California Divorce Lawyer Blog

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.

Don't assume you don't have to pay child and/or spousal support just because you were laid off!

Most of here in California are victims of these tough economic times in one way or another. Layoffs and unemployment claims seem to be increasing week after week. If you have been laid off, or if your unemployment benefits have expired, you now face the reality of having to make support payments that were based on your prior level of income, and you may not be able to afford these payments.

What you need to understand is that even if you were laid off, you must continue paying support at the ordered level. You need to immediately request at least a temporary modification from the Court. If you delay, you may very well find yourself falling behind in payments and facing a contempt or collection action by your ex-spouse/other parent. Once the payment due date has occurred, the Court cannot modify the amount payable unless you filed a motion for modification prior to that date. Here's an example:

Mike lives in Monterey, CA and was divorced in Contra Costa County, CA four years ago. He has two daughters and was ordered to pay $750/month in child support, based on his income at the time of $70,000/year. Regrettably, Mike was laid off three months ago and has not made any support payments during that time because he lives only on unemployment benefits. His ex-wife has now brought a Contempt of Court motion against Mike for failure to pay his support, and Mike filed a motion to modify child support in response.

Because Mike waited to seek modification until after he was three months past due, he owes his ex-wife $2,250 ($750 x 3 months). In addition, he may have to pay some of his ex's attorney fees for the cost of bringing the motion. Had Mike filed for a modification of support immediately once he was laid off, the Court would have had the authority to retroactively modify the support payments that were due.

Important Lesson: don't wait until you get behind on your support payments and find them mounting out of control. Take action immediately.

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

The Courts generally don't look too kindly on a parent or spouse who quits work to avoid his/her child support obligation, and the Court has the discretion to impute income in that situation.

The burden to support minor children may not fall entirely on one parent. California Family Code §3900 emphasizes that each parent has an equal responsibility for the support of his/her minor children. Parental obligations under the law are specified clearly in California Family Code §4053: (1) A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life. (2) Both parents are mutually responsible for the support of their children. (3) Each parent should pay for the support of children according to his or her ability. It is rare to find a parent who doesn't have some "ability" to support his or her children.

In Re Marriage of Regnery is the landmark case in California that set the standards for how and when the family court court impute, or attribute, income to a parent regardless of his/her actual income. Just recently, the appellate Courts refined the Regnery standard in what is now the preeminent case regarding imputation of income in California: In Re Marriage of Bardzik.

In order to convince the Court that it needs to impute income to the other parent, you will first need to establish for the Court that the parent has the ability to work, and then that the parent has the opportunity to work. This generally involves looking at his/her education, training, certifications, resume, job and income history, etc., and also proving up job openings in the newspapers or some of the well-known online job resources (Monster, CareerBuilder, etc.). If you meet your burden of showing his/her ability and opportunity to work, including the possible income of those opportunities, then the burden shifts to the other parent to prove up why s/he can't do that work.

It's not a fun process, but it's doable. You may want to discuss this in person with a competent family law attorney to ensure you don't miss out on every opportunity to prove your case.

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

The moveaway issue in California family law has been litigated heavily over the past few years. A proposed move in the residence of a child can be the "change in circumstances" required for the Court to revisit and modify child custody.

A 2004 case (In re Marriage of LaMusga) decided by the California Supreme Court refocused the family courts in the state by ordering that they must make a determination about whether or not a child should move out of the area with one of his/her parents based on what is in his/her "best interests."

In a nutshell, if the parent opposing the moveaway can show the Court that there would be a detriment to the child -- e.g. not in the child's "best interests" -- caused by the moveaway (frequently because that parent is highly involved in the child's life, activities, schooling, etc), then the Court must use its discretion to arrive at a custodial arrangement that is in the child's "best interests." Keep in mind that the detriment issue is a threshold issue -- that is, the opposing parent must establish there will be a detriment to the child(ren) before the Court will step in and block a moveaway. In other words, there is no "automatic" right for a custodial parent to moveaway with a child. While the primary custodial parent is presumed to have the right to moveaway with children, a finding of "detriment" will block that move until the Court can further examine the issue. In a case where both parents are joint custodial parents, arguably no such presumption exists at all.

In looking at the "best interests," the Court has discretion to look at many factors, and will often times appoint an expert child custody evaluator to investigate the matter and report back to the Court. The Court will usually look at the parent-child relationships and examine how they could be best maintained over a distance. The Court will generally also look at how embedded the children are into their local community -- their friends, family members, education & schooling, extracurricular activities & sports, civic organizations, etc. -- to determine whether or not the same opportunities are available in the new location.

If there is no order prohibiting relocation (or restricting a change in the children's residency) in your custodial orders, then the first move is typically to file a motion with the Court (ex-parte motion if the move is imminent) making the best case you can that there would be a detriment to the children caused by the move and requesting that the Court temporarily block the move until it can determine what is in the children's "best interests." Remember that while the Court has the discretion to block the moveaway of the children, it almost never can block your ex from moving away himself.

To get more than just a general overview of moveaway law, your best bet is to consult with an experienced family law attorney as soon as you can so that you clearly understand what the law can and cannot do in your specific situation, and so that you can put together your game plan on how to oppose and stop your ex's relocation with the children.

Good luck!

For more information about child custody and visitation or 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.

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.

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.