The spousal testimonial privilege can be a very powerful bar to testimony.  The privilege has two parts.  There is a privilege not to testify against one’s spouse and a privilege not to be called as a witness against one’s spouse.  A married person has a privilege not to testify against his or her spouse in any proceeding.  Additionally, a married person whose spouse is a party to the case has a privilege not to be called as a witness by an adverse party without the prior express consent of the spouse having the privilege.

The spousal testimonial privilege does not apply in divorce cases.  Spouses are often at odds regarding the way child custody and visitation should be decided or how assets
should be divided.  Anything a spouse says can be used against them in Court when disputing these issues.  One spouse admitting to hiding assets in a Swiss bank account, for example, cannot claim a privilege against having his wife testify against him when she wants to be compensated for losing access to the money.  People are wise not to say anything around their spouses that could later open the door to an unfavorable court action.

There are multiple ways that a spouse can communicate with their other half – in person, on the phone, email, text messages, etc.  During the family law litigation process, all
of these forms of communication and more can be discovered and used as evidence at trial.  Either spouse can get on the stand and state word for word what her spouse told her through any form of communication.  The other spouse is powerless to keep her quiet.

It is incredibly important to have excellent legal counsel to manage not only the formal process of a divorce, but also the communication between the parties.  In the Bay Area, a person is wise to engage the best San Francisco divorce lawyer available to help navigate these dangerous waters.

In California, absent a prenup, any asset acquired during marriage is considered community property and must be divided evenly between divorcing spouses. Any property acquired before marriage, after the date of separation, or through gift or bequest (meaning inheritance) is considered separate property and immune from division. There are of course exceptions to these rules, but that’s a good overview.

By this definition, social media accounts created during marriage will almost certainly be characterized as community property. Accounts created prior to marriage may also be defined as community property in part, depending on whether the value increased during the marriage, and whether the personal effort of either spouse contributed to that increase (which of course it would have).

The terms of service of the various social media companies also play a role in defining whether an account is considered property and subject to division. Twitter, for example, defines the content which users create as the property of the user. Twitter sees the content as separate from the account services themselves which Twitter provides. Arguably, the right to access the account and manipulate the content is a kind of property as well.

The content within the accounts, and the right to access the accounts both increasingly have economic value, and couples understandably want to add all value to the marital asset division calculus.

The big hurdle, of course, is valuing the accounts. Valuation has always been more of an art than a science. This is even more the case when it comes to untested intellectual property assets like social media accounts. Some parties are looking to the actual business flowing from the accounts as a benchmark for determining value. Others are more inclined to take a multiple of earnings – the challenge being that earnings are just beginning to manifest for these assets.

This area of property division is new, but it’s heating up. Asset division provides many challenges to divorcing couples. Careful attention needs to be paid to properly value and divide IP, particularly this distinctly tricky type of IP. A person seeking to divide a social media account, just like any asset, is well advised to seek the counsel of an experienced California family law attorney.

Our office practices family law in San Francisco and the Bay Area. As a result, we work on the forefront of many of these issues. If you have questions, feel free to give us a call.

The good news for Maria, and for anyone else having second thoughts about divorce, is that dismissing a pending divorce case is fairly simple for the party who filed it. In California, the party who filed for divorce only needs to fill out one form: the CIV-110 Request for Dismissal. Once that has been filed and served on the other party, the case is done. Only the party who filed the divorce can dismiss it.

The drawback is that if you decided to continue with the divorce, you’ll have to start all over again and pay the filing fees anew. This is a process that most parties can handle on their own. It’s typically best to allow your attorney to handle the dismissal, however, if you’re already represented.

First, and arguably most importantly, the law will allow same-sex couples married in California but living in states that do not recognize their marriage, to get divorced in California. Previously, these couples were stuck in limbo – unable to get divorced, and having a marriage only recognized in certain states.

