California Divorce Blawg

More Fathers Are Getting Custody in Divorce

Is there a new trend regarding fathers and child custody?  An interesting article from the online edition of the New York Times suggests that there is.

Working Mother Magazine published a package of articles on Tuesday called “Lost Custody,” about the new reality of divorce and child custody for working mothers.

It is filled with tales of women who were the primary earners in a marriage, and who watched their husbands gain primary physical custody of their children when the marriage ended. There are now 2.2 million divorced women in the United States who do not have primary physical custody of their children, and an estimated 50 percent of fathers who seek such custody in a disputed divorce are granted it.

As the writer Sally Abrahms describes it:

Not long ago, men usually paid the child support and doled out the alimony. Moms (working or not) almost always got the kids in messy divorce wars. Years of changing diapers, wiping noses and kissing boo-boos gave them the edge. But now the tide is turning.

The “tender-years doctrine,” a court presumption that mothers are the more suitable parents for children under 7, was abolished in most states in 1994. And, in large part because of the recession, women are poised to outnumber men in the work force for the first time in American history. Job layoffs affecting more men than women have yielded a burgeoning crop of Mr. Moms.

“Men are now able to argue that they spend more time with the kids than their working wives do,” says the veteran New York City divorce attorney Raoul Felder. “This is one of the dark sides of women’s accomplishments in the workplace — they’re getting a raw deal in custody cases, while men are being viewed more favorably.”

Or is it a raw deal? Is it not, in effect, the same presumption — the parent who works harder, parents less — that men have faced for years? You could make that argument, Abrahms says. You could also argue that working women are held to a higher parenting standard than working men, paying a price for not conforming to the cultural expectation that mothers be more hands-on than fathers.

Either way, the percentage of fathers with primary custody will likely increase, one more example of shifting social views about parenting. And there will be more stories like the one Abrahms tells of Julie Michaud, who ran her own business, which supported her family, while her unemployed husband cared for the couple’s 7-year-old son and 5-year-old daughter. As Abrahms writes:

Julie sat helpless as Mark’s lawyer argued that he was the one who arranged the playdates, took the kids to the pediatrician and volunteered at their schools. Affidavits from teachers and neighbors attested to his hands-on involvement in their daily lives. Meanwhile, Julie’s long hours at work meant that people in the community didn’t witness just how much parenting she did out of view. No one saw the lunches she packed every morning, the all-nighters she pulled when the kids were sick. “If I could have done things differently,” Julie says today, “I would have made myself supervisible.”

If a mother works more, and a father less, is that a logical reason for the children to live with him? Have you felt the swing of this pendulum in your own life?

Please click here for the original article.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Assets Accrued During Later Marriage Are Available To Pay Child Support In Earlier Marriage

Until 1994, if a parent paying child support remarried,  the court had the discretion to consider the income of a new spouse in connection with a motion to modify support.  In 1994 this rule was changed so that the income of a new spouse generally was to be ignored. 

But what happens when that support paying parent remarries, and he or she and his/her new spouse accrue substantial assets together that create additional income for the support paying parent?

In Anastasi v. Knowles a California Court of Appeals has now considered how to deal with income from community property assets owned by  the couple when a motion to modify support was filed.  The trial court included all the income from community property assets in the child support modification.  The court of appeal disagreed, holding that only 50% of the income should be considered.

Click here to read the opinion from the Court of Appeals. 

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Text Messages Can Spell Divorce

Text messaging has exploded as a communications tool.  I would venture a guess that it is catching up on e-mail?  Today Law.com featured an article by National Law Journal reporter Tresa Baldes detailing how text messages are coming into play in divorce cases:

Divorce lawyers have found a new smoking gun to wave around in court: text messages.

Infidelity, bad parenting or threats -- you name the issue in marital disputes, family law attorneys say, and the evidence can be found in text messages sent over hand-held gadgets.

The unfaithful, in particular, are paying a high price for their salacious messages. "In the sixties, we had private investigators bursting into hotel rooms to catch cheating spouses," said Paul Talbert of New York's Chemtob Moss Forman & Talbert. "Now it's simply as easy as taking a BlackBerry or phone off the dresser."

Talbert is both relying on texts to prove marital troubles and defending those who get busted over their careless words. For example, he recently represented a woman whose suspicious husband picked up her BlackBerry while she was in the shower and discovered messages that showed that she was having an affair with a co-worker.

The result? "Well, it produced a quick settlement," said Talbert, who offered some advice for the soon-to-be divorced. "Change your password if you're going through a divorce ... and don't use your new girlfriend as your password."

Text messages also proved embarrassing for Nevada Gov. Jim Gibbons, whose estranged wife has alleged in court documents that Gibbons had extramarital affairs with two women, including one to whom he allegedly sent 860 text messages on a state cell phone. Gibbons publicly apologized for sending the texts -- which he claimed were business-related -- and reimbursed the state $130. His divorce is not final yet.

Text messages came up in the high-profile divorce trial of multimillionaire George David and Swedish countess Marie Douglas-David, but this time the texts weren't about infidelity. Instead, the wife's lawyer accused the husband in court of sending his wife a text message on her birthday because he didn't want "to speak with her." Douglas-David wants $100 million, plus $130,000 a month in alimony, from David, who says she's entitled to just $43 million under a postnuptial agreement.

