Infidelity and Divorce

AdobeStock_89927467.jpegAs much as some of us wish it would, the law has no sympathetic ear. It is black and white, numbers and figures. There is no special stipulations for unfortunate individuals who simply just were played a bad hand of cards. In a nutshell, the Court doesn’t care if someone “hurt your feelings”.

But that doesn’t stop people from approaching us with their story of how their spouse did them dirty and left them out to dry. And of course, that’s understandable. Everyone wants to be heard. Perhaps that’s what one man really wanted when he sought advice about his “immigrant wife” of two years cheating on him. He informed us that his wife recently filed for her 10 year green card but it has not yet been granted. Based off of his recent discovery of her affair, he no longer believes the marriage was in “good faith”. In fact, he wishes to pass this information along to immigration officials. His question: what would be the best protocol to ensuring a favorable settlement in the divorce process with the current information regarding her falsification of a “good faith” marriage?

This is where we had to break it to him: the divorce court doesn’t care if you’ve been cheated on. They also won’t take into consideration whether his wife is legal or not. All the court cares about is dividing the couple’s community property and whether either spouse gets spousal support (which is highly unlikely). The feds may care if the marriage was phony, but using the threat of reporting her to get her to give up anything she’s entitled to would be extortion. A no-no, although people do it anyway. This man needs to see the matter of divorcing this woman and his vendetta for seeing about her deportation as two separate subjects, or else he will most likely be unsuccessful in both.

For more information on questions in divorce, including those regarding cheating, please visit our website: http://stanprowse.com/divorce-attorney-questions

Domestic Violence and Spousal Support

AdobeStock_73154055.jpegA woman approached us with questions regarding issues with spousal support in her marriage that involved domestic violence. She reports that throughout the couples’ four year marriage she was unemployed. There were several instances of domestic violence and several police reports made, but no arrest of the husband ever occurred. Still, she was granted a DVTRO, or a domestic violence temporary restraining order, by their family court judge. However, she has been unable to locate her ex-husband to have him served with the restraining order. He is now suing her for spousal support. Her question: since she was a victim of domestic violence by him, can he still be granted spousal support and attorney fees? She continues to struggle to find a job and has been living on no income.

We advised her not to worry- because she is unemployed and has no income, no Court is going to make her pay spousal support, so that needn’t concern her until she gets a job. Even then, if he’s employed, chances are he would be making more money than his ex-wife, and he would be paying her spousal support. Nonetheless, she probably would not get more than two years of support from the date the couple separated – they had a short marriage. Unless she knows he’s working and getting a paycheck he can garnish, her first order of business should be to find work for herself.

For more information on domestic violence and spousal support, please visit our website: http://stanprowse.com/spousal-support-california

Alimony: What’s taken into (or out of your) account?

moneyGoing through a divorce is never fun. There’s no sense in denying that. The best thing you can do is work hard to succeed in other aspects of your life. For example, a potential client recently came forward with some good news despite his in-process divorce. He’s been promoted, and starts a new job with a signifciantly higher salary next week. His concern regards alimony. When he filed for divorce earlier this year, he was making considerably less money. The couple has yet to go before the judge and finalize their divorce; the date is set for later in the month. So, will alimony be calculated from his reported earnings when he initially filled for divorce, or will it be based on the higher salary he is about to receive?

We started by informing this man that he is under a fiduciary responsibility to inform his soon to be ex-spouse regarding his change in income. The question of whether his new income will be the exclusive number considered in setting spousal support is another matter. The average of the last twelve months earnings is statutorily presumed to be a proper basis. Some judges stubbornly stick to that even under situations such as the one this man is in.  Since he will have already started his new job, and if it is likely to be a long term position, I expect his judge will probably use his prospective income when it comes to his ability to pay, one of the factors the judge must consider. However, the primary factor is the standard of living during the marriage, which was undoubtedly based on this man’s previous income. There is no computer formula used for spousal support awarded in a final judgment, so there is in fact no “calculation” to be made by the judge. It’s a matter of weighing a number of factors set forth in Section 4320 of the Family Code.

For more information on calculating alimony and spousal support, please visit our website: http://stanprowse.com/spousal-support-california

 

 

Marriage Annulment; grounds for annulment?

relationship concept couple in divorce crisis

A woman recently approached us with an inquiry regarding the annulment of her marriage. She has been married to her husband for 13 years. However, one couldn’t call this a “happy” union, as it isn’t much of a union at all other than on paper. Though the couple do share a child, he was born before their legal marriage. According to the wife, her husband lives with another woman if she is his wife, and the two share multiple children. The woman asks us to determine whether this is enough to receive a marriage annulment.

