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August 1, 2015

Date of Separation for Divorces - In re Marriage of Davis [2015]

California became one of the first states to enact legislation stating that marital property stops being earned when the parties began to live separate and apart. This has been our rule for about 35 years.

In a community property state like California and a number of other western states, the rule made sense; why would we divide income and assets once the two spouses are not working together in some semblance of a shared relationship. Community property recognizes that courts aren't good at valuing the services of the husband and wife, such as where one may work and the other cares for a home. When it became a state, California decided that the value of the parent staying home to raise children could have the same value as the spouse who went to work knowing the home was secure, and selected the community property system. Alright, so that type of relationship may be a fiction, but we also don't want to litigate these issues, so we have a general rule.

As California had the minority rule, some experts have speculated that judges tried to find exceptions to the rule, perhaps to bring us back in line with other states. As a result, we have had varied outcomes when these cases are litigated. Sometimes living separate and apart had no meaning because of the exceptions created - the most famous was a doctor who wasn't living separate and apart on his boat with his girlfriend, in part because he still took his laundry home for his wife to do. [His wife wanted half his earnings after he moved out, and the girlfriend tried to claim the other half.]

One battlefield has been over situations where the parties continue to live together, but one wants to claim the marriage was over, so they were living separate and apart. Last week, in the case of Marriage of Davis, the California Supreme Court decided that "living separate and apart" means that the parties have to be living separate and apart to be separated - in other words, you can't keep living at home, earning income and acquiring assets that you don't have to share with your spouse. What a bizarre outcome - judges who actually got it right. Of course, to muck it up they had to insert a footnote leaving an opening for more exceptions.

I vote for bright lines, like "living separate and apart." Sharp lines limit litigation, which is usually a good goal. Appellate judges live in ivory towers, and don't have to answer to clients when the law does foolish things.

December 22, 2014

Family Law Lawyers' Vacation, Problems

As family law lawyers, we are used to emergencies - goes with the territory. Judges like to say that sorting out Christmas visitation is not an emergency, since it always comes at the same time every year.

Well, that doesn't stop clients. I got an email from a client on Friday that his ex-wife is disputing the contents of a custody order - admittedly, it wasn't well written [I wasn't in the case at the time] - I had drafted a revision to the order with some new agreements the parties reached in mediation, but the ex-wife won't sign. In so doing, I re-wrote the poorly drafted provision and no one complained about my language.

Well, now the ex- wants the agreement interpreted as she thinks her attorney should have written it. So, I call the attorney, and was passed off to her voice mail this morning, and it says that her office is closing at 5 p.m. today, the 22nd, and won't reopen until January 5th. In other words, they can't be reached to solve any problems.

Must be nice. The first I heard of this being done was 9 years ago when a friend closed for the week between Christmas and New Year's because he was completely re-decorating his office - carpet, wallpaper and paint, and it seemed a good thing to do since the place would be a mess anyway.

This seems to be becoming a practice for a lot of downtown attorneys, some of whom pay their staff hourly, rather than salaried, so they close when no one really wants to work anyway. I'm still here, however.

August 14, 2014

Absurdities in the Gay Marriage Debate....

Regardless of one's position on gay rights, every thinking being has to admit that married people need to have a place to get divorced when their marriage falls apart and they meet the standards for divorce in their home state.

If they were legally married somewhere, and move to a state that does not allow gay marriage, you can't just leave them in limbo when the relationship falls apart because you don't like how or when they married.

For 48+ years, California has allowed heterosexual couples to get divorced so they can move on to other bad relationships, or marriages. As many comics and some politicians have commented, gays deserve the same privilege of getting into another bad marriage as straights.

