by Kayla Horacek

The mores in California family law are changing. Highly litigious clients, as well those who favor settlement, are now faced with new realities and options. To that end, it is important that all represented parties retain counsel who are aware of these possibilities and can explain them to his or her clients. There are various examples of this progressive thinking which should be explored by all parties involved in a family law proceeding. What follows is only a glimpse into some of the new developments in family law litigation and settlement.

The Full Monty

In a family law proceeding involving support and/or property division, both parties are required to reveal all of their financial information to one another, under penalty of perjury. The goal behind this policy of full disclosure is to place each party in the most informed position possible in order to settle or litigate their matter. This disclosure requires that each party complete and exchange various court forms and charts detailing all benefits and obligations, whether they are claimed to be of a community or separate nature. Furthermore, California family law places a continuing obligation upon a husband and wife to independently update and augment these disclosures.
This transparency is nothing new. The policy of full disclosure is written into the California Family Code, and has been the legislative mandate for many years. For whatever reason, however, courts were not inclined to penalize a party for their failure to disclose relevant financial information during a pending divorce.
In 2007, one California family court chose to enforce the high standards for truthfulness mandated by the legislature. It found that a party had waited several months to disclose relevant financial information to the other during their divorce proceedings, in direct defiance of the disclosure statutes. At the end of the day, the offending party ended up paying $250,000.00 in sanctions for his behavior, which did not include attorney's fees for the other party amounting to $140,000.00.

Take Home Tip: When you hire a family law attorney to represent you during your dissolution action, and arguably, during an action for support, ensure that they are familiar with the strict disclosure requirements imposed upon you. Provide your attorney with EVERYTHING related to your assets, debts, and income early and continuously.

The Custody Marathon

For most people engaged in a dissolution action, financial concerns are only a small part of the struggle. The vast majority of family court litigants also have children. Thus, they must grapple with the emotionally charged world of custody negotiation.
In the most egregious custody disputes, particularly when one party alleges some kind of substance abuse or an outright inability to care for a child, the court will often appoint some kind of expert to assist it in fashioning a plan in the best interests of the minor(s) involved. This expert is a custody evaluator--a psychologist/psychiatrist with extensive experience in child development. The financial circumstances of the parties will determine whether a court psychologist or a private expert is utilized, as the latter is almost always significantly more expensive.
Many parents are now enlisting the services of another kind of professional designed to guide them through this evaluation process--the "custody coach." This person is typically also some sort of therapist who is intimately familiar with the world of custody disputes and litigation. A parent hires a custody coach in an attempt to prepare for the various exercises, tests, and observations which he or she will undergo as part of the custody evaluation. The coach is likely to provide a litigant with feedback on appropriate behaviors, language, and writing samples before they are seen by the evaluator.

Take Home Tip: When determining whether to hire a coach, consider the fact that such a person may not be seen favorably, as he or she may arguably hinder a genuine evaluation of your parenting abilities. Also, when choosing between coaches, retain someone who has an extensive working knowledge of the procedures used by a private custody evaluator, as well as California custody law. If you cannot afford a custody coach, but need pointers, your attorney should have a handful of helpful hints for you. At the very least, he or she should be able to explain the evaluation process.

The Think-tank

Another trend in California family law combines two terms rarely seen in the same sentence-- collaborative and divorce.
In the collaborative divorce, the parties agree to stay out of the courtroom, and focus on obtaining a global settlement. Initially, each party retains an attorney familiar with this type of practice and commits to settle the matter without litigation. Depending on the issues in the case, various other professionals then become involved. For example, in a high asset case, a forensic accountant may provide an evaluation for the parties. In a contested custody case, a therapist and/or evaluator may make a recommendation for a custody plan in the best interests of the child(ren). In a case with novel issues, an appropriate expert may offer feedback in order to educate the parties and their counsel to allow for a fair settlement. Assuming all aspects are negotiated and agreed to, the parties' attorneys can then memorialize the understanding in writing. If done properly, this agreement will have all the force and effect of a litigated Judgment of Dissolution.

Take Home Tip: When searching for a divorce attorney, consider the collaborative approach if you and your spouse have an amicable relationship, and are truly committed to avoiding the stress, delay, and public nature of litigation. Be prepared for a potentially high retainer for collaborative services, as you will likely be hiring your own attorney, as well as other professionals to evaluate your matter.

This article was written by Kayla Horacek. Portions of article appear in the November 2008 issue of Pasadena Magazine

Posted by The Law Offices of Donald P. Schweitzer at 1:08 PM | Permalink | Comments (0)

Is it possible to be a widow, yet not a surviving spouse in the state of California? The answer is a resounding "yes," according to "Estate of McDaniels" (2008) 161 Cal.App.4th 458. Continue reading or click onto the above presentation for a detailed analysis of this case.

The facts of this case are interesting and tragic at the same time. Troy and Marie McDaniel were married in 2002. Unfortunately their relationship was volatile and dysfunctional due to the fact that Troy had a habit of abusing alcohol and losing his temper. It appears from the opinion that Marie filed for divorce following a domestic violence incident, which led to Marie obtaining a restraining order and Troy getting arrested.

