March 2009 Archives

March 30, 2009

Child Support and the Economy....

When intact families have financial problems, they try to solve them internally.  They may file bankruptcy in the worst cases, or substantially restrict their expenses in the best.  the only other alternative is to find ways of generating more income.

Divorcing parents often can't work together to solve the problem - child support can't be paid, and may be cut, leaving the custodial parent and children a victim of the other parent's circumstances.  An interesting article on the front page of the NYTimes Saturday discusses the issue.  

I won't repeat the discussion here, but the key point to remember is that child support is modifiable on a change of circumstances in most jurisdictions, and job losses usually qualify.  This cuts both way, but the result is similar to what would happen to an intact family - there isn't enough money to continue to live the way you once did.
March 24, 2009

Divorce, Division, Drop in Value, Oral Contracts, Need for Attorneys...

The recent California appellate court case of Marriage of DELLARIA and BLICKMAN [D&B] raised some interesting issues and teaches some important lessons about spouses entering into agreements when they get divorced, when they don't follow strict legal procedures.  I question the reasoning in the case, but it has a certain correctness about it that is hard to ignore.

The parties married in 1989, filed for divorce in 2000, and actually separated in 2001.  The trial judge heard their testimony, and found that they had reached an oral agreement dividing their major assets in 2003, and to carry out that agreement they transferred title to properties between themselves, and Wife borrowed $220,000 and used it to pay an equalization payment to Husband. 

In the division, she got the family home and two brokerage accounts - he got a two pieces of real estate.  He kept two vehicles and she got one.  Each was to keep his or her own retirement.  They exchanged title documents to carry out their agreement.

Pretty sweet deal for Husband, according to the court - he received more than one-half the value of the assets.  The wrinkle was that the issue didn't come to court until 2007, and Husband no longer liked the deal.  Maybe his two pieces of property had gone down in value, while Wife's stocks were doing pretty well?  The opinion is silent on this point that most of us would find pretty significant.

The impediment to such agreements is usually the lack of documentation, but here there was plenty - the trial judge didn't find the husband's explanation for the transactions believable.  "There is no rational explanation for this other than that the parties were dividing their major community assets."  Husband appealed, claiming that only a written agreement could divide their assets based on California Family Code section 2550.

The court of appeal agreed with him, concluding that once the parties had filed for divorce they could not orally resolve their dispute, except on the record in open court - otherwise, their agreement had to be in writing.  The lesson to take from this?  No matter how fair you are in settling your dispute, you better get it in writing because circumstances change.

In California, disclosure documents listing assets and estimating values are required before the court can approve an agreement - doing it in writing is another layer of protection, at least theoretically.  In D&B, the person "protected" was the one who benefitted from the original agreement - obviously, his circumstances changed.

A competent lawyer will ensure you don't resolve these matters except in a way that you are protected.



Continue reading "Divorce, Division, Drop in Value, Oral Contracts, Need for Attorneys..." »

March 23, 2009

Escondido Divorce Lawyer Back in Operation after Near Disaster....

Today, my office was back up and running [mostly] after a three day ordeal of painting, cleaning, and re-carpeting.  Now, if only my computer could access the Internet, all would be right with the world.

After 17 years in the same location, we finally gave in to the need to replace the worn carpet, torn seams, and stains on the walls from roof leaks.  When I say "ordeal", I'm not exaggerating.  This required a small army crawling all over the office moving furniture, files, and technology.  Since we were already making a mess, we used the opportunity to clean out as much as possible.  The students we'd hired to help move boxes and furniture had a lot of dead time, so we brought out the Pledge, End Dust, and vacuum cleaners, and attacked most everything.

Having built large bookcases with a lot of empty space [enough to last the rest of my life], we had long since run out of room, so another 19 storage boxes were sent off to the shredder.

Continue reading "Escondido Divorce Lawyer Back in Operation after Near Disaster...." »

March 20, 2009

Getting Rid of Marriage - Another Shot at Gay Marriage

According to this article, we may need to endure another round of efforts to permit gay marriage - all they need is 700,000 signatures to put this on the ballot.  This reports a new petition circulating for a proposed proposition - the proposal is to remove the word "marriage" from the California Constitution and replacing it with "domestic partnership."  The goal is to return the word to religious organizations, and leave the secular with the generic phrase to describe civil unions.

I predict another very close vote, dependent on who shows up to vote and how much Mormons and dentists [go see how many dentists in your neighborhood contributed to defeat Prop. 8] are willing to spend to defeat gay marriage in this state.

