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Articles Posted in Divorce

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In many divorce cases, the parties’ rights and obligations are delineated by a premarital agreement. Premarital agreements are typically enforced unless either party can show just cause for setting aside the agreement. Recently, the Court of Appeals for the Sixth District of California discussed the issue of what constitutes sufficient grounds for rendering a premarital agreement unenforceable due to unconscionability. If you entered into a premarital agreement prior to your marriage and are contemplating a divorce it is essential to speak with a trusted California divorce attorney regarding how the agreement may affect your rights.

Factual and Procedural Background

Reportedly, the husband and the wife, who are both architects, began corresponding in 1995, when the wife lived in Russia, and the husband lived in the United States. Later that year, the wife began working as an architect in Houston. She completed all of her architectural drafting in English. In the winter of 1995, the wife moved to California and became pregnant with the husband’s child. She gave birth to a daughter in September 1996. After the birth of her daughter, the wife wished to remain in the United States.

It is alleged that the couple decided to wed, but the husband stated he wished to enter into a premarital agreement prior to getting married. Specifically, the husband was concerned about having to pay spousal support if he and the wife divorced, and about the wife leaving the country and gaining rights to his property. The husband and the wife met with a paralegal and signed a boilerplate premarital agreement in October 1996. The paralegal advised the couple that the agreement had been drafted by an attorney and had them execute a document acknowledging that she was not giving them legal advice. In part, the agreement stated that in the event of a divorce, neither party would owe the other party spousal support. Continue reading →

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A child custody move-away case occurs when one party makes the decision to relocate outside of the county in which he or she was residing. Usually, move-away cases involve the complex issues that arise when a parent moves beyond a distance that permits for the moving-parent to continue to take the minor child to his or her school. This means that move-away cases typically involve moving to a home beyond 10 miles from the party’s prior residence.

If you are involved in a California Custody Case, you should first be aware of the existence of the Automatic Temporary Restraining Orders (ATROs) that go into effect automatically at the commencement of either a divorce (dissolution of marriage) case and at the outset of a Petition for Child Custody and Visitation Orders. These ATROs go into effect for the Petitioner upon the filing of the case and become effective upon the Respondent(s) following the personal service of the Petition upon the Respondent or upon the filing of a Response to the case by the Respondent. These Restraining Orders can be found on page 2 of the Summons.

The ATRO relating to the relocation of the minor child in a divorce case reads:

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Custody cases often produce custody evaluations and other sources of sensitive information. As such, certain documents may be deemed confidential and both parties are prohibited from disclosing any information in the document. If a party, or his or her attorney, discloses information in a confidential document it can result in adverse consequences.

This was illustrated in a recent case decided by a California appellate court, in which the court imposed sanctions on a wife’s attorney for revealing information contained in a confidential custody evaluation. If you are involved in a custody dispute, it is important to retain an experienced California family law attorney who will act in the best interest of both you and your child.

Facts Regarding the Divorce Actions

The wife had a child with her first husband. They divorced but were engaged in an ongoing custody dispute. The court ordered a custody evaluation and a psychological evaluation. The wife then married her second husband and gave birth to a second child. The second marriage dissolved, but the custody issue was unresolved. The first husband filed an affidavit in support of the second husband in the second action, alleging that the wife engaged in substantial misconduct involving both children.

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In a divorce proceeding, Family Code 2104 tells us what each party must disclose to the other party in order to advance the divorce case to a settlement conference or a trial:

(1) Each party shall serve on the other party a preliminary declaration of disclosure, executed under penalty of perjury on a form prescribed by the Judicial Council.  The commission of perjury on the preliminary declaration of disclosure may be grounds for setting aside the judgment, or any part or parts thereof, pursuant to Chapter 10 (commencing with Section 2120 ), in addition to any and all other remedies, civil or criminal, that otherwise are available under law for the commission of perjury.  The preliminary declaration of disclosure shall include all tax returns filed by the declarant within the two years prior to the date that the party served the declaration.

