September 25, 2016
Today I was quoted in an article published by the Canadian Broadcasting Corporation regarding the Brad Pitt and Angelina Jolie Divorce. This articles addresses issues raised in Child Custody litigation. The link to the article is a as follows: http://www.cbc.ca/news/entertainment/jolie-pitt-divorce-children-1.3778140
Child Custody Litigation is an extremely complex area of Family Law. If you have questions regarding child custody issues please call Attorney Keith F. Simpson at (310) 297-9090. The Law Offices of Keith F. Simpson, A Professional Corporation, is located in Manhattan Beach, California.
September 17, 2016
In California, it is common for a house to be the largest asset owned by a divorcing couple. I am often asked how the equity in the house is divided. Is one party allowed to stay in the house and retain ownership? What if the house was owned prior to marriage? Real Estate, also known as Real Property, can present multiple complicating factors which must be carefully analyzed before you proceed with a divorce case.
We start with the concept of community property and separate property. In general, community property is all property acquired during the marriage. Separate property is all property acquired by a party before marriage and after the date of separation (gifts and inherited property are also separate property regardless when acquired). Therefore, if the house was purchased during marriage then the house is by definition Community Property.
We then look to the source of funds used for the down payment and monthly mortgage payments. If the house was purchased during marriage and the down payment was from community property money then the house is likely Community Property and the equity should be divided 50/50. If the down payment was from a separate property source, then the party who supplied the separate property down payment should be reimbursed for the down payment the the remaining equity split 50/50 as community property.
If the house was owned prior to marriage and is separate property, it is still possible for the community to acquire a community property interest based upon the monthly mortgage payments being paid from community property income. In my experience, this typically does not amount to a large amount of money because the community acquires an interest in the home based upon the reduction of principal (not interest) paid. This amount is then reduced to a 50% interest for each party.
Please remember that other issues can determine who owns the house, including, but not limited to, how title is held, whether an interest was gifted from one spouse to another, the ability of one spouse to trace funds, violations of fiduciary duties owed between spouses and other factors. This issue alone is often complex and should therefore be analyzed very carefully.
Please call Attorney Keith F. Simpson today to discuss your divorce case at (310) 297-9090. Attorney Keith F. Simpson is a Divorce Lawyer in Manhattan Beach, California. You may also visit the website at http://www.simpsonlaw.net to review further divorce information.
September 7, 2016
If you or your spouse work at Northrop Grumman, Boeing, Raytheon, Chevron or another large company, chances are you may have a Pension Plan, 401k Plan, IRA or other type of Retirement Plan. In divorce cases, these plans often have a Community Property and Separate Property component.
The portion of the Retirement Plan (Pension) which accrued prior to marriage and after the date of separation is Separate Property. This means the spouse who owns the plan retains all earned benefits prior to the date of marriage and after date of separation.
The portion of the Retirement Plan (Pension) which accrued during marriage is Community Property. This means that both spouses share the portion of the Retirement Plan benefits earned during marriage 50/50. This type of apportionment is often referred to as the “Time Rule” meaning the community portion of the plan is shared 50/50 for the term of the marriage.
This example illustrates the importance of determining the Date of Separation. The Date of Separation marks the end of the Community Property interest in the Retirement Plan. Therefore, it is extremely important to review all issues regarding the Date of Separation with your Attorney. Depending on the facts in your case, you can earn additional retirement benefits (or lose additional retirement benefits) based solely upon the issue of determining your date of separation.
If you have any questions regarding your Divorce please call Attorney Keith F. Simpson at (310) 297-9090. Attorney Keith F. Simpson is a California Family Law Attorney located in Manhattan Beach, California.
September 3, 2016
High Net Worth divorce cases present unique issues in a marital dissolution matter. Whether you are a high net worth individual such as an Entrepreneur, Investor, Doctor, Lawyer or married to one, you face a unique set of challenges.
