In today’s economy, it may be financially challenging for spouses contemplating divorce to maintain two separate residences. Especially when children are involved, a couple may therefore choose to live separate lives under one roof, with separate bedrooms, finances, etc.


Recent celebrity break-ups, such as the much-reported “conscious uncoupling” of Gwyneth Paltrow and Chris Martin, tend to involve a period of living together after separation, in order to maintain the family unit and provide consistency for the children. But separated spouses who remain under one roof need to be aware of the financial implications for an eventual property settlement.


Community Property of Separate Property?


In California, the division of property in divorce proceedings requires a determination of whether the spouses’ property is community property or separate property. Community property is generally divided equally. California Family Code § 760 sets forth the general rule that all property acquired by the spouses during their marriage is community property, “[e]xcept as otherwise provided by statute.”


There is indeed a statutory exception for separated spouses, according to which a spouse’s “earnings and accumulations . . . while living separate and apart from the other spouse, are the separate property of the spouse” (Ca. Family Code §771(a)).


The California Supreme Court recently ruled that this exception to the community property regime applies only when separated spouses have different physical residences. As long as they reside under the same roof, their individual earnings and accumulations will not be treated as separate property.


In In Re Marriage of Davis (Cal. Supreme Ct., July 20, 2015), the wife filed for divorce in 2008, asserting that the couple had separated in 2006, when she told her husband that the marriage was over and they began living separately in the marital home. Her evidence of this separation included separate bedrooms and a non-sexual relationship in which the couple lived as “roommates” but continued to participate in their children’s lives. She argued that her earnings since 2006 were therefore her own, rather than community, property.


The husband, however, claimed the separation date was July 2011. Although the lower courts agreed with the wife that the statutory language “living separate and apart” encompassed separated couples living in the same house, the California Supreme Court reversed those decisions. The court interpreted the statute more strictly, as requiring separate residences, as well as a demonstrated intent to end the marital relationship.


Separation Date Influences Spousal Support


The determination of a couple’s separation date is also important in fixing spousal support payments.


California couples thinking about ending their marriage should not wait until they are ready to file for divorce to seek expert legal guidance. A separation may last several years and each spouse needs to understand and plan for the financial implications, especially if the couple wishes to continue to live together.


The Carlsbad, California law firm of Fischer & Van Thiel, LLP has over 50 years of combined experience in divorce cases, helping families overcome challenges that accompany difficult divorces and related issues.


We also handle other types of family law issues such as child custody, child support, alimony, paternity, domestic violence, adoption, and domestic violence cases. Call us today at (760) 722-7669 to schedule a free initial consultation with one of our attorneys.

Back in the early 2000s, Hollywood stars Jessica Simpson and Nick Lachey were the epitome of America’s sweetheart, gracing television screens weekly on MTV’s “Newlyweds”.


Today, the couple has been apart for more than a decade. However Simpson raised eyebrows when she was quoted saying her marriage to Lachey was her “biggest money mistake” in a September interview with CNBC’s “Closing Bell” anchor Kelly Evans.


Divorcing with No Prenup


When the couple wed in 2002, they did not sign a prenuptial agreement. According to California state law, when a prenuptial agreement is not signed prior to a marriage, the divorcing couple must evenly divide all assets acquired during the course of the union.


Upon announcing their split in 2005, Simpson’s individual net worth had exploded to $35 million, due in large part to an array of endorsement deals and a booming clothing line, while Lachey made roughly $5 million after his band dissolved.


While the terms of the couple’s divorce were never publicly disclosed, Simpson was expected to have paid a significant sum in the settlement, given the fact that her professional endeavors had contributed a large portion of the couple’s joint earnings during the course of the marriage.


Prenuptial Agreements in California Divorce Cases


When getting married, couples rarely consider the possibility that the marriage is not built to last. But these days many, particularly those with valuable assets, do turn to ironclad prenuptial, or pre-marital, agreements – just in case.


When two people make the decision to divorce, it is not just emotionally taxing – it can also carry a heavy financial burden. The dissolution of marriage is a complex process, and it isn’t always amicable – issues like property division and spousal support can become hot-button issues that drag out divorce proceedings if an agreement cannot be reached.


Prenuptial agreements help protect individual parties and prevent costly litigation in the event that a marriage does end in divorce, by outlining provisions including:


  • Division of debts
  • Division of assets
  • Alimony


If you or someone you know is looking to draft a prenuptial agreement prior to their impending marriage, there are attorneys in Southern California who specialize in crafting strong, ironclad agreements that protect your interests now, and in the future.


