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San Diego Divorce Lawyer James D. Scott Explains High-Income Divorce

admin — Fri, 14 May 2010 20:25:33 +0000

If you make $1,000,000 per year, with one child, the Guideline law could calculate that this single child needs $6,500 per month for support. We think that is absurd. Extra Ordinarily High Income is a term found in Family Code Section 4057. This label of extra ordinarily high income begins at about $1,000,000 per year. At our San Diego divorce and family law firm, we can discuss with you how you may qualify for a deviation down from that harsh guideline on child support.

Professional athletes and executives have unique needs that we understand. Although Scott Family Law, San Diego divorce lawyers, practices at all levels, including charity cases and we provide judge pro tem services to the court at no charge, our niche is representing baseball, football and basketball players and executives in child support and family court. We have decades of experience in these types of cases and our clients come from Northern California to Southern California, Houston, Boston and Minneapolis.

We have carved out a niche specialty in professional athlete divorces. If you are an agent, a manager, a player or an executive, give us a call.

As a certified divorce specialist in San Diego, I wrote the book entitled 100 Favorite California Family Code Sections and 105 Laws of Evidence. It’s widely used by family lawyers throughout California. Our San Diego family law firm provides a copy of the book to everyone who interviews in the office. These laws or Code Sections are written in Sacramento and signed into law by the Governor. The Code Sections are interpreted by courts of appeal and the Supreme Court. Since we must follow the decisions of those higher courts too, my readers find the book perfect for quick references. I summarize the laws and state the cases from the higher courts. By looking at the law in the book, my people are in a better position to make educated decisions.

When it comes to high income divorce and California divorce law, we know the family codes inside and out. We can protect you and your assets, including estate planning and more.

We’re Scott Family Law. Let us come along side and help you in your San Diego divorce case.

San Diego Divorce Lawyer James D. Scott Explains High-Income Divorce

admin — Sat, 01 May 2010 22:43:06 +0000

James D. Scott, founder of Scott Family Law, a San Diego based divorce and family law firm, and author of 100 Favorite California Family Code Sections and 105 Laws of Evidence explains the California laws for high income divorce.

Professional athletes and executives have unique needs that we understand. Although Scott Family Law, San Diego divorce lawyers, practices at all levels, including charity cases and we provide judge pro tem services to the court at no charge, our niche is representing baseball, football and basketball players and executives in child support and family court. We have decades of experience in these types of cases and our clients come from Northern California to Southern California, Houston, Boston and Minneapolis.

We have carved out a niche specialty in professional athlete divorces. If you are an agent, a manager, a player or an executive, give us a call.

As a certified divorce specialist in San Diego, I wrote the book entitled 100 Favorite California Family Code Sections and 105 Laws of Evidence. It’s widely used by family lawyers throughout California. Our San Diego family law firm provides a copy of the book to everyone who interviews in the office. These laws or Code Sections are written in Sacramento and signed into law by the Governor. The Code Sections are interpreted by courts of appeal and the Supreme Court. Since we must follow the decisions of those higher courts too, my readers find the book perfect for quick references. I summarize the laws and state the cases from the higher courts. By looking at the law in the book, my people are in a better position to make educated decisions.

When it comes to high income divorce and California divorce law, we know the family codes inside and out. We can protect you and your assets, including estate planning and more.

We’re Scott Family Law. Let us come along side and help you in your San Diego divorce case.

How Do Divorce Lawyers In San Diego Handle Complex Divorce Cases?

admin — Sat, 24 Apr 2010 21:43:51 +0000

How Do San Diego Divorce Lawyers Handle Complex Divorce Cases?

San Diego divorce attorneys help clients from all backgrounds, with all sorts of needs and who need assistance with a plethora of different issues. Basically, many divorce cases are anything but simple, and complicated divorce cases can lead to added stress, delays and expense for the parties involved with them unless experienced San Diego divorce lawyers are involved who understand how to work through these complicated cases to obtain a resolution.

If you feel that your divorce case will be one that’s complicated and involve several different issues that could be impediments to a solution to the matter, you should seek the help of San Diego divorce attorneys who have experience in these matters. Below is a brief look at just two of the many issues that could arise in this context.

Stock Options

Many divorce cases involve situations in which one party has stock options through his or her employer or a business in which he or she has at least a share. It is not easy to separate assets between the parties as the law requires without the help of professionals who can place a proper valuation on these intangible assets in order to come to a fair solution. Experienced San Diego divorce lawyers will have access to those professionals so that this step can be taken in an efficient manner.

