PasadenaLawBlog

Keeping Your Divorce Costs Down

Tue, 09 Mar 2010 13:50:54 -0800

By Josh D. Simon

Let's face it: even during boom times and bull markets, divorce can be expensive. And over the last year, chances are that your savings and investments have taken a hit, your job is less secure, and you're doing what you can to scale back on the nice-to-have in favor of the need-to-have. Financially speaking, the last thing you need is to go through a costly divorce process. But with the right knowledge and attitude, you may not have to.

We asked Judge Lynn Toler to share some advice on how you can keep divorce costs under control. Here's what Judge Toler shared:

Divorce Magazine: Judge Toler, in terms of keeping costs as low as possible, what should divorcing people keep in mind when choosing a lawyer?

Judge Toler: Divorce lawyers often specialize in certain areas. People should first try to identify what they need from a lawyer, and then try to find one who matches that need. That being said, people still need to make sure that they are comfortable with that lawyer. Just because a lawyer specializes in an area doesn't mean he or she is the right fit.

A person should not find their lawyer intimidating or unresponsive. She or he should be able to explain the system in a way that the person understands. This is an obvious yet important point. While all lawyers can explain the system, the question is whether they can explain it to their client in the way they understand it.
Another thing to keep in mind is that it's good to find a lawyer who is responsive and confident, but one who isn't inflammatory, because that can prolong the divorce process and increase fees.

DM: As a Judge, what do you see as the most common mistakes that people make that can lead to excess costs?

Judge Toler: One common problem is that people often get information from the wrong source. You cannot get a good understanding of the system by talking to friends about their divorce, nor can you bring courtroom television into the regular courtroom. Those who have gone through the process have a hard time seeing things from both sides. They know whether they were satisfied with the result or not but may not understand how the judge got to that result. On television, some things occur for dramatic effect, and other things that are important aren't shown because they are not necessarily interesting. As a result, sometimes people have very unrealistic expectations of what the Judge is empowered to do, and what the Judge is going to do.

DM: What are some practical steps that divorcing people can take to keep costs low and under control?

Judge Toler: It starts with being prepared and "doing your homework." Knowing the law matters. Particularly in the United States where each state has its own divorce law. Often, I see individuals who are prepared for the requirements of State A, but are actually in State B. Not being prepared can lead to messy situations that extend the length of the process and, of course, the costs.
The other thing to keep in mind is that their lawyer -- or the judge for that matter -- is not a psychologist. Don't talk about emotional issues with a lawyer who is billing hundreds of dollars an hour. Lawyers won't be able to provide proper psychological support anyway since they are not trained to provide that service.
And the last thing I'd caution people from doing is trying to achieve what I call a Zen resolution to their divorce process. Often, people want the divorce process to provide them with a satisfying feeling of completion and wholeness. They've gone through an emotional crisis and they expect the legal system to somehow fix that. But they have to accept that law cannot address every aspect of their life. It can provide a resolution that is as fair and equitable as possible, but it can't provide people with the emotional healing they may want or expect. Those who fail to accept this fact can extend the divorce process, and of course that means spending more money.

Judge Lynn Toler, a graduate of Harvard and The University of Pennsylvania Law School, served as a municipal court judge for eight years. She presides over the courtroom on the nationally syndicated television show Divorce Court. She is also the author of My Mother's Rules: A Practical Guide to Becoming an Emotional Genius, and co-author of Put it in Writing: Creating Agreements Between Family and Friends.

A Family-Friendly Approach to Resolving Child Access

Tue, 09 Mar 2010 13:17:55 -0800

By: Mike A. Mastracci

When it comes to establishing each parent's individual roles and their levels of involvement, influence, and time spent with the children, the terms most discussed and debated are joint custody, sole custody, and visitation. Generally, physical child custody (whether sole, shared, or split) really comes down to the amount of time spent with one's children. Custody in the legal sense (that is, legal custody) governs who will make what types of decisions affecting the health, education, and general welfare of the children and under what circumstances such decisions will be made.

Parent and child un-friendly terms
Basically, without further definition or limitation, a parent with sole legal custody calls all the significant shots with or without the other parent's "consent" or input. The term custody is anything but child friendly and its usage often provokes anger and resentment between bickering parents. The word custody in its basic and primary sense suggests possession and control. Police take "custody" of criminals. Enough said. In moderate to highly contentious cases, the initial fight for control is often a key catalyst to a perpetual battle. The children's feelings and emotional well-being often get lost in all the posturing that accompanies one's desire to show the other parent who is in the driver's seat. This fighting over the children can resemble a game of capture-the-flag, where children are treated like possessions and rewards for success in battle. The counterpart to custody is visitation. What does the term visitation suggest? I "visit" clients in jail. Priests "visit" the dying in hospitals and nursing homes. Doesn't "visitation" suggest a short stay? Perhaps like a trip to a distant relative's house? Generally, we visit people or places that we don't see too often. When we are young we shouldn't be "visiting" our parents, we should be spending time with them. A parent's perception of terms like custody and visitation often fosters power-based and position-oriented discussions. This is usually not productive when the lives of our children are at stake.

Changing words for the better
In recognizing the power of suggestion and influence that can be derived from legal terms and principles in the area of family law, legal wizards have made significant efforts in the last decade or so to use more appropriate terms when discussing how to govern the lives of our children and the parent-child relationships that are affected by separation and divorce. These days, custody and visitation are more appropriately discussed in terms of child access and parental involvement. Legal custody is couched in terms of parental decision-making. Custody orders are referred to as residential schedules. Plaintiffs and Defendants are addressed as "Mother" or "Father"; and it is common for "the minor child of the parties" to be called by his or her name in legal documents. These are positive and long overdue steps in the right direction. Parents who are caught up in "child access disputes" should take special care to focus their respective and combined efforts in arriving at a fair and reasonable "parenting plan" and a "residential schedule" that works best for their children. An agreement should promote peace and stability between the parents as well. It is a lot easier to make positive progress and ensure meaningful child access and involvement when moms and dads use "parent-friendly" language in discussions about "custody" and "visitation."

No schedule = no stability
When there is an ongoing fight over child access, it is important to realize that the term stability, in the context of fighting over the division of parental time, is an oxymoron if there is no agreed-upon schedule. For example, in some cases one parent may somewhat disingenuously stress that access to the other parent must be limited for the sake of the stability of the child. However, when there is an ongoing power struggle to maximize or minimize parental time, the life of the child is anything but "stable." Children adapt. The world is busy. Life is hectic. The theories or justifications of years past, the "traditional visitation schedule" if you will, that subscribed to the notion that a child needs to only regard one parent's house as "home" and that he must sleep in the same bed every night is far less important than often proclaimed. These days, many experts suggest that a rigid "every other weekend and one or two nights a week for dinner" visitation schedule is a minimum type of arrangement. For separated or divorced parents, this is not necessarily the preferred norm.

A 50-50 schedule works
Having parented for over a decade on a court-ordered, equal-time-sharing schedule, I can attest to the fact that even a nearly 50-50 type schedule is far more workable than one might imagine. While it is not presumed that 50-50 is best for all children in all situations, it sure seems like a fair place to start. Furthermore, I have found that if the parents truly opt to act in accordance with the children's best interests and if each parent operates from such a position of theoretical and practical equality, it is far more likely that one parent will voluntarily, if, when, and as needed, make the sacrifice of diminished time if it is truly beneficial to the children's schedule. If dad, for example, has been treated as an equal parent and not a weekend visitor, there is a greater likelihood that he will go along with future modifications if the children's needs or routines suggest a modification to be appropriate. Once the power struggle for control and the claim for the overwhelming majority of time are abandoned, it simply will not be as important when compared to what may genuinely be in the children's best interests.

