San Francisco Family Law Blog

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.

Posted by Tilden Moschetti at 10:46 AM | Permalink | Comments (0)

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.

----------

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.

Posted by Tilden Moschetti at 9:55 AM | Permalink | Comments (0)

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.

----------

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.

Posted by Tilden Moschetti at 3:47 PM | Permalink | Comments (0)

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

----------

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.

Posted by Tilden Moschetti at 2:45 PM | Permalink | Comments (0)

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

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.

Posted by Tilden Moschetti at 11:43 AM | Permalink | Comments (1)

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.

Posted by Tilden Moschetti at 11:48 AM | Permalink | Comments (0)

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.

----------

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."

Posted by Tilden Moschetti at 11:52 AM | Permalink | Comments (0)

O.C. spousal support case may set precedent
Yorba Linda man says he shouldn't have to pay spousal support because ex-wife is in domestic partnership.
By MICHAEL MELLO
THE ORANGE COUNTY REGISTER

A Yorba Linda man has taken his spousal-support fight to the state Court of Appeals, saying he shouldn't have to pay his ex-wife $1,250 a month when she has entered a domestic partnership with her female companion.

In June, an Orange County Superior Court judge ruled that Melinda Kirkwood's partnership wasn't equal to marriage under state law, and ordered Ron Garber to pay support. State law generally provides for alimony to end when a former spouse remarries.

Garber's attorney, William M. Hulsy, filed an appeal with the state appellate court last week.

Lawyers say the California Supreme Court is watching how the Orange County case unfolds. It could be considered as the Supreme Court examines whether San Francisco can allow same-sex couples to marry.

The then-Melinda Garber filed for divorce in 2004 after 18 years of marriage.

Hulsy said when Ron Garber, now 51, signed an agreement to pay alimony the following year, Garber didn't know his ex-wife had entered a domestic partnership.

That amounts to double dipping, Hulsy contends, because Kirkwood is entitled to some spousal benefits as a registered domestic partner.

"In our particular case, Melinda Garber, because she entered into a domestic partnership, is getting better treatment than if she had entered into a marriage," Hulsy said.

Orange County Superior Court Judge Michael Naughton ruled against Garber in June, setting up the appeal.

Melinda Kirkwood's attorney, Edwin Fahlen, said it's irrelevant whether and when his client had entered a partnership.

Garber "agreed to pay for it," Fahlen said of the spousal support. "There's plenty of cases where people get married, and that doesn't affect the bargained-for provision."

The courts have no easy course to resolve the question this case poses, said Charlotte Goldberg, a law professor at Loyola Law School in Los Angeles.

"There already have been a couple of cases that have said a domestic partnership is not exactly the same as the marriage … though they have many of the same rights as marriage," the professor said.

In addition, according to the state's family code, "If someone starts co-habiting with someone of the opposite sex, there's a presumption that there's less of a need of spousal support. … But it doesn't say anything about the same sex," Goldberg said.

On the other hand, Goldberg said, domestic partners make a commitment to support each other. The law says both are responsible "for each other's living expenses. It's very complicated, and the courts are going to have to work out whether (they) are going to treat domestic partnerships like marriage, or whether they would limit those rights."

Garber's appeal doesn't mean the case has finished at the county level.

Garber has yet to pay all of the support the court has ordered, leading his ex-wife to file a contempt of court complaint against him.

"He's paid some of the support. We're still determining how we're going to respond to that," Hulsy said.

Melinda Kirkwood did not return messages.

Garber, whose company offers real-estate seminars to agents, said he hadn't expected the attention his case has received on television and in publications across the country.

"I hope it makes a difference, and they get this loophole straightened out," he said. "I feel people should be able to live in whatever partnership they choose to live in. This is not about heterosexual or gay rights. It's about making sure this is fair."

Posted by Tilden Moschetti at 11:57 AM | Permalink | Comments (0)

A very good overview of some of the credit issues in divorce.

----------

Ask The Advisor: How Will My Divorce Affect My Credit?
by Jimmy Atkinson, Ask The Advisor

In the unfortunate event that you get a divorce, worrying about your credit score may be the last thing on your mind. However, even during the most trying times of our lives, the world keeps spinning and the fact is, divorce can greatly impact your finances and credit history. If you are seeking or have finalized a divorce, it is time to assess what needs to be done to preserve or restore your financial reputation. Below, we will explain how divorce can affect your credit, as well as what you should do before and after your separation.

Divorce and Your Credit
You should know the ugly truth first: even the most amicable divorce can leave you in financial ruin. In the course of your marriage, you most likely merged all of your finances, from your bank accounts to ownership of property. A majority of marriages also have one partner who takes most of the responsibility when it comes to paying bills, which inadvertently leaves the other person in the dark about a lot of things. All of these arrangements, once just a common aspect of a committed relationship, contribute to credit problems upon separation.

When you get a divorce, it is your marriage that is ending and not your shared financial responsibilities. Even if your spouse accumulated some debt without your knowledge during the marriage, you may be held responsible for it after the divorce. That is, of course, if you don't take the proper actions and sever all financial ties with your ex (excluding any child or spousal support, of course). This doesn't have to be as nasty as it sounds, either. In fact, most divorcees are pretty eager to get on with their lives, rather than dragging out the affair with bitter opposition. Not all divorces are as heated as the ones you see on television. However, even if your partner is being reasonable about things, it doesn't mean that creditors will show the same cooperation. That is why the ties must be severed sooner rather than later.

Protecting Your Finances Before the Divorce
While you may not want to think about money when you are experiencing a traumatic life change such as divorce, being practical may save you from even more heartache down the road. The best way to keep your credit safe from divorce is to start making changes as soon as the two of you decide to separate. The following steps should be taken:

Assess Your Responsibilities — You need to be aware of all the accounts you are responsible for, including bank accounts, mortgage loans, credit cards and utilities. Even if you and your spouse have decided who gets what property, you need to make sure that the right person is solely responsible for their respective belongings.

