What Can Be Learned From The Breakup of Katie Holms and Tom Cruise?

The shorthand answer to that question is that with careful planning, a divorcing couple can avoid a long drawn out court battle. They can resolve the major issues within a matter of weeks, thus avoiding the stress and expense that is inherent in most dissolution cases.

First, Tom and Katie had a prenuptial agreement regarding their finances, in the event that they ever split up. Therefore, they avoided a long drawn out court battle over division of property and assets. Katie gets $15 million does. That is $3 million for each year that the couple was married.

A prenuptial agreement is a tool used by wealthy people or people with assets. It gives them the ability to alter the normal rules regarding spousal support and community property in the event of divorce. It is a contract between engaged people that takes effect when they get married.

Since the parties financial situation may change during the course of their marriage, it is not always possible to predict, in advance, whether or not a prenuptial agreement will be legally enforceable when the parties separate or divorce. That is why it is important to hired skilled legal counsel when entering into a prenuptial agreement, to ensure that you have adequately complied with all of the legal requirements. While the cost of drafting a prenuptial agreement may be costly, it is far more cost efficient than not having one, and having to litigate property issues when the parties divorce.

A prenuptial agreement cannot include issues regarding child custody and child support. However, Katie was able to get control of the child custody issue by careful planning. First, she moved with her daughter to their home in New York. She changed her cell phone number and fired all of their New York staff. She also filed for divorce in New York, rather than California. In New York, there is a presumption of sole custody. While in California, there is a presumption of joint custody. Also, in New York, judges are more likely to listen to arguments regarding the influence of fringe religions, such as Scientology, on children. I am also told that New York is a little more sensitive to mothers who are filing for sole custody.

Thus, by carefully planning this out, and making sure that she met the residency requirements to file for divorce in New York, Katie was able to select a jurisdiction, where the law is more favorable to her position. In the end, Tom Cruise agreed that Katie would have primary physical custody of their daughter, Suri, while he would have regular and meaningful visitation rights. The distinction between joint physical custody and visitation is important when dividing up parental rights and responsibilities. Katie also has exclusive say over the choice of her daughter’s religion and education. She enrolled her daughter into a private catholic school. Had this matter been decided in California, Katie and Tom probably would have had joint legal custody. That means that Tom would have had equal say in his daughter’s education and religion. The parties could have very likely been back in court battling over these issues long after the divorce was final.

As to the issue of child support, in California, that is done by guideline. It is based on the time that each party spends with the child, and the respective incomes of both parties. In any event, I doubt if child support was an issue of contention for Tom and Katie. I cannot imagine Tom Cruise refusing to pay child support, or arguing about the amount. He probably does want his daughter to be financially secure.

So the moral of the story, or the lesson to be learned from the split of Tom and Katie, is that with careful planning, parties can resolve major issues of finances, property division and child custody and support within a matter of weeks. Thus, they can avoid the stress and expense of what otherwise could have been a long and drawn out court battle.

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What Are the Grounds For Divorce in California?

No Fault Divorce

California is a “no fault” divorce state. That means that if one spouse wants to terminate the marriage, the other spouse cannot prevent him or her from doing so. It also means that when a judge decides the underlying issues, his or her determination will not be based on who s/he believes to have caused the break-up, or, put differently, whose conduct the judge believes to have been more culpable. In other words, a California judge will not consider issues such as infidelity or undesirable behavior in the final judgment. This also means that absent certain exceptions, the marital estate, or the property that has been purchased, accumulated or improved during the marriage, will be divided equally, irrespective of fault.

1. Grounds for a California Divorce

A. Irreconcilable differences, Incurable insanity

There are two grounds for divorce in California. These are irreconcilable differences and incurable insanity. Incurable insanity is a medical condition that must be substantiated by a doctor, because this condition is difficult to prove. Hence, very few California divorces are based on incurable insanity. Accordingly, the most common ground for dissolution of marriage in California is irreconcilable differences. Therefore, since California divorces are not based on fault, a court will not inquire into the reasons why one party wants a divorce.

B. Residency Requirements

a. Six months in the state of California; Three months in a California county

In order to file for dissolution of marriage in California, a party must have resided in the State for a minimum of six (6) months, and in the same California county for a minimum of three (3) months. People who don’t met this requirement, are not eligible to file for divorce in California.

b. Legal Separation- an alternative when residency requirements are not met.

