Divorce

May 12, 2014

Sanctions, Fees Ordered for Spouse who Concealed Income in Divorce Case – In re Marriage of Vazquez

Trust is the cornerstone of any marriage, and the lack of it permeates a great many divorces. In In re Marriage of Vazquez, California’s Fourth District Court of Appeal explains that lying about income and other information in a divorce proceeding can be very costly.Husband and Wife divorced in 2008 and the court ordered Husband to pay Wife an unidentified amount of monthly child support. Wife returned to court four years later, however, arguing that Husband committed perjury by purposely misstating his monthly income.

During the 2008 proceedings, Husband asserted that he earned about $9,550 a month. Three years later, however, Wife obtained his 2008 income tax return while seeking an order to force him to contribute to their child’s orthodontic expenses. The trial court granted Wife’s motion to compel Husband to respond to a demand for inspection of documents relating to his finances, including the tax returns, which showed that Husband made nearly $21,000 a month in income during the time of the divorce. The trial court set aside its previous child support order and entered a new order requiring Husband to pay more in current child support as well as $25,000 in sanctions and more than $36,000 in attorney fees.

April 21, 2014

Divorce Lawyer Karma

by Lorna Jaynes

San Ramon family law attorney, Mary Nolan, was recently sentenced to two years in federal prison for unlawful interception of telephone communications and tax evasion. Ms. Nolan illegally intercepted telephone conversations by accessing a listening device that now-imprisoned private investigator Christopher Butler had installed in a victim’s vehicle. Butler hired women to approach men at bars, drink with them and set them up for drunken-driving arrests that their wives could use against them in divorce cases. Two of the men whose wives were represented by Nolan have sued her, Butler and others for damages. Nolan also hid $1.8 million in income from the Internal Revenue Service to avoid paying $400,000 in taxes between 2005 and 2009, and admitted to obstructing justice by submitting false contracts to the IRS during an audit.

Mary Nolan was my opposing counsel, my client’s wife’s attorney, in my first divorce litigation. At the time I had no idea about her ethical challenges but I did know that she was not very nice. (That is very polite understatement.) So not surprisingly, given her apparent challenges with ethical behavior, the matter was a nightmare for my client and me. Rather than trying to help the clients work out reasonable solutions for a negotiated settlement, she engaged in abusive discovery and trumped up domestic violence allegations in order to reduce my client’s time with his children and more child support for her client. Essentially, she did everything she could to destroy, rather than helping to restructure the family. After several months of this nightmare I told my client that if he was going to survive with this ogre on the other side he needed to fire me and retain a seasoned and aggressive litigator. And I told myself that if I was going to survive in this business that I needed to find another way to practice law.

And that is exactly what I did. I found Collaborative law and mediation and learned that there is another way, a far superior way, and never looked back. Now I offer divorcing couples alternatives to the court system, Collaborative Law and Mediation, to help them create positive, mutual agreements and divorce without the emotional and financial costs of litigation.

March 30, 2014

Divorce, Spousal Support and Cohabitation – In re Marriage of Woillard

by Lorna Jaynes

In most divorce cases, the terms of any spousal or child support obligation are set forth in either a court order or an agreement between the parties. Often, that includes a stipulation that spousal support payments will stop when the person receiving them remarries or otherwise “cohabitates” with another person. In In re Marriage of Woillard, California’s Second District Court of Appeals makes clear that the term “cohabitation” is interpreted fairly broadly.

Husband and Wife divorced in 1990 after what the Court called a “lengthy” marriage. Under the terms of the divorce judgment, Husband was required to pay wife $4,000 a month in spousal support until Husband or Wife died or until she was remarried or began cohabitating with an “unrelated male.” In 2011, Husband filed an action seeking to terminate the spousal support payment, arguing that Wife had been cohabitating with her boyfriend, Keith, for the last six years. A trial court agreed, concluding that the spousal support agreement expired in 2005 and ordering Wife to pay Husband back $256,000 in support payments that she shouldn’t have received.

The Court noted that Wife and Keith were engaged in 2004, vacationed and attended family events together and “shared significant resources” through the course of their relationship, which began three years earlier. Wife loaned Keith $30,000 – an amount he later paid back – and he often stayed at her home, where he kept clothes and other personal belongings and received his mail. The couple kept a joint checking account related to expenses and rental income for two condominiums that Wife owned. They also jointly purchased a boat in 2005, securing a loan for it by using Wife’s home as collateral. Keith slept on the boat when he didn’t stay at Wife’s house.

