Divorce: Three Times a Charm for Charlie Sheen

It's been a tough week for Charlie Sheen. On Tuesday, the 45-year-old actor was hospitalized after an "adverse" reaction to prescription medication. And on Monday (November 1), the "Two and a Half Men" star and wife Brooke Mueller filed for divorce citing "irreconcilable differences."

Back in May, Sheen and Mueller signed a 43-page settlement that divided all their assets and settled a child custody agreement. According to documents obtained by TMZ, the couple are seeking joint custody of their twins, Bob and Max.

In addition to physical custody, Mueller will receive $55,000 a month in child support. That monetary sum must be no less than the amount of support he is obliged to pay for his children with ex-wife Denise Richards, as the document reads, "Under no circumstances shall the child support paid by Charlie for Bob and Max be less than the child support paid by Charlie to Denise Richards for Sam and Lola."

The couple, who married in May 2008, have experienced their share of trouble, including a domestic dispute over Christmas at their home in Aspen, Colorado. Sheen had reportedly threatened Mueller with a knife and was charged with misdemeanor third-degree assault as a result of a plea deal. He later entered rehab "as a preventative measure," according to a statement issued by his publicist.

The Importance of a Divorce Judgment!

GETTING TO JUDGMENT

"But I thought I was already divorced!?"

I have practiced divorce and family law for over a decade. HOW MANY TIMES HAVE I HEARD THIS SILLY STATEMENT?

FIRST, obviously, Judgment is important because it concludes your case.

I think many clients confuse Judgment with temporary Orders, which we often see in a divorce case.

In California, there is a waiting period prior to entry of Judgment. (6 months after proper service of the initial papers). Prior to entry of Judgment, temporary Orders are often secured and enforced. (aka "pendente lite", which means pending litigation).

This leads me to the SECOND reason obtaining a JUDGMENT is important in your case.

In a divorce case, though the pre-Judgment orders are "temporary", temporary does not mean they expire automatically. "Temporary" only means until Judgment, or a subsequent Order, is entered.

In one of my cases, the parties were married for 3 short years. Divorce was filed in 1996, and a temporary order was obtained - H to pay W $1000/mo for child support and $2000/mo for spousal support.

After the temporary order was entered, both parties went their merry ways, and assumed their divorce was final.

WRONG.

It is now 2010. W has now filed a case with Department of Child Support Services, and alleges that NOTHING was paid for these past 14 years. There is now 1.5 million owing in back child support, and about 2.75 million owing in back spousal support.

What's wrong with this picture?

EVERYTHING!

Had this case gone to Judgment, there is NO WAY the Judge would have awarded 2.75 million in spousal support; rather, spousal support would likely not exceed the length of the marriage (3 years), so maximum H would have paid would be $72,000. NOT 2.75 million.

In addition, the parties are STILL legally married.

Moral of the story: Temporary orders are insufficient. GET YOUR CASE TO JUDGMENT.

Divorce Law 101 with Ms. Kelly Chang Rickert

Divorce Law 101 with Ms. Kelly Chang Rickert from Avvo on Vimeo.

Online Divorce Seminar featuring Kelly Chang Rickert

Free Online Seminar - Divorce 101

Tuesday, February 23, 2010 11:00 AM - 11:30 AM PST

Webinar Registration




Are you going through a divorce? Do you need help understanding the process?

Join us for a live discussion with a Divorce Attorney who can help you - for free.

Ask your questions on the call, but if you can't make it, please email your question ahead of time to ask@avvo.com.

We'll address the question during the call and send you the response.

To register, https://www2.gotomeeting.com/register/739155162

Divorce: Getting "Sluggo" to Pay for College

One question which we, (as Augusta, Georgia divorce lawyers), often get asked is: "Can I get the judge to make my spouse, "Sluggo," pay for the kids' college expenses?

The simple, unfortunate answer we generally must give is, "No." In other words, in Georgia, after the children turn eighteen, the non-custodial spouse is generally off the hook for court-ordered child support. But there still may be hope!

