Divorce And Mediation Blog

The general rule is that when spousal support is ordered by a court, it is deductible by the person who pays, and taxable to the recipient. There are rules that apply, but they are relatively straight forward.

Occasionally, the recipient is a non-resident alien who decides to live in another country: Maybe they return from their country of origin, just want to get away, or they have family there - maybe they can make their support stretch farther. Some who have been married to American citizens for decades were here legally, but remained citizens of another country, and when the marriage failed decided to go to their homeland.

The taxability scheme assumes the government gets tax from one spouse or the other. Although the recipient is usually in a lower tax bracket, that is a bargain we make. When the receiving non-resident spouse moves to Italy, Poland, Japan, or Canada, for example, how does the government get its money? To often, no one asks that question, and finds out too late to solve problems created.

Well, there is an answer: The paying spouse withholds the money and sends it to the IRS. This does not apply in all cases, as there some inter-country treaties that eliminate the obligation. The risk to the paying spouse is that failing to withhold may make him or her liable for the tax that should have been paid.

Will the "document preparer" helping you fill out the paperwork to process your divorce have any clue? Of course not. Even most lawyers don't know the rule unless they attend the type of courses that teach these unusual rules - certified specialists are more likely to take such courses.

Our office has a new mascot, Emma. She is a 12 week old Wheaten Terrier puppy. She is cute as the dickens. She arrived Saturday, and came to the office the last two days to keep us company and work on her house breaking. What fun. New clients get a free hand licking. We are so proud of her that we had to post a picture.

Naturally, this is on her day off.

I get about 300 pieces of e-mail a day, the vast majority of it junk. A high percentage of the junk is a scam of some sort [usually phishing, which is trying to get you to give up private codes], and ads for Viagra. I have spam filters, but the evil doers get better each day at making the spam look like it comes from someone with whom I regularly do business, or by coding the messages to make the computer think they come from me or my office.

I regularly do business with Amazon.com. I order books related to divorce, custody, relationships, computers, and other areas that relate to my law practice. So, I'm often on the lookout for e-mail from Amazon to notify me of a shipment, or notify me of or resolve a problem.

The latest scam I've noticed is and "Amazon Thanks for your order" message addressed to me. They look just like a regular notice from Amazon that it has acknowledged an order, and it gives me an opportunity to "view and edit your orders online." Of course they want me to click on one of the links, go to a page that looks like Amazon, and find out what the heck I've ordered that I wasn't expecting. Each of these is different in it's content, so I must read them carefully to see if they are legitimate. They want me to try to log onto my account, enter my user name, e-mail, and password so that they can later do this themselves.

When I read the mail carefully, I start to see obvious errors. One of several that I received this morning says that the Order Grand Total is $63.99. Below that is a summary that says that the subtotal of all items is $96.99, then the total before tax is $43.99, sales tax is zero, and "Total for this Order" is $10.99. It then gives me the option to click and see the items, Price: $71.99. Must be Nigerians filling out a form letter. Usually, phishing scams aren't this obvious.

I'm glad my parents don't use the computer I gave them for e-mail. I'm sure that they would just assume it is an honest mistake and give away their life savings.

A Pennsylvania man has been indicted for sending an e-mail to Kentucky Senator Jim Bunning as a result of his efforts to stop a vote on extending unemployment benefits last February.

His crime may have been filling out a contact form on the Senator's website, incorrectly identifying himself as "Bruce from Louisville" in an effort to appear to be one of the Senator's constituents. He claims he didn't directly identify the Senator as crazy, but allegedly said ""ARE you'all insane," even though Bunning probably qualifies personally for that term. It is impossible to determine from the indictment what the man did, since the U.S. Attorney only quoted the vague language of the statute in the indictment.

There are two problems here: One is the basic due process right to be given knowledge of the charges against you, which we can't determine from the indictment. The other is the Constitutional right to "petition the government for redress of grievances", one of the rights granted by the First Amendment. It would be nice if the public could look at the indictment and actually determine what defendant is alleged to have done.

It will be interesting to see what the e-mails actually said. As for calling "Bunning" crazy, truth should be his defense. Age age 79, with an approval rating under 30%, he decided not to run again in 2010 because he couldn't raise enough money to fund his campaign.

