California Divorce Lawyer Blog

Justice Leah Ward Sears, who stepped down from her position of Chief Justice of the Georgia Supreme Court just this past week, has written an interesting commentary condemning what she calls "disposable marriage" and "casual divorce." These are terms frequently used to describe what we in California call "no fault" divorce.

Justice Sears, who has "long held a front row seat to the wreckage left behind by our culture of disposable marriage and casual divorce," writes from a very personal perspective, having recently suffered the loss of her brother who took his own life in the aftermath of his divorce. Justice Sears believes her brother struggled with having been cut off from his children and suffered from the immense pain of his divorce and the limitations placed on his ability to raise his children after divorce.

She writes, "I believe the United States and a host of Western democracies are engaged in an unintended campaign to diminish the importance of marriage and fatherhood. By refusing to do everything we can to stem the rising rate of divorce and unwed childbearing, our country often isolates fathers (and sometimes mothers) from their children and their families."

Whether you agree with Justice Sears' viewpoint or not, it's a worthwhile read and a different take on our California "no fault divorce" than we usually hear from attorneys and judges.

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

While millions of people around the world continue to mourn the death of Michael Jackson, the self-pronounced King of Pop, in Los Angeles, CA last week, a battle is being waged over the distribution of his estate and potentially over guardianship of the superstar's children by Motown diva Diana Ross.

Jackson's will, which was filed today in a Los Angeles County court, leaves his entire estate to a family trust in which he named his own mother, Katherine Jackson, as a beneficiary and as the guardian of his three children. You can read the full story at Fox News.

Notably missing from the will was Jackson's ex-wife, Debbie Rowe, his father and his siblings. Katherine Jackson on Monday was granted temporary guardianship of Jackson's children, and his will makes it expressly clear that he desired for his mother to become their permanent legal guardian. In the alternative, he named Diana Ross as back-up guardian.

Complicating matters further is the fact that there has been a flurry of litigation in the California case because it was unclear at first whether Jackson even had a will or died intestate.

To this point, Rowe (the eldest children's mother) has not stepped forward to assert any parental rights. Jackson's youngest child was carried to term by a surrogate who was not aware that she was carrying the King of Pop's child.

The discussions, arguments and watercooler conversations about Michael Jackson and the impact he made in the world (good and bad) will be debated for many, many years to come. Point in fact, we still debate "Fat Elvis" vs. "Skinny Elvis" to this day.

However, what I suggest that you take from the situation is the importance in California of having a will that concisely, clearly and accurately reflects your wishes for how your children and estate are dealt with after your death. In the Jackson case, it is very likely that Jackson's children will remain with his mother according to his wishes, although if Rowe asserts parental rights in the case there will likely be lengthy litigation before it is resolved.

Just as importantly is that someone in your family or circle of friends knows that you have a will AND knows where to find it. The best-written will is completely useless if it remains anonymously hidden away. Oftentimes, the party (also called the "testator" during life and the "decedent" after death) will keep the will on file with the attorney who drafted the document. More and more, testators are filing their wills with a "will registry." A will registry, such as U.S. Living Will Registry, is a service that keeps a detailed computer record of wills, powers of attorney and so forth and is easily searchable at the time of death. Think of it as a bridal registry for funerals.

Regardless of which method you choose, you should make certain that when the time comes, your will is known and easily located. Otherwise, decisions about what to do with your children and property will be determined entirely by a stranger wearing a black robe who knows very little about you and your family.

For more information about California family law and estate planning issues, please contact attorney Gary D. Sparks.

With the recent news that home foreclosures reached a historic high last month, more and more divorcing Californians are trying to stave off foreclosures and considering whether to apply for mortgage modification.

California has one of the highest default rates for home mortgages in the country, which makes our borrowers ripe targets for many of the scam artists that have popped up over the past few years. As is is typically the case, thousands of people fall victim to mortgage scams before the government becomes aware of the problem and can step in to address it. Fortunately, according to USA Today, both federal and state authorities have recently begun to address the problem and are clamping down on refinancing schemes.

If you find yourself facing an impending balloon payment, interest rate adjustment or even foreclosure, you may still want to consider a mortgage modification. However, it is generally best if you work with an experienced real estate attorney who can walk you through the process and can help you ensure you are working with a legitimate provider and not an unscrupulous thief. While no attorney can guarantee that your home won't ultimately fall victim to foreclosure, you give yourself the best odds when you work with an attorney.

Should you choose to move forward with mortgage modification on your own, pay close attention to the following red flags:

(1) Guarantees to save your home from foreclosure

(5) Promises of making large chunks of your principal "go away"

If you see any of these red flags, or have an uncomfortable feeling that someone is probing you far too extensively, then walk the other direction immediately. We've seen far too many stories of creative identity thieves weaseling their way into borrowers' bank accounts, draining all of the funds, and then disappearing into the night only to attack another unsuspecting victim the next day.

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

Mel Gibson's wife of 29 years, Robyn, has filed for divorce in California, citing irreconcilable differences. According to the Seattle Post-Intelligence, MSNBC, and other media sources, there are no indications that the couple had a prenuptial agreement.

Under California's community property laws, each spouse is entitled to one-half of all assets acquired during a marriage; that is, from the date of marriage until the date the parties separate. According to People Magazine, Gibson has amassed nearly $1 billion since the couple married in 1980. Accordingly, Robyn Gibson is likely entitled to half of that amount, or close to $500 million.

People reports that this amount will dwarf previous record holders Michael Jordan ($168 million), Neil Diamond ($150 million) and Steven Spielberg ($100 million).