In other words, even though a judge may not order "Sluggo" to pay for the kids' college expenses, it is important for you to remember that this is a matter which you can raise with your divorce attorney and, with your divorce attorney's help, it can be negotiated and potentially included as part of a settlement agreement. So, don't give up on the idea. Instead, please just raise and discuss the idea with your divorce lawyer.

And please also don't forget that you should also discuss with your divorce attorney the idea of negotiating for spousal support, too, so that you, too, can afford to join your child at the University of Georgia!

Is Adultery Illegal in California?

I am proud to announce that I decided to partake in the making of a documentary entitled American Marriage: The Movie.

The two intuitive and brilliant filmmakers came over to my office, and my home, and posed some interesting questions - one of which prompted this blog entry.

Is adultery illegal?

Shockingly, I have learned that it still is against the law to cheat in twenty-two (22) states!

What about California?

My research unveiled the unfortunate answer of NO. However, it USED to be.

In 1872, the California Penal Code read,

§ 269a. Adultery. Every person who lives in a state of cohabitation and adultery is guilty of a misdemeanor and punishable by a fine not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding one year, or by both.

§ 269b. Adultery of married persons. If two persons, each being married to another, live together in a state of cohabitation and adultery, each is guilty of a felony, and punishable by imprisonment in the state prison not exceeding five years. A recorded certificate of marriage or a certified copy thereof, there being no decree of divorce, proves the marriage of a person for the purpose of this action. [Amendment approved 1911; Stats. 1911, p. 426.]

Unfortunately, both of these laws were repealed long ago as unconstitutional. These days, it is NOT against the law in California to commit adultery.

HOWEVER, California Family Code section 720 clearly states that in a marriage, "Husband and wife contract toward each other obligations of mutual respect, fidelity, and support."

Meaning, marriage is a contract consisting of FIDELITY, and cheating would be breach of contract for which, presumably, there may exist a civil remedy.

THIS LEADS TO EVERYONE'S BIGGEST QUESTION: ARE THERE ANY CONSEQUENCES TO ADULTERY?

We all know California is a "no-fault" state. (To read a full explanation on the "no-fault" system, go to my previous blog entry here.)

Does it affect child custody and visitation?

Cheating alone would probably not affect custody. Sad but true, we all know a couple of cheaters here and there that are still decent parents. Arguably, they cannot provide the moral background children deserve and need in this day and age...but neither does Grand Theft Auto and/or Facebook, and there are non-cheating parents that allow their children access to such!

Child custody and visitation is always determined strictly by the "best interests of the children". It is PRESUMED that children benefit the most from "frequent and continuing contact" with both mother and father.

I personally believe there must be boundaries when introducing children to a new girlfriend/boyfriend. Children are incredibly sensitive and delicate, and the sincere damage to them in being improperly exposed to a new girlfriend/boyfriend is irreparable. Parents should take their personal feelings and emotions OUT of the equation. No matter how you feel about your spouse, it is NOT ok to expose your children.

THINK BEFORE YOU ACT.

Does it affect support?

It does NOT affect child support.

However, it CAN affeect spousal support. California Family Code section 4323 states, "There is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex."

Does it affect property division?

California is a community property state. All property (NOT inheritance or gift) acquired during the marriage, before the date of separation, is community property.

This means specifically, if the cheating spouse is spending his or her salary acquired during the marriage OUTSIDE the marriage on someone else, they are spending community property and should be required to reimburse the community, sometimes with added interest.

I once had a case where I represented the spouse being cheated on. The "cheater" spouse spend close to 200,000 on extravagant trips, Cartier jewelry, Louis Vuitton handbags, lingerie, and other sundries. My deposition of the mistress revealed several thousands of other property.

Interestingly enough, this former mistress (she has long since been replaced, several times over), felt sincere regret and apologized on record and became friends with my client; thereby liberally disclosing all the information I needed to secure settlement within the HOUR.

Moral of the story: Don't cheat.