This provision of the law corrects a serious conundrum for same-sex couples. The Federal Defense of Marriage Act (DOMA) allows states to not recognize same-sex marriages consummated in another state. Many people hoping to marry their same-sex partner go to one of the few places allowing it, but then are shocked to see that they cannot get divorced in their home state when the marriage dissolves. Same-sex marriage then becomes a prison instead of a liberating institution. Only six states, Washington D.C. and two tribal nations have marriage equality. 30 states ban same-sex marriage by constitutional amendment and 11 states ban it by statute alone.

This provision of the Domestic Partnership Equality Act immediately applies to marriages entered into before Proposition 8 passed and will apply to future marriages if Proposition 8 is ruled unconstitutional by the courts.

Second, under the new law, couples will no longer have to share a common residence in order to qualify as domestic partners. This is already the case with marriages.

Third, the law further allows people under the age of 18 to become domestic partners, though they would need a court order and the consent of their parent or guardian.

Finally, The Domestic Partnership Equality Act allows domestic partners to enter into a confidential domestic partnership. The paperwork they file with the Secretary of State would remain sealed unless opened by Court order. This advancement brings domestic partnership closer in alignment with marriage, which allows for confidential marriages.

The domestic partnership laws are complex and still differ significantly from marriage. Additionally, because federal policy differs from state policy, domestic partners also have distinct challenges dealing with the federal government. Many couples desiring to enter into a domestic partnership attempt to smooth out the wrinkles in domestic partnership with a prenuptial agreement. A couple wanting to enter into a domestic partnership is wise to consult with an experienced family law attorney.

To recap in case you’ve missed the news, Kobe Bryant’s wife has just filed for divorce, and there’s no prenup. Kobe’s wealth is estimated to be around $150 Million. Assuming the entire fortune was earned during marriage, it’s all community property, meaning Vanessa is entitled to half of it. Moreover, because Kobe continues to earn an income, and because Vanessa will likely gain custody of the children, Bryant could end up paying spousal and child support on top of losing half his net worth. Not to mention the attorney’s fees he’s going to pay.

Jessica Simpson appears to be on the first chapter of a similar story. Her fiancé has apparently backed away from signing a prenup, citing his belief in true love. Like any celebrity, Jessica’s income streams are fairly complex. She is apparently worth approximately $20 Million, and in addition to earning fees for appearances, she continues to earn royalties from her licensing contract with the Camuto Group who bought her clothing brand in 2005. Absent a prenup, Jessica’s income from all of these sources could very well become community property during a marriage. The same, of course, would hold true for her fiancé’s income, assuming he has any.

When celebrities marry, the process is very much like a corporate merger. All of the various income streams need to be charted. The books need to be balanced. The liabilities disclosed. The expectations for future growth must be set, and an exit strategy mapped. Without this process, a split becomes a financial disaster. This is true of course for all marriages, it’s simply more evident with celebrities.

The procedures necessary to create a valid prenup are time consuming, confronting, and tedious. There’s no way around that fact. Nonetheless, celebrities with complex financial structures would be insane to attempt marriage without a prenup, just as a corporation would breach it’s duties to shareholders by merging without a contract.

More important than those obvious considerations, however, is the opportunity that a prenup presents to lay the groundwork for a strong marriage. This is the point that we miss in the gossip columns, and that most people forget when proposing a prenup to a partner.

Premarital agreements require couples to take a very serious look at their expectations for finances and relationship. These expectations say a lot about the marriage, they say a lot about love, and they say a lot about how the couple works through adversity. Celebrities need prenups – that goes without saying. What isn’t said often enough is that they could also use the process to avoid rather than to foreshadow divorce. And the same goes for the rest of us.

These reports led us to do some investigation around the statistics and rationale behind this concerning fact, which revealed surprising results.  It turns out that very few studies have been conducted to track the correlation between domestic violence and the holidays.  According to the National Resource Center on Domestic Violence (NRCDV), most of the available reports addressing the prevalence of domestic violence during the holidays are anecdotal or opinion pieces where the dated cited often comes from an individual or one shelter’s experiences.