Text messages are playing into custody battles, too. Lenorae Atter of Jacksonville, Fla.'s Wood, Atter & Wolf is handling a case in which text messages are being used to show that the children are having a hard time living with their mother. The kids, she said, are sending texts to their father about problems with their mother.

Atter has also used text messages to help women obtain restraining orders against abusive husbands, who send threatening messages to their wives. She said that, while e-mails are pretty standard evidence now in family law matters, "text messages are slowly but surely coming into the fold."

Please click here for the original article.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

The New Take On Spousal Support

For years I have been telling my clients that the goals and purposes behind spousal support (commonly referred to as "alimony") are changing.  It seems that change is gaining momentum.  The on-line edition of the Wall Street Journal offers an insightful piece on the spousal support policy shift occurring across the country.

Paul and Theresa Taylor were married for 17 years. He was an engineer for Boston's public-works department, while she worked in accounting at a publishing company. They had three children, a weekend cottage on the bay and a house in the suburbs, on a leafy street called Cranberry Lane. In 1982, when they got divorced, the split was amicable. She got the family home; he got the second home. Both agreed "to waive any right to past, present or future alimony."

But recently, more than two decades after the divorce, Ms. Taylor, 64, told a Massachusetts judge she had no job, retirement savings or health insurance. Earlier this year, the judge ordered Mr. Taylor, now 68 and remarried, to pay $400 per week to support his ex-wife.

"This is insane," Mr. Taylor says, adding that the payments cut his after-tax pension by more than one-third. "Someone can just come back 25 years later and say, 'My life went down the toilet, and you're doing good—so now I want some of your money'?"

The nature of marriage has changed dramatically over the decades. Women now make up almost half of the American work force. But alimony, a concept enshrined in ancient law, has remained remarkably constant. Now, the idea that a husband should continue to support his wife forever, even after the demise of their marriage—long a bedrock of divorce law—is being called into question. Pressures are mounting to change a practice that some see as outdated and unfair.

Several U.S. states are battling to place new limits on alimony and rewrite decades-old laws. In Pennsylvania, New Jersey and Oklahoma, lawmakers are pushing for measures like putting time limits on alimony payments, barring alimony if two divorcing spouses are on equal footing professionally, and ending or reducing alimony if the recipient commits a crime or cohabits with another adult in a romantic relationship. Lobbyists and activists are pressing for similar rules in Ohio, Florida, Arizona, Georgia and North Carolina.

In Massachusetts a bill backed by a group called "Reform Massachusetts Alimony Laws Now!" has 72 sponsors and would require a spouse receiving alimony to become self-sufficient, or attempt to, after a reasonable time. That would establish alimony as a temporary payment instead of a permanent entitlement, as is often the case now. A second bill, in the state Senate, would modify the law less radically by adding "duration" to the factors judges can consider when setting alimony payments.

The House bill would end the currently common practice of using the assets of a second spouse to determine the ability of a person to pay alimony. Alimony could only be adjusted upward for cost-of-living increases, and alimony obligations would end upon the retirement of the payer, though judges would still have the flexibility to take into account special circumstances.

State alimony laws, many passed in the 1960s and 1970s, were designed to help nonworking or lesser-earning spouses after divorce. Many states allow for recipients to receive payments for life. Proponents say the money compensates some spouses who have sacrificed careers for families and is particularly vital to low- and middle-income women. Detractors have long called the laws unfair in an age when many women work, with people making payments for years that their former spouses don't really need.

At the core of alimony debate is whether the payments are viewed as transitional—until the dependent spouse gets back on his or her feet—or a long-term dividend for sacrifices made during a marriage.

Now this simmering debate is boiling over. As divorced baby boomers reach retirement age, recession has decimated nest eggs and erased millions of jobs. The American Academy of Matrimonial Lawyers reported a "big spike" this year in clients seeking to modify their alimony arrangements. In a March survey, 42% of the group's divorce attorneys reported an "unusual" increase in such cases, with 6% reporting a drop.

In Los Angeles, Family Court Judge Marjorie Steinberg also reports a "dramatic" surge in these requests. She says petitioners include one-time high earners who've lost their jobs, a group she says she'd "rarely seen before."

The bill in Massachusetts' House of Representatives has gained the support of a group called the 2nd Wives Club. Club co-founder Jeanie Hitner, who is 59 and lives in Marlbourough, Mass., testified to state legislators last month that she is working a second job—tutoring math four nights a week—to help her husband make alimony payments to his first wife.

Ms. Hitner says she wishes she had just stayed his girlfriend. "If I had known about this before we got married, I never would have married him," says Ms. Hitner. Her husband, Steve Hitner, is the head of Reform Massachusetts Alimony Laws Now!, a grass-roots group that consists mostly of alimony-paying men, and supports the same bill. "I don't blame her; I never would have put her through this if I had known what she was going to be in for," Mr. Hitner says.

Opponents of the bill say it may not adequately protect those who rely on alimony payments. Massachusetts State Sen. Cynthia Stone Creem, a Democrat and a divorce lawyer who co-chairs the joint judiciary committee, has called for a commission to study all the alimony legislation, a move that could delay a vote until next summer. Sen. Stone Creem filed her own bill, which would modify the state's law slightly, giving judges greater leeway in setting the duration of alimony payments.

Many states put formal alimony laws into place in the 1960s and 1970s, amid rising divorce rates and concerns that women earned less than men. States such as California and Massachusetts passed laws that included provisions for indefinite alimony. More-conservative Texas, by comparison, generally limited payments to three years.