Well, it still goes on in some jurisdictions that judges are so entrenched in the concept that gay marriage is wrong, that they insist that gays who are married must stay married, even if they aren't "gay". [I didn't expect you to follow that, but those are the facts]

In Arizona, it took 3 appellate justices to fix a problem, with bizarre wrinkles. A couple got married in Hawaii. They later moved to Arizona. When they wanted to get a divorce, the trial judge wouldn't allow it because the husband had started life as a woman. He had undergone gender re-assignment surgery and hormone replacements, and along the way, had sufficiently changed his gender that the State of Hawaii issued him a driver's license and reissued his birth certificate to reflect he was a male. OK, some people think that's weird, etc., but that's not the point.

The trial judge concluded he wasn't man enough to be married to his wife, or at least he couldn't provide enough proof that he was a male, so no divorce. Even his wife agreed they should get divorced. Well, now they can, at least in Arizona.

Get a grip, people. Life goes on, like it or not.

July 11, 2014

Shasta Superior Court Family Judge Gibson Denies Existence of Constitution

OK, so the headline is a slight exaggeration, but the effect is the same: Shasta's Judge Gary Gibson doesn't seem to think you have a Constitutional right to refuse to be a witness against yourself, and God protect the attorney who tells you about that right. [Or at least California's Commission on Judicial Performance, which rarely does anything as far as I can tell, might protect you]

We all know about 5th Amendment rights: Basically, the part where you can't be compelled to provide testimony against yourself. Right there, just a couple of amendments below the gun rights part: Been interpreted many thousands of times, so the rule is pretty clear, and not that hard to understand what the courts think it means. It's a lot more than not being able to beat a confession out of you.

It appears from my sources that Judge Gibson, a recent appointee to the bench sitting in a Family Law department, hasn't heard about it. When an attorney told his client not to fill out a portion of a court form based on that right, the attorney was cited by the judge to show why he [the lawyer] shouldn't be sanctioned for giving valid legal advice.

Any lawyer with a 3 digit IQ, and more than a couple of years of experience [or who went to a decent law school], knows that right includes the right not to disclose any fact that could in any way cause someone to think you may have some involvement in criminal activity or tend to prove it - not that you are engaged in a criminal act, but that someone might think you are or were, and might cause you legal grief because of it. Something like: "Have you ever driven a motor vehicle after drinking alcohol?" Pretty innocuous question, but you have a Constitutional [both State and Federal] right not to answer. Now, if you assert your right in a civil matter, the judge may be able draw an inference against you [although not in a criminal case], but he cannot compel you to provide testimony that may tend to incriminate you in any way. [Now, please don't nitpick, I'm trying to simplify this.]

Well, Judge Gibson doesn't care. If you don't put the answer on a court form, citing advice of counsel and the 5th amendment, he feels he can order you to do so, and then cite the attorney to court to explain why the attorney, who is doing what he is supposed to do, should not be punished simply for doing his job.

And, my sources on this point run fairly deep: Not just some whining attorney or self-represented litigant. I don't know the parties, the lawyers, or the guy unfortunately wearing the robe, but I have reliable sources. I don't know the question, and don't know what the client's answer would have been, but it is enough that a lawyer has to go to court to justify legal advice, out of fear of sanctions by an out of control judicial officer.

The unfortunate part of the story is that no one chose to run for election against Gibson this time, his first, so Shasta County is stuck with him for another 6 1/2 years until he has to run again. [A newly appointed judge must sit at an early election where the voters have a chance to second guess the Governor - usually, that person hasn't done enough damage to enough people to run a risk of drawing a willing opponent, because incumbency carries a lot of weight with voters in judicial elections.]

Not having a challenger this time, he must feel pretty safe - often happens with the ignorant and arrogant. Now, as I've said, I don't know Judge Gibson, but I'm told he's not too bright. We've had a lot of such judges on the bench - the best ones make up for it by not going out of their way to make waves, and have long careers. The worst make it to the front page, or have lawyers blog about them.

January 6, 2014

Divorce and the Founding Fathers..... :)

According to Garrison Keillor's Writer's Almanac, yesterday was the anniversary of the first legal divorce recorded in what was to become the United States of American.

