Divorce And Mediation Blog

If you watched John Stewart August 11th, you got a clear look at Fox News Hypocrisy.

A "reporter", fresh from maternity leave, confronted a talk show host who had called such leave a racket, and when he objected that men don't get such leave she proudly announced "oh, yes they do," to justify her defense of taking the benefit from her employer. She was very vocal about the need for such a social program forced on employers by the government, and how good it is for society.

Now, as a small business man, I have a problem with maternity leave for small businesses, where the loss of a key employee can have a devastating effect - often a person who cannot be replaced without months of training of someone to take his or her place must be replaced for a few months, but that is a nuance about application rather than opposition entirely as a matter of social policy. It would have a major impact on my law practice if I lost one of my paralegals for 3 months.

The problem is that this reporter had previously railed against such benefits as Socialism. Stewart was pointing out the problem when you take a benefit that affects you, but object to the same or similar benefits when they affect someone else. This happens over and over again on the network, but also among those who use the "conservative" badge to advance their own causes.

A prime example is Michelle Bachman and her family - she gladly accepts subsidies for one family business, and Medicare payments that support another. Another is the red state politicians demanding aide from FEMA for the recent floods, while those from states that weren't flooded insisting the government cut other programs before helping with the cleanup and rebuilding programs, let alone the need to help individuals feed, clothe, and house themselves on a short term basis.

There are good and bad in most such programs - that's why I take a more nuanced view, where you tailor the program so that it does a combination of good, without too much bad. This happens time and time again in government, and why compromise is essential.

According to a story in the Sacramento Bee, California's divorce rate is down, at least for 2009, the year of the study.

Even more significant for those of us who live here, the divorce rate was lower than the national average, by about 10%. Hard to believe, when we tend to assume Californians get divorced more than residents in other places, and our marriages don't last [maybe it's just Southern California that has that reputation].

By region, what we are told by some is the conservative, family oriented, religious South had the highest percentage of divorces, while the liberal Northeast had the lowest.

These statistics don't come from left wing think tank; but from the U.S. Census Bureau., the agency that travels around the country every 10 years gathering information and performing its Constitutional duties.

Here's a typical client's excuse: Felon blames his lawyers.

Invariably, no one wants to accept responsibility for their own wrongdoing. Here's a guy who plead guilty for bribing a congressman, among his many woes. As he sits in jail, his excuse is that he didn't read the plea agreement he signed, just before he was sent to jail to serve the agreed upon sentence - he wants us to believe he thought he was just going to get a slap on the wrist and go about his business, and the lawyers didn't explain it to him properly. He claims that the only reason he was sent to jail was that he wouldn't name the other congressmen he'd bribed. I like that story, and it's certainly funnier than "the lawyers made me do it."

Last week I watched as a former client testified in court that he wasn't at fault for putting his girlfriend down as his spouse on his income tax forms. He "relied on the professional," his accountant, to put her income on the form someplace and it wasn't his fault she was listed as his spouse. The other testimony was that he'd said that "The judge will certainly understand that I was just trying to save money." He claimed she wasn't his wife when she wanted support and some of his earnings - the judge agreed she wasn't his wife, but entitled to the same rights as a wife because he had claimed her as such for years - year after year, in fact, until he was done with her.

Watch what you write - those e-mails and instant messages may come back to haunt you. In a recent trial in Federal District Court in Florida, an instant message between two parties to a business contract were found to have made a major modification to their contract. A more complete report can be found here. One party to the exchange didn't like the court adopting what it deemed to be a modification of a prior written agreement - where a contract required any modification to be in writing, the court found that the IM exchanges satisfied that requirement even though they were very cryptic.

It is amazing how quickly people dash off messages, forgetting they may be read much later - the electronic form allows speed without much consideration. Or they make an agreement, but later forget they have done so. And once the message is turned into electrons, it can last forever with endless copies being made and transmitted.

In Family Law, we see people post things on their Facebook pages or send what they believe to be a witty remark - usually we see them for the first time when someone attempts to produce them at a hearing. They can sure be embarrassing.

Several years ago, Mr. Elkins was getting a divorce in Contra Costa County - he ran into a buzz saw when he showed up for trial. Much to his surprise, the judge essentially wouldn't let him present a case because he hadn't followed local court rules - mainly, he hadn't reduced all the testimony he wanted to present into declaration form. Those rules were specifically designed to eliminate trials in Family Law matters in that county.

