There is a rumor that embattled former senator and presidential contender John Edwards is going to marry his one-time mistress, Rielle Hunter.  Edwards is accused of conspiring to violate campaign finance laws by using approximately $1 million from campaign donors to cover up his affair and the child he fathered with Rielle Hunter.  If Edwards does marry Hunter, she would not be required to testify against him at the trial if she did not want to, and some theorists believe this is the only reason he wants to marry Ms. Hunter.  This is due to the testimonial privilege between spouses.  If this matter were a divorce, however, the privilege against spouses testifying against each other would not apply.

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.

Social media accounts like Twitter and Facebook are beginning to take their place in the pantheon of highly contested properties for divorcing couples in California. As we all know, couples dissolving their marriages divide a wide range of assets already – everything from cars and homes to stock options, businesses and artwork. The unavoidable fact is that social media accounts are property, and as the value of such property increases, so too will the litigation surrounding them.

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.

I read this morning that Maria Shriver is having second thoughts about divorcing Arnold Schwarzenegger. TMZ reports that her religious views do not allow divorce.

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.

What do you do when your marriage is falling apart but the concept of divorce is unacceptable? The answer might be “legal separation.” Divorce isn’t for everyone; sometimes for religious or other personal reasons, a couple will prefer a legal separation as an alternative to a divorce. A legal separation is very similar to a divorce: parties divide assets and address financial issues as in a divorce; the parties structure child custody and child support as in a divorce, and most parties live apart as in a divorce. The difference is in the name- the result is a “legal separation,” and not an actual “divorce.”

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.

Most parents in California are still under the impression that in a dispute “Mom gets the kids,” and that Dad gets “some visitation.” In reality, the California courts have changed the custody goals in recent years to rebut this old stereotype.

When it comes to custody matters, the goal of the courts – as prescribed in California Family Code Sec. 3040 – is to create a plan which is in the best interests of the children, and to aim for joint legal and joint physical custody. This often means an equal timeshare with both parents (sometimes historically referred to as a “50/50 split.”) The important implication here is that Dad has just as many rights to equal time with the children as Mom. This intention to grant both parents equal time with the children is simply what the court system believes is in the best interest of children. Judges often stress in their courtrooms the benefits to children of having both parents involved in their daily lives.

The important distinction to recognize is that the “goal” of the court system is not necessarily determinative of the final custody outcome. In a perfect world, after a couple splits up, both parents would get along like old pals, live in the same neighborhood, be responsible and conscientious parents, and raise their children together without a single disagreement. Needless to say, this is not the reality we usually see.

More often, we see custody arrangements with varying schedules, and unequal division of time between mothers and fathers. Sometimes mothers are given primary custody of the children, and other times, fathers are awarded primary custody. Fortunately, in most cases in California, the court’s custody decisions are no longer based upon biased preferences for mothers, but are based solely on the best interest of the child, which could result in any number of varying timeshare schedules.

In making custody decisions, the courts take many issues into consideration as they are evaluating each parent individually. The court takes this job very seriously, effectively putting each parent under a microscope throughout the custody process. If a court believes that both parents are equally fit to care for the child, and the geographic distance between the parents is minimal, there is a high likelihood the court will strive for an equal timeshare with both parents. Even if an initial custody order does not reflect an equal custody arrangement, the court’s goal is always to move closer to an equal timeshare schedule as time goes by.

Custody cases are far from black and white. With the diminishing stereotype that children belong only with their mothers, the courts are focusing on parents as individuals. While this may have the unintended effect of increasing an already complex litigation process, the court’s long-term goal of joint custody and equal timeshare is a reality that both parents need to understand when facing custody disputes.

We try to refrain from simply reposting other people’s work on this blog, but this article from Diana Mercer is so completely on point that we just can’t resist.  Ever wonder why some divorces wrap up right away and cheap while others drag on for years and cost hundreds of thousands of dollars?  Well here’s your answer.

http://www.huffingtonpost.com/diana-mercer/10-best-ways-to-screw-up-_b_811859.html#s229223&title=Be_Disorganized

Working with divorce every day, I am very aware of the financial struggles that couples face at the end of marriage.  None of these issues are strawberries and ice cream, but the one area that causes more heads to explode than any other is without a doubt, the area of spousal support.  Spousal support (also called alimony in some States) is the payment that the higher earning spouse typically makes to the lower earning spouse after a separation or divorce.

Rather than go through a lengthy explanation of support law in California, I thought I would dedicate this post to a brief discussion of perspective.  Higher earning spouses always want to know why the heck they have to pay.  So here’s a primer for you.