March 6, 2014

The Role of Retirement Benefits in California Divorce Cases – In re Marriage of Green

by Lorna Jaynes

Retirement benefits are an important piece of the puzzle in transitioning comfortably to life after work. And often, they are the subject of intense debate in divorce proceedings. In In re Marriage of Green, California’s Supreme Court considered what to do with retirement benefit credits made available based on service before the marriage, but paid for with community money.

Mr. Green began working as a firefighter in 1989 and married his wife, Ms. Green, roughly two years later. He continued to work for the Alameda County Fire Department over the course of the marriage and earned retirement benefits through the California Public Employees’ Retirement System (CalPERS). Mr. Green also exercised his option to purchase four additional years of service credit for retirement purposes based on his stint in the U.S. Air Force before joining the Department. Under this option, Mr. Green agreed to pay bi-monthly installments of $92 for 15 years.

The Greens separated in October 2007. At that point, Mr. Green had paid more than $11,400 in payroll deductions toward the additional retirement credit. The payments were scheduled to be completed in July 2017.

February 20, 2014

Court: Client List, Bonus Money is Community Property – In re Marriage of Finby

by Lorna Jaynes

Bonuses are a common and often significant form of compensation for a number of people who live and work in California, particularly those in certain professional fields. In In re Marriage of Finby, the state’s Fourth District Court of Appeals explains that all or some of the money is likely to be deemed community property to be divided among spouses in the event of divorce.Husband and Wife married in 1985 and separated 15 years later in February 2010. Wife worked as a financial advisor during the course of the marriage and was employed by UBS before signing a contract with Wachovia in 2009. The company was later purchased by Wells Fargo.

Wife’s contract with Wells Fargo provided for a variety of bonuses, including a “transitional bonus” of more than $2.8 million. The bonus was premised on the fact that she had developed a list of clients – referred to as her “book of business” – whose investments were worth more than $192 million at the time and whose accounts were expected to go with her to the new job. Under the terms of the contract, the bonus was conditioned on Wife’s staying at Wells Fargo for more than 9 years and maintaining a gross production level of over $1.12 million, as determined on an annual basis. Wife opted to obtain the complete amount of the bonus immediately, however, and signed a loan agreement with her employer under which it agreed to forgive $27,700 each month over the course of 112 months. If Wife stopped working at any time during the period, the company had the right to demand the entire amount remaining on the bonus/loan.

January 31, 2014

Spouses in Two States: Which One Should Hear Their Divorce Case? In re Marriage of Malcolm

by Lorna Jaynes

We live in a highly mobile society. That means it’s no longer out of the ordinary for spouses who are married in one state to be living in another when they later separate and divorce. Nor is it unlikely for spouses to be living in two separate states when one or both files for divorce.

Forum non conveniens is a discretionary power that allows courts to dismiss a case where another court, or forum, is substantially better suited to hear the case. In In re Marriage of Malcolm, the state’s Sixth District Court of Appeals explains how the legal doctrine applies in California divorce cases in which the spouses are located in different states.

Mr. and Ms. Malcolm married in Carmel, California in 1999. They later had three children, with whom they primarily resided in Aspen, Colorado. They paid state income taxes in Colorado, held driver’s licenses issued by the state and were also registered to vote there. They also kept ties in California, however. The Malcolms founded a company in Sunnyvale, where Mr. Malcolm worked five days a week. Ms. Malcolm served as the company’s general counsel, but worked primarily from Aspen. The family also owned two homes in California, in Los Altos and Carmel. Mr. Malcolm, a licensed pilot, maintained a hangar and apartment at the Monterey Airport, where the couple kept their four planes.

January 28, 2014

Want To Save on Attorney’s Fees? Try Unbundled Legal Services

by Lorna Jaynes

For those who must litigate and who cannot afford to hire an attorney to represent them or who want to be in control of their own case, unbundled services can be a great solution.

Unbundled legal services, also known as limited-scope services, are legal services that are broken down and offered as individualized legal services, instead of “bundled” legal services–which generally means full legal representation. An attorney offering unbundled legal services makes it possible (and financially feasible) for someone to receive vital legal assistance without incurring great financial detriment.

In limited scope or unbundled representation, an attorney and client agree to limit the scope of the attorney’s involvement in a lawsuit or other legal action to specific items, leaving responsibility for other aspects of the case to the client in order to save the client money.