(2) The preliminary declaration of disclosure shall not be filed with the court, except on court order.  However, the parties shall file proof of service of the preliminary declaration of disclosure with the court.
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It is not uncommon for either party in a divorce or custody proceeding to seek a modification of a court order. The non-moving party is entitled to respond to any request for a modification and can request affirmative relief. The non-moving party is not permitted to request relief that is not an alternative to the relief requested by the moving party, or that does not arise out of the same issues, however, as recently explained in a case arising out of a California Court of Appeals.  If you are in the process of deciding to end your marriage and you must determine a custody arrangement, it is important to retain an experienced California divorce attorney to assist you in protecting your rights.

Factual and Procedural Scenario

Husband and wife were married in November 2000. The wife knew the husband had been convicted of a sex crime, but she did not know the details of the crime, which was that he molested his stepdaughter from the time she was eight to twelve years old. The parties had a daughter in 2007 and separated in 2008. The wife filed for divorce in 2009 and sought custody of the daughter. The marriage was dissolved in 2010. The parties stipulated to share legal custody of the daughter, with the wife having primary physical custody. The father’s physical custody was limited to seven to twelve and a half hours weekly.

It is alleged that the husband filed a petition for modification, seeking a fifty-fifty split of physical custody. The wife filed three pleadings in response, in which she requested attorneys fees and costs associated with responding to the husband’s petition, and asked the court to require the husband’s custody time to be monitored, due to his prior criminal history. The court denied the husband’s request for a modification but granted the wife’s request for monitoring of the husband and for attorney’s fees. The husband appealed.

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If you intend to seek a divorce, it is essential that you retain an attorney who is knowledgeable in drafting settlement agreements, to avoid unknowingly agreeing to terms that may put you in an unfavorable position in the future. Even if an agreement seems appropriate under your current circumstances, it is important to consider how any change in circumstances could affect your obligations and rights under the agreement. The failure to properly allow for modifications in your favor in the future can result in an increase in financial obligations.

A California Court of Appeals recently held that a marital settlement agreement that required a substantial increase in a wife’s support obligation had to be followed despite a material change in circumstances.  If you wish to dissolve your marriage, it is in your best interest to consult a California divorce attorney as soon as possible, to assist you in seeking a settlement agreement that protects your rights now and in the future.

Facts Regarding the Marriage and Separation

Reportedly, husband and wife were married for over 18 years and had two children together. They separated in 2012 and in 2014 dissolved their marriage. A marriage settlement agreement (MSA) and post-judgment stipulation (PJS) were incorporated into the terms of the court’s order dissolving their marriage.  The MSA provided that the wife would pay the husband $850 in monthly spousal support, plus 10% of any income she earned per year in excess of $180,000. The MSA also provided that either party could petition the court to modify the spousal support, after which the court would be obligated to consider the income of the parties at the time of the separation. Additionally, the wife agreed to notify the husband if she changed jobs. The PJS subsequently reduced the amount of support payments owed by wife on a sliding scale.

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Under California law, any property obtained during a marriage is presumed to be community property. The California Family Code allows for parties to change community property to separate property in certain circumstances, however.

Recently, an appeals court in California held that an interspousal transfer grant deed contained the necessary language to constitute a transmutation of the character of marital property. If you intend to seek a divorce, you should meet with an experienced California divorce attorney to assess the nature of any property obtained by you or your spouse during the marriage.

Ownership of the Property in Question

The husband and wife married one another in January 2010. In May 2010, the wife reportedly purchased a condo. The deed from the seller allegedly transferred the condo to the wife as “a married woman as her sole and separate property.” That same month, the husband signed an interspousal transfer grant deed (ITGD) granting the condo to the wife as her sole and separate property. The money used for the down payment on the condo was from the husband’s separate bank account. The husband filed for divorce in August 2011. The wife claimed the condo was her separate property based on the ITGD. The husband insisted the condo should be his separate property, however, because he paid for the down payment.

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