December 11, 2008

FIVE THINGS YOU MUST KNOW ABOUT DOMESTIC PARTNERSHIPS

FIVE THINGS YOU MUST KNOW ABOUT DOMESTIC PARTNERSHIPS

Are you considering registering as Domestic Partners? If you are, it's important that you know that there are several legal implications that come along with your new status, including how you file your tax returns.


1) Both parties need to fill out the Declaration of Domestic Partnership, available at http://www.sos.ca.gov/dpregistry/dp_formsfees.htm. In order to qualify as Domestic Partners, the couple needs either to be of the same sex, or opposite sex couples must include at least one person who is over 62 and meets the eligibility requirements of the Social Security Act. For more details, check out the Declaration of Domestic Partnership form.

2) Once you're officially an RDP, you must file your tax returns in California as Married/RDP Filing jointly, Married/RDP filing separate, or if requirements are met, Head of Household. For Federal purposes, RDP's must file as single of Head of Household if requirements are met.

3) And, since you and your domestic partner will be filing different returns between the IRS and the State of California, you may face additional time and expense as a result. Also, when combining tax returns for an RDP in California, certain items (e.g., capital losses, Section 179 expense deduction) may be limited.

4) The termination of an RDP is similar to a divorce should you need to end the partnership. Once the RDP is registered, the ability to file as a single person in California no longer exists. The RDP is not terminated until the court issues a final decree, and if support is awarded, it may be taxable income to one party and a deduction to the other.

5) The bottom line is that declaring your relationship as an RDP has real legal ramifications and demands serious investigation.

February 24, 2008

Let's Leave 'Marriage' at the Altar

I thought this was an interesting article. California is one of the states mentioned that does not use the term divorce, rather dissolution. We also abandoned alimony in favor of spousal support.

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Let's Leave 'Marriage' at the Altar
By Nancy D. Polikoff, Washington Post

The bill in the Maryland General Assembly that would eliminate the term "marriage" for all and replace it with domestic partnership deserves serious consideration ["Bill Would End Civil Marriage, Create Domestic Partnerships," Metro, Feb. 5]. More than semantics are at stake.

Marriage has a long history of exclusion: slaves, interracial couples and same-sex couples have been denied it. For centuries, marriage eliminated a woman's separate legal identity, subjugated her to her husband, and determined whether her children were full citizens or "illegitimate." Many people consider marriage to be moored to religious doctrine, so Sen. Jamie B. Raskin's argument for turning it into a solely religious institution is sound.

There's precedent for breaking with past family law terminology. About a dozen states no longer have "divorce." Instead couples end their legal relationship through a process called dissolution. Divorce was historically a nasty business, with one "innocent" spouse, the other at "fault" and both subject to social stigma. "Dissolution" is less value-laden and contentious. It is also a term associated with ending partnerships, so the choice of "partnership" to signify the commitment that two people make to each other is consistent with the modern trend.

Similarly, numerous states have eliminated "alimony." For centuries its definition was sex-specific; only men could pay alimony and only women could receive it. Even after modern reform made alimony gender-neutral, the old connotation of a man's lifelong obligation to support his wife remained. So new terms such as "maintenance" or "support" replaced "alimony," signifying a shift in thinking. Some states have also abandoned the terms "custody" and "visitation" when referring to the post-dissolution placement of children, preferring "parenting time" or "parental responsibility." The old words implied that one parent "won" control of the children and the other "lost." The new words remove the implication that one parent matters more than the other.

Those who enter domestic partnerships in Maryland would be free to say they are married, just as those who dissolve their unions in California, Florida, Connecticut and the other states with dissolutions probably say they are divorced. The state does not police people's vocabulary. It does, however, signify modern ideals through official nomenclature. For that, the state should use the language of partnership and leave marriage to religion.

February 5, 2008

C.A.: Clarifies Scope of Statutory TRO in Parentage Cases

C.A.: Clarifies Scope of Statutory TRO in Parentage Cases

By STEVEN M. ELLIS, Staff Writer

The standard restraining order issued in parentage cases prohibiting a parent from removing a child from the state without the other party’s consent or a court order does not require a parent to bring a nonresident child into the state, the Fourth District Court of Appeal ruled Friday.

