Archive for September, 2010

California Divorce Blog (Dodger Divorce and Postnuptual Agreements)

September 21, 2010

Well, if you live near Los Angeles or you follow Major League Baseball you probably know that the owners of the Los Angeles Dodgers have decided to litigate their divorce trial. My law office is located in Manhattan Beach, California and I regularly appear in the Superior Court of California, County of Los Angeles, Central Court located in downtown Los Angeles at 111 North Hill Street, Los Angeles, California 90012. This is the same courthouse where the Dodger owners are having their case heard before Superior Court Judge Scott Gordon. I have appeared before Judge Gordon and must say that he is an excellent Judge and very fair minded.

Mr. McCort and Mrs. McCort both have very well known attorneys to litigate their divorce case and both attorneys had to agree at the outset upon having Judge Scott Gordon preside over their divorce case.

So everyone knows by not that the McCorts are divorcing and that the media is reporting daily about the case. So what is the big deal? Is this just another divorce case like all others which you can go see down at the court on any given day? Aside from the case involving the Los Angeles Dodgers and their owners, there is one very interesting issue. That issue has to do with Postnuptual Agreements.

What is a Postnuptual Agreement? In California, spouses may enter into a written agreement to change the character of property from separate property to community property or from community property to separate property. (See California Family Code Sections 850 and 1500). So what is community property? Community property is generally defined as all property acquired during marriage (assets and debts) with the exceptions of gifts and inheritance. Separate property is generally defined as all property owned before marriage, after separation or property received by gift or inheritance.

Getting back to the McCort’s divorce, it has been reported that the McCorts entered into a Postnuptual Agreement. That is to say that after the McCorts married, the McCorts signed an agreement which purported to change the character of some of their marital property. It is reported that Mr. McCort is alleging that Mrs. McCort signed a Postnuptual Agreement which transferred her community property ownership interest in the Los Angeles Dodgers to Mr. McCort in exchange for receiving Mr. McCort’s ownership interest in other community property (houses). Mrs. McCort’s attorneys are raising many defenses to this argument in an attempt to convince the Court that the Postnuptual Agreement is not enforceable.

Generally, for a Court to find that a Postnuptual Agreement is enforceable the Court must find the the following: The Postnuptual Agreement must be an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. (See California Family Code Section 852(a).

It was reported today that there were multiple versions of the Postnuptual agreement. If there were multiple versions of the Postnuptual Agreement then that may suffice as evidence that the agreement was not consented to or accepted by Mrs. McCort. It would certainly appear to be an issue which the Court may consider. No one knows how the Court will rule. I guess we will all have to wait until the bottom of the 9th inning when last out is called.

If you have any questions or comment about my California Divorce Blog or wish to discuss your California 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 and represents clients in Courts throughout California.

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California Divorce Blog (Spousal Support Options)

September 18, 2010

Recently it seems that many of my cases involve Spousal Support (formerly known as “alimony”). In fact, many cases seem to hinge on the issue of spousal support. I mean that all other issues can be resolved with the exception of spousal support. Spousal support can be, and often is, an emotional issue. Think about it. One spouse is faced with the prospect of breaking up a “lifetime partnership” with the other spouse but may be on the hook for paying spousal support for Life! This can often be difficult to imagine but a reality nonetheless.

So what is spousal support? Spousal support is a court order for one spouse to pay any amount necessary for the financial support of the other spouse (See California Family Code Section 4320). The Court may make temporary spousal support orders from the time the Divorce lawsuit is filed. At time of trial the Court may make permanent (lifetime) spousal support orders. This means that one spouse may be ordered to pay the other spouse support for the remainder of his or her life! There are many factors which the Court will consider when determining the amount of spousal support and the duration. A rule of thumb is the longer the marriage, the more likely the Court will order lifetime spousal support. Any marriage with a duration of ten years has been held to be a “long term marriage” and therefore makes is more likely that a court may order lifetime spousal support.