40 years ago, California became the first state to allow people to get divorced simply because they no longer wanted to be married to their partners. In 1969, the California Legislature decided that the then-existing concept of "fault" created more problems that it solved; it felt that making the parties lie to rid themselves of a mate made little sense - no marriage was better than open hostilities, and, besides, court rooms are pretty poor places to decide which spouse was worse, or whether bad conduct had happened at all. Since then, 48 other states have followed suit, leaving only New York without a similar option. That may soon change.

This recent op-ed piece in the New York Times summarizes the arguments for and against no fault divorce now being debated in the New York Legislature. These are issues that create substantial debate, but eventually the result always seems to favor allowing people to divorce more freely; I presume that, ultimately, the majority of politicians want to keep their own options open.

Whether you agree or disagree with the concept, you or your spouse can obtain a divorce simply "because...." In California, the standard is that there be "irreconcilable difference." It is sufficient that one wants a divorce and the other doesn't - such a difference is probably "irreconcilable." California also permits divorce because of "incurable insanity," but in 35 years of practicing family law in San Diego, I've never seen anyone bring such a case. It is too easy to prove that at least one of the parties in the marriage is unhappy and wants out.

Upon returning to Manhattan in his youth from a stay in an art colony, Andrei Codrescu wrote:

"That was me then: a young poet. I needed people more than I needed trees. I'm older now. I need trees more than I need people. But it's nice to have both - only the ratios change. When I was young, I needed 10 people to one tree. Now it's 100 trees per person."

I live near a big city [4 miles from Nordstrom], but in a rural area next to a natural open space park. I travel to Manhattan on business about once a year, and love it there [at least for brief periods]. But, the best part of my trips [aside from the food] is walking through Central Park.

The older I get, the more space and wilderness I need. When I came across this quote, I realized I am not alone. I cannot imagine life in an apartment full time.

This was taken by me in May, 2010. [Double click on the image for a full view] What a lovely spot, although just beyond the tree line are huge numbers of people living and working - Central Park helps ease the pain by adding some nature to the mix].

My office retired a copy machine a few months ago, having worn it out - more than 2 million copies ran through it. The replacement is faster but also scans and e-mails. We make a lot of copies, and buy a lot of copy paper. It has been her long enough that we became attached to it and the repair man who came more and more frequently to replace parts.

The need for a reliable machine came to mind when we received about 800 pages of photocopies, wrapped with rubber bands, no staples and no organization, from another law office. It is what they represented as being the "client's file." We inherit such files a few times a year when we take over a case for a client.

On those rare instances when we turn a file over to a successor law firm, we make copies of most everything in it. But, we make and keep the copies for ourselves, in case a question comes up somewhere along the line, which happens occasionally. We don't keep the original file in those instances - the original, under California law, belongs to the client. We must pass it along to the next lawyer or to the client upon request at the end of our representation.

Continue reading "Divorce Lawyers and the Client's File..." »

Until last week, it has been generally assumed by many lawyers and CPAs that Domestic Partners, duly registered as such in California, may not divide their incomes for tax purposes, although the income may be treated like community property by the state.

In a recent publication from the IRS effective last Friday, that may no longer be true for tax years beginning in 2007. Because of a change in California tax law effective 1/1/07, this state has treated partners' income the same as that of married persons.

A major concern is the effect this may have on returns for the last 3 tax years, and whether amended returns are required or recommended. It does not appear they may file joint returns, however. It would just mean that each may declare one-half of the income of the other, potentially shifting much of the income tax burden to the lower earning partner at much lower tax rates.

If you are dissolving a domestic partnership, it is important that you contact a Certified Family Law Specialist who has knowledge of these rules and keeps up to date on recent changes.

Many election years, I get questions from family and friends asking for whom they should vote in a judicial election. This year, the stakes are higher and there are far more elections than usual. The San Diego Union published its endorsements today.

As usual, I recommend family and friends vote for the incumbents. This year is no different from usual, but the stakes this year are more important than usual. This year, a group has organized to run against a number of very good judges. Why? Because they want the law to be different from what it is, and view election to the bench as their way of changing the law. Talk about judicial activism! They have not chosen to oppose bad judges, just anyone in office, apparently selected at random. The Union has endorsed all but one sitting judge, and made no choice for the remaining seat. I can't disagree.