Carlsbad Prenuptial Agreement Attorneys


At Fisher & Van Thiel, L.L.P., our family lawyers understand the laws regarding divorce and prenuptial agreements in the state of California. Our attorneys can evaluate your situation to help determine whether or not a prenuptial agreement is right for you. We have extensive experience in drafting personalized agreements that give our clients the peace of mind that their assets are protected, in the event of a divorce.


If you would like to schedule an initial consultation with one of our attorneys, we invite you to call us today at (760) 722-7669.

Child custody battles can be complex, and often bring out the best and the worst in those involved. At Fisher & Van Thiel we act on behalf of mothers, fathers, and other family members in their efforts to have the best care possible for the children involved.


We know that their are many circumstances that can contribute to the awarding of child custody, as revealed in several recent cases.


Inability to Care for a Child


In Boston, Massachusetts a woman recently attending a Red Sox game at Fenway Park was hit by a broken bat, sustaining serious injuries. The woman’s ex-husband is now filing for full custody of their seven year old son, stating that the mother is unable to care for the child because she has suffered traumatic brain injuries that have left her unable to drive and care for their son.


Friends of the woman say that her rehabilitation is working and that she has no issues taking care of her son.


Health Risk of HIV Positive Dad


In a second case, a Kansas man is working through a child custody battle with his ex-wife after he tested HIV positive. The Kansas court found that there is a risk of HIV exposure to the children through “accidental contact” with the father which poses a health risk to the children and that it is best if they have no contact with their father.


The father’s doctor, a nationally certified HIV specialist, was surprised at the outcome, stating, “This is not spread by saliva, it’s not spread by eating utensils, or by contact, hugging, or kissing. It’s spread by sex or exposure to blood, and that blood has to be intravenous as in injection drug users or needle sharing.”


Defining Child Custody


Child custody is defined by the care, custody and control over the child (or children) and can be sole or shared. Those who share custody do not need to share equal time with the child(ren) and they do not need to consult with each other in every decision involving the child(ren).


Ideally, divorced parents should find a way to spend consistent quality time with their children. A parenting agreement can be approved in court where a judge decides the acceptable custody terms when parents are unable to do so on their own.


Parents can reduce their legal expenses associated with long and drawn out court battles by coming to a mutually acceptable arrangement and entering into a parenting agreement out of court.


Carlsbad Child Custody Family Law Firm


Fisher & Van Thiel, L.L.P. is Carlsbad’s premier family law firm and our attorneys specialize in child custody, divorce, child and spousal support, and property division. If you or someone you know is considering divorce, we welcome your call to discuss more about parenting agreements and child custody.


Contact us today on (760) 722-7669 to discuss your situation and learn more about how we can help.

Just over 450 miles away from us here in Carlsbad, California is a trial which has finally been placed in the hands of San Francisco family law judge, Superior Court Judge Anne-Christine Massullo. The trial involves frozen embryos and a divorcing couple who are at odds as to what should happen with the embryos.


46 year old Mimi Lee wants to have the embryos saved. Her soon-to-be ex-spouse, Stephen Findley, wants them to be destroyed. Lee’s maternal age aside, she was also rendered infertile by the cancer treatments she received in 2010. In fact, her cancer diagnosis is what sent she and Findley to the fertility clinic in the first place: so that she would be able to have children despite her receiving treatment for her illness.


“It’s a Hard Issue”


Massullo concisely summed up the case by stating that it is a “hard issue”. Findley and his attorney state that the agreement with the fertility clinic clearly states that the five embryos which were successfully frozen would be discarded should the couple divorce. Lee wants to gain control over them to protect her maternal rights.


There is no question that the world will be watching to see the results of this unique case which could set the precedent for other cases of this nature in the future.


A Sensitive Issue Requires a Sensitive Attorney


At the law office of Fischer & Van Thiel, LLP, we pride ourselves on being able to relate to our clients on a human level. Any issue which involves family and family law are incredibly sensitive and requires more than a thorough knowledge and good application of family law. It also requires understanding, empathy, and sensitivity.


When deciding on the family attorney to represent you, you should look for one who:


  • Takes a holistic approach to providing legal advice. We consider both the specific case and the law and are able to effectively blend the two to come up with a clear response for the client and a solid argument for their client
  • Will support you with compassion
  • Encourages open communication at all hours and provides additional resources if the needs of the client go beyond the scope of the attorney


Our attorneys at Fischer & Van Thiel, LLP in Carlsbad are up to date with the most recent changes in California family law. We also often act as guides, coaches, and confidantes for our clients, whom we treat with the utmost respect.


