August 14, 2014

Absurdities in the Gay Marriage Debate....

Regardless of one's position on gay rights, every thinking being has to admit that married people need to have a place to get divorced when their marriage falls apart and they meet the standards for divorce in their home state.

If they were legally married somewhere, and move to a state that does not allow gay marriage, you can't just leave them in limbo when the relationship falls apart because you don't like how or when they married.

For 48+ years, California has allowed heterosexual couples to get divorced so they can move on to other bad relationships, or marriages. As many comics and some politicians have commented, gays deserve the same privilege of getting into another bad marriage as straights.

Well, it still goes on in some jurisdictions that judges are so entrenched in the concept that gay marriage is wrong, that they insist that gays who are married must stay married, even if they aren't "gay". [I didn't expect you to follow that, but those are the facts]

In Arizona, it took 3 appellate justices to fix a problem, with bizarre wrinkles. A couple got married in Hawaii. They later moved to Arizona. When they wanted to get a divorce, the trial judge wouldn't allow it because the husband had started life as a woman. He had undergone gender re-assignment surgery and hormone replacements, and along the way, had sufficiently changed his gender that the State of Hawaii issued him a driver's license and reissued his birth certificate to reflect he was a male. OK, some people think that's weird, etc., but that's not the point.

The trial judge concluded he wasn't man enough to be married to his wife, or at least he couldn't provide enough proof that he was a male, so no divorce. Even his wife agreed they should get divorced. Well, now they can, at least in Arizona.

Get a grip, people. Life goes on, like it or not.

July 11, 2014

Shasta Superior Court Family Judge Gibson Denies Existence of Constitution

OK, so the headline is a slight exaggeration, but the effect is the same: Shasta's Judge Gary Gibson doesn't seem to think you have a Constitutional right to refuse to be a witness against yourself, and God protect the attorney who tells you about that right. [Or at least California's Commission on Judicial Performance, which rarely does anything as far as I can tell, might protect you]

We all know about 5th Amendment rights: Basically, the part where you can't be compelled to provide testimony against yourself. Right there, just a couple of amendments below the gun rights part: Been interpreted many thousands of times, so the rule is pretty clear, and not that hard to understand what the courts think it means. It's a lot more than not being able to beat a confession out of you.

It appears from my sources that Judge Gibson, a recent appointee to the bench sitting in a Family Law department, hasn't heard about it. When an attorney told his client not to fill out a portion of a court form based on that right, the attorney was cited by the judge to show why he [the lawyer] shouldn't be sanctioned for giving valid legal advice.

Any lawyer with a 3 digit IQ, and more than a couple of years of experience [or who went to a decent law school], knows that right includes the right not to disclose any fact that could in any way cause someone to think you may have some involvement in criminal activity or tend to prove it - not that you are engaged in a criminal act, but that someone might think you are or were, and might cause you legal grief because of it. Something like: "Have you ever driven a motor vehicle after drinking alcohol?" Pretty innocuous question, but you have a Constitutional [both State and Federal] right not to answer. Now, if you assert your right in a civil matter, the judge may be able draw an inference against you [although not in a criminal case], but he cannot compel you to provide testimony that may tend to incriminate you in any way. [Now, please don't nitpick, I'm trying to simplify this.]

Well, Judge Gibson doesn't care. If you don't put the answer on a court form, citing advice of counsel and the 5th amendment, he feels he can order you to do so, and then cite the attorney to court to explain why the attorney, who is doing what he is supposed to do, should not be punished simply for doing his job.

And, my sources on this point run fairly deep: Not just some whining attorney or self-represented litigant. I don't know the parties, the lawyers, or the guy unfortunately wearing the robe, but I have reliable sources. I don't know the question, and don't know what the client's answer would have been, but it is enough that a lawyer has to go to court to justify legal advice, out of fear of sanctions by an out of control judicial officer.

The unfortunate part of the story is that no one chose to run for election against Gibson this time, his first, so Shasta County is stuck with him for another 6 1/2 years until he has to run again. [A newly appointed judge must sit at an early election where the voters have a chance to second guess the Governor - usually, that person hasn't done enough damage to enough people to run a risk of drawing a willing opponent, because incumbency carries a lot of weight with voters in judicial elections.]

Not having a challenger this time, he must feel pretty safe - often happens with the ignorant and arrogant. Now, as I've said, I don't know Judge Gibson, but I'm told he's not too bright. We've had a lot of such judges on the bench - the best ones make up for it by not going out of their way to make waves, and have long careers. The worst make it to the front page, or have lawyers blog about them.

