LA FAMILY LAW

Factoids about the Kardashian Marriage from the Guardian newspaper

2011-11-02T14:24:00.000-07:00

• How many months K & K knew each other before getting engaged: 6
• How many months they were engaged: 3
• How much Kim made from the wedding thanks to magazine deals, etc:$17.9m
• How much she therefore made per hour of the 72-day marrige, as calculated by New York Times' investigative journalist Don van Natta Jr:$10,358.80
• The current minimum wage in California: $8 an hour
• How many hours the E! special of their wedding lasted: 4
• How many months E! spent promoting the wedding, daily: 3
• How many months they were actually married: 2½
• Kim & K's wedding cost: $10m
• Donald Trump's last wedding: $1m
• Price tag on one vase on K & K's wedding list: $7,500
• How much the wedding cake cost: $6,000
• How many Vera Wang wedding dresses Kim had for the wedding: 3
• How much each wedding dress cost: $20,000
• How much her mother Kris spent on a face lift for the wedding: $50,000

Divorce

ONION: Study Finds Every Style Of Parenting Produces Disturbed, Miserable Adults

2011-11-01T14:22:00.000-07:00

Article from the satirical Onion:
SANTA ROSA, CA—A study released by the California Parenting Institute Tuesday shows that every style of parenting inevitably causes children to grow into profoundly unhappy adults. "Our research suggests that while overprotective parenting ultimately produces adults unprepared to contend with life's difficulties, highly permissive parenting leads to feelings of bitterness and isolation throughout adulthood," lead researcher Daniel Porter said. "And, interestingly, we found that anything between those two extremes is equally damaging, always resulting in an adult who suffers from some debilitating combination of unpreparedness and isolation. Despite great variance in parenting styles across populations, the end product is always the same: a profoundly flawed and joyless human being." The study did find, however, that adults often achieve temporary happiness when they have children of their own to perpetuate the cycle of human misery

2011-10-17T13:54:00.000-07:00

The Los Angeles Times reports on a whistle-blower who tells how a private detective arranged for men to be arrested for drunk driving at the behest of their ex-wives and their lawyers — and that entrapment using decoys was only one of many alleged misdeeds. Read full article

David Dutcher says his 2008 arrest on suspicion of drunk driving was a setup orchestrated by a private detective who is the subject of a state and federal criminal investigation. (Michael Macor, The Chronicle / October 17, 2011)

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Los Angeles Times - MCourt Divorce

2011-10-17T13:46:00.000-07:00

Frank and Jamie McCourt confirmed in a joint statement Monday that they have settled their divorce, as The Times reported earlier in the day. The McCourts disclosed no terms other than that Jamie McCourt would withdraw her Bankruptcy Court opposition to the Dodgers' proposed sale of television rights and would now support that sale. Major League Baseball and Fox Sports remain opposed. Read article

Are community property laws taken into account in determining adjusted gross income (or modified adjusted gross income) for purposes of the dependent

2011-10-17T10:03:00.000-07:00

According to a recent IRS publication:Yes. Community property laws must be taken into account in determining the adjusted gross income (or modified adjusted gross income) amounts in section 21(a) (dependent care credit), section 24(b) (child tax credit), section 32(a) (earned income credit), and section 36A(b) (making work pay credit).

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Are registered domestic partners who reported income without regard to community property laws required to amend their pre-2010 returns to each report

2011-10-08T10:05:00.000-07:00

According to a recent IRS publication:Registered domestic partners who reported community income without regard to community property laws for a taxable year beginning before 2010 are generally not required to amend those returns to report half of the community income. The following rules apply for taxable years prior to 2010:

Registered domestic partners in California received full community property rights in 2007. Thus, in California, registered domestic partners may, but are not required to, amend their returns for taxable years beginning in 2007, 2008, and 2009 to report half of the community income of the partners.

In Nevada, the state’s community property laws apply to registered domestic partners as of October 1, 2009. Thus, registered domestic partners may, but are not required to, amend their returns for a taxable year beginning in 2009 to report half of the community income of the partners for the period beginning October 1, 2009 and ending on the last day of the partner’s 2009 taxable year.

In Washington, the state’s community property laws apply to registered domestic partners as of June 12, 2008. Thus, registered domestic partners may, but are not required to, amend their returns for a taxable year beginning in 2009 to report half of the community income of the partners. For 2008, the partners may, but are not required to, amend their returns to report half of the community income of the partners for the period beginning June 12, 2008 and ending on the last day of the partner’s 2008 taxable year.

In all cases, if one of the partners amends his or her return to report half of the community income, the other partner must report the other half.

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If a registered domestic partner adopts the child of his or her partner as a second parent or co-parent, may the adopting parent claim the adoption cr

2011-10-08T10:04:00.001-07:00

According to a recent IRS publication:The adopting parent may claim an adoption credit to the extent provided under § 36C. Section 36C(d)(1)(C) does not allow taxpayers to claim an adoption credit for expenses incurred in adopting the child of the taxpayer’s spouse. However, the limitation in section 36C(d)(1)(C) does not apply to adoptions by registered domestic partners because registered domestic partners are not spouses as defined by federal law.

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If two registered domestic partners adopt a child together, can one or both of the partners qualify for the adoption credit?

2011-10-08T10:04:00.000-07:00

According to a recent IRS publication:Each registered domestic partner may qualify to claim the adoption credit on the amount of the qualified adoption expenses paid or incurred for the adoption. The partners may not both claim credit for the same qualified adoption expenses, and neither partner may claim more than the amount of expenses that he or she paid or incurred. The adoption credit is limited to $13,170 per child in 2010. Thus, if two registered domestic partners each paid qualified adoption expenses to adopt the same child, and the total of those expenses exceeds $13,170, the maximum credit available for the adoption is $13,170. The partners may allocate this maximum between them in any way they agree, but the amount allocated to a partner may not be more than the amount of expenses he or she paid or incurred. The same rules generally apply in the case of a special needs adoption. The total credit for such an adoption is limited to $13,170, but the amount that each partner may claim is not limited by the amount of expenses paid or incurred.

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Are community property laws taken into account in determining earned income for purposes of the dependent care credit, the refundable portion of the c

2011-10-06T10:03:00.000-07:00

According to a recent IRS publication:No. The federal tax laws governing these credits specifically provide that earned income is computed without regard to community property laws in determining the earned income amounts described in section 21(d) (dependent care credit), section 24(d) (the refundable portion of the child tax credit), section 32(a) (earned income credit), and section 36A(d) (making work pay credit).

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Are registered domestic partners each entitled to take credit for half of the total estimated tax payments paid by the partners?

2011-10-06T10:02:00.000-07:00

According to a recent IRS publication: No. Unlike withholding credits, which are allowed to the person who is taxed on the income from which the tax is withheld, a registered domestic partner can take credit only for the estimated tax payments that he or she made.

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Are registered domestic partners each entitled to half of the credits for income tax withholding from the combined wages of the registered domestic pa

2011-10-05T10:02:00.000-07:00

According to a recent IRS publication: Yes. Because each registered domestic partner is taxed on half the combined community income earned by the partners, each is entitled to a credit for half of the income tax withheld on the combined wages.

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Money and Divorce

2011-10-05T09:00:00.000-07:00

It can be hard to deal with divorce from an entirely rational viewpoint, but letting your emotions get the better of you can hurt your wallet more than your pride.

Your best option is to be as honest as possible – don’t try to hide your assets – no matter how badly you’d hate to share them with your ex – as this will only take more time and money to sort out and is TOTALLY ILLEGAL.

Failing to agree over the division of family assets (such as the family home, a business and pension funds), child custody and support and even personal items like CD collections or pets can also cause fees to skyrocket, especially if both parties reach a stalemate over who gets to keep Harry the hamster

How to negotiate:

Collaborative law is growing in popularity. Rather than attorneys exchanging a series of angry (and expensive) letters as they negotiate the terms of the settlement and ending up in court if they can't agree, instead both parties sit down with their respective attorneys to, if possible, work out the terms of the settlement. This only works if both sides are prepared to be constructive and, again, make full-disclosure of their assets. It is an “all cards on the table” exercise but, if successful, can reduce the legal costs of divorce considerably.

Collaborative law is not dissimilar to mediation, although this has proven unpopular with couples as there is usually only one mediator involved who can give advice to both parties, meaning one often feels short-changed at the end of the process.

In collaborative law, your attorney is present during the meetings and if a settlement can’t be reached, the same attorney can’t go on to represent you in court, thus eliminating any incentive to draw out the process in hope of a larger fee.

Protect your assets:

If you are experiencing an emotional or bitter divorce then make sure, if you do choose to get married again, that you’re prepared for the worst. A prenup, is a worthwhile consideration particularly where one party is bringing significant assets into the marriage. It is intended that the prenup would provide the couple with a framework for dividing the assets on a divorce. (read more on pre-nups) Finally, no matter how betrayed you feel, or how bitter the divorce, it is almost always best to grin and bear the pain even after the proceedings are over rather than harbour a grudge into eternity.

The benefit of couples dealing with matters amicably is that this will hopefully enable them to communicate sensibly with their former spouse in the future. Many divorcing couples seem to forget that, following the resolution of the proceedings between them, that they may still need to have contact with their former spouse, particularly where children are involved. (read more on child custody) Generally where the couple have conducted the proceedings amicably, there seems to be a better prospect of them avoiding further disputes with their former spouse. (read more on hidden assets)

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

For more information visit www.la-familylaw.com

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How should registered domestic partners report Schedule C income that is community property?

2011-10-04T10:01:00.000-07:00

According to a recent IRS publication: Half of the income, deductions, and net earnings of a business operated by a registered domestic partner must be reported by each registered domestic partner on a Schedule C (or Schedule C-EZ). In addition, each registered domestic partner owes self-employment tax on half of the net earnings of the business. Although the employment tax rules prohibit spouses from treating net earnings as community income (section 1402(a)(5)), registered domestic partners are not spouses as defined by federal law and this provision does not apply to them.

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Retirement Plans FAQs

2011-10-04T09:00:00.000-07:00

1. Types Of Retirement Plans

2. Earning Retirement Benefits

3. Plan Information To Review

4. Payment Of Benefits

5. Taking Your Retirement Benefit With You

6. Your Benefit During A Plan Termination Or Company Merger

7. Divorce - Potential Claims Against Your Benefit

In general, your retirement plan is safe from claims by other people. Creditors to whom you owe money cannot make a claim against funds that you have in a retirement plan. For example, if you leave your employer and transfer your 401(k) account into an individual retirement account (IRA), creditors generally cannot get access to those IRA funds even if you declare bankruptcy.Federal law does make an exception for family support and the division of property at divorce. A state court can award part or all of a participant's retirement benefit to the spouse, former spouse, child, or other dependent. The recipient named in the order is called the alternate payee. The court issues a specific court order, called a domestic relations order, which can be in the form of a state court judgment, decree or order, or court approval of a property settlement agreement. The order must relate to child support, alimony, or marital property rights, and must be made under state domestic relations law. The plan administrator determines if the order is a qualified domestic relations order (QDRO) under the plan's procedures and then notifies the participant and the alternate payee. If the participant is still employed, a QDRO can require payment to the alternate payee to begin on or after the participant's earliest possible retirement age available under the plan. These rules apply to both defined benefit and defined contribution plans. (see QDROs)

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

For more information visit www.la-familylaw.com

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Is a registered domestic partner the stepparent of his or her partner’s child?

2011-10-03T09:51:00.000-07:00

According to an IRS publication: If a registered domestic partner is the stepparent of his or her partner’s child under the laws of the state in which the partners reside, then the registered domestic partner is the stepparent of the child for federal income tax purposes.

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Divorce and hard times

2011-10-03T09:00:00.000-07:00

Gregory Rodriguez, July 13, 2009 Los Angeles Times

Economic woes often cause marital splits, right? Well, not so fast.
Can't stand your boring husband? Thinking of calling it quits? Well, you should have mustered the nerve to leave him well before this economic crisis. Now you might not be able to afford to live without him, literally.

It's a well-known fact that financial woes are the biggest cause of marital spats. With the economy the way it is, you'd expect lots of husbands and wives to be at each other's throats. But the conventional wisdom is wrong. This recession is so bad that you can count divorce lawyers among those professions that have taken a hit.

That's good news, right? People are now forced to stay together and work things out. Well, not if history tells us anything. The Depression also saw a decline in the divorce rate, but, according to marriage historian Stephanie Coontz, incidents of domestic violence and outright family desertion went up.

In any case, despite the fact that divorce can cause all sorts of emotional and financial turmoil, its statistical decline isn't as positive a social indicator as one might think. As economist David Friedman has written, divorce is actually a reflection of "an increase in the range of choice available to individuals," and a high divorce rate and the general weakening of marriage "are bad things only to the extent that they reflect a failure of our institutions and expectations to adjust completely to new circumstances."

In other words, in more traditional days, in which social changes occurred more slowly, we all shared a general idea as to what marriage was and how it functioned. From an economic standpoint, we all understood how the marital division of labor worked. But in a rapidly changing society, it's harder to figure out what kind of arrangement we should make with our spouses. Such changes as the entrance of large numbers of women into the workplace and the mechanization or outsourcing of household duties (from washing clothes to curing bacon) undermined that tradition.

As the basic marriage deal has shifted, our notions and ideals haven't shifted with it, and the disconnect explains the astronomical divorce rate in contemporary America. We haven't figured out a new marriage model that takes into account the greater range of choices for both women and men.

This fits right into the fact that we're divorcing less in hard times. In the context of this recession, we have fewer choices, and fewer choices means we're back to a good fit with the marriage model of old. Still -- and a little paradoxically -- the fact that there are untraditional marriages may also be helping husbands and wives withstand some of the emotional and financial stress of economic hard times. During the Depression, the ego blow to a man who lost his job caused marital problems. Today, if a man loses his job -- and his wife is the breadwinner -- it's less likely to create as much unhappiness.

