A recent case greatly affects the rights of Los Angeles residents, Carmona v. Carmona (9th Cir. 2008) 544 F.3d 988, by providing strong protections for an ex-wife (or ex-husband for that matter) that was a beneficiary of her ex-husband's retirement account. Where the husband later married his present wife and tried to switch his retirement to his present wife, the Court ruled that there was no reversing the benefit to the ex-wife if that retirement had become payable during the prior marriage.

Even when there is waiver language in the Marital Settlement Agreement, the Court will not replace the former spouse who is already locked in under a Qualified Joint and Survivor Annuity under ERISA.

However, the plan must be an ERISA regulated plan. What is interesting to note is that even if both parties somehow attempt a later agreement in a Qualified Domestic Relations Order, the Court will not give it any power. Simply put, once the ex-spouse retires and the prior spouse is named on that ERISA Retirement Plan, the deed is done. The rights are irrevocably vested!

Continue reading "California Divorce: Retirement Plan to Current Wife or Ex-Wife? " »

Heard Sandra Bullock is going to court to get partial custody of stepdaughter Sunny. What are her chances?
--Marignygirl, via Twitter

Reports are all over the place on what exactly is going on at Casa de Bullock. Camp Sandy is insisting the Oscar winner isn't seeking a divorce--yet. But as for the kids, Bullock has said she has a very tight bond with Sunny, the 6-year-old daughter of Jesse James and his porn-star ex, Janine Lindemulder.

Attorneys tell me that if Bullock wanted to divorce James after all and seek more formal custody of Sunny, or just court-approved visitations, it would be...

...pretty tough.

Let's talk visitation first.

"Bullock would have an uphill climb if she were to seek visitation," Santa Monica-based family lawyer David Pisarra, of the company Pisarra and Grist, says.

Bullock would need to prove "that if she isn't allowed visitation, it would be a detriment to Sunny's well-being. The problem is that judges make their decisions on cases like these by using very exacting standards, which can be difficult to prove."

As for custody, that would involve quite a bit of mudslinging, particularly at Lindemulder or James. Bullock would have to prove that Sunny's biological parents are unfit, and that she would be a better option for the little girl.

"Bullock has earned the reputation of being an all-around 'nice' person, and she may not have it in her to go after someone in the kind of ways that might be necessary to gain custody," Pisarra says.

Another factor: Lindemulder.

Since the news broke about James and alleged mistress Michelle "Bombshell" McGee, Lindemulder has reportedly decided to seek more time with Sunny, and possibly more custodial rights.

"A new wrinkle has been added, as the courts tend to side with the biological mother," Pisarra says. "Of course, judges take a myriad of factors in to consideration, such as drug abuse, poor mothering or if, by giving the biological mother custody, the child would be endangered. If this does go to the courts, we can anticipate a lot of dirty laundry being aired."

One last, very distant, possibility: Adoption.

It isn't likely that Lindemulder would take that lying down, but if Bullock managed to pull it off, her chances of custody would obviously be much higher.

"If that is a possibility, she should do that first, and then consider a divorce," attorney Maya Shulman of the firm Adelman & Seide tells me. "An adoptive parent assumes all rights and responsibilities for an adopted child as does the biological parent--custody, child support, etc."

The Sacramento Child Support Attorneys of Bowman & Associates have helped clients across Northern California. If you or someone you know has legal questions regarding child support, contact our experienced Sacramento family law firm today for your free initial consultation.

[source]

We blogged about this earlier last week, here.

A judge in a divorce case won't let a father take his daughter to Easter services.

Reporting from Chicago - Less than two weeks before Easter, a judge in Illinois has ruled that a father involved in a contentious divorce and custody dispute cannot take his 3-year-old daughter to church on the most holy day of the Christian calendar.

Judge Renee Goldfarb's ruling maintains an injunction imposed against Joseph Reyes last year after he had his daughter baptized in the Roman Catholic Church without the consent of her mother, who is raising their daughter Jewish.

The prohibition came after Reyes sent photos of his daughter's baptism to his estranged wife.

Reyes, who called the injunction unconstitutional, already faces a contempt charge for allegedly defying the order and taking his daughter to Mass -- with a television news crew in tow.

The judge now presiding over the couple's divorce trial refused to modify the injunction, saying it stands until the trial ends.

Joseph and Rebecca Reyes of Chicago were married in October 2004, but they broke up four years later. Rebecca Reyes was granted full custody of their daughter.

But the divorce battle continues.