One of the judges running is not well respected: Not by lawyers, and not even by many judges. That doesn't change my position, and the Union has elected not to take a position in that race.

Lawyers who run against sitting judges, in the overwhelming number of cases, aren't the best of their profession. Often, not even close. I do not know well any of the judges still in the race - two of them had long stints in Divorce Court, where I saw them do their jobs well. I see no reason they should not be reelected, and the lawyers who have appeared in front of them far more than I speak highly of each.

A third former Family Law judge, Harry Powacek of Vista, was challenged by a lawyer who didn't meet the legal standards for the office and was kicked off the ballot. Although he does not have to run, Judge Powacek had legal expenses to deal with the matter in court. What had he done wrong? Nothing. He was just an incumbent. I appeared in front of him many hundreds of times, and he always tried very hard to do a good job.

Many such challenges come from a lawyer who didn't get the result he wanted in his own divorce. Many, just from lawyers who want the publicity because it may be good for business.

As I look back over the last 40 years of such nonsense, very few poor judges were opposed for election, and few great lawyers were challenging them for the position. Those few judges who lost reelection did so largely because on some horrible publicity: One was caught tearing down his opponent's campaign signs. One was accused of putting a "little old lady" in jail on Christmas Eve on a minor traffic matter. In the first case, the lawyer one and turned out to be a good judge. In the second, the replacement turned out to be a disaster. In each case, the judge was running against bad publicity for his personal conduct, or perceived conduct. These very rare occasions, where a judge screwed up and lost an election, have given comfort to potential challengers.

A few years back, a lousy judge was opposed by a mediocre lawyer - no one wanted the judge around, but the choice wasn't clear - the judge had not had a lot of bad publicity, so he won handily. In one election, a bad judge resigned when challenged, but that was a rarity.

The problem with the process: Judges are afraid to take legal positions out of fear they won't be re-elected when they sit every 6 years. The fear isn't great, since they have almost no chance of losing - but the cost of running, financial and emotional, is high. 25 years ago, a judge made a hard call and dismissed a few dozen drunk driving cases because the DA's Office screwed up in failing to charge the cases properly - he was right on the law and felt he had no choice. One of my friends decided to run against him because he sensed vulnerability - I didn't know the judge, but opposed my friend, who then withdrew when many others came to the judge's defense.

The process is broken, especially in this political climate. It will be further damaged by voting out very competent judges. That only serves to make those who remain more scared of losing their positions, and more likely to make safe choices when hard choices are called for. Even where the Union has elected not to endorse a candidate, I recommend a vote for the incumbent - it will help stop the nonsense of challenges where there is no need for change.

One Sunday in the Fall of 2009 on 60-Minutes, Leslie Stahl presented a two-part piece on the errors in eyewitness testimony. As attorneys, we know that eyewitnesses are not reliable, either because they lack sufficient information, time to assimilate the information, or have trouble distinguishing between conflicting images that interfere with their reporting. Sometimes, they are simply lying.

In Stahl's report, she carefully stepped through the process by which a rape victim innocently caused a defendant to be convicted - then the process by which he was ultimately vindicated and she realized how she had been mistaken. The victim and innocent defendant later met and wrote a book together about the process.

A number of years ago, the State Bar of California Conference of Delegates faced a debate on whether California should repeal the death penalty. The debate was not whether the death penalty should be repealed, but whether it was such a political issue that funds for the conference should not be used to debate the subject. I argued in favor of allowing debate because lawyers are in a particularly unique position to comment on the reliability of witnesses, including those who end up finding people guilty of crimes for which they can spend the rest of their lives in custody, or be put to death.

In decades of trying cases, I recommend to clients that they settle most cases for something within a reasonable range of parameters because they cannot predict what is going to happen in trial. It is an old legal adage that a trial lawyer will have 3 trials in his case: The case he intends to try, the case he actually tries, and the case he wishes he had tried. When you interview a witness [including your client] who tells you a believable story, you put the person on the witness stand assuming that he is going to tell you the same story he told you days, weeks, or even months earlier. It is rare for that to actually happen, and we are often bewildered by the result.