If it's distasteful to you to look at marriage in economic terms, then it might be easier to consider the economics of divorce. Not only are there attorney's fees to be paid, but the value of the two biggest assets of most marriages -- a home and a retirement plan -- has diminished dramatically. Faced with the prospect of halving their shrunken assets, many couples are deciding to stick it out a while.

A recent survey conducted by the Institute of Divorce Financial Analysts -- who knew? -- found that 68% of its members "have seen clients who could not afford to get divorced because of recession-related financial problems."

So even as most of us are looking forward to happier days of an economic recovery, there must be a number of Americans who are waiting patiently to be able to afford to experience the pain and suffering of divorce. You've heard of the pent-up desire and aspiration that are released after times of war? That's why we get such phenomena as baby booms. When this economic recovery finally arrives, prepare yourselves for a boom of an entirely different sort.

Write to George Rodriguez: grodriguez@latimescolumnists.com
Read the whole article here

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

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If a child is a qualifying child under section 152(c) of both parents who are registered domestic partners, which parent may claim the child as a depe

2011-10-02T09:48:00.000-07:00

According to an IRS: If a child is a qualifying child under section 152(c) of both parents who are registered domestic partners, either parent, but not both, may claim a dependency deduction for the qualifying child. If both parents claim a dependency deduction for the child on their income tax returns, the IRS will treat the child as the qualifying child of the parent with whom the child resides for the longer period of time. If the child resides with each parent for the same amount of time during the taxable year, the IRS will treat the child as the qualifying child of the parent with the higher adjusted gross income.

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Family Home in Divorce Part IV

2011-10-02T09:00:00.000-07:00

By Warren R. Shiell

The following information is specific to California.

How do we determine the value of the house?

If you decide to either to buy out the other spouse’s community interest in the house or to exchange it for another asset, you will need to know the equity and financial value of the house. The equity in the house is equal to the house’s fair market value less any debts connected to the house such as mortgages and liens. The fair market value of the house is usually assessed by a certified real estate appraiser. The parties may agree to jointly retain an appraiser to keep down costs. A certified appraiser who knows the local market may provide a more accurate appraisal than the local realtor. Sometimes couples place the house on the market to see of anyone makes any offers.

It is important to note that if the Court is asked to calculate each spouse’s share in the house it will only consider the equity value. The court will not consider other costs that might reduce future sale proceeds such as closing costs, sales commissions and tax bills because those costs are not considered “immediate and specific.” FN5. Therefore, if the fair market value of the house is $500,000 and the balance of all outstanding mortgages is $200,000, the equity value of the house is $300,000. If this is all community interest then each spouse will be entitled to $150,000.

If you are trying to negotiate a settlement, you may wish to argue that the financial value of the house should be considered after taking into account taxes after sale and closing costs. This is important because once you get divorced and awarded the house you are only entitled to a $250,000 exemption on any gain. Therefore what may look like a fair bargain may not seem so fair after you factor in taxes. Consider this example: the equity value of the family home is $500,000 and the equity value of stocks and shares is also $500,000. Is this a fair exchange if the husband keeps the stocks and shares in exchange for the house? It depends. Assume that the shares have a high tax basis so that if they are sold the husband is liable for $100,000 of gain. The wife on the other hand is liable for $250,000 gain if she ever decides to sell the house. Is this still a fair exchange?

(read more on our website)

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

For more information visit www.la-familylaw.com

Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell

Call for a free consultation now 310.247.9913.

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Can a registered domestic partner qualify to file his or her tax return using head-of-household filing status?

2011-10-01T09:44:00.000-07:00

According to recent IRS publication: Generally, to qualify as a head-of-household, a taxpayer must provide more than half the cost of maintaining his or her household during the taxable year, and that household must be the principal place of abode of the taxpayer’s dependent for more than half of the taxable year. If registered domestic partners pay all of the costs of maintaining the household from community funds, each partner is considered to have incurred half the cost and neither can qualify as head of household. However, if one of the partners pays more than half by contributing separate funds, that partner may qualify as head-of-household.

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Family Home in Divorce Part III

2011-10-01T09:00:00.000-07:00

By Warren R. Shiell

The following information is specific to California.

What are the options for dividing the house?

There are three options if you are trying to reach a settlement:

(a) One spouse buys out the community interest share of the other spouse;
(b) The house is sold and the proceeds are divided; and
(c) The house remains in joint names for a limited period of time and is then sold to the other spouse or is put on the market.

During economic downturns when house prices are depressed couples increasingly turn to the last option.

But there is a catch. If you litigate, option (c) is called a deferred sale order (or a “Duke Order”) and the Court can only order a deferred sale in very limited circumstances where it is in lieu of child support and economically feasible. FN3.

Should I keep the house or exchange it for other assets?

It is very important to consider the financial as well as the legal realities of electing to keep the house. It is used to be very common where the husband owns a business to suggest that the wife keeps the house and the husband keeps the business. Before even getting into whether this is a fair exchange of assets of equal value, one has to consider whether the spouse who wants to keep the house can afford to do so. Often the spouse who has primary custody of children wants to stay in the house for the sake of the children but this may not be economically possible. The spouse who wants to stay in the home should sit down and work out a budget. They should estimate housing costs and compare this with their estimate earnings from employment, support and other sources. Housing costs are more than just mortgage and property taxes and one should factor in utilities, repairs, insurance, fees etc. You may also be entitled to mortgage interest deduction relief lowering your costs. If you can still afford to stay in the house, only then should you consider this option.

(read more on our website)

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

For more information visit www.la-familylaw.com

Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell

Call for a free consultation now 310.247.9913.

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QDROs - Division of Pensions FAQs

2011-09-30T10:00:00.000-07:00

1. What is a Qualified Domestic Relations Order?

2. What is a Domestic Relations Order?

3. Must a Domestic Relations Order be issued by a state court?

4. Who can be an Alternate Payee?

5. What information must a domestic relations order contain to qualify as a QDRO under ERISA?

6. Are there other requirements that a domestic relations order must meet to be a QDRO?

7. May a QDRO be part of the divorce decree or property settlement?

8. Must a domestic relations order be issued as part of a divorce proceeding to be a QDRO?

9. Will a domestic relations order fail to be a QDRO solely because of the timing of issuance?

10. May a QDRO provide for payment to the guardian of an alternate payee?

11. Can a QDRO cover more than one plan?

12. Must all QDROs have the same provisions?

13. Who determines whether an order is a QDRO?

14. Who is the administrator of the plan?

For more on Retirement Plans

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

For more information visit www.la-familylaw.com

Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell

Call for a free consultation now 310.247.9913.

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Divorce May Make You Sick

2011-09-30T09:00:00.001-07:00

NEW YORK, July 28, 2009 CBS News

Study Finds Divorced and Widowed Adults Have 20 Percent More Chronic Conditions than Married People

Psychologist Jeff Gardere spoke to Julie Chen about the damaging mental stress that may result from divorce.

(CBS) Can divorce make you sick?

Yes, according to a new study that finds divorce and widowhood have a lingering, detrimental impact on health -- even after remarriage.

The study, scheduled to be published in the September issue of the Journal of Health and Social Behavior, analyzes data from nearly 9,000 adults nationwide, ages 51 to 61, and finds those who had been divorced or widowed suffered 20 percent more chronic health conditions, such as heart disease, diabetes or cancer, than individuals who were currently married.

Dr. Catherine Birndorf, associate professor of psychiatry at New York Presbyterian Hospital-Weill Cornell Medical Center told CBS News, "With a divorce or with disruption in a family like that,(it) can lead to depression, anxiety, other kinds of psychological illnesses."

Researchers have known for years that marriage is good for your health, but they've been less clear on how you'll do if you lose your spouse to divorce or death.

The study also suggests that divorce can be so traumatic that not even tying the knot again is enough to reverse the physical and mental toll.

So does this mean spouses should stick together even when the going gets really tough?

Birndorf said, "If someone's in a bad marriage, I would want to try and help them figure out how to make it better. But I wouldn't rule out the idea that it may need to end in divorce versus staying together for the sake of health."

In fact, Dr. Jeff Gardere, a clinical psychologist, said on "The Early Show" Tuesday, if you're in a "toxic" relationship that involves physical or mental abuse or in a relationship where you just can't get along, it's best to get out of it because the health benefits of divorce are much better than staying in a bad situation.

However, if you are thinking of getting a divorce, Gardere said you should have a doctor on hand.

Why?

"We're finding that divorce is so traumatic on the system, on your mind, on your body, that it's important that you consult your physician or even talk to a mental health professional about the stress that you're going through so that you don't become sick," he said.

The study also showed the benefits of being married versus unmarried, according to Gardere. Men seem to reap the benefits of being married much more than women in terms of emotional and physical health, while women do better financially because of marriage.

Gardere said that's because women tend to tell their husbands to take care of themselves on an ongoing basis, so they take the advice and care for their health.

"Early Show" co-anchor Julie Chen remarked men don't like to be nagged that way.

Gardere responded, "(Men) don't like to be nagged, but I think if you keep pushing them in the right direction, and tell them it is about love and about staying healthy, so that they can have a good marriage and raise their families, that guys after a while tend to listen."

But what about remarrying? Is it worth it?

Gardere says yes.

"We're finding that it is such a trauma to the system being in that divorce or being widowed that it does take years to come back even if you are married, but the advice we seem to be giving is go ahead and remarry because you can get better in time."

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

For more information visit www.la-familylaw.com

Family Home in Divorce Part II

2011-09-30T09:00:00.000-07:00

By Warren R. Shiell

The following information is specific to California.

What are the options for dividing the house?

There are three options if you are trying to reach a settlement:

(a) One spouse buys out the community interest share of the other spouse;
(b) The house is sold and the proceeds are divided; and
(c) The house remains in joint names for a limited period of time and is then sold to the other spouse or is put on the market.

During economic downturns when house prices are depressed couples increasingly turn to the last option.

But there is a catch. If you litigate, option (c) is called a deferred sale order (or a “Duke Order”) and the Court can only order a deferred sale in very limited circumstances where it is in lieu of child support and economically feasible. FN3.

Must the house be sold?

If the home is only asset of value in the marriage, the house may have to be sold unless one spouse is able to raise sufficient funds to buy out the other. Otherwise there are several ways to buy out a spouse’s interest in the family home.

1. One party may be able to buy the other out if they can re-finance and qualify for a new mortgage on their own using their own income. The selling spouse should never agree to remain on the mortgage.

2. If refinancing does not generate sufficient income, the selling spouse may be persuaded to accept an installment note secured by a deed of trust on the home. This is generally a bad idea. A spouse who cannot afford an immediate buy out upon divorce, in the long run is probably not going to pay all the costs associated with maintaining a home and pay back the installment loan.

3. Another option is buying out all or some of the community interest in the house with a release of spousal support. You will need to consult with an attorney and a tax specialist to determine the present and after tax value of the total support payments that are being exchanged.

4. It may also be possible to borrow from a retirement plan to finance the buy out. Again you should consult with a pension and tax specialist to discuss the costs of borrowing from your retirement plan. You may have to pay income taxes on the withdrawal and 10% early withdrawal penalties. You should also find out whether such a loan qualifies for mortgage interest deduction on your taxes. FN4

5. If there are other assets in the marriage, one spouse may elect to keep the house and the other may keep assets of equal value. For example, if the equity in the house is $200,000 and the value of pensions is $200,000 one spouse may keep the house and the other may keep the pensions. This is discussed in more detail below.

(read more on our website)

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

For more information visit www.la-familylaw.com

Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell

Call for a free consultation now 310.247.9913.

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Can registered domestic partners or same-sex spouses whose marriage is recognized under state law file federal tax returns using a married filing joi

2011-09-29T09:46:00.000-07:00

According to an IRS publication: No. Registered domestic partners cannot file using a married filing separately or jointly filing status, because they are not spouses as defined by federal law. Likewise, same-sex partners who are married under state law may not file using a married filing separately or jointly filing status because federal law does not treat same-sex partners as spouses.

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Family Home in Divorce Part I

2011-09-29T09:00:00.000-07:00

By Warren R Shiell

The following information is specific to California.

In many divorces, the biggest financial question is who gets the family home. Should the wife get it, should the husband, or should they sell it and split the proceeds? And if they sell it how should the proceeds be divided.

Many times, the wife has an emotional tie to the home and she wants to keep it. This is where she raised their children and decorated and entertained. But she needs to consider whether she can afford to keep the home. If she keeps the house she is getting an illiquid asset that does not buy groceries for her children or create any income.

The first issue that must be considered is who owns the house. Is it entirely community property that should be split equally or does one spouse have a claim to a greater share.

Who owns the house?

Often the family home is the most important asset that a family owns. In a divorce the first question that a couple must consider is who owns the family home. Is it entirely community property that should be divided equally or does one spouse have a separate property interest that would result in an unequal division.

In California, there is a presumption that property acquired during the marriage is community property and each spouse is entitled to an equal share upon divorce. However, in the case of the family home this presumption may not apply if title is not in joint names. For example, if a house is purchased during the marriage but only one spouse’s name is on the title that spouse may be able to claim that the entire property is their separate property and that they do not have to share it with the other spouse. FN1. This can lead to very unfair results if the mortgage was paid during the marriage with community earnings or the downpayment was made with community savings. To avoid this result the disadvantaged spouse has to prove that there was a breach of a fiduciary duty and the Court should treat the house as community. If you are ever in this situation you need to immediately consult with an experienced family lawyer. Further, if your credit is bad and your spouse ever tries to convince you that the only way to get a mortgage is to put title in their name you should immediately consult with an attorney.

Another common situation is where one spouse owns a house prior to marriage. During the marriage the title remains in that spouse’s name but the outstanding mortgage is paid with community earnings. The spouse who is not on title may still have a community property interest by virtue of the mortgage payments made with community earnings. This is commonly referred to as a “Moore-Marsden” interest based on the two cases that establish the formula for calculating the community interest. FN2. When a couple have been married a long time and substantial amounts of community earnings have paid off an existing mortgage, making improvements or the parties have re-financed, this “Moore-Marsden” interest can be substantial.