January 6, 2014

Divorce and the Founding Fathers..... :)

According to Garrison Keillor's Writer's Almanac, yesterday was the anniversary of the first legal divorce recorded in what was to become the United States of American.

It happened January 5th, in 1643, as a result of the husband abandoning his wife and two children for another woman.

Not sure that this signifies anything, other than that divorce is a long standing tradition.

November 20, 2013

Paul Daniel Marks elected to the Family Law Bar Board of Directors

On Tuesday night, I was elected by a vote of my peers to the Board of Directors of the San Diego Family Law Bar Association.

This is a new organization formed last summer, and is the largest organization of family law lawyers in the county. For decades, the San Diego County Bar Association had a committee of its members who were certified family law specialists - close to 200 of us. I had served a full term on the Executive Committee of that group in the 1990's, and was later appointed to fill out the term of a lawyer who retired. In each case, I was filling a slot for a North County representative.

The specialists, through the Executive Committee, raised a great deal of money for the Bar, primarily by producing very successful seminars - a lot of specialists were only member of the county bar so they could be a member of that committee, and they paid a lot of dues.

There were always tensions between the parent organization and the Executive Committee. Last Summer, the Executive Committee and the County Bar decided to part company. The core idea of the new association was to take over the Executive Committee's role in speaking for the certified specialists and take over its own finances. A bolder part of the decision was to create a new family law bar association representing all lawyers who practice family law, not just the specialists, and the new group is well on its way.

The new organization is the successor to the old committee, the Board of Directors has taken over the role and position of the old Executive Committee, and the transition has largely been seamless. North County had one representative on the executive committee, and has one seat on the new Board of Directors - typically our North County Specialists Committee of about 40 members has chosen that person. This year that position came open again - my friend Paul Gavin was that person, and will be our representative to the Board.

I decided to run for one of the three "at large" positions to see if we could give north county greater representation, and, frankly, to see if I had the support of enough members to gain a seat. I didn't really hold out much hope, as only one north county lawyer has won an at large seat in as long as anyone can remember. With only 25% of the specialists practicing in North County, San Diego controls the votes.

Well, I won.

September 18, 2013

Divorce and Finances in a Rising Economy....

According to an article in the Los Angeles Times, the divorce rate has increased as the economy has improved.

This is a situation known to every experienced family law lawyer. When people have few assets and money is tight, they may fight more but they don't feel comfortable terminating their marriages. With the drop in house equity and many houses being upside down, and one or both partners unemployed, at least one of the parties recognizes that there isn't enough money to enable them to maintain two households. So, they stay together until they feel more positive about their finances.

In the typical divorce, for most middle class families, there isn't enough money in the best of times. When the economy is in a slump, the problem is much more obvious, and many people are scared off.

We also know that people seem to litigate more when they feel they have money in the bank or equity in their houses to fund the fight.

July 25, 2013

Domestic Violence Prevention, Death, and Law Enforcement

New York City has stepped up Domestic Violence Enforcement, according to a recent article in the New York Times.

The basic premise behind most Domestic Violence laws is to protect victims, obviously, but also to stop minor problems from becoming big problems because pushing and shoving turns to more serious conduct over time.

While some parties and lawyers view Domestic Violence restraining orders as a tactic to gain an advantage at the beginning of a case, such orders may serve a cooling off period that prevents the parties from escalating to more serious behavior out of frustration. As a tactic, however, such orders frequently serve to cause more anger that interferes with the ability to settle cases.

Increasing police involvement to head off bigger problems, as a precaution, may prevent serious injuries and deaths. In the case described in the article, the female kept allowing the male to return, despite police visits - it appears she lied to them the next to the last time police officers went to investigate whether the boyfriend was coming back. The last time was to investigate the females stabbing by him, and her death, a week later.

May 22, 2013

Same Sex Marriage, Cohabitation, Child Custody....

Here is a New York Times article that gives lawyers and judges one more thing to chew on in child custody cases.

A Texas court enforced an order prohibiting a same sex couple from living together in Texas with the children of one of them in the home. In Texas, they can't get married, so the court enforced a morality clause in a divorce agreement to keep them apart when the children were present. According to the story, such provisions are typical in that jurisdiction.

