San Francisco Family Law Blog

Ex-Spouses Can Ruin Each Other's Credit
By Kimberly Palmer, US News and World Report
Posted 8/20/07
Dear Alpha Consumer,

I would like to clear the accounts from my credit report. How can I do this?

The best way to clear up your credit depends on whether or not you are a victim of identify theft, says David Rubinger, spokesman for Equifax. If your ex-wife used your name and Social Security number to take out credit without your knowledge, then she has stolen your identity.

To the credit reporting agencies, it doesn't matter if you've been victimized by a stranger, a friend, or an ex-wife. Shutting down the unauthorized accounts, filing a fraud report with the police, and telling the credit reporting agencies to place a fraud alert on your account are the first steps to reclaiming your credit.

If, on the other hand, your ex-wife is simply using credit cards that you previously owned together, then the situation is a bit stickier. If you are still registered as a co-owner of the credit card that she uses, you are probably still liable for any charges made on it, explains Experian spokesman Rod Griffin. "If you have a joint account, you're considered fully responsible for that debt," he says. (Griffin adds that in some states with community property laws, all accounts opened during marriage are considered joint, regardless of whose name is on them. The Internal Revenue Service publishes an overview of the tax-related laws in community property states, which include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.)

You can, however, still file a dispute with the reporting agencies, as well as with the store where the equipment was leased. You have the best chance of being successful if you clearly explain the situation and why you should not be liable for the charges. The reporting agencies have 30 days to investigate and respond—but unless you have a good reason why you're not responsible for the charges, such as identify theft, then you're probably out of luck.

Post-divorce credit problems, which are common, usually can be avoided by closing joint accounts. "The safe thing to do is to cancel all the cards and make both spouses get cards in their own names," says Evan Hendricks, author of Credit Scores & Credit Reports.

The Federal Trade Commission warns divorcing couples that the divorce decrees they negotiate, such as a commitment that one ex-spouse will pay off credit card debt, does not absolve the other ex-spouse from responsibility from the perspective of the credit reporting agencies. Creditors can still demand payment from the other spouse, which can negatively affect credit scores if it goes unpaid.

In other words, your financial life may still be intertwined with your ex-wife's, even long after the marriage is over.

Posted by Tilden Moschetti at 11:43 AM | Permalink | Comments (1)

California divorce is often a time-consuming process
By Ron Sokol, DailyBreeze.com

Question: Why does a divorce in California have to take at least six months? After six months, am I still married even if I don't want to be? And, if one party does not want the divorce, can it be prevented?

- J.H.

Answer: California law requires at least six months to pass from the date the divorce petition is served for the divorce to become final. The rationale historically has been that this provides a period of time during which the parties might "cool off" and possibly reconcile their differences.

You can make a formal request to the court to bifurcate your case, such that after six months you are deemed divorced, that is, no longer married, but the other issues in your case (if not resolved) will continue to be dealt with by the court. For example, property division, spousal if not also child support and, if applicable, parenting issues.

Divorce in California can and will go forward even if just one party to the marriage wants it. We have a no-fault divorce system where "irreconcilable differences" is the key phrase, even if one side disagrees.

Posted by Tilden Moschetti at 11:48 AM | Permalink | Comments (0)

One of the most watched cases by the Family Law bar, has been the case of Elkins which was in front of the State Supreme Court. Here is a brief article on the case and the opinion.

----------

Judge says county can't ban oral divorce testimony
CONTRA COSTA: State Supreme Court strikes down paper-only rule aimed at speeding up dissolution process
By Malaika Fraley
STAFF WRITER

Article Launched: 08/14/2007 06:47:33 AM PDT

Contra Costa County Superior Court violated state law with a rule that prohibited people in divorce trials from presenting oral testimony, the state Supreme Court has ruled.
The ruling means a new divorce trial for Jeffrey Elkins, a Danville business consultant who challenged the county court's rule that required evidence to be submitted exclusively by written declaration, except in unusual circumstances.

It also means trial courts in California counties with local rules similar to Contra Costa's will have to change the way they do business. In January, as the Elkins case was pending, Contra Costa County Superior Court changed its local procedure to allow oral testimony, in addition to written declarations, for requesting parties.

In an opinion issued last week, the state Supreme Court called for the Judicial Council to create a task force to help trial courts achieve efficiency and fairness in divorce proceedings, and to possibly establish statewide rules and procedures.

The Contra Costa court had established its rule prohibiting oral testimony to speed along cases in its family law division. Attorney Jon Eisenberg, who represented Contra Costa courts, said Contra Costa's position was that trying every single case by oral testimony would be burdensome.

Since the court started allowing oral testimony in divorce hearings, few people have requested it, Eisenberg said.

Elkins, who represented himself in his divorce, said the rule resulted in the court awarding all assets to his ex-wife because all but two pieces of evidence he wanted to present at his 2005 hearing were discounted by the court.