It happened January 5th, in 1643, as a result of the husband abandoning his wife and two children for another woman.

Not sure that this signifies anything, other than that divorce is a long standing tradition.

February 15, 2013

Don't Discuss Your Divorce Case with Your Children.....

For decades, my staff and I have told our clients not to talk to their children about their divorce or their spouse - let them figure it out for themselves. Clients and lawyers don't always act sensibly, however.

From a colleague, I received the following transcript of a judge's ruling/speech obviously made in anger, but right on point. These words should probably be yelled at every litigant in every contested case [not that they would heed the warning]:

2 The court has previously ordered both parties

3 to keep their children out of this case. And apparently

4 you don't know or understand what I mean by that.

5 Can you tell them you're going to court on

6 this case? No.

7 Can you tell them what motions have been

8 filed? No.

9 Can you tell them you're fighting over

10 support? No.

11 Can you tell them what job he's looking or not

12 looking for? No.

13 Can you tell them anything about this case?

14 No.

15 Can you hand your children support checks to

16 hand to him? No.

17 Can you complain about her and what she's

18 doing in this case? No.

19 Can you discuss this case in any way, shape or

20 form or fashion with the children? No.

21 Can you discuss this case with an adult friend

22 with the children in earshot? No.

23 Can you leave your documents out where they

24 can read them? No.

25 Can you keep them in your desk so they can

1 open your desk and find them? No.

2 You may not bring these children into this

3 case under any circumstances, except when you two are in

4 the room together, and you both say, "Your father and

5 I," or "Your mother and I agree that this is what you

6 should know."

7 Do you understand that your children are not

8 to be involved in this case, in this divorce, in this

9 property dispute, in this domestic violence dispute, in

10 any hearings in any form whatsoever?

11 Do you both understand that?

He didn't add comments like "I don't have money to buy you Christmas presents because your father spent it all on that drunken w____, instead of paying support." And, yes, we've heard such stories.

July 8, 2012

Pre-Birth Child Support....

Here's an interesting blog in the New York Times, for a new concept [no pun intended].

In the past, when a woman told a man she had been impregnated by him, he had no way of knowing whether the claim were true. One could expect him not to be forthcoming with support or other financial contributions. Technology advances.

What's next? Requesting support for the mother-to-be, while pregnant, to cover the costs of medical care, pregnancy leave, etc., may be the next legal battle front in paternity cases.

August 31, 2011

California Divorce Rate Down....

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.

April 1, 2011

E-mail, Instant Messaging, Facebook, and other electronic communications...

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.

March 17, 2011

More Divorce Lawyer's Press Releases...

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?

February 23, 2011

Whom Do You Trust to Give You Divorce Advice?

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....

February 21, 2011

Cost of Litigation in Divorce Cases: Millions for Defense....

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.

January 11, 2011

Gay Marriage, Divorce, and Common Sense....

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.

January 10, 2011

Dogs, Divorces, and the San Diego Lawyer.

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."

June 9, 2010

Divorce Lawyers and the Client's File...

My office retired a copy machine a few months ago, having worn it out - more than 2 million copies ran through it. The replacement is faster but also scans and e-mails. We make a lot of copies, and buy a lot of copy paper. It has been her long enough that we became attached to it and the repair man who came more and more frequently to replace parts.

The need for a reliable machine came to mind when we received about 800 pages of photocopies, wrapped with rubber bands, no staples and no organization, from another law office. It is what they represented as being the "client's file." We inherit such files a few times a year when we take over a case for a client.

On those rare instances when we turn a file over to a successor law firm, we make copies of most everything in it. But, we make and keep the copies for ourselves, in case a question comes up somewhere along the line, which happens occasionally. We don't keep the original file in those instances - the original, under California law, belongs to the client. We must pass it along to the next lawyer or to the client upon request at the end of our representation.

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