San Diego is what is known as a Reifler County - pursuant to a California court case in the Marriage of Reifler, on a county by county basis, courts have been allowed to use declarations in lieu of oral testimony in family law cases - it's clearly faster and more convenient, and in the vast majority of cases justice is done by that process - if you want oral testimony, there is a procedure to follow, but the judge has discretion not to allow it. For trials, however, San Diego has always required oral testimony.

In theory, the Elkins decision had no impact on San Diego divorce cases. Unfortunately, for most litigants it isn't that easy. After Elkins, an "Elkins Task Force" was created to solve all the problems in the family law courts. [Insert smiley face here] They ran with the ball and have managed to make a major upheaval by permitting testimony in all hearings as a matter of right, and allowing children to testify in their parents' divorce.

These changes, part in force now and part in 2012, are going to make family law cases much more expensive and much more complicated. Rather than increasing justice, they will deprive more people of their ability to effectively present their cases. In the best of times, divorce courts have been the poor stepchild of the law - the worst court rooms, an insufficient number of judges, and judges poorly trained in the subject matter.

The high volume quickly too its toll on the best of judges, let alone those with no prior family law experience. Because of the high volume of cases assigned to each judge, the emotions attendant to the decisions, the number of substantive decisions that need to be made in each case, and the effect on families of mistakes, burn out among judges often comes quickly.

Where are the judges going to come from to handle the increased work load required by so much oral testimony? Certainly not from the judges who have the seniority to balk if assigned to a family law department.

Where it may take two to four months to get a hearing on a one hour matter before the new changes in the law, what will happen if it takes twice as long to get a hearing because the judge is busy hearing hour after hour of senseless testimony? Increasing chaos, less justice, and higher cost overall.

Yet another press release crossed my computer desktop from a lawfirm that handles divorce cases in San Diego County, braggin about the firm having shown up to do its job. Apparently, if they actually get their clients what they are entitle to receive, they consider it a big deal in their office. :)

In the press release, the lawyers are bragging that one of their own managed to get their client a 50/50 division of a pension. I think that is what is supposed to happen, although the other side doesn't always cooperate. It is also possible they didn't tell all the facts, and there may be a real reason this was a victory. [In fairness, it appears the other side had already collected some of the monthly benefits, and the court ordered half of those paid to the client - but that is what is supposed to happen.]

They go on to brag that the court had the other side pay a portion of their client's fees. That's pretty typical if there is a large disparity in earnings or assets between the two parties, or even an uncooperative litigant on the other side, but hardly a stunning victory. Now, if the judge had ordered 100% of their fees I'd praise them for that, since it is a rarity, but I'd hardly brag about getting "a portion" of my client's fees paid. Ok, maybe if my client's fees were $10,000 and the other side ordered to pay $9,000 I would consider that a job well done, but if that were the case I wouldn't be bragging that I'd gotten "a portion" of the $10,000.

Does anyone really pay attention to this stuff, or is it just Internet junk we could all do without?

Irrespective of your view of gay marriage, if you studied Constitutional Law you had to conclude that the Defense of Marriage Act [DOMA] wasn't constitutional. Essentially, this Clinton era legislation was to appease those who didn't like the idea of homosexuals getting married - this Federal law provides that a state is not required to recognize same sex marriages conducted legally in another state.

This became big news this week when the administration announced it no longer intended to waste time and energy enforcing the law. For students of the Constitution, however, it's not really big news except that a government employee has openly sided with reality.

The problem with the law is a provision in the U.S. Constitution that requires one state to provide "full faith and credit" to the public acts, laws, and court decisions from every other state: Article IV, Section 1. In simple terms, this means such things as a court ruling in one state being entitled to enforcement in another, or a contract validly made in one state is enforceable in another.

When the DOMA was enacted, it was my first reaction that the law violated this provision of the Constitution. There is a strong need for too many politicians to make it look like they are doing something to satisfy their core constituents. Where I have a problem is that they won't admit that they are wasting a lot of time and effort on window dressing to satisfy the ignorance of the voters. Unfortunately, those who claim to want strict enforcement of the country's founding document really only want to enforce the parts of the Constitution they like best, and don't see the hypocrisy. After all, the document is more than the 2nd amendment.

As part of my practice, I have Google alerts to keep me advised of news involving San Diego Family Law. Amazing what Google sends me daily - often some blog or other website change by a lawyer trying to impress potential clients, but also stories about divorces in the news - your basic TMZ saga of a celebrity or a really rich person.

