California divorce law Archives - Page 2 of 4 - Lonich Patton Ehrlich Policastri

The Ways to End Your Marriage

August 8, 2014/in Family Law /by Mitchell Ehrlich

In California, a marriage is dissolved by (1) the death of a spouse, (2) a final judgment of divorce, or (3) an annulment. Alternatively, if spouses do not want to completely end their marriage but do want to terminate their marital rights, they can (4) file for legal separation. Here is a look into each one:

(1) Death of a Spouse

When a spouse dies, dissolution occurs automatically, as a matter of law. This can be significant in family law proceedings if the spouse dies after divorce proceedings have begun, but before a final judgment of dissolution. In this scenario, spousal status is not officially terminated and the surviving spouse will still be considered “married” for inheritance purposes. Additionally, any pending dissolution proceeding is rendered moot at the death of a spouse and the court has no power to hear any remaining unresolved issues.

(2) Divorce

Divorce is the proceeding that legally ends the marriage or domestic partnership. Under Family Code section 2310, the grounds for divorce may be either “irreconcilable differences” or “incurable insanity.” Most marriages are dissolved on the ground of “irreconcilable differences.” A dissolution granted on the grounds of “incurable insanity” requires evidence – including competent medical or psychiatric testimony – that your spouse is incurably insane. In fact, this ground is so uncommon that there are no known reported decisions defining “incurable insanity” in the dissolution context. Further, it offers no tactical advantage so even if your spouse is incurably insane, pleading irreconcilable differences is much easier.

The determination of whether “irreconcilable differences” exist is essentially a ministerial function and is rarely a matter of contention. California is a no-fault divorce state, which means that any evidence of specific acts of misconduct (such as cheating, gambling, or heavy drinking) is improper. Courts recognize that ending a marriage is an intensely personal decision and only need to be convinced that the marital differences are substantial. Thus, direct proof of objective reasons supporting the divorce is not required.

(3) Annulment

An annulment declares the marriage was not legally valid – it was never entered into – and like other defenses to contracts, an annulment can occur if one party was not of sound-mind at the time of the marriage or if the marriage was procured by fraud.

A famous example of an annulment due to lack of capacity is Ms. Britney Spears’ 55-hour marriage to her high school friend, Jason Alexander, in Las Vegas. Ms. Spears sought an annulment stating that she “lacked understanding of her actions to the extent that she was incapable of agreeing to the marriage because she and Alexander did not know each other’s likes and dislikes, each other’s desires to have or not have children, and each other’s desires as to State of residency.” In other words, she was drunk and this was a joke that went too far.

Marriages can be annulled for fraud, if the fraud relates to a matter that California deems vital to the marriage relationship and the fraud directly affects the purpose of the party deceived entering the marital contract. Usually, annulments based on fraud involve the sexual and procreative aspects of marriage, such as a secret intention not to live with the other spouse or a concealment of sterility. False representations about earning capacity, wealth, or social status are not the type of fraud that will warrant a nullity. Nor will a failure to fulfill wedding vows or commonly understood spousal obligations, such as being a loving and supporting partner.

(4) Legal Separation

The grounds for legal separation are the same as those for a divorce but it does not end the marriage. Legal separation is an alternative to divorce, where the spouses do not want to completely sever the legal status of the marriage. Otherwise, a legal separation operates similarly to a divorce, separating all finances and property.

Spouses often seek a legal separation for religious or other personal reasons, or to retain eligibility for medical insurance, veteran’s benefits, or social security benefits that would have otherwise been lost by a divorce.

If you have any questions about the proper way to end your marriage, please contact our California Certified Family Law Specialists. Our attorneys have decades of experience handling complex family law proceeds and offer a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Tax and Estate Planning for Same-Sex Couples

August 1, 2014/in Estate Planning, In the Community, Probate /by David Patton

Earlier this week, the U.S. Court of Appeals for the 4th Circuit struck down Virginia’s same-sex marriage ban, saying that withholding the fundamental right to marry from same-sex couples is a form of segregation that the Constitution cannot tolerate.