"The trial court abused its discretion ... by excluding the bulk of his evidence simply because he failed, prior to trial, to file a declaration establishing the admissibility of his trial evidence," the opinion reads. "The sanction was disproportionate and inconsistent with the policy favoring determination of cases on their merits."

The Supreme Court said the Elkins case "highlights the unusual burdens and restrictions that have been imposed on family law litigants at the local level in response to increasing case loads and limited judicial resources."

A 2004 survey by the California Judicial Council estimates such cases represent 7.5 percent of total filings in the trial courts, but account for nearly one-third of the workload.

"In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures," the opinion reads. "But family law litigants should not be subjected to second-class status or deprived (of) access to justice."

The case now goes to the state Court of Appeal, which will issue an order based on the high court's opinion in 60 to 90 days. Eisenberg said the Contra Costa court will continue to review its local procedures, in addition to its scheduled annual reviews, as it awaits the order.

Attorney Garrett Dailey, who argued on Elkins' behalf, said the impact of the Elkins opinion will go beyond Contra Costa.

"It's going to affect a lot of counties trying to implement these types of rules -- they're not allowed to enforce rules that limit people's rights except when authorized by state law," Dailey said. "There are 58 counties, 58 sets of rules and penalties for violating rules can be severe.

"I've been getting e-mails from attorneys and judges from all over the state basically saying how grateful (they are that this) opinion is going to permit judges to hear these cases and give them the attention they're due rather than relying on declarations written by attorneys," Dailey said.

On a personal level, Elkins said he feels vindicated by the Supreme Court's decision.

"Divorce is a tough thing to go through," said Elkins, a business consultant, whose divorce proceedings started in 2001. "I'm just hoping I can now go back to court to ... come up with a solution and finally get this thing behind us."

Posted by Tilden Moschetti at 11:52 AM | Permalink | Comments (0)

O.C. spousal support case may set precedent
Yorba Linda man says he shouldn't have to pay spousal support because ex-wife is in domestic partnership.
By MICHAEL MELLO
THE ORANGE COUNTY REGISTER

A Yorba Linda man has taken his spousal-support fight to the state Court of Appeals, saying he shouldn't have to pay his ex-wife $1,250 a month when she has entered a domestic partnership with her female companion.

In June, an Orange County Superior Court judge ruled that Melinda Kirkwood's partnership wasn't equal to marriage under state law, and ordered Ron Garber to pay support. State law generally provides for alimony to end when a former spouse remarries.

Garber's attorney, William M. Hulsy, filed an appeal with the state appellate court last week.

Lawyers say the California Supreme Court is watching how the Orange County case unfolds. It could be considered as the Supreme Court examines whether San Francisco can allow same-sex couples to marry.

The then-Melinda Garber filed for divorce in 2004 after 18 years of marriage.

Hulsy said when Ron Garber, now 51, signed an agreement to pay alimony the following year, Garber didn't know his ex-wife had entered a domestic partnership.

That amounts to double dipping, Hulsy contends, because Kirkwood is entitled to some spousal benefits as a registered domestic partner.

"In our particular case, Melinda Garber, because she entered into a domestic partnership, is getting better treatment than if she had entered into a marriage," Hulsy said.

Orange County Superior Court Judge Michael Naughton ruled against Garber in June, setting up the appeal.

Melinda Kirkwood's attorney, Edwin Fahlen, said it's irrelevant whether and when his client had entered a partnership.

Garber "agreed to pay for it," Fahlen said of the spousal support. "There's plenty of cases where people get married, and that doesn't affect the bargained-for provision."

The courts have no easy course to resolve the question this case poses, said Charlotte Goldberg, a law professor at Loyola Law School in Los Angeles.

"There already have been a couple of cases that have said a domestic partnership is not exactly the same as the marriage … though they have many of the same rights as marriage," the professor said.

In addition, according to the state's family code, "If someone starts co-habiting with someone of the opposite sex, there's a presumption that there's less of a need of spousal support. … But it doesn't say anything about the same sex," Goldberg said.

On the other hand, Goldberg said, domestic partners make a commitment to support each other. The law says both are responsible "for each other's living expenses. It's very complicated, and the courts are going to have to work out whether (they) are going to treat domestic partnerships like marriage, or whether they would limit those rights."

Garber's appeal doesn't mean the case has finished at the county level.

Garber has yet to pay all of the support the court has ordered, leading his ex-wife to file a contempt of court complaint against him.

"He's paid some of the support. We're still determining how we're going to respond to that," Hulsy said.

Melinda Kirkwood did not return messages.

Garber, whose company offers real-estate seminars to agents, said he hadn't expected the attention his case has received on television and in publications across the country.

"I hope it makes a difference, and they get this loophole straightened out," he said. "I feel people should be able to live in whatever partnership they choose to live in. This is not about heterosexual or gay rights. It's about making sure this is fair."

Posted by Tilden Moschetti at 11:57 AM | Permalink | Comments (0)