Div. One held that San Diego Superior Court Judge David Oberholtzer did not err when he issued a temporary custody order allowing a Colorado woman who filed custody proceedings in California to continue living in Colorado with her child, rather than return to California, because Family Code Sec. 7700 raises no presumption that a parent residing in another state with a child at the time he or she seeks assistance of a California family court must return the child.

The issue arose after the woman, who had previously lived with the child’s father—her boyfriend—in San Diego, moved to Colorado with the child when the relationship deteriorated. One month after leaving, she filed a petition in the San Diego Superior Court to establish that the man was the child’s father, and requested that the court determine custody and visitation, and appropriate child support.

No Agreement

The parties were unable to reach an agreement as to a custody sharing plan through mediation, so Oberholtzer adopted the mediator’s recommendation that the child reside primarily with the mother. He entered a judgment of paternity establishing the man as the child’s father, and temporary custody orders allowing the child to remain in Colorado and granting the father visitation.

Oberholtzer later granted shared legal custody to the couple, awarding primary physical custody to the mother and adopting a detailed visitation schedule providing for visitation to occur in San Diego and Colorado, respectively.

The father appealed, arguing that the trial court should have required the mother to return the child to California when it issued the temporary custody order, rather than allowing them to remain in Colorado. He contended that the restraining order that automatically issues under Family Code Sec. 7700 when a petition is filed required that the child be returned to California, and that the court erred in failing to issue an order to that effect.

Trial Court Upheld

Writing for the court, Justice Cynthia Aaron rejected the man’s contention and affirmed the trial court’s decision.

“As the trial court pointed out,” she wrote, “the statute does not state that a child who is already residing in another state at the time the petition is filed must be returned to California. Rather, the provision states only that a parent may not remove the child from the state, absent written permission from the other party or an order of the court, once the petition has been filed.”

Noting that the child was not in California at the time the petition was filed, Aaron said that there was no indication that the mother had removed the child from the state unlawfully because no party had petitioned the court for an order determining custody at the time.

Although California courts have jurisdiction to make custody determinations with respect to nonresident children in certain circumstances under the Uniform Child Custody Jurisdiction and Enforcement Act, Aaron wrote that there was “no reason to believe that the Legislature intended that children living elsewhere be returned to California anytime a custody proceeding has been initiated in California.”

‘Child’s Best Interest’

She concluded that, even if the court were to accept the father’s contention that Sec. 7700 created a presumption that a parent must return a nonresident child, and that failure to do so would violate the automatic temporary restraining order, “the trial court’s first concern is the child’s best interest.”

“If the trial court has the power to permit a party to remove a child from the state after a petition has been filed…,” she wrote, “the court must have the authority to determine…that a child who has previously been removed from the state need not be returned…if doing so would not be in that child’s best interest.”

Writing that the trial court “clearly believed that” under the circumstances, Aaron concluded that the order permitting the child to remain in Colorado was warranted and that Oberholtzer had not abused his discretion.

In an unpublished portion of the opinion, she also concluded that Oberholtzer applied the correct standard in issuing his custody determination, and that he did not abuse his discretion in granting the mother custody. She also wrote that the father had waived procedural errors that he claimed deprived him of a fair hearing for failure to raise them in his opening brief.

Justices Judith L. Haller and Patricia D. Benke joined Aaron in her opinion.

The case is Sarah B. v. Floyd B., 08 S.O.S. 774.

January 24, 2008

My Boyfriend Is Really Annoying; Can I file a restraining order?

A decent article on restraining orders. The article has it mostly right. Any person who is in immenent fear may seek a restraining order. It begins with a request that is filed with the court. Most times, a request is granted and a temporary restraining order is issued. This needs to be served personally on the other person by someone other than the complainant. On it, there is a date of when the court hearing will be. The temporary restraining order is in effect from the moment the temporary order is served. But, it expires on the court date.