We fight for your best interests from the first initial consultation to the conclusion of your case. Whether it is a divorce, question of paternity or an even more complex such as that which Lee and Findley face, we welcome your call at (760) 722-7669.

Dennis Burns, a father whose children were taken to Argentina by their mother, has regained custody of his two young daughters after fighting for fathers rights in US and Argentinian courts.


Court Order Favors Father’s Rights


The custody battle started four and a half years ago when a once happily married couple ended up in bitter divorce proceedings in a Colorado Court. The Colorado judge issued an order declaring Burns as the primary residential parent while the mother, who hails from Argentina, was given only supervised visitation.


Days after the custody order, the Argentinian mother took her two daughters who were only 4 and 2 years old at the time, to Buenos Aires, Argentina, in violation of an existing court order for the continued stay of the children in the United States.


Burns continued his battle in Argentina where legal appeals initiated by his ex-wife dragged the custody case for years. It finally ended with the Argentinian Supreme Court confirming the father’s right of custody and ordering the return of the children to their father.


Burns flew to Argentina and was reunited with his children who are now 8 and 6 years old.


International Law Affecting Custody


The Hague Convention on the Civil Aspects of International Child Abduction is aimed primarily at promptly returning children who are abducted by their own parents and brought to another country. Argentina is a signatory of this convention but the case of Dennis Burns and his daughters dragged on for years due to legal maneuvers initiated by the children’s mother in Argentina.


Enforcing Father’s Rights in California


California laws favor shared parenting rights for children of divorcing couples. Depending on the circumstances of each case, the family court may issue an order granting primary custody to one parent and visitation to the other.


No two cases can have the same outcome. When both parties are able to agree on ground rules for visitation and custody, the court may approve their agreement without passing judgment on anyone’s right of custody. In highly contested cases, the court will consider the several factors but the paramount criterion is the child’s best interest.


In Carlsbad, California, the law firm of Fischer & Van Thiel has more than 50 years of combined experience in family law matters, including the enforcement of father’s rights. We also handle other types of family law litigation including divorce and dissolution, military divorce, child support, spousal support, domestic violence, and restraining orders.


We welcome your call at (760) 722-7669 to schedule a free initial consultation with one of our attorneys.

Hollywood comedian Chris Rock, known for his funny roles on film, recently filed for divorce, ending his 18-year marriage to Malaak Compton-Rock. The actor’s divorce papers reportedly mentioned a prenuptial agreement but sources say that the prenup has already expired under a sunset clause.


The couple has two children, ages 13 and 11 years old, both reportedly covered by a shared 50-50 child custody agreement between the spouses. Chris Rock has an estimated $70 million worth of assets, out of which his estranged wife is seeking to obtain a large proportion.


More Details on the Rock Divorce


Malaak said that she gave up her career and became a full-time mother after marrying Chris, taking care of the couple’s children and spending her free time doing charity work such as those organized by her group, The Angel Rock Project. Malaak claims that this prevented her from contributing to her own support while she grew accustomed to a certain standard of living as Chris Rock’s wife.


For Malaak to maintain her marital lifestyle after the divorce, she wishes to be given a large portion of Chris Rock’s assets.


The divorce proceedings may become difficult due to the economic issues arising from the couple’s split. Without a valid and subsisting prenuptial agreement, issues such as property distribution and management, alimony, and child support can lead to a highly conflicted situation.


Divorce in Carlsbad


If you are in the Carlsbad, California, contemplating dissolution of marriage or divorce, seeking prior legal advice from a divorce attorney is essential. Your divorce lawyer can assess your situation, provide direction and advice appropriate to your situation in order to protect your interests and those of your loved ones.


As well, prior to your marriage, your attorney can also help create a prenuptial agreement containing provisions that not only protect your interests and those of your future children, but also eliminate any doubt on property arrangements between parties who are about to get married.


In Carlsbad, California, the law firm of Fischer & Van Thiel, LLP has over 50 years of combined experience in divorce cases, helping families overcome challenges that accompany difficult divorces and related issues.


We also handle other types of family law issues such as child custody, child support, alimony, paternity, domestic violence, adoption, and domestic violence cases. Call us today at (760) 722-7669 to schedule a free initial consultation with one of our attorneys.