Today, one alert was notice of a "divorce and property support group" where you would talk about your rights, avoid mistakes, learn who gets to keep the house. That's practicing law, or at least teaching the subject. Who sponsors the group? A real estate broker. The charge? $50. Doesn't sound like a support group to me. Sounds like a way to make money in a down real estate market, while getting your name known to people who might need a broker because they are forced by finances to sell their home.

Now a broker might be able to sell your house, but tell you about your divorce property rights? Give me a break. When I tried to find out who was doing this, I learned there is a group passing out "certification" as real estate collaborative specialists in divorce. Their claim to fame seems to be that they can do a better job of selling the house of people going through a divorce than someone who hasn't gone through their 12 hours short course. Never heard of such a certification program before. No surprise there. They are trying to capitalize on the "Specialist" and "Collaborative" designations, especially the latter which has some real meaning in Family Law. And if you want to get your divorce information from a Certified Family Law Specialist, there is a legitimate program behind that rating.

Personally, I know several brokers who don't claim this new "certification" who have sold dozens of homes in my cases with minimal friction between the parties - these are called PROFESSIONALS. I send my clients to them because they do their jobs, and no one complains to me about the choice. And, because they are professionals, they tell their clients to get their legal advice about their property rights from a lawyer.

Then there was the press release from a local divorce mill [advertise heavily, suck in a lot of business, and higher young and/or inexperienced lawyers to work on the cases]. The release was bragging about the great skill of one of its lawyers who had managed to get a father's timeshare with his children increased from 35% to 50%.

Sounds like quite a coup, until you talk to a certified family law specialist - he or she will almost certainly tell you that such orders are really pretty routine, it just depends on the facts. Although such a court order represents a 50% increase in time, it really means adding about a day a week - often a pretty easy feat as long as the non-custodial parent is competent, the children are doing OK in school and socially, and his or her work schedule permits the extra time - the system is biased in favor of equal sharing between competent parents, especially where they live close together, even though children generally perceive a 60/40 split as about equal.

Changing an order can be pretty easy if the 35% share hasn't caused problems, the children are doing well in school, no one has been arrested for a bar fight :), and especially if Family Court Services recommends the change. FCS mediates between the parents, and makes a recommendation to the judge if the parties don't agree.

In fact, an experienced lawyer may have his client agree to a 40% times share at the beginning of a case, knowing that adding an extra 10% [36 nights a year] is pretty easy to achieve the next time the case comes before the judge - all that is usually needed is that the non-custodial parent has kept his or her nose clean, stayed involved with the child or children, and can adjust his or her work schedule to accommodate the extra time since the prior order.

Now, if the non-custodial parent worked 60 hours a week, worked odd shifts, didn't or couldn't participate in parent-teacher conferences and doctor appointments, or take the children to their after school events, different case. Show me such a parent where the timeshare increased 50%, and I'll take notice. That would require luck and good lawyering. A beginner might be lucky....

Here's a question: Would you spend upwards of $300,000 in attorneys fees trying to get your spouse from collecting what he or she is probably going to get anyway? Does the answer change when the dollars change? Does the answer change if the person is in a tax bracket close to 50%, and has to earn close to $600,000 to pay those fees.

Let's say, hypothetically, there is a very long term marriage. The high earner makes about $1,000,000 per year. The low earner wants support to maintain the marital standard of living. In this hypothetical, the low earner worked throughout the marraige and still works, full time, earning about $80,000 per year. Hypothetically, the temporary support ends up being around $30,000 per month. In gross terms, that leaves the high earner with about $640,000 a year, and the spouse about $440,000 per year. Sounds like a lot of money, doesn't it, but hardly unfair to the high earner after 30 years of marriage.

Temporary support in my county, San Diego, is almost always computer and formula driven: Pretty predictable once you agree on the amount for the parties' earnings and tax deductions. Our computer programs calculate net incomes and divides them on about a 60-40 ratio, although it is adjusted for the recipient-spouse's earnings and often ends up closer to 55-45 if the low earner makes a good living.

Long term support [also called permanent or judgment support] is what a judge would order after trial and the division of assets - the court must then consider a bunch of factors, and is not permitted to use guidelines. Notwithstanding that rule, long term support tends to be close to temporary support for long term marriages: Those twenty plus years, especially if a career was built during the marriage.