The last time I saw a judge in California make such an order in a case with two people of opposite gender living together has to have been 30 years ago. Occasionally there will be delays in allowing such arrangements for very young children, or when the separation is fresh, due to the impact on the children emotionally from seeing one parent moving on to a new relationship. But, in general, California judges do not consider this type of conduct to be very serious. We see few cases with same sex couples in this situation, but I doubt the rulings here will be any different, but it will be interesting to watch, no matter what side of the argument you are on.

Decades ago, I had a client move to Missouri with her children. Despite a court order from California to the contrary, she was able to get a judge in Missouri to prohibit visitation to the father because he was living here, in California, with his girlfriend. The consensus here was that the Missouri ruling was "quaint." That was the last time I had experience with such an order. Things are different here.

May 16, 2013

Collecting Delinquent Child Support, License Suspension....

Under a 2012 law, the Indiana Secretary of State suspended the licenses of two Indiana stockbrokers for failure to pay child support - one was from California, but he was licensed in Indiana. We tend to forget that this remedy is available for the very delinquent, but this case brings it back into our focus.

Through the Department of Child Support Services, such remedies have been available in California for many years,

Although DCSS requires that the recipient open a claim with that office, which has its own problems in pursuing support in many cases [including many months of delay and inadequate use of discovery to obtain information], DCSS has available to it several remedies such as this that are not available to private lawyers. We frequently have clients open a file at DCSS so that we can have the advantage of that remedy, while still representing our clients in conducting discovery to determine income and wealth, as well as doing other types of enforcement where a competent, private Certified Family Law Specialist can be more efficient and effective.

License suspension can included driver's licenses, licenses to practice law, dentistry, or medicine, real estate licenses, barber's licenses, and almost any approval from the state required to engage in business. Commonly, we are looking at suspension of building contractor's licenses. In most cases, these actions spur the payor to at least make an effort to pay what is owed, since it can impact his or her ability to earn a living, or even drive a car without fear of being stopped by the police.

Periodically, DCSS will send a list to the U.S. State Department, which interferes with the right to renew or obtain a passport for foreign travel - since you now need one to go to Mexico and Canada, and be able to return, that can cause quite an inconvenience. No more European cruises for the truly delinquent.

May 15, 2013

No Money for California Divorce Courts, etc.

In a recent article in The Recorder, it was reported that Governor Jerry Brown's revised spending plan [his 2013-14 budget] contains no additional money for our courts.

The story quotes a Judicial Counsel lobbyist as stating that the courts will not be able to make payroll by July, 2014, the start of the fiscal year, because of new changes proposed by Brown that will prohibit courts from maintaining a reserve account of any sizable amount for cash flow purposes.

If you have been in a family law department in the last year in San Diego County, you will see part of what budget cuts have done - hearings are set many months out for important issues like child support and custody - court reporters are only available in each department a few days each week, which means that there is no record of the proceedings the other days if you don't bring in your own court reporter - and, no, you aren't allowed to record hearings, so with no record there is no agreement on orders and no ability to be able to mount an effective appeal.

As usual, if you have money, you can take your case out of the court system, but the middle class can no longer afford court hearings even if they can afford lawyers.

May 9, 2013

Valuation of Assets, Businesses and Professional Practices.

The general rule in family law cases in California is that assets are valued as of the date of trial [or settlement, which is how most of our cases are resolved].

From time to time, there are reasons for a different date to be used: For example, an asset that has been damaged or destroyed, or a business that has substantially changed in value allegedly due to the activities of one spouse.

If you have a case involving a business or other asset that has changed value since separation to your detriment, it is important to do two things: Hire an attorney who specializes in business or property matters, and file a motion to request that the court set an alternate valuation date. If you don't, you might find the value set at the date of division [trial], with the other party walking away with a windfall.

This issue comes up most often in valuation of professional practices, such as attorneys, doctors, dentists, and architects. Typically, the value changes substantially after separation, either because the spouse in charge works harder, longer hours, or stops seeking new business [or even starts hiding more income and padding out expenses].

Since the late 1970's, California has provided that anything a spouse earns after the date of separation is his or her separate property - in the U.S., this has been the minority rule. That means that the efforts of a spouse that contribute to the increase in value of the business belong to the working spouse, and the former spouse should not benefit. The other side of the coin is the working spouse not working as hard, etc. These can substantially alter the division of assets, primarily dependent on the date chosen by the court to use as the date of valuation.