Many divorce agreements provide for alimony or spouse-support payments, which is separate from child-support payments. Americans gave $9.4 billion to former spouses in 2007, up from $5.6 billion a decade earlier, according to the Internal Revenue Service. Men accounted for 97% of alimony-payers last year, according to the U.S. Census Bureau, although the share of women supporting ex-husbands is on the rise.

Critics argue that in the decades since alimony guidelines were set, the U.S. has changed much: Women made up 46.7% of the work force last year, up from 41.2% in 1978, according to the Department of Labor. Others counter that America hasn't changed enough: Women in the 45-to-54-year-old age group earn 75% as much as men the same age.

But the momentum appears to be with those who seek to guard alimony payers' shrinking resources. Legislation may be gaining traction in part because powerful citizens and lawmakers, themselves divorced, are getting a close-up view of what they see as a flawed alimony system, says retired Judge Robert D. Frank, who handled divorce cases in Tulsa, Okla.

In April, for example, Palm Beach County Circuit Court Judge David French prevailed following a 16-year battle to stop or reduce his alimony payments. A state appeals court ruled that Mr. French should not be forced to pay $3,400 a month to his ex-wife, who has lived for nearly 20 years with another man. The judge ordered the ex-wife to pay Mr. French $151,000, the amount she had received from him since he filed a previous case in 2005. Ms. French's lawyer did not return a call seeking comment. Amy Shield, Mr. French's lawyer, said he was pleased with the decision.

A Florida group has hired a lobbyist to push a bill limiting alimony payments to three years. Ohio's bar association, meanwhile, is lining up legislative sponsors for a bill that could shorten alimony terms—ending support after seven years, for example, following a marriage that lasted 15. Pennsylvania's Senate is considering a bill that could cut alimony to recipients who live in a romantic relationship with another adult.

Last month, Massachusetts representatives heard testimony from Brenda Caggiano, a 70-year-old retired first-grade teacher who supports her ex-husband, Robert, a certified public accountant. When the Caggianos divorced in 2003, they split their assets. He got their home on Cape Cod. She got their home in a Boston suburb, and paid him the $57,000 difference in the value of the homes.

Ms. Caggiano earned more at the time, so the court ordered her to pay $125 in weekly alimony until her death or her former husband's remarriage. Since Massachusetts is a "no-fault" divorce state, it made no difference that it was, as both parties acknowledge, Mr. Caggiano who left home.

Ms. Caggiano says she's living pension-check-to-pension-check and has had to tap a home-equity line of credit to fix her roof. "It's a disgrace that this man is taking my money when he's perfectly capable of supporting himself," she says.

Mr. Caggiano, who is 68, said in an interview he has no mortgage and that his girlfriend, who works full-time, has moved in. He says the couple recently traveled to Italy, and that he spent $60,000 to install hardwood floors, granite countertops and big windows "to get a beautiful view of the water." He keeps his accounting practice to a few clients: "I'm not going out there trying to develop new business."

Asked why he should receive alimony, Mr. Caggiano said he sees it as reimbursement for a time early in their marriage when he paid most expenses, including the down payments on the two homes that were divided at the divorce. Ms. Caggiano says she wants a court to modify her payments but can't afford an attorney.

Another Massachusetts pair, Rudolph and Carneice Pierce, have taken their battle to the state's Supreme Judicial Court. As soon as next month, the court is expected to issue its decision, which could have broad implications for retirement-aged baby boomers.

The Pierces were divorced in 1999 after 32 years of marriage. He was a partner at a Boston law firm and a former state judge. She had worked at International Business Machines Corp. for 27 years. They equally divided $1.4 million in assets, and the court ordered him to pay her annual alimony of $110,000 until her remarriage or the death of either.

In March 2008, Mr. Pierce retired from his law firm and cited this change of circumstance in a request to terminate the alimony. He said his income had already fallen to about $225,000 in 2007, about half its level at the time of the divorce. A probate court reduced the annual alimony obligation to $42,000 but refused to terminate it, arguing that Mr. Pierce had ample earning power and could find another job, such as teaching.

Mr. Pierce, now 67, argues that the court was telling him, in effect, that he couldn't retire. He appealed to the state's supreme court.

Ms. Pierce, meanwhile, left her $95,000-a-year fund-raiser job last summer, her lawyer said, after her territory was expanded to require more travel without additional pay. In briefs filed with the supreme court, Ms. Pierce said she had been pinched by the downturn and that her retirement funds were down almost 50%. Her lawyer, David Cherny, said that while Mr. Pierce's income had also fallen, there was still a financial disparity between the couple because she devoted more time to her family than her career during the marriage.

"She had given up a lot to this relationship," Mr. Cherny says, adding that it would be wrong to change a divorce agreement they'd already made.

Divorce agreements can get rewritten even decades later, as retired Boston engineer Mr. Taylor has learned.

In 2003, more than two decades after agreeing to end a 17-year marriage without alimony, Ms. Taylor was diagnosed with melanoma. She lost her publishing job when her employer of 38 years filed for bankruptcy protection. She'd recently surrendered her home to the bank and filed for personal bankruptcy to resolve $27,000 in medical and credit-card debts.

Mr. Taylor, meanwhile, had retired after 33 years working for the city of Boston, with an annual pension of $56,000.