Knowing all of that, why would anyone spend that kind of money avoiding the inevitable? I don't have an answer, but it's a question that I ask a lot. Especially after watching it happen time and time again. Personally, I'd rather give the money to my ex-spouse than to the lawyers. The lawyer isn't going to walk my daughter down the aisle or come to my son's graduation, and at least I'm keeping the money in the family.

The economy is lousy, so I expect a little puffing by my competitors to get a bigger share of business. But sometimes the claims are really silly.

I have a permanent Google alert set to send me any news about family law in San Diego, so I get a lot of weird posts from blog sites, press releases, and other efforts by lawyers trying to get noticed: I.e., to move up their Google ratings. The more their names and and web addresses appear on the web, the higher they rate, on the mistaken assumption that a lot of people are pointing to them.

Sometimes, the stories or posts read as though they had been written by a third grader who wasn't a very good student - pure gibberish, incomplete sentences, and typos in almost every sentence. [yes, I know, I make a few]

Last week, a lawyer who runs a mill and isn't a certified specialist, issued a press release bragging about the great skill of one of his employees. The young lawyer had "managed" to increase a father's custody time share from 35% to 50%. That is almost a 50% increase, but hardly one that requires great skill in most cases.

Any lawyer who has a significant volume of cases has results like this all the time, and most of the time it has nothing to do with his or her skill - usually you get such a result when Family Court Services recommends and increase, but sometimes it's not much more than a father who decides he is able to spend more time with his children, or a mother who goes to work full-time and can't care for the children all day.

It reminds me of an older post commenting on a lawyer whose website brags he is the recipient of a "coveted award." That award, in reality, used to be given out by a retired judge at our family law bi-annual dinners to point out lawyers who show up late regularly, and always have an excuse for not quite measuring up - someone we like, but not too reliable. You need to be careful with what you read - it's not always what it seems.

Here is a link to an interesting article in the New York Times Magazine from last Sunday dealing with the effects of divorced or separated parents attempts to co-parent.

I neither endorse, reject, nor comment on the contents, I am just the conduit. :)

I'm healthy. I like my doctors, and get to pick the doctors who provide my treatment - I don't have an HMO because I want that choice, and I pay extra for such a plan and the extra gives me great coverage - I almost never pay for anything. If my insurance company doesn't like my doctor, I could pay anyway, charge it on a credit card, and fight with them over the treatment. If I get really sick, I could fly to Johns Hopkins, the Mayo Clinic, or somewhere else where they treat a lot of cases like mine. These are all my choices. I am fortunate enough to have the choice. Of course most of society doesn't have the same choices.

But, You can't fool me into believing two things: [1] That the U.S. has the best health care system in the world, and [2] I am better off having my insurance company's bureaucrats and rules between me and my health than a government employee. At least the civil servant has to follow rules that the government decides will benefit the general health, and not those designed to make profits and pay for advertisements. The civil servant doesn't get a bonus for turning down claims, and neither does his boss.

It may feel good in our gut to tell ourselves we are the best, but let's deal with facts, not stomach issues. Such a feeling is what Stephen Colbert calls "Truthiness." That's something that feels like it should be true, or what we want to believe is true, but isn't.

Here's the CIA's study on life expectancy: THE DATA. In case you don't have the time to digest that information, it is summarized on Wikipedia.

Let me cut to the chase: the U.S.A. is 36th in the world in longevity. In 35 countries, people live longer than we: Such evidence is where Truthiness hits a brick wall. We are almost tied with Cuba [which is 35th]. And a lot of the countries higher up on the list have high infant mortality, otherwise their numbers would be a lot higher. If we have such great health care, why are we dying so fast?

OK, so people do come here to go to a particular hospital, medical center, or doctor who, by reputation, is perceived by these people to do a better job than anyone in their own country - that's the right wing/corporate/business/bought-off-politicians response to reality. But, these people aren't flying to San Diego to go to a local public hospital. They go to a particular doctor, or a particular hospital, where they think they can get the best care. Heck, one of my friends flew to London to have her eyes lasered so that she could see better without her classes. She heard from someone that this guy is the best, and he has a song and dance about why he can't use his techiques and tools in the U.S., even though he is a U.S. citizen.

And, of course, my employee's health insurance cost [which I pay] just went up another 15%, and not because of "Obama Care." Heck, if Obama had done what he promised we would all have coverage and at lower cost - put us all in Medicare and health care costs will stop being a major economic problem in this country.

Irrespective of your position on Gay Marriage, you have to wonder what is going on in Texas - that's a recurring question among family law lawyers, since Texas seems to routinely dance to its own drummer.