Court orders must be precise
If the division of time is not mutually satisfactory, or if it is not otherwise possible to arrange a basic schedule with a certain amount of predictability (along with situational flexibility, respect, and cooperation), a court ordered schedule will ultimately be forced upon you. In such situations, any written document or court order must leave nothing open to interpretation. Your life must then fit into the court-mandated schedule. However, this is far easier and far less damaging to the children than the constant tug of war that often will occur in parental skirmishes. Simply left to the interpretation of loosely worded court orders, acrimonious parents will usually fail to rearrange or modify scheduled activities and time frames without wreaking havoc upon their children's lives. Let me show you how to minimize the problems that you may encounter.

How to create a schedule
There are many ways to approach the development of a residential and access schedule. Rather than explain or justify any of them, let's start with a few basic principles.

There is no moral entitlement to anything more than equally dividing the time the children spend with each parent.
There is no legal entitlement to equal parenting time.
If you and the other parent were both completely committed to working out a schedule that maximizes each parent's time with the children, you could do it.
The children's best interests are usually served when measured within the reasonable and practical limits of life in general and balanced in particular with the parenting styles and attributes of each parent.
If each parent felt secure that they would truly have reasonable and liberal time and access with their children, without being unreasonably rebuffed, the counting of overnights would become less important and a more stable schedule (whatever the percentage of time comes to be) would be more likely to develop on its own.
The best schedule is one that minimizes conflict and maximizes the children's time with each parent.

Although maximizing parental time is very important, it should yield to the best interests of the children. And obviously, each parent's differing views about what is or is not in the children's best interests is one of the many contributors to child custody chaos. The desire for power and control are other major contributors, as you might expect.

This article was excerpted with permission from the book Stop Fighting Over the Kids by Mike A. Mastracci, published by St. Gabriel's Press c2008. Mike is a nationally recognized family law attorney with over 20 years of experience. He is also a Collaborative Divorce Attorney, Mediator and Child Access Coach. Mike founded Maryland's first Child Access Center and is a founding member and vice president of the Maryland Collaborative Law Association. You can order his book and read his blog at www.DivorceWithoutDishonor.com.

Surviving Divorce During Recession

Tue, 09 Mar 2010 12:53:50 -0800

By Fadi Baradihi, MBA, CFP®, ChFC, CLU, CDFA™

More often than not, the standard of living of both spouses drops in the first few years after divorce. Why? Because the same cumulative income and pool of assets now has to support two households instead of one. Unfortunately, most people don't prepare themselves financially or emotionally for that consequence. So what can you do to better prepare yourself for this inevitability? The answer is simple, but it's not easy to put into practice. Divorce is an inherently stressful process. To alleviate some of the stress, it's important to be proactive and in control. Here are the "Lucky Seven" things you can do to help prepare yourself for your post-divorce financial future.

Expect your income to drop
You should expect your income to drop after the divorce is final. Develop a budget based on needs -- not wants -- and keep in mind that your expenses need to stay within your post-divorce income. Consider all sources of income -- including spousal and child support, keeping in mind that they won't last forever -- as well as investment income. To develop a budget, use a detailed worksheet so you don't overlook any expenses. The best source for the expense information is your check register, if that's how you pay your bills. Remember that not all your expenses are paid monthly; some insurance premiums or tax bills might be payable quarterly or annually, so make sure to account for those as well. (To help get you started, fill out the "Monthly/Annual Expenses" worksheet, which is available online at www.institutedfa.com.) The last step in preparing a budget is to ask a reasonable and critical friend or family member to review your budget and challenge the expenses that seem unreasonable. You have to agree to keep an open mind and not to get mad if he/she challenges one of your items; remember that this person is trying to help you.

Can you afford to keep the house?
Here are the traditional options for the matrimonial home:

One spouse stays in the house (with the children, if any) and buys the other spouse's share by:
Cash-out refinance
Giving up another asset
Property settlement note
The spouses sell the house during or after the divorce process and split the proceeds.

In many cases, one spouse -- usually the wife -- wants to keep the house. Though this might be emotionally satisfying, it usually makes little or no financial sense. The equity in the house is illiquid, meaning it won't pay the bills.
In today's housing market, sometimes the matrimonial home can't be sold in a reasonable amount of time -- or for a reasonable amount of money. Today, many couples own houses that neither spouse can afford to maintain on his/her own, and that they cannot sell for what they owe on their mortgage. If the house can only be sold at a loss, divorcing couples have a few options, such as:

Renting the house to a third party -- or having one ex-spouse stay in the home and pay rent to the other until the market improves
"Birdnesting": the ex-spouses retain joint ownership of the home, they also rent a small apartment nearby, and each one alternates living in the house with the kids and in the apartment on his/her own
Agreeing to sell the home at a loss, share the loss, and move on with their lives
Short-sale, foreclosure, or bankruptcy.

If your house is "underwater" -- meaning that you owe more on their mortgage than your house is worth -- here are a few questions your should ask yourselves before putting the house up for sale:

Who is responsible for making up the difference between the sale price and the amount owed on the mortgage?
If you don't sell it, does the party not keeping the house get compensated?
Where does that money for options (1) and (2) come from?

If one spouse wants -- and can afford to keep the house, that spouse should pre-qualify for a mortgage before the divorce is final. Sometimes, a divorcing couple will decide that one spouse is going to keep the house. They take the other spouse's name off the deed -- and then the spouse who wants to keep the house gets turned down for a mortgage because he/she doesn't make enough money to qualify to refinance in his/her name alone. The spouse who is leaving the marital home ends up being on the hook for the debt, has no reciprocal asset, and can't qualify for his/her own mortgage because he/she doesn't make enough to support both mortgages.
To qualify for a mortgage, most conventional lenders use credit and debt to income ratios. Many use a credit score system to qualify applicants; a credit score is based on payment history, amount of credit owing, length of time credit established, number of recently opened credit accounts, and types of credit established. Lenders generally use two different ratios to analyze credit worthiness. Generally speaking, here's how they work (check with your local lender -- their guidelines may differ):

Housing Ratio = Total Monthly Housing Payments divided by Total Gross Income. This ratio must be 28% or less.
Total Debt Ratio = Total Housing + Other Debt divided by Total Gross Income. This ratio must be 36% or less.

In order to qualify for a conventional mortgage, an applicant must have an acceptable credit score and debt-to-income ratios.

Know what you have
Account statements have a way of disappearing when divorce proceedings start. When contemplating divorce, start by collecting statements for all your financial holdings and put together a list of your assets. When negotiating your divorce settlement, this step will prove helpful as a starting point. Here's an example of items you'll need to list on an Asset Worksheet; remember to note the value of each asset, and who owns what portion of it:

Retirement Assets
Liquid Assets
Real Estate
Personal Property
Cash Value Life Insurance
Business Interests.

As you work your way through the asset split negotiations, each asset can be moved to its appropriate column: "Husband" or "Wife". To figure out the percentage split, divide the total for each spouse by the grand total.

Consider the after-tax values of your assets
Accounts with pre-tax contributions and tax deferred growth come with a tax liability. Know what the after-tax equivalent value is before agreeing to take an asset. Having $100,000 in an IRA or RRSP is not the same as having a $100,000 in a checking account. The spouse with the retirement savings plan will end up with the account value minus the tax liability, and the other spouse will have the whole amount to spend.

Understand your financial needs
You need to make sure that the liquidity of the assets you're getting matches up to your needs. Let's suppose you want to keep the marital house -- which is worth $300,000 or 50% of the marital estate -- as your share of the settlement. Until you take a close look at your long-term financial forecast, you won't know whether you can afford to keep it. Suppose, for example, you've factored child-support payments into your income; after the payments end, how are you going to pay the mortgage? If you have to put the house up for sale in a few years, you may be solely responsible for paying all the real-estate costs and capital-gains taxes from the time you and your spouse acquired the property until you sold it -- which could be bad news indeed.

