Articles Posted in Divorce

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Earlier this month, an appellate court issued a written opinion in a California divorce case requiring the court to determine if the husband was responsible for half of the children’s medical expenses not covered by insurance. The court ultimately held that, pursuant to the agreement entered into between the husband and wife, the husband was responsible for half of the expenses. Furthermore, since the trial court awarded full custody over the children’s orthodontia care to the wife, the husband had no say in obtaining the care.

BracesThe Facts of the Case

The husband and wife were married in November 1996. They had two daughters during the marriage and filed for divorce in 2009. Both the husband and wife heavily litigated many issues during the divorce proceedings, and the overall environment was very contentious. Eventually, the husband was determined to have defrauded the wife, and a court ordered that he pay nearly $450,000 to the wife as a result. The agreement awarded joint legal custody to both parents and required the husband to pay child support and half of all medical expenses that were not covered by insurance. There was no order for spousal support.

At some point in the proceedings, the wife petitioned the court for sole legal custody because the husband was refusing to pay for the children’s orthodontia care. The trial court awarded the wife full authority over the children’s orthodontia care and ordered the husband to pay for half of the expenses not covered by insurance.

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California divorce courts often have to consider a range of complex issues, including the division of assets, custody of children, and spousal support. In a recent California spousal support case, one court had to consider whether a wife could sue for spousal support not only under state law, but also through an immigration form signed in connection with a spousal visa petition.

Wedding RingsThe Facts of the Case

The husband was a U.S. citizen, and his wife was a citizen of Fiji. In 2012, they were married in Fiji, and the husband filed a visa petition to bring his wife to the United States. As part of the petition, the husband signed a form I-864 affidavit of support. The form is meant to ensure that an immigrant does not become a public charge. In signing the form, the husband agreed to provide his wife with any support necessary to maintain her income at 125 percent of the federal poverty guidelines. The form also stated that if the husband did not provide her with sufficient support, the wife could sue him for that support.

The wife moved to the United States in 2013. According to the wife, the husband abused her and told her he wanted her to go back to Fiji. Later that year, the husband and wife went to Fiji, and according to the wife, her husband abandoned her there and tore her permanent resident stamp out of her passport. The wife obtained temporary travel documents from the U.S. Embassy in Fiji and returned to the United States on her own.

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An annulment is a legal term that means to declare something invalid. Thus, when a California marriage is annulled, it is as though the marriage never occurred. While annulments are rare under California law, the repercussions of an annulment can be great, so it is important for those in the process of a California separation to understand what an annulment is and what the consequences of an annulment are.

DivorceIn California, an annulment is only proper in limited circumstances. Some marriages are never valid, including those that are incestuous or bigamous. However, other marriages can be declared invalid by a court under certain circumstances, including when:

  • One or both of the spouses were not of the legal age to marry;
  • Either spouse was not of sound mind;
  • The marriage was based on some act of fraud regarding a matter that was material to the relationship; or
  • One of the spouses was forced into the marriage.

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Earlier this month, the Court of Appeal for the Second Appellate District issued an interesting written opinion in a California spousal maintenance case in which the husband was seeking to terminate a court order that he pay spousal support based on a change in circumstances. The court rejected the husband’s request, however, since it determined that the husband’s transfer of his business to his new wife was done in an attempt to avoid paying spousal support. As a result, the husband was required to keep making spousal support payments into his retirement.

GavelThe Facts of the Case

In 2009, the husband and the wife divorced, and the husband was ordered to pay spousal maintenance payments in the amount of $9,500/month. That figure was later lowered by agreement to $4,000. In 2015, the husband sought to eliminate the payments altogether, claiming that his retirement constituted a change in circumstances.

Prior to his retirement, the husband, a retired police officer, ran a private investigation and security business. He paid himself a salary of approximately $50,000 annually, and the business generated an additional $220,000 in business income each year. The husband claimed that he had retired, and the business was now in the hands of his new spouse.

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Earlier this month, the Supreme Court of California issued a written opinion in a California property division case that required the court to determine if a life insurance policy purchased by the husband and naming the wife as the sole beneficiary should be considered communal property at a dissolution proceeding, or whether it was properly found to be the wife’s separate property. Ultimately, the court concluded that the insurance policy was communal property, and the court reversed the intermediate appellate court’s finding to the contrary.

CalculatorThe Facts of the Case

The husband and wife were separated in 2004 after 20 years of marriage. Prior to the couple’s separation, the husband purchased a $3.75 million life insurance policy, using communal funds from the couple’s joint bank account. Likewise, the policy premiums were also paid out of the couple’s joint bank account. The policy named the wife as the sole beneficiary.

At a dissolution proceeding, the wife wanted to have the insurance policy considered as her own separate policy. The testimony showed that the husband obtained the policy when he was in the hospital suffering from heart problems, that at the time he had no plans on separating from the wife, and that he put the policy in her name, assuming she would use the proceeds to take care of the couple’s three children. The trial court determined that the insurance policy was community property and ordered the husband to buy out the wife’s interest. The wife appealed, and the case was reversed by the intermediate appellate court, finding that the policy was the wife’s separate property. The husband appealed.

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Last month, the California Court of Appeal, Fourth Appellate District issued a written opinion in an interesting family law case requiring the court to determine if a previous court order in a dissolution case finding that a couple was not legally married precluded litigation of whether the marriage existed in a subsequent nullity case. Ultimately, the court determined that since the two causes of action involve different primary rights, the previous court’s finding that no marriage existed did not prevent the wife from later seeking a nullity action.

CourtroomWhat Is Res Judicata?

Under the doctrine of res judicata, once a court decides an issue, that finding cannot be revisited in a subsequent case. There are two types of arguments that are precluded under the doctrine of res judicata, claim preclusion and issue preclusion. Claim preclusion prevents the same parties from relitigating a case once it has been decided. Issue preclusion prevents parties from relitigating the same issue in a subsequent case, as long as the parties are in privity.

The Facts of the Case

In 2014, the wife filed a dissolution action against the husband, claiming that the two were married in Mexico in 1989, citing irreconcilable differences. The husband claimed that the two were never married. After hearing the evidence, the court concluded that no valid marriage existed and dismissed the wife’s case.

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Timing can be very important in California divorce cases. In some situations, a party’s failure to raise an issue in a timely manner can preclude that party from seeking certain relief down the road. A recent appellate decision issued by California’s Fourth Appellate District illustrates the difficulties one spouse had in requesting that the court’s order requiring spousal support be retroactively applied as of the date of the dissolution.

marriage certificateThe Facts of the Case

In May 2014, a wife filed for dissolution of her 22-year-long marriage to her husband. When the wife filed the application for dissolution, she checked the box on the form indicating that she would be seeking spousal support. As is common in California divorce cases, the couple attended a mandatory settlement conference, where several issues were resolved; the issue of spousal support, however, was left for trial.

The wife filed a formal brief with the court, seeking permanent spousal support; however, nowhere in the brief did the wife request temporary support be ordered in the interim. In the following July, the parties agreed that the husband would pay $800 a month in spousal support to the wife. The agreement took effect on July 1, 2015, and it left open the issue of whether the spousal support order would be retroactive.

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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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