According to the NRCDV, one of the few reliable studies on this issue was conducted in 2005, which explored the incidence and characteristics of intimate partner violence in Idaho, a rural mountain state.  This study, titled Intimate Partner Violence Incidence and Characteristics: Idaho NIBRS 1995 to 2001 Data, analyzed seven years of National Incident-Based Reporting System (NIBRS) data to compare the incidences of intimate partner violence in Idaho, as compared to the rest of the nation.

The unexpected results of this study showed that there is a strong relationship between particular holidays and incidence reports of intimate partner violence, but not the correlation that had been predicted. According to the study, Thanksgiving, Christmas and (not so unexpectedly) Valentine’s Day had below the general trend of any ordinary non-holiday.  New Year’s Eve, New Year’s Day, Memorial Day, and the 4^th of July had higher reports of domestic violence than the normal daily average.  In particular, New Year’s Day revealed 2.7 times more incidents of domestic violence, followed by the 4^th of July.

The study’s explanation of these surprising statistics is that, historically, intimate partner violence occurs at night and on the weekends, and in places where there was greater seclusion from others who might step in on the victim’s behalf (i.e. the home).  The study also held that Intimate partner violence is also more likely on holidays when use of alcohol increases.

Another study, conducted by The National Domestic Violence Hotline (NDVH) has performed an analysis for the years 2004 through 2009, and found that the reports of domestic violence not only decrease during the holiday season, but that the decrease is dramatic.  According to the NDVH study:

-Nationwide call volume during the week of Thanksgiving decreases by about 15%, and drops by around 45% to 60% on Thanksgiving Day.

- During the holiday season from December 15 to January 1, call volume drops by around 5% to 25%, and call volume on the actual holidays (Christmas Eve and Day, New Year’s Eve and Day) drops dramatically by about 50%.

-Once the holiday season is over, there is an average 5%  increase in call volume over the next two weeks.

Despite these statistics that reported domestic violence decreases during the holidays, it is clear that the incidences do not stop occurring. If you or anyone you know is a victim of domestic violence, it is important to contact your local police and seek help of an experienced family lawyer.

We regularly advise clients to carefully guard what they post. Our tips: emphasize pictures of your kids; deemphasize pictures of you drinking; and adjust your privacy settings so that others cannot post photos of you without your permission. Nothing is more incriminating than a candid photo taken with a phone. Think Michael Phelps.

This latest development presents further complications. Judges are now ordering couples to swap passwords – this means that even strictly guarded privacy settings won’t help (here’s a link to the article). These cases are becoming more complex by the day and nuanced professional advice is more important than ever. If you believe you think that social media may play a part in your child custody case, you should contact an experienced family law attorney to help you strategize your approach. This is one issue that you don’t want to bungle.

At a recent televised Republican primary debate, Congresswoman Michelle Bachman chastised Texas governor Rick Perry for an executive order mandating that pre-teen girls get vaccinated for HPV, which is also believed to cause most cases of cervical cancer in the United States. Bachman argued that the vaccine is not known to be safe, citing an unnamed mother who purportedly told her that the HPV vaccine caused her child’s mental retardation. There was an immediate outcry that there is no evidence to show that the HPV vaccine is unsafe.

Many parents have similar concerns about other vaccines. For years, there were concerns that the MMR vaccine caused autism. Recent studies purport to disprove this, but the argument rages in many homes across the state and nation.

What happens if parents cannot agree regarding if and when to vaccinate their children? Parents with joint legal custody both have the right to make healthcare decisions for a child, and the law expects parents to confer and reach agreement. If agreement is not reached, the issue may be decided by a court. In California, the court will weigh each parent’s argument and decide whether the vaccine is in the best interest of the child. That leaves a lot of room for uncertainty regarding what the court’s decision will be, and the decision may be highly subjective.