Public Figures

For many people who live at least part of their lives in the public eye, a divorce case can be damaging to their reputation and perhaps their business interests, particularly if such a case would lead to a feeding frenzy by the media. Experienced San Diego divorce attorneys will be able to help the parties work through this process legally, civilly and without the publicity that can lead to an antagonistic case and much more in the way of time required and expense.

Generally, there are many different issues that can arise that can make any divorce case complex. If you feel that your divorce will be one that involves different types of complications, you need to take steps to make sure that you have San Diego divorce lawyers working on your behalf who understand these complexities and how to work through them with your interests in mind. Contact the Law Offices of James D. Scott today to schedule an initial consultation.

James D. Scott is the senior partner at Scott Family Law, san diego divorce and mediation attorneys. Visit them at http://www.scottfamilylaw.net/

Why Husbands And Wives Should Have Prenuptial Agreements

admin — Mon, 24 Sep 2007 17:43:29 +0000

By James D. Scott, CFLS

Commonly Heard Phrases Indicating Agreement and Compromise Between Spouses:

Prenuptial Agreement

Antenuptial Agreement

Marital Agreement

Post-Marital Agreement

Marital Settlement Agreement

Stipulation to Judgment

The terms “Prenuptial Agreement,” “Antenuptial Agreement,” and “Pre-marital Agreement,” suggest the same thing: An agreement made by husband and wife before marriage, which would affect their property rights. It may affect their income during the marriage as separate or community. A pre-marital agreement may protect a spouse from paying spousal support or alimony after the marriage. Before getting married, people may waive, or give up their right to be supported by their spouse.

Very often people who have substantial property or income will want to protect that from the high rate of divorce. They may receive large gifts or an inheritance before or during the marriage that they wish to protect as their separate property. Our California Supreme Court stated the policy that these agreements are to be enforced as promoting marriage in a world of marital uncertainty.

Pre-Marital Agreements, are also known as “Pre-Nups” or “Antenuptial” agreements. One of my colleagues remarked that the words “antenuptial” are like “ante-up” before playing a hand of poker. This is a contract made in anticipation of marriage. These contain promises, representations, and disclosures. The subjects of the agreement may include the following:

a. Limitations on spousal support (SS) in the event the marriage is eventually dissolved;

b. Property Rights including limitations on the creation of community property (CP) during the marriage and preserving income during the marriage as separate property;

c. The preservation of separate property (SP) during the marriage which the person owned before the marriage;

d. The values of specific items of separate property;

e. Whether or not the income of each spouse would be community property or separate property during the marriage;

f. In the event one of the spouses contests the agreement, then who will pay the attorney fees; and

g. The choice of law from which state will apply if the premarital agreement is challenged.

The Uniform Premarital Agreement Act in California begins at California Family Code Section 1600. As recently as the turn of the year ’06 to ’07 the appellate court noted the reliability of a premarital agreement in the cased of Ackerman where a value was fixed on the separate property nature of the husbands medial practice.

Recent California Supreme Court cases of Bonds v. Bonds and Pendleton v. Fireman made clear the intent of the court to uphold these agreements and thereby promote marriage.

Marital agreements form a little bit later in the relationship. Marital agreements occur during the marriage and usually apply to one issue, such as, one piece of property or one business. A common marital agreement might provide that the home owned by the husband or wife before marriage would remain the separate property of that person during the marriage and that no community interference would apply to the home at all. In another case, a marital agreement might provide that an expensive piece of jewelry worn exclusively by the husband or by the wife would remain community property in the event that the parties needed to sell the jewelry, or in the event that they got a divorce.

A Post-Marital Agreement, sometimes known as a Marital Settlement Agreement, is a comprehensive document recognizing the statistical aspects of the date of the marriage, the names, birthdates of the children, and the property of the parties. The Marital Settlement Agreement typically states all of the rights and interests of the parties that were developed during the marriage, or that they would have separately. It will state the custodial arrangement for the children and the arrangements for child support and spousal support among many other possible things.

Some lawyers will use the technical term “Stipulation to Judgment” for an agreement that ends a divorce and becomes the judgment of dissolution of marriage. This becomes a private law between the parties.

Why Not Have An Agreement?

If a person has a business or a professional practice before the marriage it will have a value for the stock in trade, the equipment, the customer list, the ideas, and the lease or location among many other things. In this case, if the person is married for few years or ten or twenty years, and there is not a premarital agreement, then the parties will have to appraise that business or practice for two dates, the date of marriage and the date of the separation. You can expect a business appraiser to demand about $25,000 for each appraisal.

What if the person who started that business above did not keep the records from the years surrounding the date of marriage and then ten, twelve, or fifteen years later the marriage falls apart? How will they ever prove that they had a separate credit of thousands and thousands, if not millions of dollars for property owned before the marriage?