Maybe it's time to re-think the whole idea of citizen generated propositions that change the state's constitution with a simple majority vote of those who show up at any given election.  We tend to think that our constitutions should take more effort and more support to make changes.
March 19, 2009

Divorce, Men's Lawyers vs. Women's Lawyers....

In San Diego County, most family law lawyers represent men and woman alike.  As a result, the tendency of other specialties to divide off between "us and them" does not exist.  One day we may represent a man wanting his wife to go back into the job market instead of caring for their children, and the next the woman who wants to continue to be a stay at home mom.  As a result, it is easier for most of us to see the weakness in our own arguments, and try to find ways of working around them.  Our jobs, after all, are to put our clients' positions in their best light so the judge can make a decision, not to impose our own views on the world - we are selling legal services, not a point of view.  

In criminal law, prosecutors and defense attorneys don't party together generally, and tend to polarize in their opinions of the world.  In personal injury, defense lawyers and plaintiff lawyers pair off, also polarizing.  Family law lawyers who don't argue both sides often cannot plan arguments to work around their clients' weaknesses - we socialize together, and our organizations contain lawyers on all sides.    

Occasionally, we find potential clients who want their lawyers to be of a particular gender.  A friend of mine, who worked 50-60 hours per week for years, used to laugh about woman who hired her, saying "I want a woman lawyer, because you'll understand that I don't want to go back to work." My friend would then comment that's she'd like not to go back to work either, but work was her lot in life and the means for maintaining her standard of living [and office overhead].  We'd all then have a good laugh because we'd had similar experiences.

Then there are the men who want a lawyer who specializes in "Men's Issues."  Like any good lawyer doesn't understand he might need a lawyer to fight for more time with his children, protect his business from division, and minimize his support?  

At least those of us who represent both sides know which arguments are successful and which aren't.  Then there are the men who insist on hiring a female lawyer to "intimidate" their wives [or maybe they are used to bossing someone around and he thinks the woman may be more pliable], and women who hire females because they will "intimidate" their husbands.

There are woman who want to hire a man "to stand up to my husband," and men who won't hire a woman because "they aren't aggressive enough."

I'm here to tell you:  It doesn't make a difference.  Hire someone competent, experienced in handling the type of case you have, and with a personality that you think you can work with.    I've seen male lawyers too passive to speak up in court, and woman who can attack with the best of them.  Don't be sucked in by thinking that gender of your lawyer has any tactical advantage.  Hire me, I'll make you laugh.  Or hire someone else who won't find the humor in the situation.  It's your choice, so pick someone you think can actually understand your position, be willing to try to make the best of it, and has the skills to do so.
March 18, 2009

Settling Divorce Cases in San Diego....

I had four settlement conferences last week, a record for me, and the culmination of two weeks of effort by my staff.  One was before a retired judge, one with a lawyer the parties had hired, the third just the parties and their attorneys, and the final one supervised by a neutral lawyer at the courthouse.  Two settled completely, one settled with a reservation that appears to be satisfied, and the last resulted in gathering information, feeling out each side's positions on important issues, and providing the parties with a wake up call about their positions.  I consider the week a complete success.

These are expensive propositions:  Even with just the two lawyers, we were billing at more than $750 an hour.  With the retired judge, there were two expensive lawyers on one side, one on the other, and a combined hourly cost of about $1700, including the judge - it lasted about 5 hours, but overall made good progress in dealing with complicated legal and factual issues involving a great deal of money.  

Each case but one was the result of the lawyers determining the best option for the parties, after considering the personalities, the issues, and their financial resources.  In that fourth case, one side wouldn't communicate or cooperate, so we had little choice but use the court system to bring closure.

In North San Diego County [the Vista court], we have a long tradition in Family Law of having court-supervised settlement conferences in all cases.  Historically, you couldn't get a trial without going through the process.  An experienced lawyer supervised the process, and the results were pretty miraculous.  About 97% of the cases settled.  For many years, we couldn't get the judicial resources to handle our cases, so the experienced lawyers took matters into our own hands and devoted long hours to help their colleagues get their cases resolved.

Almost all of the Certified Specialists volunteered their time, when we could have been doing something more rewarding financially.  One big advantage of the process was having a neutral, experienced trial lawyer look at the facts, and dispassionately make recommendations free of the emotional attachment to the clients or their legal positions.  The best could size up how a case should settle pretty quickly, and use their expertise to convince the parties they were better off leaving their differences behind, and getting the matter over that day, rather than continuing to spend money fighting.  