Don't overlook the value of a future pension
Any portion of a pension that was earned during the marriage should be included in the marital pool of assets. Pensions can be handled in three different ways:

The non-employee spouse can receive his or her share of a future benefit;
The pension can be present valued and offset;
A combination of (1) and (2).

Your particular situation should determine which option makes the most sense for you. For example, a 32-year-old wife with two young children and limited resources will have different needs than a 55-year-old wife with a career and her own pension. Make sure you're not the divorcee who has a great pension that will pay in 15 years and have no money to pay the bills today.

Hire a good team
Personal recommendations from a trusted friend or business associate are a great source for professionals. However, you need to do your homework before hiring anyone. Your team should consist of a divorce lawyer and a Certified Divorce Financial Analyst™ (CDFA™) at a minimum. If needed, other members or the team could include a mediator, an accountant, a business or pension valuator, or perhaps a child or individual therapist. Although you may think that the more professionals you hire the more costly your divorce will be, this is not necessarily true. In the long run, having the appropriate help will cut down on litigation costs, and it may save you from making costly blunders regarding your settlement.

Fadi Baradihi is the president and CEO of the Institute for Divorce Financial Analysts™ (IDFA™). For more information about how a Certified Divorce Financial Analyst™ (CDFA™) can help you with the financial aspects of your divorce, call (800) 875-1760, or visit their website at www.InstituteDFA.com.

The Secret to a Successful Divorce

Tue, 09 Mar 2010 12:13:55 -0800

By Judge Harvey Brownstone

After more than fourteen years of presiding in family court, one question has never ceased to amaze me: how can two parents who love their child allow a total stranger to make crucial decisions about their child's living arrangements, health, education, extracurricular activities, vacation time, and degree of contact with each parent? This question becomes even more mind-boggling when one considers that the stranger making the decisions is a judge, whose formal training is in the law, not in family relations, child development, social work, or psychology. Now add the fact that, because of heavy caseloads and crowded dockets, most judges have to make numerous child custody, access, matrimonial property, and support decisions every day on the basis of incomplete, subjective, and highly emotional written evidence (call-ed affidavits), with virtually no time to get to know the parents and no opportunity to meet the child whose life is being so profoundly affected. What person in their right mind would advocate for this method of resolving parental conflicts flowing from family breakdown? These are some of the questions that family court judges agonize over. Some say the answers are complicated and have much to do with social conditioning, economic class, levels of education, sophistication, familiarity with community resources, and even culture. I say the answers are simple.

Marriage and relationship breakdown is common
The institution of marriage has not been a great success in North America. The United States has the highest divorce rate in the western world, followed by the United Kingdom and Canada. Moreover, divorce statistics do not take into account couples who lived in common-law (unmarried) relationships and broke up. There is no reliable way to track the breakup rate for those couples, but you can be sure that it is at least as high as the divorce rate. There are also many thousands of couples who never lived together, but had a casual relationship resulting in the birth of a child. We do know that the vast majority of couples who break up manage to settle their affairs, including the custody and access arrangements for their children, without ever setting foot in a courtroom. The most common way to achieve this is by separation agreement or some other form of domestic contract. However, for the many couples unable to reach agreements, the family court becomes the place of first and last resort.

Family court reality
What we judges see in family court is beyond belief and certainly more dramatic and gut-wrenching than any television show or movie. If you don't believe me, visit any family courtroom in any town. As any family law lawyer, judge, or litigant will tell you, family court litigation is unpredictable, time-consuming, expensive, and highly stressful. The level of hostility and anger between parents involved in high-conflict custody disputes is often so toxic that it is almost palpable. I have dealt with thousands of couples whose bitterness toward each other colored every aspect of the proceedings and completely diverted the focus away from the children and their needs. Frequently, I get the impression that such parents are in a struggle over power and control or are on a quest for vengeance and self-validation that has nothing to do with their children. Sometimes I have had to involve a child protection agency and place the children in foster care to insulate them from the parental conflict. On more than one occasion I have been told by a parent that he/she would rather have his/her children living in foster care than with the other parent.

Litigation is bad for families
Everyone who works in family law, including judges, agrees on two things: family court is not good for families, and litigation is not good for children. And yet, family courts everywhere are jammed with couples asking judges to decide who gets custody of their children, how often the children will see the noncustodial parent, how the matrimonial property is to be divided, and how much spousal and/or child support must be paid. More surprisingly, an alarmingly high number of people appear in court without a lawyer and try to navigate the court process on their own, without any idea of their rights and obligations, the procedural requirements, the rules of evidence, or the types of orders a court can and cannot make. As you might expect, the results for these people are often extremely frustrating at best and disastrous at worst. Ask anyone who has ever appeared in family court as a litigant -- even if they had a lawyer -- and they are almost certain to describe their experience as unsatisfactory. Why? What can be done to help people so that their family court experience is more predictable, more positive and constructive, less time-consuming, and consequently more beneficial to themselves and their children? An even more important question is, what can be done to help people avoid going to court in the first place? That is what I am going to explain.

The success secret? Maturity
What is the difference between the couples who settle their disputes privately and those couples who require a judge to make the decisions? Do the parents in the first group dislike each other any less than those in the second group? Does the first group have access to resources unavailable to the second group? Do the two groups come from separate and distinct socio-economic or cultural groups? Not in my experience. In my opinion, the major difference between couples who resolve their disputes privately and those who turn to a judge has to do with one overriding characteristic: maturity. We who work in family court know that a person's maturity level has nothing to do with economic circumstances, education, culture, race, religion, or sexual orientation. We see rich people and poor people in our courtrooms, and we see people from all walks of life and from every racial, cultural, ethnic, and religious background, and from every lifestyle and orientation imaginable. Trust me: judges see it all. What we don't see very often in our clientele is maturity.

Maturity during relationship chaos
In the context of a relationship breakdown, being mature means loving your children more than you dislike your ex-partner. Being mature means caring enough about your children that you will force yourself to deal in a civilized way with someone you may hate. Being mature means thinking twice and measuring your words carefully before you shoot your mouth off when you're upset with your ex-partner, especially in front of the children. It means always insulating your children from parental conflict so they know your breakup has nothing to do with them. It means truly understanding and accepting that your children are entitled to love and be loved by both of their parents. It means giving your children emotional permission to express and receive that love, even though you and the other parent dislike each other. Being mature means being willing and able to reach compromises so that your children can have peace rather than be caught in a tug of war and conflict of loyalties. Being mature means recognizing that you can be an ex-partner but you are never going to be an ex-parent. True maturity requires parents to appreciate that children need both parents in their lives, working co-operatively to make the best possible decisions for their upbringing.

Children need mature parents
In my experience, mature people fully understand that even though they no longer love each other, they are the most qualified people to make important decisions for their children. After all, parents know their children best. Children deserve to have parents working together as a team in all matters affecting their welfare. Mature people do not give up their parental decision-making responsibilities to a total stranger, even if that stranger wears a robe and is called "Your Honor"

This article was excerpted with permission from the book Tug of War by Judge Harvey Brownstone, published by ECW Press c2009. Justice Brownstone has pre-sided in criminal court, and since 2001 has presided exclusively in family court at the North Toronto Family Court. In addition to his role in the court and his work as an author, Justice Brownstone frequently comments on family law and divorce issues in the Canadian national media.