The historical concept of marriage is that two people come together to form one financial unit.  When that happens, a division of labor is generally efficient.  One person does laundry, the other dishes.  More traditionally, one takes care of children while the other takes care of money.  Or perhaps one plugs away at their small business while the other stops working to manage construction on a house.

Either way, the upshot is that typically, one spouse is advancing their career and saving money while the other is not.  This works just fine so long as the family unit remains intact. Without the rules we have in place for division of community property and payment of spousal support, non-working spouses could be left without anything to live on after divorce.

California wants to protect the non-working spouse so that the welfare system doesn’t have to feed those people.  On the other hand, public policy also detests abuse and does not want to overpay recipient spouses.  For this reason judge’s have quite a lot of discretion to limit support when appropriate.

The point is, California has rules in place that are intended to protect both parties in a marriage. Both sides typically think the rules are unfair when they’re being enforced, but the legislature hasn’t come up with anything better.

If you are concerned about the payment of spousal support in your marriage, the best way to minimize it is to have signed a valid premarital agreement (prenup).  Postmarital agreements can also be effective in this area.  Absent those documents, however,  support is virtually guaranteed when there are disparate incomes.

We’re happy to invite our good friend Jim Argo to post this week about credit scores. Jim is a truly talented mortgage broker, and also a hell of a jazz musician. Here’s what Jim has to tell us:

When a marriage or domestic partnership ends in divorce or separation, the lives of those involved are changed forever. During this time of upheaval, one thing that shouldn’t have to change is the credit status you’ve worked so hard to achieve.

Unfortunately, for many, the experience is the exact opposite. Unfulfilled promises to pay bills, the maxing out of credit cards, and a total breakdown in communication frequently lead to the annihilation of at least one person’s credit. Depending upon how finances are structured, it can sometimes have a negative impact on both parties.

The good news is it doesn’t have to be this way. By taking a proactive approach and creating a specific plan to maintain one’s credit status, anyone can ensure that “starting over” doesn’t have to mean rebuilding credit.

The first step for anyone going through a divorce or separation is to obtain copies of your credit report from the 3 major agencies.  Once you have this information at your fingertips, it’s time to make a plan.

There are two types of credit accounts: The first type is a secured account, meaning it’s attached to an asset. The most common secured accounts are car loans and home mortgages. The second type is an unsecured account.

In the case of a mortgage, enlisting the aid of a qualified mortgage professional is extremely important.  A mortgage professional can help you review your existing home loan along with the equity you’ve built up and then help you to determine the best course of action.

When it comes to unsecured accounts, you will need to act quickly. It’s important to know which person (if not both) is vested.  If you are merely a signer on the account, first check with your attorney, and if there are not legal problems with doing so, then have your name removed immediately.  If you are the vested party and your spouse or partner is a signer, also check with your attorney, but consider having their name removed.  Any joint accounts (both parties vested) that do not carry a balance should be closed immediately if both parties agree.

Ensuring on-time payment of debt which carries your name is paramount when it comes to preserving credit. Keep in mind that one 30-day late payment can drop your credit score as much as 75 points.  So, regardless of which person is ordered by the judge to pay the account, any late payments affect the credit score of both parties.  The message here is to not only eliminate all joint accounts, but to do it quickly.

Divorce and separation are difficult for everyone involved. But by taking these steps, you can ensure that your credit remains intact.

James Argo

www.JamesArgo.com

We’ve always said that money fights lead to divorce.  This study indicates that at the very least, money fights predict divorce.

Here’s a quotation from an article discussing the study:

A new study, by Jeffrey Dew at Utah State University, attempts to quantify [the risk that money-related tensions lead to divorce]. His finding: Couples who reported disagreeing about finance once a week were over 30 percent more likely to get divorced than couples who reported disagreeing about finances a few times a month.

This is precisely the reason that couples need to discuss money before marriage.

Take a look at this NYTimes article about the necessity of holding money talks before marriage. Here’s an excerpt:

Divorce tends to be emotionally gut-wrenching for the people who go through it (not to mention those around them). But most couples don’t realize that divorce can also be among the most ruinous financial moves anyone can make…

The risk that any marriage will end in divorce is about 45 percent, according to David Popenoe, a professor of sociology emeritus at Rutgers University. The chances fall to about 40 percent for first marriages and decline further for college-educated couples, people from intact families and couples who share the same religion.

The article goes on to list several discussions that couples need to have before getting married if they want to avoid the statistics above.