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Back in June of 2010, New York became the 50th and last state to pass some form of No-Fault Divorce Legislation, 40 years after that of California.  What with the recent debates over same-sex marriage and, now, polygamy have raised questions about the nature of marriage and how the institution of marriage has evolved over time. Progressives generally favor a more expansive and inclusive definition of marriage, with the institution adapting to changing social conditions. Conservatives warn that there could be negative and unforeseen consequences to these changes, and that therefore we should tread lightly when it comes to modifying such an esteemed human institution.

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However, it is possible that both sides are ignoring a much older and more consequential change to our marriage laws. Since 1969, all the states, one by one, have reformed their family law codes to allow for no-fault divorce. Traditionally, American courts would only grant a divorce after establishing that one party had committed a breach of the marital contract. No-fault divorce, in contrast, is dissolution of marriage that does not require a showing of wrongdoing by either party.

A Brief History of No-fault Divorce

The earliest known examples of no-fault divorces occurred in Russia shortly after the Bolshevik Revolution. The decrees providing for no-fault divorce were seen at the time as revolutionary attempts to deemphasize marriage in the Soviet Union. In the United States, the Sexual Revolution, feminist movement, and anti-establishment sentiment of the 1960s helped place the idea of no-fault divorce on the political agenda.

In 1967, the National Conference of Commissioners on Uniform State Laws was tasked with drafting a uniform marriage and divorce code for consideration by state legislatures. The various drafts of the NCCUSL’s uniform code all liberalized the current divorce laws on the books in most states. This code had no binding impact on state legislatures, but was deeply influential on family law statutes from the time it was first drafted.

Two years after the NCCUSL began meeting, the California state legislature passed the California Family Law Act of 1969. The Act was signed into law by Governor Ronald Reagan on January 1, 1970, and included a provision allowing for dissolution of marriage when one party cited irreconcilable differences. This effectively made California the first state to allow for no-fault divorce and as previously mentioned, 40 years later, in 2010, New York became the last state in the US to pass a no-fault divorce statute.

While there are still some who argue against no-fault divorce, it is now the law of the land in California and the rest of the country. There is no question that it has made divorce easier, particularly for those who lack power or control in their respective marriages. Continue reading →

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The number of women committing adultery has increased significantly according to a recent survey conducted by the National Opinion Research Center challenging the notion that men are more adulterous than their female counterparts. Bloomberg Businessweek published data from the survey. According to the survey, while the percentage of men admitting to infidelity has remained consistent at about 21 percent for the past several years, the number of women admitting to adultery has increased significantly. For example, between 2010 and 2013, the number of women who admitted to cheating on their partners went from almost 15 percent to nearly 40 percent.
Greater economic independence is one factor that has contributed to the rise in infidelity amongst women.
Pepper Schwartz, a sociologist at the University of Washington attributes the rise in the number of women who cheat on their partners to changes in the country’s cultural and economic climate. With higher incomes and greater job prospects than ever before, women can now afford the possible economic consequences of having an affair.
As infidelity becomes more prevalent, it is more likely to come up during divorce proceedings.
As infidelity becomes more common, there is a greater likelihood that former spouses will lodge allegations of adultery against one another during divorce proceedings. For this reason, it is important to understand how such allegations could impact a divorce hearing.