How To Quiet Your Mind

Tue, 09 Mar 2010 11:16:18 -0800

By Claire Michaels Wheeler, MD, PH.D

Taming tension during your divorce will reduce your stress level and help you get through the process.
A quiet mind is a blessing you can grant yourself with practice. Can you remember a time when all you were doing was sitting and maybe looking? Hearing sounds, sensing your body, feeling your breath, but not creating a narrative about what was happening? Can you remember times when you were simply being not doing anything - not even meditating or "relaxing"? When you are still but highly observant, not bothered by assessments (good or bad, okay or not okay) but simply allowing everything around you to be what it is, you are in a meditative state.
I have found, in my years of leading mind - body groups, that this is a good place for beginners to start exploring the mindful state. I've had wonderful experiences of this in airports, riding in cars (not while I was driving!), while lying in the snow after falling down skiing, and at family gatherings, among other places. Time seems to stand still. I'm quiet on the inside, but acutely observant in a curious, gentle way of everything within and around me. Moments like those convinced me that I could use meditation to calm my sometimes manic mind.

How to relax your mind
Here is a good way to begin practicing mindfulness. Find a time when you can take ten minutes to yourself. You do not have to be in a darkened room with candles and incense in order to do this. You can be outside, in the lobby of a large office building or a hotel, on your front porch - even in your car, if it's not moving. All you need is to sit and be fairly confident that you won't be interrupted for a few minutes. Now, get comfortable in your seat. Adjust your clothing or glasses so you aren't distracted by anything tugging or compressing parts of your body. Uncross your legs, if you're comfortable with that. With both feet on the ground and your hands in your lap, check your whole body once more to make sure you can relax.
Now, start thinking about the fact that you're breathing. Don't make a big deal out of it. Just notice that Hey, guess what, there's air flowing in and out of me every few seconds. And the air is a bit cool as it flows into my nose and into my throat. I can feel my chest expanding as the air fills it. As I become more relaxed, I'll feel my belly expanding too. And just at the moment my lungs are full, everything stops for a second, and then I'm exhaling. The air, now warm, is flowing out of me, and my chest is falling. Just notice this for a minute or so. If your mind wanders away from the miracle that is your breath, just let go of whatever your mind has got its teeth into, and return your attention to the air flowing in and out, in and out. This is a good thing, this breath. It brings life in, and it carries used-up old stuff out. It keeps you fresh from moment to moment. Just keep going back to it, and your mind will gradually stop jumping around.
Now, start to pay attention to what is going on around you. This is a shift you need to make carefully, because you might find your mind flooded with words about what things look like and whether things are okay and what's she wearing? And who did her hair? If this happens, gently return your narrative mind to your breath. Say to yourself, "air in, air out" with the movement of your breath until you can be curiously attentive to the world around you without the running commentary. The goal is to appreciate, perceive, and allow all you see, hear, feel, smell, and sense with a quiet, nonjudgmental mind.

A better way of being in the world
Simple awareness is something humans are born with - babies and toddlers, use it all the time. They're just observing. As you practice this, you'll slowly develop the ability to shift into simple awareness a few times each day. It's a very different way of being in the world, one that short-circuits stress because there's no need for self-consciousness, for comparing yourself to other people, for complaining or ruminating over past or future problems.
Eventually, you'll want to make the connection between occasionally practicing simple awareness in the world and practicing it continually with respect to your own thoughts and perceptions. Think about this: You can observe your thoughts and actions the way you observe the world, without constant judgment, and simply allow yourself to be as you are. If you notice things you'd like to change, that's fine, but begins by simply allowing yourself to be, and by cultivating an attitude of friendly curiosity about what's going on in your mind and spirit. This type of self-acceptance is something you have to relearn, because it gets drummed out of you by the culture of materialism and competitiveness, but you can do it.

Meditation for maniacs
Are you a person who always has something to do? Life is demanding, pulling you in all different directions. There is always something to buy, to do, to see, to figure out, or to fix. The demands on your attention are never ending, starting with the alarm clock in the morning and ending with the late - night news and its dire warnings of the latest health threat or severe storm somewhere across the planet. You, like most people, probably feel like a maniac at least some of the time, rushing about in your head, your car, and your home to maintain some control over what seems like relentless chaos.
It's vital to your physical, emotional, and psychological health to break the spiral of intensity. You can learn to stop the madness for a few minutes and then dive right back in, refreshed and better able to cope.

A technique for inner calmness
One excellent way to do this is to use the three - breath technique. You can do this anytime, anywhere. All you have to do is recognize the signs of stress. As soon as you start to feel overwhelmed, stop for a minute. Say to yourself, I need a Break. Then take it. Take three breaths with your full attention on each one. Start by fully exhaling, and then calmly, carefully observe the next breath coming in. Feel it expanding inside you, and think to yourself, Thank You. Hold the breath for an instant, and then let it out slowly, thinking to yourself, Let go. Repeat this twice more. Don't cheat yourself. You have time to do this carefully, slowly, and mindfully. Just give yourself one minute to reconnect with the miracle of your breathing, and then get back to work. If you practice this everyday, you'll notice a shift in the way you perceive stress, from something that just keeps happening to you to something you can observe with detachment.

Mindful walking
I can't write about meditation, mindfulness, and flow without mentioning my favorite type of meditation: mindful walking. This is simply the act of taking a very slow walk during which you pay close attention to everything that happens. This is a nice thing to do in your neighborhood, in your yard, or in a natural area near where you work. Start by coordinating your breath with your steps. Take a step as you inhale, take a step as you exhale. Continue this for a while, noticing how each foot touches the ground, how your chest expands, whether or not it feels awkward to be walking so slowly. Gradually, turn your attention to your surroundings. It's amazing to discover how many details you've been missing.
If you like mindful walking, you might enjoy tai chi, qi gong, or yoga. Each of these practices involves intense awareness of the body in space, close attention to how you're moving and coordination with the breath. Each is different, and which you choose may just be a matter of taste. There are classes in each of these at community centers, colleges, and gyms all over the country.

This article was excerpted with permission from the book 10 Simple Solutions to Stress: How to Tame Tension and Start Enjoying Your Life by Claire Michaels Wheeler, MD, PH.D, published by New Harbinger Publications, Inc. c2007. Dr. Wheeler is on the faculty of the Center for Mind-Body Medicine of Portland, OR; and an instructor at Portland State University's School of Community Health.

10 Myths About Domestic Violence

Tue, 15 Dec 2009 10:50:27 -0800

Domestic violence, intimate partner victimizations, and other appalling criminal acts between spouses, boyfriends, and girlfriends stands as one of the most under-addressed and misunderstood issues in America and beyond. The prevailing myths surrounding these tragedies actively stand in the way of bringing the perpetrators to justice. As if that was not an already disconcerting side effect, many of them also perpetuate negative mindsets which park blame more on the victim than the victimizer. By shaming those who bear the brunt of the pain, men and women alike who find themselves on the receiving end of abuse do not seek out the help they need in order to live a safe existence away from their tormentors. Promoting an education and understanding of why domestic abuse happens and is allowed to continue stands as the only way to truly put a dent in the practice and prevent repeated assaults.

1. Only women are victims of domestic violence.

Between 2001 and 2005, 22% of all reports regarding nonfatal violence cited females over the age of 12 as the victims and intimate partners (former or current spouses, boyfriends, girlfriends, etc. as the perpetrators. In the same time frame, 4% of nonfatal violence reports listed males over the age of 12 as victims with the offenders also as intimate partners. Domestic violence does occur against men, though the majority of reported cases in the United State usually involve the victimization of women.

Some theories posit that men comprise a much higher rate than the statistics show, however. Women are more likely to seek help from the police and other authorities, which does not paint the clearest picture of the true domestic violence demographics. Because of prevailing perceptions that a man on the receiving end of abuse is somehow weak or lacking masculinity, males are far less likely to come forward about their experiences and file criminal charges against their assailants. The only way for society to gain an understanding of how far this issue spreads is to abolish its stigmatization of male victimhood. If more men stood up and took legal action against their assailants - male and female alike - it would inspire others towards opening up and giving America a glimpse into the real depths of the epidemic.