Why Not Give a Premarital Agreement to Your Kids?

Very few young people have the $100K for a down payment to buy a house today. Loving parents frequently give these large sums to their kids to help them buy a home. What happens to the money after the kids put the deed into joint tenancy or community property and they break up? Is it fair in a short marriage of less than ten years for half the money to be lost?

Sure there are provisions in the Family Code for reimbursement. But why not make it clear and very simple that the money comes back to the family that contributed the money? That kind of a provision itself promotes marriage. There is less incentive to leave the marriage.

Are There Special Premarital Agreements?

There are special provisions to our premarital agreements that we have written to take into account the changes in the law we see with regular experience in litigation. We use language that specifically addresses how property is preserved in character as separate or how it “transmutes” from separate to community. There can be no question about the status if the marriage ends.

What Is the Cost of a Premarital Agreement?

Anyone can buy a form online for about 35 cents and gamble with their future. All of our agreements begin with an office consultation that shows you how to make an effective disclosure and how to execute a bullet-proof agreement. The cost of that consultation is just $150.00.

Call 858-974-4900 now to make your appointment.

James Scott is a San Diego divorce lawyer dedicated to providing quality in divorce, mediation and family law services throughout San Diego and Southern California.

Why Would You Not Mediate Your Divorce With All These Protections?

admin — Mon, 24 Sep 2007 17:21:04 +0000

By James D. Scott, CFLS, Copyright 2007
California Evidence Code Sections Related to a Mediation Privilege that Keeps Divorce Talks Silent

§ 703.5	“No mediator is competent to testify.”
§1115[a]	Definition of Mediation: A neutral person facilitates communication.
§1115[b]	A Mediator is a neutral who conducts mediation.
§1115[c]	Mediation consultation is a broad definition including intake communications.
§1119	Mediation privilege written in oral communication inadmissible.
§1119[a]	Nothing said in mediation is discoverable or admissible in evidence.
§1119[b]	No writing prepared for mediation is admissible or subject to discovery.
§1119[c]	All communications, negotiations, and discussions are confidential in mediation.
§1120	Evidence admissible or subject to discovery outside mediation is not inadmissible because of the mediation.
§1121	No mediator’s report or findings may be submitted to the Court.
§1122	Communications and writings may be admissible if the parties agree in writing.
§1123	Business settlement agreements prepared in mediation may be disclosed if the agreement is enforceable or binding or words to that effect; or the parties agree in writing; or the agreement is used to show fraud, duress, or illegality that is relevant to an important issue.
§1124	An oral agreement from mediation is not made inadmissible if, in accordance with §1118: the oral agreement is recorded by a court reporter, tape recorder or other, the terms are recited on the record, the parties express on the record they agree to the terms recited, the parties state on the record the agreement is enforceable, the recording is reduced to a writing signed by the parties within 72 hours.
§1125	Mediation ends when: Parties have a written settlement agreement. An Oral agreement resolves the dispute. Mediator terminates mediation in writing. Either party sends a written termination notice. For 10 days there is no communication between the Mediator and the parties. NOTE: Parties may execute a partial written settlement, an oral agreement may partially resolve the dispute per §1118, either party may end mediation without an agreement.
§1126	Protection before and after mediation: anything said or any writing is inadmissible and protected from disclosure before mediation ends and to the same extent after mediation ends.
§1127	A person who erroneously subpoenas or tries to get a mediator to testify or produce writing is subject to an award of reasonable attorneys fees in favor of the mediator.
§1128	Any reference to mediation during a subsequent proceeding is grounds for vacating or modifying the decision in that proceeding.
§1152	Offers to compromise are privileged.
§1152[a]	All settlement discussions and offers are privileged.

In addition to all this good law, please keep in mind the California Supreme Court decision of Rojas in 2004, which held that anything prepared for the purpose of mediation is also privileged. The results of mediation are to be upheld by the courts. The recent appellate court case of Kieturakis in 2006 held that the presumption of undue influence in agreements between spouses must yield to the interests of finality in mediation.

What have you got to lose? If the discussions fall through, no harm, no foul. Nothing can be said later about the process. If the discussions are successful, and your mediation is formalized in a marital settlement agreement, you can even agree upon the extent to which that is revealed in a court file that is open to the public or kept secret between you and the spouse.

Mediation begins with an appointment for a first consultation. During that consultation you will lean how to effectively make disclosure and how to keep your case out of court. The cost of that consultation is just $150.00.

Call 858-974-4900 now to make your appointment.

