Divorce And Mediation Blog

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.

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.

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.

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.]

From time to time, you may read or hear about appellate court decisions that are unpublished. These are decisions of a court of appeal that do not find their way into the state's official reports of the courts. While these decisions are important to the litigants, the appellate court may feel that the rules in the decision are repetitive, or they just don't want the results made part of the official record, either because the facts are very unusual, or they don't want courts and lawyers relying on the reasoning that resolved a particular case.

For lawyers, such decisions create several problems. Because they are not in the official reports, they may be difficult to find and are usually not indexed so they can be searched. They are often sought out by us to find the law cited by the opposing parties from which we can draw research or arguments on a particular subject where there are no reported decisions, or where we don't like results in cases that are reported They also may have been read by the trial judges, who may rely on the reasoning in forming their own conclusions about the law, and we don't know what they think as a result.

In California, from the lawyers' standpoint a big problem with such decisions is that they cannot be cited as the law in court or in the legal arguments we file with the court in support of our clients' legal positions. For courtroom purposes, although they may impact the beliefs of the judges and lawyers, they do not exist.

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.

A recent Justice Department report has concluded that Domestic Violence has declined substantially from 1993 to 2010. While violence in general has been down, the rate of decline in violence between intimate partners was substantially greater.

The report did not support any theory for the substantial reduction.

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.

Several years ago, a New York Times article discussed the lack of legal training designed to help a lawyer practice law, and changes coming in firms and law schools that recognize the problems this lack of training creates.

Contrary to public opinion, law school doesn't prepare a lawyer to practice law - graduating and passing the bar exam merely gives you the opportunity to practice. The system assumes some form of mentoring as the young lawyer goes from knowing nothing to bare competence - from there, skills should improve over the years as the lawyer gains experience, largely through trial and error, often making mistakes in smaller cases. As you gained skills and experience, people would h

As a beginner under the old system, the young lawyer had one advantage: Lots of free time. He or she could research any issue very thoroughly, where the older, experienced lawyer with a busy practice often relied on memory of statutes or appellate court decisions he or she had read over the years, which may no longer be fresh in his or her mind.

Continue reading "Training Lawyers and a Lack of Legal Training..." »

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.

Several years ago, Mr. Elkins was getting a divorce in Contra Costa County - he ran into a buzz saw when he showed up for trial. Much to his surprise, the judge essentially wouldn't let him present a case because he hadn't followed local court rules - mainly, he hadn't reduced all the testimony he wanted to present into declaration form. Those rules were specifically designed to eliminate trials in Family Law matters in that county.

San Diego is what is known as a Reifler County - pursuant to a California court case in the Marriage of Reifler, on a county by county basis, courts have been allowed to use declarations in lieu of oral testimony in family law cases - it's clearly faster and more convenient, and in the vast majority of cases justice is done by that process - if you want oral testimony, there is a procedure to follow, but the judge has discretion not to allow it. For trials, however, San Diego has always required oral testimony.

In theory, the Elkins decision had no impact on San Diego divorce cases. Unfortunately, for most litigants it isn't that easy. After Elkins, an "Elkins Task Force" was created to solve all the problems in the family law courts. [Insert smiley face here] They ran with the ball and have managed to make a major upheaval by permitting testimony in all hearings as a matter of right, and allowing children to testify in their parents' divorce.

These changes, part in force now and part in 2012, are going to make family law cases much more expensive and much more complicated. Rather than increasing justice, they will deprive more people of their ability to effectively present their cases. In the best of times, divorce courts have been the poor stepchild of the law - the worst court rooms, an insufficient number of judges, and judges poorly trained in the subject matter.

The high volume quickly too its toll on the best of judges, let alone those with no prior family law experience. Because of the high volume of cases assigned to each judge, the emotions attendant to the decisions, the number of substantive decisions that need to be made in each case, and the effect on families of mistakes, burn out among judges often comes quickly.

Where are the judges going to come from to handle the increased work load required by so much oral testimony? Certainly not from the judges who have the seniority to balk if assigned to a family law department.

Where it may take two to four months to get a hearing on a one hour matter before the new changes in the law, what will happen if it takes twice as long to get a hearing because the judge is busy hearing hour after hour of senseless testimony? Increasing chaos, less justice, and higher cost overall.

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?

Irrespective of your view of gay marriage, if you studied Constitutional Law you had to conclude that the Defense of Marriage Act [DOMA] wasn't constitutional. Essentially, this Clinton era legislation was to appease those who didn't like the idea of homosexuals getting married - this Federal law provides that a state is not required to recognize same sex marriages conducted legally in another state.

This became big news this week when the administration announced it no longer intended to waste time and energy enforcing the law. For students of the Constitution, however, it's not really big news except that a government employee has openly sided with reality.

The problem with the law is a provision in the U.S. Constitution that requires one state to provide "full faith and credit" to the public acts, laws, and court decisions from every other state: Article IV, Section 1. In simple terms, this means such things as a court ruling in one state being entitled to enforcement in another, or a contract validly made in one state is enforceable in another.

When the DOMA was enacted, it was my first reaction that the law violated this provision of the Constitution. There is a strong need for too many politicians to make it look like they are doing something to satisfy their core constituents. Where I have a problem is that they won't admit that they are wasting a lot of time and effort on window dressing to satisfy the ignorance of the voters. Unfortunately, those who claim to want strict enforcement of the country's founding document really only want to enforce the parts of the Constitution they like best, and don't see the hypocrisy. After all, the document is more than the 2nd amendment.

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....

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.