You may wonder why this situation is so different to the one above where the home is acquired during the marriage in one spouse’s name. The simple answer is that’s what the Courts have decided. If you are ever in this situation you need to immediately consult with an experienced family lawyer.

(read more on our website)

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

For more information visit www.la-familylaw.com

Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell

Call for a free consultation now 310.247.9913.

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Domestic Partners Taxes

2011-09-28T09:39:00.000-07:00

How do registered domestic partners determine their gross income for 2010?

Registered domestic partners must each report half the combined community income earned by the partners. In addition to half of the community income, a partner who has income that is not community income must report that separate income.

For more information see IRS http://www.irs.gov/newsroom/article/0,,id=245869,00.html

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Child Custody FAQs

2011-09-28T09:00:00.000-07:00

1. What is "custody and visitation"?

2. What are the types of custody orders?

3. What are the types of visitation orders?

4. What is a "time-share plan" or a "parenting plan"?

5. What does the law consider when deciding custody and visitation?

6. What is "the best interest of the child"?

7. If we have joint legal custody, do we have to agree on everything?

8. If we have joint physical custody, do our children have to split their time equally between us?

9. Do grandparents have the right to visitation?

10. What is the process for getting a custody and visitation court order?

11. Can a custody and visitation order be changed?

(Read more on Child Custody)

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

For more information visit www.la-familylaw.com

Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell

Call for a free consultation now 310.247.9913.

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Ending the Alimony guessing game

2011-09-27T10:11:00.000-07:00

Alexandra Harmin in a New York Times opinion considers whether its time to revise the alimony laws in New York State and achieve consistency with the use of a mathematical formula as they do with temporary support:

"According to the Internal Revenue Service, former spouses pay around $9 billion in alimony each year. The amounts and payment schedules are usually decided by family court judges using a list of factors, including the length of the marriage, the ages and health of the spouses, their financial situations, their earning potential and their contributions to the marriage, financial and otherwise.

These criteria are sensible enough. But judges are on their own in deciding how to prioritize the various factors and how to translate them into dollar amounts, resulting in wildly inconsistent alimony awards. When asked how much alimony a lifelong homemaker married to a doctor deserved, judges in an Ohio survey estimated as little as $5,000 a year and as much as $175,000."

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Alimony in Massachusetts Gets Overhaul, With Limits

2011-09-27T10:05:00.000-07:00

This from the New York Times (for full article) Gov. Deval Patrick on Monday signed into law new limits on alimony in Massachusetts, sharply curbing lifetime alimony payments in divorce cases and making a series of other changes to a system that critics considered outdated. Linda Lea Viken, president of the American Academy of Matrimonial Lawyers, said the law represented an about-face that could reverberate across the country. Most states, she said, do not have such specific guidelines for determining the length of alimony. “They’ve gone from the extreme of having it set in permanency to now being specific about when it terminates,” Ms. Viken said of Massachusetts. More details can be found from http://www.massalimonyreform.org/

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Can a registered domestic partner itemize deductions if his or her partner claims a standard deduction?

2011-09-27T09:59:00.000-07:00

According to a recent IRS publication:Can Yes. A registered domestic partner may itemize or claim the standard deduction regardless of whether his or her partner itemizes or claims the standard deduction. Although the law prohibits one spouse from itemizing deductions if the other spouse claims the standard deduction (section 63(c)(6)(A)), registered domestic partners are not spouses as defined by federal law and this provision does not apply to them.

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How should registered domestic partners report wages, other income items, and deductions on their federal income tax returns?

2011-09-27T09:57:00.000-07:00

According to a recent IRS publication: Registered domestic partners should report wages, other income items, and deductions according to the instructions to Form 1040, U.S. Individual Income Tax Return, and related schedules. In addition, registered domestic partners should attach the Allocation Worksheet in Table 2 of Publication 555, Community Property, to their separate returns showing how the partners computed the income, deductions, and federal income tax withholding that each reported. Each partner should write the social security number of the other partner in the “Notes” section of the worksheet. If a registered domestic partner does not attach a worksheet, he or she must attach a copy of his or her partner's Form W-2 or 1099-R (in addition to his or her own) and make a notation on the form showing the division of income and tax withholding.

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Questions and Answers for Registered Domestic Partners in Community Property States and Same-Sex Spouses in California

2011-09-27T09:37:00.000-07:00

• IRS releases Questions and Answers for Same-Sex Spouses in California and Registered Domestic Partners in Community Property States: IRS Publication 555, Community Property, provides general information for taxpayers, including registered domestic partners and same-sex spouses, who reside in community property states. On September 16, 2011, the IRS released 19 Questions and Answers providing guidance for common issues.

http://www.irs.gov/newsroom/article/0,,id=245869,00.html

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If a parent smokes marijuana will it affect custody?

2011-09-26T10:38:00.000-07:00

The Courts used to take a much stricter no tolerance position on the use of custody. Nowadays, with the increasing use of medical marijuana, the Court's focus tends to be focused on the issue of whether a parents marijuana use affects parenting ability and judgment. In the case of Court of Appeals in the 2010 case of Marriage of Parr, 240 P.3d 509 (Colo.App.Div.1 2010) the Colorado Court of Appeals reversed a portion of the trial court's order upon a finding that the trial court could not require supervised parenting time for dad based solely on his marijuana use without a specific finding that dad's conduct endangered the child physically or impaired the child's emotional development as set forth in C.R.S. §14-10-129(1)(b)(I). The answer will therefore be on a case by case basis.

Los Angeles Divorce Lawyer

Can registered domestic partners or same-sex spouses whose marriage is recognized under state law file federal tax returns using a married filin

2011-09-23T09:42:00.000-07:00

According to the IRS the answer is No. Registered domestic partners cannot file using a married filing separately or jointly filing status, because they are not spouses as defined by federal law. Likewise, same-sex partners who are married under state law may not file using a married filing separately or jointly filing status because federal law does not treat same-sex partners as spouses.

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Really: Rumours that Sarah Palin's husband is considering divorce

2011-09-23T09:35:00.000-07:00

Read this from the Telegraph in the UK:

Sarah Palin with husband Todd, who is allegedly filing for divorce, according to new reports Photo: AFP/GETTY

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UK Banks stop funding divorces

2011-09-23T09:20:00.000-07:00

This article from the the UK that even in London – which has a reputation for being the world's 'divorce capital' – it has become very difficult to borrow to cover divorce costs, lawyers say.

Read more

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Jennifer Lopez and Marc Anthony are calling it quits

2011-09-22T21:39:00.000-07:00

Pat Robertson Says Alzheimer's Makes Divorce OK

2011-09-22T21:32:00.000-07:00

Source ABC News: Religious broadcaster Pat Robertson stunned "700 Club" viewers Tuesday when he said divorcing a spouse with Alzheimer's disease was justified. Robertson, chairman of the Christian Broadcasting Network and former Republican presidential candidate, said he wouldn't "put a guilt trip" on someone for divorcing a spouse with Alzheimer's disease, calling Alzheimer's itself "a kind of death."The remarks sparked outrage throughout religious and medical communities.

www.la-familylaw.com

Craiglist: Man offers to pay for someone to marry ex-wife

2011-09-22T21:23:00.000-07:00

This is an ad a man posted on Craiglist:

Nice well taken care of ex-wife. Mid 40's. Pretty and loyal. Never smoked and very little drinking. Will make someone a good companion (I know).... Will pay 10K to the man or woman who marries her in a way that stops me from having to pay her alimony.

Big thanks to Mississippi Family Law Blog.

Los Angeles Divorce

If my spouse purchases a house in his name during marriage because I have bad credit will it be his separate property?

2011-09-21T22:36:00.000-07:00

Although there is a presumption that property acquired during marriage is community, there are now a number of cases that where one spouse takes title in his or her name it is to be treated as that spouses separate property. This most often comes about where one spouse has bad credit. The spouse who is not on title has a very difficult burden to prove that the property should be community because of a breach of a fiduciary duty e.g duress or they were tricked into signing. If you are in this situation you should consult with an experience family lawyer before signing any documents such as a Quitclaim deed giving your spouse sole title. There was a recent discussion of this in the unpublished opinion of the California Appeals Court in the Santana Case on August 25, 2011.

Developing a parenting plan

2011-09-21T15:49:00.000-07:00

Developing a Parenting Plan

How can parents decide on a custody and visitation plan?

Parents who separate should have a custody and visitation or parenting plan for deciding how they will share parenting responsibilities. A custody and visitation plan must be in writing and signed by both parties and a judge to be enforceable.

What if parents cannot agree on a custody and visitation plan?

If parents cannot agree on custody and visitation on their own they may go to court and ask a judge for a temporary order. The Court will first send them to Conciliation Court where a trained mediator tries to help the parties agree. In Los Angeles conciliation services are free. An appointment can be made by calling conciliation services at (213) 974-5524.

If the parties still cannot agree, the Court will make a temporary custody and visitation order that is in the best interests of the children. The temporary order will continue until the parties can reach an agreement or until custody and visitation is resolved after a trial.

If parents cannot agree on custody and visitation, they can also ask the court to appoint a mental health expert such as a psychologist to carry out a custody evaluation. A list of custody evaluators can be found at the Los Angeles Court 's web site at www.lasuperiorcourt.org.

Developing a Plan

While it is difficult to make generalizations about the suitability of various parenting plans many experts agree that during the first years of life, it is important for young children to develop an attachment to a primary caretaker and recommend frequent but non-overnight visitation with the non-custodial parent for short periods of time. As the children grow older and are better able to develop multiple attachments longer periods of continuous overnight visitation is encouraged.

Consider the practical aspects of any plan

A first step in developing a plan is charting out the schedules of the children and both parents. This will help you make realistic choices based upon practical considerations. Take a calendar and chart out in a colored pen the activities of each of your children (e.g. when they leave and return from school/day care each day, when they go to different activities such as music lessons, when they have vacations etc.) Next, take a different colored pen and chart your activities and commitments. Include when you go to and return from work, go to meetings, go out with friends etc. With another colored pen do the same for the other parent. You should then compare both parents’ plans to see if there is any common ground.

The children’s best interests

When parents decide custody and visitation they should develop a plan around the needs and best interests of their children and not their needs. In other words, they should adjust the plan to the children, not the children to the plan. Parents should be looking at their children's need for love, emotional support and security. Parents should take into account their children's age, personality and experiences. Children will generally be better off when both parents are involved and participating in their upbringing.

Next you should consider who has historically been responsible for different commitments with the children and which parent is practically able to fulfill them in the future. Questions you should consider are:

Who do the children turn to when they have a problem or need to share their feelings?

Who does homework with the children?

What do the children do on the weekends?

Do the children spend time with relatives and who takes them?

Who takes the children to medical appointments or picks them up in when they are sick?

Who provides the children’s physical care, such as bathing, changing diapers, arranging for sitters, haircuts, feeding?

How do you and your spouse discipline the children and set structure for them?

What kind of personal attention do each of you give to the children, such as teaching problem solving, reading, playing together, sharing activities?

Who is responsible for the children’s social activities, such as arranging birthdays, play dates, trick or treating, taking class trips, games, lessons, school plays etc?

Joint Custody

For older children one of the key issues is whether a joint custody is more appropriate than an arrangement where the non-custodial parent has alternate weekends and one or two overnights during the week. The answer will be different for each family. The parent’s relationship and their level of cooperation and also the children’s preferences can be as important as how much time the children physically spend with each parent. The Family Code provides that any parental plan must encourage frequent and continuing contact although it does not specify a particular plan.

The Legal Aspects of a Plan

Any parenting plan will have to make provision for who gets "legal" custody and who gets "physical" custody of the children. These are the terms that are used in agreements.

"Legal" custody means which parent gets to make important decisions about the children's education, religious upbringing, medical treatment and other legal decisions. If one parent gets to make these decisions they have "sole legal custody." If both parents get to make those decisions together, they have "joint legal custody." It is rare for one parent to be granted sole legal custody unless there are issues of domestic violence and substance abuse or there is a history of the parents being unable to communicate. In deciding on issues relating to legal custody, form "Joint Legal Custody Attachment" FL-341 (E) which has been approved by the Judicial Council of California is helpful. It can be found at www.courtinfo.ca.gov/forms/.

"Physical" custody means who the children live with on a daily basis. A parent has "sole" physical custody if the primary residence of the child is with that parent. The non-custodial parent then has visitation rights. The parents have "joint" physical custody if the children live with each parent for significant periods of time during the week.

A custody and visitation plan should be consistent and detailed. It should spell out who gets the children when and where in enough detail so that it is easy to understand and enforce. Important questions are who has the children in the week and on the weekends? Who transports the children for exchanges and to activities? Who gets the children on holidays and vacations? In California, the Judicial Counsel has developed forms to be used when requesting custody and visitation. The forms "Child Custody and Visitation Attachment FL-311 and "Children's Holiday Schedule Attachment” can be found at www. Courtinfo.ca.gov/forms and are helpful in developing plans.

Sample physical custody plans

Some states have developed model parenting plans that take into account what is appropriate for children of different ages and stages of development. The Oregon Judicial Department and the Supreme Court for the State of Arizona have both developed model parenting plans for Parents that suggest different parenting plan options. (see Oregon ’s plan at http://www.ojd.state.or.us/osca/cpsd/courtimprovement/familylaw/parentingplan.htm.

Arizona ’s plan at www.supreme.state.az.us/dr/Text/ModelPTPlans.htm)

The following samples are based on those parenting plans.

Parent A’s time with the child is indicated by solids.

Birth to 12 months

	Mon	Tue	Wed	Thur	Fri	Sat	Sun
8am
9am
10am
11am
Noon
1pm
2pm
3pm
4pm
5pm
6pm
7pm
8pm

Sample Language:

Commencing on _________, Parent A shall have physical custody of the minor child(ren) each week on Tuesday and Thursday from 4:30 p.m. to 7:30 pm. and Saturday from 10:00 a.m. to 6:00 p.m. Parent A shall be responsible for picking up and dropping of the minor child(ren) at the residence of Parent B. Parent B shall have physical custody of the minor child(ren) at all other times not designated as Parent A’s time.