James Scott is a San Diego divorce lawyer dedicated to providing quality in divorce, mediation and family law services throughout San Diego and Southern California.

Who Pays For Transportation When The Child Moves Across Country?

admin — Wed, 08 Aug 2007 19:54:15 +0000

By James D. Scott

When the parent with the most child sharing time moves across the country, extra efforts must be made for the child or the children to keep frequent and continuing contact with the parent and other family members who remain behind.

A move-away by the custodial parent diminishes the percentage of calendar time spent by the child with the parent who remains behind. This has the double whammy or triple whammy of causing an increase in the child support payment when the parent left behind has been ordered to pay support. A second unfortunate effect of the move-away is the negative hit to the amount of time that the child is able to spend with the parent left behind. The frequency of those periods of access to the child diminishes and the stability of the parent/child relationship is jeopardized. The third negative impact of a move-away is the cost of transportation. When the parent moves two thousand or three thousand miles from the west coast to the mid west or from the west coast to the east coast, round trip tickets to fly frequently cost hundreds of dollars for each visit. If the children are grade school age or younger, the parents may reasonably resist allowing them to fly alone and thus, the cost of a round trip ticket is doubled or tripled for the escort. Even when the move is regional and a two hundred mile to four hundred mile distance with a lack of airport access may make driving more practical, the cost of gasoline and the use of an automobile are significant deterrents to visitation.

The Guideline

In 1992 the infamous Guideline of the California Family Code became effective. It mandated adherence by the courts. In the early years following the implementation of the Guideline, the courts tended to follow the mathematical formula almost with a lockstep procedure. As a point though, relief for transportation costs may be found in California Family Code §4057(b)(5), which says,

“Application of the formula would be unjust or inappropriate due to special circumstances in the particular case. These special circumstances include, but are not limited to the following:”

California Family Code §7501
California Family Code §4055
California Family Code §4052

The special circumstances listed do not include sharing the costs of transportation in a move-away case, but appellate courts have recognized that code section as providing just this kind of relief.

In the appellate case of Wilson v. Shea (2001) 87 Cal.App.4^th 887 the trial court was found to have discretion to reduce Guideline support to allow the creation of a travel fund to be managed by the paying parent. To do this, the trial court had to compute the regular Guideline amount first, take evidence of the cost of the transportation, and then note the special circumstance.

In Wilson the court found that given the importance of contact to the child with the parent left behind, and the practical necessity of a travel fund when a case presents the special circumstance of out-of-state visitation, the promotion of frequent and continuing contact with both parents after the parents have separated is certainly a factor that may mean the rote application of the Guideline formula is unjust or inappropriate in some cases.

This has nothing to do with another sort of case where the parent moving away has some kind of malicious intention to disrupt the relationship of the child with the parent left behind.

This is not to say that one hundred percent of the travel cost should be paid from the child support that would otherwise be ordered. It simply gives guidance to parents in an unfortunate move-away situation that they should try to be creative and reasonable and flexible with each other while using the child support as a resource to help cover the costs of transportation. In a case with a shorter distance, it could mean that each parent would travel halfway to hand off the child to the other parent.

When faced with a move-away decision, both parents would be encouraged to use reasonableness and to look at the unfortunate situation from the eyes of the child who will certainly want to maintain the stability of the relationship that the child has enjoyed with the parent left behind and with the other members of the family left behind.

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Understanding the Discovery Process and Your Rights

admin — Wed, 08 Aug 2007 19:44:48 +0000

By James D. Scott

Under California law, the Family Court is required to divide community assets and community liabilities equally¹ between the parties, unless the parties have entered into a property settlement agreement that sets forth a different arrangement. An attorney must identify and place a value on all community assets and liabilities. If this information is suspect, various procedures of investigation are available under the laws that are commonly called “discovery.”

Common Forms of Discovery

Depositions are question and answer proceedings taken in an office away from the court. The witness may be anyone with relevant information for the case. Most commonly the witness is a party to the case. The witness is subjected to cross-examination under penalty of perjury. The deposition is one of the quickest and most efficient methods of preparing a case. A certified shorthand reporter types up a record of the session. The testimony contained in the booklet is used in court.
Form Interrogatories are standardized questions that are used in almost every case. These are questions formulated over twenty years ago by the Judicial Council to try to get the information on the financial foundation of the marriage out in the open.
Demand For Production of Documents, formerly known as the “Request for Production of Documents” is a standardized laundry list of bank statements, tax returns, credit card statements, deposits, and other financial papers that are required to be produced between the husband and wife when this “Demand” is served. A much more comprehensive list is used for cases involving a family business.
Records Depositions are not a deposition in the sense described above. Only a copy service attends the proceeding by carrying a portable copy machine out to the location of the records. They make certified copies that may be used in court.
Subpoenas are documents issued by law offices to obtain documents and other “things” or people that might have relevant information involving the interests of the parties to the case.
Experts may be designated by the court or by the individual parties to help evaluate an asset or a contention of one of the parties. Common examples of experts are appraiser, accountants, vocational evaluators, actuaries, and medical doctors and psychologists.
Special Masters may be designated by the court or may be agreed upon by the parties. The role of the special master is that of an investigator who also evaluates evidence and prepares a report for use in court. Special Masters are thought to be independent in their work. They may be very useful in shortening the length of time in trial or the length of an evidentiary hearing.

