April 2009 Archives

April 29, 2009

A Unique Penalty for Non-Payment of Child Support....

This week in court, I dealt with a Notice of Delinquency, a method of piling on financial penalties for non-payment of Child Support in California.  I bring this up because the remedy is underutilized, little understood, and often unknown.  The judicial officer in this week's case didn't understand the statute and how it is applied, because it is rarely used.  Several lawyers I talked to had never heard of the technique.

Serve such a notice, and penalties of 6% per month can be added, up to a maximum of 12 months [72%].  In a year, that $1000 payment remaining unpaid can be worth more than $1720 to the recipient - all that is needed is a source from which to ultimately collect.  That can happen when the payor has equity in a house, gets a personal injury settlement, inherits from great Aunt Mildred, or wins the Lotto, for example.  Since child support may be collectible forever, a lot can change over time.  Usually, it's an inexpensive tool.  I've used it several times, with great success.

On top of that, the basic support keeps earning interest at 10% per annum as well.  In 3 years the obligation can double, then keep accruing interest indefinitely.  The payor served with the notice has two options:  Pay in full within 30 days of being served, or file a motion to challenge imposition of the penalty.  He or she can claim, for example, that the penalty is unfair because the inability to repay was the result of disability - since timely filing of an objection can result in the court quashing the penalty, it is a waste of time, money, and energy to serve one in every case.

8 or 9 years ago, I served one on a payor who owned a small piece of property in another county - not worth enough to justify the expense of executing on it, but enough to pay back support.  When I had the payor charged with contempt, the keys to the jailhouse door required he bring the support current, with interest and penalties - about $10,000 in back support [two years of non-payment] became $23,000 to my client. [Don't feel sorry for him, he was a real scam artist leaving a trail of financial disasters for others.]

This is one of the little tricks an experienced Certified Family Law Specialist can do for a client.  It is not always useful, such as where the payor is really judgment proof, but often it serves as a reward for the parent who has gone without support for a substantial period. 

These notices came into the law 15 years ago, taught in seminars at the time, and relegated to the back burner by most lawyers - because it isn't new, it isn't taught most seminars any longer.  Old dogs still know old tricks.
April 19, 2009

Lawyers, Intense Competition, and the Need to Litigate

Today's CBS show "Sunday Morning" presented another TV piece about a wrongfully convicted person later exonerated when evidence surfaced years later.  In this case, a prosecutor [once again] had withheld evidence favorable to the defense prior to trial.  One thing that makes this one different from most?  The convicted defendant was white, female, well educated, successful and solidly middle class.  The lesson?  It can happen to anyone.

The woman was convicted of murdering her long time companion, despite the original police conclusion was that he had committed suicide.  In part what saved her was the fact that her daughter had just graduated from law school and was able and willing to quit her job and spend six years trying to prove her mother's innocence.  She found evidence that the "victim" had indeed committed suicide.

What does this have to do with competition and the need to litigate?  Prosecutors, those charged with protecting us from criminals and crime, are not immune from the same character flaws as everyone else - often leading to injustice.

The link for me came when I recalled a recent conversation with a young lawyer who had formerly worked for a very experienced family law lawyer.  I was critical of his former boss, someone I've been forced to battle with for 25 years; I expressed I had never found a cooperative or reasonable bone in his body.  For decades, the boss had been the butt of jokes around the courthouse from lawyers, young and old, for his lack of cooperation or conciliation, for whining endlessly at judges who ruled against him, and rearguing the same losing positions at hearing after hearing, in virtually every case he handled.  I can recall walking out the courtroom door after the judge had formally ended a hearing, with the lawyer still whining about the result to the judge.

I used to use him as an example of what I call the "stupid/evil dichotomy" - the forgiveness and sympathy I feel for those who may appear evil, but really are just not too smart, versus the animosity that persists over those who just don't care about the impact on society, their clients, or their own reputations, as long as they win the case.  

The boss is one I always felt is one of those rare lawyers who straddles the line:  Both evil and stupid.  Examples?  He had denied me a continuance of a week so that I could complete my honeymoon in 1984, and once denied a lawyer a continuance when her father had died - fortunately, the respective judges were smarter and more cooperative.  He's never shown any emotional growth.