Comments:

At this young age, infants form a primary attachment to one parent and long periods of absence from the primary attachment figure may be traumatic. Parents should minimize the infant’s basic sleep, feeding and waking cycles.

Pre-schooler 3 – 5 years

	Mon	Tue	Wed	Thur	Fri	Sat	Sun

Week 1

Week 2

Week 3

Week 4

The parties alternate weekends and the non-custodial parent has one or more overnights during the week.

Sample Language:

A. Commencing on ___________, Parent A shall have physical custody of the minor child(ren) alternate weekends from Friday, after the end of school/child care/camp (or at 5:30 p.m. if the child(ren) are not in school/child care/camp), when Parent A shall pick up the child(ren) from school/child care/camps, or at Parent B’s residence if the child(ren) are not in school/child care, until Monday, at the start of school/child care (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp.

B. Commencing on ____________, Parent A shall have physical custody of the minor child(ren) each week from Wednesday, after the end of school/child care camp (or at 5:30 p.m. if the child(ren) are not in school/child care/camp), when Parent A shall pick up the child(ren) from school/child care/camp, or at Parent B’s residence if the child(ren) are not in school/child care/camp, until Thursday, at the start of school/child care/camp(or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp.

C. Parent B shall have physical custody of the minor child(ren) at all other times not designated as Parent A’s time.

* Instead of referring to alternate weekends, a plan can refer to 1st, 3rd and 5th weekends of the month. This generally avoids any confusion about which parents has custody on any given weekend.

Comments:

This plan is sometimes referred to a “Freeman” order. It may be suitable where Parent B has not been very involved in the day to day care of the child and has a busy work schedule. Three to five year olds may show increased anxiety moving between parent’s homes. This does not necessarily reflect on whether the other parent is not a good parent or does not want to be with the other parent. Depending on the maturity of the child and the practicality of the exchanges these times can be negotiated so that Parent A only has the child one or two evenings in the week and has shorter or longer weekends.

“2:2:3” Joint Physical Custody for older children

	Mon	Tue	Wed	Thur	Fri	Sat	Sun

Week 1

Week 2

Week 3

Week 4

The parties alternate weekends and each parent has the children two days in the week.

Sample Language:

A. Commencing on __________, Parent A shall have physical custody of the minor child(ren) each week from Monday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent B shall drop the minor child(ren) off at school/child care/camp, or at Parent A’s residence if the child(ren) are not in school/child care/camp, subject to paragraph C below, until Wednesday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp.

B. Commencing on __________, Parent B shall have physical custody of the minor child(ren) each week from Wednesday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp, until Friday, at the start of school/child care/camp (or at 8:00 a.m. if the children are not in school/child care/camp), when Parent B shall drop the child(ren) off at school/child care/camp or at Parent A’s residence if the child(ren) are not in school/child care/camp, subject to paragraph C below.

C. The parties shall alternate physical custody of the minor child(ren) during the weekends, from Friday, at the start the start of school (or at 8:00 a.m. if the children are not in school), until their return to school on Monday (or at 8:00 a.m. if the children are not in school) when the children shall be returned to their respective school or to the receiving parent’s residence, in the event the children are not in school.

Comments:

The child spends no longer than three days/nights away from either parent.

“2:2:5:5” Joint Physical Custody For Older Children

	Mon	Tue	Wed	Thur	Fri	Sat	Sun

Week 1

Week 2

Week 3

Week 4

The parties alternate two and five day periods with the children. Each parent has two consecutive midweek overnights each week and alternate the weekends.

Sample Language:

A. In Week 1, commencing ________, Parent A shall have physical custody of the minor child(ren) each week from Monday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent B shall drop the minor child(ren) off at school/child care/camp, or at Parent A’s residence if the child(ren) are not in school/child care/camp, until Wednesday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp.

B. In Week 1 and 2, commencing ________, Parent A shall have physical custody of the minor child(ren) on Friday, after the end of school/child care/camp (or at 5:30 p.m. if the child(ren) are not in school/child care/camp), when Parent A shall pick up the child(ren) from school/child care/camps, or at Parent B’s residence if the child(ren) are not in school/child care, until the following Wednesday, at the start of school/child care (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp:

C. After the conclusion of Week 2, the two week rotation shall commence again with the physical custody schedule set forth above for Week 1.

B. Parent B shall have custody of the children at all times not designated as Parent A’s time.

Comments:

The works better for well adjusted children who have a good attachment to both parents. It allows for joint physical custody but each child is only away from the non-custodial parent for five days.

Alternating Weeks - Joint Physical Custody

	Mon	Tue	Wed	Thur	Fri	Sat	Sun

Week 1

Week 2

Week 3

Week 4

Sample Language:

Commencing __________, and on alternate weeks thereafter, Parent A shall have physical custody of the minor child(ren) from Monday at the start of school/child care/camp, or from 12:00 noon if the child(ren) are not in school/child care/camp, until Parent A returns the child(ren) to school the following Monday at the commencement of school, or 12:00 noon if the child(ren) is not in school/child care/camp, when Parent A shall return the child(ren) to Parent B’s residence. Parent B shall have custody of the child(ren) at all other times.

Comments:

The children may need to have mid-week contact with the non-custodial parent. This schedule can be altered to provide for a mid-week evening or overnight with the non-custodial parent.

Step up Plans

A frequently encountered problem is that a plan you develop now may not necessarily be appropriate in the future. For example, a plan for young children which permits the non-custodial parent limited overnights may not be appropriate when the children are older. A court may not be willing to change the status quo simply because the children have grown up and are better able to transition between households. One way of dealing with this is to create a “step-up plan” that provides increased periods of custody to the non-custodial parent when the children reach a certain age.

Step-up plans are particularly useful in reaching settlements where there are concerns about the parenting abilities of the non-custodial parent or the psychological harm that moving between two households will have on a child. Step up plans foster a sense of trust, responsibility and reliability as the non-custodial parent and the children familiarize themselves with the new routines and new households.

Step up plans are also useful to encourage parental responsibility where there are substance abuse problems or visitation has to be monitored because a parent has endangered the child. These step up plans should be drafted to allow the non-custodial parent increased time when they have met specific goals e.g. they have remained clean and sober for six months.

Holidays

It is common for parents to alternate holidays each year with one parent having a holiday in even years and the other having it in odd years. Many holidays are celebrated on a Monday and parents elect to extend the previous weekend. However, if you have a parenting plan which provides for switching custody on alternate weekends you will have to decide whether the weekend or the holiday schedule take precedence.

Typical holidays and special days include Mothers/Fathers day, Memorial Day, children’s birthdays, July 4th, Labor Day, Halloween, Thanksgiving, Christmas Eve and Day, parent’s birthdays and family reunions. Jewish holidays may include Passover, Rosh Hashana and Yom Kippur. In deciding on issues relating to holidays, form "Children’s Holiday Schedule" FL-341 (C) which has been approved by the Judicial Council of California is helpful. It can be found at www.courtinfo.ca.gov/forms/

During the winter vacation many parents elect to divide the winter vacation. Since the midway point may or may not include Christmas Eve and Christmas Day parents may also elect to split these days.

During the summer recess many parents provide that either parent may have the children for two or three continuous weeks provided that they give each other sufficient notice in advance of their plans. If their plans conflict one parent’s choice prevails in odd years and the other parent’s choice prevails in even years.

Sample Legal Custody Plans

In deciding on issues relating to legal custody, form "Joint Legal Custody Attachment" FL-341 (E) which has been approved by the Judicial Council of California is helpful. It can be found at www.courtinfo.ca.gov/forms/ Where both parents are cooperative and are able to communicate the following joint legal custody language can be used.

Sample Language:

The parties shall have joint legal custody of the child(ren). In exercising joint legal custody, the parties shall make every reasonable effort to foster feelings of affection between themselves and the child(ren). The parties shall cooperate and consult with one another so as to reach mutual agreement on all issues affecting the health, education and welfare of the children, including but not limited to the following:

(1) Enrollment or termination in a particular private or public school/child care/summer camp;

(2) Beginning or ending the regular practice of religion;

(3) Commencement of psychiatric, psychological or other mental health counseling or therapy;

(4) Authorizing the children’s drivers’ licenses;

(5) Passport applications;

(6) Enrollment in regular extracurricular activities;

(7) Non-emergency medical or dental treatment, other than routine check-ups.

How do we modify a parenting plan if circumstances change?

Once a parenting plan has been signed by a Court, the parties can change the plan by agreement which they then submit to the Court. If they cannot agree a party can request that the Court modify the plan. If the plan is part of a final custody determination that party must prove that a change is in the best interests of the children and they may also have to show that there has been a substantial change of circumstances if the plan gave one parent primary custody.

The other parent wants to move out of state. What can I do?

In recent years several Court decisions have set forth the following rules regarding move-aways. If there has been no court order, the Court looks to the best interests of the children.If there has been a Final Court order and one parent wants to modify that order by moving out of state the legal standard depends on whether the original Court order provides for joint custody. The Courts have not specifically defined what percentage of time-sharing qualifies as joint custody. One Court decided that a plan which gave a father alternate weekend visitation and an overnight every week amounting to 30% custody was not joint custody but “liberal visitation.”

If the parents have joint custody, the court looks afresh at the situation and decides what is in the best interests of the child. However, if one parent has primary physical custody (generally more than 60%) it is much harder for the non-custodial parent to prevent the move away. They must prove that the move is being made in bad faith or would be detrimental to the welfare of the child. Only then will the Court review the best interests of the child.

However, the law in this area is far from settled and if you are negotiating a parenting plan you should ask your attorney for advice about what will happen if one parent decides to move away.

Links

www.lasuperiorcourt.org

www.courtinfo.ca.gov/forms/

http://www.ojd.state.or.us/osca/cpsd/courtimprovement/familylaw/parentingplan.htm

www.supreme.state.az.us/dr/Text/ModelPTPlans.htm

www.warrenrshiell.com

© 2006 Warren R. Shiell. All rights reserved. The information contained in this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

Download california_custody_and_visitation.doc

Can a father terminate his parental rights to terminate his child support payments?

2011-09-20T22:28:00.000-07:00

The answer is no. On August 25, 2011, the California Court of Appeal issued an unpublished opinion (that means it cannot be cited or relied upon by other Courts) that was interesting in its analysis. The opinion in the case of Snyder, the Court said:

"termination of parental rights and responsibilities is not authorized when a parent simply wishes to terminate the financial burden of supporting the children. One of the statutory grounds for termination must be shown and the court must find that termination would be in the best interest of the children. The trial court found that termination of father’s parental rights and responsibilities would not be in the best interest of the children. Father has not demonstrated that the trial court’s finding is not supported by substantial evidence. The trial court did not abuse its discretion by denying the motion to terminate on the ground termination would not be in the best interest of the children......... Under section 7822, subdivision (a)(3) [of the California Family Code], termination of parental rights and responsibilities is authorized when the parent leaves the child in the custody of the other parent for one year without communication and with intent to abandon the child, and termination is in the best interest of the child. Father’s motion did not evidence an intent to abandon his children. It indicated the children were in mother’s custody pursuant to court order; the lack of communication was caused by mother’s removal of the children to Colorado, the restraining orders against him, and the children’s failure to make the phone calls to him that the court ordered them to make." The motion expressed father’s frustration with being required to support his children financially, while having his efforts to remain a part of his children’s lives impeded. The motion, however, focused on father’s situation. It did not discuss the children or offer any reasoned argument why terminating his parental rights and responsibilities would be in the best interest of the children."

Can I move with my children to another country?

2011-09-20T22:19:00.000-07:00

Unless the other parent consents, you will require permission of the Court. In such a situation you should consult an experienced family lawyer. The law in this area is complicated. usually one would expect the Court to order a full custody evaluation and hold an evidentiary hearing. A custodial parent's decision to move to a foreign country imposes additional burdens on the noncustodial parent. In such cases, "the child's best interests at a minimum require, first, continuing contact between the child and the parent remaining in this country, and second, guaranteed enforceability of the California custody order in the foreign nation." (In re Marriage of Abargil, supra, 106 Cal.App.4th at p. 1299; see also In re Marriage of Condon (1998) 62 Cal.App.4th 533, 547.)

Celebrating the end of a divorce in style

2011-09-20T15:42:00.000-07:00

We have previously written about how people end their divorces. Here is another article from the New York Times on what one high profile couple did. Read article CHARLES Bronfman and his wife, Bonnie, are inviting 100 of their friends to an elegant evening of cocktails for what they hope will be a once-in-a-lifetime event.Image

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

For more information visit www.la-familylaw.com

Children’s Preferences In Custody Disputes

2009-06-30T14:33:00.000-07:00

Warren R. Shiell

Loving parents usually listen to their children before making important decisions even if it means that their views do not necessarily determine the final outcome. For example, one might ask for a child’s opinion before buying a new house or deciding on a new school but that doesn’t mean that they get to make the final decision. So when parents divorce it is only natural to discuss children’s preferences. An influential therapist has said, “Children feel powerless at divorce and should be invited to make suggestions that the adults will consider seriously. In this way they can feel active instead of passive agents in the crisis.” FN1

However, when parents cannot agree on a parenting plan and the matter goes to court, one of the most difficult issues facing parents, therapists and courts who are called upon to make decisions about custody is the extent to which the preferences of children should be taken into account and the how they should be taken into account. In many states, a child’s preferences must be taken into account in determining their best interests.

In a custody case there seems to be a common misperception that once a child is twelve they get to decide which parent they live with. This is an urban legend. FN2.

Similarly, a judge is not going to ask a child to testify who they want to live with. In fact, many judges are extremely reluctant to allow a child to testify in court or even to speak to the judge privately in chambers. They do not want to place the child into the middle of the dispute and add even more emotional baggage for the child. Children in such situations end up carrying an enormous load of guilt if they favor one parent at the expense of the other.