2. Domestic violence occurs only in lower-class, uneducated, or minority households.

Domestic violence does not discriminate against socioeconomic, educational, age, sexual preference, or racial lines any more than it does gender. It can happen to anyone, anywhere, at any time. Like the female-male discrepancy, many of the misconceptions regarding statistics do not provide an accurate picture of how widespread the issue truly reaches. For example, between 2001 and 2005 the average annual rate of nonfatal intimate partner victimizations was 4 per 1,000 individuals over the age of 12 for Caucasian women, 5 per 1,000 individuals over the age of 12 for African-American women, and 4.3 per 1,000 individuals over the age of 12 for Hispanic women. Negligible differences, really, but it drives home just how little race truly matters when it comes to domestic violence. However, Native American women suffered from nonfatal intimate partner victimization at a disconcerting rate of 11.1 per every 1,000 individuals over the age of 12. By contrast, Asian women found themselves the victims of nonfatal intimate partner attacks at a rate of 1.4 per every 1,000 individuals over the age of 12 - the exact same as African-American men.

These discrepancies obviously fail to take into account instances that go fully unreported, so it is entirely likely that the reality is far more evened out than the gaps appears. The same statement applies to socioeconomic brackets as well. Between 2001 and 2005, 12.7 out of 1000 females and 1.5 out of 1000 of males over the age of 12 who had been victimized in a nonfatal domestic dispute came from households with an average income of less than $7,500 a year. In the $7,500-$24,999 range, 6.2 out of 1000 females and 1.5 out of 1000 males were victimized. Households with an average income of $25,000 through $49,999 saw 5.2 out of 1,000 females over the age of 12 and 0.8 males over the age of 12 as victims of nonfatal intimate partner abuse. Finally, income brackets earning $50,000 or more victimized 2 out of 1,000 females over the age of 12 and .6 males over the age of 12. However, men and women in higher tax brackets are more likely to settle the issue privately through out-of-court settlements instead of pressing criminal charges. Those from lower income households tend to rely more on police intervention, making them more prominent in statistical data. So, much like the apparent gap between gender and race, it is entirely possible that these differences close when one begins to consider unreported and privately settled cases.

3. Instances of domestic violence are actually quite rare.

In May of 2002 alone, 16 of the largest urban counties in the United States reported a combined total of 3,750 cases of intimate partner violence. Trending data shows males and females alike reporting more incidents to the police, which signifies either an increase in domestic violence or more individuals learning that the best route towards escaping fear lay with coming forward and letting the criminal justice system intervene. Because so many victims remain too scared to confront the issue externally, it is impossible to gauge just how frequently it occurs. However, some estimates pose that 1 in every 4 women in the United States will become victimized by nonfatal intimate partner violence at some point in her life.

While not the most common crime, domestic violence still occurs at a disconcerting rate. Even if it were extremely rare, it would remain a travesty that needs addressing by law enforcement personnel and the individuals involved in the attack. In order to gain an idea as to the true number of victims, men and women alike who have found themselves the victims of domestic violence must confront their very real terror and seek assistance from the police or other legal authorities. For men and women alike, the most common reason for failing to report the incident was the belief that domestic violence is an entirely personal matter, with 21.8% of female and 39.2% of male victims adhering to this mindset. Unspecified reasons trap 22% of females and 17.1% of males involved in abuse. After that, a desire to protect the assailant weighed in as the second most common motivation, with 14.4% of women and 15.6% of men listing that as their primary reason for denying themselves proper legal intervention. Fear surprisingly takes up the last of the most common excuses for denial of police involvement, with 12.4% of females and 5.3% of males responding as such. Regardless of why victims refuse assistance from public safety officials, the fact that so many actively deny themselves respite and peace of mind ought to show that the problem may stand as more common than many people believe.

4. Domestic violence is usually a one-time-only occurrence.

In May of 2002, 46% of convictions for nonfatal intimate partner violence had a history of prior abuse towards the victim. While some instances of domestic violence only involve one incident, men and women alike who remain in abusive situations run a far higher risk of succumbing to repeated attacks than those electing to press charges after the first offense. In addition, they also put themselves in danger of escalation as well. Where the abusive partner may have once administered force with the hands, future assaults may involve weapons - 1 in every 4 instances of domestic violence involves a gun, knife, or blunt object - or even result in a fatality. Many abusers promise after the first incident that they will never hurt the victims again as a means of persuading them against pressing charges. Unfortunately, this manipulates the abused into directly placing themselves in harm's way once more rather than acting as a legitimate apology. In fact, these statements in many ways actively reinforce other myths.

5. Victims of domestic violence usually provoke the abuse.

A blame the victim philosophy surrounds many violent crimes, with fingers pointed towards men and women alike who find themselves on the receiving end of abuse questioned almost as intensively as their assailants. Many mistakenly believe that perhaps the victim said or did something to anger the abuser, furthering their shame and encouraging them to become mired in a dangerous situation rather than pursuing the help they truly need. This mindset also frequently reasserts itself following the initial attacks. Along with promising to learn a lesson, many abusers also lead their victims to believe that they themselves somehow deserved to be hurt. These sadly common statements serve to push the responsibility off their shoulders and onto those of the victim, making him or her less likely to call the police and welcome help. If the victim is led to believe that the abuse had been warranted, he or she is more likely to stay within their status quo of domination and intimidation rather than press charges and escape their queasily intimate hell.

As always, promoting and educating the populace on the machinations of domestic violence remains only way to combat these atrocities. Men and women alike need to understand that NOBODY deserves to be assaulted, except in obvious cases of self-defense. No words, no nonviolent or petty actions should lead to an act of violence, and all initial unprovoked attacks must be reported to the police or other authorities in order to prevent a repeat performance. Society needs to understand how the mind of an abusive individual operates - how it forces prey to believe that their assault is fully deserved and their tormenter needs protecting, how it forges empty promises to learn a lesson if the police do not get involved, and how it exploits and manipulates all involved parties to alleviate their responsibility. Only then can victims understand that they are the ones who should not feel ashamed by the situation and stand up to rightfully, legally defend themselves against unwarranted violence.

6. Substance abuse is the root cause of domestic disturbances.

Drugs and alcohol amplify aggression, and many men and women abuse their spouses, boyfriends, girlfriends, or other intimate partners while under the influence. However, not all individuals with a substance abuse habit engage in violent behavior, nor do all instances of domestic abuse involve drugs or alcohol. At its core, domestic violence involves thoughtlessly misdirected anger and rage - emotions not limited to those partaking in mind-altering substances. No matter if an abuser is sober, high, drunk, or some combination thereof at the time the assault took place, none of these states excuse their violent actions.

7. Domestic violence is an issue that only needs addressing between the people involved.

The fact that 21.8% of female victims and 39.2% of male victims fail to report their abuse at the hands of an intimate partner because they believe the matter is best handled privately only serves to solidify this potentially dangerous myth. Many who witness or overhear domestic violence disputes do not phone in reports to the police, believing the matter is best settled between the partners instead. While it is never polite to intrude on other people's private lives, all previously established protocol becomes entirely null and void once an individual's safety becomes compromised. If it sounds like an instance of domestic violence is taking place in a nearby house, apartment, mobile home, or other living space, abandon all inclinations towards noninterference and call the police. Every second that goes by without help from law enforcement runs the risk of morphing an instance of domestic abuse into a domestic homicide. Interpersonal problems need addressing between the people involved. But the minute it sours into violence, any and all witnesses - visual or auditory - must leave their preconceived notions behind and take the responsibility to notify the proper authorities. The call may mean the difference between life and death.