Divorce and the Economy

Several people have asked me how the economy has affected my practice. Below is an article which quotes me.


Recession Forces Divorced Back to Court to Lower Alimony, Child Support
By DIVORCE360.COM STAFF

When John and his wife divorced, they agreed to sell their home. But every time they come close, his ex stalls “because she wants to buy it.” With the real estate market in a tailspin and the nation in a recession, “She feels prices will go down further,” which would enable her to buy it from him at a cheaper price. To complicate matters, John, not his real name, recently lost his job in the financial industry. With the house issue looming, he’s already asked the court in his state to award him attorney’s fees since his wife filed for divorce. In addition, he’s considering a change to his property settlement: he may return to court to ask his ex for alimony, something he never would have done before the layoff.

According to legal experts from around the country, John’s tale isn’t unusual. The recession that’s affected every other aspect of America is now affecting family court as well. Clients are returning to court as a way to deal with financial hardships that are affecting their property settlement agreements. “It's happening because retirement accounts have dwindled to nothing for some people and a decree that gives you half of what was a robust account now gives you half of not much,” said retired attorney Brette Sember, author of a number of how-to books, including “The Divorce Organizer.”

Los Angeles, Calif., family law attorney Kelly Chang Rickert said her clients want to modify their judgments because their financial circumstances have changed dramatically. “Due to the economy and loss of jobs, I am seeing a lot more modifications to child support – reductions for the payor if they’re laid off and an increase for the recipient if they’re laid off…” Another big recession issue: “Alimony needs to be increased for folks who have lost jobs,” Sember said. In some cases, according to Chang Rickert, she’s even seeing changes in child custody arrangements because “parents who have been laid off have more time to spend with children.” A new mom herself, Chang Rickert has noticed “nannies and housekeepers are getting laid off because parents who have no jobs have more time” to spend at home.

California family law attorney David Pisarra said he’s seen so many clients dealing with this issue that he’s rolled out a new payment program – charging only a flat fee – “to address this new need.” John’s not the only one in a quandary over the inability to sell his marital home. Many property settlements state that the divorcing couple will sell their home, but “Many people can't sell and need to know what to do if they can't,” she said.

How Much Will My Divorce Cost?

A new client had just come in to see a famous lawyer.
"Can you tell me how much you charge?", said the client.
"Of course", the lawyer replied, "I charge $200 to answer three questions!"
"Well that's a bit steep, isn't it?"
"Yes it is", said the lawyer, "And what's your third question?"

HOW MUCH WILL THIS COST ME?
As expected, I get this question on a daily basis. First of all, I can only quote what I charge. Frequently, in divorce cases, you will need to hire other professionals - such as forensic accountants, appraisers, child custody evaluators, counselors, etc. Even just for my services- here is my answer - which never changes - IT DEPENDS.

TWO VERY SIMPLE, BUT VERY IMPORTANT POINTS!

One. Lawyers, like most professionals, are high hourly workers. The product I sell is my time. You are paying for my time by the hour, which is charged in increments of 6 minutes. Thus, if you call me for 5 minutes, you are charged .1 (or $30). If your phone call is 7 minutes, that equals .2 (or $60).

Two. Unless it is a flat-fee case (possible if there are no contested issues), the more time I spend on your case, the more expensive it will be. The amount of time I spend on your case depends on you, your spouse, your spouse's attorney, and the issues involved in your case.

Keeping these two points in mind, I will now refer to my article, The Purpose-Driven Divorce, to prepare some price estimates.

STEP ONE: FILING OF PETITION/RESPONSE
Purpose: To get the process started.
California is a “no-fault” state. This means that either spouse may file a divorce
without proving someone is at fault (i.e. cheating, physical violence, etc.). Thus, in
order to start a divorce, one party simply files a Petition for Dissolution. Currently,
this petition costs $320 to file.

After the petition is filed, the party who filed it must serve the other side with the
papers in order to notify them that a divorce proceeding has been filed. I highly
recommend that prior to serving the divorce papers, you notify the other side. We’ve
all seen the video footage of the crestfallen face of Kevin Federline, who allegedly
discovered via text message that Britney filed for divorce. Divorce is difficult enough.
If there is any room for courtesy, apply it.