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California is a no fault divorce state.
Adultery was once a grounds for divorce under California law. However, the California Family Law Act of 1969 abolished the need to show fault in order to obtain a divorce. As such, the law moved California to no fault divorce proceedings based on irreconcilable differences or incurable insanity.
Allegations of adultery could still have an impact on the division of marital property as well as, custody arrangements.
However, there are some circumstances where a former spouse’s infidelity may become an issue that the court will want to delve into during a divorce proceeding. For example, if a spouse was using marital assets to carry out and support an extramarital relationship, their former partner may be able to claim reimbursement for those amounts when marital property is being divided. In addition, a spouse’s infidelity may be used to show that they are unfit to receive custody of the couple’s children. This may occur if the cheating spouse exposed their children to inappropriate situations during the course of their affair.
If you are considering filing for divorce you should contact an attorney immediately. This is especially true if infidelity is likely to come up as an allegation during divorce proceedings. An attorney will be able to review the circumstances of your case and provide you with advice and guidance that can help you reach a favorable outcome.
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In most cases, when a couple decides to separate and file for divorce their ownership in real estate acquired during the marriage and the resulting mortgage debt is the largest investment which they must split up. The division of debt is a complex process and requires parties to consider various issues at the same time. This can be a difficult task at any given time and becomes even more taxing when individuals are dealing with the stress of a separation. As such, it is important for married couples that own real estate together and have mortgage debt to consult with an experienced divorce attorney who can guide them through this process. Mortgage Debt.jpg
A party is still liable for their joint mortgage obligation even when a court issues a divorce decree requiring their spouse to pay mortgage payments.
One of the most confusing aspects of a having a joint loan obligation with your spouse is the limitations of a divorce decree requiring your former spouse to maintain jointly owned properties or obligating your former spouse to pay mortgage payments. Unfortunately, a judicial decree of this type during your divorce proceeding does not absolve you from the loan obligation you share with your former spouse. This does not mean that you do not have other recourse against your former spouse if they fail to follow the court’s other. However, those measures will not protect your credit or change your legal obligation to lenders. Loan obligations are binding contacts, the terms of which must be satisfied even after a divorce.
It’s best to end a marriage with as little joint debt as possible.
For this reason, many divorce attorneys advise their clients who are considering filing for divorce to end their marriage with as little joint debt as possible. However, in recent years, the decline of the real estate market has made this a difficult or non-existent option for some.
If selling property is not an option, one spouse may be able to refinance or assume to mortgage debt.
However, this does not mean that you are without options if you are considering filing for divorce and hold a joint loan obligation with your spouse. You and your spouse may agree to refinance the loan in one of your names, removing the other’s liability for the debt. In some cases, your lender may allow you or your spouse to assume the mortgage debt independently. Both of these solutions require at least one spouse to possess the financial means to repay the mortgage debt in its entirety. In addition, refinancing often requires that the property have sufficient equity. However, if one of these options works for you and your spouse, interest in the property can be transferred to reflect the mortgage liability via a quitclaim deed or an interspousal transfer grant deed.

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On May 8, the California Supreme Court heard arguments in a case that will determine whether an individual possesses marital rights, including the right to sue for the wrongful death of a spouse, when they are believe that their marriage is legally sound, but have not taken all the technical steps to ensure that their marriage is recognized under state law.
The couple was not legally married because husband’s divorce was finalized months after their ceremony, but held themselves out as a married couple.
The case involves a Silicon Valley couple who where married in the fall of 2003, before their family and friends in a large church wedding. Prior to the ceremony, the couple secured a marriage license from the state of California. During the course of their marriage, the couple held themselves out as husband and wife. Thumbnail image for Divorce, Annulment or Legal Separation
Four years into the marriage, the husband was killed in a tragic accident while working for a local constriction company. His wife initiated a wrongful death action against her husband’s employer. The employer argued that she did not have the right to sue because the couple was not legally married. This argument was based on the fact that the husband’s divorce from his first wife was not finalized until several months after the couple had tied the knot.
The wife maintains that she believed the marriage to be valid. She cites the couples large wedding, the fact that she took her husband’s last name, and that she helped take care of his two children from the previous marriage. In court documents, she explained that if the couple had known that their marriage was invalid, they would have taken the steps to become legally recognized as a married couple.
An appellate court found that a spouse possesses the legal right to file for wrongful death of their husband, so long as they genuinely believed the marriage was valid; Supreme Court seems likely to agree.
The trial court handling the wrongful death action agreed with the employer and barred the wife from pursuing the wrongful death action. But, the ruling was reversed on appeal. According to the appellate court, the wife was entitled to file the wrongful death action so long as she “honestly and genuinely” believed the marriage was valid. The employer sought a ruling from the State’s Supreme Court. The argue that that appellate court’s reasoning would lead to poor public policy because wouldn’t trouble themselves with ensuring that they have taken all the appropriate steps to become legally married.
During arguments in the case, the Justices seemed reluctant to strip the wife of her legal rights as a married woman. They expressed that taking such a position would punish individuals who acted under “honest and sincere” belief that they were married. In addition, they stated that such a ruling would contradict the putative spouse doctrine, which protects the financial and property interests of an individual who enters a marriage believing it to be valid. According to one justice, the purpose of such a doctrine is to protect the expectations of innocent parties.
The California Supreme Court has 90 days to issue a ruling in this case.