In June 2013, the Supreme Court of the United States in United States v. Windsor, held that the federal government must recognize same-sex marriages and that it is up to state Legislatures to define marriage within state boundaries. Since then, numerous law-suits challenging the constitutionality of state DOMAs on equal protection and due process grounds have prevailed in various federal and state courts. Currently, 19 states, including California, plus the District of Columbia recognize same-sex marriage (recognition states), while 40 states prohibit it (non-recognition states).

The prevailing prediction is that a Supreme Court guarantee of a right to marriage is on its way. American support for same-sex marriage is at a new high of 55 percent, and California support is at 61 percent and increasing, if the trends continue. It is important for all couples to create an estate plan. Additionally, it is important for same-sex couples to be aware of the potentially complicated issues that arise when they move across state lines.

Same-Sex Couples Living in California

Same-sex married couples now living in California enjoy the same benefits and burdens under state and federal law as married opposite-sex couples. Before Windsor and IRS Revenue Ruling 2013-17 (which extended federal tax benefits to married same-sex couples, regardless of their state of residency), many married opposite-sex couples likely took this preferential treatment for granted.

Some of these benefits include:

Property transferred between spouses incident to a divorce is not subject to income or gift tax;
Spousal support (alimony) payments are tax deductible to the paying spouse;
Child support payments are not subject to income tax;
Spouses receive a community interest in 401(k) accounts and other retirement plans; and
Spouses receive all community property and anywhere from one-third to all of the deceased spouse’s separate property for intestate (when a person dies without a will or other non-probate instrument) inheritance purposes.

All couples should be aware of their legal rights at marriage, divorce, and death. It is important for both same-sex couples and opposite-sex couples to consider pre-marital agreements, estate plans, and any tax consequences that arise from marriage or divorce.

The Marital Status of Migrating Same-Sex Couples

When a same-sex couple moves out of California, their marital status will depend on the other state’s law with regards to various issues including, state tax filing status, intestate succession, guardianship and conservatorship appointments, and adoption and artificial reproductive technologies. In other words, a non-recognition state may not recognize the otherwise valid same-sex marriage.

If and when the Supreme Court guarantees a right to marriage, moving across state lines will no longer be an issue for same-sex couples. However, in the interim, it is important to be aware of the possible legal consequences.

For example, under Florida law, the definition of “heir” does not include same-sex spouses for intestate inheritance purposes. This means that a same-sex couple that was married in California, but permanently living in Florida, will not inherit from each other under the Florida intestate system. Some courts in non-recognition states are willing to recognize same-sex marriage in certain contexts through the doctrine of comity, which is where a court gives deference to another state’s laws. However, most surviving spouses want to avoid litigation because it can be a headache, requiring time, money, and mental energy.

In some cases, it might be worthwhile for same-sex spouses to opt out of the intestate system with non-probate instruments, such as estate plans. A same-sex couple’s estate plan needs to be drafted with precision, specifically naming beneficiaries, rather than using general terms such as “spouse.” This becomes especially important if a same-sex couple moves to a non-recognition state, where the court may not interpret a same-sex spouse to qualify as a spouse or heir. If any other blood related heirs of the deceased spouse were to contest the non-probate instrument, they could end up inheriting property that would have gone to the same-sex spouse in California or another recognition state.

If you are a same-sex couple and are considering marriage, or need to create or update an estate plan, please contact our California Certified Family Law Specialists. Our attorneys have decades of experience handling complex family law and estate planning matters and offer a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

“No good marriage ever ended in divorce” – Louis C.K.

July 30, 2014/in Family Law /by Gina Policastri

“Divorce is always good news. I know that sounds weird, but it’s true because no good marriage has ever ended in divorce. That would be sad. If two people were married and they just had a great thing … and then they got divorced, that would be really sad. But that has happened zero times.”