About the worst that ever happened [other than a few screaming matches] was that the lawyers and parties sat down and talked, sharing documents, for the first time - they saw the weaknesses in their positions, and figured out what was missing [like getting an appraisal for the house].

In North County, we volunteered our time because for decades we didn't have enough Family Law judges to try our cases - we couldn't get to trial within a reasonable period of time, so we sought other solutions.  We would even volunteer as trial judges until the court abolished that practice years ago.  For long cases [those over 3 hours of trial time], the Main Branch in San Diego adopted the policy quite awhile later.  It too was successful.

The process is not working so well any longer.  There has been a general view that the lawyers have done it for too long a time, the practice has changed, and the number of qualified volunteers has dropped off substantially.  

Many of us resented showing up to find two litigants who were unprepared, argumentative, and too often unrepresented.  Essentially, we often found ourselves volunteering our time to mediate disputes between parties who could have hired a competent mediator or even lawyers, but chose not to do so.  

Frequently, we would arrive to find one or both sides unprepared, knowing little about their case and with no documents to show account balances, values, or even ownership of assets - it was a waste of our time.  Often, we'd drive to the court to find that we weren't needed because the lawyers had agreed to continue the settlement conference, but didn't bother to tell anyone, or one of the unrepresented litigants just didn't show up to participate.

The crowning blow to the system was a directive that we all needed to be trained, go through background checks, and provide personal information, all to continue to do something we had been doing as a public service for a decade or two - for decades, the judges had decided whom they wanted on the panel, and that caused no problems for our courts.  

After a few meetings to discuss the new rules, the consensus among the certified specialists was that we needed to use other alternatives, which is where we are today.  Many of us no longer volunteer, and there are not enough to handle the cases even though the pool of lawyers has been greatly expanded to fill the gap [with uneven results].

Many of us agree we are better off hiring the right lawyer to supervise settlement, than taking a random choice at the courthouse.  And the added benefit is that the setting of a lawyer's office is quiet, free of constant interruptions, and private - at the courthouse, we might have 3 settlement meetings in a single, large, converted jury room - you can imagine how much fun it was to try to think if any one of the 6 litigants was in a foul mood.  

Most of us who had been on the panel agreed to offer a reduced hourly rate for the first 3 hours, as a recognition we were providing a service to the community, when providing this service.  The unrepresented litigants can still hire a competent lawyer to mediate their dispute, often at very reasonable rates.

My experience last week was mostly driven by the desire to choose the right setting and the right expert.  In part, it was driven by a desire to keep the case from going to trial where the outcome was too uncertain.  In several cases, the choice was made as a way of finding someone unbiased to give the bad news to one or both of the litigants: "You can't always get what you want, and it's going to cost you a lot of money to find that out."

Each choice fell under the category we call "Alternate Dispute Resolution."  The lawyers who contribute to this site sit on both sides of the table in such cases.  These alternatives include serving as settlement judge, mediating disputes, handling collaborative cases, sitting as a private judge, and acting as a special master [someone who looks at complicated factual issues and makes recommendations to the parties or the court].  Each of these is appropriate in the right circumstances to keep the case out of court and help moderate costs.
March 17, 2009

Ben Bernanke, the Economy, and Where We Are Going...

60 minutes on Sunday had a long interview with Ben Bernanke, Chairman of the Federal Reserve.  I recommend that everyone watch to see his perspective on our present financial situation.  Clicking here will take you to a website that should have his interview in a few days.

He has a unique perspective.  I understand better what has been done by the Fed in the last year, and a little more optimistic about our economy's future.  He actually seems to understand what is going on, and what needs to be done.  The key phrase I took from the program was his comment that we need the political will to do the things that are necessary.

I won't make this political, as the blog is designed primarily for family law and related issues.  I just think it is significant that he is the first Fed chairman to sit for an interview it its 100 year history.  He felt people need to know what is happening, and what is being done and why, in order to feel more confident.  I feel I have a better understanding having seen the show.
March 16, 2009

Dogs, Pets, Attorneys Fees, and the Divorce Lawyer...

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 from across the country on the subject, and the author's opinion of changing standards.  I know of no reported California cases on the subject.

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 since it's not intended as a treatise on the law.  [As i recall, these cat cases dealt with issues such as whether a neighbor could steal your cat or dog, or be responsible for injuring one.]

When lawyers in North County [San Diego], where I practice, talk about old time practitioners, they often tell about a major trial over ownership of a parrot some decades ago.  It involved two very litigious attorneys who have since probably joined the bird in the hereafter.  [One billed himself as "The Prince of Darkness."]

