I have seen an increasing number of my clients express concern about the family pets and who will get them. I recently had one case that involved four horses and six purebred dogs. The issue of who would get the animals consumed a large portion of the negotiations (and legal costs) before we reached final settlement. While there have been some strides regarding animal welfare and animal rights (restraining orders now call for protection of the family pets), there has not been much attention placed on the role of family pets in the family structure and how to distribute them when it comes to divorce. The following articles help identify the problem; possible solutions and the law coming out of the California Court of Appeals by which we can start to craft some creative solutions that address the issue of what happens to the family pet when there is a dissolution.
The San Francisco Bar Association recently published an article that may have suprised some. While many people have the understanding that the date of separation is the magic date that clearly separates what is characterized as ones community property (property acquired during marriage that is is divided equally with their ex) and what is ones separate property (property acquired after date of separation that is solely theirs) many do not realize that even after-date-of-separation monies may be considered community property under some circumstances.
If a party's earnings after separation are due to, or arise from, efforts during the marriage, than those monies may be characterized as community property. The law essentially is recongnizing that ones efforts during marriage may have an affect of deferred compensation to which the other party is entitled. Although not all of us are Hollywood rising stars like Pablo Schreiber, in the article below, this caveat in the law may still have an affect on those who earn bonuses or stocks, for example. Below is the article by Ariel Sosna and Sarah Van Voorhis:
Pablo Schreiber, the newly-recognizable former star of “Orange is the New Black” due to his distinctive mustache that earned him the nickname “Pornstache,” has learned that the timing of his new-found success will also benefit his ex-wife, despite the end of their six year marriage. Currently starring in the new HBO series “The Brink,” Schreiber previously was best known for being the brother of Liev Schreiber and a character actor in shows like “The Wire.” His career took off when he landed the role of sadistic Officer Mendez in “Orange is the New Black,” for which he was nominated for an Emmy Award. Pursuant to their divorce decree, his ex-wife Jessica was granted one-half of his earnings and residuals from that hit show as well as the hit shows “Weeds” and “Law and Order: SVU.” Despite the fact that Schreiber will not be receiving all of the earnings and residuals from these shows until after the parties’ date of separation (at which time earnings are presumed separate property pursuant to Family Code §771), earnings from an artistic work are characterized based on the underlying work itself. If the artistic work is a product of the creator’s efforts during the marriage, the earnings from that work are community property. See Marriage of Worth (1987) 195 CA3d 768. In Worth, one-half of Husband’s copyrights related to trivia books that he wrote during marriage were confirmed to Wife in the divorce. When two years later, Husband sued “Trivial Pursuit” for copyright infringement and obtained a judgment, Wife claimed she was entitled to half. The Court of Appeal agreed, holding that the copyrights were obtained during the marriage and therefore the judgment from the copyright infringement was also community property. Similarly in Marriage of Zaentz (1990) 218 CA3d 154, movie producer Saul Zaentz (producer of “One Flew Over the Cuckoo’s Nest,” “Amadeus” and “The English Patient”), argued that because “Amadeus” was not completed when he and his wife separated, it was not community property. The Court of Appeal held “[w]hether or not the movie was completed and receiving income at the time of separation, the time and artistic energies expended occurred in some appreciable degree during the marriage. Husband devoted the better part of two years during the marriage working only on the production of ‘Amadeus’. Thus, the community would be entitled to at least an equitable portion of the income generated as a result thereof.” Id. at p. 164. Schreiber is obviously a talented actor who will likely have continued success. His ex-wife may have had something to do with his jump to stardom (if not his mustache), and for this, she will benefit.
Read More at blog.sfbar.org/2015/09/25/orange-might-be-the-new-green-for-actors-soon-to-be-ex-wife/ © Legal by the Bay
Headlines announcing celebrity divorces cover the gossip magazines. And this has been a popular year for divorce in Hollywood – Ben and Jennifer, Blake and Miranda, Gwen and Gavin, and Halle and Olivier, to name just a few. While such news may only be fit for mindless gossip magazines, celebrity divorces surprisingly offer some insight into divorce legal proceedings, even for those without celebrity status. For example, Barry Bonds divorce in 1994 led to a change in law on governing pre-nuptual agreements.