In a September 2007 complaint filed in a state probate court, Ms. Taylor cited "changes in circumstances" and sued her former husband for support payments. She wrote that Mr. Taylor owned homes in Florida and Cape Cod and traveled to Europe.

In court, Mr. Taylor said he was sensitive to his former wife's plight, but that too much time had passed and that their divorce was final 25 years ago. His second wife, he said, had inherited the Cape Cod house from her father. Their trips were financed through home-swaps and reduced-fare tickets from his stepson, an airline employee.

In June 2008, a probate judge ordered Mr. Taylor to pay temporary alimony based on Ms. Taylor's "dire immediate need" and his "ability to pay." In its January final order, the court, citing Mr. Taylor's income from his pension, told Mr. Taylor to pay his ex-wife $400 per week for five years. The payment will eventually fall to about $250 a week for the rest of her life.

Virginia Connelly, Ms. Taylor's lawyer, says she can see how Mr. Taylor could find the situation unfair. But under Massachusetts law, she said, judges who want to keep a person off public services can turn to the ex-spouse.

In May, to seek relief from legal and other bills, Mr. Taylor declared personal bankruptcy. He is still responsible for supporting his ex-wife. "If she loses all her money, so what? She can just take me back to court," he says. "Somewhere along the line I should have peace of mind."

Please click here for the original Wall Street Journal article.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Are the LA Dodgers Community Property?

Dodgers owner Frank McCourt and his wife Jamie have split.  The fireworks have begun in their California (Los Angeles County) divorce.  In addition to requesting $448,000 per month in spousal support, Ms. McCourt is also asserting that she is a co-owner of the storied baseball franchise. Click here for more.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

ABA Military Pro Bono Project Needs Volunteer Lawyers

The American Bar Association's Military Pro Bono Project connects active-duty military personnel to free legal assistance for civil legal issues beyond the scope of services provided by a military legal assistance office. The Project's web portal has been created to allow case-handling military attorneys to refer financially eligible servicemember clients to the Project, which will then make every available effort to place the case with a volunteer pro bono attorney qualified to assist the client with the legal issue.

Registered pro bono attorneys may also use this site to track their cases, find resources supporting their work, and connect with other pro bono attorneys representing military personnel. Military and civilian attorneys may click here for further information on how to get involved.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

California Has Very Specific Requirements When You Try To Enforce Support Orders From The Courts Of Other Countries

Natalija and Nikolai were married and living in California.  Eventually Natalija moved to London, and then got court orders as part of a divorce in the UK.  One of the orders in the British case ordered Nikolai to pay 50,000 pounds for Natalija's attorney fees.  Natalija then tried to get her 50,000 pounds from Nikolai by filing an enforcement action in California.  She brought her action under California's Uniform Foreign Money-Judgments Recognition Act (the Act).

The trial court decided that she could pursue her enforcement action under the Act.  The Court of Appeal said she could not. The opinion provides a thorough (perhaps exhaustive) analysis of the types of actions that can be enforced under the Act.  The Court of Appeal explained that "the Act specifically excludes from its scope the enforcement of 'support in matrimonial or family matters,' and it applies a broad definition of 'support.'  The award of attorney fees was, for purposes of the Act, in the nature of 'support'; therefore, the trial court erred by enforcing the award of attorney fees."

Click here to read the opinion.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Richard Pryor's Daughter Cannot Annul His Marriage.

Richard Pryor was a well-known comedian and actor. He had six children, including Elizabeth. Richard was diagnosed with multiple sclerosis in the mid-1980‟s. He was married to Jennifer in 1981 and they divorced in 1982. On June 8, 2001, pursuant to a confidential marriage license, Richard and Jennifer remarried. Richard died on December 10, 2005. At some point after his death, Elizabeth discovered his 2001 remarriage to Jennifer

On July 13, 2007, styling herself as successor in interest to Richard, Elizabeth petitioned to annul Richard's 2001 marriage to Jennifer on the ground of fraud.  The trial court ordered a dismissal of the case citing case law for the proposition that nullity action alleging a voidable marriage does not survive the death of a spouse. The Court of Appeal agreed with the trial court, and decided Elizabeth could not pursue annulment of her father's marriage to Jennifer.

Click here to read the official court opinion.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

‘Secular progressive’ wants to ban divorce in California

The latest move in California's evolving laws of marriage would have divorce banned.  From San Diego News Network.com we get this story.

A Sacramento man wants to ban divorce in California. John Marcotte filed an initiative - the California Marriage Protection Act - with the state attorney general’s office last week. The initiative says: “No party to any marriage shall be restored to the state of an unmarried person during the lifetime of the other party unless the marriage is void or voidable, as set forth in Part 2 of Division 6 of the Family Code.”

Marcotte told KXTV News 10 in Sacramento the initiative is a “logical extension” of Proposition 8, the state’s voter-approved Constitutional ban on same-sex marriage.

“Everyone wants to protect traditional marriage, I just thought Prop. 8 supporters went about it in a strange way,” Marcotte said, in an e-mail question and answer with San Diego News Network. “I’m attacking the heart of the issue. If you want to protect marriage, make sure that it can’t be dissolved. Ever. Problem solved.”