Rebecca Reyes said her husband, raised Roman Catholic, had converted to Judaism after their marriage and agreed to raise their daughter in the Jewish faith. He said they agreed to raise her in a secular home, expose her to both faiths and let her decide.

On Wednesday, Joseph Reyes' attorney, Joel Brodsky, implored Goldfarb to avoid any religious restrictions in the custody decision. He also questioned Rebecca Reyes' commitment to Judaism, saying she does not date Jewish men or keep kosher in "her so-called Jewish home."

"She has a strong Jewish identity in Rebeccaland, but not in the real world," he said.

Attorneys for Rebecca Reyes called Brodsky's argument offensive. They said that religion did not become central to the case until more than a year after the couple filed for divorce, and that the issue was raised to deflect attention from the father's lack of financial support and parenting skills.

"This case is not about religion. It's about parenting," attorney Laura Ashmore said. "I doubt this will be a landmark case. It's about Joseph Reyes and Rebecca Reyes and their daughter."

Continue reading "Child custody and religion" »

The foregoing is based on general principles of California family law, and should not be construed as legal advice. For specific legal advice, contact a family law attorney.

Most family law attorneys would agree that the most emotionally involved and heavily contested component of family law involves battles over child custody and visitation. Client confusion over the practical and legal distinctions among the various custody arrangements typically serves to further complicate these matters. This highlights the importance of rendering an understanding of the relevant legal terminology applicable to custody arrangements. The starting off point is the distinction between the two forms of custody: Legal and Physical.

Legal vs. Physical Custody

I can't count how many times a client has entered my office and flatly stated that they want "sole custody" of their child(ren). Clients typically, however, do not distinguish between legal and physical custody. Usually such a comment reflects the potential client's desire to have the child live primarily, or exclusively, with them. (A physical custody arrangement) This is when the client must learn about legal custody, the other component of custody arrangements.

Legal Custody

Legal custody arrangements govern the parents' respective rights to be involved in important decisions regarding the upbringing of their children. The most common of these "important" decisions involve those related to the medical, dental, and educational needs of the child.

A knee-jerk reaction of a parent who desires "sole custody" is to request sole legal custody in addition to sole primary custody. This makes sense. After all, if the other parent cannot be trusted to spend significant time with the child, then he or she probably cannot be trusted to make important decisions on the child's behalf either, right? At this point, parents need to understand that courts do not tend to strip a parent of legal custody, unless there is some compelling reason to do so. In other words, sole legal custody does not necessarily flow from sole (or primary) physical custody.

Parents also should understand that a joint legal custody arrangement (as opposed to sole legal custody) will not have a meaningful impact on their day to day decision-making vis-à-vis their child. A joint legal custody arrangement does not mean that one parent will have to receive the permission of the other parent before taking a child into the emergency room or to a routine medical examination. Neither does it entail that a custodial parent must inform the other parent of every occurrence with respect to the child's schooling. Each parent typically bears the independent duty to keep abreast of the child's school schedule as well as the child's academic performance and progression. The idea is that parent's are obligated to consult with one another only with respect to major decisions.

Physical Custody

There are a number of ways to describe the various physical custody arrangements. As an initial matter, as they do with legal custody, the courts distinguish between sole and joint physical custody. And as they do with legal custody, the courts typically prefer to grant joint physical custody, absent some set of circumstances that would justify awarding sole physical custody to one parent. Contrary to the belief of most clients, when the court does award one parent sole physical custody, this does not mean that the other parent is denied parenting time with the child. Public policy of the State of California dictates that it is in the best interest of children to have frequent and continuing contact with both parents, regardless of the sole vs. joint physical custody arrangement. In other words, the courts distinguish between custody and visitation.

When the court awards the parents joint physical custody, the next step is to determine the respective parenting time of each parent. The court can order a true joint physical custody arrangement in which each child spends approximately half of their time in the physical custody of each parent. Alternatively, the court can award "primary" physical custody to one parent and "secondary" physical custody to the other. The parent with "primary" physical custody (referred to as the custodial parent) is awarded the majority of parenting time, while the other parent (referred to as the non-custodial parent) is awarded less significant, but consistent parenting time.

Common Misconceptions

As stated above, the most common misconception is that an award of sole physical custody will effectively terminate the other parent's right to visit with his or her child. A related misconception is that an award of primary physical custody has the same effect as an award of sole physical custody. While the immediate, practical consequences of these differing orders may seem the same, there are significant differences in the legal impact of these awards.