After Troy was charged with committing domestic violence against Marie, she filed her Petition for divorce. Troy filed his Response in April, 2005 and the parties began work on a Marital Settlement Agreement. Troy and Marie signed Interspousal Transfer deeds to one another; concerning two properties they held in joint title. In addition, they signed a Stipulated Judgment of Dissolution that contained provisions to divide their community property and debt, waivers of spousal support, and waivers of their right to appeal.

The Judgment of Dissolution was filed with the court in June, 2005, and the family court promptly entered the judgment. The judgment provided that the parties' marriage would not be dissolved until October, 2005, which was six months from the date that Troy filed his Response (based on the cooling off period written into our divorce law).

In spite of the fact that Troy and Marie signed and submitted their Judgment of Dissolution, they were attempting to reconcile their marriage. The parties attended counseling and Marie accompanied Troy while he went to alcohol anonymous meetings. Troy and Marie also signed an agreement where Marie agreed to request that her restraining order against Troy be quashed and they agreed that would continue their marriage with love and respect, and that they would keep their divorce open but acknowledged that they could dismiss the action at anytime before October. Troy and Marie also signed a judicial counsel form, requesting the dismissal of the divorce, but they held off on filing it. According to Marie, they decided not to file the request until Troy made a court appearance concerning the domestic violence charges filed against him.

Based on the facts as presented in the opinion, there is no question that Troy and Marie were attempting to reconcile their marriage. Sadly, however, Troy died in a motorcycle accident in September, 2005. Troy was interstate at the time he died, meaning he had not prepared a will or trust concerning the distribution of his estate at the time of his death.

Probate Court's Findings

Since Troy died Intestate, his estate had to be distributed in probate court and in accordance with the probate code's manner of handling intestate cases. In probate court, Troy's mother filed a petition for entitlement of distributions, claiming that she and Troy's father were entitled to Troy's estate. Marie then filed an opposition, arguing she was entitled to Troy's estate as the surviving spouse because the dissolution was not final.

Marie lost in probate court. The probate court judge determined that Marie was not a "surviving spouse," per Probate Code, Section 78, subsection (d), which provides that:

"A person who was a party to a valid proceeding that ended in an order terminating all marital property rights does not qualify as a surviving spouse."

The Court of Appeal's Ruling

Marie filed an appeal, and argued to the appellate court that per Family Code, Section 2339, she was a surviving spouse since she was still married at the time Troy died. Family Code Section 2339 provides:

"A dissolution judgment does not terminate marital status until earlier of six months after date of service or six months after filing of Response."

Unfortunately for Marie, the Court of Appeal affirmed the probate court's ruling that she was not a surviving spouse. The Court held that even though Marie was technically married, she was not a surviving spouse per Probate Code, Section 78, subsection (d), based on the fact that the Judgment filed and entered in their case divided property and debt, waived spousal support, and waived the right to appeal. In rendering the decision, the Court cited the Estate of Lahey (1999) 76 CA4th 1056, where the parties had been legally separated at the time of the husband's death, and the wife was determined to not be a surviving spouse based on the terms of the Judgment of Legal Separation.

Should I get a Will?

One of the important lessons we can take from this case, is that parties should consider getting wills or possibly modifying their wills, during the dissolution of their marriage, which is permissible in California. Parties going through dissolution proceedings should also consider changing the way in which they hold joint title with their spouse.

In the instant case, we will never know if Troy would have wanted Marie to have all or a part of his estate. From the facts of this case we know that Troy and Marie were headed for a divorce. We also know, however, that they were seriously trying to reconcile their marriage. Thus, it is very possible that Troy would have wanted Marie to have taken his entire estate.

When I give advice to my clients I never tell them how to run their lives or make decisions for them concerning their personal affairs. I believe it would be improper as an attorney to tell my client that he or she should get a will during the pendency of a divorce, because it is a highly personal decision. It is important, however, that all of my clients understand the possible consequences of not having a will.

After reading this article, I hope you have learned that there can be real consequences for not having a will during the process of a divorce. If you have any questions about your rights to obtain or modify an existing will during your divorce, be sure to speak to a competent family law attorney.

Posted by: Law Offices of Donald P. Schweitzer

Posted by The Law Offices of Donald P. Schweitzer at 3:45 PM | Permalink | Comments (0)

*IF AUDIO STOPS PLEASE CLICK ON THE TIMELINE TO CORRECT THE ISSUE* On occasion California courts have to struggle with the issue of what constitutes income for the purpose of calculating child support. In a recent California decision entitled "Marriage of Rothrock," the court of appeal had to determine whether or not an uncharacterized personal injury settlement award that was paid into an annuity, constituted income for the purpose of calculating child support. In rendering its' decision, the court of appeal relied on the common law definition of income as well as a federal statute in determining that the monthly annuity did not constitute income. The court's use of the common law definition was somewhat new, in comparison to recent cases where the same issue presented itself. For a more detailed analysis of the court's decision, click onto the above presentation.

