Divorce And Mediation Blog

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?

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.

The economy is lousy, so I expect a little puffing by my competitors to get a bigger share of business. But sometimes the claims are really silly.

I have a permanent Google alert set to send me any news about family law in San Diego, so I get a lot of weird posts from blog sites, press releases, and other efforts by lawyers trying to get noticed: I.e., to move up their Google ratings. The more their names and and web addresses appear on the web, the higher they rate, on the mistaken assumption that a lot of people are pointing to them.

Sometimes, the stories or posts read as though they had been written by a third grader who wasn't a very good student - pure gibberish, incomplete sentences, and typos in almost every sentence. [yes, I know, I make a few]

Last week, a lawyer who runs a mill and isn't a certified specialist, issued a press release bragging about the great skill of one of his employees. The young lawyer had "managed" to increase a father's custody time share from 35% to 50%. That is almost a 50% increase, but hardly one that requires great skill in most cases.

Any lawyer who has a significant volume of cases has results like this all the time, and most of the time it has nothing to do with his or her skill - usually you get such a result when Family Court Services recommends and increase, but sometimes it's not much more than a father who decides he is able to spend more time with his children, or a mother who goes to work full-time and can't care for the children all day.

It reminds me of an older post commenting on a lawyer whose website brags he is the recipient of a "coveted award." That award, in reality, used to be given out by a retired judge at our family law bi-annual dinners to point out lawyers who show up late regularly, and always have an excuse for not quite measuring up - someone we like, but not too reliable. You need to be careful with what you read - it's not always what it seems.

Here is a link to an interesting article in the New York Times Magazine from last Sunday dealing with the effects of divorced or separated parents attempts to co-parent.

I neither endorse, reject, nor comment on the contents, I am just the conduit. :)

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."

Former San Diego Congressman Randy "Duke" Cunningham has the memory of so many convicted defendants: "I didn't do anything wrong, it was my lawyers' fault. His claims are reported in the San Diego Union.

His former lawyers no longer represent him. Not hard to figure out why. After all, why would they when they explained the facts of life to a defendant who was absolutely certain to be convicted of accepting bribes. The evidence had been fully developed by Union reporters year ago, and in terms of public opinion the evidence was so crystal clear that his only hope was a plea bargain. The lawyers "couldn't be reached for comment." In fact, they probably can't comment on their discussions with their former client without violating the attorney-client privilege.

Duke accepted expensive gifts from contractors who benefitted directly from his votes. He lived on the boat of one of them, nicknamed "The Duke Stir," obviously named for the congressman. Oh, yes, he lived there free. He sold his Del Mar house so far over market that it caught the reporters' attention - he was able to use the inflated proceeds to move to prestigious Rancho Santa Fe. The buyer of his Del Mar home later sold it for a huge loss at fair market value, even though the real estate market had seen increased prices between the two transactions.

Let the poor guy rot in prison. Who cares that the government seizes his pensions to pay the unpaid back taxes on the bribes he accepted? I don't feel any more sorry for him that for Bernie Madoff - to sides of the same coin.

Duke claims he got sucked in because he couldn't say "No." The evidence shows that he solicited bribes because he deserved them. He was an arrogant bastard throughout his military and political careers, and now has gotten justice. He won't testify in accordance with his prior statements against one of the persons charged with having participated in his schemes - I assume he expects that person to rescue him financially for his newfound fidelity to his friend [more fidelity than he felt for the voters he represented.

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.

Continue reading "Divorce Lawyers and the Client's File..." »

Many election years, I get questions from family and friends asking for whom they should vote in a judicial election. This year, the stakes are higher and there are far more elections than usual. The San Diego Union published its endorsements today.

As usual, I recommend family and friends vote for the incumbents. This year is no different from usual, but the stakes this year are more important than usual. This year, a group has organized to run against a number of very good judges. Why? Because they want the law to be different from what it is, and view election to the bench as their way of changing the law. Talk about judicial activism! They have not chosen to oppose bad judges, just anyone in office, apparently selected at random. The Union has endorsed all but one sitting judge, and made no choice for the remaining seat. I can't disagree.

One of the judges running is not well respected: Not by lawyers, and not even by many judges. That doesn't change my position, and the Union has elected not to take a position in that race.

Lawyers who run against sitting judges, in the overwhelming number of cases, aren't the best of their profession. Often, not even close. I do not know well any of the judges still in the race - two of them had long stints in Divorce Court, where I saw them do their jobs well. I see no reason they should not be reelected, and the lawyers who have appeared in front of them far more than I speak highly of each.

