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"It has been a joy to work with someone of your caliber."
Corinne M.
"Thank you for the excellent work you have done."
Paul K.
"Your dedication and concern have gone well beyond what was required."
Jeffery C.
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FAMILY LAW SERVICES
Uncontested Divorces:
The above-described procedures outline the general steps utilized in a contested divorce proceeding. If in fact you feel this matter is able to be settled from the very beginning, our offices encourage sending out a settlement letter along with the initial pleadings. This provides the other spouse with the opportunity of addressing the issues in a constructive approach aimed at expeditious settlement. This has the obvious advantage of savings attorney's fees, costs and emotional distress to both parties. Accordingly, with the initial pleadings, we encourage sending out a settlement letter so that the expense of Steps Two, Three and Four can be avoided. This is more specifically set forth in the diagram attached as Exhibit "B" hereto. However, if you feel you have inadequate information with which to make an offer of settlement, it is wise to wait until after the discovery procedure before offering a settlement proposal.
Substantive Rights and Liabilities in a Divorce:
A schematic diagram of the substantive rights and liabilities with regard to a divorce are reflected on Exhibit "C" attached hereto. More specifically, those assets acquired by you prior to your marriage are usually confirmed to you as your sole and separate property, free and clear of any interest of your spouse. So also are those assets you acquire after the date of separation.
Those assets accumulated by you during the course of the marriage are generally characterized as community property. Community property assets are normally divided equally between the husband and the wife.
There are certain exceptions as follows:
a. Gifts;
b. Inheritances; and,
c. Personal injury awards.
There are considerable exceptions and refinements to the general parameters as set forth above which we will be reviewing in this case for the purpose of characterizing and dividing assets.
Restraining Orders:
Once the Summons and Petition for Dissolution of Marriage have been filed with the San Diego Superior Court, the following standard restraining orders, which are set forth on the reverse side of the Summons, will be in full force and effect. These mutual restraining orders are issued automatically and apply in every case. These orders restrain the parties from:
a. Removing any minor child or children of the parties from the
State of California without the prior written consent of the other
party or an order of the court;
b. Cashing, borrowing against, cancelling, transferring, disposing
of or changing beneficiaries of any insurance or other coverage,
including life, health, automobile and disability, held for the
benefit of the parties and their minor child or children; and,
c. Transferring, encumbering, hypothecating, concealing or in any way disposing of any property, real or personal, whether community, quasi-community or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life.
You must notify each other of any proposed extraordinary expenditures at least five (5) business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, nothing in the restraining orders shall preclude you from using community property to pay reasonable attorney's fees in order to retain legal counsel in the action.
If you have any questions with regard to the meaning of these restraining orders, please do not hesitate to contact Tom Huguenor.
Estate Planning:
It is critical that a party to a divorce proceeding reconsider his or her estate planning. This would include, by way of illustration, preparing a new Will or revoking any Power of Attorney or Trust Agreement.
You will also want to consider severing any property held in joint tenancy between you and your spouse. The feature of joint tenancy is the right to survivorship, which means if one spouse dies, the other spouse by operation of law succeeds to total ownership of the property, even if the decedent had a Will to the contrary. For example, if you die, your spouse would become full owner of all property held in joint tenancy, regardless of the terms of your Will. Of course, the same is true if your spouse dies.
Epstein Credits:
There are many ways in which you can help. One such way is to keep your files well organized to support "Epstein credits" to which you may be entitled. Debts that exist as of the date of separation (DOS) are generally community debts regardless of which party incurred them. On the other hand, income earned by either party after the (DOS) is that person's separate property. To the extent income earned after the DOS (therefore separate income) is utilized to pay community debts, then (with certain exceptions) you would be entitled to reimbursement at the time of the division of community property. This reimbursement is defined as an "Epstein credit." It is helpful to think of it as separate property being used to pay community debts.
In order to prove these credits, you need to keep copies of the bills showing the amount of the indebtedness close to the DOS, with monthly statements thereafter and the cancelled checks that were used to make payments following the DOS. You would then be in a position to fill in the "Epstein Chart," a copy of which is attached as Exhibit "D" hereto. An additional "accounting" problem arises when charges on a joint account are made after the DOS. The problem is that the allocation of the interest assessed against the separate charges as distinguished from the community charges is very difficult, if not impossible, to determine. The same problem arises when charges and subsequent payments after the DOS occur. Frequently, the judge in your matter will arbitrarily allocate the interest between the community and separate debt. To avoid this problem, it is best to make charges after the DOS on accounts which have no outstanding community indebtedness.
Joint Credit Cards
(Community Property v. Contract Law):
Consistent with the foregoing, a debt incurred after the DOS is the separate obligation of the incurring spouse under community property law. A different wrinkle under contract law is added when such a debt is incurred on a joint credit card.
Under such circumstances, both spouses are jointly and severally liable for the obligation under the contract they signed at the time the joint credit card was issued. This means while a debt incurred against a joint credit card by one of the spouses is the separate obligation of that spouse under community property law, the creditor (normally the bank or department store) can go against the other spouse under contract law if the spouse incurring the debt does not pay it. In short, consider very carefully whether you want to cancel joint credit cards and credit lines.
Conclusion:
Despite the intricacies involved in a divorce, our offices try to maintain a positive approach towards the dissolution process. You will find our staff is highly educated and highly motivated with years of experience dedicated solely towards resolving your Family Law problems. You will find our offices are equipped with the most modern facilities available anywhere for the purpose of handling Family Law disputes. I have been certified by the California State Bar as a Specialist in Family Law. I have been asked to act as a temporary judge in the San Diego Superior Court, Family Law Division. I also am currently involved as a panelist on the Mandatory Settlement Conference attorney list with the San Diego Superior Court. Our offices accept no cases other than Family Law matters.
Our basic philosophy with respect to Family Law matters is to attempt to resolve all cases in a fair, reasonable and well-informed manner for the benefit of our clients. We have found that our clients are generally most satisfied when they can resolve the issues by means of settlement, thereby taking control of their own destiny, rather than laying their lives before a court which has limited time to consider all the important aspects of one's life. Nevertheless, if settlement is not possible, which indeed happens, we offer years of experience in litigating these matters.
We look forward to serving you in this matter.
FOR ASSISTANCE WITH FAMILY LAW IN SAN DIEGO
CALL TOM HUGUENOR TODAY AT 858-546-4868
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