Posted by The Law Offices of Donald P. Schweitzer at 4:11 PM | Permalink | Comments (0)

 

           People love choices.  Typical Americans, and especially Californians, are no exception.  In the “golden state”, residents pride themselves on novelty and uniqueness in most aspects of their lives.  Inhabitants here scoff at the notion of a lifestyle template—they would rather tailor their own existence to meet their specific needs and desires.  Case in point—personal electronic devices.  Almost everyone in California has one—but no one device is quite the same.  There are so many exciting choices to make before becoming an owner.  Such as: what carrier do you choose?  What kind of plan do you get?  How much do you want to spend each month?  How many minutes is enough?  What device do you get?  A basic cellular phone?  Or an “all-in-one”, with phone, e-mail, internet, camera, and music features?  Or something in between?  Do you get a blue-tooth attachment?  This year’s model or last year’s model?  What kind of ring tones will you select?  What color will you choose?  A carrying case?  Accessories of any kind?  Certainly, there are more decisions to be made.  The point is that almost everyone leaps at the chance to make these somewhat silly choices.  People love the autonomy and self-design this process allows them.
            Strangely enough, Californians do not seem to celebrate choice and self-governance when entering into the marital relationship.  The vast majority of Californians do not opt to create their own “prenuptial agreement” (a before marriage agreement) with regard to resolution of property and support issues in the event a dissolution occurs.  Rather, they rely on the default community property system which controls here in California, and in several other states.  In fact, many argue that the existence of a prenuptial agreement reveals that an impending marriage is doomed to fail.  This group would argue that preparing for the ending of a marriage before-hand, during the “good” times, suggests an underlying deficiency in the relationship.  Admittedly, creating a prenuptial agreement requires a couple to venture into territory that may not be comfortable.  Imagining the end of a marriage is obviously depressing—and certainly no one wants to be depressed, especially after they have decided to embark on a new life with a partner.  Nonetheless, this endeavor forces two people to communicate about important financial issues they may have never discussed before—division of assets (present and future), division of debts (present and future), spousal support, child support, etc.  In that way, it could even be characterized as a litmus test for the marriage.  
            In any event, the creation of a prenuptial agreement allows a couple to craft their own plan with regard to their marital future.  It provides a way to tailor and design the possible termination of a marriage to completely meet your needs and wants.  In essence, a prenuptial agreement puts a couple in the driver’s seat, letting two individuals make their own specialized marital laws.  So why not take advantage of this ability to self-govern?  If one is willing to take so much care in ensuring their favorite song is also their ring tone, surely, they should invest as much time (if not more) protecting their legal interests if a divorce ensues. 
            So, for those out there brave (and wise) enough to create their own laws, the following is a brief summary of the legal requirements California imposes upon prenuptial agreements in 2007.
 
The agreement shall:
1.                  Be in contemplation of marriage;
2.                  Be in writing;
3.                  Be signed by both parties;
4.                  Not adversely affect a child’s right to support;
5.                  Not be in violation of public policy or a statute imposing a criminal penalty;
6.                  Be voluntarily entered into, which is defined as:
a.)   the party (against whom enforcement is sought) being represented by legal counsel at the time of signing the agreement or said representation being expressly waived, in a separate writing
b.)   the party (against whom enforcement is sought) having not less than seven calendar days between the time that the party was first presented with the agreement and advised to seek independent counsel and the time the agreement was signed
c.)    the party (against whom enforcement is sought if unrepresented by counsel) was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conduced and in which the agreement was written
1.)   the explanation of these rights must be memorialized in an agreement in writing and delivered to the party prior to signing the agreement
2.)   receipt of this explanation (as well as the source) must also be acknowledged in a signed documents
d.)   all documents were signed without duress, fraud, undue influence, or lack of capacity; and  
7.                  Not be unconscionable, which is defined as:
a.)   the party being provided a fair, reasonable, and full disclosure of the property and financial obligations of the party
b.)   the party voluntarily and expressly waiving their right to disclosure of the property and financial obligations beyond disclosure provided
c.)    the party having an adequate knowledge of the property and financial obligations.
***If the agreement contains provisions regarding the issue of spousal support, including, but not limited to, a waiver of said support, the party against whom enforcement is sought must be represented by independent counsel at the time of signing.

Clearly, the aforementioned guidelines are intended only to be a starting point in the creation of a prenuptial agreement.  Once you and your partner have discussed the ideal plan for your legal partnership, it is most advisable to take said plans to an attorney to have him or her memorialize the agreement. 

Written by Kayla Horacek

Posted by The Law Offices of Donald P. Schweitzer at 1:16 PM | Permalink | Comments (0)

 

 

It is widely accepted that two primary catalysts leading to divorce between married couples are a lack of communication and financial duress.  Even after seeking and applying proper counseling and therapy, divorce may be the only logical solution for couples undergoing such stressful times.  It is especially crucial that ensuring proper communication and emphasizing diligent financial awareness are so critical during the divorce process.  For it is very easy for the house and home -which you both fought so hard for- to crumble like a house of cards if the proceedings are not handled properly.