A third former Family Law judge, Harry Powacek of Vista, was challenged by a lawyer who didn't meet the legal standards for the office and was kicked off the ballot. Although he does not have to run, Judge Powacek had legal expenses to deal with the matter in court. What had he done wrong? Nothing. He was just an incumbent. I appeared in front of him many hundreds of times, and he always tried very hard to do a good job.

Many such challenges come from a lawyer who didn't get the result he wanted in his own divorce. Many, just from lawyers who want the publicity because it may be good for business.

As I look back over the last 40 years of such nonsense, very few poor judges were opposed for election, and few great lawyers were challenging them for the position. Those few judges who lost reelection did so largely because on some horrible publicity: One was caught tearing down his opponent's campaign signs. One was accused of putting a "little old lady" in jail on Christmas Eve on a minor traffic matter. In the first case, the lawyer one and turned out to be a good judge. In the second, the replacement turned out to be a disaster. In each case, the judge was running against bad publicity for his personal conduct, or perceived conduct. These very rare occasions, where a judge screwed up and lost an election, have given comfort to potential challengers.

A few years back, a lousy judge was opposed by a mediocre lawyer - no one wanted the judge around, but the choice wasn't clear - the judge had not had a lot of bad publicity, so he won handily. In one election, a bad judge resigned when challenged, but that was a rarity.

The problem with the process: Judges are afraid to take legal positions out of fear they won't be re-elected when they sit every 6 years. The fear isn't great, since they have almost no chance of losing - but the cost of running, financial and emotional, is high. 25 years ago, a judge made a hard call and dismissed a few dozen drunk driving cases because the DA's Office screwed up in failing to charge the cases properly - he was right on the law and felt he had no choice. One of my friends decided to run against him because he sensed vulnerability - I didn't know the judge, but opposed my friend, who then withdrew when many others came to the judge's defense.

The process is broken, especially in this political climate. It will be further damaged by voting out very competent judges. That only serves to make those who remain more scared of losing their positions, and more likely to make safe choices when hard choices are called for. Even where the Union has elected not to endorse a candidate, I recommend a vote for the incumbent - it will help stop the nonsense of challenges where there is no need for change.

Somehow, I stumbled across this article about people fighting over custody of their dogs in divorce cases. Written in 2006, it discusses appellate court decisions on the subject, and the author's opinion of changing standards.

Historically, dogs were personal property. As I recall, there used to be California cases saying that cats weren't property, because no one could actually own a cat, but for this purpose I'm not going to research the subject to find such cases.

Lawyers in North County [San Diego] where I practice tell about a major trial over ownership of a parrot some decades ago, involving two very litigious attorneys who have since probably joined the bird in the hereafter. We all laugh at the absurdity of people spending 10's of thousands of dollars over custody of a pet. Now I appreciate their attachments to an animal, but essentially they are gambling that the judge will see it their way.

In a website that attacks judges and lawyers in San Diego, there are tales about courtroom fights in our county over dogs and cats, including a lengthy trial over Fifi - one-half of the 3-day trial was allegedly devoted to the animal. I understand an attachment to pets, but the Wife's fees in the case ran about $150,000. The article was critical of lawyers charging outrageous fees over such issues. I won't list the website, as it's largely run by a disgruntled litigant, who is occasionally right, but often wrong - he [or she] is anonymous, and seemingly from Beverly Hills.

In general, it isn't the judge's fault that such cases are litigated, something the site claims. It's the fault of the litigants who have more money than common sense. In part, it's lawyers who don't manage their client's expectations, or warn them of the risk and cost of going to court.

The lesson to be learned from these cases is that people don't often understand their own best interest, and will fight over a cause or principle, rather than over something that makes economic sense. For $150,000 you'd think it would make sense to buy a great dog, hire a full time trainer for a few months, then take the animal to Europe for the summer and develop a relationship with it. But that's just me.

I showed up in court a few weeks back for a 9 o'clock court appearance. Traffic was light, I arrived and parked about a block and a half from the courthouse, walked into the courtroom, and found the judge had already started the calendar and was on Item #8 [I was #2]. I checked in with the bailiff, and was the only one of the three lawyers on my case to have done so.

I then went back and sat down, opened my briefcase, and leaned back to wait for one of the other attorneys to appear. I casually looked up at the courtroom clock, and it said 9:01, as the judge called case #9. When the judge got to the end of the calendar, he started back at the beginning, looked over and saw me, and asked whether I was waiting for opposing counsel. I said I was.