December 2, 2013

Covering Children’s College Costs in California Divorce Proceedings – In re Marriage of Humphries

by Lorna Jaynes

In California divorce cases, spouses often want to determine not only basic child support issues, but also how to cover future expenses related to their children’s higher education. In In re Marriage of Humphries, the Fourth District Court of Appeals addresses a dispute about college expenses.

The Humphries married in 1990 and had three children before separating 16 years later. Ms. Humphries obtained an emergency protective order against her husband under the Domestic Violence Protection Act in 2006. The couple later entered into an agreement in which Ms. Humphries agreed to drop the protective order and provide Mr. Humphries with child visitation rights. In turn, Mr. Humphries agreed that his wife and children would remain in the family’s residence and that he would pay various forms of support, as well as paying for the children’s private school education. Mr. Humphries further agreed for each child to “pay for four years of undergraduate education at a certified university of the child’s choice, at the rate of a school in the UC system in California” plus related expenses, provided that the child was a full-time student and maintained at least a 2.5 grade point average.

Ms. Humphries subsequently filed for divorce from her husband in 2008 and also sought an order requiring him to pay spousal and child support. The parties later entered a stipulated agreement providing that Mr. Humphries would “continue to support [Ms. Humphries] and the children.” Following additional litigation, they entered another agreement, this one stating that Ms. Humphries would be named joint custodian on three separate bank accounts – one for each child – and that the funds would be used to cover the children’s college tuition and expenses.

August 16, 2013

Time to Consider Giving Up on the Family Court System and Use a Private Judge

by Lorna Jaynes

My practice has been limited primarily to Collaborative Practice and Mediation for many years, since I learned long ago that divorce is a problem to be solved not a battle to be won, and the court system only exacerbates the problem and most often leaves couples worse off, financially and emotionally. Collaborative Practice and Mediation allow a couple to divorce in a structured and facilitated process that enables them to stay out of court, gather and review all of their financial information together, brainstorm options for property division, co-parenting and support, and craft an agreement that works for all. This process reduces the fear and anxiety because every step in the process is taken together and both understand that nothing will happen and no agreements will be signed or filed until both agree.

These processes are not without difficulty and conflict. The couples are divorcing after all so there is most always conflict. But unlike the court system with uncaring judges and litigious attorneys, Collaborative Divorce and mediation endeavor to help parties communicate more effectively, understand each other’s needs and interests, and help them find common ground and shared goals. This most always leads to agreement.

Another reason I value out of court processes is that I believe in personal empowerment and the right and ability of most everyone to make their own decisions in such matters. With very rare exceptions, I can’t think of any good reasons divorcing spouses would want a judge (ie government official) to make decisions about how they divide marital property or co-parent and support their children and each other. In most all cases, the best people to make these important and personal decisions, are the parties themselves.

June 4, 2013

California Court Says Child’s Best Interests Served by Equal Co-Parenting Plan – In re Marriage of Erb

by Lorna Jaynes

The ultimate goal in resolving child custody and co-parenting issues is to reach a resolution that is in the best interests of the child. In In re Marriage of Erb, California’s Fourth District Court of Appeals explained that sometimes that means limiting the amount of contact former spouses have with each other.

Mother and Father were divorced in February 2004. The parties agreed that they would share legal custody of their then two-year old daughter (Daughter) and that Mother would have primary physical custody over the child, while Father would keep visitation rights.

Four years later, Father asked that the arrangement be changed so that Daughter would spend Wednesday nights with him and that his time with her be increased gradually until both parents shared equal time. A trial court agreed to increase Father’s time with Daughter to a more limited extent. Mother retained primary physical custody.

Following further litigation, however, the trial court agreed to a co-parenting plan submitted by Daughter’s independent counsel in June 2011. The plan provided for equal sharing of time with Daughter by Mother and Father under a “2-2-5-5” arrangement. Mother got two days with Daughter, Father got the next two days, then Mother got five days with Daughter and Father got the next five days.

Based largely on input from Daughter’s attorney – who interviewed Mother, Father, Daughter, her step-parents and a number of other family members – the trial court ruled that it was in Daughter’s best interests to put an end to the contentious litigation between her parents that had then been going on for seven years. “[W]e can’t go on like this,” the court said simply. It noted that the 2-2-5-5 plan would both add stability to Daughter’s everyday life and limit the number of exchanges between Mother and Father in an effort to avoid further disputes.