When you confront your own client who has told a totally different story on the witness stand [for example one that benefits his spouse], they may adamantly deny ever having said anything different. When you show the witness the declarations he [or just as easily "she"] signed in the earlier stages of the case, or read from your very specific notes taken when you carefully interviewed him the first day that you met, or even show his deposition transcript telling a different story, the client is dumbfounded; even those who are trying to be truthful at every stage find their memories shifting as information comes in and time passes.

Eyewitnesses who may have a few seconds glance at the perpetrator of a crime, according to study after study, do not accurately report what they saw. When faced with a lineup, photographic or live, where their choices are limited, they are inclined to find someone that tends to look like the person they saw.

Even worse, having seen a person or a photograph, they become adamant as the memory of the event mixes with their view of the person. This is what memory experts tell us happens, as we mix weak memories into something we are extremely confident actually occurred.

If I see a friend who does something, I can later accurately report having seen the person and identify him because I am very familiar with his characteristics: Hairline, face shape, body posture, movements, height and weight, manner of dress, and dress.

When I see someone for a few seconds that I have never seen before, I lack the ability to identify all of these characteristics. Notwithstanding those television detectives who remember and spot every conceivable detail, most of us are not that observant. In times of crisis, we are even less so.

The Innocence Project is a nonprofit entity whose primary goal is to free those convicted of crimes, where the project believes they are not guilty. Hundreds of convicted felons have been released as a result of the project's work because the testimony convicting them was largely eyewitness identification. Where the perpetrator of an act (such as a brutal rape) left behind samples of tissue or fluids, current DNA analysis enabled the project to show that the perpetrator was someone other than the one identified. In many of these cases, there was a physical resemblance between the convicted party and the person who matched the DNA sample - the witness, however, was incapable of remembering sufficient information to correctly rule out the innocent person.

This is not an indictment of the criminal defense system, it is simply an effort to point out the flaws in the system dependent upon something as faulty as peoples' memories.

A growing number of attorneys are opposing the death penalty because of the inability to go back and correct mistakes that result from witnesses' mistakes. From a recent newspaper article, it appears a growing number of states are questioning the massive amount of financial resources devoted to carrying out the death penalty, usually exceeding the cost of housing the convicted defendant for the rest of his or her natural life.

In a time of fiscal constraints, we may be moving toward a consensus on this subject. The 60-Minutes piece may help the dialogue. It would be interesting if the debate between retribution and forgiveness ends up being resolved by financial considerations. This should not be a political issue.

Somehow, I stumbled across this article about people fighting over custody of their dogs in divorce cases. Written in 2006, it discusses appellate court decisions on the subject, and the author's opinion of changing standards.

Historically, dogs were personal property. As I recall, there used to be California cases saying that cats weren't property, because no one could actually own a cat, but for this purpose I'm not going to research the subject to find such cases.

Lawyers in North County [San Diego] where I practice tell about a major trial over ownership of a parrot some decades ago, involving two very litigious attorneys who have since probably joined the bird in the hereafter. We all laugh at the absurdity of people spending 10's of thousands of dollars over custody of a pet. Now I appreciate their attachments to an animal, but essentially they are gambling that the judge will see it their way.

In a website that attacks judges and lawyers in San Diego, there are tales about courtroom fights in our county over dogs and cats, including a lengthy trial over Fifi - one-half of the 3-day trial was allegedly devoted to the animal. I understand an attachment to pets, but the Wife's fees in the case ran about $150,000. The article was critical of lawyers charging outrageous fees over such issues. I won't list the website, as it's largely run by a disgruntled litigant, who is occasionally right, but often wrong - he [or she] is anonymous, and seemingly from Beverly Hills.

In general, it isn't the judge's fault that such cases are litigated, something the site claims. It's the fault of the litigants who have more money than common sense. In part, it's lawyers who don't manage their client's expectations, or warn them of the risk and cost of going to court.

The lesson to be learned from these cases is that people don't often understand their own best interest, and will fight over a cause or principle, rather than over something that makes economic sense. For $150,000 you'd think it would make sense to buy a great dog, hire a full time trainer for a few months, then take the animal to Europe for the summer and develop a relationship with it. But that's just me.

I showed up in court a few weeks back for a 9 o'clock court appearance. Traffic was light, I arrived and parked about a block and a half from the courthouse, walked into the courtroom, and found the judge had already started the calendar and was on Item #8 [I was #2]. I checked in with the bailiff, and was the only one of the three lawyers on my case to have done so.