I got up and casually walked to the back door, and as I exited the courtroom found one of my opponents coming it, assuming that he had plenty of time to get there for calendar call. We turned around, went back in, told the judge we needed 60 days to resolve some discovery issues, the judge thanked us, and we left.

Outside the courtroom, we were both dumbfounded. Each of us had left in time to arrive by 9 o'clock, assuming that the judge would be several minutes late, as judges usually are.

There are some days you just cannot get to court on time. Negotiating the I-15 to Highway 78 interchange can be a disaster. It seems everyone slows to a crawl because of something like a cardboard box lying empty on the side of the road, and the whack-o's who drive the Highway 78 corridor can't help but stop and look in case they might miss some bargain, a dead body, or free oranges.

My companion then claimed that another lawyer was "the worst". This is a lawyer who proudly trumpets that he the winner of "the coveted 128.5 award", routinely provided by the Certified Family Law Specialists' Committee of the San Diego County Bar Association to someone who is habitually late, files frivolous motions, etc., although basically a jovial fellow. My companion said that this lawyer had called his office on one occasion to find out what time he would actually show up, apparently trying to find out how much leeway he had in getting to the court on time. He eventually arrived an hour late.

We then joked about the perpetual excuse that he was doing some religious event [a prayer breakfast, speaking at a church luncheon, or leaving early for a "church retreat"], as though everyone should understand that his schedule involved in these religious matters should take priority over the schedule of the court or the convenience of the other side.

Typically, Family Law is a "hurry up and wait" kind of litigation practice. The calendar may be set at 9 a.m. or 1:30 p.m., but you may arrive finding 20 other cases on calendar, many of which will be argued in an order determined by the whim of the judge. Some judges routinely call matters where there are lawyers involved first. This frees the lawyers to go to another courtroom to argue another case, and historically makes the process move more quickly: Once you have both lawyers in the same place, it is easier to get them done so that they can go off and deal with other matters, in front of other judges who may be waiting for them.

A few judges put the lawyers down the list, either to avoid the complaint that they show favoritism to cases with lawyers, or because they are concerned that the non-represented litigants will learn something from the lawyers' arguments and make their cases more difficult.

Lawyers quickly learn that arriving on time does not necessarily get them out quickly, and judges learn that lawyers are not always there because they are checking into some other courtroom or arguing a case elsewhere. The reality is always a mix, with some lawyers taking advantage of the fact that they won't be missed since the judge has plenty to do, and they routinely make no effort to show up on time. Occasionally you will see a litigant wandering around looking for his or her lawyer, or be approached asking if they should be doing something because their lawyer isn't there.

The longer we practice, the less enamored we become of the courtroom process, and the less we accept without complaint waiting for hours for a 20-minute hearing that really does not do the issues justice, but is all that we can squeeze out of the courts unless we are willing to wait a few months for a hearing.

There is one local lawyer in San Diego County who specializes in bashing the legal profession, and bragging about the ability to handle a complete divorce in a day: Mediating a settlement, gathering the financial records, drafting all the documents, having an agreement signed, and the case ready for filing with the court. Sounds attractive - especially if you are rushing to get an agreement signed.

That attorney brags of a 100% success record. Unfortunately, the claims are not justified by experience. While that attorney may be able to claim to have talked the parties into a settlement and signed most of the documents in that day, not counted in those bragging rights are the many cases that have later been set aside by a judge or by stipulation because they were unfair, or entered into without sufficient understanding of the law or facts. The same person instills fear in potential clients by telling them that letting some other lawyer near their case will end up costing them tens of thousands of dollars, making outrageous claims of the cost of the average divorce.

And the saddest part is that the work is of low quality, and often could have been handled more competently at lower cost. Two mature, reasonable people, can mediate with a competent mediator inexpensively, and do it right: They don't need to pretend they can or should wrap it all up in a few hours. Typically in my practice, we meet 2 or 3 times over several months; by the time we are done, each knows his or her rights and feels comfortable with the agreement. And we strongly suggest they at least consult with an attorney before signing.

As a concept, it sounds nice that two reasonable people who know what they are doing can go to an attorney, polish the rough edges off their agreement, and have all the paperwork completed quickly, efficiently, and cheaply. Unfortunately, that isn't what happens in practice when they try to do it in a day. One of the things I complain about in this blog is people with insufficient education and training performing mediation in the guise of protecting people from the legal profession and their own inability to reach agreements on their own.

Continue reading "Getting Your "Divorce in a Day": No Way...." »

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.

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.