Dissolve All Joint Accounts — Rather than trying to divvy up what is owed on your joint accounts and asking your ex to honor their half, you should remove the right person's name from the accounts or cancel them completely. Make sure the both of you do the canceling together, legally. The first place to start is the bank, as most couples share checking and/or savings accounts when they are married. Also, if you are taking possession of one car with both of your names on the note, have your spouse's name removed. Make sure that your spouse does the same thing with any property they take. (If you are still paying for any of this property, then you may have to refinance to get the loan down to one name.) Any bills you paid together, such as your utilities, should be put in one name. As for credit cards, you can try to work with the credit card company and have them transfer half of the balance to two different accounts in anticipation of the divorce.

Sell the House — A common mistake that people make is giving their house to their spouse after the divorce. This may be due to abandonment or perhaps a well-intentioned arrangement because there are children involved. However, the best thing to do is to sell the house together and divide the profit. After all, no one can predict the future. Countless divorcees have found their credit ruined because their ex let their house go into foreclosure. Explaining to creditors that you are now divorced won't make you any less responsible for a mortgage with your name on it.

Divide Any and All Shared Cash — In the process of allocating debt, canceling accounts and selling property, you and your spouse will probably be left with some liquid assets. You should, perhaps with the assistance of your divorce lawyers, fairly divide that cash before you walk out of each other's lives. This is the legal, sensible and ethical thing to do.

Document Everything — Once the courts become involved and your divorce is finally underway, make sure that all of your financial arrangements and agreements are documented. That way, if there are any discrepancies down the road (such as a creditor bugging you about your ex's car payments), you can refer anyone to your official court records. While this may not be a surefire way to get a collector off of your back in a timely manner, you will have the law on your side and the means to protect or restore your credit.

Saving Your Credit After the Divorce
Hindsight is always 20/20 and many people get a divorce without preparing their finances beforehand. This is understandable, as it may be hard to set aside emotions long enough to get everything in order. However, not doing so can result in serious issues with your credit score. If you have already finalized your divorce and are now being held responsible for your former spouse's debts, make sure you do the following.

Check Your Credit Score — This is something you should do at least once a year, but it is especially important after major life events. By checking your credit score you can see if your credit has been adversely affected by your divorce. It will also show if there are any debts that you used to share with your spouse that are now being neglected. This will point you in the right direction when it comes time to cancel any joint accounts.

Separate/Cancel All Joint Accounts — Even if you ended your divorce on very bad terms, you simply must have a sit-down with your ex. Any and all accounts, debts and property that you still share should be separated, canceled or sold. In other words, you must separate your finances like you have separated your relationship. This can be most easily accomplished with your former spouse's help. If he/she won't help, it is time to call your lawyer. Either way, your financial ties must be severed.

Notify Creditors of Your Divorce — Once you have separated/canceled all of your joint accounts/debts, you are no longer legally bound to your former spouse's current debts. Call all of the creditors who have been bothering you and alert them to this fact. In a perfect world, they would apologize for the inconvenience and never call you again. However, it may take awhile before such calls cease entirely. In addition to notifying the proper collectors, you should right a letter to them as well. That will help them to expedite their file updates.

Divorce is an ugly thing, no matter how it is carried out. The end of a marriage is a traumatic event that is only compounded by high court costs and possible credit problems after everything has settled. If you are thinking about divorce, follow the proper steps in separating you and your spouse's finances. Otherwise, your credit score may plummet until everything is in order. The modern world revolves around credit, so a low credit score can have a devastating effect on your life. By taking the measures listed above, you can avoid any further distress than divorce has already caused you.

Posted by Tilden Moschetti at 10:33 AM | Permalink | Comments (1)

An article about an upcoming documentary about child support. The film looks interesting, though I am a little concerned that the view may be rather slanted - using a few cases where the system does not work to say the whole system doesn't work.

----------

Overzealous Efforts to 'Collect' Alleged Overdue Child Support Are Unconscionable, Says Filmmaker, Aginelo Productions

OCEANSIDE, Calif., May 29 /PRNewswire/ -- California-based filmmaker Angelo Lobo, producer and director of the documentary film "Support? System Down," says overzealous punitive measures designed to "collect" alleged overdue child support are wrong and unjust.

"The current high-profile effort that tries to shame alleged nonpayers into paying child support by putting their names, faces, and other identifying information on pizza delivery boxes scares and hurts innocent parents and their families. Most of these targeted parents are deadbroke. Seizing alleged nonpayers' cars, driver's and professional licenses, and jail are other misguided methods of collecting support. The pizza box shaming idea is especially unconscionable because, not only is it cruel and unjust, it can embarrass or upset the children of the parents shown on the fliers placed on the pizza boxes. Child support errors and other questionable practices are pervasive within the system," said Lobo.

Lobo produced an upcoming, full-length documentary titled "Support? System Down" that explores the shocking truth about fundamental flaws in America's child support system and America's family law courts. Lobo's film shows why the current efforts are wrong and hurt families rather than help them. The movie explains how U.S. taxpayers are paying for a malfunctioning system. Lobo wants his film to raise national public awareness of the crisis in the child support system to help effect positive reform.

"Most of these parents being targeted by these highly inappropriate efforts just don't have the amount of money they are being forced to pay, frequently because of layoffs, unemployment, illness, or disability. They are not willfully refusing to pay. These parents love their children and want to support them financially and emotionally. Targeting them with misguided enforcement hurts their ability to support the children who can, and do, thrive if their parents are left to cope with economic hardship that many in today's society are facing through no fault of their own.