-Louis C.K.

This inevitably leads to the question: what is a “good” marriage? Likely, the answer is there are no good or bad marriages. Instead there are a range of risk factors associated with divorce. When two people get married, they usually aren’t thinking that the marriage will end in divorce. But then hard times arise and sometimes they find themselves thinking either casually or seriously about divorce. Is there a way to know if your marriage is statistically likely to end in divorce? Below, we will take a look at some of the most common risk factors in the United States.

Current state of divorce

In the United States, researchers estimate that 40 to 50 percent of all first marriages will end in divorce or permanent separation. The risk of divorce is even higher for second marriages at about 60 percent. Divorce has always been present in American society although it has become more common in the last 50 years. Surprisingly, the highest divorce rates ever recorded were in the 1970’s and 1980’s. Since then the divorce rate has actually decreased a little but still remains at a historically high rate.

Researchers have found that individuals considering divorce make their decision to stay or leave based on the rewards they gain from the marriage, the barriers against leaving the marriage, their perceptions about finding a better relationship, and the amount of investment they have made in their marriage.

Barriers to leaving a marriage, such as concerns about money and the effects of family breakup on their children, can keep marriages together in the short term. However, unless there is improvement in the relationship, eventually the barriers are usually not enough to keep a marriage together in the long run.

What factors are associated with a higher risk for divorce?

The statistics which show that almost half of all marriages end in divorce might make it seem like staying married has the same odds as roulette – namely 50/50. However, research has identified various factors that are associated with a higher risk for divorce. Some couples may have a low risk and others might have a higher risk of divorcing. Understanding these factors may not directly help improve your marriage or make a decision about getting divorced, but they may help couples understand why they’re facing challenges. Researchers have identified the most common factors as:

Young Age. Marrying at a young age increases your likelihood of divorce, especially in the early years of marriage. People who married in their teens are at dramatically higher risk for divorce than those who married as early as age 21 or 22.
Less education. Researchers estimate that individuals who have some college education as opposed to not finishing high school have a lower chance of divorce. Investing in an education is a good way to build a foundation for a better marriage, not just a better job.
Less income. Tied to education is income. Research has estimated that individuals with incomes exceeding $50,000 have a lower chance of divorce. Finances can be stressful and having at least a modest income can help couples avoid stresses that can lead to divorce. If you argue with your spouse about finances once a week, your marriage is 30 percent more likely to end in divorce than if you argue less frequently about finances.
Premarital childbearing and pregnancy. In America, more than one-third (37%) of children are born to parents who are not married, and few of these parents eventually marry. Most of those parents will separate before the child begins school, some will never really get together.
If you have a daughter, you’re 5% more likely to divorce. This figure multiplies with the number of daughters. Researchers believe that this happens because fathers are more invested in family life when they have boys.
If you or your partner have had a previous marriage. Data shows that second (or third or fourth) marriages should be more successful than first marriages. However, this statistic is skewed by serial marriages and researchers have been unable to take the Elizabeth Taylors out of the equation.
Parents’ divorce. Of course, some risk factors for divorce you can’t control. If you experienced the divorce of your parents, unfortunately, that doubles your risk for divorce. If your spouse witnessed their parents’ divorce, then your risk more than triples. This does not doom your marriage to failure but rather suggests that individuals who experienced the divorce of their parents need to work harder to make good marriage choices and to keep their marriage strong and happy.
Same-sex marriages are more likely to end in divorce. Although the LGBT community is just starting to have legally recognized marriages in the United States, a research team led by Stockholm University on legal partnerships in Norway and Sweden found that male same-sex marriages are 50 percent more likely to end in divorce than a heterosexual marriage. If you’re a female in a same-sex marriage, this figure soars to 167 percent.

