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August 5, 2015

Lawyer's Advertising - What You Are Reading....

I had a trial last year against an attorney I consider to be unethical. He's bad enough I no longer will speak to him, as I believe there should be consequences to his type of conduct. The old practice of shunning has, unfortunately, become underutilized. [As usual, to disquise the people about whom I write as though the person were male, although the persons described may be male or female]

After having had an opportunity to review a Yelp rating for a company hired by my 99 year old father - a company with a horrible ranking. Yelp in crowd sourced, so I tend to rely on their reviews, and you can check on all the other reviews supplied by anyone commenting. With the company my dad called, all the positive ratings were from people who only submitted 1 or 2 reviews - they were outweighed by dozens of very negative review. [My sister has a friend whose daughter rates fake reviews for a living, so be careful.]

Years ago a service called AVVO.COM set up a website to rate lawyers - a well-financed start up. I have 4 reviews, 3 great and 1 bad. The bad one is from a mediation client who is angry that I identified an asset that he hadn't disclosed to his wife or in any of the forms he filled out for me, so he had to divide it with his spouse. The complaints were bizarre, but I can live with it - he complained that I had the parties reach their own agreement [excuse me, but that is what mediation for]. He complained that I did not disclose that I was not competent to divide his pension [the undisclosed asset]; I am competent to do so, but it is not cost effective for me to do that work, so I referred the parties out - almost all of my peers do the same in virtually every case going through their doors.

Oh well, that's the joy of the Web's anonymity - the reviews could be written my a 9 year old cocker spaniel for all you know.

The lawyer I looked up on Avvo had dozens of reviews, almost all extremely positive, and some using unusual, repetitive phrases. There were several that said "The best lawyer in town," as though any client would know of other family law lawyers, or even enough to make that statement. And, what "town" are they all referring to? Oceanside? Or some other small city in our large county with many neighboring communities. Sounds like someone is writing reviews and lacks imagination.

Then I noticed that the lawyer's picture has a bold square in contrasting color that says "PRO." That surprised me, so I looked further. It seems that if you pay AVVO, they will put that legend on your photo, so you think this person must have special skills, so he's a PRO. AND they then put your two most favorable reviews at the top of the list. There are only 2 reviews on the page with the lawyer's picture, so one would have to click on a link to go to another page to find negative reviews. Under lawyer endorsements, the two that appear on his page are his spouse [a lawyer, listed as a co-worker], and an employee - no bias there.

I can understand that Avvo.Com was created to generate revenue from advertisements, but spare us. It's like looking for reviews on a product and finding a website that seems written by a manufacturer of one or two products - who else would buy a domain name like "BandSawReviews.Com"? There is such a site, but in finding a band saw to use in my retirement years, it was of no help whatsoever.

August 3, 2015

Lawyers Misleading Clients - Trying to Predict Outcomes...

As part of my concern about lawyers' advertising, and misrepresenting themselves to clients, I recall an interesting interview with a prospective client a number of years ago.

A client [name and gender sanitized] came to see me, referred from another lawyer [name and gender sanitized]. The spouse had owned a house prior to the marriage and had kept it in his name. Because of pay downs on the loans secured by the property, the community was entitled to some reimbursement. Basically, the pay down of principal [and a few other things] is added back to the community property to be divided, and by a series of formulas known as Moore/Marsden an interest in appreciation is also divided. The rules come generally from two old cases involving the marriages of the Moores, and the Marsdens - for shorthand, we refer to the rules by the names of the cases from which they were derived.

I asked the person a series of questions trying to quantify what her interest might be: How much did your spouse pay for it? What was owed on it when you got married? What is the balance today? What do you think it's worth? And a couple of more.

I then did some quick math and told her my best guess if all the answers were accurate, she would receive something between $30-40,000 in reimbursement for that asset, from an estimated equity of about $300,000.

Her response was "That's not what the other lawyer told me." I hadn't known she was shopping.

I then asked who the other lawyer was: Someone I view as very competent and experienced. So I asked what the lawyer told her about the house. She responded "Well, she said she couldn't tell me what I would get, but that it would be less than $150,000," which would have been half the equity.

I responded "Isn't $30-40,000 less than half?" She looked at me like she didn't understand the question. So I told her that I had tried to put real numbers on her situation so that she could have some degree of predictability. Yes, the other lawyer could easily tell her she wouldn't get half the house, since it remained the husband's separate property, subject to reimbursements - it wasn't a lie, but the answer wasn't really helpful to the client.

Of course I couldn't tell her what she would get, as we were using estimates all along, with no documents to support the discussion. Maybe it had been an interest only loan, and she was just guessing at the amounts, or maybe the loan had been paid down with a separate property inheritance. These things are never known at this stage, but I knew she wasn't going to walk away with a large bundle of money from the house.

So, of course, the prospective client went back and hired the first lawyer, as she made her feel more positive about what she would get.

Can't argue with that logic, but the client wasn't prepared for the ultimate outcome.