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My Boyfriend Is Really Annoying
Can I file a restraining order?
By Juliet Lapidos, slate.com
Posted Wednesday, Jan. 23, 2008, at 5:29 PM ET

Britney Spears reportedly filed a restraining order against her paparazzo boyfriend, Adnan Ghalib, after discovering that he was tipping off his agency with photo ops. Last Monday, Florida resident Rachelle Washington petitioned for a protective injunction against Patriots' wide receiver Randy Moss. Under what circumstances can you order an unwanted admirer to get the hell away from you?

Fear of imminent harm. Laws vary somewhat from state to state, but across the country it's possible to obtain a temporary restraining order by swearing, under oath, that you have reason for alarm. There's no jury, the alleged harasser need not be present, and the burden of proof is virtually nonexistent; judges issue orders on behalf of anyone with a credible complaint. ("He threatened to hit me and I'm scared" but not "It freaks me out when he stares at me.") Under these guidelines "my paparazzo boyfriend sold pictures of me" would not pass muster, so either Britney had a more substantial complaint or the latest tabloid tale is just a rumor.

Temporary injunctions have a lifespan of maybe a week or two. Exact terms depend on the situation, but a basic order requires the offending party to stay at least 500 feet away from the victim's person and property. Occasionally, judges require offenders to surrender any firearms in their possession to local law enforcement. Case in point: Randy Moss was asked to hand over any concealed weapons permits to the Broward County Sheriff's Office.

After the temporary injunction expires, the victim can try to extend the restraining order in court. At a hearing, both parties are present and the victim must present "clear and convincing" evidence that abuse occurred or is likely to occur. The victim testifies about the harassment she experienced, and may present police reports or dated pictures of injuries. Witnesses who overheard threats or were present during a fight may also testify. Then the accused gets a chance to mount a defense. If the judge rules in the victim's favor, he'll issue a long-term restraining order, sometimes called a "final injunction." In California, where Britney Spears resides, a post-hearing order can last up to five years.

Many states distinguish between restraining orders issued for victims of domestic violence (sometimes called a "protective order") and other kinds of abuse (a "peace order"). Procedurally, they're very similar—first a temporary injunction, then a hearing, followed by a long-term order. But protective orders can impose farther-reaching penalties—not just a "stay away" mandate but the forced payment of child support, for example—and may last longer. Furthermore, there are some technical differences in eligibility and in the definition of abuse. In Maryland, for example, protective orders may be issued against current and former spouses, roommates, relatives, or anyone with whom the victim has had a child. Abuse, in such cases, means an act that causes serious bodily harm or places the petitioner in fear of serious harm, rape, or false imprisonment. Peace orders, by contrast, are issued against those who are not intimately related to their victim, and the definition of abuse is broader: It includes stalking, destruction of property, and trespassing.

What happens if you falsify a petition? Probably nothing, since it's hard to disprove a state of mind. That is, if you claim you're scared for your life, who's to say you aren't? Technically, however, you could be charged with making a false declaration. And what happens if you violate a restraining order? You'd probably face a criminal charge, a suspended sentence contingent on good behavior, and a fine—or possibly a short stay in jail.

January 23, 2008

Man Plans Hunger Strike to Protest Government Waste and Child Support System Abuse

Those of you who know me or have read this blog probably have figured out I am personally pretty moderate on the issues that come up in child support (when representing clients, I put their beliefs forward on these issues, not my own). Yes, a lot of very bad situations can arise: people in very serious debt, people being put in jail, loosing licenses, etc. But, the one thing I see time and time again that people do not do which could prevent ALL of this is to file a motion for modification as soon as something happens.

The attached press release is interesting. But, I do think Mr. Pemberton is going about it the wrong way. Finishing his protest in front of Comm. Wightman's court room is abrasive and does not make his point. The Commissioner is a very good one; she knows the law well, works very hard to help people out. The Commissioner does not have a lot of discretion, however. Most child support laws are inflexible and mandatory. If Mr. Pemberton wants change then the proper place is in front of the legislature.


