Competent Divorce Attorney
Reasons why you need to have a competent divorce attorney with you at all times:
Typically, the client has no experience in court, in litigation, or in a divorce proceeding. Ignorance is not going to help a self-represented party get better results nor obtain any sympathy from the Court. Attorneys have experience in presenting facts, in arguing the case, in preparing and submitting documentation, in controlling the flow of evidence, knowing the law and being aware of appropriate boundaries of effective advocacy;
Attorneys are typically more objective in analyzing the facts, the law and in seeking results as opposed to seeking revenge or vindication. Self-represented litigants are often hampered by their own emotions and often focus on irrelevant and inconsequential issues;
Experienced family law attorneys are aware of options that the Court might not entertain but which would be a better option for the parties and the children (such as a deferred sale of the house or family support instead of child and spousal support);
The paperwork is an exact science and must be done correctly. If it’s not done correctly the first time, there could be significant ramifications and consequences;
The attorney can see the forest and the trees while the self-represented tends to focus solely on the trees and not the final result; and
Attorneys have experience in negotiating family law matters. Negotiation is an art and is much more involved than simply making an offer and then agreeing to a compromise number.
Social Network Postings – Beware!
Social media sites such as Facebook, Instagram, SnapChat, Twitter, Match.com, eHarmony, etc. are very popular and are used to display personal information. These sites can contain very private and confidential information; information that could be used adverse to anyone in litigation, including a divorce, legal separation, request for restraining orders, or custody disputes. Our office routinely checks Facebook and other forms of social media for information regarding both our clients and the opposing side.
The postings on social media sites are public, there is no right to privacy and they are “discoverable”, which means that production of the information could be compelled through legal process or otherwise accessed, printed, and presented to the Judge during your family law case or other litigation matter. If we, as your attorneys, receive a formal request such as a subpoena demanding production of the media postings, we cannot protect you by preventing the disclosure of the contents of any such postings. The same goes for text messages and photos transmitted on your cell phone: your service provider can be required to produce those items even if you have deleted them from your phone.
We strongly recommend that you remove everything on your social media sites that you would not want seen by your spouse, partner, former spouse, your children, opposing party, a prospective employer or by the Court. It would also be a good idea to advise your friends, family, significant other, etc. not to post pictures or other information about you on their sites as well. Comments such as ‘My ex is such a [insert expletive]. My kids would be better off if they never saw him/her’ can have completely unanticipated consequences: in many custody disputes, the tiebreaker is which parent is more willing to provide the other parent with frequent and continuing contact with the children. Such a posting tells the judge who is not willing to share access.
The information on the internet, on your social media sites and transmitted by your cellphone is not private and it could be very embarrassing and damaging to your case if the contents are labeled as ‘evidence’ and presented to the Judge to be used against your claims and interests.
The Importance of the Date of Separation
The date of separation is important because it establishes the end date for the acquisition of community property. During marriage, both spouses’ earnings, and anything purchased with those earnings, are community property. Family Code section 771 provides that a spouse’s earnings and accumulations after separation are that spouse’s separate property. Inheritances and gifts are separate property regardless of when received, but for almost everything else, the date of separation is the dividing line between community and separate property.
The date of separation occurs when one of the spouses has a subjective intent to terminate the marriage, and contemporaneously engages in objective conduct that evidences a complete and final break in the marital relationship. Physically moving out of the marital residence generally is an essential prerequisite to establishing separation, but by itself is not sufficient. If spouses maintain substantial personal, economic and social relationships even after one of them establishes a separate residence, the court could conclude there is insufficient objective evidence of an intent to end the marital relationship. In one case, the appellate court observed that the fact the parties lived in separate residences was not determinative of whether they were ‘living separate and apart’. The husband maintained continuous and frequent contact with his family after moving from the marital home. He continued to eat dinner at the home, maintained his mailing and voter registration address at the home, sent his wife cards and gifts expressing his love, took her to social occasions, had her do his laundry, and otherwise maintained the appearance of being married. He never informed his wife that he had no intention of reconciling. His maintenance of a close personal relationship with his wife after the date he moved out demonstrated that he had not formed the final intent to end the marriage.
Thus, separation requires not only a parting of the ways with no present intention of resuming marital relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship. The ultimate question is whether either or both of the parties perceived the rift in their relationship as final. The test is not whether society at large would deem the couple to be separated; the question is whether the parties’ conduct evidenced a complete and final break in the marital relationship.
