LESSONS FROM CELEBRITY BREAKUPS
Life comes at us fast. So much to learn, so little time. There is no free lunch, everything must be paid for. YOU PAY ATTENTION OR YOU PAY WITH PAIN AND WITH MONEY. I prefer to pay attention and learn from other's lessons. Here are a few examples:
- JENNIFER LOPEZ– To PreNup or Not To PreNup
- TOM CRUISE AND NICOLD KIDMAN– Spousal Support and the 10-Year's Bright Line Rule
- BRITNEY SPEARS– Custody and Child Support
- SANDRA BULLOCK– Step-Parent vs. Biological Parent
- MEL GIBSON– Domestic Violence and Restraining Order
JENNIFER LOPEZ – To PreNup or Not To PreNup
Jennifer Lopez met backup dancer Cris Judd while shooting a music video and married him on 9/29/2001. Unfortunately, the marriage did not last. They broke up nine months later in June, 2002, and the divorce was final in January, 2003.
Rumor has it that, even though she was already famous and wealthy by 2001 through her successful and lucrative music and film career, she married him without a prenuptial agreement. Media and tabloids had a field day reporting that she had to pay him $10,000,000 as settlement for their divorce. That averages about $1,100,000 for every month of their marriage. It begs the question, WHY DIDN'T SHE HAVE A PRENUP WITH CRIS JUDD?
Why do people need a prenup? Well, everyone has a prenup. If you don't have one for yourself, the state of California has one for you. If you don't like the one the state has for you, you better draw one up yourself — albeit yours must meet certain public policy considerations and legal requirements.
What's in it? The public policy and legal requirements include, but are not limited to: the rights of children are off limits and cannot be bargained away in prenup; spousal support must not be unconscionable, not at the time of the signing but at the time of enforcement; the agreement must be negotiated at arms length and must not be by coercion or under duress; parties must have at least seven days after the final draft to reconsider; and each party must have an independent attorney for consultation and advice. Oh, and no "you play, you pay" clause allowed. That has been found to be unconstitutional.
Who needs it? In the old days, people used to have "marriage contracts" which were negotiated by the parents and laid out the bridal price and the dowry. A prenup is the modern version, except it is negotiated by the parties and it earmarks what each brings into the marriage and what each may take out of it. If you don't have anything to lose and don't expect to have any success in life, you probably don't need one. But, if you have assets or if you expect to be successful in your endeavors, you probably should have one. Disagreements and arguments in marriage are unavoidable. This is a good time to figure out how to resolve your differences and how best to reach compromise.
When to consider it. No one enters into a marriage expecting it to fail. People marry because they are in love, everything is wonderful, and the world is in vibrant colors. But the reality is that 60% of marriages fail. When a marriage falls apart, the couple are angry, suspicious of everyone, and see the world in the worst possible light. The best time to consider a prenup is six months before your wedding day. It gives you sufficient time to negotiate a fair and equitable agreement, and gives the attorney plenty of time to work out the details and finalize the notarized signing. And the finalizing date will be close enough to the wedding day to make the full disclosure meaningful.
What to do with it. There is nothing constant in life except change. As life goes on, financial situations change, marital reliance changes, and other factors kick in. It is important to sit down together and take a look at your prenup every three years or so to make sure it is still fair, equitable and enforceable. If not, follow the "modification" clause and update your prenup accordingly. If the unfortunate does happen and you are facing divorce, the prenup will make divorce so much easier and much less painful.
TOM CRUISE AND NICOLE KIDMAN - Spousal Support and the Ten-Year's Bright Line Rule
Tom and Nicole met on the set of "Days of Thunder" and got married on 12/24/1990. It was very romantic and very "Hollywood". A perfect love story and marriage of two popular movie stars. They adopted two children and were a happy family. Then, it all came crashing down. Tom Cruise filed for divorce in February, 2001. But he listed their "date of separation" as December, 2000. Nicole Kidman filed her response and listed the date of separation as January, 2001. WHY THE DIFFERENT DATES?
Fortunately, they reached an amicable settlement and dissolved their marriage peaceably later in 2001. Nicole opened up about her marriage to Tom in an interview with Vanity Fair and stated that they had a real marriage for "almost 10 years". The admission of "almost 10 years" is extremely significant.
Long-term Marriage vs. Short-term Marriage —- California law separates marriages into long term and short term. A long-term marriage is defined as any marriage that lasted 10 years. A short-term marriage is any marriage that lasted fewer than 10 years. It is called the Bright Line Rule, because the demarcation line is very clear. Why does it matter one way or the other? Because one day could make all the difference in the world in the issue of spousal support.
Spousal support is governed by many factors. The one fact that is absolute is the length. If it's a short-term marriage, i.e. fewer than 10 years, the maximum length of spousal support is half (1/2) the length of the marriage. If it's a long-term marriage, i.e. 10 years, the minimum length of spousal support is lifetime. Unless the payee willingly, knowingly, and voluntarily gives up his/her right to a lifetime of spousal support, there is nothing the judge can do. The difference between half the length of a short marriage, i.e. maximum four years eleven months, and lifetime is huge.