I then went back and sat down, opened my briefcase, and leaned back to wait for one of the other attorneys to appear. I casually looked up at the courtroom clock, and it said 9:01, as the judge called case #9. When the judge got to the end of the calendar, he started back at the beginning, looked over and saw me, and asked whether I was waiting for opposing counsel. I said I was.

I got up and casually walked to the back door, and as I exited the courtroom found one of my opponents coming it, assuming that he had plenty of time to get there for calendar call. We turned around, went back in, told the judge we needed 60 days to resolve some discovery issues, the judge thanked us, and we left.

Outside the courtroom, we were both dumbfounded. Each of us had left in time to arrive by 9 o'clock, assuming that the judge would be several minutes late, as judges usually are.

There are some days you just cannot get to court on time. Negotiating the I-15 to Highway 78 interchange can be a disaster. It seems everyone slows to a crawl because of something like a cardboard box lying empty on the side of the road, and the whack-o's who drive the Highway 78 corridor can't help but stop and look in case they might miss some bargain, a dead body, or free oranges.

My companion then claimed that another lawyer was "the worst". This is a lawyer who proudly trumpets that he the winner of "the coveted 128.5 award", routinely provided by the Certified Family Law Specialists' Committee of the San Diego County Bar Association to someone who is habitually late, files frivolous motions, etc., although basically a jovial fellow. My companion said that this lawyer had called his office on one occasion to find out what time he would actually show up, apparently trying to find out how much leeway he had in getting to the court on time. He eventually arrived an hour late.

We then joked about the perpetual excuse that he was doing some religious event [a prayer breakfast, speaking at a church luncheon, or leaving early for a "church retreat"], as though everyone should understand that his schedule involved in these religious matters should take priority over the schedule of the court or the convenience of the other side.

Typically, Family Law is a "hurry up and wait" kind of litigation practice. The calendar may be set at 9 a.m. or 1:30 p.m., but you may arrive finding 20 other cases on calendar, many of which will be argued in an order determined by the whim of the judge. Some judges routinely call matters where there are lawyers involved first. This frees the lawyers to go to another courtroom to argue another case, and historically makes the process move more quickly: Once you have both lawyers in the same place, it is easier to get them done so that they can go off and deal with other matters, in front of other judges who may be waiting for them.

A few judges put the lawyers down the list, either to avoid the complaint that they show favoritism to cases with lawyers, or because they are concerned that the non-represented litigants will learn something from the lawyers' arguments and make their cases more difficult.

Lawyers quickly learn that arriving on time does not necessarily get them out quickly, and judges learn that lawyers are not always there because they are checking into some other courtroom or arguing a case elsewhere. The reality is always a mix, with some lawyers taking advantage of the fact that they won't be missed since the judge has plenty to do, and they routinely make no effort to show up on time. Occasionally you will see a litigant wandering around looking for his or her lawyer, or be approached asking if they should be doing something because their lawyer isn't there.

The longer we practice, the less enamored we become of the courtroom process, and the less we accept without complaint waiting for hours for a 20-minute hearing that really does not do the issues justice, but is all that we can squeeze out of the courts unless we are willing to wait a few months for a hearing.

Using and acquiring technology in the practice of Family Law in California is a constantly moving target. Here is a link to a lawyer's article on the Blog of the Association of Certified Family Law Specialists. This is yet another big overhead expense, but one that almost appears to be indispensible in order to adequately represent our clients. Some lawyers view it as merely a toy, or a big iPhone that doesn't make calls.

The author recently bought the newest arsenal in a lawyer's office: The Apple iPad. She got her version the day they shipped. Unfortunately, I am waiting for the version that ships at the end of this month - it will provide me a direct connection to the Internet from the courthouse, without the need for a secondary device - she already has a MyFi modem, which [at higher monthly cost] allows her to link to the Internet from her iPad, laptop, cell phone, or other device, so she feels she doesn't need the upgraded version. But it is one more piece of equipment to carry, keep track of, and break.

I am looking forward to the iPad arriving, as are many of my peers. Lugging a laptop is always an issue [even at 3 pounds for a lightweight], and finding an electrical outlet when you need it is almost impossible [the iPad has more than 10 hours of battery life]. While the author of the article thinks the MyFi is a better solution for her, my goal is to have as few different pieces of equipment as possible.

