Divorce And Mediation Blog

If you watched John Stewart August 11th, you got a clear look at Fox News Hypocrisy.

A "reporter", fresh from maternity leave, confronted a talk show host who had called such leave a racket, and when he objected that men don't get such leave she proudly announced "oh, yes they do," to justify her defense of taking the benefit from her employer. She was very vocal about the need for such a social program forced on employers by the government, and how good it is for society.

Now, as a small business man, I have a problem with maternity leave for small businesses, where the loss of a key employee can have a devastating effect - often a person who cannot be replaced without months of training of someone to take his or her place must be replaced for a few months, but that is a nuance about application rather than opposition entirely as a matter of social policy. It would have a major impact on my law practice if I lost one of my paralegals for 3 months.

The problem is that this reporter had previously railed against such benefits as Socialism. Stewart was pointing out the problem when you take a benefit that affects you, but object to the same or similar benefits when they affect someone else. This happens over and over again on the network, but also among those who use the "conservative" badge to advance their own causes.

A prime example is Michelle Bachman and her family - she gladly accepts subsidies for one family business, and Medicare payments that support another. Another is the red state politicians demanding aide from FEMA for the recent floods, while those from states that weren't flooded insisting the government cut other programs before helping with the cleanup and rebuilding programs, let alone the need to help individuals feed, clothe, and house themselves on a short term basis.

There are good and bad in most such programs - that's why I take a more nuanced view, where you tailor the program so that it does a combination of good, without too much bad. This happens time and time again in government, and why compromise is essential.

Here's a typical client's excuse: Felon blames his lawyers.

Invariably, no one wants to accept responsibility for their own wrongdoing. Here's a guy who plead guilty for bribing a congressman, among his many woes. As he sits in jail, his excuse is that he didn't read the plea agreement he signed, just before he was sent to jail to serve the agreed upon sentence - he wants us to believe he thought he was just going to get a slap on the wrist and go about his business, and the lawyers didn't explain it to him properly. He claims that the only reason he was sent to jail was that he wouldn't name the other congressmen he'd bribed. I like that story, and it's certainly funnier than "the lawyers made me do it."

Last week I watched as a former client testified in court that he wasn't at fault for putting his girlfriend down as his spouse on his income tax forms. He "relied on the professional," his accountant, to put her income on the form someplace and it wasn't his fault she was listed as his spouse. The other testimony was that he'd said that "The judge will certainly understand that I was just trying to save money." He claimed she wasn't his wife when she wanted support and some of his earnings - the judge agreed she wasn't his wife, but entitled to the same rights as a wife because he had claimed her as such for years - year after year, in fact, until he was done with her.

Watch what you write - those e-mails and instant messages may come back to haunt you. In a recent trial in Federal District Court in Florida, an instant message between two parties to a business contract were found to have made a major modification to their contract. A more complete report can be found here. One party to the exchange didn't like the court adopting what it deemed to be a modification of a prior written agreement - where a contract required any modification to be in writing, the court found that the IM exchanges satisfied that requirement even though they were very cryptic.

It is amazing how quickly people dash off messages, forgetting they may be read much later - the electronic form allows speed without much consideration. Or they make an agreement, but later forget they have done so. And once the message is turned into electrons, it can last forever with endless copies being made and transmitted.

In Family Law, we see people post things on their Facebook pages or send what they believe to be a witty remark - usually we see them for the first time when someone attempts to produce them at a hearing. They can sure be embarrassing.

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.

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.

Irrespective of your position on Gay Marriage, you have to wonder what is going on in Texas - that's a recurring question among family law lawyers, since Texas seems to routinely dance to its own drummer.

Two Texas gays got married, in Massachusetts. Residents of Texas, they later tried to file for divorce - just like straight people. You would think that dissolving a gay marriage would appeal to those who didn't like gay marriages in the first place, but not in Texas, apparently.

The marriage of Angelique Naylor and Sabina Daly was dissolved by the trial court. The Texas Attorney General decided to appeal, claiming the state didn't have the power to dissolve their marriage, citing a Texas law prohibiting a state agency or political subdivision from giving effect to a "right or claim to any legal protection, benefit, or responsibility asserted as a result" of a same-sex marriage.

The legal position of the AG was that getting a divorce conveyed on these two a right or benefit - since they were gay, they couldn't get divorced. Since the marriage wasn't recognized by Texas, he reasoned, it couldn't be dissolved. I guess he intended they go to Massachusetts "where such people belong." :)

The court of appeal ducked the issue in true Texas form: It ruled that the AG hadn't intervened in the case soon enough, so he couldn't later complain about the result. That leaves to others the job of getting a divorce so they can defend their right to do so.

Is it just me, or is this carrying opposition to marriage between homosexuals to an extreme? Is it just me, or should the appellate court have just bitten the bullet and told us the answer? Or is this just Dumb and Dumber on a higher level.

A major issue in most of my divorce cases is the value of the family residence. Yes, even in this market there may be equity. The value is affected by the condition of the home, which is often a source of litigation. Usually, there is no home inspection to provide an objective view of the homes defects.

What family law lawyers call the "In Spouse" is the person most likely to end up with the residence; that party generally wants it cheap. The "Out Spouse" wants it dear - often he [or she] is getting a business or other assets offsetting the equity in the home. Sometimes the In Spouse simply has greater resources [separate property funds or family help, for example], and can afford to keep the house. The Out Spouse is often not in the running financially, so he [or she] wants a high value or the property sold for the maximum.

As you can expect, when asserting a value, to the In Spouse the house is a shack; to the former mate, it is a pristine palace. We see these arguments passed back and forth going back to the beginning of real estate. Usually, they are just arguments.