8. Improving a broken relationship can stop a batterer.

In believing that working on the relationship between abuser and victim makes for a solution to end abuse, the mindset that the abused remains somehow at fault becomes sadly reinforced. Nonfatal intimate violence is NOT a relationship issue. It is a personal issue that comes from within the assailant. No amount of couples counseling or heart to heart talks will alleviate the mindsets behind an attack - even if the abuser is more than eager to put forth the effort to prevent another incident. They need handling by the proper authorities if they harbor any sincere hope to reform, and punishment may involve jail time and intense psychotherapy to stave off repeat offenses.

9. Victims stay in violent situations because they secretly enjoy being beaten.

Another corollary to the blame the victim perspective labels repeat recipients of domestic abuse as masochists who stay in violent situations because they enjoy the pain. Truthfully, most victims do not leave their abusers due to manipulation. Fearing legal repercussions, assailants oftentimes lead their prey to believe themselves entirely worthy of a beating. Rather than defending themselves, the victims submit to fully undeserved torment out of abjectly crippling fear. Many of them feel too scared of a second attack if they reach out for help. They do not remain in a quagmire of abuse due to latent pleasure from beatings. They stay trapped because of the anxiety that legal retaliation may trigger another nightmare. In many ways, they adhere to the belief that it is better to face down the pain of the known rather than the pain of the unknown.

10. Domestic violence is a side effect of a patriarchal society or filial structure.

Many perceive domestic abuse as a negative aspect of living within a patriarchal society or a family where men dominate over the women. Studies have shown that surrounding cultural climates and social structures have little effect on instances of domestic violence in the United States. As men are just as susceptible to abuse as women - in spite of being less likely to report incidents to the police - this negates the belief that male dominance in society contributes to more instances of domestic violence. The inner turmoil that fuels abuse allows it to occur, and victim manipulation and noninvasive peers and neighbors allow it to continue. It has little, if anything, to do with systemic patriarchal constructs and everything to do with severe emotional issues on the part of the abuser.

Because so many individuals adhere to the myths regarding domestic violence as the steadfast truth, thousands of men and women every year become trapped inside dangerous - even deadly - situations. They end up shamed and manipulated into staying with and occasionally defending those who hurt and threaten their happiness and safety. Promoting an understanding of how these potentially fatal relationships operate helps to save lives and remove violent individuals from mainstream society and into the proper detention centers.

Article by Suzane Smith @ The X-Ray Vision-aries Blog

original article link http://www.x-raytechnicianschools.org/10-myths-about-domestic-violence/

Tiger Wood Keeps His Domestic Disturbance Under Wraps

Wed, 02 Dec 2009 14:27:17 -0800

So far, Tiger Woods and his legal advisers have done a pretty good job of warding off the police and keeping him and his wife out of trouble.

At this point the only thing the police have against Tiger and his wife is that Tiger crashed his 2009 Cadillac into a fire hydrant and a tree in his neighbor's yard after he pulled out of his driveway at 2:25 a.m. Alcohol apparently was not involved in Tiger's collision.

The police officers involved in the case reported that upon their arrival they found the 33 year-old PGA star lying in the street with his wife hovering over him. Tiger's wife was described as being "frantic and upset". She told the officers she was in the family's mansion when she heard the accident and came out and broke the back window with a golf club.

Two troopers attempted to interview Mr. Woods at his home after the incident, but his wife turned them away claiming that Tiger was sleeping. When the troopers came back the next day Tiger was not available. Tiger then canceled subsequent appointments that his attorneys made with the police who were attempting to obtain his statement.

From the evidence released concerning the incident it appears that a domestic disturbance between Tiger and his wife ensued in their early morning hours. It is also possible, based on the evidence, that one of the two parties committed domestic violence. After all, Tiger admitted to having an extramarital affair with a woman in California, and the evidence shows that he was desperately trying to cover his tracks about the affair at the same time that this incident occurred. Thus, it is not beyond the realm of all possibilities that his collision with the tree was caused by the dispute.

Some critics complain that Tiger was wrong for not speaking to the police about the incident. I'm not an expert on protecting people's images or their trade names, but I do know a little bit about protecting people from getting into trouble with the police. In this regard Tiger and his legal representatives should be commended. The police are not likely to be able to make charges stick against Tiger or his wife, so long as neither one of them agrees to cooperate.

This case strongly demonstrates the fact that the Fifth Amendment right against self incrimination is alive and well. Unfortunately, most people do not know that they have a right to refuse to speak to the police at any time. Take a page from Tiger's book. In the unfortunate event that the police come knocking on your door to speak to you about a domestic squabble, exercise your rights and ask to speak to a lawyer.

The police and the prosecutors are making extraordinary efforts to dig up evidence to determine whether or not Tiger or his wife committed crimes, which is typical these days in cases involving domestic disturbances. In my view this incident was not the crime of the century and I'm sure that Tiger and his wife will have no problem paying full restitution for the damages that he caused to the tree and the fire hydrant. The only injuries that appear to have taken place are the injuries that Tiger caused to himself. It looks like it was a purely private matter between Tiger and his wife, given that neither one of them are asking the police or prosecutors to file charges.

I cannot help but wonder why the police would state that there are charges pending or that they were attempting to obtain a search warrant of the mansion. In order for the police to obtain a search warrant for Tiger's mansion, they must show a court that there is probable cause to believe that there is evidence of a crime within the mansion. I doubt that the prosecutors can get a search warrant issued from the evidence thus far, as this incident involved a car crash. What evidence do they hope to find in the mansion?

The police and prosecutors ought to exercise discretion in this case and lighten up on Tiger. Tiger already has severe problems with respect to protecting his image, not to mention keeping his family intact. Who knows, this case may end up in a divorce, in which case we will have plenty to write about.

Anyone care to guess if there was a premarital agreement or how much Tiger would have to pay in child support?

Written By: Donald P. Schweitzer

Three Tips for Sharing Custody This Holiday Season

Tue, 24 Nov 2009 18:07:54 -0800

It's that time of year again. It's a time for food, family, and of course, holiday shopping. However, it's also that time of year where many parents disagree about who "gets" the children during the holidays.

Every year during the merry months of November and December, you'll see attorneys frantically running into family court with ex parte motions (emergency motions) asking Judicial Officers to intervene and decide which parent gets to spend a holiday with their child. This is truly one of the most unpleasant events in any family law Judge or attorneys' career. So, if you are a parent who is contemplating this course of action, I'd strongly suggest you keep reading.

Before you instruct your attorney to run into court, know that most courts will refuse to consider ex parte motions brought forward simply because parents are unable to agree on something. Just recently, I was forewarned by a Judicial Officer that she was not going to make any exceptions for holiday visitation schedules. This is because Courts want to discourage litigants from filing these motions and encourage co-parenting.

Ex parte motions on custody matters are statutorily permitted only where there is an emergency, such as risk of imminent harm or child abduction. While emotionally difficult, not spending Christmas morning with your child to open gifts is not an emergency. As you can imagine, this legality is quite difficult to communicate to a parent who wants nothing more in World than to share the holidays with their child. However, you should know that courts disfavor such motions because they deal with such highly personal issues. How can a court make both parties happy? In the rare case that the court intervenes, both parties often walk away feeling unhappy with the decision; a lose-lose scenario.

Before you file your ex parte motion, I suggest that you take some time to consider my three tips below:

1. Whose interest are you really serving? Are you looking out for yourself or for your child? We know that you want to be with your child 24/7, but the reality is that children love and need both sides of their family. A shared holiday schedule is essential in making your child feel secure and loved.

2. Put on your 'good parenting' hat. The best way to demonstrate to the court that you are mature and responsible is to share custody. This will require concessions on both sides so that your child's needs and interests are placed before your own.

3. Have a little empathy. Place the emotional turmoil aside and try to empathize with the other parent. As much as it hurts to even fathom being without your child on a holiday, understand that the other parent is probably having the exact same feelings.