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Termination of Parental Rights and Mental Illness.jpgThe California State Bar Newsletter recently reported a child custody case concerning a parent with a mental illness. In February, a local court decided that “parental rights can be legally terminated when a parent poses a danger to his child, even if the danger results from a treatable mental disability.” This ruling could have significant impact for parents in California who are currently involved in custody disputes.

Implications of California Family Code § 7827 on Mental Disability

In this recent case, a married mother and father adopted a child. Before the parents were married, the father had a diagnosed mental illness but managed his condition with medication, which “allowed him to function normally.” After the parents adopted the child, the father stopped taking his medication, and his “mental condition deteriorated” so substantially that it “seriously impacted his relationship with his wife and child.” In fact, the negative effects of his mental state led his wife to file for a restraining order.

Ultimately, the mother filed a divorce petition, and the court awarded her sole custody of their minor child. In addition, the mother filed a petition to terminate the father’s parental rights because of his mental disability.

Under California Family Code section 7827, a parent’s rights can be terminated when he is classified as “mentally disabled” according to law. In order to be mentally disabled under the statute, the parent must “suffer a mental incapacity or disorder” that leaves him “unable to care for and control the child adequately.” According to the statute, a parent’s mental disability can only lead to the termination of his parental rights when he is both mentally disabled and is “likely to remain so in the foreseeable future.”

The court ruled against the father. In terminating the father’s parental rights, the court determined that the father had a mental disability that left him unable to adequately care for his child. In addition, the court reasoned that his disability was likely to prevent his adequate care for the child in the foreseeable future despite the possibility that he could be treated with medication. In other words, the court found that it was in the best interest of the child to terminate the father’s parental rights.

Do Mentally Disabled Parents Face a Courtroom Bias?

California is one of many states in which mental illness can lead to a loss of custody or the termination of parental rights. According to Mental Health America, on average, when parents with mental illness face custody issues in court, between 70 and 80 percent lose their parental rights. Further studies show that in families where one parent suffers from a mental illness, in more than two-thirds of those cases, the minor child is not being raised by the parent with the mental disability.

Last year, a USA Today article reported that certain barriers still exist for parents with mental illness, and that our legal system “is not adequately protecting the rights of parents” who suffer from certain disabilities. The article cited a report by the National Council on Disability, which indicated that parents with disabilities, both physical and mental, are “more likely to lose custody of their children after divorce,” and that they face substantial difficulties with biases in the courtroom.

Often, caseworkers worry about child abuse and neglect when minor children are being raised by a parent with a serious mental illness. However, certain disability advocates argue that instead of focusing on the “best interest of the child standard” alone, the courts should take into account that support for mentally disabled parents “may be all that’s needed to eliminate risks or lessen problems.”

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One Million.jpgIn October of 2011, former Los Angeles Dodgers owner Frank McCourt and his wife, Jamie McCourt, who served as the Dodgers’ CEO reached a divorce settlement agreement. Pursuant to the terms of the agreement, Jamie McCourt received $131 million tax-free as well as, ownership of several properties.

