August 7, 2010 by Christopher C. Happ, Esq.

In May 2010, Heidi Montag filed a Petition for Legal Separation from Hills co-”star,” Spencer Pratt.  On July 30, 2010, Heidi amended her petition to request a dissolution of marriage.

So why did Heidi file for legal separation first? The answer, in her case, is unclear.

Legal separation deals with the same issues as marital dissolution, except that it does not set a date for termination of the marital status.  Legal separation can be an appropriate choice for individuals who wish to separate their lives, but want to remain legally married, whether for religious or other personal reasons (e.g. to maintain medical insurance coverage for the spouse, qualifications for derivative social security benefits, and/or eligibility for certain military benefits).

Another typical scenario in which an individual would file for legal separation first is when the party is a new California resident and he/she needs to wait out the 6-month residency requirement.  Filing for legal separation allows him/her to obtain temporary orders (e.g. support, custody, etc.) immediately.  Additionally, once the party amends the petition for legal separation to request a marital dissolution, the 6-month waiting period before marital status may be terminated will have commenced as of the date of service of the petition for legal separation.

As a long time California resident, Heidi wouldn’t have filed the petition for legal separation to wait out the residency requirement.  Secondly, neither Heidi or Spencer sought temporary orders after the petition for legal separation was filed.  Maybe Heidi was not 100% sure that she wanted a divorce, so she chose the less harsh sounding legal separation route instead?  Perhaps.  But one would question the necessity of this approach, given that the petitioning party may withdraw their request for marital dissolution at any point prior to the entry of a judgment of marital dissolution.  In essence, there is no more or less “finality” to a petition for legal separation than a petition for marital dissolution.

So, as a result, much like many of the choices made by Heidi, one is left with more questions than answers.

DISCLAIMER: This Blog is made available by Happ Law Group P.C. for educational purposes only as well as to give you general information and a general understanding of California law, not to provide specific legal advice. By using this blog you understand that there is no attorney client relationship between you and Happ Law Group P.C. The Blog should not be used as a substitute for competent legal advice from a licensed professional attorney.

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July 24, 2010 by Christopher C. Happ, Esq.

Mel Gibson, now under investigation for domestic violence, has allegedly admitted to hitting his girlfriend, Oksana Grigorieva, and twice threatening to kill her in an audio tape obtained by several news outlets.

Is that enough for Oksana to obtain a restraining order against Mel?

Under California law, a restraining order may be issued to restrain a person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if it can be shown, to the satisfaction of the court, reasonable proof of a past act or acts of abuse.

California’s Domestic Violence Prevention Act (Family Code sections 6200 et seq.) defines “abuse” as:

1) intentionally or recklessly  causing or attempting to cause bodily injury;

2)  sexual assault;

3) placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another; or

4)  molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning (amounting to an annoyance), or destroying personal property.

Here, Mel’s behavior, if true, would amount to “abuse” under #1 (intentionally or recklessly causing bodily injury–Mel allegedly admitted to hitting Oksana) and #4 (threatening– Mel allegedly threatened to kill Oksana twice).  Upon proof of these facts by Oksana, the Court would have the power to issue a restraining order against Mel for the protection of Oksana.

DISCLAIMER: This Blog is made available by Happ Law Group P.C. for educational purposes only as well as to give you general information and a general understanding of California law, not to provide specific legal advice. By using this blog you understand that there is no attorney client relationship between you and Happ Law Group P.C. The Blog should not be used as a substitute for competent legal advice from a licensed professional attorney.

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July 24, 2010 by Christopher C. Happ, Esq.

Reports state that a final divorce settlement has been reached in Tiger Woods’ marital dissolution case.  Tiger and his now ex-wife, Elin Nordegren, agreed to joint legal custody with primary physical custody of the children, Sam and Charlie, awarded to Elin.

This raises the question, what is the difference between legal and physical custody?

Legal custody is a parent’s right to make decisions related to the health, safety and welfare of the children. When parents have joint legal custody, it means that the parents must consult with each other on major decisions related to the children.  But if one parent has “sole legal custody,” this means that the other parent does not have the right to make any decisions related to the children. Thus, the parent with sole legal custody is not required to consult with the other parent.

In contrast, physical custody relates to whom the children reside with.  When the parties have “joint physical custody,” the children spend a significant amount of time with both parents.  When a parent has “sole physical custody” (sometimes referred to as “primary physical custody”), the children will reside with, and under the supervision of, one parent, subject to the court’s power to order visitation for the other parent.