In particular, when sole physical custody is awarded to one parent, the burden of altering this arrangement to one more favorable to the parent without physical custody is usually much greater. This is even more likely when the order issued is a permanent custody order. What's more, a parent with sole physical custody has the presumptive right to relocate with the child, which can play a very significant role in so called "move-away" cases.

Recent Judicial Decisions

The fourth district of California recently touched on the importance of the characterization of the custody order in the unpublished case, Irmo Witzman. In this case, the parents went to trial on the issues of custody and visitation. The parties were awarded joint legal custody with "primary physical custody" to the wife. Three years later, Husband filed a motion requesting sole physical custody to him, with visitation to the wife. The court ultimately maintained the joint legal custody order but modified the parenting plan to a 50/50 arrangement. Wife appealed.

On appeal, Wife argued that the trial court altered the physical custody judgment, and could only do so after Husband made a showing of "substantial change of circumstances." (Which would be an accurate argument under current case law) The court, however, determined that the "substantial change of circumstances" standard did not apply in the current case because the trial court's award of "primary physical custody" to Wife was not an award of sole physical custody. The court of appeals determined that such an award could only be construed as an award of joint physical custody. As such, the shift to a 50/50 parenting plan was not a change in custody, but a mere restructuring of the parenting arrangement.

Conclusion

The myriad of potential custody and visitation arrangements can be overwhelming to the uninitiated. Without a proper understanding of the practical and legal consequences of each potential arrangement, it is difficult, if not impossible, for a parent to intelligently assess what arrangement is in their best interest. It is equally difficult for such parents to fully comprehend what rights and responsibilities they have vis-à-vis their child after a custody order is rendered. This highlights the necessity for parents who are in need of a custody order to seek advice from a family law attorney. It also highlights the importance for attorneys to provide their clients with a clear understanding of these issues before acting on their behalf.

Continue reading "Demystifying Child Custody Terminology and Arrangements" »

The recent rise in popularity of social networking websites has redefined the definition of privacy for many users. Unfortunately, as recently reported by Time Magazine in two different articles (Facebook and Divorce: Airing the Dirty Laundry and Five Facebook No-Nos for Divorcing Couples), social networking sites are also contributing to a rise in difficult and costly divorce litigation.

Sites such as Facebook and Twitter, which were originally intended to facilitate networking connections, are quickly becoming forums for publicly airing personal business. Divorcing couples who are in the midst of litigation should be exceedingly cautious regarding the type of information they post to their personal networking pages.

As discussed on law.com (Web Search Serve as Litigation Tool), in any lawsuit, the collection of information on an opposing party is highly important. Photographs, in particular, can have very serious consequences in divorce and child custody litigation. Attorneys on both sides of the litigation can use electronic discovery to yield helpful photographic evidence that may be admitted to reflect on the credibility or lifestyle of a party or witness.

Continue reading "Social Networking and Divorce in Sacramento, California" »

Constitutional showdown expected over Judge's ruling prohibiting father from taking daughter to church

An Illinois man going through a divorce was ordered by the Court not expose his daughter "to any other religion than the Jewish religion during his visitation." Seems Dad, who is Catholic, wanted to test this order and took his three-year-old daughter to Holy Name Cathedral. Another judge will now rule on whether he should be held in contempt for violating the court's order.

However, a Motion to Dismiss filed by the father's attorney argues that the Order is vague as it fails to define what encompasses the "Jewish religion". The law is clear that in order to be held in contempt, it must be clear what they were prohibited from doing. More importantly, the motion argues that the Court is unable to make the determination as to what constitutes "Jewish religion" as a result of the ecclesiastical abstention doctrine. Essentially, this doctrine prohibits a court from examining matters of religious doctrine as they are protected from government interference by the First Amendment to U.S. Constitution. Thus, the Court cannot say what is or is not the Jewish religion. And if it cannot determine what is the Jewish religion, then it cannot determine whether the father violated the court order.

I imagine the Court's ruling will not be the last we hear of this case. The story was previously on the news. See the video below.

Continue reading "Dad in contempt for taking daughter to church?" »

One of the most difficult tasks for a divorcing couple here in Montana is breaking the news to their minor children. It can be tricky to explain such an adult concept to children, particularly when many divorcing couples cannot explain to each other what went wrong. Luckily, there are many resources aimed specifically at children that parents can utilize during this difficult time.