Depending upon the circumstances, a party may opt to file for legal separation until s/he meets the California residency requirement. When parties are legally separated, their property is divided and support issues are determined. Also, property acquired by either party, after they’ve been legally separated, will not be classified as community property. It will be the separate property of the acquiring spouse. However, the parties will continue to remain legally married until the marriage is dissolved. In other words, the marital status will not be changed. Since the marital status is not terminated, most parties prefer to wait until they meet the California residency requirements, so that they can file for dissolution of marriage. However, if a party elects to file for legal separation, the action may be converted into a dissolution action once the residency requirements are met.

Legal separation is a viable option for clients who anticipate that they will have to leave the state, or the country, for an extended period of time.

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Determining Child Support in A California Divorce

All parents have a responsibility to support their minor children in California. This responsibility applies equally to parents who were never married, as well as to parties who were married and who are now divorced. In situations involving unmarried parents, either party, the mother or father, can file a motion to establish paternity. Once paternity is established, a court may order that party to pay child support to his minor children. Unlike spousal support, the obligation to pay child support cannot be waived in California.

The primary factors taken into account, when determining “ guideline child support,” include the income of both parents and the amount of time each parent spends with the child. The more time the payor parent spends with a child, the less amount of child support s/he will have to pay to the other parent. This makes sense when you think about it. The reason for paying child support to the other parent, is to ensure that the child is cared for when s/he is not in the custody and control of the payor parent. When that child is with the payor parent, there is no need to give money to payee parent for the care of the child.

Accordingly, these two factors, i.e, the parties respective income, and the amount of time each party spends with the children, can become the basis of litigation. Sometimes payor parents will ask for an increase in their custodial time in order to lower their monthly child support obligations.

Of course there are other factors which go into determining “guideline child support,” which make this calculation more complicated. These include, but are not limited to, the following: 1) the available income tax deductions for both parties; 2) mandatory payroll deductions such as health insurance, union dues, and pensions; 3) reasonable child care costs incurred by either party while the children are in his or her custodial care; 4) the educational or special needs of the children; 5) travel expenses which are necessary for visitation; and 6) hardship deductions, such as costs incurred in supporting another child of a different marriage.

One final thought. Court ordered child support payments are tax deductible. Therefore, it is in the payor’s best interest to have court orders in place. While many parents have voluntarily contributed to the support of their children when they split with their spouses, any payments made that were not court ordered, or which exceeded the “guideline ” amount, are not reimbursable. Nor can a party get credit for prior over-payments. Child support payments made in absence of a court order are deemed to be a gift and are not tax deductible.

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Can My Husband Force Me To Sell My Jewelry In A California Divorce?

I had a client come into my office the other day who asked this question. She was married to her soon to be ex for about eleven (11) years. Her current spouse is quite a bit older than she. She is a very attractive woman. In a manner of speaking, she is a trophy wife. He is a successful entrepreneur, whom she married for financial security. The marriage worked out well for both of them during the eleven years they were together. But, as often happens, they grew apart and will be going their separate ways.

During the course of their marriage, he bought her expensive jewelry twice a year. That was a ritual they had. Now that they are parting ways, she wants to know if she will be forced to sell the jewelry and give him half the proceeds when they divorce.

The general rule in California is that all property acquired by the parties during the time that they are married and living together, is considered to be community property and will be equally divided among them when they get divorced. However, as with most everything else, there is an exception to that rule. The exception is carved out in California Family Code section 770 (a) (2) which provides, inter alia, that all property acquired by a married person by gift or bequest, is separate property.

In order to prove that the jewelry was intended to be a gift, the wife must show three things. First, that her ex-husband intended that the jewelry he bestowed upon her was to be a gift. This should not be hard to prove. For instance, if she can provide evidence of a gift card that accompanied the jewelry at the time she received it, that would be evidence that he intended for it to be a gift. Evidence they went out to celebrate a special event, such as their anniversary or her birthday, at the time she received the jewelry, could also be evidence the he intended the jewelry to be a gift. Second, she will have to prove that he gave her the jewelry. This should not be hard to prove, since they had a bi-annual ritual of him giving her expensive jewelry. Third, she must show that she accepted the gift. This last element can be proved by her testimony, as well as evidence of the surrounding circumstances when she received the jewelry and took it into her possession.