We are often asked to consult or co-counsel with attorneys who have unusual or complex cases they do not feel comfortable handling on their own. We have one colleague who handles only routine wills, trust and estates; whenever a matter threatens to turn into litigation, he comes to us. He recently asked us to co-counsel in a case involving a decedent who (he thought) had left no will; our client was the man’s only son and sole heir. Under California law, our client would inherit the entire estate (approximately $750,000) by intestate succession. The initial court appearance was to get the son appointed administrator of the estate so he could pay the bills, assemble the assets, receive the claims of creditors, and obtain a final order confirming him as the sole heir and beneficiary of the estate.
Just as the judge said ‘And you’ve confirmed there is no will, right?’ a lady stood up in the back of the courtroom, waiving a piece of paper, saying ‘Excuse me, excuse me, your honor, there is a will, I have it right here.’ She then produced a cocktail napkin, complete with an illustration of a martini glass and tiny bubbles, upon which was scrawled “I leave everything to Marilyn if she [specific sex acts described] one million times before I die.” It was signed by the decedent, and Marilyn said she had done what the will required and she now wanted the entire estate. A short conversation with our client revealed that Marilyn had indeed been the decedent’s girlfriend in a relationship that spanned over 25 years (during 10 of which Marilyn was married to another man and living in another state), the signature was that of the decedent, and the ‘will’ had been written about 1987. It was thus, at least on its face, a valid holographic will.
The trial judge, although an experienced probate practitioner, had never before seen a will which expressly conditioned a bequest on the performance of sex. He requested briefing whether the will could be admitted to probate; the issue was whether it violated the public policy of California to exchange sex for property in this manner. The court found the language “[specific sex acts described] one million times before I die” to constitute a condition precedent describing the circumstances under which the property would vest in Marilyn. Because she would exchange sex for property, the condition was in violation of public policy. The trial court determined the document was in essence a contract for prostitution, so it would not be admitted to probate; the entire estate would go to the son, our client.
But it doesn’t end there. Marilyn’s attorney decided to appeal the trial court’s ruling a decision with which we would have agreed, had we been representing Marilyn. Although the chances were exceedingly slim, an appeal, properly done, would cost about $15,000; the reward, were the appeal to be successful, would be $750,000. The potential benefit justified the risk, even though the odds were long.
On appeal, there were two determinative issues: (1) Is this a conditional will? (2) If it is a conditional will, does the condition violate public policy?
A conditional will is one in which the gift is contingent upon the happening (or non-happening) of a specific event. The fact a will is construed as conditional does not mean it cannot be admitted to probate; however, if the condition is itself illegal, the will is invalid. We found no other reported case in which a will offered for probate was expressly conditioned only upon the provision of sexual services to the decedent. Perhaps this is because, like parricide under the Roman and Athenian law, it is so obviously improper that no legislation denouncing it need be established.
The only difference between a straightforward contract for sex and this will, was that here the monetary compensation was deferred rather than being paid at the time of the act; it was prostitution on the installment plan. California has a clear public policy against just such arrangements. It is well established that contracts in which the sole consideration is the provision of sexual services are void as against public policy.
Because the condition precedent was both unlawful and opposed to public policy, the attempted devise to Marilyn was void. While consensual sexual encounters between unmarried adults are not per se a violation of any public policy, giving validity to testamentary dispositions such as this one would validate the exchange of sex for property, even where the property is not received until death. The singular object of this conditional will was to establish the circumstances under which Marilyn’s sexual services would be exchanged for property. Whatever the nature of the relationship between our client’s father and Marilyn may have been, the sole requirement for inheriting the estate was that Marilyn have sex with him. The public policy against the exchange of property for sex does not become more palatable just because the compensation is not paid until one of the participants dies.
At the time of oral argument, we were trying hard to maintain decorum in the courtroom. The terms of the will had been mentioned merely as ‘this clause’ or ‘this provision’ without actually being recited. At one point the presiding justice said ‘I’ll bet the audience is dying to know exactly what this will says.’ Counsel for Marilyn said ‘That’s fine, I’ll just read it into the record.’ One of the other justices put his head down and said ‘Please don’t’, whereupon Marilyn’s attorney proceeded to recite the terms of the will, to the great enjoyment of the audience. The presiding justice noted ‘Just your average, Ozzie and Harriet type will.’ After a few moments of laughter seldom heard in the courts of appeal we were given the opportunity to respond to Marilyn’s attorney’s arguments. Ultimately the court of appeal agreed with our position and the entire estate was awarded to our client.
