A recent case from the Third District Court of Appeal addressed an interesting question. If a marital settlement agreement called for a wife to receive $475 monthly as her community portion of her ex-husband’s military retirement pay, what happens if the husband elects to receive a form of military disability compensation (which is typically separate property) instead of his retirement (which is community property)? In this case, the court concluded that the wife was entitled to her $475 per month, regardless of what the husband elected. The payment represented what would have been her portion of the retirement pay, and she did not lose her right to receive that money simply because the husband made a voluntary and unilateral choice not to receive that retirement.
Under established California law, family courts are authorized to divide community (or marital) property between the divorcing spouses. Such property may include any number of items, including the family home, investments, retirement benefits, and any other assets accumulated during the marriage. Not included in this division are items that have been identified or characterized as separate property, belonging to each spouse independently. Distinguishing between community and separate property assets can have a tremendous impact on the outcome of a divorce proceeding. In order to protect your property rights, you are encouraged to contact a local San Diego family law attorney who has extensive experience representing parties in divorce proceedings.
In some cases, a couple’s marital separation agreement (or “MSA”) will address their individual rights to property after the divorce. It is important to pay close attention to such a division, since the language of the MSA can have the effect of foreclosing a court’s jurisdiction over any items identified as separate property. In a recent California case, the wife sought to enforce the MSA (among other requests for relief) as it related to various corporate claims. In this case, the parties were married in 1996 and separated in 2009, and the court entered a judgment of dissolution in 2010 as to status only. In 2011, the court further issued a judgment on certain remaining issues, incorporating the parties’ MSA.
In many divorce cases, the separating couple anticipates and appreciates the benefits of reaching a mutually agreeable marital settlement agreement (“MSA” or “Agreement”). The terms of the agreement will vary depending on the circumstances, but most often they will cover issues such as the division of community property, child and/or spousal support, child custody, and other relevant matters. Essentially, the MSA is a contract and is treated as such by the family court. In order to ensure that the Agreement contains provisions that will protect your financial rights at the conclusion of your marriage, and also hold up in court, you are encouraged to contact an experienced family law attorney as early as possible in the process.
In a recent California case, Madrid v. Kolbisen, et al., the parties were divorced in 2011. Their marital settlement agreement contained a provision indicating that each party would continue to retain a half-interest in their family business after the divorce. The MSA also granted the family court “continuing jurisdiction” to monitor the management of property jointly owned by the parties, as well as to “divide or order the sale” of the property. Under California law generally, in a proceeding for a dissolution of marriage, the court has jurisdiction to inquire into and render any judgment and make orders concerning many issues, such as the settlement of the property rights of the parties.
Some of the most significant issues that arise in divorce or separation proceedings involve the couple’s children, such as child support, custody, and visitation. Courts in San Diego and throughout the state take these matters seriously, especially child support. The legal system operates in such a way as to assist the child in obtaining the support he or she needs. For instance, parties are able to seek the assistance of California county agencies when attempting to enforce a parent’s court-ordered child support obligation.
One of the reasons that courts get involved in such matters is that children are unable to advocate for themselves. Child support cases can become complicated and difficult, depending on the particular circumstances. In any family law case where there are children involved, parties are encouraged to seek the assistance of an experienced San Diego family law attorney as early as possible in the proceeding.
In a recent California case, a couple that divorced in 2007 disputed the wife’s right to enforce a judgment lien against certain real property that was deeded to the husband under their marital settlement agreement (“MSA”). She was attempting to enforce the lien to recoup child support payments. The wife claimed that under the terms of the MSA, which divided the couple’s assets and other rights and obligations, the husband was required to pay the wife $2,000 in monthly child support and to secure and maintain health insurance for their two daughters. Under the agreement, the husband received one property that was free of debt at the time of the divorce. However, in 2008, the husband arranged for a loan on the property. He subsequently followed through with his child support obligations for a period of time.
One way to reduce the length of a divorce proceeding is for the parties to resolve most of the significant issues through a marital settlement agreement. While this may not always be feasible, spouses will benefit from having a certain amount of control over the fate of the process. Of course, a judge will have to sign off on any resulting agreement. In some cases, however, one party or the other may seek to challenge, clarify, or enforce the settlement agreement in the future. To ensure that your marital settlement agreement complies with local applicable law and will stand up in court, you are encouraged to consult with an experienced San Diego family law attorney as early in the divorce as possible.
Martial settlement agreements may cover a myriad of issues. For example, in a recent case, the couple’s marital “termination” agreement (as it was called in 1987) required the husband to establish a life insurance trust for his soon-to-be ex-wife. Here, the parties were married in 1957 and divorced in 1987. The couple entered into this marital termination agreement, which was approved by the court at that time. In 2013, the wife filed a request with the court seeking an “Order to Disclose Insurance Information.” Essentially, it seems that the wife was hoping to obtain proof that the husband established a life insurance trust for her in accordance with the termination agreement.
Many different factors can affect the length and cost of a divorce proceeding, not the least of which concerns the parties’ ability to negotiate and interact with each other in a civil and amiable manner. Spouses who are able to work together to reach an agreement on the main issues, such as the division of property, spousal support, and other financial matters, will certainly achieve a more efficient settlement than parties who are contentious and unable to set aside their differences during this trying time. Many divorcing parties seek the assistance of a local family law attorney, someone from the San Diego area who can navigate the proceedings and facilitate an efficient and smoothly run process.