Marcotte’s initiative is generating buzz, for its content and the often tongue-in-cheek nature with which it’s presented.
According to the News 10 reporter, Marcotte has “engineered a number of harmless social pranks” - including a stunt where Marcotte and friends put a giant pair of Groucho glasses on a statue in a Sacramento shopping center last year.

The Web site says, “You said ’til death do us part. You’re not dead yet.”; “Jesus still loves you if you get divorced - just not as much as before.”; and “Hell is eternal - just like your marriage was supposed to be.”

Marcotte said the accusation that he’s kidding is “deeply offensive” and that the divorce ban is a “centrist position with broad, apolitical appeal.”

” … It just goes to show you how out of touch with mainstream America the liberal media has become,” said Marcotte, a married father of two. “They want to laugh me off as a joke, so that they can dismiss the very real traditional values my movement represents. Secular progressives like Brian Williams, Wolf Blitzer and Mario Lopez would rather concentrate their efforts on advocating for death panels, promoting socialism and discovering who Kim Kardashian is fornicating with this month.”

Marcotte said he’s confident Proposition 8 supporters will rally behind the California Marriage Protection Act.

“After all, [Proposition 8 supporters] weren’t trying to take rights away from gay people; they were just trying to protect traditional marriage,” Marcotte said. “I’m sure they will support this 100 percent, even if this time it is their rights that get diminished. It would be hypocritical for them not to support us.”

With regard to gay rights advocates and Proposition 8’s opponents, Marcotte said, “We are making great strides in the ‘hell-bound sinner’ demographic.”

The divorce ban would apply to opposite — and same-sex couples. More than 18,000 same-sex couples married in California before Proposition 8 passed in November.

“Jesus clearly said that divorce is a sin: ‘What God has joined together, let no man separate,’” Marcotte said. ”But, he never even mentioned homosexuals or homosexual behavior. Probably a clerical oversight, but still …

“So while being gay is sinful, it appears that Jesus felt that getting divorced was a larger sin. So I think gay people who happened to get married while it was legal to do so will have no choice but to remain married. But since being gay is also sinful, I think that homosexual couples should sleep in separate beds and refrain from having sex - just like real married couples.”

Whether he’s serious or satirizing, there’s no indication Marcotte is being dismissed. CNN picked up the News 10 story and Friday, Marcotte was forced to upgrade servers when an influx of users crashed the site RescueMarriage.org. The initiative’s Facebook page has more than 1,900 fans with more than 200 added since Monday evening.

Marcotte said he wasn’t planning to ramp up outreach until petitions were prepared to circulate, but the media attention and public interest are fueling the fire. There are still those, though, who haven’t heard of the California Marriage Protection Act.

Charles LiMandri, a San Diego lawyer who supported Proposition 8, told an administrative assistant he had not heard of Marcotte’s initiative, and he declined to comment.

Some Proposition 8 opponents - who are planning a grassroots campaign to repeal the same-sex marriage ban in 2010 - are amused by Marcotte’s initiative. The Marriage Protection Act Facebook page has a number of gay fans.

Lisa Kove, a San Diego member of the 11-person Interim Administrative Board of Restore Equality 2010, suggested Marcotte reach out to hotelier Doug Manchester, a supporter of “traditional marriage” who donated $125,000 to Proposition 8, and who CityBeat reported is split from his wife.

“[Doug Manchester] should contribute another $125,000 to secure traditional marriage’s protection from divorce,” Kove said.

When asked whether he thinks gay rights advocates will push a repeal of Proposition 8 through to the 2010 ballot, Marcotte said, “Oh, I know there will be. There is always some fool out there willing to abuse the initiative process just to make a point.”

Please click here for the original article.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

The New Economic Realities of Family Court

These days question number one from friends and acquaintances is, "how's business in these tough economic times?"  I tell them business is busy.  Then the question is typically rephrased to "how is the economy affecting families?  Is it leading to more divorces?"  Relevant questions all.  Attorney Charlotte E. Thomas penned an article The Legal Intelligencer Blog answering those questions.  It focuses on the observations of a Philadelphia family law judge; but reflects trends every state is seeing.

I recently spoke with Judge Margaret Murphy at Family Court in Philadelphia. Murphy explained to me that the economy has had a big impact on decisions in Family Court.  Just as the economy has hit us all, parties in Family Court have suffered from layoffs, work hour reductions, changes in benefits and decreased retirement assets. Murphy said she isn’t necessarily seeing a change in the volume of cases, which always seems remarkably high.  Rather, the economy has changed the types of the disputes that she hears relating to child and spousal support and equitable distribution.

It’s not just that support payments are being reduced because of income changes. Other aspects of support are also affected by economic circumstances. By way of example, an issue arising with frequency is school choice.  Parents unable to agree on the school that a child will attend often seek judicial intervention.  In the past, arguments focused on what type of private or parochial school would most benefit the child.  With layoffs and changes in income, Murphy is seeing more parents financially unable to pay for any private school.  In other settings, one parent may agree to provide support while a child attends college.  More and more parents are unable to afford this form of agreed upon support.  Sometimes it is a simple inability to pay because of a lost job.  Other times, a lender may refuse to allow a parent to co-sign a student loan because of the parent’s decreased income or because real estate values are so depressed as to make the parent non-creditworthy.