If the trophy wife can prove the above three elements, she may be able to keep all of her jewelry when she and he ex-husband part ways. It would be considered her separate property.

Suppose a slightly different set of facts. Suppose that the successful husband in the above scenario, was a well know jeweler, rather than an entrepreneur. Suppose that he too, gave his wife expensive jewelry twice a year. Suppose further, that the Jeweler husband gave testimony that the reason he gave his wife fine jewelry twice a year was so that he could promote his business. When people saw his wife wearing the jewelry, it drove business to his office. In that situation, a court could conceivably find that the jewelry was not a gift. Rather, that it was given to the wife for the purpose of promoting the husband’s business. In that situation, a court may find that the jewelry was, in fact, community property, and order it sold and the proceeds divided between the parties. Alternatively, a court could allow the wife to keep the jewelry, and award the husband other assets of equal value.

In sum, whether or not a wife will be able to keep her jewelry in a California divorce, will depend upon her ability to prove that it was a gift. If it was a gift then it is her separate property, even if she received it during marriage.

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The Sentencing of Dr Conrad Murray-Was Justice Done?

Many of you may be wondering why I am writing a piece on a criminal law matter, since my practice is now focused on divorce and family law. While I no longer practice criminal law, I, like many other members of the public, was interested in the outcome of this case. Also, I do remember things from law school and from my former practice. Accordingly, I found the issues in this case to be thought provoking. So here it goes.

Michael Jackson’s fans have been moaning and groaning that Dr Murray will not be doing enough time. A four year sentence, they say, is not long enough for the death of the King of Pop. That is the maximum time for which Dr. Murray could be sentenced, since he was only tried for involuntary manslaughter, and not murder.

Well, in my humble opinion, Michael Jackson’s fans are overlooking a few salient points. First, the reason the jury did not deliberate long, and the reason they delivered a unanimous guilty verdict, is because the DA’s office charged this crime correctly. A conviction for involuntary manslaughter only requires a finding of gross negligence. There was no question that the good doctor was negligent. After all, he administered propofol to Michael Jackson, in his home, as a remedy for insomnia. Most doctors would not even use that drug on people who have surgery in their office on an out- patient basis. The experts seemed to all agree that propofol should only be administered in a hospital setting. For that reason, alone, a verdict for criminal negligence was a no brainer.

Had the DA charged Dr Murray with second degree murder, they would have had a much higher burden of proof. They would have had to prove that the good doctor harbored malice towards Mr. Jackson, and that he killed him intentionally. Malice and intent would have been hard to prove under the facts. Thus, while a second degree murder conviction would have yielded a longer sentence, had the DA charged the crime that way, they would have risked an acquittal.

Therefore, Michael Jackson’s fans should keep in mind that this was a trade off between the possibility or risk of Conrad Murray doing no time at all, and getting a conviction and vindication of Mr. Jackson’s death.

I recognize that under the new court realignment act, which was recently enacted by the California legislature to address prison overcrowding, Dr Murray may only serve two years out of his four year sentence. Also, that he will be serving that time in county jail rather than state prison. However, District Attorney Steve Cooley has stated that his office is contemplating an appeal on that issue, in order to address the broader challenge to this new law.

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Second Marriages-Is Love More Successful The Second Time Around?

One would think that would be the case. After all, when people enter into a second marriage, they are older, wiser and more experienced. They have learned from the mistakes they made in their first marriage, and are unlikely to repeat them. They also enter into the second marriage with more realistic expectations. Right?

Unfortunately, life is not that simple and straight forward. People tying the knot for a second time, may face a host of problems which they may not have had in their first marriage. First, they could be saddled with spousal and child support obligations from a prior marriage. This, in turn, could put a financial strain on the second union. With a slice of the pie being gone from the start, there is less to spend on the needs of their second union.

Secondly, children of a prior marriage may feel left out or resentful, particularly if their parent of the new union, has another child with their new step parent. Accordingly, it is important to make sure that children of a prior marriage are not made to feel that they are less important, or less loved, than their new half-sibling of this second union.