Therefore, since Tiger and Elin have joint legal custody, they will have to consult with each other on decisions related to the health, welfare and education of Sam and Charlie.  And since Elin has primary physical custody of the children, Sam and Charlie will live with Elin most of the time, with Tiger exercising some kind of visitation rights.

DISCLAIMER: This Blog is made available by Happ Law Group P.C. for educational purposes only as well as to give you general information and a general understanding of California law, not to provide specific legal advice. By using this blog you understand that there is no attorney client relationship between you and Happ Law Group P.C. The Blog should not be used as a substitute for competent legal advice from a licensed professional attorney.

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January 1, 2010 by Christopher C. Happ, Esq.

It has been widely reported that Tiger Woods’ wife, Elin Nordegren, has hired a Los Angeles-based divorce attorney to begin the marital dissolution process.  Meanwhile, Tiger has taken a leave of absence from the PGA Tour in an attempt to save his marriage.  The question becomes, if Elin is determined to get divorced, is there anything Tiger can do to stop her?

If Elin were to file for a marital dissolution in California, the answer would be no.

California is a “no-fault” divorce state.  This means that a divorce will be granted if one party simply claims there are “irreconcilable differences” warranting a marital dissolution.  As long as one spouse believes that these irreconcilable differences exist, that is enough for the Court to grant the divorce.

As a result, if Elin were to file for a divorce in California, the Court would grant her the marital dissolution.  The Court would not inquire into whether Tiger’s actions justify the divorce.  Therefore, there is nothing Tiger could do to stop Elin if she were to desire a divorce from him.

DISCLAIMER: This Blog is made available by Happ Law Group P.C. for educational purposes only as well as to give you general information and a general understanding of California law, not to provide specific legal advice. By using this blog you understand that there is no attorney client relationship between you and Happ Law Group P.C. The Blog should not be used as a substitute for competent legal advice from a licensed professional attorney.

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November 7, 2009 by Christopher C. Happ, Esq.

CT Court: Jim Nantz Ordered to Pay $72K Alimony per Month

On 11/02/09, a Connecticut court ordered CBS Sportscaster Jim Nantz to pay his former wife, Lorrie Nantz, $72,000 per month in alimony (spousal support).  Although this is a Connecticut case, let’s discuss the issue of how long Jim can expect to pay spousal support if this case were decided according to California law:

First, two events would automatically terminate the Nantz’s spousal support order: 1) Lorrie’s remarriage; or 2) Jim’s or Lorrie’s death.

Absent these two events, Jim’s first course of action would be to look to the order itself.  If the Court assigned a specific expiration date, then he would know exactly how long he will have to pay spousal support.  Assuming Jim’s order does not have an expiration date, it would be up to Jim, at a future time, to request the court to either terminate or modify the spousal support order.  If Jim were to file such a request, the Court would look at several factors, including, but not limited to, the following:

• Lorrie’s marketable skills;
• The extent to which Lorrie’s present or future earning capacity was impaired by periods of unemployment that were incurred during the marriage to permit her to devote time to domestic duties;
• The extent to which the Lorrie contributed to Jim’s attainment of an education, training, or career position;
• Jim’s ability to pay spousal support;
• The needs of both Jim and Lorrie based on the standard of living established during the marriage;
• The obligations and assets, including the separate property, of Jim and Lorrie;
• The duration of Jim and Lorrie’s marriage;
• The ability of Lorrie to engage in gainful employment without unduly interfering with the interests of their children in Lorrie’s custody;
• The age and health of Jim and Lorrie;
• Any documented evidence of any history of domestic violence between Jim and Lorrie;
• The goal that Lorrie shall be self-supporting within a reasonable period of time.

If the court looks at the factors and find that the factors represent a change in circumstances from the original order, the court may decide that Jim is entitled to a downward modification or termination of his spousal support obligation.  On the other hand, if the court finds that Jim did not exhibit a change in circumstances via the above-mentioned factors, he can expect to continue to pay Lorrie the originally ordered $72,000 in spousal support.

DISCLAIMER: This Blog is made available by Happ Law Group P.C. for educational purposes only as well as to give you general information and a general understanding of California law, not to provide specific legal advice. By using this blog you understand that there is no attorney client relationship between you and Happ Law Group P.C. The Blog should not be used as a substitute for competent legal advice from a licensed professional attorney.

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October 11, 2009 by Christopher C. Happ, Esq.

I would like to thank you for viewing the San Diego Family Law Blog, sponsored by Happ Law Group P.C. (www.happlawgroup.com)

The San Diego Family Law Blog intends to try to help non-lawyers understand California family law using popular culture examples.

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