The loss of medical coverage, either because of a lost job or because job benefits are cut, is occurring more frequently.  For example, if a parent loses a job and thus loses health coverage, the cost of COBRA can be exorbitant, particularly when coupled with a loss of income.  The loss of medical coverage affects not only well-care checkups of dependent children, but other types of treatment as well, such as orthodontic treatment.  While Murphy routinely refers dependent children to the CHIP program, parents may have little choice but to go without health care or elective medical treatment for children. 

According to Murphy, the economy also is changing the dynamics of equitable distribution calculations.  Businesses that were at one time flourishing, or at least profitable, may be subject to significant reductions in value, thereby changing the equation for the division of marital property. 

The same is true for depressed real estate values.  In the past, refinancing was a method of choice to divide the marital home, allowing one spouse’s interest to be purchased by the other through refinancing.  With decreased property values and less credit available, refinancing is not always an option.  As a consequence, Murphy said she is seeing more marital homes being marketed for outright sale.  The sale of the marital home in a depressed market brings on its own set of problems, as sales may be slow and at reduced sale prices.  Some families may own vacation property, which replicates the problems in the division of the marital home.  The vacation home market is challenging for the additional reason that the market is driven by buyers who can afford the luxury of a second home – a relative rarity in this economy.  Families also have been hit hard by the expenses that come with second homes, such as increased taxes in some states and the costs of maintaining these properties.

All of us shuddered to watch our retirement accounts decline last year.  Murphy calls these passive declines.  Passive declines in IRAs and 401K plans have had a decided effect on equitable distribution.  In the past, if one party to the marriage had established a sizeable retirement account, alimony could be reduced or the marital estate partitioned based on the assets in the account.  Although few and far between, Murphy has seen parties claim that these declines were not passive, and that the accountholder should have foreseen the economic collapse and invested more conservatively.

In short, the economy is having a significant impact in the way in which issues are heard in Family Court. As the economy establishes its footing, no doubt these issues will be revisited under yet another set of changing economic circumstances. 

Please click here for the original article.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

How A Forensic Accountant Can Help In Divorce

Very simply put, forensic accounting is accounting that is used in a legal setting. Seth Gordon offers a great article, originally published on womansdivorce.com, on this important field

In a divorce scenario (which may include child support issues), a forensic accountant may be interested in various types of documentation, both business and personal, that can reveal financial information about a spouse, for example, tax returns, accounting records and financial statements, bank statements, canceled checks, credit card statements, appointment books, sales invoices, business contracts, financial projections, mortgage applications and other documentation.

Depending on the particular circumstances, your attorney’s requirements and the terms of the engagement, some of the ways in which a forensic accounting can be used in divorce scenarios are as follows:

1. Search for hidden assets and/or hidden income. This may include searching for hidden bank accounts (including off-shore accounts) and hidden property. For example, the payment of utilities through the other party’s bank account at an address previously unknown to you may indicate the existence of a property owned by the other party or even the existence of an extra-marital relationship (the other party could be paying for a property in which to house a paramour). A forensic specialist may find assets that the client spouse is unaware of simply because of his or her lack of participation in the couple’s financial affairs. Sometimes forensic accounting finds things because the other party does not remember or did not keep records – this does not equate to mal-intent.

2. Search for inconsistencies between financial information on certain important documentation.

3. Corroborate financial information with non-financial information.

4. Determine and quantify personal expenses accounted for as business expenses by the other party and which may impact items such as the valuation of a business.

5. Perform a business valuation.

6. Calculate the cash flow which may be used in calculating support payments.

7. Perform a tracing to be used in determining the separate or community nature of property.

8. Assist your attorney in preparing document requests of the other party. If you don’t ask for the right documents, you may not get the right answers.

9. Assist your attorney in gathering information to be used in the preparation of subpoenas.

10. Assist your attorney in preparing interrogatories or in preparing deposition or trial questions to be asked of the other party’s forensic accountant.

11. Review certain work performed by the forensic accountant working with the other party.

12. Testify in court or at depositions.

13. Should your attorney require them, possibly have contacts with computer forensics specialists, private investigators and other professionals.

14. Provide input during the settlement process on the tax consequences of certain proposed actions.

15. Etc.

How You Can Help Your Forensic Accountant in a Divorce Scenario

Although you are probably not a financial expert, you may be in a position to help your forensic accountant. You may think this unlikely, but in better times, you may have been privy to the source and use of your spouse’s funds. You may have also visited a business owned or co-owned by your spouse and have an understanding of what documents and records are maintained and in what media.

You are also probably familiar with the habits of your spouse and may be familiar with their close relationships (those people may assist your spouse in hiding money), travel habits (these may reveal off-shore bank accounts or the existence of a paramour) and attitude towards risk-taking (this may help determine possible strategies used by a spouse to hide assets), etc. Information that may at first seem insignificant to you may be extremely useful to a forensic accountant.

If you are unsure of whether or not a piece of information is important, it is probably wise to err on the cautious and let your forensic accountant and attorney know.

Often, in divorce scenarios, a party getting divorced is emotionally exhausted and wants to hand over control to the professionals hired to help that person through the process. It is important for you to stay engaged as forensic accountants may be able to greatly benefit from input that you may have to offer, and, by doing so, you may be able to reduce the amount of time and money involved in the divorce process as a whole.

The thoughts in this article are only the present thoughts and opinions of the author and do not constitute mandates or instructions. Consult with your attorney and other appropriate certified professionals as needed, or if you are unsure.

