California Divorce Lawyer Blog

Division of Retirement Plans in California Divorce and the QDRO

2008-09-26T17:41:45Z

So, your divorce is final, the house has been sold, and you've reached agreement with your former spouse regarding custody, visitation and support of your children together. You're done, pour the champagne and launch the fireworks... or not?

If your Judgment of Dissolution includes the division of retirement and/or pension accounts, you may not be done after all.

Some retirement plans fall under the body of federal law known as the Employee Retirement Income Security Program or ERISA for short (29 U.S.C. Chapter 18). If the retirement plan in question falls under ERISA (also called a "qualified plan"), then your Judgment of Dissolution may not be sufficient to protect the interest of the non-employee spouse.

This is one of those times that it helps to understand the relationship between California law and federal law. The Supremacy Clause of the United States Constitution requires that state laws must yield to federal laws whenever the United States Congress creates laws as permitted by its delegated powers.

Practically what this means with respect to these "qualified" retirement accounts is that you must obtain two orders from the family court: the first order (generally the Judgment of Dissolution) defines the community property rights of each party in that particular retirement account. The second order is called a Qualified Domestic Relations Order, or QDRO (pronounced "quad-row") for short. The QDRO is a specialized order from the family court that complies with all of the requirements in the federal ERISA law to actually make the division of the retirement account happen. QDROs are highly specialized orders that are best prepared by an attorney familiar with ERISA requirements as well as with the retirement plan's own unique requirements.

The consequences of failing to prepare and serve an appropriate QDRO on the retirement plan are serious. The non-employee spouse may lose out on survivor benefits, or may have to pay substantial taxes on his/her retirement distribution, or may under some circumstances lose ALL of his/her interest in the retirement plan. Make sure that you don't simply file your Judgment away in a file cabinet if retirement plans are to be divided, but instead move forward immediately with the preparation of the necessary QDROs to ensure the plans are properly divided between the parties. I generally suggest that the QDROs be prepared at the same time as the Judgment and not left until afterwards.

For more information about the division of retirement accounts, community property and other California family law issues, please contact attorney Gary D. Sparks.

Etiquette for Exes

2008-09-17T18:29:44Z

Having trouble getting along with your Ex? I recently ran across the Etiquette for Exes blog. Turn here for tips and tricks for how to stop fighting, particularly when you and your Ex have children together. I can't personally vouch for the content on the site, but think it provides an interesting perspective on the importance of civility and maintaining your calm when dealing with your Ex, and the harm that can come to your children if you are not able to remain civil.

For more information about co-parenting and other California family law issues, please contact attorney Gary D. Sparks.

Increasing Trend for Men to Receive "Manimony"

2008-09-10T21:53:20Z

According to CNN, changing times and changing attitudes have resulted in a growing trend of men receiving alimony – or spousal support, as it's called in California – in the aftermath of a divorce.

California Family Code §4300 mandates that spouses have a duty to support each other. This duty is gender-blind; that is, husbands have a duty to support their wives, AND wives have a duty to support their husbands. This duty exists during marriage and after separation and divorce, and a host of factors are considered in determining both how long support is payable and how much support is paid.

According to the CNN article, only 4% of women nationwide (according to U.S. Census Bureau statistics) pay spousal support, despite that 33% of higher wage earners in the family are women. Whether this is due to the stigma historically associated with men receiving "manimony" or other social factors can probably be debated endlessly. However, the increasing trend of fathers remaining home and being the primary caregivers for their children has likely led to the increasing trend of men receiving spousal support, according to Jeffrey Leving, an Illinois divorce attorney and author. "It's becoming more socially acceptable for men to be primary parents," he says.

For more information about spousal support and other California family law issues, please contact attorney Gary D. Sparks.

California Divorce and the Family Residence

2008-09-04T02:04:53Z

So what do you do when you're getting a divorce in California and you have a home that is rapidly losing value? Who gets to keep the house? How can you sell it when the home is worth less than what you owe on it? How do you get the home sold as quickly as possible while there still is some equity in it, but your spouse refuses to move out or cooperate with you?

Unfortunately, there are no easy answers to these questions, and the detailed responses necessary to address all of them adequately could take weeks to write. We are obviously in difficult economic times, both here in California and nationally. Property values (except for very expensive, high-end homes) continue to plummet, and more and more clients are faced with the reality that the home they thought had hundreds of thousands of dollars in equity is actually upside down, or close to it. Not to mention those homes facing foreclosure.