What is the "Date of Separation"? It is the date that one of the parties decides the marriage is no longer working and he/she no longer intends to stay married, and so informs the other party. The easiest way to establish the date of separation is when one of the parties moves out of the family residence for good. The more confusing cases are when both parties stay in the home and continuously try to work things out. When things could not be worked out, then the date of separation becomes an issue of dispute. If the marriage is coming up to the 10-Year Bright Line, then it can become very contentious.
The easiest way to remember this potentially thorny issue is to remember "Tom and Nicole". He said it was December, 2000 so it's a short-term marriage, but she said it's January, 2001 so it's a long-term marriage. He was the megastar, and was on the hook to pay her spousal support: four years and eleven months of spousal support vs. a lifetime of spousal support. Of course, EVERYTHING IN LIFE IS NEGOTIABLE. Even a lifetime of spousal support may be negotiated away by the payee if the exchange is sufficient to offset the loss. Once they were divorced, Nicole acknowledged that they had a real marriage of "almost 10 years".
BRITNEY SPEARS
Britney Spears, the pop princess, married the backup dancer Kevin Federline on 9/18/2004. They had two children. Their married life, admittedly, was "chaotic". Then, on 11/7/06, she filed for divorce. Even though their divorce was "finalized" in July, 2007, the custody and child support battle for their two sons went on and on. – Custody and Child Support Britney was the media darling, and Kevin was viewed as the opportunist and vilified by the media. Then something in Britney snapped and she displayed some very bizarre behavior which caused great concern about her mental health. Suddenly, Kevin seemed to be the balanced and caring parent. What should the court do?
Custody - Life may be complicated and confusing because everything is linked and related. But laws are simple. Custody has only one concern, "Best Interest of the Child". Parents are adults, at least they are supposed to be. Children are always innocent victims — at least that's what the law says.
Traditionally, mothers have primary custody because, in the "old" days, mothers didn't work outside of the home and were the main caregivers of the children. Fathers usually got secondary custody and visitations, because they were still supposed to be the breadwinners and didn't have time for the children, except evenings and weekends. Even though reality has changed drastically, public policy and the law have not changed that much. And most mothers fight fiercely for primary custody, even when they do work outside the home and "bring home the bacon". As long as mothers are willing to do double-duty, courts usually go along with it. This often prompts fathers to fight for equality. Frequently during these legal fights, feelings are hurt and the best interests of the children are forgotten.
In the case of Britney Spears, she was completely out of control and was in no condition to take care of anyone, much less a toddler and an infant. The court gave Kevin "sole physical custody" of the children on 10/1/2007. Britney's antics of 1/3/2008 — of refusing to return the children after her visitation — did not help the situation. The court thereupon gave Kevin "sole legal custody". I predicted then that the court had to place Britney under some kind of conservatorship. As no one around her seemed to be suitable except her father, I stated that the court should appoint her father as her conservator. On 1/31/2008, the court did so order.
Child Support - Child support is a birthright. That's why it is not waivable by the parents. Children are entitled to the best both their parents can provide to maintain their "station in life". To calculate appropriate child support, we throw in both parents' gross incomes and each parent's custody timeshare, mixed well with tax status and a few deductibles, voila, we have child support. You are, of course, free to give your children more than the court-ordered mandatory minimum child support.
Britney Spears, the multimillionaire, belongs to the extraordinarily high-income category. Her child support is calculated differently so she can avoid the $133,000 a month child support order as in the Kirk Kerkorian case. Instead, the court ordered her to pay $20,000 a month child support, because child support is earmarked for the upkeep of the children only and not for the expenses of an ex-spouse. An ex-spouse is only supposed to live off spousal support while it lasted. After that, they are supposed to live on their own. In this case, as Kevin's marriage to Britney was only a little more than two years, he is entitled to only one year of spousal support.
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SANDRA BULLOCK - Step Parents vs. Biological Parents
The ideal American family is two parents with two kids, preferably a boy and a girl. The reality is that 60% of American marriages last six years and end in divorce shortly after the second child is born. But love means hope springs eternal, and experience means nothing. So people remarry. That means the majority of American families consist of one biological parent, one step-parent, and a mixture of biological kids and step-children. As many people marry multiple times, most children now have multiple step-parents and step-siblings.
Sandra Bullock joined her husband, Jesse James, in his request for custody of his child, Sunny, from his previous marriage. He got it because she is the rock and can provide him and Sunny with a stable home environment. Now that Sandra is divorced from Jesse, what about Sunny? The media and the tabloids have championed that since Sandra Bullock has bonded with Sunny during her short marriage with Jesse, she should get "custody" of Sunny. WAIT, NOT SO FAST! Let's take a closer look!
First of all, custody of Sunny was never granted to Sandra Bullock. It was granted to Jesse James. Should the court let him keep custody? That's a different story.
We certainly hope that many of these children bond with their step-parent(s) and step-sibling(s) because anything else will create a difficult situation for the children and the mixed family. But, with so many "parents" around, who should have priority over custody of the children when a new breakup occurs?