When a couple first purchases a home together there is no doubt that love, hope and dreams are emblazoned into the very essence of the walls within.  If it was a couples’ first home then it was probably a “Starter Home” and growing equity in the property over time was of utmost concern.  If the divorcing couple had already obtained their “Dream Home” then children, family events and the plans for retirement had likely already been drafted and secured.  Either way the home belonging to the couple has great value and the future of it must be steered wisely.

Anger, guilt and sorrow often prompt people to make quick and reckless judgments.  Many times divorcing couples decide to sell their home and split the equity within it, rather than hold onto it and bear the painful memories of broken dreams.  More times than not though, these same people regret this decision a year or two down the road, upon realization that all of their hard earned equity was lost through the cost of the sale or (even worse) that any future potential equity has been eliminated. When children are added to the equation, it is even more important to act rationally, so as to assure that a proper legacy or estate is drawn up to pass property onto heirs.

The individual finances of the divorcing couple should be evaluated to ascertain if either party can financially bear the cost of home ownership on their own.  If it is possible, then an overall future outlook of the projected appreciation in the home, neighborhood growth and family needs (e.g. school, church, medical, etc.); should be estimated to determine if the home is indeed a good investment.  If all things are considered and points towards one party keeping the home, then a refinance to liquidate equity and buy out the other party’s share would indeed be prudent.  If not, then a sale of the home may be the only viable option.

The need for divorcing couples to thoroughly and properly evaluate their individual finances, and weigh the true value of home ownership cannot be stressed enough.  By doing this, both parties can be assured that all decisions have been based upon logic, reason and financial clarity rather than stemming from emotional attachments. Failing to do so may unfortunately result in years of even more regret and sorrow than is truly necessary, due to the loss of hard earned investment equity and future plans of leaving a legacy for your children.  After all, nothing is worse than realizing that you may have caused yourself even more financial duress due to a lack of communication when those may have been the very reasons for the divorce in the first place.

Written by Scott Yonehiro, CMPS

Posted by The Law Offices of Donald P. Schweitzer at 12:20 PM | Permalink | Comments (0)

   Webster’s dictionary defines divorce as, “to end marriage with one’s spouse and to make or keep separate”.  Now I am pretty sure that all of the people who have gone through a divorce, or are currently enduring one, wish that the process was as easy as this simply put definition.  The truth is that divorce is hard.  I have seen clients become so absorbed with the process and misery of the situation, that if left to their own decisions, they would make hasty and faulty choices which would be extremely detrimental to their financial well being.  Commonly, one of those choices is pertaining towards the division of the marital home and shared real estate.

    Although the divorce itself may be complicated, there are generally only two alternatives to the dilemma of splitting a home: one is to refinance the property and the other is to sell it. Prior to making that decision there are certain facts that one should know about before moving forward.  The facts are as follows:

Fact: Understand that a “Quit Claim Deed” alone only applies towards the title of the property and simply removes someone from title and not the loan obligation.  Both parties are still equally liable for the loan in the event of a future foreclosure or non-payment on the note. Both individuals are still equally responsible in repayment of the existing mortgage. 

Fact: By refinancing, the vacating party will be removed from the current mortgage obligation and title all at the same time.  Refinancing is the best way to accomplish the goal of clear ownership as well as clear detachment.

Fact: Refinancing enables the individual retaining ownership to pay off the vacating party with the existing equity in the home, providing there is enough equity, and benefit from the tax deductibility of the mortgage.  This eliminates having to tap into established retirement plans or other asset accounts and pay penalties associated with early withdrawal.

Fact: Sometimes due to the splitting of the household income, or the lack of equity within the home, refinancing is not an option. The only option may be to sell the property at that point. Keep in mind that there may be capital gain issues to address and you should seek the advice of your tax professional and/or a certified mortgage planner in this instance.
 
     Keeping in mind the above mentioned facts, separation between two parties of one property can be done correctly and without the worry of any future issues arising.  Should there be a situation with having to divide the value of multiple owned properties, then including the aid of both a tax professional and a certified mortgage planner is a must.  They will be able to work together to give the clearest picture possible of what the divided assets are valued at,  and provide a detailed explanation of any monies needed for payment and recapture of depreciation, capital gains, realtor sales commissions and more.  This will allow clarity during the final negotiations and decisions of the divorce and minimize the loss of hard earned invested equity for both parties.  