The young lawyer's response?  "You have to understand, he's extremely competitive."  He then went on to describe the former boss's history of competition in non-legal arenas, the details of which I had been unaware.  Could this be the problem with cases that can't settle?

Continue reading "Lawyers, Intense Competition, and the Need to Litigate" »

April 12, 2009

Litigation, Divorce, and Options

According to Merriam-Webster, litigation is an intransitive verb, meaning: "to carry on a legal contest by judicial process."

Most think of litigation as "going to court."  Almost all family law matters are a form of litigation, because they require the filing of a petition with the court, and ultimately some approval by a judge is required to complete the case - almost any case ends with a judge signing a judgment.  This does not mean that you must go to court to get a divorce, legal separation, or annulment in California, and most cases are ultimately resolved by some form of alternate dispute resolution.

Litigation, in the sense of having a judge make the decisions for you, is the result of the parties' inability to resolve matters out of court.   This may be caused by either a lack of ability to communicate, unrealistic expectations by one party or both, distrust between them, or an unwillingness to compromise issues where it is unclear what a judge would do.

Often, litigation is limited to initial hearings to set temporary support or custody:  Once the parties get a dose of reality from a judge, most are willing to sit down and resolve their disputes without further court involvement.  In a few cases, there are legal or factual issues for which there is no obvious resolution - experienced lawyers can try to find a compromise, especially where the risks are all or nothing depending on what a judge may ultimately decide.

Unless you choose the Collaborative Process, your lawyers can go to court when there is a lack of agreement.  In the Collaborative Process, the lawyers sign a contract with you and one another that they cannot go to court on your behalf - that biases them in favor of resolving matters without court.

April 1, 2009

April Fool's Day...

Citrix, owners of GoToMyPC and GoToMeeting, had an interesting e-mail today.  It has some interesting stories to brighten your day.

BMW, which is famous for its AFDay print ads, reportedly announced in ads in Britain a new technology and Microsoft announced it is releasing "Alpine Legend" a new game to bring yodeling to the masses, as reported by CNN, in an article discussing the history of the day, and some examples.

Enjoy the Day.

April 1, 2009

Misconduct, Lying in Court, and Values...

We've been through a decade where we've been persuaded that the ends justify the means - whether its huge commissions for selling investments that are little more than gambling, torture to spread fear, or lying to preserve power, the key lesson we've been taught is that we can do whatever we want, without consequences, as long as it feels good.  Those who preached values seemed to have forgotten that greed, injustice, and tyranny aren't justified just because we want to accomplish a particular goal.

The biggest shocker in today's news is a decision by the US Justice Department to drop its prosecution of Ted Stevens, the corrupt ex-Senator from Alaska ["It's a series of tubes" - the moronic statement about the Internet, made in support of one of his biggest sources of contributions, the communications industry - but I digress].  

The decision was the result of prosecutorial misconduct by the Justice Department under the last administration - the new Attorney General has decided the problem is so great, further efforts to defend the government's position is not a worthwhile effort.  That's sad.  Tthe case against the defendant was so clear, it is hard to believe the prosecutors thought they had to lie and cheat to get a conviction.

Major misconduct by Stevens [having a building contractor build a $250,000 addition to his house without charge - Steven's defense:  "I forgot"], resulted in fairly a minor charge of failing to disclose the gift on forms designed to disclose such things.  Politicians are usually bought pretty cheaply - this wasn't cheap, and pretty serious misconduct in benefitting from his position.  We should have more stringent rules prohibiting our leaders from financially benefitting from their positions, whether by being given huge gifts, being given huge campaign contributions [or orchestrating gifts by others], or being given access to successful investments with those seeking influence.  In a culture where politicians are usually bought on the cheap, the gifts to Stevens were huge, directly personal, and hidden from the voters.

At least with Stevens, his secrets are out and his political career ruined [until he can reinvent himself as an innocent victim].  Fortunately, he can't argue that Democrats unfairly targeted him, a Republican, for political reasons - his own served him up.  The Justice Department that pursued him was staffed with political ideologues, often chosen for their political leanings rather than their ethics or skills.

We can hope the lesson learned is that we need to choose our leaders more wisely, and control their power no matter which side they are on.