Using a forensic accountant can revel essential information during the divorce preparation stage and provide vital divorce documentation once everything has started. For example, forensic accounting services can calculate how much money is available for alimony payments and child support, trace community assets and liabilities, and uncover hidden assets and income streams.

Click here for the original article.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Social Networking And Divorce

With the advent of social networks such as twitter, Facebook, MySpace, etc., many people have made their private lives very public.  For some these social networking outlets have become online journals of the most intimate nature.  Legal commentators including totaldivorce.com are starting to identify these social networks as a source for trouble come divorce.

Divorce itself is a concept as old as that of marriage. From the early records of divorce up to now, when a man and a woman decide to nullify their marriage, there are hundreds of aspects and findings within their actual divorce proceeding which culminate in the result of a legal and binding divorce.

One aspect, however, which is new to a divorce proceeding and is gaining momentum in its relativity is that of social networking sites.

In a recent article within Time Magazine it was noted: “Social networking sites have become some of the most popular places on the Internet, but people are discovering — sometimes too late — that what they post online can be extremely damaging in a divorce.”

If you are filing for divorce, think twice about what you post on the web. Be careful tagging friends in photographs and writing comments about lawyers, judges or your spouse.

You should even remain cautious about who you request to be your friend or who you remove from your list of friends. This can all be traced, and may negatively affect your credibility and potential settlement of your case.

Even innocent comments taken out of context could be damaging.

Time’s article, which is about a couple whose divorce spilled into the online world of Facebook, is just one of the spotlights shedding light into a whole new realm of adulterous acts which can end up being very costly.

The article went into great depth about the wife (Tammie) and how she began contacting all of her husband’s (Patrick) Facebook friends. Tammie wanted to ensure that they knew he was married with children; an interesting fact to his “friends” as he failed to mention either his marriage or his children in his online profile.

This is an example as to why lawyers find Facebook, MySpace and other social networking sites to be “evidentiary goldmines.” These prominent sites are often filled with incriminating photos, comments, confessions and links to new significant others.

As for the whole issue of privacy, many people wrongly assume their social networking pages are private, viewable only to chosen friends and connections.

In reality, it’s not difficult for a former spouse, friend or investigator to uncover the “private” information, resultant in potentially damaging consequences in court. Those digital footprints last forever and can cause unending harm.

It is key for anyone who uses these sites to remember to not put anything on their social networking pages which they wouldn’t want their estranged spouse, divorce attorney and potentially a judge to see.

Search engines are continuously indexing comments, photos, blogs and all the rest, making what is meant to be private, public information.

Please click here for the original article from total divorce's the divorce blog.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Divorce Classes To Help You Get Through

Many people today have gone through a divorce or have been affected by the process in one way or another. It only seems appropriate that in today’s society, there are classes to help people make it through this long, emotional process.

Adults and children alike may suffer from the affects of divorce . It splits a home in two, and everyone searches for answers to what happened in the past. Children do not always understand the situation and might feel like they are the cause of the divorce.

It may be hard to know where to begin and how to adapt to all the surrounding changes. Divorce proceedings focus on separation of financial assets, as well as with the emotional well being of both parents and children.

Parents may want to be aware of their children’s behavior during the divorce. Children may show aggressive behaviors and may not cooperate. The American Academy of Child and Adolescent Psychiatry suggests being open with the children and letting them know even though the marriage is ending, both parents will still be a part of their lives.

Classes can teach the adult parties involved how to parent together- even though their relationship is dissolving. These classes can teach families how to cope through this difficult process.

Classes might be small lecture groups or on the internet where online parenting classes, designed to meet requirements for mandatory parenting education. Online classes might be convenient for the working parents who can review and take the classes in the comfort of their home or on the move.

According to Associate Press, 27 states make parenting programs mandatory and in other states, judges can order parents to take classes. Some cities and districts may require classes by state divorce laws.

The emotional well being of families going through divorce may depend on cooperation from both parents, and classes might be an option that can help families move forward.

Please click here for the original article from The Divorce Blog.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Software to help calendar and track child visitation

The folks at Custody X Change keep making their timeshare and child visitation software better!  They have just released version 2.5.  This is a very exciting release that includes the ability to track actual visitation time and keep a log (notes).  Click here to check it out.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Interpol, kidnapping, death threats, covert ops. Here's a child custody case for you!

Husband and wife got married in Pakistan.  They took up residence in Fremont, California and a child was born in California.  Wife then took child to Pakistan for a vacation, and decided not to come back.  For the next six years the parties battled it out in the courts and around the world.  Let the fireworks begin!

According to the Court of Appeals:

This case graphically confirms what we said long ago:  “ ‘controversies over custody are oftentimes long drawn out and bitter. . . .’ ''  This one involves an acrimonious six-year international custody battle, in which lawyers on two continents seemingly have left no stone unturned, while the parties themselves have left no rock unhurled.  The accusations and counter-accusations include kidnapping, fraud, and domestic violence, all set against a backdrop of INTERPOL  warrants, armed gunmen, and flights from justice.  In both California and Pakistan, mud has been slung, court orders flouted, and reputations challenged.

The actual legal questions in the opinion prove to be straightforward. The issue on appeal [is] one of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  (Fam. Code, § 3400 et seq.)  The court concludes the well reasoned decision of the trial court was correct:  the California court that dissolved the marriage had initial home state jurisdiction.  California was the original forum to resolve custody and visitation disputes because the child was born in California, and was a resident of California.  The California court issued an order giving custody to Husband, and California never lost jurisdiction.  Its order granting custody to Husband was valid when entered and remains valid despite Wife's globe-trotting with the child.

