Articles Posted in Divorce

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If you’ve ever been involved in a court case in California, you may already know that the state judiciary system is backed up. In an effort to improve efficiency, the judiciary has devised a program in which non-judge “court commissioners” act as temporary judges, who are empowered to issue certain rulings in divorce and other cases. As a recent case out of California’s Fourth District Court of Appeals makes clear, however, both parties to a divorce case have to agree to have a commissioner hear the case in order for a commissioner’s decision to be enforceable. The Court called that case “a prime example of the harsh consequences that result when a commissioner neglects, at the outset of the case, to obtain the parties’ consent.”

gavelHusband and Wife were married for about eight years and had one child before separating in 2014. The couple later went before a court commissioner, who was charged with temporarily resolving issues related to spousal and child support, custody, and visitation. Following a hearing, the commissioner issued temporary orders in favor of Wife. When the spouses went back to court three months later, the commissioner asked each of them to sign a stipulation stating that they agreed to have their case heard by the commissioner and to be bound by her decisions. Husband declined, noting that the commissioner had already ruled against him.

The commissioner nevertheless proceeded with the case, finding that Husband and Wife had implicitly agreed to use the commissioner because they participated in the previous hearing and didn’t challenge her role in the proceedings at that time. She later issued a second judgement in Wife’s favor on issues related to the divorce.

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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.

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California courts operate under a system of procedural rules that are at least intended to help divorce and other cases proceed smoothly. That includes rules for discovery, the process by which parties exchange evidence and information in advance of a trial. If you mess with that process, you’re likely to get burned. That was the big takeaway from a recent ruling by the state’s Fourth District Court of Appeals.

money-607703-mWhen Wife filed for divorce from Husband in 2009, she asked a court to order Husband to pay her monthly spousal support to help Wife maintain the living standard she enjoyed during the marriage. The couple said they didn’t have any kids together at the time, and they agreed that certain houses should be considered each spouse’s separate property. A trial court ordered Husband to pay Wife $300 per month in spousal support. It seemed, for the time being, like the case was closed.

Things took a strange turn less than one year after the court issued the judgment, however. Wife went back to the judge in February 2011, alleging that Husband was in contempt for failing to make monthly support payments. Husband responded by informing the court that he’d learned after the judgment was issued that Wife had filed a separate claim for child support against him related to her son. The only problem, Husband said, was that the boy was already three years old when he and Wife first met. Husband said it cost him nearly $4,000 to prove that he wasn’t the father. The trial court decided to vacate its earlier judgement on the divorce and to open up the record for further proceedings.

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Spousal support is a monthly payment made by one divorcing spouse to the other in order to help the person maintain a certain level of financial security. A judge considering whether to order spousal support – and how much to order – usually looks at the receiving spouse’s need for the money to meet basic expenses and the paying spouse’s ability to make the payments. If asked to modify or terminate the payments, the judge will typically consider whether those circumstances have changed. Such changes may include retirement, a new job, remarriage, and new financial responsibilities. As a recent decision out of California’s First District Court of Appeals makes clear, however, “it’s time” isn’t a good enough reason to terminate payments.

quarter-close-up-83888-mHusband and Wife divorced in November 1995 after nearly 30 years of marriage. At some point in the litigation that followed, a judge ordered that the spousal support Husband was paying Wife be reduced to $100 per month. A court later denied Wife’s request to increase the support award to $700 per month, finding that she failed to file any evidence regarding her current income and expenses.

In April 2014, however, the court granted Husband’s request to terminate the payments altogether. In support of the request, Husband said he was nearly 68 years old and had about $4,750 in monthly income from social security disability and retirement benefits. He said he had expenses of about $5,300 per month, $800 of which was being paid by others. The court observed as follows: “We’re now 19 years post separation. Doesn’t look like very much has changed relative to either one of you. Does that sound about right? At some point in time the support—the support is minimal in any event. At some point in time support has got to terminate.” Despite the lack of any change in circumstances, the judge said “it still appears to me it’s time that the spousal support order be terminated.”

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Domestic violence is a serious issue and one that, unfortunately, comes up fairly regularly in California divorce cases. Depending on the severity of the circumstances, a victim of abuse has the right to seek a domestic violence restraining order that requires the abuser to avoid all contact with the victim. As a recent case out of the state’s Sixth District Court of Appeals shows, a person who violates a DVRO not only risks criminal charges but also potentially his or her relationship with his or her children.

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Husband and Wife were married in 1993 and had two sons before separating roughly 15 years later. When she filed for divorce in February 2008, Wife also sought a domestic violence restraining order against Husband and asked that it be applied to her and the two boys. In support of the order, Wife claimed that Husband had been physically and verbally abusive, that he had punched her in the arm and left bruises on one occasion in 2007, that he had choked the couple’s oldest son – lifting him off the ground in the process – on another, and that he had thrown a piece of wood at her car’s windshield while Wife and the oldest son were in the vehicle as they were driving away.

The trial Court granted the restraining order temporarily, and then for an additional three years. Although Husband sought to have limited visitation rights restored near the end of that three-year period, the trial court instead granted Wife’s request to extend the DVRO for another five years. In reaching this decision, the court noted that Husband had repeatedly violated the restraining order, including by sending “abusive” letters to Wife, trying to contact one of the boys’ teachers, and showing up at their baseball games. Although the court had previously authorized Husband to have monitored visits with the boys, overseen by his therapist, the kids told the therapist that they were afraid of their father and didn’t want to have the visits, according to the court.