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.

August 1, 2015

Lawyers' Ads, and Reality....

I had a conversation this week with a young lawyer who has been an associate in a small law firm for 2 years. The lawyer is looking for another job that has better long term prospects. I will call the lawyer Bill, which is not the real name, and no inference should be drawn from using the male pronoun as to whether Bill was male or female.

When Bill told me the firms with which he had interviewed, I knew them all well. He said the biggest surprise of the process was the posturing of each firm, and how it represented itself to new prospects. Little they said about themselves matched what he had seen of them and their work.

Much the same happens when you read a lawyer's advertisements, especially on the web. I have regularly complained about lawyers' advertising, as it leads clients to pay more than the should, get worse service, and be more unhappy with the process. Lawyers were better when they got their business by hard work and referrals from other lawyers and past clients.

I address these issues again as this was my last week as a litigator, except to close up some loose ends on a couple of a cases that are almost over.

As I look back on my career, one thing clients cannot legitimately say about me is that I mislead them about the law or the facts of their case in order to et their business. Some client's go away and hire someone who makes them feel more positive about their situation - but getting a divorce is rarely going to have favorable results for either party, and the prospective client should be prepared from the beginning.

In my next blog, I will write about a gimmick for getting business most of us never considered.

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.

November 20, 2013

Paul Daniel Marks elected to the Family Law Bar Board of Directors

On Tuesday night, I was elected by a vote of my peers to the Board of Directors of the San Diego Family Law Bar Association.

This is a new organization formed last summer, and is the largest organization of family law lawyers in the county. For decades, the San Diego County Bar Association had a committee of its members who were certified family law specialists - close to 200 of us. I had served a full term on the Executive Committee of that group in the 1990's, and was later appointed to fill out the term of a lawyer who retired. In each case, I was filling a slot for a North County representative.

The specialists, through the Executive Committee, raised a great deal of money for the Bar, primarily by producing very successful seminars - a lot of specialists were only member of the county bar so they could be a member of that committee, and they paid a lot of dues.

There were always tensions between the parent organization and the Executive Committee. Last Summer, the Executive Committee and the County Bar decided to part company. The core idea of the new association was to take over the Executive Committee's role in speaking for the certified specialists and take over its own finances. A bolder part of the decision was to create a new family law bar association representing all lawyers who practice family law, not just the specialists, and the new group is well on its way.

The new organization is the successor to the old committee, the Board of Directors has taken over the role and position of the old Executive Committee, and the transition has largely been seamless. North County had one representative on the executive committee, and has one seat on the new Board of Directors - typically our North County Specialists Committee of about 40 members has chosen that person. This year that position came open again - my friend Paul Gavin was that person, and will be our representative to the Board.

I decided to run for one of the three "at large" positions to see if we could give north county greater representation, and, frankly, to see if I had the support of enough members to gain a seat. I didn't really hold out much hope, as only one north county lawyer has won an at large seat in as long as anyone can remember. With only 25% of the specialists practicing in North County, San Diego controls the votes.

Well, I won.

September 18, 2013

Divorce and Finances in a Rising Economy....

According to an article in the Los Angeles Times, the divorce rate has increased as the economy has improved.

This is a situation known to every experienced family law lawyer. When people have few assets and money is tight, they may fight more but they don't feel comfortable terminating their marriages. With the drop in house equity and many houses being upside down, and one or both partners unemployed, at least one of the parties recognizes that there isn't enough money to enable them to maintain two households. So, they stay together until they feel more positive about their finances.

In the typical divorce, for most middle class families, there isn't enough money in the best of times. When the economy is in a slump, the problem is much more obvious, and many people are scared off.

We also know that people seem to litigate more when they feel they have money in the bank or equity in their houses to fund the fight.

July 25, 2013

Domestic Violence Prevention, Death, and Law Enforcement

New York City has stepped up Domestic Violence Enforcement, according to a recent article in the New York Times.

The basic premise behind most Domestic Violence laws is to protect victims, obviously, but also to stop minor problems from becoming big problems because pushing and shoving turns to more serious conduct over time.

While some parties and lawyers view Domestic Violence restraining orders as a tactic to gain an advantage at the beginning of a case, such orders may serve a cooling off period that prevents the parties from escalating to more serious behavior out of frustration. As a tactic, however, such orders frequently serve to cause more anger that interferes with the ability to settle cases.

Increasing police involvement to head off bigger problems, as a precaution, may prevent serious injuries and deaths. In the case described in the article, the female kept allowing the male to return, despite police visits - it appears she lied to them the next to the last time police officers went to investigate whether the boyfriend was coming back. The last time was to investigate the females stabbing by him, and her death, a week later.

May 22, 2013

Same Sex Marriage, Cohabitation, Child Custody....

Here is a New York Times article that gives lawyers and judges one more thing to chew on in child custody cases.