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.  It's one thing to fight over a child and how many hours of time share might swing one way or the other depending on how the judge sees things, but with rare exception the dog is going to one or the other [please don't get me started on judges who try to set visitation rights for pets].

In a website that attacks judges and lawyers in San Diego [that will go unnamed], 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.  Now I understand an attachment to pets, but the Wife's fees ran about $150,000.  The website and that article is 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, from Beverly Hills.

That site portrays the fights as a way for lawyers to gain fees at the expense of their clients - now that happens a lot.  But, the clients allow it to happen by making the issue over which they are fighting more important than their financial and emotional futures.  In our parrot case, the lawyers were just argumentative and overly competitive - this was in the day before divorce cases often ran to days or weeks, so the arguments and testimony took only a few hours.  Our lawyers weren't fighting to gain a few bucks, but over principle and their client's desires - the cost wasn't a major factor in those days, but winning was.  I wish I could say the same today. 

Over the decades I have practiced, I have seen many people fight to the death over absurd issues, spending endless dollars on issues they can't win or as to which there is going to be no winner. 

Fighting over a child has a certain biological imperative about it - you can't go to a kid show and pick up another kid bred for the same look and temperament.  But you can probably find a dog that gives you as much love and affection as the one you give away in the divorce - especially if you have $150,000 to spend since you aren't buying your lawyer a new Corvette or a few dozen St. John suits.

Friday, some friends brought home a playful, loving chocolate Labradoodle puppy to replace the Golden Retriever they had lost a few months ago to illness.  It is amazing how, in one day, the new member of the family has taken over as the focus of their lives.  And, they have $149,000 left to spend on something worthwhile.  It's not Fifi, but they don't seem to notice as they never knew Fifi.

Sometimes cases just need to be decided on the flip of a coin, and the parties move on.

March 12, 2009

Abusive Settlement Tactics, Sanctions, Divorce and Family Law

For a reason I won't go into here [ask me in private], today my memory flashed back to the California Appellate Court case of In re Marriage of Abrams, from 2003.

The case discusses settlement abuses in Family Law cases.  In particular, a man was sanctioned for using improper tactics in making an offer to his ex-wife.  The tactic?  He offered to trade a child custody issue for a valuable piece of personal property that had been awarded to his wife in the divorce years earlier and end child support if she remarried, among other things.  Although the offer contained other one-sided provisions, these were the two on which the court of appeal focused.

Long after the parties divorced, Mrs. Noble wanted to move away with the parties' minor child - that usually requires a court order, after hearings, reports and investigations.  Her ex-husband decided this was his time to get even over china and silverware that his wife had been awarded when they divorced, and get other advantages - the house wares had been a gift to them during the marriage.  He made a overwhelmingly disproportionate offer to his wife, including an agreement she could move with the child, if she gave him the property and some other concessions.

While the court discussed the one-sided offer, it focused on two things he included that had nothing to do with custody:  A provision that his child support would end if his ex-wife remarried, and that he would get the china and silverware.  Citing Family Code Section 271, which provides for sanctions for misconduct, the court stated:  

We fail to see how father reasonably thought that mother's impending remarriage should relieve him of his responsibility for supporting his own children, or how his desire to obtain the china and silverware had anything to do with the custody issue at hand. Accordingly, the court's determination that the settlement offer was overreaching and therefore violated the policy in favor of settlement is supported by ample evidence. 

In the end, the matter was sent back to the trial judge to review the original decision in light of the court's opinion, but its dissatisfaction with the husband was clear.
March 12, 2009

Messy Divorces, Messy lives.... San Diego Drama Continues

I'm about to head our for my 4th settlement conference this week [yes, I'm tired].  That means I had to have 4 settlement briefs out the door last week.  Most Family Law cases settle in San Diego, because we strongly bias the process in favor of resolving differences.  And, as I've written below, no one ever knows who is right.

However, here's a mess that is destined to remain in the papers for a long time, reported in the San Diego Union.  It's about a San Diego Padres' outfielder.  Now, if your life looks like this, you need more than a divorce lawyer - I'm not laying any blame, but how do you get yourself in these situations over and over again if you're paying attention?  There are many people who make false domestic violence allegations, but usually there isn't security camera footage or independent witnesses watching - I'm just saying....