This outcome was particularly gratifying because our client had lived with and cared for his father for 12 of the last 15 years of his life, including a long period of recovery after hospitalization. Our client’s resources were extremely modest and this inheritance would go far to improving his family’s life. This case was also interesting because it was unique; our research revealed no case, in any state, in which a bequest had been specifically conditioned on the provision of sexual services by someone other than the decedent’s wife. The opportunity to become involved in unusual and challenging cases like this is a rewarding part of our practice in Ventura County.
Child Custody and Support Newsletters
The Deadbeat Parents Punishment Act was passed in 1998 to amend the Child Support Recovery Act by making it a felony to fail to pay to pay child support for a child located in another state.
Wage withholding is a method of paying child support by having the obligation taken directly out of the parent’s pay by the employer. Some parents voluntarily agree to wage withholding; others have it imposed upon them by a court.
A parent’s child support obligation may not terminate when the child attains the age of majority. If an adult child cannot be self supporting due to a disability, the state may require that child support be continued.
There are times when a court finds it necessary to appoint someone to be responsible for a minor child. In Texas, that means the appointment of a “managing conservator.” When a managing conservator is appointed, the court may appoint a “possessory conservator,” which is an order setting the times and conditions for possession of or access to the child.
The tender years doctrine is a presumption by a court that a very young child should remain in the care of the child’s mother and that a father needs to overcome that presumption by showing he would be the better parent. Many courts no longer use this presumption in making custody determinations.
In recent years, children have increasingly been called upon to be witnesses in their parents’ divorce proceedings. In some contested fault-based divorces, children have supplied testimony as to cruelty or adultery by one of the spouses. In other instances, children have been a part of custody matters, including offering testimony as to being poorly supervised by one of their parents and as to any neglectful conditions in the family home.
Under certain circumstances, the non-filing party may assert defenses that are not unique to annulment actions. As with any lawsuit, a defendant may raise the defenses of lack of jurisdiction, improper venue, inappropriate remedy, or lack of notice.
In a divorce, temporary orders for property protection are designed to prevent irreparable losses from dissipation, concealment, or conveyance to third parties. Such orders include orders directing one spouse not to dispose of marital property, encumber marital property, or interfere with property in the other spouse’s possession. Courts also may issue temporary orders to prevent third parties from degrading or dissipating marital property that is in the third parties’ possession or control. The orders also may take an affirmative tone by ordering a spouse to maintain insurance and utility service and continue other routine property-preserving activities. Temporary property protection orders often are necessary whenever invaluable assets are involved. It is common for temporary orders to grant one spouse the right to use an item, and to provide compensating support to the other spouse until the assets are divided and distributed.
A premarital agreement, also known as a prenuptial or ante-nuptial agreement, is an agreement made between the parties in anticipation of their marriage. Such agreements can cover issues such as property division upon divorce, as well as child custody, child support, and alimony. Although premarital agreements have been increasingly embraced for their ability to resolve complex property and support issues without resort to trial, the lack of uniform language included in such agreements has been noted as potentially problematic.
“Vacatur” is an order of a court which sets aside or annuls a proceeding. When a judgment of divorce is vacated, the marital rights and status of the parties are restored, and the parties are placed in the position in which they were before the divorce.
Family Law Newsletters
When spouses have decided that their marriage is no longer viable and divorce is the proper remedy, numerous issues are involved, including the division of their property.
Alimony and spousal support are terms that are used interchangeably to refer to an obligation of one spouse to provide a financial contribution to the other spouse’s cost of living and maintenance. The person who receives support is called the recipient spouse. The person who pays support to a recipient is called the obligor spouse. In some states, the term spousal maintenance is also used. In no instance, do the terms involve a division of property.
What is the Freedom of Access to Clinic Entrances Act (FACE)? Both the United States House of Representatives and the United States Senate passed FACE in 1994. President Clinton signed FACE into law in 1994. FACE is a federal law that was passed in order to protect reproductive health facilities and their staff from violent threats and assaults.
A marriage by definition is a union between a man and a woman. Every state has different requirements with respect to becoming legally and statutorily married.
For federal income tax purposes, payments of child support are not tax-deductible by the parent who makes the payments but child support is tax-free to the recipient. In order to qualify as child support, the amounts an ex-spouse receives must be designated as child support in the divorce or separation agreement. None of a payment that is lumped together as either family support or alimony is considered child support for tax purposes. In addition, family support or alimony is taxable to the recipient.