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When a spouse in a divorce case asks to modify the amount of spousal support that he or she is either paying to or receiving from the other spouse, California courts usually look for evidence to show that there has been a “material change in circumstances” related to either party’s ability to support themselves. As the state’s Fourth District Court of Appeals recently explained, a spouse’s mismanagement of his or her money may come into play if the person seeks an increase in support as a result, but it isn’t enough to justify reducing the support that the spouse already receives.

usa-dollar-bills-1431130-mHusband and Wife separated in September 2002 after roughly 21 years of marriage. They later entered into a marital settlement agreement (MSA), under which Husband agreed to pay Wife $1,100 per month in spousal support. The agreement stated that the payments would continue until Wife remarried, either party died, or a court ruled otherwise. Husband also agreed to give up his community property interest in the couple’s home and to do so without being compensated for that interest.

Wife later inherited $200,000 after her mother died, according to the Court, as well as a one-third interest in a condominium property. After the property was sold, she used her share of the proceeds to buy another condominium. She also invested roughly $500,000 in a business around the same time. The company ultimately failed, and she was unable to recoup any of her investment.

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People have children, sometimes they marry, and sometimes they remarry. The parental figures in a child’s life often include both natural parents and step-parents. That can raise complicated legal questions about who should be involved in the proceedings when parents, step-parents, or a combination of both decide to divorce. California’s Fifth District Court of Appeals took on that issue in a recent decision.

gavel-952313-mFather and Mother were never married but are the natural parents of Daughter. Mother married Step-Father in August 2008, and the couple had a child before separating in April 2010. Father was in prison in Washington State for an undisclosed crime at the time, and he is scheduled to be released in August 2019.

The divorce proceedings between Mother and Step-Father were highly contentious, according to the Court. A trial judge in 2010 issued a restraining order against Step-Father after Mother claimed that he had struck her with an open hand and punched her in the face and provided photographic evidence of bruises and a black eye. Step-Father, meanwhile, claimed that Mother had also been abusive to him. He cited a 2012 incident in which Mother allegedly came to his house intoxicated, assaulted a woman inside the home, and threatened to assault another. Mother was arrested after this incident. The trial judge then issued a temporary restraining order against Mother and awarded Step-Father temporary custody of Daughter. The judge later revised the order to allow for joint custody.

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In divorce cases, as in life, honesty is the best policy. Not only does being completely forthright help ease some of the bitterness and acrimony that can arise when a couple decides to split, it can also help speed up the divorce process by narrowing the focus of any litigation or negotiation to real issues instead of wasting time on playing “he said, she said.” If that’s not enough reason, consider this:  distorting the facts and refusing to play nice in a divorce proceeding can also cost you money in the form of sanctions and attorney fees. A recent case out of California’s Fourth District Court of Appeals is a good example.

wooden-box-1228830-mWife filed for divorce from Husband in February 2005, after more than 21 years of marriage. The couple reconciled later that year, however, and lived together for the next five years. According to the court, Husband and Wife filed joint tax returns, slept in the same room, took vacations together, and otherwise had “normal marital relations” during this time. They also had a variety of work done to improve the family’s home. Nevertheless, Wife filed for divorce again in 2010.

After a three-day hearing to resolve various property distribution and spousal support issues, a trial judge ordered Husband to pay Wife nearly $62,000 in sanctions related to his actions during the divorce proceedings. The court also forced Husband to pony up $25,000 to cover some of Wife’s attorney’s fees. The judge noted that Husband refused to provide certain financial documents during the discovery process and said he breached a fiduciary duty by withdrawing money from community banking accounts from 2005 to 2010 without notifying Wife.

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Mediation is often an attractive alternative to what can be costly and time-consuming litigation for spouses seeking a divorce. As the state’s Second District Court of Appeals recently explained, a settlement agreement reached via mediation will generally be enforced by family courts.

paperwork-3-488174-mHusband and Wife separated in 2004 after roughly 23 years of marriage. When Wife filed for divorce the following year, the couple agreed to take their case to a mediator. As a result of the mediation sessions, they reached a proposed stipulated judgment. The agreement provided for the division of the couple’s homes and other property, as well as custody and visitation rights with respect to their minor child. It also stated that Husband would pay Wife $2,000 in spousal support through August 2020. The document further stated that it was a marital settlement agreement resolving all necessary matters related to the divorce.

Nevertheless, neither Husband nor Wife ever filed the agreement with the family court. As a result, the court dismissed the case for lack of prosecution in May 2011. In the weeks that followed, Wife sought to have the case reopened so that the court could recognize the agreement and retain jurisdiction to enforce it if necessary. Wife said she had been under the impression that the mediator would file the document with the Court.

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Judges are human. Sometimes they get cases wrong. That’s why the legal system provides litigants the opportunity to appeal a decision with which they don’t agree. California’s Fourth District Court of Appeals recently considered a divorce case in which a spouse who wasn’t happy with the trial judge’s ruling took a different tack. She accused the judge of sex discrimination.

gavel-952313-mHusband filed for divorce from Wife in the spring of 2010, and the parties later agreed to an arrangement in which he would pay her more than $2,000 a month in spousal support. That amount was later reduced, and the support was made temporary after Husband lost his job. Shortly after the original agreement, Wife sought a domestic violence protection order, alleging that Husband had abused her verbally and psychologically. She asked for a restraining order to force him out of the home where the couple was still living.

Among other abuse, she claimed that she was forced to watch as Husband abused the couple’s eldest son for a number of years. As the litigation continued, she also alleged that Husband had forced her to have sex with him a number of times and described a specific dispute over laundry in which he allegedly verbally abused her.

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