As family law attorneys, we are charged with looking at a wide variety of solutions for families facing a brutal economy at the time of their divorce. The family residence may be community property, but what happens if the the house has no equity? What if you want to keep the home because you are convinced the market will recover next year, but your spouse insists that it must be sold? The truth is, the solution that is right for one family may not be right for the next family. On top of that, we have to consider what the mortgage lender(s) will and/or won't be willing to agree to in the aftermath of a divorce. Maybe your case is appropriate for a "deferred sale" agreement, whereby both spouses maintain title to the home but it is agreed that the home will sell at a future date and the proceeds split at that time. Or maybe your spouse is willing to keep the house and the debt while you simply want "out" and to get a fresh start.

In these troubled times, it may be worth a consultation with an experienced family law / divorce attorney who can help you with these questions. Even if you plan on handling your divorce yourself without an attorney, an attorney can help you understand your rights and obligations, offer suggestions to help ease the transition from married back to single life, and provide a range of possible alternatives for what to do with the family home (and the pros and cons of each) that perhaps you hadn't yet considered.

For more information about community property division and other California family law issues, please contact attorney Gary D. Sparks.

California Custody Battle Ends in 15-Years-To-Life Murder Conviction

2008-08-26T00:33:10Z

Linux computer programmer Hans Reiser was sentenced on August 29, 2008 to 15-years-to-life in prison after confessing to the murder of his estranged wife, Nina, during a heated argument over custody of the couple's young children. The two had been embroiled in a contentious divorce case in Oakland, California, until Nina's mysterious disappearance in early September 2006.

According to the San Francisco Chronicle, Reiser turned down the prosecution's pre-trial offer of three years in prison in exchange for his guilty plea to voluntary manslaughter, opting instead for a full trial. That strategy backfired, and after the jury returned a guilty verdict to first-degree murder, Reiser plea-bargained the conviction down to second-degree murder in exchange for his leading police to the makeshift grave where he buried Nina's body and for waiving any rights to an appeal of the conviction.

Today, more and more husbands and fathers complain that they are the victims of fabricated accusations of domestic violence by angry and vindictive spouses or partners who take advantage of California's rather liberal standards for obtaining protective orders. The DVPA, or Domestic Violence Prevention Act [California Family Code §6200 et seq.] is intended to prevent the recurrence of acts of domestic violence and to provide some separation, in terms of both distance and time, between the parties involved sufficient to enable them to resolve the cause(s) of the violence. Men frequently complain that many of the women who apply for restraining orders or emergency custody orders under the DVPA are not seeking protection so much as they are seeking either revenge or some kind of an advantage during the legal proceedings. They argue that the applications for relief are filled with creative fiction as opposed to facts. I myself have had experience with cases like this involving malicious and groundless allegations. And not just by women against men, but also by men against women.

Unfortunately, however, the Reiser case illustrates that domestic violence is and remains a serious problem in California (as well as in other states), despite the allegations of ongoing misuse of the system. Nina Reiser wasn't just harassed or injured; she lost her life, the couple's children lost their mother, and her family lost a daughter.

As legal practitioners, we grapple with how to ferret out those cases where protective orders are warranted versus those that are shams. All else being equal, when two parties in the courtroom appear perfectly calm, reasonable and credible, we sometimes give our judges the nearly impossible task of trying to balance fairness and justice with protecting one of the parties – and maybe even children – from harm.

Yet one thing is clear: until we as a society learn how to deal with and prevent domestic violence more effectively than we do now, we will continue to struggle with this problem. Innocent parties will continue to be accused of horrible actions, vengeful parties will continue to make those accusations, victims will continue to be injured, and people like Nina Reiser will inexcusably and unacceptably continue to die.

For more information about domestic violence prevention and other California family law issues, please contact attorney Gary D. Sparks.

California Divorce Law Requires Immediate, Full and Accurate Disclosure

2008-08-21T18:15:47Z

Divorcing parties in California sometimes have a habit of playing fast and loose with the facts and not properly disclosing information regarding their incomes, expenses, assets and debts to their spouses. Consider this a big warning shot across the bow.

The recent trend by the California courts to be more critical of whether divorcing parties have fully complied with their disclosure obligations makes one principle perfectly clear: when in doubt, disclose. While it is frequently done in other areas of law, the California family courts will not tolerate individuals who try to "hide the eight ball" during dissolution proceedings. And this is true for cases that settle as well as cases that go to trial. A party cannot knowingly and intelligently settle a case when s/he is not fully informed of the facts. Neither can the court render a proper trial decision when the Judge is not fully informed of the facts.