These are only a few risk factors that researchers have identified and none of them represent automatic doom for a marriage. However, if a number of these and other risk factors are present, seeking pre-marital or other counseling may be recommended, even if nothing seems wrong at the moment. Much like roulette, one can increase the odds in their favor by learning more about marriage, themselves and their partners.

If divorce seems inevitable, it is also recommended that couples take time to try to fix the relationship through counseling or some other professional service before making the decision to call it quits. However, we understand that sometimes there are no alternatives besides divorce.

If you are considering divorce or have questions about divorce planning, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization). Our attorneys have decades of experience handling complex family law proceedings and offer a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

How Much Does Divorce Cost?

July 22, 2014/in Family Law /by Gretchen Boger

Divorce can be really expensive. For example, the 2007 Connecticut divorce between travel entrepreneur, Peter Tauck, and his ex-wife racked up around $13 million in legal fees. The bill reflected two years of highly-contested litigation costs, including nearly 700 filings and an 86-day trial. It is common for such strikingly high-cost divorces to reach news headlines, but how much does getting a divorce really cost?

Plenty of websites have popped up that promise an “easy and affordable divorce” ranging from $99 to $300. These cheap alternatives may be enticing, and could be useful for couples who have few assets and agree on every aspect of child custody and visitation – they just need lawyers to fill out the required forms.

However, most spouses disagree about at least a few things in connection with their divorce. One of the most hotly contested issues is often child custody and visitation. California courts require divorcing parents to attend mediation to see if custody issues can be resolved without a trial, and they often can be. However, in some cases it is necessary to have a child custody evaluation, which can be either broad or specific in scope. This involves retaining a child custody evaluator, who is an expert, usually a forensic therapist or psychologist. The evaluator meets with both parties, the children, and sometimes collateral contacts, and then prepares a report to assist the court in making custody and visitation orders. Evaluations range substantially in cost, which is usually divided equally between the parties.

Aside from custody disputes, divorces mostly concern money and can require complicated financial calculations to determine and equitably divide the community’s interest in your marital estate. Such calculations may include the percentage you contributed to your 401(k) during marriage, or the amount of post-separation mortgage payments on the family home. Sometimes these issues are complicated enough to require hiring a CPA or a forensic accountant. In addition, many people receive stock options, or RSU’s as part of their employment compensation packages, and it can be necessary to retain an expert for division. Further, sometimes it is necessary to obtain real property appraisals or fair rental surveys, which range in cost depending on the size of the property.

If you and your spouse have acquired a substantial estate, the work to determine the community’s interest and agree on an equitable division can really add up. Even in what seems like a simple case, the cost can be high depending on many factors. Hourly rates for attorneys can range anywhere from $150, at the very low end, up to $1,000. Spouses can definitely expect to pay attorney fees and court costs, and there may be additional costs for parent education classes, co-parent counseling, private mediation, or retaining various experts.

The good news is that most of the cost is a function of how quickly you and your spouse can reach an agreement – it is in part under your control. If agreement cannot be reached, it may be necessary to file motions, which can cost between $3,000 and $10,000 for preparation and appearance at a hearing. The need for depositions and trial will also increase the cost of your divorce. If you have no assets and no children, it is possible to walk away only spending the filing fees. If you are able to reach a global or partial settlement agreement then the cost of dissolving your marriage will be greatly reduced. However, if you cannot be in the same room as each other without becoming outraged, your divorce could easily cost more than your wedding.

However, if your spouse makes more money than you, or has a greater “access to income,” you may be able to obtain an order for “need-based” attorney’s fees, payable by your spouse. In addition, if your spouse or their attorney is being really unreasonable, you may have the right to obtain sanctions in the form of attorney fees and costs from your spouse. These sanctions can be ordered when conduct frustrates the policy of the law to promote settlement.