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MARINA DEL REY, Calif., Jan. 18 /PRNewswire/ -- Government waste has
reached epidemic proportions, Kermit Pemberton says, and the child support
system that is supposed to protect the child is draining money from both
the system and the parent paying the support. Hard working parents' lives
are being destroyed because of this national greed, and Mr. Pemberton is
tired of it.

On January 20-21, 2008, Mr. Pemberton is going to hold a hunger strike
in protest of what he perceives as overzealous agencies that are dipping
into the pockets of Americans. His protest will begin at 12:30 p.m. and end
12:30 p.m. the next day in front of Commissioner Rebecca Wightman's
courtroom in San Francisco at Civic Plaza in front of City Hall. He also
has a scheduled court date on January 23, 2008, at 1:30 p.m. in her
courtroom.

Mr. Pemberton is also going to hold a hundred parent march starting at
6 p.m. and ending at 7 p.m. on January 21, 2008. Having been abused by the
system himself, he has dedicated himself to making the public aware of the
waste of their tax dollars. Fed up with the injustices himself, Mr.
Pemberton has dedicated all his spare time to organizing activities and
creating informative websites to help citizens be informed and fight
governmental waste and excess.

To embrace what he is fighting for, the rights of the children for the
sake of the children, Mr. Pemberton will be holding a carnival with the
theme "Focus on the Kids," on Sunday, January 20th at the Civic Park in San
Francisco. Located at 350 McAlister, this public event is free and all
rides are free for the kids. We invite all the parents that are in similar
situations to come down and show their support.

As a victim of the system Mr. Pemberton says he has had his bank
account levied, his credit ruined, and his passport and driver's license
threatened. He wants the public to know that this could happen to you, too.
Thousands of dollars can potentially be spent to fight these impositions of
the government while most citizens are powerless to fight government
bureaucracy.

This man has paid more that six thousand dollars in travel expenses
alone, and his crusade does not want the average citizen to go through the
same injustices that he has gone through.

January 3, 2008

Don’t let him take you to Texas for a divorce

I am pretty reluctant to put this article up. But, it is a good example of a misinterpretations of the law. The article says, "a friend of mine claims that the Texas legal system is totally anti-female." Well, that may be (I don't know I don't practice in Texas), but the article goes on to say that Texas is not a community property state. Not true. It says Texas puts a cap on child support where California does not. This is a gross oversimplification that does not tell a fair story, for Californians or for Texans. Bottom line is if you want real advice, get it from a lawyer who can tell you what your rights really are.

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Don’t let him take you to Texas for a divorce
By SHARON WOODSON-BRYANT 03.JAN.08
It had been a long time since I listened to Steve Harvey’s radio show, so I had no idea that he and his wife were divorced or that I was about to unravel a juicy black soap opera to entertain me over the holidays.

There wasn’t much on TV and I decided to catch up on my reading. So I was surprised to stumble on a story about a lawsuit filed in November by Harvey’s ex-wife, Mary Harvey. She claimed that both Harvey and their long-time Houston attorney, Ricky Anderson, conspired against her during their 2005 divorce proceedings by convincing her to let Anderson represent both parties. The result, according to the lawsuit, was an unfair settlement leaving the former Mrs. Harvey out in the relative cold.

What’s more, Mary Harvey claims that one of the reasons her former husband pressured her to use Anderson as her attorney was to settle the divorce quickly and quietly in order to protect Steve Harvey’s public image. She accused the performer of trying to cover up his adultery, his poor and neglectful parenting “and physical and mental abuse of” Mary Harvey.

According to the complaint, “All of this was also done under the guise of protecting Steve Harvey’s image, who attempts to promote a packaged do-good, likable, Christian-type image in the public eye.” Among the claims, Mary Harvey was suing for breach of contract, common law fraud, professional negligence and conspiracy.

As I continued online research, I learned that Harvey had been married for 10 years and his divorce from Mary became final in December 2005. Then last July MediaTakeOut.com reported that Harvey and his fiancée Marjorie Bridges were secretly wed in a small religious ceremony in a “romantic setting” in Hawaii. The ceremony was performed by the Rev. T.D. Jakes, and was attended by the couple’s close family and friends. This marriage will be the third for both of them.