This case is a clear demonstration of the old adage "the means don't justify the end."  Click here for a whopper of a child custody tale.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Planning For Divorce

"How do I plan for divorce?"  That is a question that I am asked time and time and time again.  You would think it would be easy to answer?  It is not.  There are too many facets on the stone.  Emotional preparation, parental preparation, financial preparation. . .  It is almost as challenging as "what came first, the chicken or the egg?"

Here are some answers to the financial planning question:

• Organize important records. Important documents such as your will, birth certificate, passport, 401(k) retirement savings plan and tax returns should be filed neatly and safely in a secure place, such as a safe.

• Allocate a spending budget. Once that finances and assets are split, you can asses and allocate a spending budget as well as a savings plan. Document daily, weekly and monthly spending. Dawn Cardi, a divorce lawyer in Manhattan, suggests that you “write down from your checkbook and credit card statements what you actually spend and not what you estimate you spend.” She finds that “most people are shocked by what they discover.

• Eliminate extraneous spending. By documenting what you spend, you will be able to identify how much you spend on essential items such as housing, utilities and food. You will be able to identify, cut down and perhaps eliminate extraneous spending by dining out less and spending less on entertainment and nonessential clothing purchases. Financial experts suggest that you pay cash for nonessential items; therefore, you’re less likely to spend on them. Costs can be cut by minimizing your lifestyle.

• Reduce debt. By saving in other areas and eliminating nonessential spending, you can begin to tackle debt by diligently paying credit card bills in full every month on time. If you are already facing credit card debt, consolidate to one credit card with a low percentage rate and a no or low annual fee.

• Reserve 6 months of savings. Financial experts such as Suze Orman suggest having 6 months of living expenses reserved for unforeseen difficult financial times.

• Plan for retirement. It is sometimes difficult to plan for yourself if you have children and potential college costs on the future horizon. Never cash in your 401(k) plan. Cashing out draws penalties and taxes that may outweigh the immediate cash benefit. Consider rolling your 401(k) into an Individual Retirement Account (IRA).

• Always have a backup plan. A 6 month reserve plan eases a transition time. Organizing and knowing your finances enables you to make smart, informed decisions on what you can and cannot afford in creating a manageable budget to ease the divorce process.

Source: Sun Herald  Please click here for the totaldivorce blog post.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Virginia Divorce & Custody Law

Recently received a note from my friend Jon Frieden that his firm's Virginia Divorce & Custody Law blog is up and running.  Click here to take a peek if you have questions about Virginia law.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Accessing spouse's e-mail is grounds for Domestic Violence Restraining Order

Husband was found to have accessed wife's e-mail account, used information from that account to keep track of her, and publicly disclosed confidential information that he had gotten from the e-mail account.  The court determined that this conduct was sufficient to support the issuance of a restraining order under California's Domestic Violence Prevention Act.

Please click here to read the Court Opinion.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Get Your Past Due Child Support Suspended Drivers License Back

August is Child Support Awareness Month in California. If your driver license is suspended because of child support debt, you may be able to buy it back and “Get Back on the Road Again."  Contact your local Department of Child Support Services office and ask if you are eligible.  Click here for more.

Note: Local Child Support Agencies cannot release licenses suspended for obligations owed to other agencies.  Additional fees may be assessed by the licensing agency.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

How to Move On After a Divorce

Divorce is a difficult time in every person’s life: you get married once, and you think it’s going to last forever only to discover that the two of you are incompatible in the end.  This crushing admission of defeat in your marriage can be a traumatic event in your life that makes it difficult to move on from even years later, but it does not have to remain this way.  If you treat your divorce like any other major event in your life that you were able to recover from, you will discover that it is not the end of the world, and staying in the marriage would simply have caused you more pain in the long run.

Regardless of how the marriage dissolved, the fact remains that it wasn’t meant to be, which is something you need to keep in mind during this process of moving on.  Staying in a loveless marriage has never benefited anyone and has simply served in drawing out a miserable life which does not need to remain as such.  There is a certain freedom which you experience after the end of a difficult marriage which is hard to view at first, but becomes painfully obvious after a while.  After you realize that the marriage would have never worked out (the first step towards moving on), you need to recognize that it is not the end of the world.  If you were against the dissolution of the marriage, it may be particularly hard in getting past this initial fact, but having the ability to find someone who will appreciate you for who you are is a special part of life.  Not allowing yourself to find this by containing yourself in the memory of a failed marriage only serves to drag you down.

Getting back on the dating scene may take a bit of work and many words of encouragement from friends who have seen you through the marriage, but once you are out there, it becomes obvious that you just need to date around for a while.   Dating does wonders for your self-esteem, especially in such a rough time, and having some fun with casually dating helps you discover that there is a whole world out there.  You are in no rush to begin another long relationship, but simply need to enjoy your time and freedom.  After you reach this step, you are able to realize the misery that you would have been in had you continued the freedom.  When you are involved in this type of relationship, it is difficult to see beyond it, but once you see how happy you can be after you are free of it, you can truly begin the process of moving on.

This post was contributed by Tara Miller, who writes about the best dating site. She welcomes your feedback at TaraMillerr00@yahoo.com.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.