Scott Yonehiro is a certified mortgage planning specialist with First Security Lending in Burbank, CA.  As a recognized professional in the field, Scott is frequently asked to speak at mortgage events and seminars.  He has also published articles in several national industry magazines such as Mortgage Originator, Broker/Banker, and Broker/Agent Magazine.  First Security Lending has ten offices throughout Southern California, and was recently voted “Best Mortgage Company” by the Los Angeles Times’ Burbank Leader for the 6th year in a row.  Scott can be reached at 818.333.1835 or via email at Scott@firstsecuritylending.com

For more information regarding divorce go to http://www.pasadenadivorce.com

Posted by The Law Offices of Donald P. Schweitzer at 4:39 PM | Permalink | Comments (0)

This past week, typically mindless commentary during a popular morning talk show caught my attention.  All of a sudden amidst my morning routine, I heard words and phrases like “solution” and “cost-effective” and “best interests of the children” and… “divorce.”  The host claimed there is a new phenomenon in which a married couple remains together, in almost every sense of the word, despite the fact that both desire a divorce.  He referred to it as the “non-divorce” divorce.  Supposedly, this trend is gaining popularity as the solution to a failed marriage. 
The “non-divorce” divorce is a mutual verbal agreement between two married individuals who want to keep their marriage in tact, but fully accept that the relationship is over. The goal is to feel divorced while continuing to live together and not get a divorce. In other words, the couple does not want to go through the divorce process, but they don’t want to reconcile either.  They don’t want to hire attorneys, file papers, argue over custody or support, lessen the time their children see either of them, or loose one-half of their financial assets.  So, they decide to remain as if they are married.  They live in the same family home as roommates, participate in their children’s lives as they had before they wanted a divorce, and maintain/preserve the marital estate. 
Of course, most couples who attempt the “non-divorce” divorce are those who have children and/or those that have been married a considerable period of time and do not feel it is beneficial to disrupt the community on an emotional or financial level.  Or at least they feel that the costs of a divorce clearly overshadow the costs of remaining together—even when there is no love left.
I cannot speak to the negative psychological effects that could result from this “solution.”  However, I can certainly speak to the negative legal effects and problems that could arise.
First, if you never decide to separate in family law terms (that is, one party making a conscious decision that the marriage is irrevocably over and communicating the intention to end the marriage), there is never a date of separation.  The “date of separation” is important in family law because it marks the end of the community.  From that date there is no longer a collection of community assets or community debts—instead, a spouse’s separate property and debts begin to accumulate, as they did before marriage.  Your spouse will continue to be entitled to one-half of all of your property and you will be liable for one-half of your spouse’s debt.  Therefore, if you are both managing your finances separately without full disclosure and mutual agreement, you could be adversely affected.  What’s more, your spouse will continue to be entitled to all benefits they were when you were happily married, including possible rights to the family home, life insurance, devises/gifts from a will or trust, and health insurance, to name a few.
The determination of a long term marriage (which can yield indefinite spousal support) is also associated with the date of separation.  For example, if your marriage is eight years in duration, and you attempt a non-divorce for 3 years, followed by a real dissolution, the court’s characterization of the marriage as long term will probably be contested and require substantial litigation.
Living as financially independent roommates could also present a problem with expenses.  Unless you agree to distribute both of your respective incomes in a way that benefits the community, one spouse may not have enough to support his or her lifestyle.  Regardless, if you are still residing in the family home with your spouse, the courts will not grant any spousal or child support. Since you have avoided going to the courts entirely, a support award is virtually impossible anyway.)
In the same way, no child custody or visitation orders will ever be established.  This means that after attempting the “non-divorce” divorce for a year or so, and after resorting to the real thing, a parent may have a hard time making a case that he or she should be the primary custodian.  This is because even if one parent is the primary caregiver during the non-divorce, this fact will be hard to establish if both parents were living in the same home all the while.  

For the aforementioned reasons, the non-divorce presents significant legal problems.  Spouses who try this “solution” cannot be guaranteed that one spouse will not attempt to obtain a legal divorce down the road.  If this occurs, a spouse will not be afforded some of the protections that a traditional divorce provides.  In order to ensure that you make an educated decision, you should speak to an attorney who specializes in family law matters.  He or she can point you to two potential solutions—a post-nuptial agreement or a legal separation.  Both options will cost some amount of fees and time in mundane paperwork, but will allow you to live whatever lifestyle you want with protection and peace of mind.

Written By Kayla Horacek

 

Posted by The Law Offices of Donald P. Schweitzer at 3:45 PM | Permalink | Comments (0)

There is always that person that thinks they know some trick that will allow them to escape accountability.  You know who I mean of course.  We all know this person.  He is the slick talking blowhard.   We will call him Mr. Blowhard for the purposes of this article.  Imagine Mr. Blowhard having to go through a divorce in which he will have to give half, of “his” hard earned property, to his wife. Mr. Blowhard will go to any length to avoid such a result.

It makes for an interesting case when Mr. Blowhard enters the divorce process.  His combination of limited legal knowledge and willingness to misstate the facts can turn a divorce proceeding into quite a spectacle.  This article shall focus on the circumstances of a void marriage and the likely thoughts that will cross his mind.

Some husbands, with knowledge that the marriage is void, think they have some sort of a prenuptial agreement that will allow them to escape spousal support, attorney’s fees and property division when things turn bad.  As an example, let’s use a situation in which the marriage is void because of a pre-existing foreign marriage or a foreign divorce that wasn’t quite completed. 

One fine day, Mr. Blowhard and his girlfriend decide to get married in the United States.  The girlfriend has not finalized her divorce in another country. Mr. Blowhard knows of the prior marriage or incomplete divorce, and assures his soon-to-be wife that everything will be alright.  “This marriage is from a foreign country,” he says.  “The government shall never know.”  All the while Mr. Blowhard is snickering to himself because he knows this marriage is null and void and he will never have to pay spousal support or be faced with other obligations should things go awry. 