On July 13, 2014, a Nebraska man, Michael Peterson, plead no contest to the first degree murder of his divorce attorney. After an unsuccessful malpractice suit seeking reimbursement for over $57,000 in attorney fees, Peterson shot his divorce attorney in the back with a high-velocity rifle. In order to avoid murderous rage upon receiving your bill, it is important to have an open and honest conversation about fees and costs, and ask for an estimated budget before going to trial.

Please be aware, however, that it is simply impossible to accurately estimate the cost of your divorce – there are too many possible factors for anyone to promise a certain outcome for a certain amount. If you have questions or are worried about the cost of your upcoming divorce, please contact our California Certified Family Law Specialists. Our attorneys have decades of experience handling complex family law matters and offer a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

How Facebook Can Affect Your Divorce

July 2, 2014/in Family Law, In the Community /by Gretchen Boger

Last February 2013, a New York Father was awarded sole custody after a Mother utilized Facebook to “insult and demean” her ten year old child. The Court found that Father was “more able to provide a stable and nurturing environment” for the children, citing Mother’s “inappropriate use of the Internet and lack of remorse or insight into the appropriateness of such behavior.”

Social media can play a dangerous role during divorce proceedings. Facebook, which now has more than 800 million active users, has become an important and undeniable presence in today’s culture. Your profile shares and records everything from your personal information, to your new profile picture, and your mood. Your posts may be valuable evidence to your ex-spouse’s divorce attorney.

In recent years there has been an increase, especially in family law cases, of the amount of evidence collected from social media sites. Photographs, updates, and conversations you post online may be admitted into evidence. Further, it might not be a good idea to post about your divorce proceedings. If you do, choose your words carefully and express yourself diplomatically – on the same level as you would present yourself to your judge. This rule of thumb extends to iMessages, emails, Twitter, dating websites, your blog, etc.

Remember that anything online is extremely accessible. If you post anything that contradicts what you have stated in your pleadings, it can impeach your credibility and given the discretionary nature of family law cases, may negatively impact your case. For example, the following Facebook activity often makes its way into the family courtroom:

Posting pictures of an extravagant vacation – you at a resort indulging in the day spa can provide evidence of financial misconduct with regards to spousal support or child support.
Updating your status while inebriated – constant updates with slurred-speech or checking-in to five happy hours each week can suggest you have drug or alcohol dependency problems and sway the judge in awarding custody.
Bad mouthing your divorce proceedings – complaining about your judge or your ex-spouse’s nasty opposing counsel can appear as if you do not take the process seriously.

Even if you have de-friended people who know your ex and made your privacy settings air-tight, your ex may still be able to access your updates. Recently, Facebook was put in the spotlight over a controversial social experiment it conducted to determine whether emotions are contagious (conclusion: they are). Without first getting consent, Facebook manipulated 689,003 user’s News Feeds to display either positive or negative posts and then monitored the users’ reactions. People have had various reactions towards this experiment. Some feel violated for being used as a lab rat. This study is a reminder that regardless of your consent, you never know who has access to or has saved what you posted.

The bottom line: think before updating your Facebook status, especially during divorce proceedings. Online statements are similar to face-to-face conversations but they are much easier to document. Further, the court may consider your posts in your divorce proceedings.

If you have any questions or concerns about your or your spouse’s online presence and how it may affect your divorce, feel free to contact our California Certified Family Law Specialists. Our attorneys have decades of experience handling complex family law proceedings and offer a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Modification of Spousal Support: The Duty to Become Self-Supporting

September 24, 2012/in Family Law /by Mitchell Ehrlich

To modify a spousal support order, the moving party must show a material change of circumstances since the last order, even if the parties stipulated to the prior order. A recent case, In re Marriage of Khera and Sameer, addressed if a party’s unrealized expectation that she would become self-supporting as of the spousal support order’s specified termination date could be a basis to modify the order and extend the term of spousal support.

In Khera and Sameer, the parties’ spousal support order provided for termination of spousal support on a specific date unless, before that time, the ex-wife brought a motion to modify for good cause. At the time that the parties entered into the agreement, Wife was not working but the parties anticipated that she would be working as a social worker and able to support herself by the termination date.