However, Jamie McCourt recently filed claims alleging that her former spouse committed fraud by misrepresenting the Dodger’s assets. According to court documents, the misrepresentation resulted in her agreeing to a settlement that was nearly $770 million lower than what she was entitled too. She is back in court seeking a larger settlement.

Jamie McCourt states that Frank McCourt provided her with financial documents which indicated that the Dodger’s assets were valued at less than $300 million, when he knew that their true value was much higher. The information provided to Jamie McCourt did not include the value of a future regional sports network, projected to enhance the team’s value by $1 billion.

According to Franck McCourt’s attorney, Jamie McCourt was provided with details regarding plans to build a regional sports network, but that it wasn’t listed as an asset because it was not yet in existence. Frank McCourt’s attorney argues that Jamie McCourt was provided with the Dodger’s most up-to-date financial documents before settlement was reached and that she failed to do her due diligence prior to agreeing to settlement. During trial, Frank McCourt’s attorney stated that there was no evidence to support Jamie McCourt’s claims of fraud.

In late April, Jamie McCourt testified that she was under the impression that she and Frank McCourt were splitting their assets equally. Jamie McCourt stated that she was surprised to learn that the Dodgers were worth more than she was led to believe when the team sold for $2 billion after the couple’s divorce was finalized.

A ruling in this case is not expected until later this summer. However, if the presiding Judge tosses out the divorce settlement, the former couple will resume previous arguments regarding whether the Dodgers were community property under California law or if they solely belonged to Frank McCourt.

Financial Information Frequently Hidden in Divorce
An article published in Forbes magazine late last year revealed that partners routinely hide assets from each other, including during divorce proceedings. According to a study by the National Endowment for Financial Education, 58 percent of spouses report hiding case from their partners and 34 percent admitted to lying about their finances, debt, or earnings.

Misrepresenting information in a Financial Affidavit that is filed with the court in a divorce proceeding is illegal and can result in serious penalties.

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Health Insurance.jpgHealth insurance is a hot topic these days, spurred on by the passage on March 23, 2010, of the Patient Protection and Affordable Care Act (PPACA), more commonly known as Obamacare. The primary purpose of the PPACA is to reduce the number of uninsured Americans while reducing overall medical costs. On June 28, 2012, the United States Supreme Court upheld the constitutionality of the PPACA in the case, National Federation of Independent Business v. Sebelius. With all the recent developments in this area, it is important to know how health insurance coverage plays out in the divorce process.

If both you and your spouse are employed and maintained health insurance coverage through your respective employers, then maintaining that arrangement should be addressed during divorce negotiations and specifically stated in the marital settlement agreement or divorce decree. If, however, you maintain health insurance through your spouse’s employer, once the divorce is finalized, you will no longer be eligible for coverage. Address the issue early on so that you do not end up with a gap in coverage, which could jeopardize your eligibility for health insurance.

There are several options available. If your spouse’s employer has more than 20 employees, then you are eligible to apply for continued health insurance coverage under the federal law known as COBRA (Consolidated Omnibus Reconciliation Act), passed by Congress in 1986 to provide for the continuation of group health coverage that might otherwise be terminated. A divorced spouse may elect COBRA coverage for a maximum of 36 months, but be warned: COBRA is usually more expensive. Under COBRA, you will be responsible for the entire amount of the premium plus two percent (2%) for administrative costs.

If your spouse’s company has fewer than 20 employees, a second option in the state of California is to elect coverage under the California plan know as Cal-COBRA, which is basically an extension of the federal COBRA law for California residents who do not qualify for federal coverage. Cal-COBRA is “a mini COBRA health insurance plan set up by the California government.” See http://www.cobrainsurancedirect.com. You may elect Cal-COBRA for a maximum of 36 months, but it too is expensive. Under the plan, you will be responsible for the entire amount of the premium plus ten percent (10%) for administrative costs. Given the cost and time limit associated with COBRA and Cal-COBRA, you may want to check into private plans, which may be cheaper and more permanent. If you are employed, a third option may be to obtain health insurance coverage through your employer.