The first issue is to identify all assets (and debts) in a high net worth divorce. This includes but is not limited to the following:
- Real Estate Holdings
- Stock Investments
- Ownership in Closely Held Corporations or other Entities
- Patents, Copyrights and/or Trademarks
- Art Collections
- Exotic Vehicles including Yachts
Once we identify the assets we then need to have the assets valued. This is typically done by a professional appraiser when necessary.
Once the assets and values have been ascertained, we then need to determine whether the property is Community Property, Separate Property or a mix of Community Property and Separate Property. This may be complex depending on when the property was acquired, how the property was acquired and how title to the property is held.
Spousal Support is often a heavily litigated issue in High Net Worth Divorce cases. Permanent Spousal Support is determined upon a number of factors which include the length of marriage and the Marital Standard of Living. In High Net Worth cases, the Marital Standard of Living often includes frequent travel and residences in affluent communities. Therefore, it is extremely important to retain a competent attorney to represent your interests in a High Net Worth Divorce matter.
Please contact Attorney Keith F. Simpson today if you have any questions regarding a High Net Worth Divorce at (310) 297-9090. The Law Offices of Keith F. Simpson, A Professional Corporation, is located in Manhattan Beach, California.
January 1, 2016
In 2015, the California Supreme Court made a big splash by changing how the Date of Separation is determined in a divorce. (See Marriage of Davis 2015). The Court ruled that parties who file for divorce yet continue to live with their spouse under the same roof are not separated. While there is an exception to this rule, it is safe to assume that you and your spouse are not separated until you file for divorce and vacate the residence. If both of you continue to reside in the same residence then you may assume you are not separated.
So, why is this a big deal? The Date of Separation can significantly impact your case in terms of Community Property and Spousal Support. California is a Community Property state. Generally speaking, property acquired during the marriage is Community Property and divided 50/50. Once a Date of Separation is established then spouses typically acquire Separate Property. The Davis decision stands for the proposition that even though a spouse has filed for divorce, if the spouses continue to reside in the same residence then they are not separated. This means that all property continues to be Community Property and therefore divided 50/50 (Income, Retirement Plans (IRA, 401K, 403b, Pension), and Real Estate for example.
The length of marriage also continues to accrue if you are not married. This is significant because the term for payment of Spousal Support is often determined by the length of the marriage.
Please contact Attorney Keith F. Simpson if you have any questions regarding Date of Separation or your Divorce at (310) 297-9090. The Law Offices of Keith F. Simpson, A Professional Corporation, is located in Manhattan Beach, California.
August 16, 2015
People who are starting the divorce process in California should consider drafting a Will and/or Revocable Living Trust. Many people tell me that they want to revise their Living Trust after their divorce is finalized. There are many problems with this approach. First, in the event you pass away while your divorce is pending the result is that your divorce case is dismissed and the terms of your Will or Revocable Living Trust control. For most people, this means that you leave everything you own to your spouse! Yes, this is the spouse who you were seeking to divorce prior to passing away. This is almost certainly not the desired result for most people.
To avoid this potential pitfall, I suggest that you have a new Will and Revocable Living Trust drafted prior to filing for divorce. If your divorce case is pending then it is not too late to have a new Will and Revocable Living Trust drafted. This will allow you to have your share of the marital assets distributed to your beneficiaries whenever you pass away. Also, it relieves you of having to worry about your soon to be Ex Spouse receiving a windfall by receiving your 50% of the marital assets in the event of your untimely demise.
You may also want to have a new Durable Healthcare Power of Attorney formed. This document specifies who you want to make health care decisions in the event you are still alive yet disabled. This typically arises in a situation where a person is comatose and unable to act on their own behalf. If you have your spouse named as the person in charge then this may be your unlucky day because you are also divorcing your spouse in our hypothetical. What if you and your spouse are estranged? Do you really want your spouse deciding whether to pull the plug?
It is important that you discuss estate planning issues with your divorce attorney at the outset of your case. Please call Attorney Keith F. Simpson today to discuss your Family Law case at (310) 297-9090. The Law Offices of Keith F. Simpson, A Professional Corporation, are located in Manhattan Beach, California. You may also visit the website at http://www.simpsonlaw.net to e-mail Attorney Keith F. Simpson today.