Well, well, Mr. Blowhard, believe it or not, you are not the first ingenious legal scholar to concoct such a scheme.  In fact, the California Courts have dealt with this issue as far back as 1982, in the Recknor decision.  The Second District Court of Appeal held in this case that a husband that knows of a prior marriage, that nullifies the current marriage and that still holds himself out to be married, is estopped from denying the invalidity of the current marriage. 

Suddenly a light goes on in Mr. Blowhard’s head.  “Hold on,” says Mr. Blowhard. “I never even knew she was married.”  Again, Mr. Blowhard has used his limited legal knowledge incorrectly.  If Mr. Blowhard is able to show that he never knew of the prior marriage he still must divide his “quasi-marital” property equally.  On this point, I’ll cut Mr. Blowhard a break because the treatises even state that the answer is not clearly defined by the California courts. 

If Mr. Blowhard were to do his own research he would see that the California Courts have done everything they can to show that Mr. Blowhard still has to divide his community interest equally.  If Mr. Blowhard proves that he had no knowledge of the prior existing marriage, he is a putative spouse.  California Family Code § 2251 states that if one of the parties had not know of the invalidity of the marriage then that party is a putative spouse and the property acquired during the marriage, (quasi-marital property), shall be divided in accordance with Fam. C. § 2500.  When you read §2500 it states that all property must be divided equally.   

Feeling a bit disheartened, Mr. Blowhard?  Let me put it to rest for you.  In Marvin, the California Supreme Court considered the issue of the bad-faith spouse.  The Court stated that even in cases of a bad-faith spouse, the Court should still award the “guilty” spouse half of the quasi-marital property.  After all, if we were to define an “innocent” spouse as one that believed the marriage as being valid, then awarding the innocent spouse ½ of the property is not frustrating their expectations.

The Courts have been dealing with Mr. Blowhard types since the early days of English common law.  For the most part, all the schemes have been tried and the Courts have developed remedies for them.  This dynamic process of trial and error is what makes our legal system so special.

Written By Antonio J. Fricano

 

 

 

 

 

 

Posted by The Law Offices of Donald P. Schweitzer at 11:42 AM | Permalink | Comments (0)

Ready or Not… It’s the holidays! As the festive season moves into high gear, many people start to feel as though they are operating in low gear trying to get everything done. Yours has not been a typical year.  Whether the transitions you’re facing were by choice or not, there still are all the new adjustments to be made, and you may be experiencing a sense of loss as well. All of this accompanied by your regular (or even increased) workload could be creating a state of surmounting stress. To compound things a bit more, stress requires a great deal of psychological and physical energy.  Therefore, very possibly you are experiencing a present lag in motivation to deal with the holiday’s altogether.  I would like to make the suggestion to you to “keep it simple” this year.  Here are some possible tips to help see you through.

Focus on the Basics; Don’t put your health last on your list.  If you are feeling something’s got to give, don’t let it be the normal attention you pay to your health.  It is vital in keeping your stress level down, to regulate your basic health habits including; eating, sleeping and exercise.  A key way to avoid feeling tired and dragging, is to keep your eating habits as normal as possible.  Also, a vigorous walk in the fresh air can have you sleeping better and make you more alert, energetic and therefore, more efficient during the day.  And remember, it is extremely important that you don’t neglect any ongoing medical problems or put off any important medical attention you may need, regardless of how tapped out or distracted you may be feeling.

Keep Your Plans Realistic; If you are not going to be with family this year, I would suggest you not stay home alone and try to maintain your usual holiday routine.  Instead, get creative!  This is your opportunity to visit a place or engage in a personal activity that has been put aside due to other responsibilities.  If possible, surround yourself with others who are near and dear.  Also, it is helpful to know that psychologically, it is not so much the “is what it is” that causes us the most stress, but how we perceive the “is what it is.”  Just think, this could be your holiday year of new adventures!
 
This Is Not the Time to Fix It; It is important as a general rule to resist the temptation to patch up long standing family problems during the emotionally charged holiday season.   Even peacemaking efforts are likely to be more successful and less stressful at a calmer time of the year. For you and your family personally, this is a unique holiday and period of healing.  Maintaining a stable emotional climate will help promote the healing. Therefore, avoid confrontation at this time.
 
Take a Moment to Relax; The end of the year is a natural time to reflect (no wallowing!) and to contemplate the future.  Soft music, something calming to look at, a soothing cup of tea, a warm bath, relaxation techniques (including breathing, stretching or visual imagery), or treating yourself to a massage all are healthy relaxation inducers.  When we relax, the result can be more meaningful reflection, with a heightened sense of well being and internal control. 
The overall objective is that you endure and even enjoy the holidays this year, and that you are left feeling good, come January, ready to take on the New Year and a new chapter in your life!

Written by Susan DiBenedetto, a licensed marital and family therapist with over 14 years of experience as a relationship specialist. She is conveniently located in the South Lake Business District of Pasadena.