After the other side receives the papers, they have thirty days to respond to the
Petition by filing a Response. The Response currently costs $320 to file. If they do
not file a response within thirty days, the person who filed the Petition (called the
Petitioner), may request a default judgment. In this case, they will generally receive
everything they ask for in their papers. (with some exceptions which you must discuss
with an attorney).

In California, Judgment is entered no earlier than six months after the date the
responding party (called the Respondent) is served with papers. Why six months?
This is the waiting period created by the Legislature to encourage reconciliation. It is
also a period where you can obtain all the financial information you need before
entering into an agreement. Obviously, if you can get divorced as quickly as you can
get married, our society would have greater problems than it already does.

After the initial Petition is filed, automatic temporary restraining orders (ATRO’s) kick
in. They apply to both the PETITIONER and the RESPONDENT. Some examples of
ATRO’s are the following: 1) cannot remove minor children out of state; 2) cannot
take benefited party off of insurance; 3) cannot transfer, convey, encumber, or
conceal property; 4) cannot create probate transfer without notice. The purpose of
ATRO’s, amongst other things, is to prevent angry parties from absconding with the
children out of malice, and to waste away all community assets in order to spite the
other side.

Filing and serving divorce papers is the first step. It is by far not the last step. To get
a Judgment, you must keep going.

Attorney time: 5 -20 hours ($1500 - $6000)
Process Server: $40 - $500
Court Costs: $400
Time Factors: Is the case new, or has it gone through several attorneys and collected 1000 boxes of documents? Is your spouse cooperative, or difficult to the bone, requiring private investigators to stake-out and serve him? Are there children? Are there properties? Have you reached any agreements about anything in your case?

STEP TWO: GETTING TEMPORARY ORDERS VIA OSC
Purpose: To have a sense of peace and order by having temporary orders in writing pending the Judgment.

Because it takes six months (or longer) to obtain a Judgment, in the interim, some logistics must be sorted out. For example: Who stays in the house? Who pays for the mortgage? If you are the supported spouse, will you get your living expenses paid for? What about spousal support? If you have children, who has custodial rights? What about child support?Because your questions need immediate answers, it is wise to get an immediate court date in order to resolve these issues. You get a court date by filing an OSC. This stands for “Order to Show Cause”, and can resolve issues of Child Custody/Visitation, Child Support, Spousal Support, Attorneys’ Fees, etc., pending the issuance of a Judgment. Currently, this costs $40 to file.Filing an OSC does not mean you are trigger-happy, and immediately racing to court to win. Remember: At all stages of divorce, you always have the option to reach an agreement with the other side. You are always in control of whether you want to go to court or not. Usually, if you reach an agreement, you can file it the Court. Usually, the Judge will agree with you, and even commend you for settling. There are certain exceptions, of course. For example, in California, you can never totally take away the Court’s power to rule on child support. It is always a good idea to file an OSC when issues of custody/visitation and support arise. Again, it takes six months or longer to obtain a Judgment. In the meantime, both parties should desire temporary orders for peace of mind.Of course, if both parties have been separated for a long period of time, and are self-supporting, and have no children, there may not be any issues to be resolved pending the Judgment. In this case, I would opt to forgo the OSC. Although the orders obtained through use of an OSC are called “pendent lite” (Latin for “while the case is pending”) temporary orders, in some cases, they may end up being the permanent orders incorporated into the Judgment. This is especially true in custody cases, because “status quo” is favored, and the longer a “temporary order” stays in place, the firmer a “status quo” arrangement becomes. It is essential to understand the important role of an OSC.

Attorney time: 10 - 30 hours ($3000 - $9000)
Court Costs: $40 per motion
Time factors: Are you cooperative and return my phone calls? Do you cooperate with my requests for documents? Are you immediately available to meet with me to go over the specifics of your case? Are you able to revise your declarations and promptly return to me? If you have witnesses, what is their availability, and do they cooperate? Is the other side represented? Is their representation well-versed with family law procedure and protocol? Does the court hearing conclude in one day? Does it get continued?