Third, while in the first marriage people may “stay together for the sake of the children,” that unifying factor may be completely absent in the second marriage. While the newly weds of a second union may be over the moon that they found love a second time around, realistically, they should not expect that their children from their first marriage are going to share their joy. In fact, children of a prior marriage often times resent their new step parent, and do not readily welcome that person into the family. Thus, the unassuming spouse of a second union, may find him or herself in competition with the children of their new spouse.

Along those same lines, the parents of the children of the prior marriage, do remain in the picture. Particularly if the children are under 18 years old. While the parties of a first marriage may no longer be compatible as a couple, they still have to be parents together. Thus, there could be build in competition between the parent of a prior marriage, and the new step parent.

So, how should couples of a second marriage deal with these issues?

For starters, while this may not be the most romantic way to enter into a second union, I advise my clients to have open and honest conversations about their financial situation. A spouse entering into a new marriage must be made aware of the existing obligations of a prior marriage. If appropriate, the parties should get a pre-nuptial.

Next, parties of the second marriage must make children of a prior marriage feel included, particularly if they plan to have more children. If necessary, the new couple should see a therapist with the children of a prior marriage.

Finally, don’t bad mouth the parent of a prior marriage in front of your children or step children. You cannot win their loyalty by doing that. In fact, you may just drive them away. Instead, recognize the strengths and skills that the other parent has to offer. It is far more productive to co-parent and share responsibilities. If you can do that, you may find that the parent of the prior marriage can be an asset.

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Can a Parent Who Has Been Awarded Primary Physical Custody in a California Divorce, Move His or Her Children to Another State, or to Another City in California?

The issues involved in “move-away” cases often trigger strong emotions from both parents, as well as the children, depending upon their age. Yet the California legislature, along with the California Supreme court is fairly clear. According to family code section 7501, the parent with primary physical custody, has a presumptive right to relocate, subject to a few exceptions. There are two important cases on point. These cases underscore the issues that regularly come up in “Move Away” cases.

The first case is In Re Marriage of Burgess, 13 Cal.4th25. That case involved a situation wherein the mother, who was the primary custodial parent, wanted to relocate to Lancaster, California, which was about 40 miles further away from where she was currently living. The father, who had been awarded visitation rights, objected to the move. He felt that the distance would make it more difficult for him to visit his children; and, that, in turn, it would undermine his relationship with them. Thus, the father asked the court for a change in custody.

In Burgess, the mothers articulated reasons for wanting to move included a new job opportunity, greater access to medical care and extracurricular activities, affordable private schools, and day care facilities. The court allowed the mother to make the move, subject to a new visitation schedule which insured that the father would continue to have regular and frequent visits with the children.

In reaching its decision in Burgess, the court stated that the custodial parent has a presumptive right to change the residence of a minor child, as long as the move would not be prejudicial to the rights and welfare of the child. In plain language, that means that the custodial parent has a right to move, as long as the move is not done for a “bad faith” reason, such as to limit or undermine the children’s relationship with the other parent. In Burgess, the court did not find that the mother was acting in “bad faith.”

The other case on point is In re Marriage of LaMusga (2004) 32 Cal 4th 1072. In LaMusga
the mother had primary physical custody. She had re-married and wanted to re-locate the children to Ohio because her husband had been offered a better paying job in that state. She also had extended family in Ohio, and pointed out that the standard of living was less expensive than in California. In addition, she had another child with her current husband, and her children from her first marriage were bonded to their half sister.

While the court in LaMusga, acknowledged that the mother had valid reasons for wanting to move, it also found that “one” of her reasons may have been in “bad faith.” In other words, ‘one’ of the reasons the mother wanted to move was to get away the children away from their biological father, and to undermine his ability to maintain a relationship with them. While the court stated that this motive was shuttle and not the mother’s over-riding motive, it still found that was enough of a reason to disallow the move, and to order a change in custody. Accordingly, the court in LaMusga, issued a new order making the father the primary custodial parent.

The lesson to be learned from these two cases is as follows. Even though a relationship between two people is no longer viable, they still have to be parents together. The worst thing one can do, in a child custody battle in California, is to finger point and bad mouth the other parent in court. Judges just don’t like that. The better approach is to acknowledge that it is in the child’s best interest to have a relationship with both parents, and to assure the court that a request or motion to relocate with the children, is in no way intended to undermine their relationship with the other parent. I often advise my own clients to propose a very generous visitation schedule, taking into account the other parents work schedule and travel expenses.

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