Always looking for a good plot, I began to wonder if Mary’s complaint had anything to do with the recent remarriage. I also questioned why a woman filing for a divorce would agree to use a lawyer who was also working for the husband. But what was even more puzzling was that she ended up with only $1,000 a month for herself and their son, Wynton.

According to the lawsuit, when Mary Harvey asked about child support, Anderson told her she could not legally receive more than $1,000 a month, despite the fact that community assets, including property in Texas, several bank accounts, investments and business interests are estimated at more than $10 million. In addition, Mary Harvey did not receive health insurance or continued payments from the couple’s businesses as she was promised.

Nevertheless, Anderson told Mary Harvey before signing the papers that she was getting a “great deal,” it states in the complaint. He also told her that the estate would be divided equally, but when it came time to sign the divorce papers the day the couple appeared in court, Anderson told Mary Harvey she needed to sign the papers quickly and did not give her a chance to read the documents. Afterwards, once the divorce was granted, the lawyer refused to divide up the property as he said he would do.

Still not understanding how something this unfair could happen, a friend of mine claims that the Texas legal system is totally anti-female. She said that this is why so many men try to figure out some way to file for divorce in this state instead of filing in other equitable jurisdictions. They have a cap on child support and unlike California, it is not a community property state so the woman will never get a 50-50 split. Unless they try what Mary Harvey did.

According to the Dallas Morning News online, Steve Harvey was not laughing on Dec. 12 when he had to testify during a hearing regarding a motion of contempt concerning finances and property in question from their divorce. “State District Judge Robert Dry did not make a ruling at the hearing, but did remind Mr. Harvey at one point that one possible punishment was jail time if the contempt ruling went against him. Mr. Harvey looked shocked and had a few words with his attorney before taking the stand.”

Well, guess what? Right before Christmas, according to MediaTakeOut.com, the shocking abuse lawsuit came to an end. Apparently Steve decided to open up his wallet and his ex-wife is very close to reaching a monetary settlement. There was no more joking around with him facing jail time if the judge ruled that he had contemptuously withheld vital information.

According to one person familiar with the case, Steve offered Mary approximately $10 million to settle the suit and Mary is expected to accept the offer. MediaTakeOut.com said that the insider revealed “Court documents have Steve’s net worth at around $20 million, so he’s basically offering half of everything he owns to make this lawsuit go away. ... He really wants this lawsuit, and all the nasty allegations in it, to disappear because it’s starting to hurt his image.”

I say the moral to this story is if you are having marital problems don’t let your man talk you into moving to Texas. And no matter where you live, always get your own lawyer.

November 6, 2007

Divorce Doesn't Have To Destroy The Kids

A nice artilce on how to help children through the divorce process.

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Divorce Doesn't Have To Destroy The Kids
Victoria Clayton
MSNBC contributor

If celebrity life is any reflection of the real world, divorce has gotten uglier than ever, even when kids are involved. Bitter disputes between Charlie Sheen and Denise Richards and Alec Baldwin and Kim Basinger have played out in the public eye. And, of course, the Britney Spears-Kevin Federline custody battle has turned into a televised train wreck.

But experts say such high-profile messy divorces may actually be contributing something positive to the world of parenting. By demonstrating so clearly what not to do when the fairy tale ends, these divorces are raising awareness that more can be done to protect the kids.

For instance, since Britney and K-Fed were ordered by a Los Angeles Superior Court judge to attend a course called Parenting Without Conflict, attention has been focused on the idea that divorcing couples need special parenting skills, notes Craig Ogulnick, the program's coordinator for L.A. County.

"The bottom line with our program and others like it is to show [separating] parents that there is a way to give their kids a fair shot at a better childhood," says Ogulnick, who is a marriage and family therapist. "The research is clear that divorce with conflict is unquestionably bad for the kids."