I wanted to convey these loving parents' stories in a powerful and compelling way. Too many good people are being stigmatized or pursued for simply being deadbroke or unemployed. What is their crime? There is none. Equal parenting is the answer. Children want and need both parents in their lives. Children suffer and miss their parents when they are unjustly separated from them due to divorce or family breakup. They need adequate time with both parents, which often doesn't happen in our current system," said Lobo.

Lobo has received a tremendous positive response to the four trailers for the film located on his website at http://www.supportthemovie.com/trailers . " We expect the film to also resonate nationally since there are millions of people adversely affected by the broken system. We encourage everyone to see the tragic story of the child support system gone awry, " said Lobo. For more information or to book Angelo Lobo for interviews, visit http://www.supportthemovie.com/ , call (760) 439-4633 or email info@supportthemovie.com . Subscribe to the free e-mail mailing list at http://www.supportthemovie.com/ to receive announcements about " Support? System Down. " View the trailers: http://www.supportthemovie.com/trailers/ Aginelo Productions

Posted by Tilden Moschetti at 10:45 AM | Permalink | Comments (1)

This article is good advice. A case is always more difficult when it comes to me and my client does not have a good grasp on the finances of their marriage. It is important to know that when you are married, both you and your spouse have a duty to fully disclose any financial information. This is a very good practice for couples not facing divorce too, as should one of you pass on, the living spouse will be better able to get their financial life back on track easier.

----------

Advisers Say Plan for the Worst: Divorce
By Reina V. Slutske
Signal Business Writer

With more than 50 percent of marriages ending in divorce, dealing with custody, splitting up property and paying alimony are realities that some families must deal with.

Of course, they are also serious issues of contention that can often cause financial hardship to one or both parties involved.

"The harsh truth is all relationships end, be it divorce or death," said Cheryl Bernstein, a financial planner for Financial Essentials. "At some time or another, and you need to know where your money is."

There are many financial issues, ranging from tax implications to determining assets, that come into play during a divorce.

However, it's only a part of the story.

"In middle-size divorces, it's part of a case, but not all of the case," said Steven Chroman, a Valencia divorce attorney.

Money issues ranging from property distribution to spousal and child support all factor in and become issues, especially when a marriage has seen an increase in money for one or both parties.

Chroman said that in California, people are lucky, as in most divorce cases there are disclosure requirements, and people can hire accountants to be able to trace all property and assets and be able to determine tax implications.

Bernstein said it's important for both men and women to be financially educated and know where all their money and obligations are.

"Don't count on the other spouse," she said, because there could be case of needing to know where everything is.

Chroman said money can be manipulated, which is why it is important to have the right people available to handle what a person might forget during the course of a divorce.

In addition, in spousal support and monetary settlements, the parties have to be aware of all things that come up during the course of a marriage, and have "due diligence" in figuring out what is owned and managed.

Chroman said that although it is an unromantic ideal, a pre- or post-nuptial agreement might help in protecting assets, such as an estate or trust that a person comes into a marriage with, and being able to keep that money after a divorce.

It's not just for the wealthy, either. He said that it is also a common practice in middle-class marriages.

"A lot of things can happen," he said. "People get divorced for crazy reasons, and it's a security device for both."

Posted by Tilden Moschetti at 4:04 PM | Permalink | Comments (0)

Why is this on my blog, you may ask. Well, the conflict allegations are apparently that if Feinstein's husband owns a company, and that company is community property, Feinstein herself has an interest in it. Plus, I was interviewed on the issue and, well, had to put it up for that reason too.

----------

Feinstein Conflict Allegations 'Aren't Going Away,' Watchdogs Say
Fred Lucas
Staff Writer
(CNSNews.com) - Sen. Dianne Feinstein may have had as much of a financial interest in two defense contractors as her husband who controlled them, according to California law.

The state's "community property law" could be relevant at a time when the senior Democratic senator from California is facing allegations of a conflict of interest and growing calls for an inquiry.

Feinstein stepped down late last year from the Senate Appropriations Committee's subcommittee on military construction (MILCON) after five years on the panel. The subcommittee was charged with reviewing construction projects, some of which were awarded to the Perini and URS firms owned by Feinstein's husband, Richard Blum.

Feinstein spokesman Scott Gerber said earlier that she left the subcommittee not out of conflict but to be chair of the interior appropriations subcommittee.

The "community property" law in force in California says that any income earned, assets obtained or debts incurred by either partner during a marriage belongs to both partners. The law is typically applied during a divorce, explained family attorney Tilden Moschetti of San Francisco.

"A business started during the marriage would definitely be community property," Moschetti told Cybercast News Service. "If not [started] during the marriage, there would still be some community interest, but not 50-50."

Moschetti said he would need more details before he could assess the Feinstein case regarding Blum's companies, but he said she "quite possibly" would be regarded as an owner.

It would be a tough sell to argue otherwise, said Jerry Maly, a certified financial planner and certified public accountant in Houston, Texas, one of nine states that have the law.

"Every penny that belongs to one party belongs to the other party," Maly told Cybercast News Service. "She gets 50 percent of all the contracts. It flows into her own pocket. She might say it's her husband's company. But it's community property assets."

Feinstein spokesman Gerber said none of this was relevant, because Feinstein took no action while serving on the committee for financial gain.

"Neither Sen. Feinstein, nor her office sought to award contracts," Gerber told Cybercast News Service. He added that Congress does not award military construction contracts - the Pentagon does. MILCON is just one review that a project gets before it is approved, he said.

Feinstein also was not privy to extra information on military project via her membership on the subcommittee, Gerber stated. "There was no insider information, it was public information," he said.

'We're keeping track'

But government ethics groups like Judicial Watch counter that Congress often knows what companies are in the best position to bid on a project. Thus, deciding what projects to fund - a powerful role of budget appropriators - can be an indirect way to boost a project.

"I don't think this issue is going away for Sen. Feinstein," Judicial Watch President Tom Fitton told Cybercast News Service. "She was involved in the decision-making process that involved her family's finances."

