January 2010 Archives

January 29, 2010

Sound Discretion of the Trial Judge in Family Law:

When I interview a new client or prepare an existing client for a hearing or trial, I find they usually want assurance of what will happen when we get to court, or some guidance on what a judge would do at trial in evaluating whether or not to settle. Unfortunately, the majority of the issues in Family Law are left to "the sound discretion of the trial judge."

In fact, that is language that is found in a high percentage of appellate court decisions in family law cases precisely because there are many unique situations, and unique personalities - it is the philosophy of many appellate courts that the trial judge is in the best position to fashion a rule to guide the family's life. Unfortunately, this also increases the unpredictability of the process.

The more experience an attorney has in going to court, the more likely it is that he or she can predict the range of likely outcomes. The ability to make such predictions is dependent upon watching judges make these decisions over a long period of time, and in particular watching the judge assigned to your case make similar decisions in other cases. We often talk to our peers about their experience so we can better predict what a particular judge may rule in your case.

Predictability becomes more difficult as we have more judges assigned to the family law bench. In Vista court, we have five full-time family law judicial officers [judges and commissioners], and one part-time handling support issues. The downtown branch has eight [and three others doing support], and there are several in South Bay and East County.

The commissioners who do nothing but support cases in the Family Support Division of the Superior Court have less latitude since child support has specific guidelines the court's are required to follow most of the time, and spousal support is guided by informal guidelines - even there, however, the judge has wide discretion in determining income and applying various factors when entering data into a computer to calculate net incomes and support.

When you have a family law problem, the best thing you can do is discuss it with a Certified Family Law Specialist: Someone who has devoted his or her career to practice in this field, and who has a lot of courtroom experience. Even those who no longer go to court on a regular basis because they have chosen some form of alternate dispute resolution, had experienced a wide range of fact patterns and have grappled with the various rules that can be applied.

Because of the nature of the certification process, it is also required that they take more 15 hours of specific family law training each year to maintain their certification. The typical lawyer is only required to complete about 8 hours of education per year, and that can be in a broad range of subjects, including those that aren't substantive, such as law office management, bias, and substance abuse - specialists are required to take such classes to keep up their licenses, in addition to the 15 hours in family law. They truly are experts in predicting what judges will do in your case.

January 28, 2010

Vocation Evaluations and Your San Diego Divorce:

I your spouse isn't working to capacity, you can ask the court to attribute to him or her an earning capacity for support purposes. But, how do you do that?

A vocational evaluation can be conducted to show the court that a party has the ability to work and that jobs are available. The evaluation is a means of having an expert conduct a study to provide the court with information about the ability of one or both of the spouses to earn more than they claim.

In our present economy, there may be few jobs available, but that doesn't mean that a spouse can remain unemployed for a long period of time and still continue to collect full amounts of child and spousal support, or avoid paying, as though he or she were incapable of working. The evaluation process is essential to get expert opinion to the judge who must make a determination - you can't just tell the judge how much they can make, or even what they used to earn in earlier days - only an expert can provide such evidence.

Once a judge has information that the party has job skills, he or she may order that the person make job contacts, and report them on a form listing the name of the company, the manner of the contact, to whom the person spoke, the job for which they applied, and the outcome of the contact. We often see those who we think are not anxious to find work making the required five or ten job contacts a week simply by logging onto the Internet and forwarding a resume - some judges require personal contact.

Most vocational evaluators will testify that jobs are usually found through personal contact (including family and friends), and that the success rate in sending a resume without such contact is very low. At least one appellate court has observed that it is easy for a person to avoid working if he or she wants, so the judge is ultimately required to make a gut reaction to a set of facts to determine whether the litigant is affirmatively seeking employment.

In one of my cases years ago, the non-working spouse would report on the court form, that she was going to an industrial park, usually on Monday or Tuesday, then going door to door passing out resumes and picking up a business card from the receptionist. Every two weeks, she would then report back 20 job contacts, but it was painfully obvious that she was only looking for work one day a week.

We suspected that she was actually working somewhere the rest of the time, probably under the table. The judge looked at her qualifications (fluency in four languages), the master's degree she had from college, and assigned to her a relatively high-income level, and ordered child support accordingly and ended the husband's spousal support obligation. A good vocational evaluation is essential to that process.

In the present job market, it is relatively easy to claim that someone is not earning a living in his or her chosen field, for example a real estate broker. A judge has to decide whether or not to push that person to look for work in some other industry, or try to weather bad times because the person was previously successful and will probably be successful again when the market picks up. In the long-run, the decision to pursue one career move or the other may affect the persons long-term ability to pay increased child or spousal support.

These kinds of decisions are left to the sound discretion of the trial judge. Whichever side of the issue you are on, your position is best presented to the judge by a certified family law specialist; and vocational evaluations are essential.

If you can present evidence of a pattern in the manner of job contacts, or even show that you have followed up to determine that the contacts were actually made, you are more likely to be successful in that process. If you treat it casually, or assume that the judge will simply believe in your position, you are likely to be disappointed in the outcome.

January 27, 2010

Escondido Divorce Mediation with Guns - a New Technique?

Well here's another complaint about non-lawyers handling your divorce, from our local newspaper, the North County Times

Allegedly the drunk entrepreneur operating a "divorce assistance office" [or as I call them "practicing law without a license"] was drunk and pointed a .357 at two customers.