Comparing Discovery to Disclosure

Historically, the laws of discovery are much older than the law of disclosure. When discovery procedures are properly used, the person responding is compelled to respond under penalty of perjury and under threat of monetary penalty. Skillful questioning under cross-examination not only commits a witness to a story but it uncovers many details or leads that produce a successful conclusion.

The law of disclosure puts an affirmative obligation on each party to unilaterally produce financial information. It is not as thorough an obligation as that which is produced with form interrogatories and a one-hour deposition. Disclosure does little or nothing to reveal child sharing plans. Although a preliminary disclosure is made under penalty of perjury, the law allows the amendment to preliminary disclosure later in the case. Thus, the preliminary disclosure may not be a source of reliable information in some cases.

Accepting a settlement based upon disclosure alone where the conclusion of the case accepts a “Waiver of Final Disclosure” may be dangerous if the case is concluded without basic discovery. Both the entry of judgment based upon the waiver of final disclosure or based upon disclosure could mean that a party to the divorce is stuck with the deal even if they realize later that an asset was undervalued or mistakenly characterized as a non-marital asset.

Balancing the Use of Discovery with Disclosure

The degree to which discovery is necessary in a case will depend on the complexity and size of the estate and the obligations. It will also depend upon the type of problem between the parties. For example, if the husband and wife cannot agree on child sharing or who should be the primary parent, discovery may become critical. If one party has been primarily involved in running a family business or primarily responsible for paying family bills, discovery may be more important to the spouse who needs the information.

Both discovery and disclosure may be used to build trust between the husband and wife at a time when trust is critical. Discovery may be used to compel communication when emotional pulls hamper communication. Early and thorough disclosure leads the receiving party to believe that the other spouse is not hiding money. When disclosure is forthright and the needs of the parties to discovery are met, then the case may proceed to settlement and a knowledgeable waiver of the Final Declaration of Disclosure.

¹There are many complex exceptions to this general rule including rights to reimbursement and rights to credits.

“I Thought Our House Was Community Property – Buyer Beware!”

admin — Wed, 08 Aug 2007 18:27:42 +0000

By James D. Scott

In today’s real estate mortgage market, one spouse often has better credit than the other spouse. In order to obtain a more favorable interest rate on a mortgage, one spouse will quit claim their interest in the house to the other spouse as their sole and separate property. This form of title is often demanded by the lender. The house is being purchased during the marriage and the married couple believes in good faith the house is community property.

In the past courts did not exalt form over substance. The new house title in form is separate property, yet the substance and intent of the parties was to purchase the house together as community property.

The courts have reversed themselves in the recent case of, “In re Marriage of Matthews”, and courts are enforcing the form of the transaction and not the substance. Therefore, if your house was purchased under similar circumstances, you will need a written document signed by your spouse transmuting what is titled as separate property into community to do this and at the time of a divorce you will likely not receive your intended interest in the marital residence. That could result in the loss of hundreds of thousands of dollars.

With over 24 years of experience as a family lawyer working with the California Family Code, I have developed my “100 Most Popular Sections” This listing acts as a guide to common family law sections, with references and descriptions and additional information. Learn more by visiting my favorite California Family Code sections. As a certified divorce specialist, I present the most crucial information on father rights, parents rights, marital support, modification of divorce orders, modification of family support, grandparents right, California custody, military divorce, adoption, prenuptial agreements, substantive rights and liabilities, restraining orders, estate planning, epstein credits, joint credit cards and all aspects of the California dissolution process.

Summary: You and your spouse purchased a home and one of you quit claimed the title in order to get the best interest rate on your loan. Now, in the middle of a divorce proceeding, the ownership of the home may be in question. It is critical that spouse that quit claims gets a written document transmuting separate property to community property. In the event of a divorce or dissolution of marriage, both parties may claim ownership of the home.

The law firm of James D. Scott is a Certified Specialist of Family Law and practices Divorce and Family Law in San Diego, CA.

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