per month. The court said the agreement was intended to ensure that Wife kept getting her original share of the benefits, even if Husband opted not to receive them.

Continue reading

Published on:

Divorce proceedings are much like other types of litigation. As in other cases, divorcing spouses are required to provide each other with certain information during the course of the proceedings in order to make sure that each side knows what they are getting into. State law allows a judge to go back and undo a ruling if he or she finds that a spouse has withheld information about their income and assets or otherwise committed fraud. California’s Second District Court of Appeals recently took on a case involving this type of fraud allegation.

wedding ringWife filed for divorce from Husband in 2012, following some 24 years of marriage. The spouses entered into a marital settlement agreement, resolving how their property would be divided and waiving their rights to spousal support. Husband later opposed Wife’s request that the divorce court enter a judgment adopting the terms of the agreement. He argued that his attorney didn’t let him read the agreement and that the lawyer incorrectly told him that he wasn’t entitled to spousal support. The court eventually sided with Wife, adopting the agreement. Wife was awarded one of the couple’s homes, and Husband was awarded the other. He was also ordered to pay Wife $12,000 to make up the difference in value of the two properties.

Husband later asked the same court to set aside the decision, claiming that Wife had secured the agreement by fraud. He said in particular that Wife had hidden two vehicles that should have been considered the couple’s community property, didn’t disclose that she had been renting one of the properties to a tenant, and misrepresented the couple’s community interest in Wife’s 401k retirement savings account. The court declined Husband’s request, finding that it wasn’t filed within the six-month deadline provided by California law.

Continue reading