Wife filed a post-judgment motion to modify the spousal support order and extend the duration of support. She argued that there was a change of circumstances in the form of “unrealized expectations” regarding her ability to support herself. She alleged that the parties’ expectation that she would be employed as a social worker making $42,000 annually was not realized as she was making approximately $700 per month at the time she filed for modification.

On appeal, the court noted that a material change of circumstances could be in the form of unrealized expectations, but circumstances accounted for in the prior order cannot constitute a change of circumstances.

The court stated that so long as the supported spouse has made reasonable efforts to become self-supporting, a change of circumstances may be in the form of unrealized expectations in the ability of the supported spouse to become self-supporting within a reasonable period of time. Ex-wife needed to make a showing that, “despite her reasonable efforts, she was unable to support herself” in order for her unrealized expectation of self-support to constitute a change of circumstances. Wife’s declaration did not show that she diligently acted to achieve financial self-sufficiency or that despite her reasonable efforts, she was unable to obtain to obtain full time work. Rather, Wife made a voluntary decision to pursue a doctoral degree rather than finishing her MSW degree and going to work full-time. The court found no abuse of discretion in the trial court’s finding that the evidence was insufficient to show a material change in circumstances and refusal to modify the judgment to extend spousal support.**

The certified Family Law Specialists as certified by The State Bar of California Board of Legal Specialization at Lonich Patton Ehrlich Policastri have decades of experience handling complex family law matters. If you find yourself on either side of a spousal support modification, contact Lonich Patton Ehrlich Policastri for further information.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

*In re Marriage of Khera and Sameer (2012) 206 Cal.App.4th 1467.

**The court considered other issues in determining whether there was a material change in circumstances since the last order, such as Wife’s debt and disparity in income between the ex-spouses, and the marital standard of living; however, we are focusing on the duty to become self-supporting. Please read the case to understand the breadth of the issues and reasoning of the court’s decision.

Settling Your Divorce Amicably

August 2, 2012/in Family Law /by Gina Policastri

Part Three of a blogging series covering the Cruise and Holmes divorce.

Statements issued by Tom Cruise and Katie Holmes confirm that they have settled their divorce amicably. Cruise and Holmes had a prenup, which allegedly provided that Holmes could be awarded up to $3 million for each year of marriage. The prenup was not all-inclusive of their rights and obligations, however, as it likely did not account for their daughter, Suri. What does a divorce settlement entail?

Through a marital settlement agreement (MSA), parties seeking a legal separation, dissolution or judgment of nullity attempt to resolve their contested disputes and claims. An MSA typically addresses the characterization of assets, payment of child support and spousal support, child custody and visitation, attorney fees and costs, and other rights and obligations. Usually, an MSA is incorporated into a judgment of dissolution, and the rights and obligations of the ex-spouses are governed by the terms of the final judgment.

Mediation is an efficient, collaborative, and amicable way to create an MSA. Managing Partner Michael E. Lonich is a highly experienced litigator who specializes in mediating divorces and complex family issues. Spouses can utilize mediation whether represented by an attorney or not, and it can be a cost and time effective alternative to advocate based litigation. By amicably and collaboratively reaching a divorce settlement, Cruise and Holmes were able to determine their rights and obligations without excessive court intervention.

If you find yourself on either side of a divorce or are interested in our mediation services, contact the Family Law group at Lonich & Patton for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Residency Requirement for Divorce

July 16, 2012/1 Comment/in Family Law /by David Patton

Part Two of a blogging series covering legal issues presented in the Cruise and Holmes divorce.

Katie Holmes filed for divorce in New York, but could she have filed in California instead? At the heart of this issue is if Holmes has met the New York residency requirement. Though a divorce settlement has reportedly been reached between Cruise and Holmes, just last week there was a dispute surrounding the simple filing of the action.