The short answer to her question is simply no. However, if we were provided with more information regarding the marriage, we would be able to provide more insight. For example, did the couple live together AT ALL (even one night) after the marriage ceremony? Did the couple have sex AT ALL after the marriage ceremony? Was the husband already sleeping with someone else when the couple was officially married? There’s a case called Marriage of Johnson, (1993) 18CA4th 499, 502, which suggests that a spouse’s intent to ignore his/her marital obligation of fidelity may support a finding of fraud, which is one of the few grounds for a voidable marriage, and thus an annulment. If this is indeed the scenario for this woman, she could possibly obtain an annulment. With that being said, she should consult with an attorney to see if she is able to avoid a formal divorce, or if she will need to file for dissolution of marriage.

For additional information on marriage, divorce, and family law, please visit our website: http://stanprowse.com/family-law-2

Premarital agreements: prenups and postnups, oh my!

Prenuptial agreement and divorce law concept as a justice scale with wedding rings as a symbol of a relationship contract before a marriage or civil union or getting divorced.

A man recently approached us with questions regarding the financial steps that should be taken before marriage. This man is engaged to a woman with over $40,000 in student loan debt. He does not want to become responsible for this financial burden once they’re married, but doesn’t know whether a prenup or a postnup would better serve his situation.

First, it needs to be understood that the separate property of one spouse is not liable for the premarital debts of the other spouse. Community property, however, is liable for the premarital debts of the parties. Therefore, money placed in a joint checking account after marriage is considered community property, which in turn can be accessed by the creditors of this man’s future wife. The solution is to prevent community property from arising in one’s marriage through a premarital agreement.

This can be arranged in a prenup which provides that all earnings during the marriage remain separate property, and that any business you may own when you marry will remain separate property. We advised this man to carry out a prenup rather than a postnup, as the validity of the latter might be questioned as a fraudulent conveyance. Plus, spousal support can be waived in a prenup, but not in a postnup. Of course, obtaining a bullet-proof premarital agreement is extremely difficult due to relatively new statuary requirements. A good place to start would be with both spouses hiring separate lawyers, and look at the situation holistically.

For more information on premarital agreements, please visit our website: http://stanprowse.com/premarital-agreements

Contested vs uncontested divorce

HarassmentThough it may be hard to imagine, there is such thing as a civil divorce settlement. In simpler terms, not every divorce is as messy as the rest, not all divorces are contested. Some people peacefully come to terms with a fractured marriage, and agree to split with as little legal involvement as possible. So, when approached by a potential client inquiring about whether or not she and her husband could “just agree on the terms of divorce and have it written out”, our answer was yes.

In this case, the couple had mutually agreed upon how to split the debt and other financial issues. The wife understood that by law her husband was entitled to half of her 401k plan. He, in turn, agreed to waive that right in lieu of the wife taking on the financial burden of the couple’s shared debt. With that being said, the couple could certainly have their divorce written out in the form of a marital settlement agreement. This would be considered an uncontested divorce. However, they should still have it done by an attorney, and one who is willing to act merely as a scribe rather than as an advocate for either of the spouses. What’s more, it shouldn’t be very expensive.

For more information on uncontested divorce and marital settlement agreements, please visit our website: http://stanprowse.com/contested-uncontested-divorce

San Diego housing association requiring proof of marriage

A recent proof of marriage question:

Premarital-17280771My parents eligibility in the San Diego housing program now requires proof of marriage by the housing association of San Diego. This appears to be a new requirement as they have never requested it before. My parents were Cambodian refugees who escaped the war in Cambodia over 30 years ago and have no documents from their lives there, least of all any marriage documents. I thought they were in a common law marriage but found out that particular law isn’t valid in California. They never filed for a marriage certificate while in America but have gotten their citizenship. On their certificate it states that they are married. Is that enough proof of marriage? If not, what recourse can be taken?

Our Answer:

I take it the “certificate” referred to is a certificate of citizenship. You won’t know whether the housing association will find it acceptable until you ask them, so ask them. If they don’t, it’s simple enough, and I hope quick enough, for your parents to just get married here. Getting married again here, if they were already married in Cambodia, won’t do any harm.

Please visit our website for more Marriage Information:

http://stanprowse.com/premarital-agreements-california

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