The importance of reaching a mutually acceptable marital settlement agreement cannot be overstated. Keep in mind that such an agreement must comply with local state laws applicable to the validity of contracts generally. In a very recent case, covered by the news media, a California judge overturned a divorce settlement reached between actor Terrence Howard and his wife, Michelle Ghent. According to reports, Ghent allegedly “coerced” Howard into signing the agreement by threatening to leak details of his private life. According to the court, the evidence of extortion or duress was un-rebutted. By virtue of this ruling, the Superior Court Judge is now forcing the parties to re-negotiate any financial matters related to their divorce.
In many divorce proceedings, spouses enter into a “marital settlement agreement” or “MSA” in order to resolve some of the more significant issues affecting their family. By doing so, parties hope to reduce or limit the duration of the proceedings as well as any potential disputes. Reaching the decision to divorce can be difficult enough, without the added stress of arguing over property, custody, support, and the like. Questions sometimes arise, however, as to the enforceability of the MSA. It is an agreement, similar to most contracts, which must adhere to certain legal qualifications in order to be enforceable. If you are considering divorce, it is important to consult with an experienced family law attorney as early as possible in the process. A local San Diego lawyer would be able to help you navigate the system, while addressing the relevant legal issues in an efficient manner to protect and advance your rights.
In a recent divorce case, characterized as “highly litigated,” the parties disputed the enforceability of a MSA, which allegedly purported to resolve issues such as the division of community property, obligations, and other financial rights and claims. The MSA was allegedly intended to reach a “global settlement” and to be incorporated into the judgment of divorce. Here, the parties married in 1993 and the wife filed for dissolution of marriage in 2007. In 2008, the couple executed the marital settlement agreement, which is at issue in this case. In March 2009, the husband filed a motion to enter judgment based on the agreement, in accordance with Section 664.6 of the state civil procedure code.
In some divorce proceedings, couples may ask the court to determine the enforceability of the terms contained in various types of agreements, including a marital separation agreement, a prenuptial agreement, or any stipulation affecting the parties’ rights going forward. In performing this task, a judge often seeks to determine the intent of both parties by reviewing the specific language of the agreement as well as the circumstances surrounding its execution. In some cases, the couple may choose to prepare their own agreements, without the assistance of counsel. Drafting a document that will ultimately affect you and your family’s legal and financial rights requires strict attention to detail. Keep in mind that the agreement must also conform with any local laws and rules applicable to the subject matter. Couples in California who are considering a separation or divorce are highly encouraged to seek the assistance of a local San Diego family law attorney who can work to protect your rights throughout each stage of the process.
A recent California case illustrates the importance of obtaining proper legal guidance when preparing agreements that will likely affect the parties’ rights in divorce. Here, the couple’s marriage lasted for 26 years. In 1995, the husband filed for divorce. Neither he nor his wife was represented by counsel. While the husband did not request spousal support, the wife did. In 1996, the husband prepared the stipulation and judgment, which provided (among other things) that the court would reserve “jurisdiction over spousal support for the benefit of both parties until the remarriage or death of either party.” In October 1996, the court entered the stipulation and judgment and did not award spousal support. The husband remarried in the spring of 1997.
The division of marital assets is often a contentious part of a divorce proceeding. Since California is a “community property” state, this is an extremely important phase in cases arising in this jurisdiction. According to Section 2601 of the Family Code, all property (including assets and debts) accumulated during the marriage is subject to equal division between the separating spouses. In order to identify, characterize, and value the assorted property, spouses are first expected to make sufficient disclosures under the law. Courts have the authority to set aside a judgment if one party fails to adequately disclose interests in marital assets. In order to be sure your financial rights are fully protected in divorce, you are strongly encouraged to contact a local San Diego family law attorney who has extensive experience handling such cases.
In an earlier blog post, we reported on a high profile divorce case involving a former owner of the LA Dodgers. There, a California court reviewed the wife’s petition to set aside the couple’s marital settlement agreement (the “MSA”) and judgment. She argued that her husband did not comply with the Family Code’s disclosure requirements regarding the value of the LA Dodgers, including assets associated with the team. Due to his lack of disclosure, she asserted that he engaged in fraud and that she was entitled to an equal division of assets under state law. Based on his alleged misrepresentations, the wife claimed she had the “mistaken belief” that the team-related assets as a whole were worth only $300 million.
State law governs virtually every aspect of a divorce proceeding. Each state has its own “family law code” and code of civil procedure that dictate in large part the course of a case. The importance of adhering to each and every legal requirement cannot be overstated, especially when your family’s future is involved. Matters concerning child support are particularly regulated, due to the importance of a child’s welfare and inability to advocate for him or herself. Various local agencies have the authority to step in if there are complaints about one party’s failure to make child support payments. Sorting through the legal options can become somewhat complicated. With respect to any aspect of a divorce proceeding, parties are encouraged to contact an experienced family law attorney who is fully aware of the legal procedures affecting cases in the San Diego area.
A recent divorce case illustrates some of the legal issues that can arise when one parent is alleged to have avoided court-ordered child support obligations. In this matter, the couple divorced in 2004. The dissolution judgment incorporated the terms of their marital settlement agreement (“MSA”). The MSA provided in part that the parents would share equally certain of the children’s expenses and costs. The agreement further itemized the amount of child support for which both parties would be responsible. In 2011, the San Diego County Department of Child Support Services filed motions seeking to enforce the dissolution judgment.