The divorce of Brian Austin Green, of 90210 fame, from Megan Fox brings to light a not uncommon question we grapple with in our cases. Who gets the proceeds from a personal injury award? Green and Fox were in car accident in 2014, while still married. Green now claims that he suffers from vertigo as a result of the accident and is now unable to work. This, in part, accounts for the couple’s large disparity in income, prompting Green’s request for temporary spousal support. The question arises, if Green is awarded a personal injury award as a result of the accident, who retains the proceeds? Typically, under Family Code section 2603(b), the Party who suffered the injury retains the proceeds. However, in the interest of justice, the Court may award the non-injured Party up to one-half of the award. What merits “in the interest of justice” is decided on a case by case basis. To discuss the details of your case, speak with a qualified family law attorney at the Law offices of Maria E. Crabtree.
For the full article by Ms. Sosna and Ms. Van Voohries, see http://blog.sfbar.org/2015/11/06/divorce-is-the-peach-pits-for-former-beverly-hills-90210-actor/
The Bar Association of San Francisco recently published a very interesting article which nicely sums up summary dissolution, including how to qualify and what the process entails:
Michael Welch is probably best known for his role as the high school student with a crush on lead character, Bella, in the “Twilight” series franchise. Recently, Welch made news for choosing Valentine’s Day as the day to file for divorce. However, the divorce is interesting for another reason. TMZ reported that Welch and his wife, Marissa Lefton, “jointly filed” for divorce. A joint filing means that Welch and Lefton made use of the summary dissolution option in California. This option allows couples without children, married for a short time, with few assets and few debts to simplify the divorce process.
Welch’s filing will probably be the only celebrity summary dissolution this column will ever get to present because few celebrities will qualify to use the process. The requirements for a summary dissolution are laid out right on the Judicial Council forms making the process that much simpler to do without an attorney. In order to qualify for a summary dissolution, the parties must have been married for less than five years with no children of the marriage; neither person may own any real property; neither the community property nor separate property worth cannot exceed $38,000; and the total community debt cannot be more than $6,000. Vehicles are excluded from these calculations. Finally, both parties must be willing to waive their rights to spousal support.
If the parties meet the requirements for a summary dissolution, they must jointly complete and submit the petition and judgment forms all at the same time. The court holds on to the judgment forms for the requisite six month waiting period and then returns the filed, signed forms and the parties are divorced. There is a catch. During the six month waiting period, either party just has to file one form requesting to end the summary dissolution process and the process ends putting the parties back at square one.
Welch and Lefton married in 2008 and claim they separated in 2011, for a total length of marriage of around three years. They have no children. According to TMZ, they marked the box indicating that they have no community property (which is difficult to imagine given a three year marriage and three “Twilight” movies during that time). Since the two have submitted their forms, all they have to do is wait out the six months and hope that neither one changes his or her mind during the interim.
While summary dissolution is rare, it can be a great option for couples who fall within the guidelines laid out on Judicial Council Form FL-800. For those who do not, I recommend divorcing couples contact a divorce attorney to assess how they may be able to assist in making the dissolution process as amicable and quick as possible. There are several options available to those who do not qualify for summary dissolution, including mediating agreements or proceeding by default with written agreement.
For the full article by Ms. Sosna and Ms. Van Voohries, see: http://www.sfbar.org/basf-bulletin/2013/april2013/family-law-corner-apr2013.aspx
What is the date of separation?
It is common for parties to the dissolution to proffer different dates of separation, depending on the facts of their specific matter. The Court stated in In Re Marriage Hardin, 38 Cal.App.4th 448 (1995), “The question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final. The best evidence of this is their words and actions.”
The Court in saying, in essence, that the parties need to have a subjective understanding that their marriage is over, manifested by outward actions. These actions can include living in two separate residences (In Re Marriage of Norviel, 102 Cal.App.4th 1152 (2002)), or not applying for joint credit (In re Marriage of von der Nuell, 23 Cal.App.4th 730 (1994)).
Why does the date of separation matter?
In dissolution proceedings, the date of separation can be a hotly contested issue, as seen through the very public divorce of Nicole Kidman and Tom Cruise, who battled over the exact date of separation at length. Some may wonder if the date of separation is irrelevant to them, or why it matters. There are two main reasons why the date of separation matters in dissolution: community property and spousal support.