About 50 percent of counties throughout the nation now have classes for parents who are divorcing, according to research by Karen Blaisure and colleagues at Western Michigan University. In roughly two-thirds of these counties they're mandatory for all divorcing parents. Throughout the country and online there are also private workshops and services designed to teach couples how to separate but continue to be good parents.

In Texas, for example, there are Children In The Middle classes. The University of Minnesota offers an extension class titled Parents Forever. In Denver, there are Parenting After Divorce classes. Online there's uptoparents.org, a free interactive Web site that attempts to remind divorcing couples of their children's needs. There's also a site called ourfamilywizard.com that provides a place for each parent to access private and shared family calendars, and post messages and reminders.

The idea is that if families are going to separate, children will fare better if the separation is easier and more amiable. In fact, Blaisure's research did find that parents who took classes had an improvement in communication.

Less clear is the research on children of amicable divorce. Findings are beginning to emerge that indicate unhappy marriages with civil divorces can have positive or neutral effects on families, says Virginia Rutter, a senior researcher with Council on Contemporary Families (CCF), a nonprofit organization in Chicago dedicated to studying family issues. "We're starting to see that parents can divorce and still do well by the children."

Indeed, Guy Gabriel, an actor and yoga instructor in Los Angeles, says his experience leads him to believe that children can fare fine if parents keep their tempers in check. Four years ago Gabriel and his wife temporarily separated after 14 years of marriage. Their children were 7 and 13 at the time.

Although he acknowledges his wife and he had all the emotions of any separating couple - including anger, fear, disillusionment and depression - they made a pact not to show these emotions in front of the children. "From the beginning we stuck with the idea that if the parents are amiable toward one another the kids won't get tainted from the anger," says Gabriel.

His children remained with his wife in their home and Gabriel, using the ideas of nonviolence and clear communication he learned through yoga studies, made sure he was calm and reassuring to them. He also visited or at least talked to them every day. "I wanted their lives to remain as normal as possible so we didn't put them in disarray as well," he says. According to Gabriel, both kids continued to do well in school, extracurricular activities and at home.

Don't put them in the middle
Constance Ahrons, a San Diego psychologist and author of "The Good Divorce," says, indeed, the Gabriels did exactly what she advises. Kids do poorly, she says, when they see parents doing poorly. "I always tell separating couples to try to minimize the transitions. If there's any way to hold on to the house and have the kids stay there, do it. Keep the conflict to a minimum and never put the children in the middle."

Angus Strachen, a family therapist in Los Angeles who has counseled separating celebrity couples as well as non-celebs, says parents also shouldn't criticize the other parent to the children.


"Parents should go to a mediator and shout at the ex or go to a therapist but don't do this in front of children," he says. "And don't let kids overhear your phone calls. I don't know how many children tell me they hear all kinds of things from their parents talking on the phone."

Trish Horner and her estranged husband completed a court-mandated parenting class when they split last year, and the Riverside, Calif., mom of two says she's learned a lot about how to handle the divorce so that the kids aren't always dragged into the disputes.

"Now I really understand how important it is," she says. "If I need to complain or vent, I take a walk with my friend."


If handled properly, say Ahrons and Strachen, separation and divorce do not have to be devastating for children. Children can thrive even if parents are no longer together.

Professionals note, too, that while Britney and Kevin have not been shining examples of a healthy split, plenty of other celebs have been. Reese Witherspoon and Ryan Phillippe, Nicole Kidman and Tom Cruise, Meg Ryan and Dennis Quaid, and the reigning queen and king of good divorces Demi Moore and Bruce Willis don't grab headlines for their fights or family court dates.

Divorced, but still parents
"When I started in the late 1970s it was inconceivable that former spouses could get along," says Ahrons. "But now people are understanding that for their children's health they have to find a way to work together. They don't have to be friends necessarily but they do have to be co-parents."

Perhaps learning how to kindly part ways may even be contributing to another trend. The divorce rate has been falling continuously over the past quarter-century and is now at its lowest level since 1970. Calculating divorce rates is tricky and researchers argue that the data can be misleading (for example, marriage rates are also falling). But, says Rutter of CCF, it is conceivable that in the near future the commonly held belief that half of marriages end in divorce rather than death will be revised in favor of marriage.