If you have a disagreement about whether your child should be vaccinated, an experienced child custody lawyer may be able to help to resolve the issue. Don’t hesitate to contact someone before the problem boils over.

For this reason, it is important to understand which rights marriage traditionally confers, and how these rights differ between state law and federal law.  This knowledge can allow both gay and unmarried heterosexual couples to protect their families.

Many gay and lesbian couples attempt to use premarital agreements and estate planning methodologies to overcome some of the federal inequities.   This can be effective to an extent, but the use of wills, powers of attorney, advanced healthcare directives, and cohabitation agreements simply cannot resolve all of the problems created by DOMA.   For instance, these strategies do nothing for lesbian and gay couples who wish to keep their non-citizen spouse or partner in the U.S. and avoid deportation.  The estate planning alternatives are little comfort to a family torn apart my immigration policy.

The following is a highlight of many of the Rights and Responsibilities afforded to California married couples and California Registered Domestic Partners (RDPs)
1. Joint parental rights of children if born during the marriage or RDP
2. Joint adoption
3. Joint Insurance Plans
4. Status as “next-of-kin” for hospital visits and medical decisions
5. Bereavement or sick leave to care for partner or children
6. Right to make a decision about the disposal of loved ones remains
7. Crime victims recovery benefits
8. Standing to sue for wrongful death or for “loss of consortium”
9. Wrongful death benefits for surviving partner and children
10. Welfare and public assistance
11. Domestic violence protection orders
12. Judicial protections and immunity—testimonial privilege in court proceedings
13. Automatic inheritance in the absence of a will (or in the event that a will is invalidated)
14. Filing of joint state income tax returns
15. Testimonial privilege in state court proceedings
16. Spousal protection from property tax increase upon the death of a co-owner spouse

Here is a list of some of the most important Federal Rights & Responsibilities of Marriage, which are denied to same-sex couples because of DOMA.
1. Immigration and residency for spouses from other countries
2. Crime victims recovery benefits
3. Judicial protections and immunity in federal court
4. Joint filing of bankruptcy petitions
5. Spousal veterans benefits
6. Social Security benefits
7. Medicare benefits
8. Joint filing of federal tax returns
9. Income tax deductions, credits, rates exemption and estimates
10. Deferred Compensation for pension and IRAs
11. Estate and gift tax benefits  (there are substantial estate tax benefits to marriage)
12. Medical care for survivors and dependents of certain veterans

Our office regularly advises clients on how to protect themselves and their families, whether or not they decide to marry.  If you have any questions about your rights in the light of DOMA or other federal statues, you should contact a qualified family attorney.  We’re happy to help.

Because the parties in a legal separation technically remain “married,” they may not enter into a new marriage unless the first marriage ends either by death or an actual divorce.

Medical insurance is one practical reason that some couples choose to file for legal separation. If one party has a chronic illness that prevents him or her from obtaining adequate health insurance, a legal separation may allow the parties to continue to be covered by the same plan even though they are living apart. Some insurance carriers do not allow legal separation to qualify a couple for continued coverage, so you should check with an experienced California Family Lawyer before proceeding on these grounds.

Unlike divorce, a judgment for legal separation requires the consent of both parties. If one party wants a legal separation, and the other party wants a divorce, the divorce will prevail.

A legal separation is obtained similarly to a divorce. One party must file with a California Family Court for legal separation, all the proper paperwork and financial disclosures must be exchanged, and the Judgment must be granted by the Court. This requires nearly all the same legal proceedings and due process as a full blown divorce.

The drawback of a legal separation is that, because it requires the consent of both parties, either party may proceed with an actual divorce at anytime, and this may cause the workload to double.

If you would like to obtain a legal separation, or if you would like to learn more about California Legal Separation, you should contact a California family lawyer for a consultation to learn about your rights and responsibilities.