There are many methods to resolve the issue of spousal support. Typically, the spouse who is the higher income earner will be the spouse who is ordered to pay spousal support. Some options for resolving spousal support are as follows: 1) Agree upon a monthly spousal support amount for the remainder of the supported spouse’s life (or until the supported person remarries or the paying spouse dies). 2) Agree upon a monthly spousal support amount for a defined period (i.e., pay spousal support for five years). 3) Pay a one time lump sum spousal support payment. This option can be a double edged sword and may be a gamble. For the paying spouse, the gamble is that they are betting that by paying a one time lump sum payment the total sum will be less than if they paid a monthly amount for life. If the supported spouse immediately remarries or passes away then the paying spouse will have vastly overpaid the amount of spousal support necessary. The same is true of the supported spouse (i.e., the risk of taking a one time lump sum payment as opposed to spreading monthly payments over a lifetime period). Who knows how long both spouses will live. What is the condition of their health? Does the supported spouse want to remarry in the near future? These are all questions which parties and their counsel should consider when evaluating the tricky and emotional issue of spousal support.

If you are facing difficult decisions regarding spousal support please call Attorney Keith F. Simpson today to discuss at (310) 297-9090. Thank you for reading my California Family Law Blog!

California Divorce Blog (Divorce Options)

September 17, 2010

Welcome to the first blog posting from attorney Keith F. Simpson of the Law Offices of Keith F. Simpson, A Professional Corporation.  Today I am going to write about options available to a person who has decided to file for divorce (also known as marital dissolution).

In California, a person has the option of filing a petition with the Superior Court of California for 1) Marital Dissolution (Divorce) 2) Legal Separation or 3) Nullity.

In California, a person may obtain a judgment of Marital Dissolution or Legal Separation on the following grounds: (a) Irreconcilable differences that have caused the irremediable breakdown of the marriage; or (b) incurable insanity.  The vast majority of parties filing for divorce choose the former “Irreconcilable differences” as the alleged reason for filing for a judgment of Marital Dissolution.  The Court typically makes a finding to the effect that the Irreconcilable differences have led to the “irremediable” breakdown of the marriage.  In my experience Courts tend to liberally construe the term “irremediable” breakdown of the marriage and order a judgment of Marital Dissolution so long as it appears that their is no possibility of reconciliation.

You should be aware that California has a residency requirement which must be satisfied prior to a Court entering a judgment for marital dissolution.  At least one party must have been a resident in the State of California for six months and a resident in the County where the lawsuit was filed for at least three months prior to the Petition being filed with the Court.  In the event neither party can satisfy this residency requirement, the parties may file for a Legal Separation and later (presumably six months) amend the Petition to a filing for Divorce. This will allow a couple who recently moved to California to proceed with filing the lawsuit and obtaining a Divorce Judgment as soon as possible (6 months).

A Legal Separation, unlike Divorce, does require the consent of both parties (unless the respondent does not appear and a default is entered against the respondent).  Also, a judgment of Legal Separation does not terminate the parties’ marital status.  This will allow a spouse to remain on the other spouse’s health care insurance plan.  If a party obtains a Divorce, the other spouse is precluded from remaining on the other spouse’s health care plan. This is a very important consideration which all parties should consider prior to requesting judgment for Divorce.

Nullity is a completely different concept.  A judgment of Nullity may only be granted by a Court when a marriage is void or voidable for the following reasons: (a) incest (b) bigamy (c) a spouse was not an adult when married (d) spouse was erroneously thought to be deceased (e) fraud (f) unsound mind (g) force (h) physical incapacity.  There is no statutory residency requirement to file a petition for a Judgment of Nullity.  There is also no consent requirement between the parties.  Finally, a Judgment of Nullity acts to nullify the marriage (as if the marriage never occurred).

Thank you for reading my first blog entry.  Please do not hesitate to contact Attorney Keith F. Simpson to further discuss any family law questions you may have at (310) 297-9090. Please also view our website at http://www.simpsonlaw.net or http://www.califdivorce.info