Nonetheless, a child may want to express a preference about where they want to live. In such cases, there are usually ways for a court to hear the preferences of the children through a custody evaluation by a therapist who is trained in interviewing children. FN3. Some jurisdictions may appoint a minor’s counsel or guardian for the child. Before agreeing to such an appointment you should make sure that the attorney has the proper training to interview children.

When children are interviewed about their preferences, an evaluator will want to know the rationale for the child’s preferences and to consider them in the light of all circumstances of the family relationships to understand how they fit into the child’s best interests.

The first question is whether the child is expressing a genuine preference or they are mirroring the preference of one of the parents as a result of direct pressure or threats or a desire to please. In dysfunctional relationships, preferences may reflect the child’s alignment with the parent they most fear, or the parent they regard as the most unstable. Clues as to reliability can be discerned by the timing of the child’s statements, the type of words used by the child, and the extent they mirror the parents language. FN4

The second question is whether a child’s stated preference to live primarily with one parent is a result of factors which are clearly not in their best interests. Younger children may lack the developmental capacity to understand what life would really be like if their preferences became reality. They may not have a mature sense of time and not have a clear idea what a week without one parent would be like. Also a child may state a preference impulsively or for reasons which are not in their best interests. For example, an adolescent boy may state that he wants to live with his father. Upon closer examination, the evaluator finds out that the real reason for his preference is that the father provides no structure or discipline, lets him drink, stay out all night and so forth. Another example, would be a 5 year old girl who says she wants to live with her father because he buys her candy. Children are fickle and they may express a preference as a result of some minor frustration, “Mom, made me do homework and wouldn’t let me go out.” They may take a position in the heat of the moment just after an argument. Kids also tend to think that the “grass is always greener” and their allegiances fluctuate depending who they’ve just spent time with. That’s why a series of interviews over a period of time and after they’ve been with each parent is a good idea.

Another problem with giving great weight to children’s preferences is that it may weaken a parent’s authority over the kids, if the kids believe that they can control their parents by threatening, “If I don’t get what I want, I’m telling the Judge that I don’t want to live with you anymore.”

The above reasons are not reasons why you should not consult with and listen carefully to your children’s feelings and concerns when you divorce. However, it should be done sensibly with their best interests in mind and children should not be made to feel that they are porns in a battle between two parents.

This information is provided for educational purposes only. For more information about divorce and family law in Los Angeles please visit www.la-familylaw.com

FN1. Wallerstein and Blakeslee (1989).
FN2. In Texas, however, a child may file with the court an affidavit stating who they would like to live with. Texas Family Code section 153.008.
FN3. An excellent review is Richard A. Warshak’s “Payoffs and Pitfalls of Listening to Children.” Family Relations, 2003, Vol 52, No. 4.
FN4. The Art and Science of Custody Evaluations (2007) Gould and Martindale.

California Prenuptial Agreements

2009-05-07T14:43:00.000-07:00

ENFORCEABILITY OF PRENUPTIAL AGREEMENTS

By Warren R. Shiell

In 1976 the California Supreme Court in the landmark decision of In Re Marriage of Dawley in which California’s Supreme Court recognized that prenuptial agreements that contemplated divorce were not invalid per se and against public policy but should be reviewed on a case by case basis to determine if they promoted marital breakdown. In 1986 California took another important step in recognizing the validity of prenuptial agreements by adopting its version of the Uniform Premarital Agreement Act which was further amended in 2002. This Act is now adopted in twenty four other states. The current version of California’s Premarital Agreement Act is contained in Family Code sections1600-1617.

In order to ensure its enforceability any attorney drafting a prenuptial agreement (also referred to an antenuptial or premarital agreement) should be familiar with the provisions of California’s Premarital Agreement Act and the case law. For prenuptial agreements executed after January 1, 2002, the Family Code provides that an agreement will not be enforceable if either (1) the agreement was involuntary or (2) the agreement was unconscionable and there was no adequate disclosure or (3) the agreement violates public policy.

The following general conclusions can be learned from these requirements which are discussed in more detail below:

Both parties should be represented by independent counsel

Never wait until just before the wedding to sign a prenuptial agreement
Always provide full, fair and reasonable disclosure of all income, assets and liabilities of both sides
Ensure that the agreement is fair and does not leave one party without any means of support in the event of divorce

The agreement must be voluntary

Family Code 1615 places on the party seeking to avoid enforcement the burden of demonstrating that the agreement was involuntary.[1] All prenuptial agreement executed after January 1, 2002 are deemed to be involuntary and therefore unenforceable unless the court finds that all of the following requirements are met.:

1. Independent counsel: The party had independent counsel or was advised to seek independent counsel but waived that right in a separate legal writing. This means that if you can only afford one attorney, the non-represented party must sign a separate written acknowledgment that they have been advised to retain an attorney but declined to do so. It is not enough that the acknowledgement is contained in the prenuptial agreement itself. It is often the case that the idea for a prenuptial agreement is initiated by one spouse: usually the one with the greater assets and income. That person may be tempted to provide assistance in finding and paying for the other’s attorney. It is good practice to find and pay for one’s own attorney. If you must rely on a referral from the other party or their attorney then get at least three referrals. Further, if a party cannot afford to pay an attorney, the other party should loan the money for legal fees rather than paying that attorney directly in order to avoid the appearance that the attorney is not independent.

2. Seven day waiting period: At least seven days must have elapsed between the date that the parties were “first presented” with the agreement and advised to seek independent counsel and the time the agreement was signed. This means that if you decide to consult an attorney about drafting a prenuptial agreement days before the wedding, you are too late. Even if you wait until a few weeks before the wedding, you may run foul of this provision because it is not clear whether the seven days runs from the first or last draft of the agreement. A conservative interpretation of the statute requires that once you have negotiated a final draft of the agreement, you must wait a further seven days before signing the agreement.

3. Full disclosure to an unrepresented party: If a party waives their right to independent counsel, for the agreement to still be enforceable the court must find the following: (a) they were fully informed about the terms and basic effect of the agreement and the rights they were relinquishing by signing the agreement (b) they were proficient in the language of the prenuptial agreement and in the language in which explanation of the effect of the agreement was given. Further this advice must be memorialized by the attorney in writing and given to the unrepresented party before they sign the prenuptial agreement. These requirements make it very difficult for only one party to be represented by an attorney. If you think that you are saving money by having only one attorney, you are not. That is because that attorney will have to prepare a lengthy opinion letter to the unrepresented party explaining not only the effect of the prenuptial agreement but also all the rights they will be relinquishing under California law. Therefore, both sides should always be represented by independent counsel in preparing a prenuptial agreement.

4. Duress, Fraud and Undue Influence: The court must also find that in signing the agreement or any of the other writings referred to above, a party did not act under duress, fraud, or undue influence. Fraud is an intentional concealment of a material fact with intent to deprive the other of a legal right. Duress is where a person has been deprived of their free will by a threat to the safety of their person, family or property. Undue influence takes place where one takes a “grossly oppressive and unfair advantage of another’s necessities or distress” or takes unfair advantage of a confidential relationship. The leading case of In Re Marriage of Bonds (2000) 24 Cal. 4^th is interesting because it suggests that there is a high burden to prove duress or undue influence. The Court found that there was no confidential relationship between parties contemplating marriage. They also stated that the overall fairness or unfairness of the agreement was not relevant to the test of its validity. They found that the agreement was voluntary in spite of the fact that Bond’s fiancé was unrepresented, was presented with the agreement a day before the marriage, Swedish was her main language and it was unclear whether there had been full disclosure. In December 1987, Barry Bonds, the baseball player, told his fiancé, Sun, a Swedish waitress and make-up artist who was unemployed at the time, that he wanted a prenuptial agreement prior to the planned wedding that was scheduled to take place the following year. The couple were living in Phoenix Arizona and planned to fly out to Vegas on February 5, 1988 and get married the day after. On the day of the flight, Barry and Sun met at his attorney’s office where she was presented for the first time with a prenuptial agreement to sign. According to evidence at trial she was advised to consult an independent counsel but declined because she had no assets. The agreement also referred to a schedule of the party’s property and assets but there was no such schedule attached. The Supreme Court of California upheld the trial court’s finding that the agreement was voluntary:

“The trial court determined that there had been no coercion. It declared that Sun had not been subjected to any threats, that she had not been forced to sign the agreement, and that she never expressed any reluctance to sign the agreement. It found that the temporal proximity of the wedding to the signing of the agreement was not coercive, because under the particular circumstances of the case, including the small number of guests and the informality of the wedding arrangements, little embarrassment would have followed from postponement of the wedding. It found that the presentation of the agreement did not come as a surprise to Sun, noting that she was aware of Barry's desire to "protect his present property and future earnings," and that she had been aware for at least a week before the parties signed the formal premarital agreement that one was planned.”

If the facts had been the same but the prenuptial agreement had been executed after January 1, 2002 there may well have been a different result since there as no written waiver of the right to obtain independent counsel, no seven day waiting period and no written explanation in Swedish of the effect of the prenuptial agreement and the rights that Sun was relinquishing.

A court might find duress or undue influence if there is a history of domestic violence. The case of In Re Marriage of Balcof (2006) 141 Cal App. 4^th 1509 while dealing with a postnuptial agreement signed after the marriage is illustrative. In that case the court invalidated a post nuptial agreement on the grounds of duress and undue influence where the husband signed a post nuptial agreement transferring a percentage of his business to his wife as a result of continued verbal and physical abuse from the wife, including being hit in the face front of the children and threats by his wife to undermine his relationship with his children.

In the Dawley case, the Supreme Court held that the fact that wife entered the prenuptial agreement because she was pregnant and was concerned about her financial security did not amount to under influence but only because “James, threatened with a paternity suit and likely loss of his position, was in no position to take advantage of her distress” reflecting this rough equality of bargaining power.” This appears to leave the door open that the threat not to marry a pregnant woman may be partial evidence of duress or undue inference. In other States the courts are split on the issue and one commentator has stated that where pregnancy is the only evidence of duress or undue influence, the cases tend to find agreements valid but where there are other aggravating factors in addition to the pregnancy, the agreement is more likely to be invalidated. [2]

The agreement was unconscionable and there was no adequate disclosure

A party may claim that a prenuptial agreement is invalid because it was both unconscionable when the agreement was executed and that there was no adequate disclosure.

The burden is on the party claiming that the agreement is invalid. Unfortunately, there are no California cases that address whether or not a prenuptial agreement is unconscionable in this context. Applying the test of contractual unconscionability, most commentators argue that there must be both procedural and substantive unconscionability. Procedural unconscionability has been defined as oppression caused by unequal bargaining power and surprise due to hidden and unexpected provisions. Substantive unconscionability involves a one sided and unreasonable agreement lacking in any justification. [3]Factors which might have a bearing on the issue of unconsionability would be whether a party was presented with the agreement as a fait accompli at a lawyers offices just before the wedding or was given advanced warning and had an opportunity to review a draft before signing, whether any revisions were made to the agreement at the request of the party challenging enforcement, whether they were represented by counsel, whether they considered the agreement fair at the time of signing and whether the agreement’s terms were clearly set out and not hidden in small print. There are many cases upholding prenuptial agreements which seem unfair but are “well within the permissible scope of advantage to one of the parties.” [4]

Even if the agreement is unconscionable there must also be a finding that there was no full disclosure for the agreement to be invalidated. The person claiming that the agreement was invalid must also prove all of the following elements: a) the party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party, (b) the party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided, and (c) that party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. It is therefore good practice to provide for full disclosure of all the parties’ income, assets and liabilities within the body of the agreement and for the parties to acknowledge that they have exchanged tax returns. The parties should also state in the agreement that they have waived any disclosure beyond that provided.

Violation of public policy

Provisions in an agreement that seek to impose moral or religious conduct upon the parties during the marriage, limit child support obligations and divest the Court of the power to make custody decisions in the event of a divorce are against public policy and may make the entire agreement unenforceable. Therefore it is a good idea to have a provision that the agreement is severable. Agreements which attempt to impose a penalty upon a party as a result of that party’s “fault” during the marriage (e.g. infidelity) are generally held to be unenforceable as contrary to the public policy underlying no-fault divorces in California. In one case a provision in an agreement that contained a liquidated damages clause of $50,000.00 payable by a party who was unfaithful rendered the entire agreement unenforceable. [5] This case therefore makes it very unwise to contain any provisions which seek to place restrictions on the division of property or support on the basis of fault. A more difficult question is whether an agreement that makes provisions for lump sum payouts is unenforceable on the grounds that it promotes divorce. In the landmark Dawley case the Supreme Court drew a distinction between terms which encourage or promote dissolution (invalid) and terms which reorders the property rights of the parties to fit their needs (valid). Therefore, in one case a Jewish couple signed a “Kethuba” in which the husband promised in the event of divorce to give wife his separate property house and $500,000 or one half of his assets whichever was greater.[6] The court believed that the settlement was so substantial that it "threaten[ed] to induce the destruction of a marriage that might otherwise endure" and invalidated the agreement. In another case, the court upheld the agreement where the 76 year old husband millionaire promised to pay his 46 year old fiancé $100,000 if they divorced on the grounds that this payment was calculated to compensate her from the loss of spousal support from a former marriage and was therefore a proper "reordering of property rights to fit the needs and desires of the couple" even though the marriage only lasted a year.[7] For this reason it is good practice to ensure that any payments following divorce are in the form of support instead of lump sum property payments.