Maybe this is the way to keep the costs and heartache down: "Settle now, or else"; or how about "Focus on me and your own problems won't seem so great." Well, they do have a website and claim to have thousands of satisfied customer for divorce or bankruptcy, although they don't claim to have any license or training. The "founder," one Dennis Jester, puts an "MA" after his name. That implies he has a Master of Arts degree: Maybe in Art History, or Hotel Management - doesn't say!

I hope he qualifies for a court appointed lawyer and doesn't try to represent himself. :)

January 22, 2010

Divorce, Crazy People, and San Diego Family Law...

Betty Broderick was denied parole yesterday for the murder of her ex-husband and his new wife a few decades ago. I believe she is a crazy, angry, ex-wife with no sense of boundaries and no ability to acknowledge her own fault, and needs to stay in prison, probably forever.

Through 35 years of handling divorce litigants, I've never had a murder in any of my cases, and very few serious injuries by one spouse against the other no matter how many threats were made, how angry people were, or how disastrous the outcome of court proceedings.

When threats to kill have been made [to a spouse, new girlfriend, or relative], I'm generally comfortable in reassuring my client that the risk of actual harm is pretty minimal - people make threats in the heat of arguments, usually to get attention, and don't really carry them out in the vast majority of cases, especially in middle and upper class America where my clients reside. As long as they aren't blinded by drugs or alcohol, they always have the ability to understand that mayhem isn't a successful life strategy, let alone socially unacceptable. Then, to paraphrase Chris Rock, there's always that episode of CSI that makes them think they might not get away with it, so they do something less permanent.

Betty was an angry person. Her marriage failed. I have no doubt she contributed to its failure. Maybe it was as simple as choosing to marry someone who wasn't faithful or one likely to think that a stable marriage for his children was less important than an exciting new relationship. On the other hand, maybe the craziness she later exhibited was symptomatic of a person who wasn't too easy to live with, and may have been emotionally abusive in her own right; maybe anyone fun and pleasant to be with was a welcome change, and it wasn't just that she was younger and thinner.

When you speak to the other participants in her legal process, as have I, you hear a very different picture of Betty - she was loony during the divorce process - her inability to obey restraining orders was a clear indication of that [her having had multiple, competent lawyers, is always a concern as well].

I wasn't a friend or even an acquaintance of her ex-husband, and never met him; I have no opinion about his merits as a lawyer, father, or spouse, and frankly don't care. But I've seen cases with people like Betty, and it's not a pretty sight. You can't explain anything to them; you can't get them to behave; they blame everything on their spouses, their lawyers, minor's counsel, therapists, or the judges; and, they are the creators of their own demise.

They believe that everyone is against them, and don't understand their own role in the process - true paranoia. Usually it doesn't lead to violence. They usually just go from lawyer to lawyer to find someone to believe in them for a while, or they try to represent themselves until they antagonize the judge and everyone else in the process.

Maybe they run over the ex-spouse's mailbox every year on their anniversary, but rarely murder. They rant and rave and repeatedly tell their own versions of history, but the experience of the judicial officers, custody evaluators, and documentary evidence, generally show a different reality than they try to present as the case unfolds.

This isn't a woman who was beaten, controlled, and manipulated during a marriage, and felt she had no where to go - there's a certain sympathy for the woman in that situation who feels she has no alternative but to stop the abusive spouse's breathing. Even then, I'm not comfortable that they go into the general population when they establish the level of abuse - they had other remedies, their minds just didn't allow them to see them in most of those cases.

With Betty, we have someone who felt she had to get revenge for being left behind. I understand her anger, fear of the future, and sense of loss. I don't understand her reaction - with an abusive spouse, murder may be the only obvious remedy - Betty wasn't seeking a remedy for her situation, she wanted punishment.

She wanted to be cared for the rest of her life, and wanted to remain a socialite - in a sense, she now has both, all stemming from the death of her ex-husband - perhaps she got what she wanted, although without the freedom to mill among us. I think it's wise to keep her there, both for our safety and to serve as an example to others who may need her lesson to guide their behavior.

January 4, 2010

Divorce Rates, Domestic Violence in San Diego...

Hard economic times may have caused a temporary decrease in the divorce rate, but along with it, an increase in domestic violence. In a recent article, this phenomenon was discussed.

Economic stress, and the general failure of couples to discuss and understand family finances, are two of the prime causes of divorce. When times are tough, it seems that people learn to appreciate the stability of multiple possible sources of income, and the ability to make adjustments to keep the family unit flowing.

Unfortunately, people have a tendency to learn these lessons, but forget them as soon as money becomes available. Are we just building pent up demand to divorce because we aren't solving the core issues - lack of communication, and economic pressures?

A high percentage of potential clients who come to see me are unaware what the economic effects of divorce will bring to them, and often reconsider when they find out their life styles will change. And, it is surprising how many of them do not know what their spouses earn, what they have accumulated in savings and retirement, and how much debt has been emassed during the marriage.

While the divorce rate may be down temporarily, the number of crazies in the system seems to have gone up - people filing motions to set aside old judgments, apparently because they haven't been lucky playing the Lotto.