KidsHealth.org has an online "Kid's Guide to Divorce" that explains divorce in age-appropriate terms and stresses that children are not the cause, nor can they be the savior, when a couple decides to divorce. The site has additional information for children who may be living with a new stepparent or will be moving away.

There are also several children's books for parents and children to read together while coping with divorce. Most of the books provide a simple, clear way to explain to children that they are still loved by both parents. I recommend the following:

• Dinosaurs Divorce: A Guide for Changing Families by Marc Brown
• It's Not Your Fault, Koko Bear by Vicki Lansky
• Two Homes by Claire Masurel
• Standing on My Own Two Feet by Tamara Schmitz

Continue reading "A Child's Guide to Divorce" »

Divorce can be particularly hard on children, especially when the parents don't take the appropriate steps to help protect them during this process. Children need and have the right to the following, especially in times of family upheaval:

• Being free of the conflict between the parents
• Developing and maintaining an independent relationship with each parent
• Not having to take over the parental responsibility for making custody and/or visitation decisions
• Not being expected or forced to take sides with, defend, or lessen the value of either parent
• Being guided, taught, supervised, disciplined and nurtured by each parent, without interference from the other parent
• Spending time with each parent, regardless of whether or not financial support is given
• Having a personal sleeping area and space for possessions in each parent’s home
• Being physically safe and adequately supervised when in the care of each parent
• Having a stable, consistent and responsible child care arrangement when not supervised by the parents
• Developing and maintaining meaningful relationships with other significant adults, as long as these relationships do not interfere with or replace the children’s primary relationship with their parents
• Expecting that both parents stay informed about medical, dental, educational and legal matters, unless such disclosure would prove harmful to the child
• Participating in age-appropriate activities so long as these activities do not significantly impair their relationship with either parent

Continue reading "Protecting Children During Divorce" »

In California, the marital property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Superior Court Judge within the Final Judgment of Dissolution of Marriage.

California is considered a "Community Property" state. Community property is defined as all property and debt that was acquired from the date of marriage until the date of separation. Not every couple agrees with division of the property and when this occurs, the community assets will be split equally by the Superior Court if the spouses are unable to reach an agreement.

When dividing property for a dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property, is presumed to be community property. This community property presumption is a presumption affecting the burden of proof and may be rebutted by either of the following: (a) A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property. (b) Proof that the parties have made a written agreement that the property is separate property.

There are some exceptions, when economic situations warrant, the court may award an asset of the community estate to one party on such conditions as the court deems proper to effect a substantially equal division of the community estate.

The court may also award, from a party's share, the amount the court determines to have been deliberately misappropriated by the party to the exclusion of the interest of the other party in the community estate.

Debts accumulated after the date of separation are treated as follows: (a) Debts incurred by either spouse for the common necessaries of life of either spouse or the necessaries of life of the children of the marriage for whom support may be ordered, in the absence of a court order or written agreement for support or for the payment of these debts, shall be confirmed to either spouse according to the parties' respective needs and abilities to pay at the time the debt was incurred. (b) Debts incurred by either spouse for nonnecessaries of that spouse or children of the marriage for whom support may be ordered shall be confirmed without offset to the spouse who incurred the debt. (California Code - Sections: 2501, 2581, 2601, 2602, 2621, 2623, 2625, 2641)

Since California is a "Community Property" state, all marital property will be divided in a 50-50 fashion according to the court unless agreed to otherwise by the divorcing spouses. This means that everything that is considered "up for grabs" in the dissolution will be distributed equally to each spouse. Obviously this does not entail splitting a car in half so to speak, but rather each spouse will be rewarded with assets of equal value.

Continue reading "We're Divorcing, Now Who Gets the Toaster?" »

A millionaire landowner asked the Court of Appeal yesterday for permission to appeal against an £8m divorce settlement on the grounds that it was "too much".

The court heard that Erik Maurice Robson, 66, who is selling his stately home, Kiddington Hall, in Oxfordshire, to comply with his former wife's divorce settlement, has seen its value fall during the credit crunch.

Kiddington Hall, which was built in 1673, was bought by Mr Robson's father, Sir Lawrence Robson, founder of the accountancy firm Robson Rhodes in the 1950s.

The grade II listed mansion house sits in gardens laid out in the 18th century by Capability Brown and is one of the finest English country homes to go on sale in recent years.

The appeal court heard that last July, a court awarded Mr Robson's former wife Chloe an £8m gross lump sum - of which about £5m was earmarked to buy a home and a further £2.4m for an income trust.