STEP THREE: DOMESTIC VIOLENCE RESTRAINING ORDERS

Purpose: In a high-conflict divorce and custody case, to protect the parties and children involved.

Unfortunately, sometimes, after a divorce or custody case is filed, someone gets angry and becomes physically or emotionally violent. This is particularly troublesome if there are minor children involved. In order to protect yourself, it may be vital to obtain a temporary restraining order against the other side.Temporary restraining orders (usually lasting no more than 20 days) may be granted without a full evidentiary hearing (based on declaration alone). Since they are granted based on one party’s declaration, they are set for hearing, where the Judge will take evidence from both sides before entering an Order for a longer restraining order. (lasting up to five years).In California, there is a rebuttable presumption that an award of custody to a perpetrator of domestic violence is detrimental to the best interests of the child. Because of the weight this carries, restraining orders are often abused in custody cases. It is essential to immediately consult with a competent family attorney if you are experiencing domestic violence in your case.

Attorney time: 15 - 40 hours ($4500 - $12,000)
Court Costs: $40 per motion
Time Factors: Domestic violence restraining orders are extremely important and take a lot of preparation. Preparation time includes setting up the case, interviewing witnesses, taking statements, preparing declarations, speaking with police officers. Are the court appearances on calendar ,and do they take place without delay? Does the Judge have time on his calendar to hear all witnesses? Do the witnesses appear? Does the other side have witnesses? Have you anticipated all issues that could be raised at the hearing?

STEP FOUR: DISCLOSURES OF FINANCES
Purpose: To Reach a Fair Settlement, and Ensure the Settlement Is Not
Later Overturned Due to Lack of Disclosure.

Frequently in relationships, one person knows more about their finances than the
other. California is a community property state. This means, all property acquired
after the date of marriage, before the date of separation, except for gift and inheritance,
is community property. Community property assumes the notion that even in
relationships where only one spouse works, the other spouse is contributing to the
marriage by staying at home and providing domestic duties.

Sometimes, the spouse that doesn’t work stays at home and does nothing. In a
community property state, that doesn’t matter. The law assumes they are contributing
something. Thus, in a divorce, both parties are entitled to half of what was earned
during the marriage.

Because of the community property laws, the law mandates that both parties must
make extensive financial disclosures. Generally, they will come in two parts – the
Preliminary Declarations of Disclosures (served at the outset); and the Final
Declarations of Disclosures (prior to settlement or trial). Because one party may know
more than the other, these mandatory disclosures are the court’s way of preventing
foul play. You must exchange disclosures. You cannot waive them.

If you are the supporting spouse, you may wonder: What happens if I don’t disclose
my assets? He or she does not know of my offshore bank account in the British
Virgin Islands.

There are several consequences to not disclosing. The Judge may overturn your
agreement. The Judge may punish you by awarding the non-disclosed asset to the
other side. In a famous 1996 case against non-disclosure, Marriage of Rossi, Denise
Rossi won $1.3 million in the California State Lottery. 11 days later, she filed for
divorce, from her 25-year marriage, never telling her husband. Judgment was
entered. 2 years later, her ex-husband discovered that his ex-wife had won the
lottery. (They always find out.) He filed a Motion and the judge gave the ENTIRE
$1.3 million dollar lottery winnings to the husband, since the wife had intentionally not
disclosed her winnings in the divorce proceedings.

Always disclose.

Attorney Time: 10 - 50 hours ($3000 - $15,000)
Costs of subpoenas, documents: $500 - $1500
Deposition costs: $2000 - $5000
Court Costs: $40 per motion
Time Factors: Discovery is perhaps the most tedious process in a divorce case. If you have little or no assets, there should be very little to work on. However, the more assets or debts you or spouse have, the more time we will need to obtain documents necessary to determine the value for settlement, and the more time we will need to review the received documents. If your spouse is uncooperative, we may need to file court motions in order to obtain necessary documents. The time it takes to complete discovery depends mostly on the cooperation of the parties and the availability of the documents.