Community Property: Property acquired before the date of separation is considered community property, and property acquired after the date of separation is considered separate property. Community property is defined in the California Family Code section 770 as “all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property." Separate property, on the other hand, is defined as “[t]he earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse." Applying California law to a marriage situation, it is easy to see that while the parties are married, all the property acquired by the married person (with some exceptions stated elsewhere in the code) is community property and that the community property rights stop accruing once the parties have separated. Community property is considered owned equally by both parties and it is generally divided 50/50 in a divorce, while separate property is awarded 100% to the party who owns/earns it.
Spousal Support: Under Family Code §4336, “the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage…where the marriage is of long duration” and a marriage of long duration is defined as “a marriage of 10 years or more.” In contrast, for a marriage of less than ten years duration, Family Code §4320(l) states that support “generally shall be one-half the length of the marriage.” The distinction between marriages of short or long duration provides incentive for divorcing couples to pay close attention to the exact length of marriage if it is near the ten year mark. It is important to remember, however, that the Court will take factors other than the length of marriage into account when awarding spousal support, including ability to work, age, and the general ability of the spouse to support his or her self. See In re Marriage of Ackerman (2006) 146 Cal.App.4th 191.
The Los Angeles Times reported in November 1999 about the perils of not truthfully disclosing financial information in dissolution proceedings. The article highlights the story of a woman who hid her lottery winnings from her husband and got away with it until a misdirected letter gave her secret away. The article states:
‘ During his 25 years of marriage, Thomas Rossi never saw a marriage counselor, never strayed and never doubted a relationship so close that he shared an electric toothbrush with his wife, he said.
Then Denise Rossi shocked him by demanding a divorce. And she wanted it in a hurry.
Now he knows why: On Dec. 28, 1996--just 11 days before she filed for divorce--Denise Rossi won $1.3 million in the California Lottery.
She told no one in her divorce case, and Monday her secret caught up with her. A Los Angeles family court judge ruled that she had violated state asset disclosure laws and awarded her lottery winnings to her ex-husband. Every penny.
Superior Court Judge Richard Denner determined that she acted out of fraud or malice. He based his decision on a deposition in which Denise Rossi admitted that she concealed her winnings because she didn't want her ex-husband "getting his hands on" them.
"Moral of story: It pays to be honest from the beginning," said Marc Lerner, attorney for the 65-year-old jilted husband.
Lerner said tears rolled from his client's eyes when Denner announced his ruling in court. For her part, Denise Rossi, 49, said she was stunned and is contemplating her next legal move.
"Yes, there will be an appeal," said her attorney, Connolly K. Oyler of Santa Monica. He called the judge's ruling "very punitive."
But Thomas Rossi's lawyers say they are hearing it described another way: karma.
"Maybe people will think twice about hiding assets during a dissolution," said Lerner, of Brentwood.
Thomas Rossi could not be reached for comment Tuesday, but he weaves a compelling tale in his court papers. Before their divorce--and the fateful Lotto windfall--the Rossis were "a couple of homebodies" from the Westside who did everything together, he said.
"We shared the same bathroom, and we even shared the same electric toothbrush," he said in court papers.
Denise, however, tells a different story in her filings and an interview Tuesday. She said she had been unhappy for many years and was looking for a way out. He was always broke, and she was always working, she said.
Her chance came when she and five co-workers in a now-defunct clothing design firm pooled resources to play the lottery and hit the jackpot, sharing $6.6 million, she said.
"I'd wanted to get out of this relationship for years," she said in a telephone interview. She credits luck for her lottery windfall and blames her ignorance of the law for her failure to disclose the winnings.
She had her husband served with divorce papers at the little West Hollywood shop where he developed film and shot portraits of aspiring actors.
His business folded, and he declared bankruptcy in 1998. He went to work part time at a chain photo store.
Then fate struck. More than two years after the divorce, a misdirected piece of mail landed in Thomas Rossi's mailbox. It was a solicitation addressed to his ex-wife from a company that pays lump sums for lottery winnings and big legal awards.
The May 7 letter from Statewide Funding said, in part, that the company had "helped hundreds of lottery winners like you around the country receive a lump sum payment for the present value of their future annual lottery payments."