As a psychologist friend of mine once told me: 

I got a call from a patient - he told me his first divorce had cost him $250K, his second cost $500K, and if he didn't get out of his current marriage quickly it was going to cost him at least $1,000,000 [this was about 20 years ago when that was real money].  I told him it would be cheaper for him to fix his problems than to divide up his assets over and over again every few years.

I never asked if the patient [1] took the advice, or [2] benefitted from it; the odds are that the answer to one of the questions is "NO!". Some people just can't learn from their own life experience, let alone the experiences of others.  Either the guy in the story has a problem, or the women in his life have a problem - probably both, but not equally offensive.

 

 

March 10, 2009

Tax Rates, Hedge Funds, Loss of the Middle Class, Madoff...

This morning, on MSNBC's Morning Joe, one regular pointed to a front page article on a daily newspaper today about the unfair tax rates for hedge fund managers.  I remembered reading about this years ago.  This is the type of problem causing the disappearance of the middle class, and the increasing gap between rich and poor.

Even Joe Scarborough remarked today that the rich never came to him when he was in Congress asking for tax breaks, because they had mechanisms for paying low taxes [not really an accurate statement about many of the rich, but it was interesting to hear a true Conservative make the admission].  The reality is the Sam Walton children, already four of the richest 10 people in the world [his widow a fifth], have spent millions buying politicians to get rid of the estate tax so that endless generations of Waltons will never have to work again - I'd heard estimates of $160,000,000 paid out in political contributions by the family primarily for that purpose.

The point of the story is that hedge fund managers pay capital gains rates on millions of dollars of ordinary income - while the rest of us who work for a living struggle on.  This is the worst example of the Warren Buffet point that his secretary pays higher tax rates than he, the richest man in America.

The rich are different:  Even Bernie Madoff may be kept out of jail and be allowed to preserve millions of his assets while he explains how he stole $50 billion, although his wife claims the millions she has are somehow unrelated to the fraud - oh yeah, right.  The guy belongs in jail now - as an economic terrorist, maybe Obama should send him to Gitmo for it's last days - maybe let Blackwater interrogate him to find out where the money went.

Enough of a rant for today.  I shouldn't let them get me started.
March 8, 2009

Witnesses, 60 Minutes, Picking Cotton, Reliability....

In a prior post, I wrote of Leslie Stahl's upcoming story scheduled to appear tonight on CBS's 60 Minutes about the inaccuracy and undependability of eye witness testimony.

The piece was as good, and important, as predicted, but focused primarily on one unique case that resulted in a book called Picking Cotton.  The title comes from a rape, where the eye witness clearly, positively, and erroneously identified Bobby Cotton as her rapist - it was written by the victim and Cotton, who became friends many years after his conviction.  The conviction was eventually overturned when DNA evidence identified a look alike, who had gone on the rape other woman after Cotton was wrongfully convicted.  He served more than a decade in prison for the crime.

The story was moving, both from the standpoint of the years Cotton spent in prison and from  his co-author.  They frequently speak to groups about the errors of eye witness testimony.  As much as anything else, this story suggests the need for education of the public, and reform of the system.  I haven't read the book, and can't recommend it for that reason, but the story is important to hear. [The Amazon rating is 4 1/2 stars, however]

Podcasts of 60 Minutes episodes appear to be available here.  For non-techies, this means you can download using programs such as iTunes.
March 4, 2009

Eyewitness Testimony...

Trials are our method of "getting at the truth."  They don't really do that, but they make us feel better as a society.  Next Sunday on 60 minutes, Leslie Stahl will be airing a two-part piece on why eyewitness testimony is not reliable.  I encourage all to watch it.  

Most lawyers who have litigated cases know that honest people differ in how they report what they see, and honest people are convinced of the accuracy of their memories even in the face of contradictory evidence.  Then there's the problem that people look like other people.  When we see someone for a brief glance during a crime, we don't focus on all the distinctive features that make them different from one another.  If I watch a crime committed by someone I know well, it is pretty easy for me to identify him - I might recognize the way he walks or moves, and know who it is even if I don't see his face.  If I've never seen the person before, I don't have a benchmark to go by - I just can't remember all the details.

Several years ago, I watched a local university professor discuss memory studies that help explain why these honest people get it wrong when asked days, months, or years later what happened.  

Our clients often describe transactions that have occurred in the past, confident that things happened in a particular way.  Even when faced with documents they signed which don't match their recollection, they can't believe they are wrong.  According to the memory expert, our minds mix memories, yet we are confident that we are accurate.  Aside from the fact that people lie to suit their benefit, confused memories are why trials don't always work out the way lawyers and clients expect.