February 2009 Archives
This week, I was in a position to respond to a request for a vocational evaluation in one of my cases. The motion wasn't timely made, but to avoid the inevitable and direct the choice of evaluator away from my opponent's favorite, I stipulated to the request. It may be a foolish expense in that case. My client is actively seeking employment in a down market - she has a lot of experience in a family business, but no credentials that translate directly into a job - no degree and no license. Her job reference is her husband [who may not be a reliable reporter], and who would hire someone for a very responsible position on the strength of a reference from the divorcing spouse? Her skills are in a niche market. On paper, she may not qualify for anything above a mid-level job, and those positions are not plentiful in San Diego at the moment - lots of people with skills at that level are facing unemployment.
But, the husband is anxious to get out from under a long term spousal support obligation, is desperate to find a way, and willing to spend the money. We are pretty confident the evaluator won't do anything but suggest she do exactly what she is doing - unless the evaluator recommends she spend the time to get a degree and professional license over the next few years, rather than work. Long range, that may be the better strategy, but we can count on the spouse to disagree.
The examination shall include an assessment of the party's ability to obtain employment based upon the party's age, health, education, marketable skills, employment history, and the current availability of employment opportunities. The focus of the examination shall be on an assessment of the party's ability to obtain employment that would allow the party to maintain herself or himself at the marital standard of living.
I was at a meeting with some lawyers last night planning the bi-annual Family Law Dinner for the San Diego Certified Specialists Committee. We generally unload on lawyers, clerks, and judges with great abandon - sort of a roast, but of a lot of people. Searching for ideas for skits, one friend told us a story about a judge's recent decision - the type about which you want to make jokes.
It started out with the friend saying a judge had named a child after her - another commented he didn't think the judge had children that young. Curious, we needed to hear the whole story.
A friend sent me an e-mail in response to a post about misleading ads by lawyers. Along with it was a link to a San Diego lawyer who brags on his website that he's the recipient of "a prestigious award." I know the award, and there is no prestige associated with it - in fact, it's like a movie getting "four tomatoes;" you probably don't want to go see it, and you don't see it in the movie posters.
One premise of the best seller Freakonomics the disparity of information between experts and their customers makes it impossible for the latter to determine how to do the expert's job, how to know if the expert is making things up, or whether the expert truly has any expertise. As a result, the expert gets paid a lot of money because he knows the secret information. There is a huge information gap, resulting in the expert getting paid a lot for access.
This is changing rapidly as the world turns toward the Internet, where there is actual information you can use if you dig deeply enough, available free to everyone. While I can't recommend that most clients use the Internet to do their divorces or other legal work, they can use it as a way of confirming what they are told or providing a list of questions to ask their attorney.
There is still no substitute for the knowledge of the lawyer about how court's work, what particular judges do, how certain opponents approach their cases, and the nuances of the law. But there are many websites providing limited information on calculating guideline support [assuming you know what to input into the program], and case law is available from many sources. You just need to be careful applying what you read, because the facts of your case may be different from those of your friend, or from the examples you find online. And, there are wide variances from state to state, and even from county to county.
It is impossible in a blog to discuss where and when you should seek out a lawyer, but I can state from experience in representing lawyers and their spouses in divorce cases that even lawyers who practice in other fields don't understand family law when they read it.
Now, back to the ad. The award is named after a California Code section, and is given periodically by a local association. Sounds impressive, until you read the code section itself:
Now, I'm not one to complain that government never works. The main problems with government are a failure to do its business in the light of day, and the creeping bureaucracy that causes more and more rules to be developed to solve every conceiveable problem and protect them from every idiot member of the entity or the public. GM, IBM, Microsoft, are no different and not much better, even when they are able to turn a profit - it's just a function of size. [Sorry, but free market capitalism doesn't result in efficiency, it just results in profits - these are not the same thing]
That said, my current gripe is with the local County Recorder's Office. You know those deeds to your property that get recorded to show the world you own it? Well, in most jurisdictions these are done on forms, and in the upper right hand corner there is a blank box where the recorder puts his stamp showing where it was recorded in the county's records, for all posterity to read.
In our county, they want a big, blank box in that space - usually larger than the space on forms used by title companies, escrow companies and lawyers, forcing customers to attach a cover sheet [and pay an extra $3] to give the recorder enough room for the stamp [presumably so they don't have to take aim, but can just whack away].
In one of our divorce cases, we tried to record a deed that didn't quite meet the 2 1/2" by 5" standard - our form's box was only 2 3/8" by 4 3/4", but my paralegal figured it was "close enough for government work" and why pay the extra 3 bucks. Needless to say, it bounced - the recorder was kind enough to include a sample cover sheet for us to use when they returned the deed, unrecorded. The box on that form was 2 3/4" tall [OK, so far], but only 4 1/2" wide - 1/2" shy of their own requirement. Go figure.
In a recent appellate decision, it was held that a parent's deferred income can be used to calculate his or her support obligation. In the case of In re Marriage of Berger, the husband had left a partnership with a very high salary to serve as CEO of a landscaping business in which he received equity. H's initial salary was set at about 1/3rd what he had earned in the prior job.The new business never did well, and didn't generate a profit. After separation, the husband agreed that he would take a very low salary, deferring a large amount that would be converted to an ownership interest in the company. His deferred salary totaled $350,000. He was meeting his current expenses with substantial assets he owned, and wasn't living a monastic life.
The court of appeal agreed with her, in part: Deferred income must be considered as income available for support. The children are entitled to share in their father's lifestyle - the issue is what to use to determine an earning capacity.
Although the Court understood the husband's situation, it was still no reason to grant him a "holiday" from paying support. His decision to defer his salary was "voluntary". He could have achieved the same result by taking his full salary and then making a monthly investment in the company from his capital. By deferring his income, he was investing in the company with the expectation that if its fortunes later improved, he would be compensated with additional equity. Of course, by deferring salary, he achieved the side-benefits of a low taxable income and a reduced support obligation, making those funds available to support himself or invest in the company.
Since he had voluntarily agreed to divest himself of his earnings, there was no need to "impute" anything to him in the way of income. His voluntarily deferred salary had to be considered as income available for support. He could not unilaterally arrange his business affairs in such a way as to effectively preclude his children from sharing the benefits of his current standard of living.
The appellate court also held that his assets could constitute "special circumstances" justifying departure from guidelines: 1) income may be attributed to them; and 2) they may be a a reason to depart from guideline, something rarely done. Because he was had a lot of assets, he was able to defer his salary. Had he not had substantial assets, he would have had to either receive his salary or seek another job. To accept his argument would be "be tantamount to permitting [him] to avoid paying support because he is wealthy." He was obligated to pay child support consistent with his own standard of living.