Laws are made for the general public, not for individuals, so we must look at what's good for most of the people in California and not just what's good for Sandra Bullock and Sunny. California's public policy follows the good-old saying that "blood is thicker than water", so a biological parent's status trumps a step-parent's rights. California family law dictates that, unless there is an abusive situation, legal parents should have final say about their children. Since most legal parents are also biological parents, we sometimes use these terms interchangeably. Only when a biological parent gives up the child for adoption so that he/she is no longer the legal parent, then the adoptive parent becomes the legal parent. The operative term is, therefore, "legal parent".
Imagine for a moment that your ex has remarried and your child is lucky enough to have a close relationship with a step-mother, such as Sandra Bullock. Something happened and your ex is getting a new divorce: do you want the step-mother to have custody of your child even if she is a good woman and a loving step-mother? Should the court grant her custody over your child? OF COURSE NOT! Imagine that your ex is again remarried and now your child has two step-mothers. Should they both have parental rights over your child? OF COURSE NOT! And imagine once more that your new marriage is not working out even though your husband has been an excellent step-father to your child. Do you want him to have custody rights to your child after you are divorced from him? PROBABLY NOT!
This can get very complicated, very quickly. The last thing we need is to further complicate a child's life or to encourage more litigation over custody. That's why public policy, and California family law, says only legal parents, not step-parents, have custodial rights, and the final say over their children.
Of course that does not preclude a sensible legal/biological parent to allow, encourage, or even invite ex-step-parents and ex-step-siblings to continue their close relationship with the child because, after all, there can never be too much love for your child or too many people to love your child.
MEL GIBSON – Domestic Violence and Restraining Order
People live their private lives behind closed doors. Americans take their privacy extremely seriously. So, when things blow up, it's mostly "he says, she says". Who are we to believe? What is a judge to do? Should the judge issue a restraining order for any allegation, create a criminal record for someone who maybe innocent, and ruin his or her reputation? Should the judge demand a high level of evidence and risk someone's life?How quickly love disappears and recrimination begins! Mel Gibson and his girlfriend, Oksana, had a child together not so long ago. Suddenly, it's all over the tabloids that Oksana had filed a restraining order against him claiming domestic violence. He, of course, claims otherwise.
Emergency Protective Order – Domestic violence can happen anywhere, anytime. You must call the police immediately. If the situation is sufficiently serious, the police will order the abuser out of the house and issue an Emergency Protective Order, or EPO, which is good for 48 hours and enough time for you to file for a restraining order. In case of extreme violence, the police can arrest the abuser and report it to the DA's office to file criminal charges.
Short Shelf Live – Domestic violence claims have a very short shelf life. Whether you have an EPO or not, you have to file for a restraining order within 30 days of the incident. People come to me to tell me what happened to them six months ago, or even a year ago. Too late! If you don't take the danger seriously and seek protection immediately, why should anyone else take it seriously?
Restraining Order - Once you file for protection, it must be heard within 24 hours. In many cases, due to the alleged threat, you don't even have to give the other party notice. In most cases, a temporary restraining order,or TRO, is issued. A full hearing must be held within three weeks to give the other party a chance to tell his/her story and defend him/herself. Sometimes, the TRO is dissolved for lack of evidence. Sometimes, the TRO is extended to become a restraining order. The length of the order depends on the severity of the claims and the strength of the evidence; it could be six months, one year, two years, or three years. And at the end of that time, you have the option to seek a renewal. The court will only renew it if there are new incidents to show continuous danger.
Presenting Evidence – Very few DV incidents have witnesses. He says/she says is not good evidence. Witnesses are presumed biased, otherwise they would not be "your witness". But some of the incidents left bruises. Police reports, pictures, hospital records, recorded threats are all convincing evidence. However, judges are people too. Each has a different level of tolerance. Some require a lot of allegations and hardcore evidence and some require very little. But, over all, you are the most important part of the evidence presentation. Are you believable? Is your claim credible? Is your behavior reasonable under the circumstance?
Declaration – All judges read the complaint or answer and declarations, and review attached evidence, before the hearing. More than likely, they have already made up their mind how they are going to rule before they call your case. That's why it is very important to have your complaint or answer, and declaration, well-crafted, very persuasive, and fully supported. If you are the person seeking protection, you can't afford to take the risk of being denied. If you are innocent, you can't afford to take the risk of having a restraining order issued against you for something you didn't do.
Side Effects – Unfortunately, some people in custody disputes have tried to use domestic violence claims to gain advantage in custody, therefore child support, battles. That's why many family law judges are very vigilant in reviewing claims and in examining evidence. This, sadly, has diluted the valuable support which real victims of domestic violence need and deserve.
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To set up an appointment for an initial consultation, contact my office or call me at 310-598-7375. I am available to meet with clients Monday through Friday, from 9 a.m. until 5 p.m. My office is located behind Westfield Shopping Town, in Century City. I accept Visa and MasterCard.