In the age of earmarks, it's not enough to claim Congress doesn't award contracts, said Tom Schatz, president of Citizens Against Government Waste (CAGW), a taxpayer watchdog group critical of both parties' spending.

"That's what Duke Cunningham said, not to make the comparison," Schatz told Cybercast News Service, referring to the California House member now in federal prison for accepting bribes. "Members know where an earmark is going ... We are keeping track of this."

Last week, David Keene, chairman of the American Conservative Union, wrote an op-ed for The Hill, a Capitol Hill newspaper, calling Feinstein's case "the classic conflict of interest that exploited her position and power to channel money to her husband's companies."

"On the face of it, it seems like there are enough hard facts here," Keene told Cybercast News Service. "Nobody is guilty of anything until it's proven. But if appearances are true, she could be the poster child for improprieties."

The op-ed prompted Feinstein defenders to respond.

A blog for the Sunlight Foundation, another government watchdog group, posted items last week and on Monday defending Feinstein. The Sunlight Foundation is run by a close associate of Blum.

The blog, written by longtime investigative reporter Bill Allison, refers to California freelance journalist Peter Byrne, who broke the story for Metro Active, an alternative weekly in Silicon Valley. "Evidence Byrne cites, when closely examined, either doesn't support or in fact contradicts the allegations he makes."

Sunlight Foundation board chairman Michael Klein said that while he was on the Perini board, he provided information on company projects to Feinstein's office.

This was anything but nefarious, said Klein.

In a letter to the Metro Active newspaper, Klein wrote that "Perini, acting through me, would periodically alert a senior staffer in the senator's office to any proposed Perini bid that might depend on new funding so that the senator could avoid any action to aid Perini."

Klein could not be reached for comment Monday.

In a statement, CAGW said, "The fact that [Feinstein] knew which contracts her husband was involved in is troubling."

The Sunlight blog information is similar to a nine-page written statement released by Feinstein's office last month calling much of the report from the California newspaper "fiction." The statement from Feinstein's office pointed to several aspects of the article it considered hyped or taken out of context.

The statement from Feinstein's office further repeatedly states the Pentagon - not Congress or the subcommittee she served on - awards military construction contracts.

This was never the contention of the story, Byrne said.

"It's a simple story really. I said Blum controlled the company and that hundreds of millions of dollars in projects were approved by the committee," Byrne told Cybercast News Service.

"I never said she approved contracts. He [Gerber] has recast the story into accusations she was steering contracts, then denying allegations I never made. I've showed her not recusing herself when it would be ethically sensible to do so," Byrne added.

Ethics Committee ruling

Feinstein was "proactive" in seeking guidance from the Senate Ethics Committee on the matter, Gerber said. The committee paved the way for her to serve on the committee from 2001 through 2006 as both chairwoman and ranking member.

The committee's ruling was not for public viewing, but Gerber said it related to rule 37 of the Senate ethics code regarding conflicts of interest.

"The specific guidance from the [ethics] committee is confidential, but the guidance was based on relevant portions of the ethics rules," Gerber said.

"That guidance confirmed that, given the facts, Senator Feinstein could fully consider, debate, and vote on broad appropriations bills and serve in her role on the military construction appropriations subcommittee," Gerber added.

That should not be the last word on the matter, said Fitton.

"A, the Senate Ethics Committee can't absolve her of any potential federal law violation," said Fitton. "B, the ethics committee could be wrong. C, they haven't seen all the potential conflicts; or D, they could be completely right, but we'll only know if we look at this further to find out."

Posted by Tilden Moschetti at 3:28 PM | Permalink | Comments (0)

An interesting article on how children are changed by their parents' divorce. I wrote a related article here.

---------------

When Children of Divorce grow up
Jim Shelton , New Have Register Staff

A generation after seeing their parents’ marriages fail and their families split apart, the children of divorce are building families of their own.
As moms and dads in 2007, they’re highly conscious of how marital problems can affect kids, experts say. They’re often very attentive to their kids’ emotional needs and loathe to fall into child-raising patterns from their past that didn’t work.

"It does have to shape their parenting," says Marcia Lebowitz, director of the Children’s Divorce Center in Woodbridge. "People whose parents were divorced approach marriage and parenting in a different way. They either don’t want to repeat the same mistakes their parents made or they want to give their children different things in life than they had."

It’s no small group, either. The divorce rate in America increased steadily through the 1970s and ’80s, and according to the U.S. Census Bureau, the number of divorced people in America jumped from 4.3 million in 1970 to 18.3 million in 1996. Divorce was not an altogether uncommon situation for the children of Generation X.

"Just run the numbers," Lebowitz notes. "Since 1980, a million kids a year have dealt with divorce. Millions of them are all grown up and many of them are parents."

Joanne Goldblum of New Haven is on the older edge of the demographic. Her parents divorced in the early 1980s, when she was 16. She’s now 42, married, and has three kids.

"I feel like (the divorce) affected my life broadly, but it doesn’t necessarily have a direct impact on my parenting," she says. "I think I’m much more alert to what’s going on in the world. I’m more accepting of the different families I see among my kids’ friends, and I’m more sensitive to kids whose parents are going through a divorce."

Goldblum, who is a social worker, says one aspect of her parenting style that may have been influenced by her childhood is that she likes to present "a united front" with her husband to their kids. "I try not to have discussions in front of them that I don’t want them to hear."

She also says that divorce can be a better solution for some families than staying married to someone with whom you don’t get along. Kids in that situation "always know what’s going on," she notes.

Yet debate continues regarding the long-term effect of divorce on children. Some researchers, including California psychologist Judith Wallerstein, contend that a divorce’s emotional consequences can last for decades.