December 7, 2014
I am often asked if a parent who has primary custody, or even Sole Legal Custody and Sole Physical Custody, may Move Away with the child without a Court Order. Generally, the answer is NO. Parties should seek Court Approval of the Move Away before moving with the child. The adverse consequence could include losing custody of your child.
By statute, a parent with sole physical custody of the children has the presumptive right to change the children’s residence, subject to the court’s power to restrain a removal that would “prejudice the rights or welfare” of the children. (See Family Code Section 7501(a); Marriage of Burgess; Marriage of LaMusga; F.T. v. L.J.–Parent does not have presumptive right to relocate with children unless awarded custody by way of “final judicial custody determination.)
But the custodial parent has no more than a presumptive right to relocate with the children, and this is true even if he or she has also been awarded sole legal custody. A sole physical and legal custody order does not terminate the other parent’s parental rights or due process interest in parenting; the noncustodial parent still has standing to oppose the relocation and to seek and obtain a custody modification based on a proper showing of detriment and changed circumstances. (Marriage of Brown).
If you are entertaining the thought of moving away with your Children you should first consult a Lawyer. Also, if your child’s parent is requesting to move away with your children you should first discuss with an attorney. I am often called the week before a scheduled move and asked whether it is permissible to move away with children without a court order. Please understand that it can take generally between two to six months to obtain a Move Away order assuming the parent seeking the move away is successful.
Please call Attorney Keith F. Simpson today to discuss your Family Law case at (310) 297-9090. The Law Offices of Keith F. Simpson, A Professional Corporation, are located in Manhattan Beach, California. You may also visit the website at http://www.simpsonlaw.net
to e-mail Attorney Keith F. Simpson today.
December 4, 2014
Division of Community Property can be a complicated subject when dealing with issues regarding real property (real estate). For example, if parties separate and one party remains in the family house and the other party moves out but continues making the mortgage payment, how does the court handle this issue?
The Court will charge the spouse living in the family residence a form of rent which is reimbursement for value of post separation use of community property called “Watts Charges”. Just as a spouse may have a reimbursement claim against the community for postseparation separate property payments on a community debt, the community may have a reimbursement claim for the value of one spouse’s exclusive use of community property between the date of separation and the date on which the community no longer has an interest in the property—so-called “Watts charges.” (Marriage of Watts (1985) 171 CA3d 366, 374, 217 CR 301, 306)—trial court has authority to order reimbursement to community for spouse’s postseparation exclusive use of community asset; (Marriage of Bell (1996) 49 CA4th 300, 311, 56 CR2d 623, 630—judgment reversed because (among other things) trial court neither ordered reimbursement to community for spouse’s postseparation exclusive use of CP residence nor explained why reimbursement not ordered; and see Marriage of Falcone & Fuke (2012) 203 CA4th 964, 978-979, 138 CR3d 44,59-60—where asset not owned outright by community but is being financed, spouse in possession may satisfy duty to compensate community by making monthly finance payments from his or her separate property (so-called “Epstein credits”]
A typical scenario occurs after separation where one spouse is making payments on a community property home in which the other spouse is given the right of exclusive possession pending sale and a division of the proceeds. To effect a net overall equal division, the trial court may properly award the paying spouse Epstein credits for his or her SP payments on the house and charge the occupant spouse with the full Watts postseparation use value. In effect, the “Epstein credits” are paid from the community and the “Watts charges” are paid to the community, which should yield an equal sharing ofEpstein credits by both spouses and an equal bearing of Watts charges by both spouses. (Marriage of Jeffries (1991) 228 CA3d 548, 553, 278 CR 830, 833).