Special rules for spousal support

A waiver or a restriction of spousal support in the agreement is unenforceable if either the party was not presented by independent counsel or the agreement was unconscionable at the time of enforcement. There is no provision for a knowing waiver of the independent counsel requirement. It is impossible to know in advance whether the spousal support provision is unconscionable because it is tested at some time in the future. We know that a spousal waiver will not be enforced if it leaves an ill or disabled spousal unable to support themselves.[8] Unfortunately, there is scant California authority for the meaning of unconscionability in the support context. A leading Oregon case which has been cited by California cases suggest that a waiver of support will be upheld unless the other spouse has no other reasonable source of adequate support.[9] That case made it clear that adequate support means the minimum amount a person needs to support themselves and is not related to the parties’ marital standard of living. A Colorado Supreme Court upheld a spousal support waiver between a millionaire husband and wife who was earning only $1500 after the divorce.[10] An Arizona Court of Appeals adopted what it called the “majority rule” established in these cases that spousal support waivers will be enforced unless it would render one spouse without a means of reasonable support or a public charge either because of a lack of property or unemployment. [11] However these cases are not binding on California courts which have not shown any reluctance to follow a “minority” rule if they feel that to be the enlightened position. It may be prudent to contain restrictions on the payment of support rather than an outright waiver in any agreement.

© 2009 Warren R. Shiell. All rights reserved. Los Angeles Divorce and Family Law Attorney. The information contained in this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement. This article states the state of the law as of 2009 and there may be subsequent changes in the law which render all or part of this article obsolete.

California Prenuptial Agreements, California Prenups, California Premarital Agreements

[1] In Re Marriage of Bonds (2000) 24 Cal, 4^th 1, at 37.

[2] Drafting Prenuptial Agreements by Gary N. Skoloff, Richard H. Singer, Jr. Ronald Brown (2008 Supplement case review)

[3] Little v. Auto Steigler, Inc. (2003) 29 Cal. 4^th 1064.

[4] In Re Marriage of Dawley (1976) 17 Cal. 3d 342 (premarital agreement in which all property, earnings and income acquired during marriage remain the acquiring party’s separate property); Marriage of Bonds (2000) 24Cal. 4^th1, (premarital agreement wherein each party waived any interests in any earnings and acquisitions of the other during marriage); Marriage of Cleveland (1976) 76 Cal. App. 3d 357 (agreement signed 15 minutes before marriage providing that all property then owned by each party acquired daring marriage would remain the acquiring party’s separate property).

[5] Diosdad v. Diosdado (2002) 97 CA4th 470.

[6] E.g Marriage of Noughrey (1985) 169 Cal App. 3d 326

[7] In Re Marriage of Bellio (2003) 105 Cal App. 4^th 630.

[8] In Re Marriage of Rosendale (2004) 1119 Cal App. 4^th, 1202 (spousal support waiver unenforceable where wife suffered brain damage, on life support, numerous injuries. Court also stated that Family Code section 1612 only clarified prior common law requirements.)

[9] Unander v. Undander (Ore. 1973) 506 P.2d 719.

[10] Newman v. Newman (Col 1982) 653 P.2d 728.

[11] Williams v Williams (ariz 1990) 801 P.2d 495.

Surge in Child Support Modifcations Reported By Los Angeles Times

2009-05-04T11:31:00.000-07:00

By Molly Hennessy-Fiske May 3, 2009 Los Angeles Times

Surge in child support modifications

Mark Boster / Los Angeles Times

Doreen and Carlos Mazariego wait for their case to be called at L.A. County’s Central Civil West Courthouse, where they are appealing for lower child support payments for Carlos’ children from a previous marriage.

As unemployment rises, so does the number of cases being reassessed. Collections are up as the state garnishees more unemployment checks, and more from the middle class are seeking the state's help.

By Molly Hennessy-Fiske
May 3, 2009

California's rising unemployment rate is driving a steep increase in child support cases, as the newly jobless appeal for increases in monthly payments or argue that they can no longer afford the amounts ordered by the court.

In Los Angeles County, about 450 new cases are filed each day, double the amount at this time last year. More than 3,000 calls come in daily -- up 25% -- increasingly from custodial parents asking child support staffers to crack down on deadbeats. The number of parents seeking help with child support modifications has tripled during the last month and a half, with some parents showing up at 5 a.m. to wait in line.

International: 100 million dollar German Heiress seeks to enforce prenup

2009-04-21T08:43:00.000-07:00

This from the UK's Telegraph April 21, 2009

One of Germany's richest women, Katrin Radmacher, is to use the British courts in an attempt to enforce a prenuptial agreement which would leave her ex-husband without a penny of her £100 million fortune.

Divorce lawyer Fiona Shackleton has been hired by Nicolas Granatino to oppose his ex-wife Katrin Radmacher

In a landmark case, Miss Radmacher, a paper industry heiress, will argue that Nicolas Granatino is bound by an agreement he signed before their marriage in 1998 in which both parties agreed not to make any claim on the other if they divorced.

If she is successful, it could result in prenuptial contracts becoming legally binding under English law for the first time.

Mr Granatino, 38, who gave up his job as an investment banker to become a £30,000 a year researcher at Oxford University, has already been awarded a £5.6 million lump sum following a High Court hearing last July.

On that occasion Mrs Justice Baron ruled that it would be "manifestly unfair" to hold Mr Granatino to the contract, which was signed in Germany before the couple married in London.

Miss Radmacher, 39, will take the case to the Court of Appeal next week, but her legal team will face a formidable barrier in the form of Fiona Shackleton and Nicholas Mostyn QC, the lawyers who represented Sir Paul McCartney in his divorce from Heather Mills and who have been hired by French-born Mr Granatino.

The couple met in Tramp, the members-only nightclub in Mayfair, when Mr Granatino was working as a £320,000 a year merchant banker for JP Morgan, and his wife was running a clothes shop in Knightsbridge with her sister. The couple went on to have two daughters now aged nine and six.

Problems began in 2003 when Mr Granatino decided on a change of career and took up a lowly-paid post as a biotechnology researcher at Oxford, and the couple divorced in 2006.

At the previous hearing, Mrs Justice Baron heard that the husband had "virtually no assets" whilst his ex-wife had £54m in liquid assets and another £52m in capital assets, giving her an annual income of £2m.

Although the judge recognised that the prenuptial agreement would have been fully enforceable in Germany or France, they have never been legally binding here, and she said that the arrival of the couple's children had "so changed the landscape" that it should be set aside, and awarded Mr Granatino £5,560,000.

She also noted that the husband had not received independent legal advice before signing the contract and his wife had not disclosed the full extent of her assets at the time.

Miss Radmacher, meanwhile, accused her husband of deliberately delaying his doctorate to "maximise his claim" and said that if he "wishes to be an academic he must live as such".

Miss Radmacher was granted leave to appeal after two judges ruled that she had an "arguable case" that her husband should only be entitled to maintenance payments to cover the cost of looking after the couple's daughters, who spend a third of their time with their father and the remainder with their mother in Düsseldorf.

The outcome of the case will be keenly anticipated by divorce lawyers in London, seen as the divorce capital of the world because of the number of wealthy foreign couples who choose to make their homes here.

English courts tend to protect the weaker financial party in divorce cases, and most experts expect Miss Radmacher to fail.

Julian Lipson, head of family law at Withers, said: "The Court of Appeal will need to weigh up the conundrum between respecting the autonomy of parties to agree a financial settlement at the outset of their marriage, and the need for state interference at the time of divorce to protect the financially weaker party and any children.

"It is a political hot potato for one European member state to be saying that it will not respect a legally binding contract entered into in another, but the English court tends to be paternalistic in protecting divorcing spouses from themselves."

Los Angeles DIvorce Attorney

Family Lore: Myerson: Not difficult

2009-04-07T22:24:00.000-07:00

Family Lore: Myerson: Not difficult Another great article on the Myerson case in the UK where after the divorce husbands shares went from 29 million pounds to minus five hundred thousand and he lost appeal to vacate his divorce settlement

www.la-familylaw.com

Family Lore: Myerson: Not difficult

2009-04-07T22:22:00.000-07:00

Family Lore: Myerson: Not difficult

Credit-crunched tycoon loses bid to reduce £11.2million divorce payout

2009-04-01T09:42:00.000-07:00

This from the Daily Mail of London

A City tycoon who claimed his £11.2million divorce payout should be renegotiated because he had been hit by the credit crunch was today told that he could not 're-write' the deal.
Brian Myerson, 50, had told the Court of Appeal that the global economic crisis had taken a heavy toll on his assets following his divorce from his wife Ingrid.
The Johannesburg-born investor and his sculptor wife divorced in March last year, and he was ordered to pay her 43 per cent of the total £25.8million assets of the marriage, including their luxury South African beach house.
But polo-playing Mr Myerson decided to take the bulk of his £14.6million cut in share in investment company Principle Capital Holdings.
As the credit crunch tightened its grip, the businessman saw the value of his shares plummet.
In a case that was watched eagerly by wealthy business folk facing similar woes, he told the court last month that if he complied with the order, he would be half a million pounds out of pocket.
Today, three appeal judges dismissed his challenge, saying the 'natural process of price fluctuation, however dramatic' did not satisfy the legal test for a change in a settlement.
They said that although the appeal had its 'dramatic features', its resolution was 'not difficult'.
Lord Justice Thorpe, in the written judgement, said: 'The husband, with all knowledge both public and private, agreed to an asset division which left him captain of the ship, certain to keep for himself whatever profits or gains his enterprise and experience would achieve in the years ahead.'

Ingrid Myerson leaves the High Court
In a rhetorical conclusion he added: 'When a businessman takes a speculative position in compromising his wife's claims, why should the court subsequently relieve him of the consequences of his speculation by re-writing the bargain at his behest.'
In a cautionary note for anyone considering following the executive chairman's actions he said many could be contemplating an attempt to reopen settlements after encountering 'financial eclipse', but he added: 'They would be well advised to heed the warning that very few successful applications have been reported.'
He did however offer some hope for My Myerson, pointing out that he still enjoyed control of his company and the 'opportunities that go with it'.
'The market place may take a pessimistic view of his future prospects. He may not share the market place view. Unusual opportunities are created for the most astute in a bear market,' said the judge.
Neither of the Myersons were in court to hear the judgement.
But a spokesman for the tycoon said: 'Mr Myerson is disappointed that the court failed to recognise that the economic downturn had rendered his divorce settlement unfair.
'The aim of Mr Myerson's appeal has always been to ensure that the division of assets with his ex-wife was equitable and he will now take his appeal to the House of Lords.'
Before the divorce, the couple, who married in December 1982 and who have two sons and a daughter, lived in a £5million home in Hampstead, north London.
Mr Myerson, who bought an £8million home in Geneva after the divorce, agreed to pay his former wife £9.5million in instalments over four years. She also received a property in South Africa, which was worth £1.5million.
Mr Myerson, the court heard, had property assets, one of which he sold to cover the first instalment of the lump sum, £7million paid in April 2008.
He has four further equal instalments of £625,000 to pay over the next four years.
But Mr Myerson's share stake, once standing at £15million and rising as the price reached £3 per share, had dramatically fallen with the value per share at the date of the initial Court of Appeal hearing standing at 27.5 pence.
His spokesman said yesterday that the high court would be hearing a freestanding application to cancel the further payment due to his ex-wife under the terms of the existing settlement.
'That hearing will be in private,' he said.

divorce los angeles

Credit-crunched tycoon loses bid to reduce £11.2million divorce payout

2009-04-01T08:17:00.000-07:00

Young Children should not watch TV

2009-03-24T21:30:00.000-07:00

An old Article from Time

Led by Frederick Zimmerman and Dr. Dimitri Christakis, both at the University of Washington, the research team found that with every hour per day spent watching baby DVDs and videos, infants learned six to eight fewer new vocabulary words than babies who never watched the videos. These products had the strongest detrimental effect on babies 8 to 16 months old, the age at which language skills are starting to form. "The more videos they watched, the fewer words they knew," says Christakis. "These babies scored about 10% lower on language skills than infants who had not watched these videos."
It's not the first blow to baby videos, and likely won't be the last. Mounting evidence suggests that passive screen sucking not only doesn't help children learn, but could also set back their development. Last spring, Christakis and his colleagues found that by three months, 40% of babies are regular viewers of DVDs, videos or television; by the time they are two years old, almost 90% are spending two to three hours each day in front of a screen. Three studies have shown that watching television, even if it includes educational programming such as Sesame Street, delays language development. "Babies require face-to-face interaction to learn," says Dr. Vic Strasburger, professor of pediatrics at the University of New Mexico School of Medicine and a spokesperson for the American Academy of Pediatrics. "They don't get that interaction from watching TV or videos. In fact, the watching probably interferes with the crucial wiring being laid down in their brains during early development." Previous studies have shown, for example, that babies learn faster and better from a native speaker of a language when they are interacting with that speaker instead of watching the same speaker talk on a video screen. "Even watching a live person speak to you via television is not the same thing as having that person in front of you," says Christakis.
This growing evidence led the Academy to issue its recommendation in 1999 that no child under two years old watch any television. The authors of the new study might suggest reading instead: children who got daily reading or storytelling time with their parents showed a slight increase in language skills.
Though the popular baby videos and DVDs in the Washington study were designed to stimulate infants' brains, not necessarily to promote language development, parents generally assume that the products' promises to make their babies smarter include improvement of speaking skills. But, says Christakis, "the majority of the videos don't try to promote language; they have rapid scene changes and quick edits, and no appearance of the 'parent-ese' type of speaking that parents use when talking to their babies."
As far as Christakis and his colleagues can determine, the only thing that baby videos are doing is producing a generation of overstimulated kids. "There is an assumption that stimulation is good, so more is better," he says. "But that's not true; there is such a thing as overstimulation." His group has found that the more television children watch, the shorter their attention spans later in life. "Their minds come to expect a high level of stimulation, and view that as normal," says Christakis, "and by comparison, reality is boring."
He and other experts worry that the proliferation of these products will continue to displace the one thing that babies need in the first months of life — face time with human beings. "Every interaction with your child is meaningful," says Christakis. "Time is precious in those early years, and the newborn is watching you, and learning from everything you do." So just talk to them; they're listening.

Divorce Custody television

Custody and Hague Convention 9th Circuit

2009-03-24T21:05:00.000-07:00

This from Richard Gould Saltman's Family law Blog - The 9th Circuit U.S. Court of Appeals has reversed a Federal trial court and denied an petition under the Hague Convention on the Civil Aspects of International Child Abduction for return of the child to Mexico, pending an actual custody determination. Meaning that the custody determination in the US must be decided before a child is returned to Mexico under the Hague Convention.