In a book she co-wrote in 2000, "The Unexpected Legacy of Divorce," Wallerstein argued that adult children of divorce may have difficulty picking a spouse and are more prone to getting divorced themselves.

Other observers are more optimistic.

"Just because someone comes from a family of divorce doesn’t mean they have to be terribly injured. Don’t forget, there are also what we call good divorces," says Connecticut psychologist Jeffrey Zimmerman, co-author of "Adult Children of Divorce: How to Overcome the Legacy of Your Parents’ Breakup and Enjoy Love, Trust and Intimacy."

Zimmerman, whose practice is in Avon, says there’s a wide range of parenting behavior that children may see before and after a divorce. It can be anything from amicable, cooperative concern to angry, manipulative behavior.

Likewise, the way divorce affects a particular child into adulthood is quite varied.

"You can find some adult children of divorce who will pull away from relationships, who don’t want to even move toward parenting," Zimmerman says. "You might also find them parenting in a similar vein as one of their parents, or wanting to protect their child from every conceivable discomfort."

Of course, childhood experiences are bound to influence all parents, he adds, whether divorce was part of the picture or not. However, adult children of divorce often exhibit "a greater sense of self-reliance. They may have operated out of two homes and had to develop better planning skills. Kids of divorce can be amazingly sensitive in reading the tea leaves of whatever environment they’re in, because they may not have felt they could count on mom and dad to fix everything."

Psychologist Judith Primavera of Orange, who teaches at Fairfield University, has published research on children of divorce with a colleague, Stephanie S. Farber. Primavera says adult children of divorce, as a group, have a "bidirectional" reaction to their experiences as kids.

"Some children of divorce spend their lives leery of making commitments to others and not able to really trust a partner’s commitment to them, with a minority going to the extreme and resolving never to get married and certainly never wanting to bring children into the world," Primavera explains.

"Other children of divorce seek to find better relationships for themselves, including being better parents, and use the family disruptions of their youth to inform their life choices. Like most of the divorce outcome research, the more positive outcomes can be expected in situations where family conflict and hostility were kept to a minimum."

What’s more, Primavera says, divorced parents who showed little "tug-of-war" behavior actually gave their kids a positive model for resolving problems in later life. "It’s the amount of conflict, both pre- and post-divorce, that best predicts the long-term effect of divorce on children," she says.

Finally, there is the matter of divorced grandparents.

Zimmerman explains that some adult children of divorce are still mediating their parents’ squabbles — while trying to parent their own kids. It can come up during holidays, birthdays and vacation season.

"They may find themselves asking, ‘How do I balance this?’" Zimmerman says. "‘Why is my parents’ divorce still center stage in my life?’"

Posted by Tilden Moschetti at 2:32 PM | Permalink | Comments (0)

County launches child support pilot program
By Michelle Durand
The Daily Journal

Unemployed parents ordered to pay child support in San Mateo County can also receive an immediate mandate to get a job or face jail time under a pilot program proposed to help the more than 8,000 children who aren’t receiving any financial help from their mom or dad.

If successful, the county-only program could serve as a model for the entire state of California, said state Sen. Leland Yee, D-San Francisco/San Mateo, who proposed Senate Bill 523.

“If just one child is helped, that will be a success for me,” Yee said Friday in a formal kickoff of the program.

Currently, the courts can’t go after a delinquent non-custodial parent until 120 days have passed without payment. Those are precious days in which children are being deprived resources and interest is accumulating on the debt, said Supervisor Adrienne Tissier who pursued the legislation for the county.

Systemwide, 41 percent of cases become delinquent after four months and six to nine months from the initial order are needed to find a parent in contempt.

The lack of financial help on top of a separation “tears a family apart even further and devastates a child,” Yee said.

SB523 gives judges the discretion to order an unemployed parent to seek work at the time a support order is issued. The immediate seek-work order may keep parents from falling behind and holds them accountable to find legitimate work rather than under-the-table employment, Yee said.

Parents who still don’t oblige face contempt charges which could send them to jail. While the threat of incarceration might push some to comply, punishment is not the ultimate goal, said Iliana Rodriguez, the acting director of the county’s Department of Child Support Services.

“Incarceration doesn’t get child support to children,” Rodriguez said.

While Rodriguez would rather not see debtors jailed, she said the jobless cannot be let off from their parental obligations.

“Unemployment alone is not an excuse,” she said.

Last year, the child support department collected approximately $30 million. While the figure places the county in the ranks of the top performers in the Bay Area, it doesn’t include any funds for parents like Anna who are still waiting for a check.

Anna, a single mother of three, received some help after splitting from their father in 1996 but his wages were no longer garnished after he lost his job. Anna had to receive cash aid to avoid becoming homeless and eventually gained a job with the county. She can support her children, she said, but life would be must easier with help from the children’s father. The difference, she explained, are making choices between PG&E and food or “just to have a decent birthday or Christmas.”

Yee’s bill only allows San Mateo County to act as a testing site for the program but he is optimistic about its expansion.

Posted by Tilden Moschetti at 2:14 PM | Permalink | Comments (0)

'Til Prenup Do We Part
By Lis Wiehl

Something old, something new, something borrowed, something blue — these are the four requisite symbolic items every bride acquires as her day toward wedded bliss approaches.

But with the 21st century, I’ve noticed a new item added to the blushing bride’s traditional treasure trove — a prenup! Yes, this six-letter word, which previously garnered stares of shock and awe upon its mere utterance, seems as common as Britney’s wardrobe malfunctions and bad hairstyle.

Nothing says “I do” like a good ol’ fashion sit down with two lawyers as you sign along the dotted line — the implication of impending doom in the air. A survey by the American Academy of Matrimonial Lawyers (AAML) declares that 80 percent of matrimonial lawyers reported an increase of prenuptial agreements in the past five years. So — what does this mean? Is it a smart move to protect yourself and your assets? Or does this kind of logic and practicality extract all the romance out of happily ever after?