If children are involved, it is important to keep in mind their health insurance coverage issues, including which parent will provide coverage and who will pay the co-pays and other out-of-pocket medical expenses. Such issues should be raised during divorce settlement negotiations and made part of the marital settlement agreement or divorce decree.

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Social Media.jpgDivorcing couples face many pitfalls and trials during the process, both in the divorce proceedings and the emotional strife that accompanies it. In the modern age, where seemingly everyone has at least one social network account, it is easy to reconnect with childhood friends, first romances or college roommates. However, social media networks also present difficulties during a divorce where you can see pictures of your spouse looking very friendly with someone new or read his or her status update about going out to dinner with friends when you believed they could not make the children’s school event because of work.

When going through a divorce, you need to use social media very cautiously. In fact, you should assume that every tweet or status update could be used by your spouse against you. Even if you are no longer “friends” with your spouse on Facebook, “followed” by them on Twitter or “connected” to them on LinkedIn, it may still be possible for your spouse to see the information that you post. Even with your privacy settings at the highest level, the information posted may make its way back to your spouse one way or another. Mutual friends, acquaintances or family might be able to access your posts. In addition, the confusing privacy settings on sites like Facebook could lead to your information going beyond the friends you intended. For example, on Facebook, if a friend “likes,” “comments” or “shares” your status, then that person’s friends can often see the status as well.

If you do use social media and are in the midst of a divorce, then you should consider the following:

· If the thought is not too difficult, consider deleting your social media profiles. It may seem like a drastic step, but the difficulty of “rebuilding” your social network is likely much less than the cost of your spouse finding unfortunate information on your social network page or finding emotionally damaging information about your spouse’s life.

· If you cannot bring yourself to delete your social media accounts, then you should at least think twice about posting anything. While you may initially think that it is okay to post a picture of yourself giving a toast at your friend’s wedding, your spouse may argue that it is an example of heavy drinking in front of your children. Such evidence could be used by your spouse to hurt your case for custody, regardless of the truth.

· Go through your friends and followers on all of your social media accounts, carefully considering which connections to keep. You should probably remove access to anyone who you think might share your information with your spouse. It is important to remember that our spouse can subpoena anyone to testify in your divorce or custody proceedings.

· Be careful about changing privacy settings. Facebook, in particular, has a habit of changing privacy settings that could allow your information to become more widely available. Constantly checking your privacy settings can help to prevent any unintentional sharing of information.

· Never, ever, ever share conversations that you had with your attorney. Sharing your attorney’s legal advice could waive the attorney-client privilege, which could allow your private communications with your attorney to be used against you.

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Moving.jpgWhen one parent wants to relocate with the minor child in a custody case, they will usually need either the consent of the other parent, or they will need a court order granting the move away orders request. This issue comes up often when one parent wants to move out-of-state for a new job or because they are getting remarried.

Issues that come up in a move away request are how the move would affect the minor child or children involved, how visitation and/or custody would be affected by the move, the reason for the move, and like all child custody matters, whether it is in the best interest of the child to make the move.

If a parent wants to move, it is not impossible to simply get the other parent to consent to the move. The law usually requires notification to the other parent of the proposed move before a court action is filed, and it is important to offer a reasonable visitation schedule to the other parent, since a move will usually make it more difficult for the other parent to maintain the current visitation schedule.

If the other parent does not consent to the move away request, then you will usually need to file a request with the court to be able to move with the minor child or children, unless a prior order already gives you the right to change residency without the consent of the other parent. In a court hearing, there are some presumptions that favor the parent with primary custody of a child. However, those presumptions can be overcome, as it is important to make a clear case to the court why the move will benefit the minor child or children.