Two Texas gays got married, in Massachusetts. Residents of Texas, they later tried to file for divorce - just like straight people. You would think that dissolving a gay marriage would appeal to those who didn't like gay marriages in the first place, but not in Texas, apparently.

The marriage of Angelique Naylor and Sabina Daly was dissolved by the trial court. The Texas Attorney General decided to appeal, claiming the state didn't have the power to dissolve their marriage, citing a Texas law prohibiting a state agency or political subdivision from giving effect to a "right or claim to any legal protection, benefit, or responsibility asserted as a result" of a same-sex marriage.

The legal position of the AG was that getting a divorce conveyed on these two a right or benefit - since they were gay, they couldn't get divorced. Since the marriage wasn't recognized by Texas, he reasoned, it couldn't be dissolved. I guess he intended they go to Massachusetts "where such people belong." :)

The court of appeal ducked the issue in true Texas form: It ruled that the AG hadn't intervened in the case soon enough, so he couldn't later complain about the result. That leaves to others the job of getting a divorce so they can defend their right to do so.

Is it just me, or is this carrying opposition to marriage between homosexuals to an extreme? Is it just me, or should the appellate court have just bitten the bullet and told us the answer? Or is this just Dumb and Dumber on a higher level.

More on Doggie Divorces from the Huffington Post.

I'd previously posted about pets and divorce. Since then, we've adopted Emma, also known as The Office Mascot. Now I see the issue. No one is prying her away from me, except from my cold, dead hands :) She is wonderful.

Amazing how many of my friends and colleagues either take a pet [dog, cat, or bird] to their offices or want to but can't. Being self-employed and owning my office condo, I have control over my office policies, and we are "dog friendly." When in residence, there is a water dish by the front door.

The criminal defense lawyer across the courtyard doesn't like Emma being here, but she is a lot more desireable than his average client. :) And she leaves smaller messes. When we were out of town on vacation before Christmas, someone or something left "a present" on the back steps - probably one of them, since Emma was in Doggie Day Care, where she plays on her days off [i.e., when I'm in court and the staff doesn't need the distraction].

Her "new puppy" picture is in a prior post, showing her gazing at some big dogs for the first time. I've tried to take her photo since, but she is so blazingly fast she turns out to be a blur even with my Nikon D3 camera and a fast lens. :)

I had to go to New York City in September to meet with clients, and walking around was amazed at how doggie that city is - dogs go everywhere, including Bloomingdales. Noto Bene: Bloomies won't let you take pictures of dogs in the store, go figure. But, they are everywhere; and their parents are always happy to stop, let you pet the dog, and tell you the pet's story. Whereas in Southern California you might see a sign in a store window that it is "dog friendly," in NYC that seems to be assumed, although there is occasionally a sign that says "No Pets Allowed."

Former San Diego Congressman Randy "Duke" Cunningham has the memory of so many convicted defendants: "I didn't do anything wrong, it was my lawyers' fault. His claims are reported in the San Diego Union.

His former lawyers no longer represent him. Not hard to figure out why. After all, why would they when they explained the facts of life to a defendant who was absolutely certain to be convicted of accepting bribes. The evidence had been fully developed by Union reporters year ago, and in terms of public opinion the evidence was so crystal clear that his only hope was a plea bargain. The lawyers "couldn't be reached for comment." In fact, they probably can't comment on their discussions with their former client without violating the attorney-client privilege.

Duke accepted expensive gifts from contractors who benefitted directly from his votes. He lived on the boat of one of them, nicknamed "The Duke Stir," obviously named for the congressman. Oh, yes, he lived there free. He sold his Del Mar house so far over market that it caught the reporters' attention - he was able to use the inflated proceeds to move to prestigious Rancho Santa Fe. The buyer of his Del Mar home later sold it for a huge loss at fair market value, even though the real estate market had seen increased prices between the two transactions.

Let the poor guy rot in prison. Who cares that the government seizes his pensions to pay the unpaid back taxes on the bribes he accepted? I don't feel any more sorry for him that for Bernie Madoff - to sides of the same coin.

Duke claims he got sucked in because he couldn't say "No." The evidence shows that he solicited bribes because he deserved them. He was an arrogant bastard throughout his military and political careers, and now has gotten justice. He won't testify in accordance with his prior statements against one of the persons charged with having participated in his schemes - I assume he expects that person to rescue him financially for his newfound fidelity to his friend [more fidelity than he felt for the voters he represented.