My message to you is that the best gift you can give your child is to cooperate and share the holidays with the other parent. A little peace during this holiday season will go a long way in maintaining stability and making your child feel loved!

Written by: Donald P. Schweitzer

The Recurring Gift That Pays Child Support

Sun, 15 Nov 2009 20:32:23 -0800

The ability to take down a deadbeat dad seems to get easier with every appellate court decision in California. In Marriage of Alter (2009) 171 Cal.App.4th 718, the court decimated the type of dead beat dad that many of us previously believed were bullet proof.

The type of deadbeat I'm talking about is the father who sits at the pool all day working on his tan, while his children live with mom in a one bedroom apartment on the wrong side of the tracks. The type of guy who drives a fancy car, takes nice trips, and lives in a large house, while paying little to no child support, because the only money he receives is a recurring gift from his parents, which was once considered to be non income for the purpose of calculating child support.

In Alter, the man of the hour was named Jack. Jack was divorced to a woman named Cindie. Jack and Cindie had two children named Samantha and Alexandra. A couple of years after their divorce, Jack and Cindie found themselves back in court, dealing with a motion that Jack filed for modification of his child support obligation. During the hearing, Cindie argued that Jack's claim to have little to no income was bogus, since she knew that Jack's mother had given him a regular stipend for years.

To the trial judge, Jack admitted that his mother covered many of his expenses. She had been regularly giving him $3,000 per month for many years. For a time after the divorce, Jack lived with her, rent free. In 2005, she purchased a house and Jack moved into it. She then increased Jack's monthly stipend to $6,000, $3,000 of which Jack used to pay the rent his mother charged. Jack's mother also paid for Jack's daughter's schools, tutoring, and summer camp. Jack used his mother's credit card to buy clothes and other things for the girls. His mother paid for transportation and lodging for Jack to visit his daughters in Georgia several times a year. She gave him money from time to time when he needed it. She paid his attorney's fees in California and Georgia. And, although Jack had declined the offer, his mother had also volunteered to pay the difference between the court-ordered support and that which Jack was able to pay himself.

On appeal Jack tried to convince the court that gifts should never be considered income for the purpose of calculating child support, since the federal government does not consider gifts as income for income tax purposes. Unfortunately for Jack, the court was not persuaded with his argument. When ruling in favor of Cindie the court stated:
"We conclude that nothing in the law prohibits considering gifts to be income for purposes of child support so long as the gifts bear a reasonable relationship to the traditional concept of income as a recurrent monetary benefit... Jack has been receiving regular cash payments from his mother for over a decade. The periodic and regular nature of the payments means that the money is available to Jack for the support of his children."

Obviously this decision should be considered a big victory for a lot of custodial parents. However, a couple of cautionary notes needs to be made. First, the Alter court made it clear that not all gifts will be considered income for the purpose of calculating child support, especially if the gift is not recurring. Furthermore, the question of whether gifts should be considered income for purposes of the child support calculation is one that is left to the discretion of the trial court.

Finally, it is always possible that mommy and daddy will quit giving money to the deadbeat dad, in which case he can file a request for a downward modification of child support. Written by: Donald P. Schweitzer

Donald Schweitzer Elected to PBA Board

Sun, 15 Nov 2009 10:05:33 -0800

The Pasadena Bar Association has announced the election of Donald P. Schweitzer as a board member for their organization. Mr. Schweitzer will begin serving on the board January 1, 2010.

Mr. Schweitzer will attend all of the board meetings, participate in the PBA's planning and events, and will vote on various propositions that are brought up at the Pasadena Bar Association meetings.

Mr. Schweitzer received this position by attending numerous Pasadena Bar Association events, helping out the board members, and his identifying himself as having a sincere desire to be an active participant.

According to Mr. Schweitzer, "At this stage of my career, I realize more than ever the contributions the local bar association makes to the community, to our legal systems, and to the individual private attorney, and I believe the work we do on behalf of the association is very important. I also enjoy the camaraderie I have with the other attorneys who serve on the board."

In addition to serving as the Secretary of the PBA, Mr. Schweitzer also holds the position of Chairman of the PBA family law section.

"I would like the Pasadena Bar Association to continue to create benefits to the private attorneys in our local community. I would also like to work with the Pasadena Bar Association in bridging the gap with our local courts."

Mr. Schweitzer is a Certified Family Law Specialist with over 15 years of trial experience. Prior to going into private practice, Mr. Schweitzer served as a Deputy District Attorney in Orange County for 8 years. Mr. Schweitzer worked in numerous units within the District Attorney's office including, Writs and Appeals, Family Support, Municipal Court, Felony Panel, Gang Target, Felony Filing, and the Sexual Assault Unit. He is a member of the American Bar Association, the California State Bar, Los Angeles Bar Association, and the Pasadena Bar Association.

Posted by: Law Offices of Donald P. Schweitzer

Honoring Real Heroes Who Help Domestic Violence Victims

Sat, 31 Oct 2009 16:17:26 -0800

The politicalization of domestic violence legislation can make anyone feel a little jaded about such a serious and pervasive issue. Fortunately, there are people who have not forgotten that domestic violence is still a societal ill, and who have dedicated their lives to actually helping victims of domestic violence. These individuals have created innovative methods of breaking the cycle of violence.

In recognizing these heroes, I'm not referring to those in Sacramento who churn out new laws like funnel cakes at the state fair. Most of these laws, passed by self-serving politicians, do nothing for victims of domestic violence, as they are redundant and often unenforceable. Nevertheless, these laws continue to pass because no one has the courage to call them what they really are; cheap badges of honor for politicians whose campaign M.O. is to be "tough on crime."

As a family law attorney, however, I have not lost sight of the fact that domestic violence still needs to be fought, as it is committed every minute of every day in this country. I also recognize that domestic violence victims need, more than anything, people who will protect them and assist them in getting out of dysfunctional relationships.

As Chairman of the Pasadena Bar Association, Family Law Section, I wanted to honor "Domestic Violence Awareness" month and recognize the real heroes in the fight against domestic violence. The goal was also to educate my section members of all of the great things that are being done on behalf of victims.

I invited guest speakers to our section meeting who are actually involved in the day-to-day effort to help domestic violence victims. The first speaker we were fortunate to hear from was Sara Rondon. Sara is the coordinator of the Domestic Violence Project, which is located on the first floor of the Pasadena Courthouse. The Domestic Violence Project is a program created and sponsored by the Los Angeles County Bar Association. Sara and her small staff are in the trenches every day assisting victims in preparing the requisite paperwork to obtain restraining orders. As you can imagine, they see the worst types of cases. Most victims do not understand the legal process and cannot afford legal representation. Thus, without the assistance of Sara and the Domestic Violence Project, these victims would be unable to proceed effectively through the legal process.

Although Sara's staff is quite small, there are a number of paralegals and attorneys who volunteer their time to work with the victims (during the past year one of the paralegals from my office served as a volunteer, which is how I came to meet Sara). An interesting point that Sara made during her presentation, is that studies show that the issuance of restraining orders significantly curtails repeat offenses. It would seem, consequently, that Sara's work is having a meaningful impact against domestic violence.

The second speaker at our section meeting was Trish Steele, who is the founder of "Safe Passage," a non-profit organization dedicated to assisting domestic violence victims. Trish's approach to rescuing domestic violence victims is very innovative, and it goes further than providing temporary shelter. Safe Passages has found a method to get victims back on their feet by giving them a complete "makeover." For example, Trish has recruited numerous doctors and dentists to volunteer their time to perform cosmetic surgery on the many victims who have suffered injuries to the facial area. With a little help from Trish's volunteers, these individuals are able to re-boost their confidence so that they can go out and market themselves for work.