The Gabriels are one couple that didn't end up contributing to the divorce statistic. They handled their six-month separation so, well, lovingly, he says, that they decided to give the marriage another chance.

"It was a negative time but at the same time we handled it in a positive way and it made us stronger," says Gabriel. "By separating and being co-parents we learned to appreciate and respect one another better." Through it all, he says, the kids have continued to do well. "I'm still amazed at my kids. They're excelling and they sort of took the whole thing in stride."


According to psychologist P. Leslie Herold, president of Solutions for Families, a company that provides workshops for divorcing parents, this isn't entirely uncommon. "What we're teaching is basically how to communicate. We've had many people tell us that if they'd used these skills or gone to this class very early on they wouldn't be divorced."

However, Herold concedes he doesn't aim to eradicate divorce. "My hope is that someday people just see divorce as one of life's possible transitions. We all go through transitions and we can learn how to handle them so they don't impact our parenting."

Victoria Clayton is a freelance writer based in California and co-author of "Fearless Pregnancy: Wisdom and Reassurance from a Doctor, a Midwife and a Mom," published by Fair Winds Press.

August 20, 2007

Ex-Spouses Can Ruin Each Other's Credit

Ex-Spouses Can Ruin Each Other's Credit
By Kimberly Palmer, US News and World Report
Posted 8/20/07
Dear Alpha Consumer,

After finding out I had numerous collection accounts on my credit, I ordered credit reports from the three major credit bureaus, TransUnion, Experian, and Equifax. I discovered that my ex-wife must have used my name to lease equipment, which led to the collection accounts.

I would like to clear the accounts from my credit report. How can I do this?

The best way to clear up your credit depends on whether or not you are a victim of identify theft, says David Rubinger, spokesman for Equifax. If your ex-wife used your name and Social Security number to take out credit without your knowledge, then she has stolen your identity.

To the credit reporting agencies, it doesn't matter if you've been victimized by a stranger, a friend, or an ex-wife. Shutting down the unauthorized accounts, filing a fraud report with the police, and telling the credit reporting agencies to place a fraud alert on your account are the first steps to reclaiming your credit.

If, on the other hand, your ex-wife is simply using credit cards that you previously owned together, then the situation is a bit stickier. If you are still registered as a co-owner of the credit card that she uses, you are probably still liable for any charges made on it, explains Experian spokesman Rod Griffin. "If you have a joint account, you're considered fully responsible for that debt," he says. (Griffin adds that in some states with community property laws, all accounts opened during marriage are considered joint, regardless of whose name is on them. The Internal Revenue Service publishes an overview of the tax-related laws in community property states, which include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.)

You can, however, still file a dispute with the reporting agencies, as well as with the store where the equipment was leased. You have the best chance of being successful if you clearly explain the situation and why you should not be liable for the charges. The reporting agencies have 30 days to investigate and respond—but unless you have a good reason why you're not responsible for the charges, such as identify theft, then you're probably out of luck.

Post-divorce credit problems, which are common, usually can be avoided by closing joint accounts. "The safe thing to do is to cancel all the cards and make both spouses get cards in their own names," says Evan Hendricks, author of Credit Scores & Credit Reports.

The Federal Trade Commission warns divorcing couples that the divorce decrees they negotiate, such as a commitment that one ex-spouse will pay off credit card debt, does not absolve the other ex-spouse from responsibility from the perspective of the credit reporting agencies. Creditors can still demand payment from the other spouse, which can negatively affect credit scores if it goes unpaid.

In other words, your financial life may still be intertwined with your ex-wife's, even long after the marriage is over.

August 15, 2007

California divorce is often a time-consuming process

California divorce is often a time-consuming process
By Ron Sokol, DailyBreeze.com

Question: Why does a divorce in California have to take at least six months? After six months, am I still married even if I don't want to be? And, if one party does not want the divorce, can it be prevented?

- J.H.