Many of the newlyweds I know say that prenups just make sense, given that we live in a time where almost half of marriages end in divorce. According to Cheryl Lyn Hepfer, the president of the AAML, prenups are attractive to baby boomers who are on their second or third marriage because “they’re a bit more worldly and often have significantly more assets than the younger folks getting married.” These contracts are also starting to attract successful young professionals who are entering their first marriage — and also making six figures. Divorce attorney Bernard Clair says his prenup business has more than doubled in the past five years with a third of his clients entering first marriages.

It’s one thing to protect your earnings or the condo you’ve saved up for years to purchase—but lawyers also say that in addition to an increase in prenups, the betrothed aren’t afraid to get down and dirty with specific mandates dictating marital behavior. No mother-in-law sleepovers, only one football game per Sunday, and a husband has to work until he’s 65 — and these are the tame mentionables.

But some of these “lifestyle clauses” have also gone way over the top: “Fling fees” for infidelity (Michael Douglas has reportedly agreed to pay Catherine Zeta Jones five million dollars should he cheat), how often a couple can (ahem) have sex and even how much weight a wife can gain (in one instance, a reported $500 per excess pound) So much for spontaneity! And — if you’re a celebrity, the demands are even more outrageous, as you might expect.

Attorneys say some recent celebrity prenups include requiring a husband to pay $10,000 each time he’s rude to his wife’s family, allowing a spouse to perform random drug tests with financial sanctions for a positive result and, of course, a weight clause-Hollywood style. The celebrity weight clause limits a wife’s weight to 120 pounds — and if she indulges in a few calories too many, she’s got to give up $100,000 of her separate property. That would certainly force me to stick to a diet.

Prenuptial agreements can be a way to mark your territory, and earning power. Famed divorce lawyer Raoul Felder (who assisted Rudy Giuliani and Robin Givens through their separations) quipped that in today’s world, if you’re the breadwinner, “you ought to see a psychiatrist if you don’t get one.” Recently separated A-list actress Reese Witherspoon and her husband, Ryan Phillipe, exemplify this sentiment. As one of Hollywood’s highest paid actresses, Witherspoon makes a reported $20 million per film — almost seven times what Phillipe earns! The blond beauty quickly earned the nickname “legally blind” for reportedly failing to ask for a prenup, when the A-list couple married in 1999.

Under California law, where the couple resides, earnings are split down the middle, which could burn a hole through Witherspoon’s bank account. Like California, these days most states are “equitable distribution” states. That means everything earned or bought after the wedding day is shared property that’s divided equally in a divorce. Another consideration, especially if you live in New York, (where the divorce rate is nearly eight times higher than the national average) is future wealth. The Big Apple is one of just a few states to allow your future earnings in the form of a professional degree or partnership to be considered shared property.

Prenup proponents say it’s important to get this hard-to-talk about issue on the table early. “The basic philosophy is that if you take the time to get married, you should take the time to discuss what role money will play in your relationship and what your endgame is for divorce,” says Courtney Knowles of Equality Marriage Institute. A major proponent of prenups is Donald Trump. He even advised Britney to get a prenuptial agreement to protect her assets once she announced her engagement to backup dancer Kevin Federline. Trump said, "I heard Britney Spears is not going to have a prenuptial agreement. She's making a huge mistake ... You have to have it." But the pop princess smartened up as she reportedly has a prenup entitling Federline to only $300,000 per year of marriage. The Donald acknowledges that it’s not romantic, but also feels there’s nothing romantic about losing your fortune. “A prenup is an ugly instrument, but [you’d] better have one … if I didn’t have mine, I would not own all these beautiful buildings.”

Here’s my quick prenup 101 class if you’re uncertain whether to enter this contractual process: If you and your beloved have each accumulated assets of your own — such as real estate, investments or inheritance, its often a good idea to keep that separate. If you own a business, one spouse has significantly more wealth than the other, or you’re divorced with children from a previous marriage, it is often a matter to consider. A simple agreement will cost each spouse approximately $2000, according to the American Bar Association. One more thing-- both parties should have lawyers.

But cheer up; if you and your honey can make it through these conversations, dinner at the in-laws will be a piece of cake. (Just make sure you don’t have any of those weight clauses in your contract!)

Posted by Tilden Moschetti at 2:10 PM | Permalink | Comments (0)

Not extremely common, but certainly a part of my practice is drafting postnuptial agreements. Like a prenuptial agreement, it is essentially a contract that outlines each spouses respective property and support rights. Because so many marriages are dissolved because of finnancial issues, a postnuptial agreement can help keep the couple together by clearly defining what each's responsibilities are.

---------------

First love, then marriage, then postnuptial contract
By Stephanie Hoops, shoops@VenturaCountyStar.com
February 14, 2007

Happy Valentine's Day! Let's sign on the dotted line.

Postnuptial agreements — after-the-wedding contracts between couples — are becoming more popular, according to a recent survey of the American Academy of Matrimonial Lawyers, which found that 49 percent of its members saw a rise in postnuptial agreements in the past five years.

Some couples are using them as Cupid's antidote for keeping financially unstable marriages together, said Ventura lawyer Gregory Herring, who has had wealthy clients choose postnuptial agreements over divorce.

"More and more start divorce proceedings because of financial issues and then find a way to come to terms," he said of his clients. "Oftentimes, parties have a power struggle that really arises from insecurities."

Postnuptial agreements are the same as prenuptials, only the timing is different. The prenuptial is agreed to before marriage, the postnuptial is agreed to after. Both concern how assets will be divided if the marriage ends.

Terms of the agreement can cover a number of issues, including disputes over potential finances, assets, children, even household chores.

It's the older couples, typically in second or third marriages, that want them, lawyers say. They may have children from their first marriage whose interests they wish to protect, or a bigger pot of assets that they're not willing to risk losing. The bottom line, they say, is financial security.