As Trish points out, victims of domestic violence are frequently caught in a cycle of violence because they are financially unable to "get out" of their current circumstances. For this reason, Trish's approach addresses the physical, emotional as well as the financial aspects of rebuilding one's life after leaving an abusive relationship. Trish is constantly looking for professionals willing to volunteer their time and donate resources to victims of domestic violence.

As you can see, eliminating domestic violence requires the work of special people, who are the real heroes in the fight against domestic violence.

Written by: Donald P. Schweitzer

Lowering Child Support By Investing In A New Spouse

Thu, 22 Oct 2009 17:49:47 -0800

I'm about to tell you something that will make no sense: getting remarried after a divorce may result in a situation where you can lower your child support obligation after the court takes into consideration your new spouse's income. Before you call me crazy, please give me a chance to explain . . . .

When a Family court calculates child support in California it has broad discretion in detemining what constitutes a parties' "income." Trial courts have been upheld in imputing income to parties in a variety of situations. For example, trial courts have been upheld after imputing income to a party based on a reasonable return on his or her investments. However, there is one type of income that the California Family Code expressly prohibits judges from considering, and that is a parties' "new mate income," except in very limited circumstances.

Family Code Section 4057.5(a) provides:

The income of the obligor parent's subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligor or by the obligor's subsequent spouse or nonmarital partner. (Emphasis added.)

In a recent published opinion, entitled, "In Re Marriage of Knowles," the Court of Appeal added to this rule, by holding that the trial court violated the Family Code when it considered half of the community income attributable to the subsequent spouse when it modified the father's child support obligation.

In this case, Elizabeth and Thomas Knowles divorced and in 1995 Thomas was ordered to pay a paltry $506 per month in support of their son - Carter. On January 6, 2005, Elizabeth filed a motion to increase Thomas' child support obligation. During the proceedings, Elizabeth asked the Court to consider as income, certain capital gains that Thomas and his new spouse (Sara) enjoyed as a result of investments they made after their marriage. The capital gains that Thomas and Sara enjoyed were more than 3.1 million. Much of these gains were invested in a brokerage account and a real estate development.

Although the brokerage account and the real estate development investments were community property of Thomas and Sara, the trial court considered the full amount in determining the reasonable return on those investments. In other words, the trial court did not reduce the value of the investments by 50 percent as a result of Sara's half ownership.

In reversing the trial court, the Court of Appeal recited the basic concept of community property law: "Income generated from community property is community income, and an equal, undivided interest in that income is attributable to each spouse." Thus, according the Court of Appeal, the trial court erred by including Sara's half of the community income when calculating Thomas' child support obligation.

In light of this decision, we can see how an obligor of child support may benefit when he invests his money with his new spouse. There are also situations where the inclusion of a new spouse's income in the calucation of child support reduces the obligation. This happens when the parties file jointly and the tax consequences reduces the child support obligor's net disposable income available for support.

However, I would not suggest you run off to get re-married based on this article. There are, after all, some things that money cannot buy, like peace of mind and a stable relationship.

Written by: Donald P. Schweitzer

In the News: Akon to Baby Mama, "Can't Find Me, Try MySpace!"

Mon, 19 Oct 2009 10:54:18 -0800

The mother of Akon's child has been trying (and failing) to serve him with legal papers over child support -- so now she's gonna call him out in the L.A. Times.

The lawyer, [Patrick Baghdaserians] for [name omitted] tells us they will be taking out an ad in Monday's L.A. Times to serve Akon publicly. If he doesn't respond, they will pursue a default judgment.

But we caught up with Akon in NY -- and it's all news to him. As he told our guy, "You got a hold of me and you ain't even trying. I'm a celebrity. My schedule is on the internet. You can go on my MySpace, it'll tell you where I'm at!"

Source: TMZ

Children Witnesses in Domestic Violence Cases

Mon, 12 Oct 2009 14:16:53 -0800

Last week I concluded a seven day jury trial involving allegations that my client committed domestic violence against his ex wife. Fortunately for my client, it took the jury less than an hour to find my client not guilty.

Prior to going to trial I attempted to convince the Deputy District Attorney that he should not proceed with the case, since the only corroborating evidence he had was the supposed statement that the parties' seven year old son gave to the police. The ex wife had taken their seven year old son to the police station about two hours after the incident to make a police report.

When I explained to the prosecutor that the child was an unreliable witness due to the child's age, the prior inconsistent statements he made to our investigator, and because of the fact he was not in a position to have witnessed the incident, the prosecutor dryly replied that he was still going forward with the case because he had interviewed the child and believed his story.

Small children do not make very good witnesses for a variety of factors, and they should be called to the stand only when it is absolutely necessary. In the seventeen years that I have practiced law, I have only seen small children called to the stand on a couple of occasions.

Not only do small children generally make poor witnesses, but the emotional impact of calling a child to the stand has to be great. In this case, the little boy was called to testify against his father in a rather minor incident. I can only imagine the strain this experience will have on their relationship and the feelings of guilt the poor child will feel for the rest of his life for taking the stand.

Once again I am reminded that exercising one's discretion not to proceed with a "domestic violence" case has to be allowed within our system of justice. Written by: Donald P. Schweitzer

Agreements To Pay Spousal Support - Watch Out For The Pit Falls!!!

Mon, 14 Sep 2009 15:05:12 -0800

If you are going through a divorce or a legal separation and find yourself negotiating spousal support, be especially careful before you accept the terms of the agreement. Modifying a spousal support obligation is not as easy as you may think. It's not as if you can simply walk into a court and ask the judge to modify the order based on the fact that your ex-spouse recently acquired access to funds. Unfortunately, the process is a little more complicated than that.

The test for modifying a spousal support obligation in California has always been whether or not there has been a "material change of circumstances." A material change of circumstances means a reduction or increase in the supporting spouse's ability to pay and /or an increase or decrease in the supported spouse's needs. Thus, it would seem obvious that grounds for a modification of support would exist anytime a party acquires access to retirement funds or if his or her assets significantly appreciate in value. Think again.

In a recently published opinion entitled "In Re Marriage of Dietz," the Appellate Court decided that the trial court erred by concluding that the accessibility and increased value of a retirement account, previously awarded to the wife in a stipulated judgment, constituted a material change of circumstances justifying a decrease in the husband's monthly spousal support obligation.

On the surface, this opinion seems to contradict the holding in In re Marriage of Schmir. In Schmir, the Appellate Court affirmed the trial court ruling that there were material changes of circumstances to justify modification of support after Ms. Schmir became eligible to withdraw funds from her retirement account without penalty. However, the Dietz case was decided after the terms of the parties' marital settlement agreement were scrutinized by the Appellate Court, which held that the trial court was required to give effect to the husband's and wife's intent, as expressed in the agreement.

The stipulated judgment that Mr. and Mrs. Dietz signed expressly acknowledged their expectations that the value of the subject retirement account might increase. The agreement stipulated that each party would receive one-half of the community property interest in the retirement accounts, including "any and all contributions made up to the date of separation, and any increase or decrease in value of such assets related to market conditions."

Based on this decision, it would seem prudent for anyone entering into a marital settlement agreement, containing a spousal support order, to insist that the judgment include a detailed list of future events that will constitute a material change of circumstances. For example, if the parties anticipate a penalty-free withdrawal from retirement funds at a future date, it should be specifically indicated in the agreement that the occurrence of such event will constitute a material change of circumstances.

The Dietz decision also serves to remind us that drafting a spousal support agreement can be a highly technical exercise that requires knowledge of all possible pitfalls. Through the years, the courts have created special rules pertaining to the amount, duration, modification, and tax consequences of spousal support orders. When negotiating spousal support, pay particular attention to the proposed terms of the agreement. As Mr. Dietz learned, the failure to do so can have severe long term consequences.

Written by: Donald P. Schweitzer