A Texas court enforced an order prohibiting a same sex couple from living together in Texas with the children of one of them in the home. In Texas, they can't get married, so the court enforced a morality clause in a divorce agreement to keep them apart when the children were present. According to the story, such provisions are typical in that jurisdiction.

The last time I saw a judge in California make such an order in a case with two people of opposite gender living together has to have been 30 years ago. Occasionally there will be delays in allowing such arrangements for very young children, or when the separation is fresh, due to the impact on the children emotionally from seeing one parent moving on to a new relationship. But, in general, California judges do not consider this type of conduct to be very serious. We see few cases with same sex couples in this situation, but I doubt the rulings here will be any different, but it will be interesting to watch, no matter what side of the argument you are on.

Decades ago, I had a client move to Missouri with her children. Despite a court order from California to the contrary, she was able to get a judge in Missouri to prohibit visitation to the father because he was living here, in California, with his girlfriend. The consensus here was that the Missouri ruling was "quaint." That was the last time I had experience with such an order. Things are different here.

May 16, 2013

Collecting Delinquent Child Support, License Suspension....

Under a 2012 law, the Indiana Secretary of State suspended the licenses of two Indiana stockbrokers for failure to pay child support - one was from California, but he was licensed in Indiana. We tend to forget that this remedy is available for the very delinquent, but this case brings it back into our focus.

Through the Department of Child Support Services, such remedies have been available in California for many years,

Although DCSS requires that the recipient open a claim with that office, which has its own problems in pursuing support in many cases [including many months of delay and inadequate use of discovery to obtain information], DCSS has available to it several remedies such as this that are not available to private lawyers. We frequently have clients open a file at DCSS so that we can have the advantage of that remedy, while still representing our clients in conducting discovery to determine income and wealth, as well as doing other types of enforcement where a competent, private Certified Family Law Specialist can be more efficient and effective.

License suspension can included driver's licenses, licenses to practice law, dentistry, or medicine, real estate licenses, barber's licenses, and almost any approval from the state required to engage in business. Commonly, we are looking at suspension of building contractor's licenses. In most cases, these actions spur the payor to at least make an effort to pay what is owed, since it can impact his or her ability to earn a living, or even drive a car without fear of being stopped by the police.

Periodically, DCSS will send a list to the U.S. State Department, which interferes with the right to renew or obtain a passport for foreign travel - since you now need one to go to Mexico and Canada, and be able to return, that can cause quite an inconvenience. No more European cruises for the truly delinquent.

May 15, 2013

No Money for California Divorce Courts, etc.

In a recent article in The Recorder, it was reported that Governor Jerry Brown's revised spending plan [his 2013-14 budget] contains no additional money for our courts.

The story quotes a Judicial Counsel lobbyist as stating that the courts will not be able to make payroll by July, 2014, the start of the fiscal year, because of new changes proposed by Brown that will prohibit courts from maintaining a reserve account of any sizable amount for cash flow purposes.

If you have been in a family law department in the last year in San Diego County, you will see part of what budget cuts have done - hearings are set many months out for important issues like child support and custody - court reporters are only available in each department a few days each week, which means that there is no record of the proceedings the other days if you don't bring in your own court reporter - and, no, you aren't allowed to record hearings, so with no record there is no agreement on orders and no ability to be able to mount an effective appeal.

As usual, if you have money, you can take your case out of the court system, but the middle class can no longer afford court hearings even if they can afford lawyers.

May 9, 2013

Valuation of Assets, Businesses and Professional Practices.

The general rule in family law cases in California is that assets are valued as of the date of trial [or settlement, which is how most of our cases are resolved].

From time to time, there are reasons for a different date to be used: For example, an asset that has been damaged or destroyed, or a business that has substantially changed in value allegedly due to the activities of one spouse.

If you have a case involving a business or other asset that has changed value since separation to your detriment, it is important to do two things: Hire an attorney who specializes in business or property matters, and file a motion to request that the court set an alternate valuation date. If you don't, you might find the value set at the date of division [trial], with the other party walking away with a windfall.

This issue comes up most often in valuation of professional practices, such as attorneys, doctors, dentists, and architects. Typically, the value changes substantially after separation, either because the spouse in charge works harder, longer hours, or stops seeking new business [or even starts hiding more income and padding out expenses].

Since the late 1970's, California has provided that anything a spouse earns after the date of separation is his or her separate property - in the U.S., this has been the minority rule. That means that the efforts of a spouse that contribute to the increase in value of the business belong to the working spouse, and the former spouse should not benefit. The other side of the coin is the working spouse not working as hard, etc. These can substantially alter the division of assets, primarily dependent on the date chosen by the court to use as the date of valuation.

In a recent case, a Husband requested the use of an alternate date, in an unpublished appellate court decision, and was denied on the basis that he waited too long to make the request - the trial judge decided that the delay prejudiced the Wife, as the period for conducting discovery had passed when Husband asserted the request. It was affirmed on appeal. [See elsewhere on this blog for a discussion of what happens when an appellate decision isn't published.]