"If it helps keep a marriage together — great," Herring said. "So if that's love, so be it. I still like the chocolates and roses idea, too."

Not all lawyers are fans of such agreements.

Ventura family law lawyer David Praver advises people wanting postnuptial agreements not to get them, and if they insist, he tells them to go elsewhere.

To begin with, Praver said, he thinks that they're a bad idea for the lawyers drafting them. Creating a postnuptial agreement that a court will enforce is not easy, he said, because governing California law is sketchy, and scholars have said the Legislature needs to clarify it.

Because they are tricky to draft, they expose lawyers to greater liability, Praver said. In his opinion, the risk outweighs the reward for drafters like him.

"If it's done wrong, it can result in tremendous liability to the law firm doing them," he said.

Beyond the drafting complications, Praver said, he does not think that it's healthy for a couple to put themselves in an adverse business relationship.

"I think that most of these come about from other couples' war stories," he said of the agreements. "A spouse hears about another couple and what happened to them in a divorce. That's what creates the need. Fear."

Beyond the legalities, for many people, marital agreements are unappealing because they would put conditions on that which is supposed to be unconditional: love.

For many people, mixing the cold world of economics with the warm world of relationships just feels like an ugly proposition, according to Princeton sociology professor Viviana A. Zelizer, who has written a book on that subject, "The Purchase of Intimacy."

"If you mix them," she said, "the idea is bad things will happen."

Zelizer has found that's not always the case, however, and it's hard for people to avoid in relationships in general.

Households do budgets, she said, kids get paid allowances, and friends loan friends money.

"We want to make sure that the economic activity or transaction we have with an intimate is the right kind," she said

To that end, each agreement must be considered subjectively. Marital agreements that command absurd behavior, such as how much weight a spouse may gain, are not healthy, Zelizer said, whereas simply trying to find a reasonable way to divide money is fine.

"If it fits this relationship of intimacy and is not gross — asking for things that should not be asked for, then I don't see a serious problem," she said.

Posted by Tilden Moschetti at 2:04 PM | Permalink | Comments (0)

Although not the law in California (as the article correctly identifies), a court may order some residents of other states to pay college tutition.

---------------

Court Order: Pay The $50,000 Tuition
Forbes.com
Marlene M. Browne 02.12.07, 6:00 PM ET

In the U.S., tuition and board at private universities now runs near $50,000 per year. If that isn't shocking enough listen to this: You might be surprised to learn that your legal duty to support your children might not end when they receive their high school diplomas.

According to the ABA Family Law Section Web site: If your divorce occurs under the laws of Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin, or Wyoming, you cannot be ordered to contribute toward your kids’ so-called “post-secondary” education--what is more commonly known as “college” or “vocational training.”

These states will, however, honor and enforce a parent’s own marital agreement (i.e., divorce contract) that includes a provision compelling him to pay college costs. So, if you divorce when your daughter is seven, and you agree to be responsible for some or all of her future college expenses, be prepared to pony up when Stanford accepts her as a freshman. To protect yourself, consider limiting your exposure, say, to the cost of an in-state, public university. For additional defense against future litigation, define exactly what you are willing to pay for. For instance, left open to the imagination--and a few appellate court opinions--the phrase “college expenses” has been interpreted to include not only the foreseeable tuition, room, board, books, activity and labs fees; but also, transportation costs (which may include a car and related fees), cell phone charges, computer costs, health and auto insurance premiums, fraternity/sorority dues, monthly personal--and even clothing--allowances, as well as use of a credit or debit card to cover “emergencies.”

Also, under the laws of most states, your kids’ funds--whether held in a traditional “Crummey” trust or custodial account--may not be available to defray the costs for which you’ve contracted to pay. Consequently, be careful how you word your divorce agreement. If you want your daughter’s trust fund or custodial account to be applied to her college costs, spell out this expectation in your “property settlement agreement” (PSA), also called a “marital settlement agreement” (MSA). If you don’t label your obligations with enough specificity, you could be stuck paying for education costs from your personal assets, even though the child has enough money in her name to cover these expenses.

What’s more, in most states, a kid’s custodial accounts will affect her ability to qualify for financial aid. So, not only will you be unable to use her funds to defray college costs, overall, you’ll owe more to the school due to her failure to qualify for maximum aid. Therefore, it’s always best to make sure everyone knows what’s at stake and what funds will be earmarked for which expenses. Giving yourself a well defined duty when you divorce is smart. You can always choose to spend more when the time comes, depending upon future circumstances (not only your finances; but also, the quality and tone of your filial relations).

Actually, the decision to contribute toward your child’s college education might not be yours to make after all. If you happen to divorce under the laws of Alabama, Connecticut, the District of Columbia, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Mississippi, Missouri, New Hampshire, New Jersey, New York, North Dakota, Oregon, South Carolina, Utah or Washington, you could be ordered to pay for some or all of your child’s college expenses.

The courts in these few states have repeatedly upheld the constitutionality of their laws providing for college contribution because they view children of divorce (or whose parents are court-ordered to support them) as disadvantaged, lacking the financial benefits of kids from intact families. In legalese, children from fractured families constitute a “special class” such that these college contribution laws are “reasonably related” to a legitimate government purpose--ensuring the continued education of its youngest, identifiably more vulnerable, citizens. When Connecticut changed its law in 2002, legislators cited figures to prove the point: “Children of divorced families were 59% less likely to receive support from parents for college and 23% less likely to attend college at all than children of intact families.” (See: Educational Support Orders In Connecticut.)

If your kids are too young for the college issue to be resolved when you divorce, the court will leave the matter open, allowing the parties to settle the issue among themselves when the matter is ripe, or apply to the court for a full hearing. Before rendering a final decision on who pays how much for what, nearly every state court will consider the particulars of each case, i.e., both parents’ ability to pay; the child’s ability to contribute (with assets, work-study programs, merit or need-based scholarships, Pell grants, Stafford loans and financial aid); as well as her aptitude and diligence for the requested course of study.