What lottery payments?
"I think he scratched his head for a while, saying: 'What? This can't be,' " attorney Lerner said.
The California State Lottery Commission confirmed in July that Rossi's ex-wife had won $1,336,000--payable in 20 annual installments of $66,800.
Thomas Rossi learned that Denise went so far as to have the lottery checks sent to her mother's address in Pleasant Hill in Northern California.
He obtained a court injunction a few days later. He said his shaky finances in the aftermath of the divorce made his former wife's secret "even more despicable." Had she disclosed the winnings, he would have received half under California's community property laws.
Fighting to hold on to her winnings, Denise Rossi told the court that the lottery ticket had been a gift from a co-worker. The judge didn't buy it.
Oyler, her attorney, said he might have had a chance during the divorce to help her keep the winnings--if she had only told him about them at the time.
"I could have argued successfully that it was her separate property," he said. "Or we could have argued and we would have reached some adjustment. But the judge got mad and gave it all to him." ‘
This particular tale is over a decade old, but its lesson still rings true today. California Family Code Section 2100(c) provides, in part, that parties to dissolution must provide “full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest … regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties.” If parties do not disclose their assets, and their dishonesty is uncovered, judges may award the entire asset or winnings to the innocent spouse. This form of punishment is not reserved for litigated dissolutions, and may be exercised in legal separations and even in mediation cases. In the case of the Rossi’s, Denise’s desire to keep her winnings led to a jackpot for her ex-husband and a vivid lesson to other divorcing couples to disclose their assets truthfully and thoroughly to avoid harsh punishment from the courts. As attorney Marc Lerner stated, it pays to be honest from the beginning.
The Bar Association of San Francisco recently published an article titled Who’s Your Daddy regarding the legal woes of celebrities Kim Kardashian, Kris Humphies, and Kanye West. Attorneys Ariel Sosna and Sarah Van Voorhis analyze the presumptions and implications of Kim and Kris’ ongoing battle over their 72-day marriage, and the effects it may have on Kim and Kanye’s child. The article states:
' Since the news broke about Baby Kimye (the unborn child of Kim Kardashian and Kanye West), gossip websites like TMZ have been reporting that under California law, Kim’s estranged husband Kris Humphries is the presumed father. Headlines like “Kris Humphries—And the Presumption is…He’s the Daddy!” suggest that because Kim and Kris are still married, Kris will be the legal father to Baby Kimye. In reality, a legal presumption of paternity only applies if Kim is still married to Kris when Baby Kimye is born, or if Baby Kimye is born within 300 days after the marriage is terminated by death, annulment, invalidity, or divorce (Family Code Section 7611(a)). It is likely that Baby Kimye will be born in time to have this legal presumption apply. Baby Kimye is due in June of this year, and Kim and Kris’ annulment trial has not even been calendared—trial setting is scheduled for February 15, 2013. Unless the trial happens quickly after trial setting, Kim, Kris and Kanye will have some legal hurdles to deal with when Baby Kimye is born.
However, assuming they are still married, Kris will not be the “conclusive” presumed father under Family Code Section 7540, which requires the parties to not only be married but also cohabitating at the time of the child’s birth. Under Family Code Section 7611(a), however, there would be a “rebuttable” presumption that Kris is the legal father of Baby Kimye, assuming Kanye takes no action to make himself the father, such as being named the father on the birth certificate and/or signing a voluntary declaration of paternity. This seems unlikely.
This begs the question: if Kim filed for divorce in October 2011, why are Kim and Kris still married? As Kim’s lawyer stated to a Los Angeles County Superior Court Judge, Kim is “handcuffed to Kris Humphries,” because Kris has reportedly delayed setting a trial for his request for an annulment. In response to Kim’s petition for a divorce back in 2011, Kris requested an annulment based upon fraud.
He has reportedly spent all of 2012 propounding discovery, including taking the depositions of Kanye West and Kris Jenner, Kim’s mother. If Kris Humphries loses the annulment trial, the parties will then have to proceed with a divorce. It is highly likely that Kim and Kris will still be married when Baby Kimye is born—stay tuned! '
The likelihood that Kanye will forego signing the birth certificate is slim, considering their pregnancy is one which both parents are discussing very publicly, and is one of the most talked about events of 2013. However, reality TV never ceases to amaze, so we will all have to keep watch and see what 2013 brings for the celebrity trio.