Susan DiBenedetto MFT, License #39146, Careth Counseling, 305 So. Hudson Ave.,Pasadena, Ca. 91101, (626)584-5832

 

Continue reading "Coping With The Holidays And Divorce" »

Posted by The Law Offices of Donald P. Schweitzer at 5:29 PM | Permalink | Comments (0)

The process of a divorce, which can last months and in many cases years, can be a painful and exhausting experience which can leave one drained, and stressed at the same time.

Whether it's dealing with the numerous court appearances, difficult negotiations, or arranging custody with an unreasonable ex, taking time to clear your mind and relieve tension will be important for you to endure and succeed through the process.

Here are 5 ideas to calm your mind and recharge your soul.

1. Get Physical - Get off the couch and get your body moving. Doing an activity you enjoy is the key to keeping consistency. Try hiking, roller-skating, or riding a bike. If you're daring, and physically fit, try a physical activity you enjoyed as a teenager! Make sure to clear any physical activity with your doctor if you haven't been active in a while.
2. Take up a new hobby like painting, writing, or dancing. Signing up for a class can help you get started. Many community colleges offer no-credit classes at reasonable rates for a variety interest. Our local college offers classes like fencing, belly-dancing, 2 day film school, and poetry writing.
3. Join a Social or Sports group. Meeting new people is good for the soul and is a way to create a fresh start. Sporting groups such as softball or volleyball leagues can provide both a social and physical outlet. Check the internet or your church for groups that meet in your area.
4. Volunteer. Helping other people in need can give you some perspective on your own situation and will help you create positive energy in a way that is useful to you and the people you assist. www.Volunteermatch.org can direct you to organizations in your area that need volunteers.
5. Practice Yoga. The practice of yoga has a both a physical and mental benefit. You'll spend so much time focusing on your balance, breathing, and holding your pose, your mind won't have the chance to wander. There are many types of yoga classes, so try out a few before you commit to any one type to decide which you prefer. Some are more heavily focused on the meditative aspect such as kundalini, while others focus more on the physical form, such as hatha (my personal favorite). Also, different instructors offer differing levels of difficulty. Regular practice is important to really reaping the benefits.

Whatever you choose, consistency is the key to success. Don't try to overdo it either, just pick one thing and go all out. With your mind occupied on a fun activity, you won't have time to obsess over the minutia of your divorce. Written by Maria Schweitzer

Posted by The Law Offices of Donald P. Schweitzer at 5:26 PM | Permalink | Comments (0)

While I would by no means consider myself an expert in this area, I have unfortunately had a lot of experience dealing with a dysfunctional ex. Here are a few things to consider when working out custody issues with a difficult person.

1. Utilize visitation monitors. Having a third party diffuses hostility. Transfers are set up at public locations, and bad behavior is not tolerated.
2. Pick and choose your battles. Not every issue is worth going to court. Sometimes conceding in one area may give way to the other party conceding to another issue at the same time or down the road.
3. Don't allow the difficult person to engage you in an argument. Many people simply enjoy being difficult to keep up the fight, which feeds their dysfunctionality. Don't fall prey to their game.
4. Let an attorney do the talking for you. Allowing a professional to communicate on your behalf is best. They can present your points to the other party in a rational, concise and clear manner.
5. Seek therapy. You're going to need it if the other person continues to be difficult at every turn. Written by Maria Schweitzer

Posted by The Law Offices of Donald P. Schweitzer at 11:20 AM | Permalink | Comments (0)

The truth is most family law lawyers don't have a firm grasp on the tax consequences of divorce. One reason we went to law school instead of to medical school was because we didn't want to take the extra math classes. Instead, hoping to leverage our talents for writing, negotiating and public speaking we decided to enter into one of the most litigation intensive specialties within the law.

Still, these lawyers can provide effective representation for their clients. The reason is that most opposing attorneys are of the same mindset. This mindset is; "I am a family law attorney and if my client needs tax advice they should seek the advice of a tax professional." This is good advice, but seldom clients actually abide by it.

The tax consequences of a divorce can have a tremendous impact on the actual (as opposed to stated) value each side receives in a property division or support order. This leaves those lawyers with an understanding of tax law in a superior bargaining position. The following article will discuss a couple areas where family law and tax law intersect.

Support Orders

The bargaining chips here are the exemptions and filing status. Exemptions are a tax deduction so they are a benefit for the spouse receiving them. Two ground rules to keep in mind is that a custody split should never be 50/50, (because neither party will get the exemption) and the court can't order parties to take a particular filing status.

The advantages of taking certain tax positions can be analyzed by the DissoMaster software. Once the exact benefits to both sides are calculated, the negotiating begins. Generally, the tax deductions should be negotiated towards allocating them to the higher earning spouse. In that way both spouses collectively pay fewer taxes. Another result is that the higher wage earning spouse has a higher net income which will result in a larger order of support to the receiving spouse. All of this is, of course, is negotiable and can even be conditioned on certain events. For example, an agreement might have a provision that Wife sign the IRS form allocating the exemption to husband by January 15th each year, provided that she receive increased spousal support of a certain amount. These tax aspects can have a major impact on a client's future finances and should be a point of negotiation.