In re Marriage of Feldman, a 2007 appellate case, has suddenly brought the issue of disclosure to the forefront in California divorce proceedings. Mr. Feldman, a successful businessman, failed to disclose to his Wife a number of substantial financial transactions, along with his formation of multiple new companies, despite her repeated requests for the information. The trial court was deeply troubled by Mr. Feldman's lack of candor, and ordered him to pay his Wife $140,000 in attorney fees and $250,000 in sanctions for his failure to disclose the facts.

The Feldman court made it clear that the penalties for failure to disclose can be severe and immediate. The other party does not need to show that s/he has been harmed, nor does s/he have to wait for trial to ask the court to penalize the non-disclosing party.

California Family Code §§2100-2113 define each party's disclosure obligation as a mandatory, affirmative and ongoing duty. In layman's terms, this means that each party must voluntarily provide full, accurate and updated information regarding his/her complete financial condition. A party must disclose every asset and every debt, along with complete details regarding his/her income from all sources and monthly expenses. And, each party must voluntarily update that information anytime there is a material change.

While it may be tempting to consider hiding important financial information from your spouse, the potential consequences for failure to disclose are much more severe than the benefits. It simply is not worth the risk. Remember -- when in doubt, disclose.

For more information about disclosure obligations or other California family law issues, please contact attorney Gary D. Sparks.

California Annulment Erases a Marriage When Fraud Goes To The Heart of the Marital Relationship

2008-08-20T01:53:09Z

In a surprising result, the California Court of Appeal has upheld a lower Court's decision to annul the marriage of a Southern California couple where Husband carried on a sexual relationship with Wife's sister prior to and after marriage. The Court held that Husband committed fraud by purposely deceiving Wife into believing he would be faithful to her, when in fact he did not intend to terminate his relationship with her sister.

So what's the big deal about the Court granting an annulment instead of a divorce? Plenty. An annulment voids the marriage; it simply erases the marriage from existence as if it had never happened in the first place. On the other hand, divorce (or dissolution, as it's officially called) terminates a valid marriage. In other words, the marriage actually did exist, but has now ended.

Under California law, certain legal rights and obligations are triggered when two parties marry. The most common examples are community property rights and spousal support (formerly called alimony). Once a couple marries, all property acquired during the course of the marriage is presumed to be community property, meaning that each party has an undivided 1/2 interest in that property (there are exceptions, of course). Also, once a couple marries, each spouse has an obligation to provide support for the other, both during marriage as well as after divorce. Thus, a career working spouse may have the obligation to provide financial support to a stay-at-home spouse or parent for anywhere from a few months to an indefinite number of years after divorce.

However, in the case of an annulment, neither community property rights nor spousal support obligations ever arise, because there never was a valid marriage. Consequently, parties must then seek relief through the conventional civil courts based on, for example, real property or contract law.

Family Code §2210 permits the Court to annul a marriage when the consent of a spouse was obtained by fraud. Additionally, Family Code §720 specifies that the marriage contract includes obligations of "mutual respect, fidelity, and support." The Courts have previously defined the fraud necessary for annulment as deceit that goes to the very essence of the marital relation. In the above case, the appellate Court went so far as to hold that Husband's intent to carry on the sexual relationship with Wife's sister was a fraudulent and intentional breach of his contractual obligation of fidelity, and that Wife was therefore entitled to a Judgment of Annulment.

For more information about divorce, annulment or other California family law issues, please contact attorney Gary D. Sparks.

California No-Fault Divorce Has Its Advantages

2008-08-15T21:09:52Z

Thank goodness California doesn't require a showing of marital fault to grant a divorce the way that New York state does. You need only look at the now-infamous YouTube divorce case to understand why.

For those of you who missed it, British actress Tricia Walsh-Smith lashed out at her Broadway-mogul husband Philip Smith in a tearful and furious video that she posted on YouTube. In her video, Mrs. Smith trashed her husband and his family, made embarrassing claims regarding the couple's intimate life, and even called his office while filming to repeat those claims to his stunned assistant.

Apparently, Mr. Smith wanted to divorce his wife and enforce a prenuptial agreement whereby he would pay her a large sum of money and she would have to move out of their luxury New York City condominium. This didn't sit real well with Mrs. Smith, who contested the divorce on the grounds that there was no marital fault to justify the divorce.

In New York, there must be marital fault for the Court to grant a divorce. If there is no fault, the couple must live separate and apart for a year, at which time they can apply for a no-fault divorce. In marital fault states, Courts can divide the couple's property unequally to compensate the party deemed not to be at fault. Or, Courts can refuse to grant the divorce, which can have the consequence of negating a prenuptial agreement.