In a further judgment last July, the court ruled that Kiddington Hall be sold as part of the clean break between the couple.

However, a fall in property values has meant that Mr Robson's freehold interest in the Oxfordshire estate is now worth about £13.18m net - excluding furniture, capital gains tax and sale costs - rather than the £16m figure used by the court last year.

Tim Amos QC, representing Mr Robson, told the appeal court that the £8m divorce settlement was "clearly too much" - particularly as most of the wealth had been inherited from Mr Robson's parents rather than being money made by the couple during their marriage.

He said there was a "need to be more cautious or less free" with money that is "actually nothing to do with either of the parties or their marriage".

He told the three Court of Appeal judges: "I do not suggest you can ring-fence it... but the fact it is inherited from someone else impresses it with a different character."

Judgment was reserved.

The hearing raises a much broader issue concerning what wealthy individuals can do to protect their inherited wealth in big-money marriage break-ups.

Continue reading "Stately home at heart of divorce appeal" »

In some divorce cases, even after the divorce decree is signed, high levels of conflict and animosity remain between the parents. These are the parties who cannot seem to stay off the court's docket and continue to seek official intervention for all kinds of matters even after the case is closed. Unfortunately, legal pleadings, motions and hearings will do nothing to solve the underlying problems.

Where such circumstances exist, the court on its own motion, or on the motion of one the parties may, appoint a parenting coordinator. The parenting coordinator is an individual who serves as a non-judicial referee between the parties and acts as a third party neutral. This concept is similar to mediation. He/She will meet with each parent individually and the children (if age appropriate) before attempting to work with the parties to fashion a solution.

A parenting coordinator is usually trained in family dynamics, mental health, children's issues, adolescent issues, and communications. The coordinator's job is to assist the parties come to an agreement. A parenting coordinator's recommendations are not final or binding until both parties and the court accept the agreement. The costs for a parenting coordinator ranges based on the individual's education and level of experience, but it is certainly less expensive than an endless barrage of motions and attorney's fees.

Continue reading "What is a Parenting Coordinator?" »

The issue of paternity and child support obligations sometimes comes up when a couple divorces. If the father has questions about whether the child really is his, he may request a DNA test to prove he's the biological father. If it turns out that he's not the child's father, there's a chance he may not have to pay child support.

Whether child support will be ordered in such situations will depend on the circumstances of the case and the state in which the child support issue arises. In some states, if a man is the presumed father of the child, then he may be required to pay child support. A man may be presumed to be the father of a child (unless he or the mother proves otherwise to a court) based on the following circumstances:

• The man was married to the mother when the child was conceived or born.
• The man married the mother, but the marriage was invalid for some reason, and the child was conceived or born during the invalid "marriage."
• The man married the mother after the birth and agreed either to have his name on the birth certificate.
• The man signed a document for "Acknowledgement of Paternity."
• The man welcomed the child into his home and claims the child as his own.

Continue reading "Paternity and Child Support" »

Divorce proceedings, known in the Illinois law parlance as a "dissolution of marriage," involve many moving parts. But while opposing divorce attorneys in Chicago quibble over the details of how property is split, matters of child custody often can't wait until the entire case is resolved.

That was the Illinois Supreme Court's rationale behind its recent rule amendment, which allowed parents to appeal child custody issues before the entire case is initially resolved, as explained by the Illinois State Bar Association. The Feb. 26 amendment adds "custody judgment" to the list of "Judgments and Orders Appealable Without Special Finding" under Supreme Court Rule 304.

But instead of getting tripped up over the legal lingo, it helps to just look at the intent of the amendment and what it actually means for divorcing parents with custody disputes.

Circuit Court Judge Moshe Jacobius, who heads the Cook County Domestic Relations Division and is co-chair of the Committee on Child Custody Issues, summarizes the amendment in the state bar article:

"The Supreme Court wanted to expedite appeals of this type so that a child not remain in limbo after the trial court has ruled on custody but still has other issues remaining before it."

Such an appeal still requires the appealing party to seek out special permission from family court, as with other such expedited appeals. A divorce attorney would be best suited to help an appealing party draft this letter of permission, but the Supreme Court Rule 303 governs this process.

The state bar article indicates that this amendment was expected and didn't face opposition. Chief Justice Thomas R. Fitzgerald provided perhaps the best recap of the amendment:

"A child's life doesn't stop and wait for us. These are some of the most important issues that ever come before our judicial system."

Continue reading "Supreme Court Allows For Quicker Child Custody Appeals" »