The only things missing with an iPad are two important programs I need constantly: My research database and a support calculator - each requires a computer. The support calculator is available at the courthouse most of the time in San Diego County. The research program can be partially replaced by one of several iPad apps that will give me direct access to court rulings in appellate case and all California statutes [at substantial, additional cost, of course].

At present, I have a Kindle DX: In addition to using it as an e-book reader, I can load .pdf files containing correspondence, proposed agreements, and documents produced through discovery that I can review, although in black and white only. The iPad should replace all of that, further reducing the number of tools I must carry in my briefcase.

I can hardly wait for it to arrive.

There is one local lawyer in San Diego County who specializes in bashing the legal profession, and bragging about the ability to handle a complete divorce in a day: Mediating a settlement, gathering the financial records, drafting all the documents, having an agreement signed, and the case ready for filing with the court. Sounds attractive - especially if you are rushing to get an agreement signed.

That attorney brags of a 100% success record. Unfortunately, the claims are not justified by experience. While that attorney may be able to claim to have talked the parties into a settlement and signed most of the documents in that day, not counted in those bragging rights are the many cases that have later been set aside by a judge or by stipulation because they were unfair, or entered into without sufficient understanding of the law or facts. The same person instills fear in potential clients by telling them that letting some other lawyer near their case will end up costing them tens of thousands of dollars, making outrageous claims of the cost of the average divorce.

And the saddest part is that the work is of low quality, and often could have been handled more competently at lower cost. Two mature, reasonable people, can mediate with a competent mediator inexpensively, and do it right: They don't need to pretend they can or should wrap it all up in a few hours. Typically in my practice, we meet 2 or 3 times over several months; by the time we are done, each knows his or her rights and feels comfortable with the agreement. And we strongly suggest they at least consult with an attorney before signing.

As a concept, it sounds nice that two reasonable people who know what they are doing can go to an attorney, polish the rough edges off their agreement, and have all the paperwork completed quickly, efficiently, and cheaply. Unfortunately, that isn't what happens in practice when they try to do it in a day. One of the things I complain about in this blog is people with insufficient education and training performing mediation in the guise of protecting people from the legal profession and their own inability to reach agreements on their own.

Continue reading "Getting Your "Divorce in a Day": No Way...." »

Last night on The Daily Show, Newt Gingrich was interviewed about his new book. In the course of dialogue, he was asked why the underwear bomber should be treated in a fashion different from the way the Bush Administration handled Richard Reed, the Shoe Bomber. Reed was prosecuted and convicted in a civilian court. Both attempted to blow up airplanes flying to the USA.

Gingrich's answer? Reed was an American Citizen, whereas the underwear bomber was not, so Reed was entitled to greater rights.

That comment woke me up promptly. Having previously endured Republican pundits claim that Reed attempted to bomb a plane pre-9/11 [he didn't], I was surprised that Gingrich [who knows better] felt compelled to lie about reality to justify his attack on the present administration.

Others have objected that the UB was read his Miranda Rights, as though that impacted our ability to question him - it did not. He was caught with a bomb - we didn't need to introduce his statements against him at trial, the only thing to which Miranda warnings apply.

If you want to complain about Obama, don't make things up. Whether it's death panels, place of birth, or the citizenship of the Shoe Bomber, let's put these false arguments behind us and move on to discuss relevant issues. Just because the General Public is so stupid it believes these things does not justify using them as arguments to regain power. Why would I trade one set of politicians for a set that would lie to me to get elected?

Our society has reached a place where it is OK to lie about facts to justify one's positions, when we should be discussing policy and supporting or opposing ideas on their own merits - we no longer impose consequences when they lie to us.

The Constitution has a place in our country, and not just because it gives a right to bear arms. When we were told that we needed to go to war against Iraq, we were told they hate us for our freedoms - then, at the same time, the same supporters used these attacks by radical Muslims [largely from and funded by Saudi Arabia] to justify taking our freedoms away and denying them to others.

Irrespective of your political leanings, it is time to sit back and look at those who use lies and fear to manipulate us, reject them, and support those who use more than lame slogans to get elected and re-elected.