To file for divorce in California, one of the spouses must be a resident of California for six months and a resident of the county for the three months immediately preceding the filing. New York has a longer residency requirement. Holmes has allegedly been secretly renting an apartment in New York on her own for the past year, so she may be able to establish residency.

Residency requirements can be complicated, but the Certified Family Law Specialists* at Lonich Patton Ehrlich Policastri have decades of experience handling complex family law matters. If you find yourself on either side of a divorce, contact the Certified Family Law Specialists* at Lonich Patton Ehrlich Policastri for further information.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Grounds for Divorce in California

July 5, 2012/in Family Law /by Mitchell Ehrlich

Part One of a blogging series covering legal issues presented in the Cruise and Holmes divorce.

In the midst of Tom Cruise and Katie Holmes’ divorce, you might be wondering what the grounds are to file for divorce. No, Katie Holmes cannot cite “Dislike for Scientology” or “We’re Just Friends” as a basis for relief.

In California, a divorce can be sought only on the grounds of irreconcilable differences or incurable insanity. California is considered a “no-fault” state. The irreconcilable differences ground is purposely broad. It is intended to represent the actual reasons underlying marital breakdowns and at the same time make irrelevant questions of fault or misconduct by either party.*

Holmes filed for divorce in New York** citing a “no-fault” cause of action called “irretrievable breakdown.” In addition, New York recognizes six other grounds for divorce. As a result of citing “irretrievable breakdown,” neither Cruise nor Holmes can play the “blame game.” It will be interesting to see how the case unfolds and whether or not the parties are able to reach agreements to keep the case out of court and out of the spotlight as much as possible.

The Certified Family Law Specialists*** at Lonich Patton Ehrlich Policastri have decades of experience handling complex family law matters. If you find yourself on either side of a divorce case, contact the Certified Family Law Specialists*** at Lonich Patton Ehrlich Policastri for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

* See Marriage of Walton (1972) 28 Cal.App.3d 108, 119.

** Venue, aka proper county for trial, will be featured in Part Two of the blog series next week.

*** Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Fiduciary Duties Between Spouses: Respect Thy Spouse

June 19, 2012/1 Comment/in Family Law /by Gina Policastri

Husband uses wife’s private shopper and bank account to purchase $1.4 million worth of luxury goods from Neiman Marcus. Wife is bedridden the entire time recovering from a traffic accident. Private shopper is having sexual relations with husband, and earns a commission off of the sales. Neiman Marcus is reportedly refusing to return the goods. (See http://abcn.ws/KsRBy8.) Does wife have any legal recourse for the purchases she did not participate in? This true story is one extreme example of how spouses can breach the fiduciary duties they owe to each other.

Under the California Family Code, spouses are treated much like business partners and must deal fairly and in good faith with each other. The fiduciary duties require an “accurate and complete” disclosure of all transactions and provide that spouses share equal management and control of their community property. These duties are subject to few exceptions and the consequences for breaching them can be severe. If you find yourself on either side of a breach of fiduciary duty claim, the experienced attorneys at Lonich Patton Ehrlich Policastri can assist you in determining your rights, obligations and exposure.

The Certified Family Law Specialists* at Lonich Patton Ehrlich Policastri have decades of experience handling complex family law matters. If you are interested in learning more about your fiduciary rights and obligations, contact the Certified Family Law Specialists* at Lonich Patton Ehrlich Policastri for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Posts

The Ways to End Your Marriage

Tax and Estate Planning for Same-Sex Couples

“No good marriage ever ended in divorce” – Louis C.K.

How Much Does Divorce Cost?

How Facebook Can Affect Your Divorce

Modification of Spousal Support: The Duty to Become Self-Supporting

Settling Your Divorce Amicably

Residency Requirement for Divorce

Grounds for Divorce in California

Fiduciary Duties Between Spouses: Respect Thy Spouse

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