Posts Tagged ‘Divorce’

California Divorce Blog–In a Divorce, who gets custody of Electronic Communications and Data?

November 1, 2016

When a couple separates, their data–e-mail, text messages, social media profiles and other electronic information may be searched and discovered. Please see the article as published by the New York Times regarding Anthony D. Weiner and Huma Abedin.

Attorney Keith F. Simpson is a Divorce Lawyer in Manhattan Beach, California. Please call Attorney Simpson if you have any questions regarding your divorce at (310) 297-9090.

 

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California Divorce Blog–Brad Pitt and Angelina Jolie Divorce

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.

 

California Divorce Blog–Dividing the House

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.

California Divorce Blog–Pension Plans And Other Retirement Plans

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.

California Divorce Blog–Alcoholism and the Alcoholic

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. Thank you for reading this blog.

California Divorce Blog–Child Support

February 15, 2011

In California Child Support is money paid from one parent to the other parent to assist with the expenses associated with child rearing.  The California Family Code refers to child support as a support obligation owing on behalf of a child.  (California Family Code Section 17402)  Generally speaking, California law required both parents to support their minor children “in the manner suitable to the child’s circumstances.” (California Family Code Section 3900)

All minor children of the parents are owed a duty of child support.  The obligation to support a child is not limited to the parents’ marital status nor is it limited to biological offspring!  (California Family Code Section 7602; White v. Marciano (1987) 190 CA3d 1026, 1031, 235 CR 779, 782)

Once the issue of parentage is determined, the court will move to decide the issue of child support.  A finding of parentage occurs when the court makes a finding as to who are the child’s legal parents.  In California, courts will use a program called Dissomaster which is a computer program.  The judge will input data into the Dissomaster program to determine the amount of child support one parent will be ordered to pay the other parent.  The types of data include 1) the amount of custody each parent has 2) the respective incomes 3) the monthly expenses 4)hardship expenses 5) multiple other expenses and data.  The Dissomaster will provide a child support number which the court will usually accept and order the supporting parent to pay the non supporting parent.

The guideline formula for computing child support is provided algebraically as follows:  CS = K [HN -(H%) (TN)] (See California Family Code Section 4055(a)).

CS equals Child Support;

K equals the amount of income to be allocated for child support as set forth in Family Code Section 4055(b)(3);

HN equals high earner’s net monthly disposable income;

H% equals approximate percentage of time high earner has or will have primary physical responsibility for the children compared to the other parent (where the parents have different time-sharing arrangements for different children, H% equals the average of the approximate percentages of time the high earner spends with each child);

TN equals total net monthly disposable income of both parties. (See California Family Code Section 4055(b)(1).

Child support, unlike spousal support, is not tax deductible to the paying spouse.  Furthermore, child support is not taxable as income to the parent receiving the child support.  It is important to have your attorney request child support payments at the outset of your divorce case if you are eligible to receive child support.  The issue of child support is a complex matter and should be discussed with your attorney.  For further questions, please contact Attorney Keith F. Simpson today at 310-297-9090 or read more about California divorce and family law at his websites http://www.simpsonlaw.net or http://www.caldivorce.net

Keith F. Simpson is a Manhattan Beach, California lawyer who practices law throughout the State of California. Call Attorney Keith F. Simpson today with your child support or divorce question.

California Divorce Blog–Child Custody

October 2, 2010

The one issue in divorce cases which has the potential to make any case become extremely litigious and emotional is the issue of child custody. The breakup of a marriage is usually difficult enough. Try deciding who the children will live with and how often!!

Unfortunately, children often become pawns in a chess match when discussing child custody. For example, one spouse may be angry with the other spouse because of an affair. This spouse may attempt to extract revenge by not allowing the other spouse time with the children. There is a saying that in Criminal Law, you find bad people acting their best in court. In Family Law, you find good people acting their worst in court.

So what is the law regarding child custody? Who decides who will have the children? In California, family law cases are decided by a Judge or Commissioner. There are no jury trials in California Family Law Courts.

California law provides that it is in the public policy of the State to ensure minor children frequent and continuing contact with both parents after their separation or dissolution except when that contact would not be in the child’s best interest. California Family Code Section 3011 sets forth factors which indicate when it is not in the child’s best interest. If there is a question as to whether the issue of frequent and continuing contact conflicts with the health, safety and welfare of the child then the court will typically side with the child’s safety and fashion a visitation order to ensure the child is safe.

Parents often make the mistake of assuming that child custody is awarded according to what is in their best interest. This is not the case. Custody orders are often inconvenient for parents and that is because the orders are made according to what is in the child’s best interest.

If you have any questions about child custody issues please do not hesitate to contact the Law Offices of Keith F. Simpson, A Professional Corporation, to discuss your case today. Attorney Keith Simpson is located in Manhattan Beach, California. Attorney Keith Simpson writes this California Divorce Blog and practices Family Law in Manhattan Beach, California.

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.

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