Property Division

This is an area where a basic understanding of tax law is crucial to obtaining a fair result for the client. Family law courts have two fundamental rules here:

1) The court does not take tax consequences into account when determining value
a. Example: If you are awarded the family residence and plan on selling it after the divorce, the court will not reduce the value it puts on the house just because you will have to pay taxes on the gain from the residence

2) Pursuant to IRC 1041, property transfers subject to a divorce are not taxed
a. Example: If you sell your interest in the family home to your spouse, you will not be taxed

California community property law states that each spouse shall get an equal share of the community property. This can be more complex than it seems. As an example, let's say that we are awarding stock to Wife with a fair market value of $200,000 and we are awarding husband cash from the community bank account equaling $200,000. While this might seem equal, it probably is not. The stocks are subject to taxes, either a loss or a gain. If Wife has to pay taxes on $100,000 of the stocks when she sells them, she has gotten the short end of the stick.

Calculating Loss or Gain

The loss or gain for tax purposes on any property is equal to the selling price minus the basis. Basis is the purchase price of the asset, plus improvements, plus fix up costs, minus depreciation and deferrals. Obviously it can get complicated trying to figure out all these factors, so attorneys need their clients to take an active role in providing this information.

The situation gets even more complex when dealing with pensions. Pensions have early withdrawal penalties and other serious tax implications for divisions.

Also, a loss or gain may be avoided entirely with some estate planning. For example; if the spouse was awarded the residence and lived in the residence until his or her death, then the basis for whomever he or she willed it to, would be the fair market value at the time of the transfer.

Solutions

How can you split everything equally when you are comparing apples and oranges? One way would be to take the King Solomon approach and divide everything in half, giving each side half an orange and half an apple. Sell the house and divide the proceeds. Each spouse takes half the stocks. If the pension or IRAs are unequal, roll some over from wife's IRA to husband's IRA or vice versa to make them of equal value.

However, the best course of action for clients is to hire an attorney that has a basic understanding of the tax implications of divorce. Clients can test prospective attorneys in this regard with a few preliminary questions during the initial consultation. An attorney with this basic understanding can save clients lots of headaches down the road. Written by Tony Fricano

Posted by The Law Offices of Donald P. Schweitzer at 2:49 PM | Permalink | Comments (0)

With all the celebrity divorces in the news lately and all dirty details of their private lives being dragged out on their front lawns for everyone to see, it leaves one wondering, is anyone entitled to any privacy when it comes to a divorce? Many people come to our office knowing that their divorce will be less than amicable. They know their soon-to-be-ex will most likely be dishing out the dirt (whether true or not) of their relationship and they worry that private information will be made public through court documents. They want to know if ALL of the divorce documents will be made public, and if there is any way they can get divorce records sealed.

In California, all divorce, and family law records and proceedings are considered public information. However, there are a number of provisions within the California Family Code that authorize a court to close proceedings or seal certain documents. Below are a listing and summary of applicable sections.

Section 1818 - Privacy of hearings; conferences; confidential nature of communications; closed files; inspection of papers This section in general allows all hearings, conferences and court documents to be sealed and they may only opened to inspection by written authority from a family court judge
Section 2024.6 - Authorizing a trial court to seal pleadings that contain financial information; This section deals with sealing documents which contain information regarding the parties' assets and liabilities including the location and identifying information about the assets and liabilities
Section 3025.5- Psychological evaluations of children; confidentiality; exceptions This section allows the court to seal documents relating to psychological evaluations of children, and recommendations regarding custody or visitation.
Section 3041.5- Controlled substances or alcohol abuse testing of parent seeking custody or visitation; grounds for testing; confidentiality of results; penalties for unauthorized disclosure This section provides for confidentiality of results of drug and/or alcohol testing of a parent seeking custody or visitation
Section 3177 - Confidentiality of proceedings This section relates to confidentiality of mediation proceedings
Section 3552 - State and federal income tax returns; submission to court; examination and discovery This section allows the court to seal tax returns if they are retained by the court due to their relevancy to the case.
Section 7613- Natural father of child conceived by artificial insemination; conditions This section allows the court to provide confidentiality to a man who donates his semen for use in artificial insemination of a woman who is not his wife.
Sections 7643 - Hearing or trial in closed court; papers and records; inspection This section allows the court to conduct a proceeding without the admittance of any person other than those necessary to the action or proceeding.
Section 7884- Admission to proceedings This section allows the court to deny the public access to a hearing in which termination of parental rights are being considered.
Section 9200- Inspection of documents; authorization; fee; deletion of identification of birth parents; certificate of adoption This section allows the court to provide confidentiality to the birth parents in the case of an adoption.

It is important to understand that having records sealed is not necessarily automatic, as there is a competing public right to have access to court records and proceedings. Nevertheless, it never hurts to ask! Written by Maria and Don Schweitzer

Posted by The Law Offices of Donald P. Schweitzer at 2:28 PM | Permalink | Comments (0)