In San Diego, most of our judges want a neutral real estate appraiser, and we choose from a short list of the usual suspects to go to the home and ignore what each party says is good or bad about the house. The real estate appraiser we choose should have a lot of experience in divorce cases, so often does not put much stock in the claims of either side.

This is where a home inspection can help. There was a recent New York Times article on this subject.

Continue reading "Divorce, Appraisals, and Home Inspections..." »

Over the weekend, an interesting article appeared in the New York Times relating to divorce, Alzheimer's, and financial problems.

The story begins with a sad story of a successful lawyer who simply lost track of his finances. His wife learned of the problem when she received a call from their homeowners' association to the effect that their dues were not being paid. He had also stopped writing checks to other creditors, and when she hired a forensic accountant to find their money learned that most of it had "just disappeared."

The article is part of a series on dementia, and points out that difficulty understanding finances, money and credit, is on of the first signs of the problem.

While a person may have sufficient capacity that no one will intervene, the unfortunate part is that they may no longer have the ability to make sound financial decisions. The American Bar Association has published guidelines for lawyers in this area. Unfortunately, in the divorce setting, the consensus seems to be that the lawyer who sees the problem cannot move to have a conservator appointed for his own client, and may not even be able to warn others of what he sees.

The general rule is that when spousal support is ordered by a court, it is deductible by the person who pays, and taxable to the recipient. There are rules that apply, but they are relatively straight forward.

Occasionally, the recipient is a non-resident alien who decides to live in another country: Maybe they return from their country of origin, just want to get away, or they have family there - maybe they can make their support stretch farther. Some who have been married to American citizens for decades were here legally, but remained citizens of another country, and when the marriage failed decided to go to their homeland.

The taxability scheme assumes the government gets tax from one spouse or the other. Although the recipient is usually in a lower tax bracket, that is a bargain we make. When the receiving non-resident spouse moves to Italy, Poland, Japan, or Canada, for example, how does the government get its money? To often, no one asks that question, and finds out too late to solve problems created.

Well, there is an answer: The paying spouse withholds the money and sends it to the IRS. This does not apply in all cases, as there some inter-country treaties that eliminate the obligation. The risk to the paying spouse is that failing to withhold may make him or her liable for the tax that should have been paid.

Will the "document preparer" helping you fill out the paperwork to process your divorce have any clue? Of course not. Even most lawyers don't know the rule unless they attend the type of courses that teach these unusual rules - certified specialists are more likely to take such courses.

A Pennsylvania man has been indicted for sending an e-mail to Kentucky Senator Jim Bunning as a result of his efforts to stop a vote on extending unemployment benefits last February.

His crime may have been filling out a contact form on the Senator's website, incorrectly identifying himself as "Bruce from Louisville" in an effort to appear to be one of the Senator's constituents. He claims he didn't directly identify the Senator as crazy, but allegedly said ""ARE you'all insane," even though Bunning probably qualifies personally for that term. It is impossible to determine from the indictment what the man did, since the U.S. Attorney only quoted the vague language of the statute in the indictment.

There are two problems here: One is the basic due process right to be given knowledge of the charges against you, which we can't determine from the indictment. The other is the Constitutional right to "petition the government for redress of grievances", one of the rights granted by the First Amendment. It would be nice if the public could look at the indictment and actually determine what defendant is alleged to have done.

It will be interesting to see what the e-mails actually said. As for calling "Bunning" crazy, truth should be his defense. Age age 79, with an approval rating under 30%, he decided not to run again in 2010 because he couldn't raise enough money to fund his campaign.

40 years ago, California became the first state to allow people to get divorced simply because they no longer wanted to be married to their partners. In 1969, the California Legislature decided that the then-existing concept of "fault" created more problems that it solved; it felt that making the parties lie to rid themselves of a mate made little sense - no marriage was better than open hostilities, and, besides, court rooms are pretty poor places to decide which spouse was worse, or whether bad conduct had happened at all. Since then, 48 other states have followed suit, leaving only New York without a similar option. That may soon change.

This recent op-ed piece in the New York Times summarizes the arguments for and against no fault divorce now being debated in the New York Legislature. These are issues that create substantial debate, but eventually the result always seems to favor allowing people to divorce more freely; I presume that, ultimately, the majority of politicians want to keep their own options open.

Whether you agree or disagree with the concept, you or your spouse can obtain a divorce simply "because...." In California, the standard is that there be "irreconcilable difference." It is sufficient that one wants a divorce and the other doesn't - such a difference is probably "irreconcilable." California also permits divorce because of "incurable insanity," but in 35 years of practicing family law in San Diego, I've never seen anyone bring such a case. It is too easy to prove that at least one of the parties in the marriage is unhappy and wants out.

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..." »

Until last week, it has been generally assumed by many lawyers and CPAs that Domestic Partners, duly registered as such in California, may not divide their incomes for tax purposes, although the income may be treated like community property by the state.

In a recent publication from the IRS effective last Friday, that may no longer be true for tax years beginning in 2007. Because of a change in California tax law effective 1/1/07, this state has treated partners' income the same as that of married persons.

A major concern is the effect this may have on returns for the last 3 tax years, and whether amended returns are required or recommended. It does not appear they may file joint returns, however. It would just mean that each may declare one-half of the income of the other, potentially shifting much of the income tax burden to the lower earning partner at much lower tax rates.

If you are dissolving a domestic partnership, it is important that you contact a Certified Family Law Specialist who has knowledge of these rules and keeps up to date on recent changes.