STEP FIVE: REACHING AN AGREEMENT OR PREPARING FOR TRIAL
Purpose: To Get the Judgment Finalizing your Divorce Case

After disclosures have been completed, it is time to start negotiating settlement. For
example, who will keep the house? How much support will you pay? And for how
long? Who will have the children for Christmas or Hannukah this year?

Because both of you have completed full and thorough disclosures, you are both now
in a good position to discuss settlement. It is a good idea at this time to simultaneous
request the court for a trial date. I do this for my clients because with a looming trial
date, both parties are more eager to resolve the case. In addition, if settlement
discussions fall apart, there is already a trial date set in the future, so as not to delay the
dissolution. Other attorneys prefer not to do this, so they will have more time to
prepare for the trial.

If you reach an agreement, you can file a Stipulated Judgment, or a Marital Settlement
Agreement (MSA). The difference between both is that in addition to being attached to
the Judgment, the MSA is also a contract, and if either party breaches it, you have an
additional remedy – to sue for breach of contract.

Once the Judgment is stamped by the Judge, you should receive a Notice of Entry of
Judgment, which gives you a date of divorce. Only when this piece of paper has been
filed is your divorce final. Congratulations!

Of course, in divorce cases, nothing is final. You may always file for Modification,
but there are legal standards you must meet before the Judge will grant you one.
Please consult with a competent family attorney.

If case settles:
Attorney Time: 5 - 20 hours ($1500 - $6,000)
Time Factors: How cooperative are the parties?

If case goes to trial
Attorney Time: 50 - 200 hours ($15,000 - $60,000)
Time Factors: Trial is no joke. You will be paying for the attorney's time day in, day out. - this includes prep time, trial time, review time, prep time...round the clock. It is not unusual for an attorney to bill 10-15 hours a day for trial. My mentor once had a trial lasting 22 days. I think it helps to think of trial as an hourglass with your money as the sand...

In conclusion, a divorce case can run anywhere from $1820 (uncontested divorce) to hundreds of thousands of dollars. There's always Britney Spears, who paid over 1 million to her attorneys for her custody case, and Larry Birkhead, who paid over $600,000 to his attorney.

Yes, lawyers are expensive. But if you find the right one, they're worth it.

Are you going through a divorce with children? Some tips.

I stumbled on this article the other day, published by the American Academy of Matrimonial Lawyers. It is worth reading.



Ten Tips for Divorcing Parents

Divorce is never easy on kids, but there are many ways parents can help lessen the impact of their break-up on their children:

1. Never disparage your former spouse in front of your children. Because children know they are "part mom" and "part dad", the criticism can batter the child's self-esteem.

2. Do not use your children as messengers between you and your former spouse. The less the children feel a part of the battle between their parents, the better.

3. Reassure your children that they are loved and that the divorce is not their fault. Many children assume that they are to blame for their parent's hostility.

4. Encourage your children to see your former spouse frequently. Do everything within your power to accommodate the visitation.

5. At every step during your divorce, remind yourself that your children's interests – not yours – are paramount, and act accordingly. Lavish them with love at each opportunity.

6. Your children may be tempted to act as your caretaker. Resist the temptation to let them. Let your peers, adult family members, and mental health professionals be your counselors and sounding board. Let your children be children.

7. If you have a drinking or drug problem, get counseling right away. An impairment inhibits your ability to reassure your children and give them the attention they need at this difficult time.

8. If you are the non-custodial parent, pay your child support. The loss of income facing many children after divorce puts them at a financial disadvantage that has a pervasive effect on the rest of their lives.

9. If you are the custodial parent and you are not receiving child support, do not tell your children. It feeds into the child's sense of abandonment and further erodes his or her stability.

10. If at all possible, do not uproot your children. Stability in their residence and school life helps buffer children from the trauma of their parent's divorce.