Answer: California law requires at least six months to pass from the date the divorce petition is served for the divorce to become final. The rationale historically has been that this provides a period of time during which the parties might "cool off" and possibly reconcile their differences.

You can make a formal request to the court to bifurcate your case, such that after six months you are deemed divorced, that is, no longer married, but the other issues in your case (if not resolved) will continue to be dealt with by the court. For example, property division, spousal if not also child support and, if applicable, parenting issues.

Divorce in California can and will go forward even if just one party to the marriage wants it. We have a no-fault divorce system where "irreconcilable differences" is the key phrase, even if one side disagrees.

August 14, 2007

Elkins Opinion

One of the most watched cases by the Family Law bar, has been the case of Elkins which was in front of the State Supreme Court. Here is a brief article on the case and the opinion.

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Judge says county can't ban oral divorce testimony
CONTRA COSTA: State Supreme Court strikes down paper-only rule aimed at speeding up dissolution process
By Malaika Fraley
STAFF WRITER

Article Launched: 08/14/2007 06:47:33 AM PDT

Contra Costa County Superior Court violated state law with a rule that prohibited people in divorce trials from presenting oral testimony, the state Supreme Court has ruled.
The ruling means a new divorce trial for Jeffrey Elkins, a Danville business consultant who challenged the county court's rule that required evidence to be submitted exclusively by written declaration, except in unusual circumstances.

It also means trial courts in California counties with local rules similar to Contra Costa's will have to change the way they do business. In January, as the Elkins case was pending, Contra Costa County Superior Court changed its local procedure to allow oral testimony, in addition to written declarations, for requesting parties.

In an opinion issued last week, the state Supreme Court called for the Judicial Council to create a task force to help trial courts achieve efficiency and fairness in divorce proceedings, and to possibly establish statewide rules and procedures.

The Contra Costa court had established its rule prohibiting oral testimony to speed along cases in its family law division. Attorney Jon Eisenberg, who represented Contra Costa courts, said Contra Costa's position was that trying every single case by oral testimony would be burdensome.

Since the court started allowing oral testimony in divorce hearings, few people have requested it, Eisenberg said.

Elkins, who represented himself in his divorce, said the rule resulted in the court awarding all assets to his ex-wife because all but two pieces of evidence he wanted to present at his 2005 hearing were discounted by the court.

"The trial court abused its discretion ... by excluding the bulk of his evidence simply because he failed, prior to trial, to file a declaration establishing the admissibility of his trial evidence," the opinion reads. "The sanction was disproportionate and inconsistent with the policy favoring determination of cases on their merits."

The Supreme Court said the Elkins case "highlights the unusual burdens and restrictions that have been imposed on family law litigants at the local level in response to increasing case loads and limited judicial resources."

A 2004 survey by the California Judicial Council estimates such cases represent 7.5 percent of total filings in the trial courts, but account for nearly one-third of the workload.

"In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures," the opinion reads. "But family law litigants should not be subjected to second-class status or deprived (of) access to justice."

The case now goes to the state Court of Appeal, which will issue an order based on the high court's opinion in 60 to 90 days. Eisenberg said the Contra Costa court will continue to review its local procedures, in addition to its scheduled annual reviews, as it awaits the order.

Attorney Garrett Dailey, who argued on Elkins' behalf, said the impact of the Elkins opinion will go beyond Contra Costa.

"It's going to affect a lot of counties trying to implement these types of rules -- they're not allowed to enforce rules that limit people's rights except when authorized by state law," Dailey said. "There are 58 counties, 58 sets of rules and penalties for violating rules can be severe.

"I've been getting e-mails from attorneys and judges from all over the state basically saying how grateful (they are that this) opinion is going to permit judges to hear these cases and give them the attention they're due rather than relying on declarations written by attorneys," Dailey said.

On a personal level, Elkins said he feels vindicated by the Supreme Court's decision.

"Divorce is a tough thing to go through," said Elkins, a business consultant, whose divorce proceedings started in 2001. "I'm just hoping I can now go back to court to ... come up with a solution and finally get this thing behind us."