One of the most important factors is which parent has been providing a stable environment for the child. Other important factors are comparing the schools – for example is the new school better for the child than the old school – and also community statistics. A judge is more likely to grant a move away request where the parent is moving somewhere with a lower crime rate and better schools, than the other way around.

An important caveat to remember is that a move away request is not automatic, even if you are the primary custodial parent. A request should be made with plenty of time to spare before the planned move; this is not something to request at the last minute. A court may not allow you to move with the child, which means you could still move, but custody would switch and the child would stay with the other parent.

Also, a move away court dispute can be very costly, so it makes better financial sense for parents to try to work out an arrangement that allows the move but maintains sufficient contact with the other parent. With modern technology, this is much easier, with parents able to video chat with their children over the internet from anywhere in the country, or even the world. Also, often the parent who doesn’t have as much visitation time during the school year after the move could have most of the time during summer and holidays.

Last caveat, do not try to move away just to get an advantage in a custody case. If you aren’t doing something with the child’s best interest in mind, that could really backfire in a custody case.

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Dividing Retirement Accounts.jpgHow does a couple going through a divorce go about dividing retirement accounts in a community property state? California is a “community property” state which has critical implications on how all property is divided in the event of a divorce. Essentially, in states with general legal rules like ours, all property acquired during a marriage or earned while the partners were married is deemed owned by both–it is “marital property.”

This idea seems simple enough for major assets–like house or a car–but what about more unique items, like retirement accounts? As a general rule, in most situations, vested retirement account benefits (those that are already earned) are considered community property and shared during divorce. It is important to understand that this is different than other forms of payments which are not split this way. For example, many government benefits, like worker’s compensation or social security, are not divided up between couples in a divorce.

Retirement Plans

Understanding how retirement accounts might be divided up and used following a divorce requires first appreciating the difference between different plans. Most notably, a retirement plan either has “defined benefits” or “defined contributions.” As the name implies, the defined benefit plan comes with a guaranteed monthly payment (benefit). This is different than a defined contribution plan which does not have a specific payout but is instead based on the contributions that you (the employee) and/or your employer put into the account. In general, defined contribution plans are becoming more and more common, because they come with less locked-in obligations in the long-term and are cheaper for most involved.

Defined Benefit Plans
By far the most common defied benefit plan is the traditional pension. With a pension, in most cases, at retirement age a beneficiary receives a set monthly payout. These may prove complicated in the midst of divorce, because there is not necessarily a set value sitting in some account to split. Yet, in most cases a value of the pension will be ascertained and split to the best of the court’s ability.

Defined Contribution Plans
A 401(k) plan is one of the more common defined contribution plans. Many local residents may have one of these. In most cases this plan is administered by an employer and involves agreement for a certain amount of contributions from both employer and employee each pay period. Federal rules limit contributions to $15,000 per year. In divorce the total amount in the 401(k) can be divided between spouses. However, it is critical to understand how early withdrawal, prior to retirement, results in a tax bill and potential penalties.

A 403(b) plan is like a 401(k) plan but its use is limited to certain entities. Only various governments, nonprofits, ministers, and others can take advantage of this option. Perhaps the most unique feature of these accounts is that there are limits on what investments can be made and even how many investment changes can be made. Rules allow one to contribute slightly more than in a 401(k) for these–up to $17,000 per year.

Finally, a defined contribution plan that most are probably familiar with is an Individual Retirement Account (IRA). IRAs are usually opened with a traditional financial institution, like a bank. Compared to 401(k)s and 403(b) plans there may be more flexibility in accessing these retirement accounts (with a penalty). Like the above plans, during divorce, an IRA account can be drained and split between spouses.

In many cases, retirement benefits are significant, and there is no other option but to take them out and split them. But, there are alternatives. For example, if one wanted to maintain an account intact, it might be possible by offering the other spouse alternative assets to offset the value of the retirement account. It it important to speak with an experienced divorce lawyer for help with these issues.

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