Los Angeles Divorce Attorney

Easier for Grandparents to adopt

2009-03-24T20:52:00.000-07:00

From Los Angeles Times
By Maura Dolan 8:31 PM PDT, March 19, 2009
The California Supreme Court sided with grandparents and others who want to adopt children over their parents' objections in a pair of rulings that legal experts said would make it easier for guardians to prevail in adoption cases.Acting in two parental rights cases, the state high court unanimously upheld the constitutionality of a 2003 law that allows a court to end those rights when the parent has failed to take responsibility for the child for two years and adoption by the guardian would benefit the child.
The rulings clear the way for the adoption of potentially scores of California children being reared by grandparents or other legal guardians, a common situation when the parents are poor, disabled, addicts or in prison."As guardianship continues for an extended period, the child develops an interest in a stable, continuing placement, and the guardian acquires a recognized interest in the care and custody of the child," wrote Justice Carol A. Corrigan, author of Thursday's decisions.C. Athena Roussos, who represented the guardians in one of the cases, said the ruling "really furthers the rights of children."
But Kimball J.P. Sargeant, who represented a parent, said the decision struck at "a fundamental constitutional right to parent." He said it was particularly troubling that the ruling came when the sputtering economy might force parents who lose their jobs and homes to place their children with other family members."It makes guardianships much more problematic for parents because basically what this means is that, if they agree to a guardianship, those to whom they entrust their children can adopt them two years later," Sargeant said.The rulings apply to guardianships initiated by private parties, not by the state.In one of the cases, a mother with a history of drug addiction contended that the 2003 law was unconstitutional because it did not require a showing that she was unfit at the time the court revoked her parental rights. The court said that "some showing of parental unfitness" was generally required, but "current unfitness" was "not always necessary."In the other case, the court overturned an appeals court ruling that said the law was unconstitutional as it applied to an unwed father. The high court said the father could lose his parental rights if it was in "the best interest of the child."The rulings mean that parents could lose their children even if they visited them while they lived with guardians.In the first case, a heroin addict with a criminal history tried to block her daughter's paternal relatives from adopting Ann S., born in 2000. With the woman's consent, Ann's aunt and her husband had become the legal guardians when Ann was 17 months old.The guardians have been married more than 25 years. They tried and failed to revoke the mother's rights while she was in prison in 2003. The mother was released the next year and did "appear to be trying to turn her life around," a licensed family therapist told a court at the time.But an adoption study by a social worker concluded it would be "extremely detrimental" to Ann if she were not permanently placed with her guardians. The report said Ann was a friendly, normal 4-year-old child who called her guardians "Mama" and "Papa" and lived with them in a large and comfortable home.The lower court ruled in favor of the guardians, and the mother appealed the case to the state high court, which ruled that reunification of mother and daughter was "at best a remote possibility."Sargeant, the mother's lawyer, said Thursday that the mother was back in prison on a conviction in a case that was still pending when she was released in 2004. He said she had been sending her daughter cards and letters, taking parenting classes and doing "everything she can" pending her release.Roussos, the lawyer for Ann's guardians, said they were overjoyed with the ruling and planned to adopt Ann as soon as it became final. The couple lives in a rural community in Yolo County.In the other case, an unwed father tried to block his parents from adopting his child, Charlotte D.Both of her parents had drug and alcohol problems, the court said. The mother has not seen the child since 1995, and the father, who lived for a while with his parents and daughter, had threatened his mother physically and injured his father, it said.Once, Charlotte's father brought her into his room, placed the family cat in a sack and swung it around "until it screamed," the court said.The grandparents, who live in Ventura County, tried to adopt Charlotte in 2004. A county adoption worker reported that Charlotte described her father as "scary." The report said Charlotte, then 9, was "a very attractive, petite, personable, precocious, sensitive, articulate child" who played the violin, participated in the school band, loved to ski and was taking tennis lessons.An appeals court later ruled that the father should have been given an opportunity to prove he was a fit parent. But the state high court said the evidence showed overwhelmingly that he was not."He failed to make child support payments, behaved inappropriately and even cruelly to Charlotte and to both of his parents, abused his visitation rights and persistently engaged in criminal behavior," the court concluded.
Los Angeles Divorce Attorney

International Divorce

2009-03-18T22:00:00.000-07:00

Thanks to Jeremy Morely for bringing this article from the economist to our attention. Our office has handled several cases of forum shopping.

Money in misery
Feb 5th 2009From The Economist print edition

MARRIAGES that thrive on money may wither with thrift. That is a depressing lesson from the world economic crisis, which has brought a surge in business for divorce lawyers in former boomtowns such as London and New York. When one or both spouses is from a foreign country, divorce is not just sad but complicated too—especially when most assets may be in a third country, a pension in a fourth, and offspring in a fifth.

Globalisation has made binational marriages, once exotic, much more common among high-earning, highly mobile families. When they stop being high-earning, life gets tricky. Louise Spitz of Manches, a London law firm, has observed an “exceptional” period since September. “With the redundancies in the City there has been a concomitant wave of marital upheaval,” she says. “Families used to living on huge bonus income are unable to continue with the commitments they have taken on—housing and school fees and the cost of living the high life.” Manches has taken on eight more divorce lawyers to cope with the extra work. A high proportion, Ms Spitz and other lawyers reckon, of the once-rich couples now breaking up include at least one foreign spouse.

So who sues whom for divorce and where? How much money will be awarded to whom? Will it be collected? And how? The answers are far trickier than most non-lawyers would imagine. Take, for example, this lightly disguised but real-life example: a wealthy philandering Texan banker with a French wife. Formerly resident in New York, with a recently-lost good job and rented house in London, he now plans to move back to Texas. His wife, newly suspicious and with no money of her own, wants to take the children home to France. She needs her family, she says. What she actually needs is urgent, specialist legal advice.

A London divorce settlement might give her many millions: a house, school fees and maintenance until the children are adults, or even indefinitely. An English court may well disregard a prenuptial agreement, particularly if one of the parties did not have independent legal advice. And it will tend to care more about immediate needs than about whether assets were acquired during the course of the marriage, or predate it, or are the result of an inheritance. All assets are likely to be divided. If the wife is lucky, she may even be able to collect her share.

In the wife’s native France, things will look very different. In her favour is that conduct counts—so adulterous spouses will be penalised. In most other Western countries, divorce courts have given up attributing blame. Even domestic violence is often ignored, though it still counts heavily in some jurisdictions, such as Florida.

But in the typical French divorce, any alimony (also called maintenance) will be less and for eight years at most; any prenuptial agreement will be binding. Only assets acquired during the marriage are up for grabs. If, in our example, the American husband moves to France, he will be expected to play an equal part in bringing up the children—a requirement that would delight some fathers, but by no means all.

If the errant husband has the divorce filed in Texas, the tables are turned even more dramatically. The wife risks being left penniless. In Texas state law, alimony is usually minimal and temporary—though child support, thankfully, is a federal matter. In America, the law varies hugely between states. Most exclude from the settlement assets acquired before the marriage (but some don't). Most exclude inherited property (but Massachusetts does not). In most states, judges will enforce prenuptial agreements (but not everywhere).

If the Texan husband decides to file in New York, however, he may find the outcome startlingly expensive. As in some English court rulings, New York courts may award one party a share of a spouse’s future earnings—assuming that they are based on a qualification, such as an MBA or medical degree, that was earned thanks to a joint effort in happier times. Yet New York law has one big catch: unless the parties have signed a formal separation agreement it requires proof of cruelty, adultery or abandonment, whereas other states allow “irreconcilable differences” as grounds for a divorce. So binational couples in New York who want to end their marriage may find themselves unable to do it there, and squabbling about alternatives. Rules differ, too, on what constitutes residency in a particular jurisdiction. In hedonistic Las Vegas, six weeks is enough.

According to Jeremy Morley, an international divorce lawyer based in New York, hiding assets from a spouse is also much easier in some countries than in others. California, at one extreme, requires complete disclosure of assets. At the other extreme, Austria, Japan and many other countries require very little disclosure. A California court recently ordered a husband to pay $390,000 in costs and penalties to his wife because he did not disclose some significant financial information. In another jurisdiction, the assets could have stayed hidden.

Who gets the children?
Cash and kids may pull in different directions. Countries that are “man-friendly” (shorthand for favouring the richer, usually male, partner) when it comes to money may be “mum-friendly” when it comes to custody. Japan, for example, is quick and cheap for a rich man—unless he wants to keep seeing his children. English courts are ferocious in dividing up assets, even when they have been cunningly squirrelled away offshore. But compared with other jurisdictions, they are keen to keep both divorced parents in touch with the children.

The children’s fate, even more than family finances, can be the source of the hottest legal tussles. The American State Department unit dealing with child abduction has seen its caseload swell from an average in recent years of 1,100 open cases to 1,500 now. In Britain, the figures rose from 157 in 2006 to 183 in 2007, according to Nigel Lowe of Cardiff Law School.

Of the cases reported worldwide, mothers are the main abductors when a marriage breaks down. They are cited in 68% of cases. Ann Thomas, a partner with the International Family Law Group, a London law firm, says child abduction has increased “dramatically” in the past three years or so. A big reason is freedom of movement within the European Union, which has enabled millions of people from the new member states to live and work legally in the richer part of the continent. That inevitably leads to a boom in binational relationships, and in turn more children of mixed marriages. Ms Thomas notes that when a relationship between a foreign mother and an English father breaks down, the mother often assumes that she can automatically return to her homeland without the father’s permission. That may be a costly legal mistake.

Most advanced industrialised countries, plus most of Latin America and a sprinkling of others, are signatories to the 1980 Hague Convention, a treaty which requires countries to send abducted children back to the jurisdiction where they have been living previously. That is fine in theory: it means that legal battles have to be fought first, before a child is moved. It is a great deal better than a fait accompli which leaves one parent in possession, while the other is trying to fight a lengthy and expensive legal battle in a faraway country.

But in practice things are very different. Views on the desirability of children being brought up by “foreigners” vary hugely by country; so do traditions about the relative roles of fathers and mothers in bringing up their children after divorce. In most Muslim countries, for example, the assumption is that children over seven will be brought up by the father, not the mother, though that is trumped by a preference for a local Muslim parent. So the chances of a foreign mother recovering abducted children from a Muslim father are slim. Apart from secular Turkey and Bosnia, no Muslim countries have signed the Hague Convention, though a handful have struck bilateral deals, such as Pakistan with Britain, and Egypt and Lebanon with America.

Japan has not signed it either—the only member of the rich-country G7 not to have done so. Canada and America are leading an international effort to change that. Foreign fathers, in particular, find the Japanese court system highly resistant to attempts even to establish regular contact with abducted and unlawfully retained children, let alone to dealing with requests for their return. Such requests are met with incomprehension by Japanese courts, complains an American official dealing with the issue. “They ask, ‘Why would a father care that much?’” Countries edging towards signing the Hague Convention include India, Russia and mainland China. But parents whose ex-spouses have taken children to Japan should not hold their breath: as Ms Thomas notes, even if Japan eventually adopts the Hague Convention, it will not apply it retrospectively.

Games with different rules

Moreover, even signatory countries may be bad at abiding by the convention, especially when it means enforcing the return of children to a parent alleged to have been abusive. The annual State Department report to Congress on observance of the Hague Convention lists Honduras as “non-compliant” and nine other countries (Brazil, Bulgaria, Chile, Ecuador, Germany, Greece, Mexico, Poland and Venezuela) as showing “patterns of non-compliance”. Anyone in a wobbly marriage with a citizen of these countries might bear that in mind before agreeing to let the children go on holiday there.

But America is not blameless either, particularly if parents try to recover their children through state rather than federal courts, where judges may be unaware of the Hague Convention’s requirements. “Except in Florida, New York, California and Texas, a judge may only hear one Hague case in his career,” says a State Department official. Judges who get it wrong can be overruled on appeal, but it takes time and money: the Hague Convention aims to make proceedings quick and cheap, thus making abduction less likely. Whereas Britain offers automatic legal aid to the foreign parent trying to recover the children, in America they must rely on their own resources or a pro bono lawyer.

Making wily choices about possible jurisdictions is often criticised as “forum shopping”. But the stakes are high: ending up in the wrong legal system, or with the wrong approach, may mean not just poverty but misery. Mr Morley says the differences between one divorce jurisdiction and another are far more than, say, playing a sporting fixture at home or away. As the table shows, totally different rules apply.

So it is understandable that a disillusioned spouse, and his or her lawyer, will try hard to get the most favourable jurisdiction. Yet that can all too easily lead to each party starting, or even finishing, a divorce in a different country. Sorting out these cross-border legal wrangles can be colossally expensive. A tussle between jurisdictions usually starts in six figures, in dollars, euros or pounds; when all four legal bills, of both sides’ costs in both countries, are totted up, it easily shoots into seven figures. And it is hugely time-consuming. The children involved may reach adulthood before the final verdicts are given.

International attempts to tidy up the law have made some things better, but not all. The European Union (where 875,000 divorces take place each year, a fifth of them binational) introduced a reform in 2001 called Brussels II. This has largely stopped “forum shopping”, with a rule that the first court to be approached decides the divorce.

The problem with this rule is that it encourages those in troubled marriages to end them, not mend them. Even if a marriage is doomed, the trend in family law is to resolve the dispute out of court, typically through mediation. A race to issue proceedings makes it much more likely that matters will get nasty, as well as lengthy and costly. David Hodson, an international family law specialist, notes sadly that “This law works against reconciliations and resolutions out of court. Cases can be won and lost by one spouse issuing a divorce a matter of minutes before the other spouse. That must be wrong.”