And by the way, just because you might not be ordered to contribute toward your kid’s college costs doesn't mean that you are immune from an order to pay for her private primary or secondary school, regardless of where you live. Why? All parents, everywhere in the U.S., are obligated to support their children through their age of majority, generally from 18 to 21 years old. So, even if you live and divorce in a state like Ohio, which will not compel you to cover college costs, you might be ordered to pay for private or parochial school through high school, if it’s best for the child and the custodial parent has the power to make that kind of decision. See for yourself.

Also, don’t rely upon those custodial accounts to defray any of these pre-college, private school costs. Most courts have held that the duty to pay primary and secondary tuition and related expenses are the parents’--not the child’s--responsibility, and as such, should not be paid from the child’s custodial, i.e., UGTA or UTMA, accounts. (The IRS might allow you to use them; but your ex can haul you into court for doing so.)

Finally, assuming you meet the “support test”--check I.R.C. § 152(e)--figure out how to maximize the post-divorce cash remaining in both your and your ex’s pockets by calculating who best benefits (given all the different phase out levels) from claiming the kids as dependents and the tax advantages that follow: i.e., the Child Tax Credit, the Hope Scholarship Credit and the Lifetime Learning Credit. If you decide that the noncustodial parent (NCP) should be entitled to claim one or more of the kids as a dependent, make sure that I.R.S. Form 8332 is completed and signed by the appropriate party at the time of the divorce and given to the NCP for attachment to his or her future income tax returns.

In the meantime, make sure you consult with an attorney to confirm the law in your jurisdiction. Then, knowing what you must, or should, do for your kids, crank up those 529 plans and don’t forget to give your child an apple for the teacher. (For additional information on planning for college, click here.)

Written by Marlene M. Browne Esq.

Posted by Tilden Moschetti at 2:00 PM | Permalink | Comments (4)

I thought this was interesting. In reality, family law attorneys use private eyes occasionally, but less than many people might think. Becuase California is a no-fault state, it is more an issue when large amounts of assets have been funneled off by the cheating spouse.

---------------

With a bit of detective work, a case of a cheating heart can be cracked on Feb. 14
By Jenifer Goodwin
UNION-TRIBUNE STAFF WRITER
February 11, 2007

Gonzalez trailed the husband from his real estate office to his first appointment – lunch with a woman, which might have been innocuous had he not tenderly given her a box containing jewelry. From there, the man headed for a second appointment – another meal, another woman, another gift.

That afternoon, the two-timing spouse had a third appointment – in a hotel room.

“He was running around like a madman trying to get to all of them on Valentine's Day,” said Gonzalez, owner of Bear Witness, a Costa Mesa investigations company.

Valentine's Day doesn't just keep florists buzzing. The holiday can keep philanderers – and the private detectives hired to catch them – busy as well.

“We call it the 'Festival of Lies,'” said Paul Dank, whose Michigan-based firm runs a Web site called cheatingspousepi.com. “It's the holiday of romance, and if they're having a romance with someone other than their spouse, they're definitely going to spend some sort of special moment with them.”

There are two basic kinds of infidelity Dank said. The first is the spontaneous, alcohol-fueled, one-night stand. Valentine's Day is better for catching the full-blown affair.

Continue reading "I've only got (private) eyes for you" »

Posted by Tilden Moschetti at 1:55 PM | Permalink | Comments (0)

Gaining From Community Property
Get the most from special marital-property laws.
By Dan Caplinger (TMF Galagan), The Motley Fool

Most married couples are comfortable with the idea that what belongs to one spouse belongs to the other. It's fairly common for spouses to commingle their assets into a single pool, often in joint accounts in which it would be difficult to trace who was responsible for contributing certain amounts. Even when it comes to income, many couples don't pay much attention to which spouse earns more or less money; it all goes into the joint checking account and pays the whole family's bills.

A few states, including Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington, incorporate this idea of joint family property management into their laws. In these states, community-property laws govern the property rights of married couples. The existence of community property gives married couples some opportunities not available to couples in other states. However, it also presents some additional challenges for couples to overcome.

What community property is
The idea behind community-property laws is that during the period when two people are married, they are both contributing to a family unit. Therefore, any assets that come from the efforts of the family unit belong to both spouses rather than just the one whose name happens to be on the paycheck.

Community-property laws divide property into two categories: separate property and community property. Separate property is treated in the same way as the property that unmarried people own. Only married people, on the other hand, can own community property. For the most part, any property that either spouse receives during marriage is considered to be community property. If a spouse owned assets before getting married, then those assets are treated as separate property. In addition, if a spouse receives a gift or inheritance during marriage, any assets the spouse receives in this way also represent separate property.

In general, states with community-property laws carry a strong presumption that all of the property a married person owns is indeed community property unless that person can show that it's actually his or her own, separately. This holds true regardless of whether a certain account has the names of both spouses or is registered in only one spouse's name.

Division of community property
When a marriage ends, either by divorce or death, community property is generally treated as being owned 50% by each spouse for purposes of applying laws governing division of property. In divorce, this doesn't necessarily mean that each spouse will get exactly 50% of the community property; states that have laws governing equitable distributions often allow unequal division of property to reflect different levels of financial resources and abilities to earn a living. However, it does provide a starting point for a court to consider how assets should be divided.

One consequence of the 50% rule is that, at death, the surviving spouse is generally entitled to 50% of the community property, regardless of the provisions of the deceased spouse's will. Because community property belongs to the family unit, neither spouse is able to disinherit the other. This stands in contrast to states that don't have community property laws, many of which have far less generous provisions for disinherited spouses.

Tax benefits of community proper