California Family Code Section 4055 provides a statewide uniform guideline, or formula, for determining child support obligations. Among other things, this formula takes into account each parents actual income, and the level or responsibility for the child (that is, the percentage of time the parent spends with the child). If the parents have similar incomes, the parent who spends more time with the child will usually be the one to receive the support, whereas the parent who spends less time with the child will usually be the one to pay support. Similarly, if the amount of time spent with the child is equal, but one the incomes are vastly different, the higher wage earner will usually be the one obligated to pay support to the lower wage earner.
The formula, of course, is much more complex than the situations stated above and takes into account other factors. These other factors may include: number of children, federal and state tax filing status, new-spouse income, spousal support obligations from other marriages, the cost of raising children from another relationship, mandatory retirement contributions, health care premiums, etc.
The California Department of Child Support Services offers a free guideline calculator for those looking for an estimate of what their support obligation or award may be. The calculator may be found at: http://www.childsup.ca.gov/Resources/CalculateChildSupport.aspx
This is a very common question in a family law action where a child, or children, are involved, and it is important to know that custody and visitation are not interchangeable terms, but are instead two legally different things.
Child visitation refers to parenting time. That is, the amount of time one parent spends with a child. When one speaks of a child visitation schedule or arrangement, they are referring to what days, times, and with what frequency a parent is going to spend with a child.
Child Custody can really be broken down into two different types: "legal" custody, and "physical" custody.
Legal Custody vs. Physical Custody:
Legal custody refers to the right of a parent to make decisions regarding a child's health, education, and welfare. For example, decisions about what school a child will attend, what doctors/dentists/therapists/psychologists a child will see, what extracurricular activities a child will engage in, what religion a child will study and practice, etc.
Physical custody on the other hand refers to a parents right to have a child live with him or her.
Sole Custody vs. Joint Custody
Legal and physical custody can each further be broken down into two forms, either "sole," or "joint," custody. Some may have heard of terms like "primary custody" or "primary custodial parent." Terms like these are legal fallacies because they have no legal meaning or significance. Terms like these are usually used to make one parent feel better about not having "joint" legal, or "joint" physical, custody. However, in reality only "sole" or "joint" custody have any legal significance and therefore implications.
If one has "sole" legal custody, it means he or she can make unilateral decisions regarding the child's health, education, and welfare. If parents share "joint" legal custody, it means that they must confer with one another in making decisions regarding the health, education, and welfare of a child.
If one has "sole" physical custody of a child, it means that parent has a right to have the child live with them, and, sometimes more importantly, it also means that parent has the presumptive right to move away with a child. In other words, if a parent has sole physical custody of a child and wants to move to a different county/city/state, it is the other parent that bears the burden of presenting evidence of why the Court should not allow the parent with sole physical custody to take the child when they move. If on the other hand, parents share "joint" physical custody, it usually means the child spends relatively equal amounts of time with both parents; and if one parent wants to move and take the child with them, the parent requesting the move would bear the burden of presenting evidence to the Court as to why they should be allowed to take the child with them when they move.
Any combination of the above custody arrangements is possible. That is, one parent could have sole physical custody of the child/ren, yet share joint legal custody, or vice versa. It is important that parents work together to create a custody arrangement, and a visitation schedule, that best suits the needs of their child/ren and their family.
In California, there are two residency requirements that must be met before one may file a Petition for dissolution of marriage or "divorce." First, one of the parties must have been a resident of the state for at least six months; and second, one of the parties must have been a resident of the county in which they are filing for at least three months immediately preceding the filing of the Petition for dissolution of marriage. If either one of the parties meets these requirements, then either party can file a Petition for dissolution.
What if you recently moved to California, or the county, and don't yet meet the requirements but still want to start the process? One could first file a Petition for Legal Separation and then once one met the residency requirements for a dissolution of marriage, one could then amend their Petition for Legal Separation to a Petition for Dissolution of Marriage. However, the new Amended Petition would have to again be served on the other party.
Maria E. Crabtree, Esq.