The law of dirty tricks
Brussels II also encourages some less scrupulous lawyers to behave badly, urging their clients to act fast and dirtily. A London divorce lawyer recalls a case where a husband from an overseas country had acquired his wife’s European nationality by marriage, living briefly in her continental home country before moving to London. Five years and two children later, the marriage was on the rocks, with the husband away working in East Asia. Without his wife’s knowledge, he filed for divorce in her country, one of the stingiest jurisdictions in Europe (from her point of view). His only connection with it was his marriage to the wife he was trying to dump cheaply. Had the case been heard in London, where both parties had much stronger links and had owned a home for years, she would have done far better.

To avoid such cases, a further EU measure, Rome III, tried to stipulate that a marriage should be ended only by the law that has governed it originally. That works fine in similar countries where divorce rules are highly codified, precedents do not matter and judges’ discretion is limited. It already applies in some northern European countries, so that Dutch courts, for example, will apply French law when dealing with a French couple whose marriage has ended during a posting in The Hague.

But such a rule works much less well when other systems are involved. English law is much more complex, and is based on intricate precedents and judges’ discretion that cannot simply be looked up and applied. Even greater difficulties arise when couples come from more distant countries. Would a Swedish court want to apply sharia law to a divorcing couple recently arrived from Saudi Arabia? Many Swedes flinched at that. Mr Hodson complains that it would mean that “the essence of a country’s community life found in its family laws is removed and replaced by the laws of another country.” In the United Kingdom, he says, it would be “entirely against [national] law and policy.”

For richer, for poorer
Now that Rome III has been stymied, a group of nine countries, led by Spain and France, is going ahead under a provision in EU law known as “enhanced co-operation”. This allows like-minded countries to work together, leaving the unwilling behind. And still more international tidying-up operations are in the works. Another Hague Convention tries to harmonise arrangements on cross-border child-support payments—an area that tends to be a bit less contentious than divorce, where views of what is fair differ wildly.

Perhaps the biggest weakness of the system is the advantage that it gives to the richer partner when an international marriage breaks up. Experienced lawyers can operate, if necessary, with high speed to help the poorer spouse—for example, by putting the first hefty legal bill on the husband’s credit card before he is aware of what his wife is up to. In England, that may be followed by a swift move to initiate divorce proceedings, and then an emergency maintenance application that includes provision for legal costs. When the richer party has assets in that jurisdiction, a fair fight is possible. But Kerstin Beyer, a German-British divorce lawyer at the International Family Law Chambers in London, says the tables are often stacked against the poorer (and usually less knowledgable) spouse. Some husbands file for divorce abroad and simply fail to turn up at the English court, hoping that the cost and delay of enforcing the judgment abroad will lead their ex-wife to give up. A client of hers trying to gain the assets she had been awarded in Colorado was faced with a demand for a $15,000 upfront payment from a lawyer there: an impossible expense for someone of her means. Another has been pursuing, expensively and so far fruitlessly, assets in Luxembourg and Germany awarded by a London court. Pensions are particularly tricky. Some countries split them between divorcing couples as a matter of course; others regard such requests from foreign courts coldly.

More fundamentally, divorce arrangements in countries with English-style common law are still liable to be influenced by highly atypical fights between the super-rich, who can afford to take cases to the highest courts. In most marriages there is barely enough money to support one family in one country, notes Ms Spitz. Spreading that between two sides is a stretch, even without an expensive legal fight. As house prices plunge and savings shrivel, divorcing couples are fighting over a shrinking cake.

www.la-familylaw.com

Effect of Recession on Divorce

2009-01-02T17:42:00.000-08:00

Paul McCartney Divorce Judgmenet in Full

2008-03-18T09:13:00.000-07:00

Telegraph
By Caroline Gammell and Matthew Moore

The judge who heard the Heather Mills and Sir Paul McCartney divorce case has said that Miss Mills was an "inaccurate and inconsistent" witness.
Extracts: Judge's harshest words from the full divorce ruling
The McCartney-Mills judgement in full
Mill's contribution to marriage: an acrylic fingernail
Previously unknown details of the divorce settlement have been made public in Mr Justice Bennett's full judgment, after a court refused Miss Mills's application for secrecy.

Telegraph TV: Outside court Heather Mills yesterday spent 11 minutes attacking the legal system
In it, the judge states that the former model's evidence was "not just inconsistent and inaccurate but also less than candid. Overall she was a less than impressive witness." The judge described Sir Paul evidence as "balanced". He said: "He expressed himself moderately though at times with justifiable irritation, if not anger. He was consistent, accurate and honest." However, Mr Justice Bennett said: "But I regret to have to say I cannot say the same about the wife's evidence.
"Having watched and listened to her give evidence, having studied the documents, and having given in her favour every allowance for the enormous strain she must have been under (and in conducting her own case), I am driven to the conclusion that much of her evidence, both written and oral, was not just inconsistent and inaccurate but also less than candid. Overall she was a less than impressive witness."
The judge said that Miss Mills was a "strong-willed and determined personality" who had shown great fortitude in overcoming her disability.
He said: "She has conducted her own case before me with a steely, yet courteous, determination." He also described her as a "kindly person" who is "devoted to her charitable causes". The decision to make the judgment public is a new blow to Miss Mills, who had wanted the judge's full ruling to remain confidential, arguing that it would compromise their daughter's privacy. Sir Paul had lobbied for it to be released.A summary of the divorce ruling - which left Miss Mills with a fraction of the sum she had demanded - was made public by the High Court yesterday.But her application for an appeal against the judge's preference for releasing the full statement was rejected this morning and the judgment released.
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Miss Mills, who represented herself throughout the divorce hearing, was not at the Court of Appeal to hear the decision.
Sir Paul sealed an emphatic victory over his ex-wife yesterday after a judge awarded her £24.3 million, less than a fifth of the £125 million she had sought from their four year marriage.
While Sir Paul, 65, left the High Court with a smile and no comment, his former wife launched an 11-minute tirade against the British judicial system in front of scores of journalists and the television cameras.
Miss Mills, 40, said the couple's daughter Beatrice, four, was now "meant to travel 'B' class while her father travels 'A' class".
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She alleged that Sir Paul's legal representative Fiona Shackleton had handled the case in the "worst way you could ever, ever imagine".
But the former model insisted she was happy with the ruling and said she would not contest the judgment.
"It was an incredible result in the end to secure mine and my daughter's future and that of all the charities that I obviously plan on helping - because you know it has been my life for 20 years."
The ruling by Mr Justice Bennett was imposed after the couple failed to reach an agreement during a six day hearing last month.
It was disclosed that the ex-Beatle had initially offered Miss Mills £15.8 million, which was rejected.

Warren Shiell is a Los Angeles Divorce Attorney

New York Times article on the role of religion in custody disputes

2008-03-06T08:22:00.000-08:00

New York Times By NEELA BANERJEE article
Published: February 13, 2008
A 27-year-old single mother at the time, Mrs. Snider felt she had ruined her life through a disastrous marriage and divorce. But in her kitchen that night, after reading pamphlets and Bible passages that her boss had pointed her to, she realized she was a sinner, she said, she prayed for forgiveness, and put her trust in Christ.
Four years later, the conservative brand of Christianity Mrs. Snider embraced became the source of a bitter, continuing custody battle over her only child, Libby Mashburn.
Across the country, child-custody disputes in which religion is the flash point are increasing, part of a broader rise in custody conflicts over the last 30 years, lawyers, judges and mediators say.
“There has definitely been an increase in conflict over religious issues,” said Ronald William Nelson, a Kansas family lawyer who is chairman of the custody committee of the American Bar Association’s family law section. “Part of that is there has been an increase of conflicts between parents across the board, and with parents looking for reasons to justify their own actions.” Another factor, he said, is the rise of intermarriage and greater willingness by Americans to convert.
Nobody keeps track of who wins in these religious disputes, but lawyers say that judges are just as likely to rule in favor of the more religiously engaged parent as the other way around. That is because, for constitutional reasons, judges are reluctant to base their rulings primarily on the religious preferences of parents.
Judges do not want to take on custody disputes rooted in religion, said lawyers like Gaetano Ferro, who until recently served as president of the American Academy of Matrimonial Lawyers. Mr. Ferro said, “How will a judge say in any rational fashion that Islam is better than Buddhism, Catholicism better than Judaism, or Methodism better than Pentecostalism?”
As a result, more and more states have tried to keep custody disputes out of court by mandating mediation. But the effect has been piecemeal, and religious disputes have proven to be among the most difficult to resolve, lawyers said.
From the age of 1 month, Mrs. Snider’s daughter had lived with her, and later Mrs. Snider’s new husband, Brian Snider, with occasional visits to her biological father.
But in 2003, when Libby was 6, an Alabama court gave primary custody to her father, William Mashburn, after he and Mrs. Snider’s own family argued that the strict religious upbringing Libby received at her mother’s home, which involved modest dress, teachings about sin and salvation, and limited exposure to popular culture, was damaging her.
“We were easy targets because we were made to look like cultists,” Mrs. Snider, 36, said. “I think whether anyone admits it or not, almost all of the ruling had to do with religion. Nothing I had done was called into question except that.”
Generally, custody disputes are resolved outside the courtroom, lawyers said.
Such cases have increased, however, because a generation ago, mothers almost always got custody and were responsible for nearly all aspects of children’s upbringing. But now, both parents are usually involved in raising children after divorce, and that can lead to dispute. Data regarding custody cases are not uniform, according to the National Center for State Courts, but for 10 states for which it has data from 2002, all show an increase in custody cases coming to trial.
Conflicts sometimes arise when an interfaith marriage dissolves or when one parent converts to a different religion after divorce.
In Oregon, a dispute between James Boldt and his former wife, Lia, was recently decided by the State Supreme Court. Mr. Boldt, the custodial parent, converted to Judaism after the divorce and sought to have their son, now 12, convert, and be circumcised.
The court ruled that custodial parents could generally decide if a child should be circumcised. But given the son’s age, it ordered the lower court to ascertain his wishes. If they conflict with his father’s, the court may have to reconsider the custody arrangement, the court ruled.
Tensions can emerge when one parent takes a turn toward fundamentalism. In 2006, the United States Supreme Court let stand a decision by the Supreme Court of Pennsylvania that permitted Stanley Shepp to tell his 14-year-old daughter about polygamy.
Mr. Shepp and his former wife, Tracey Roberts, were Mormons living in York, Pa., when they married. But Mr. Shepp espoused polygamy as a tenet of their faith.
Ms. Roberts contends that Mr. Shepp spoke to one of her daughters from a previous marriage about marrying him, which he denies. She left Mr. Shepp and has primary custody of their daughter. He was excommunicated by the Church of Jesus Christ of Latter-day Saints for his polygamist views and is now part of a Mormon fundamentalist movement in Utah.
Mr. Shepp petitioned for better-defined custody rights for his daughter, but Ms. Roberts objected because he had exposed the child to polygamist Mormon communities. The court upheld Mr. Shepp’s right to teach his daughter about polygamy, saying it could not find evidence that such teaching harmed her physical or mental health.
Judges risk violating the separation of church and state if they try to choose the faith a child should be raised in, legal experts said. But in situations like Libby Mashburn’s, judgments about parenting can become entwined with religion.
In upholding the rulings of lower courts to grant primary custody to Mr. Mashburn, the Supreme Court of Alabama said the Sniders’s involvement in missionary work took Libby away from her extended family in Alabama. The Sniders are quietly, unapologetically fundamentalist. They believe that American culture, even conservative denominations like the Southern Baptist Convention, has drifted perilously far from biblical teachings. They attend a large Independent Baptist church in Madison, where the music, the sanctuary and the congregants are unadorned and old-fashioned.
Women wear skirts as a sign of modesty. They do not swim in mixed company. They eschew rock music and nearly all popular culture. They do not drink, smoke or swear.
The Sniders have raised Libby, now 11, in that tradition. But it has put them at odds with Mr. Mashburn and Mrs. Snider’s family. Mr. Mashburn and his lawyer declined to comment .
Mrs. Snider said she understood that Libby might wear pants at her father’s home or go to the movies. But she insisted that Mr. Mashburn not swear or drink in front of Libby or expose her to inappropriate movies and music, which, she said, he has repeatedly done.
The Sniders have repeatedly appealed to win back primary custody. They are awaiting yet another decision from a hearing in November.
At the last hearing, Libby, who spends about 40 percent of her time with the Sniders, testified against Mr. Mashburn.
“I’m more of my mom’s religion, and my dad sometimes talks bad about my mom,” she said. “He called it a cult, and it’s definitely not a cult. It kind of makes me mad sometimes. Maybe he thinks her religion may be bad for me, but I think mainly he doesn’t like my mom and is using that as an excuse.”
Some states like California and Connecticut have taken innovative steps to get parents to resolve custody issues outside court. In Connecticut, for example, those seeking a court order have to meet with a family-relations specialist in an effort to negotiate. If that fails, they attend a daylong session to settle their differences before a panel that includes a lawyer and a mental health professional.
Even after a case goes to court, little may be resolved.
Aaron Petty of Minneapolis and Gineen Gove of Black River Falls, Wis., had their daughter, Basyl, 17 years ago. The couple split up when Basyl was 4. Soon afterward, Ms. Gove married, and she and her husband converted to Old Order Amish.
As Mr. Petty saw his daughter over the years, he became concerned, he said, when Basyl was about 11 and he learned that the Goves would not let her go to school past eighth grade, a common decision among the Amish.
Mr. Petty petitioned for primary custody so that Basyl might continue her education. “This case wasn’t about religion for me,” he said. “It was about her education.”
He won the case when Basyl was 14, but she disappeared. Mr. Petty said he suspected Basyl was living within the Amish community. The Goves declined to talk about the case.
“I wanted to offer my daughter options for her future, in case she grew up and didn’t remain Amish,” Mr. Petty said in a phone interview. “At 12, 13, 14, making lasting drastic decisions based on faith isn’t an appropriate time.”
Mr. Petty’s voice caught as he continued. “Was that case worth fighting? In hindsight, no. I haven’t seen my daughter in two-and-a-half years.”
Warren Shiell is a Los Angeles Family Law Attorney

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