Articles Posted in Divorce

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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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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.

Wedding Rings

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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