In a recent case, a Husband requested the use of an alternate date, in an unpublished appellate court decision, and was denied on the basis that he waited too long to make the request - the trial judge decided that the delay prejudiced the Wife, as the period for conducting discovery had passed when Husband asserted the request. It was affirmed on appeal. [See elsewhere on this blog for a discussion of what happens when an appellate decision isn't published.]

May 7, 2013

Unpublished Appeals Court Opinions

From time to time, you may read or hear about appellate court decisions that are unpublished. These are decisions of a court of appeal that do not find their way into the state's official reports of the courts. While these decisions are important to the litigants, the appellate court may feel that the rules in the decision are repetitive, or they just don't want the results made part of the official record, either because the facts are very unusual, or they don't want courts and lawyers relying on the reasoning that resolved a particular case.

For lawyers, such decisions create several problems. Because they are not in the official reports, they may be difficult to find and are usually not indexed so they can be searched. They are often sought out by us to find the law cited by the opposing parties from which we can draw research or arguments on a particular subject where there are no reported decisions, or where we don't like results in cases that are reported They also may have been read by the trial judges, who may rely on the reasoning in forming their own conclusions about the law, and we don't know what they think as a result.

In California, from the lawyers' standpoint a big problem with such decisions is that they cannot be cited as the law in court or in the legal arguments we file with the court in support of our clients' legal positions. For courtroom purposes, although they may impact the beliefs of the judges and lawyers, they do not exist.

February 15, 2013

Don't Discuss Your Divorce Case with Your Children.....

For decades, my staff and I have told our clients not to talk to their children about their divorce or their spouse - let them figure it out for themselves. Clients and lawyers don't always act sensibly, however.

From a colleague, I received the following transcript of a judge's ruling/speech obviously made in anger, but right on point. These words should probably be yelled at every litigant in every contested case [not that they would heed the warning]:

2 The court has previously ordered both parties

3 to keep their children out of this case. And apparently

4 you don't know or understand what I mean by that.

5 Can you tell them you're going to court on

6 this case? No.

7 Can you tell them what motions have been

8 filed? No.

9 Can you tell them you're fighting over

10 support? No.

11 Can you tell them what job he's looking or not

12 looking for? No.

13 Can you tell them anything about this case?

14 No.

15 Can you hand your children support checks to

16 hand to him? No.

17 Can you complain about her and what she's

18 doing in this case? No.

19 Can you discuss this case in any way, shape or

20 form or fashion with the children? No.

21 Can you discuss this case with an adult friend

22 with the children in earshot? No.

23 Can you leave your documents out where they

24 can read them? No.

25 Can you keep them in your desk so they can


1 open your desk and find them? No.

2 You may not bring these children into this

3 case under any circumstances, except when you two are in

4 the room together, and you both say, "Your father and

5 I," or "Your mother and I agree that this is what you

6 should know."

7 Do you understand that your children are not

8 to be involved in this case, in this divorce, in this

9 property dispute, in this domestic violence dispute, in

10 any hearings in any form whatsoever?

11 Do you both understand that?


He didn't add comments like "I don't have money to buy you Christmas presents because your father spent it all on that drunken w____, instead of paying support." And, yes, we've heard such stories.

December 3, 2012

Violence Between Intimate or Domestic Partners.

A recent Justice Department report has concluded that Domestic Violence has declined substantially from 1993 to 2010. While violence in general has been down, the rate of decline in violence between intimate partners was substantially greater.

The report did not support any theory for the substantial reduction.

July 8, 2012

Pre-Birth Child Support....

Here's an interesting blog in the New York Times, for a new concept [no pun intended].

In the past, when a woman told a man she had been impregnated by him, he had no way of knowing whether the claim were true. One could expect him not to be forthcoming with support or other financial contributions. Technology advances.

What's next? Requesting support for the mother-to-be, while pregnant, to cover the costs of medical care, pregnancy leave, etc., may be the next legal battle front in paternity cases.

March 7, 2012

A Tool to Deal with Divorced Parents Who Abuse Alcohol....

Frequently in our divorce cases, we see allegations that one or the other parent is abusing alcohol or drugs. A suggestion has been made that courts require lockout devices on a parent's car as a condition of exercising visitation, once the parent has been found to abuse alcohol.

Click here for a story about such a device, and how it works to keep drunk drivers from being repeat offenders. Although I haven't seen a judge use such a tool, it certainly limits a dispute over whether a parent picking up a child is under the influence at that time [it may also interfere with the child coming back on time].