California, on the other hand, requires no showing of fault whatsoever. In fact, the Family Code specifically forbids the introduction of any evidence intended to show fault. As long as one of the parties believes that the marriage is irreparably broken, and that irreconcilable differences exist that prevent the marriage from being saved, the family Court will grant the divorce. And, the Court will equitably divide the couple's community property between them. As a result, there are no Court battles about who is at fault or who should get more property because of that fault.

Oh, and in case you're wondering... the Manhattan judge hearing the Smiths' divorce case blasted Mrs. Smith for conducting what he called a "calculated and callous campaign to embarrass and humiliate her husband." He then granted Mr. Smith's request for the divorce on the grounds of cruel and unusual treatment. You can read more about the story at CNN or at Reuters.

For more information about no-fault divorce or other California family law issues, please contact attorney Gary D. Sparks.

Online Self-Help Available for California Divorce, Custody, Support and Other Family Law Matters

2008-08-14T09:00:00Z

Are you a self-represented party getting ready to begin the process of divorce in California? Or a single parent seeking child support from your children's other parent? Do you have an attorney who's not speaking to you but instead is speaking at you, and you're overwhelmed and lost in the process?

The good news is that there are plenty of self-help and information resources available on the Internet. The bad news is that the resources on the Internet are not always reliable nor accurate. Pay particular attention to the source of any information you obtain online. Amateur attorneys are everywhere, and you have to sort out the reliable information from the hyperbole.

Two of the best starting places are the self-help pages of the California Courts and the consumer information pages of the California Bar Association. If you're so inclined, you can even browse the entire California Family Code.

The California Department of Child Support Services has a very informative site for both parents, compete with an online child support calculator.

LawHelpCalifornia is a site dedicated to helping low-income families who need LegalAid or other help find the resources you need.

Finally, for families with children who are already divorced, separated or living apart, take a look at Our Family Wizard. While this is not a free service (it's a fee-based, subscription service), it provides families with an invaluable set of tools for managing shared communications, schedules and other or other information necessary for successful co-parenting relationships. In case you're wondering, I have no interest nor relationship whatsoever with the service.

Over the coming weeks and months, I plan to post more information about additional self-help resources. Bookmark this blog; or better yet, subscribe to one of the newsfeeds that are listed along the left side of your browser window.

For more information about divorce, child support, custody and visitation, or other California family law issues, please contact attorney Gary D. Sparks.

California Couple Files for First Same-Sex Divorce

2008-08-13T19:49:51Z

It was bound to happen sooner or later. It happened sooner.

Theresa Ramirez and Adelita Guajardo, a gay couple who were married in Fresno County on June 27, 2008, have filed for divorce. Ramirez and Guajardo filed for divorce on June 30, just three days after being married, and appear to be the state's first same-sex couple to file for divorce under California's recently expanded marriage laws. The story appears in the Sacramento Bee.

On May 15, 2008, the California Supreme Court struck down the state's ban on same-sex marriages, holding that marriage is a fundamental right under the California Constitution [In re Marriage Cases]. The Court ordered county clerks to begin issuing marriage licenses to same-sex couples starting June 16, 2008. Regardless of how you feel about the issue, and I recognize that feelings run deeply on both sides, same-sex marriage is now a fundamental right in the State of California. Within the state, same-sex couples are now afforded the same rights and opportunities as heterosexual couples. Likewise, they are also burdened with the same obligations.

At the time of this posting, only Massachusetts and California recognize same-sex marriages, while other states (notably Vermont) offer civil unions that attempt to offer the same rights as marriage but under a different name. The federal government, however, specifically refuses to recognize same-sex marriage. There is an interesting commentary on the issue at FindLaw.

Opponents of the Supreme Court's decision have qualified "Proposition 8" for the November 2008 ballot. Proposition 8 is an attempt to amend the California Constitution to specifically exclude the right of same-sex couples to marry, thereby effectively circumventing the Supreme Court's decision. Proponents of Proposition 8 argue that the ballot measure is about "preserving marriage" and reversing the decision of "activist judges," and that it is not an attack on the gay lifestyle. Those opposed to the measure respond that government shouldn't be in the business of deciding who can and who can't be married, and that the issue is really about "equality, freedom and fairness, for all." More information is available from the California Secretary of State.

Ultimately, voters in the State of California will make the decision on whether they feel a ban on same-sex marriage rises to the level of a Constitutional amendment.

For more information about same-sex marriage and divorce, or other California family law issues, please contact attorney Gary D. Sparks.