If your divorce case involves the division of real property, you should contact Attorney Keith F. Simpson today. California real estate is typically the most valuable asset held by a married couple. It is important to maximize the return on your real property investment by seeking all reimbursements and credits owed to you. Attorney Keith F. Simpson is located in Manhattan Beach, California. You may contact the Law Offices of Keith F. Simpson at http://www.simpsonlaw.net or call at (310) 297-9090.
December 2, 2014
Addiction issues are often the root cause of divorce. When a person is addicted to a substance they are not the same person. Unfortunately, this causes the entire family to suffer. If you are an alcoholic, or are married to an alcoholic, you should be aware of the potential impact upon your divorce case.
The Court may consider the history of drug abuse when determining Child Custody. In determining the child’s best interest, trial courts also must consider either parent’s “habitual or continual” alcohol abuse, their “habitual or continual” illegal use of controlled substances, or their “habitual or continual” abuse of prescribed controlled substances (as defined in California Health & Safety Code Section 11000 et seq.; See California Family Code Section 3011(d)).
Before considering allegations of a parent’s drug oralcohol abuse, the court may require “independent corroboration”—such as written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical and rehabilitation facilities, or other organizations providing drug and alcohol abuse services. (See California Family Code Section 3011(d)).
Under strict statutory conditions, the court may order any person seeking custody or visitation to undergo testing for the use of illegal controlled substances (as defined in California Health & Safety Code Section 11000 et seq.) or alcohol; and may order either or both parties to pay the costs of such testing. (California Family Code Section 3041.5)
(The statutory conditions are intended to address the constitutional concerns noted in prior case law that interpreted the then-existing Family Code as not authorizing compelled drug/alcohol testing in custody litigation (Wainwright v. Super.Ct. (Sinkler) (2000) 84 CA4th 262, 266-269, 100 CR2d 749, 752-754).
If alcoholism or addiction issues are present in your Divorce case, it is important to seek immediate legal representation. The alcoholism may significantly impact the issue of child custody, child support and/or spousal support. Please call Attorney Keith F. Simpson today to further discuss your legal matter at (310) 297-9090. You may also e-mail Keith Simpson at http://www.simpsonlaw.net
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December 1, 2014
I often handle family law matters involving the issue of Domestic Violence Restraining Orders. Domestic Violence can have a detrimental impact upon everyone involved in the case. The victim is often traumatized and scarred both physically and emotionally. Also, a finding of Domestic Violence can cause the perpetrator to have significantly reduced child custody and also cause a higher spousal support order.
Upon a finding by the court that the person seeking custody has perpetrated domestic violence against the other party, the child or the child’s siblings within the past five years, there is a rebuttable presumption that a sole or joint physical or legal custody award to the perpetrator would be detrimental to the child’s best interest. This presumption may be rebutted by a preponderance of the evidence. (See California Family Code Section 3044(a).
For purposes of Family Code Section 3044, a person has “perpetrated domestic violence” when the court finds that he or she (i) intentionally or recklessly caused or attempted to cause bodily injury or sexual assault; (ii) placed a person in reasonable apprehension of imminent serious bodily injury to that person or another; or (iii) engaged in any behavior involving (but not limited to) threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a Family Code Section 6320 ex parte order could issue to protect the other party seeking custody of the child or to protect the child and child’s siblings. (See Family Code Section 3044(c))
Domestic violence is a very serious matter. The NFL started an advertising campaign this year after the Ravens football team released running back Ray Rice for Domestic Violence against his then fiancé. In a Family Law matter, the issue of Domestic Violence usually significantly impacts the outcome of a case. For the Perpetrator of Domestic Violence, it can cause mandated Supervised Visitation, loss of custodial time with his or her children and/or loss of custodial time all together. For the victim, it can cause emotional scars which last a lifetime.
If you are involved in a Domestic Violence matter, please call Attorney Keith F. Simpson today to discuss your case at (310) 297-9090. Keith Simpson is a Manhattan Beach lawyer with the Law Offices of Keith F. Simpson, A Professional Corporation. You may also contact Keith Simpson at http://www.simpsonlaw.net and send an e-mail. Thank you for reading my blog.