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

After being on hiatus for a few months, the California Divorce Lawyer Blog is back with more news, information and resources for your family law matters. In fact, over the past few months, we've received so many questions submitted through our contact form, that I will begin posting many of them as Q&A postings.

Thank you all for your tremendous support over the past year, and I look forward to blawgging with you!

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

By now, everyone knows that California's Proposition 8 has passed. Prop. 8 is a constitutional amendment that bans same-sex marriages in the state, and effectively overturns a ruling by the California Supreme Court that any prohibition on same-sex marriages is unconstitutional under the California Constitution.

Supporters of Prop. 8, which won by a simple majority, overcame the unconstitutionality obstacle by amending the California Constitution. Opponents of Prop. 8 now argue that the measure itself was not permissible, because it "revises" instead of "amends" the constitution. Opponents assert that the majority should not be permitted to take away the rights of the minority by a simple majority vote. (Supporters argue that this was merely an "artificial" right created by the Court in the first place.)

The New York Times reports that the California Supreme Court has now stepped in and announced that it would review the issue of whether voter-approved Proposition 8 was unconstitutional and required legislative approval prior to being submitted to the voters. Arguments are anticipated in the spring, with a decision within 90 days thereafter.

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

I recently ran across this article entitled "Happily Divorced Ever After" at CNN.com, and thought you'd find it interesting:

After her divorce three years ago, Lori Hilliard was filled with rage, pain and sadness -- until a few simple words from Mister Rogers put things into perspective. The
mother of four came across a book that featured a quote from the gentle host of TV's "Mister Rogers' Neighborhood":

"So in all that you do, in all of your life, I wish you the strength and the grace to make the choices which will allow you and your neighbor to become the best of whoever you are."

"When I read that quote, something in my heart just shifted and I knew what my divorce was going to be," says Hilliard, 44, an occupational therapist for children with disabilities.

Today, she and her former husband, Timothy, 43, co-parent their children in a relationship they both say works better than their marriage ever did.

"It has been so powerful for my kids to see a functional relationship out of this. We're making the most of it," she says.

Timothy Hilliard, who lives near Lori in Lehigh, Utah, and communicates constantly with her to juggle the care of their children, including a son with Down syndrome, agrees.

"Our relationship basically runs just the way it did when we were married, except without the sex and the arguing. I can tell you, I don't miss the arguing," the marketing executive says.

For many parents, divorce is an arduous, exhausting ordeal. But it doesn't have to be. Some forge brand-new relationships that look more like friendship and aim to bury the rancor of the past.

Allies or animosity?

New York City matrimonial lawyer Nancy Chemtob says about 80 percent of divorcing couples her firm represents are parents, to whom she stresses the benefits of remaining allies even if they cannot remain married.

"It's really in everyone's best interests," says Chemtob, a founding partner of the firm Chemtob Moss Forman and Talbert. "As much animosity as there is, when they realize their common interest... it's going to make everyone's lives easier."

Of course, "happily divorced ever after" is simply not possible for everyone. Chemtob notes that one spouse's fury over the other's marriage-busting infidelity can prevent harmony from ever taking root. And sometimes a divorcing couple just can't break the discord that has simmered over years or decades.

Bonnie Russell and her ex-husband, Mark Barber, tried to stay friends after their 1990 split, but agree that their efforts failed.

"Initially it was an OK divorce," says Russell, a freelance publicist in her 50s from Del Mar, California, who was married to Barber for about four years. "But when I went for more custody, it turned into a horrible divorce."

"We tried to visit; we tried to be civil," says Barber, a 56-year-old lawyer in San Diego who ended up with full custody of the couple's only child, a daughter, who is now 20. "But this is not a success story."

Trial and error

When custody isn't an issue, ex-spouses often try to maintain a relationship focused on one of the few things they may still agree on: their offspring. Russell Wild, 52, of Allentown, Pennsylvania, says he and his former wife, Susan, 51, never lost sight of their commitment to their two children, ages 15 and 12.

The Wilds, married for 22 years, divorced in 2003 and two years later co-wrote "The Unofficial Guide to Getting a Divorce."

"We had seen many attempts at amicable divorce fail among family and friends," says Russell Wild, 52, a financial planner. "We knew it wasn't going to be easy. Married people fight, divorced people fight . . . you just can't let it take control of you and destroy you."

When it comes to raising their children, Wild and his ex-wife strive for consistency. "(We) are a single government, and the kids know that," says Wild. "We always back each other up."

If Travis Hill's career choice is any indication, such Herculean efforts by divorcing parents can pay off. Hill, 32, believes he became a psychotherapist because of how well his mother and father handled their split 14 years ago.

"They were very good at distinguishing the problems in their relationship from their concerns about us kids," says Hill, of Germantown, Tennessee, who now has a wife and young daughter. After the divorce, Hill's father continued to share Christmas Day with his family, as well as some weekends and other holidays. "Now that grandkids are in the picture, because my parents were able to stay on friendly terms, it's much easier."

Striving for the 'good divorce'

The pros of such an arrangement are numerous, according to Hill: from nurturing children's mental health and emotional resilience to smoothing extended family ties.

But "ultimately, it's still a divorce," he says. "Divorce is not a happy thing ... and you still have to go through the pain of what a divorce is."

Attorney Chemtob offers these tips for exes to help make a "good divorce" possible:

• Put your kids first: "The most important thing to children is that they still have a relationship with both of their parents," she says.

• Don't be petty: Make sure every discussion isn't a rehash of why you got divorced. "It's not about winning a fight anymore."

• Be inclusive: "If you'd include a friend who has nowhere to go on Thanksgiving or birthdays, why not include your ex-spouse?"

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

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.

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.

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 marriage, divorce or other California family law issues, please contact attorney Gary D. Sparks.