Divorce

December 26, 2011

Proposition 8 & DOMA – Marriage Equality in California

Proposition 8 – Perry v. Schwarzenegger

Following the holding of the California Supreme Court in May 2008 in the Perry v. Schwarzenegger case that state statutes limiting marriage to opposite-sex applicants violated the California Constitution, same sex couples flocked to California to marry. But in November of 2008, California voters adopted Proposition 8, a constitutional amendment that precluded same sex marriage. In response, couples denied marriage licenses filed several lawsuits challenging the validity of the amendment and arguing that Prop 8 violates the U.S. Constitutional guarantee of due process and equal protection.

On August 4, 2010, Judge Vaughn Walker announced his ruling in favor of the plaintiffs, overturning Proposition 8 based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. Walker determined that California had no rational basis or vested interest in denying gays and lesbians marriage licenses, stating that:

December 19, 2011

Co-parenting, Custody & Visitation During the Holidays

by Lorna Jaynes

Sorting out and establishing visitation or co-parenting schedules for the holidays can be stressful and unpleasant, but it does not have to be. If it is stressful and unpleasant for you, it is probably also for the kids, and that is not what most parents want for their kids any time, and in particular during a season that is supposed to highlight our better natures.

Hopefully, the following tips will help.

1) Establish a standard that works for all – Alternating holidays every year works well for some families. If the other parent has the kids for Thanksgiving or Christmas this year, next year will be your turn turn. A regular plan can be helpful in eliminating conflict.

December 6, 2011

Herman Cain, Philandering Politicans & Misappropriation of Community Property

by Lorna Jaynes

Herman Cain, erstwhile presidential candidate and pizza chain CEO, whose campaign website proclaims that the ultimate source of our greatness as a nation is America’s moral foundation, has now come to be known primarily as a serial sexual predator and long-term philandering husband.

Cain claims that the alleged 13-year extramarital affair was platonic and that the money paid to Ginger White, the woman claiming the affair, was to help her out with bills and expenses due to unfortunate financial circumstances. Indeed, claims Cain, she wasn’t the only friend he helped in these tough economic times because he is a soft-hearted person when it comes to this stuff.

Setting aside the issue of whether or not marital infidelity is or should be a relevant factor in the characteristics important in political figures, many influential people, political and otherwise, have had extramarital affairs, including but not limited to, Newt Gingrich, Bill Clinton, Larry Craig, Warren Harding, Franklin D. Roosevelt, Martin Luther King – the list is truly quite endless.

November 28, 2011

Divorcing in California? Protect Your Children

by Lorna Jaynes

Talk to your children about what is happening

Only a minority of divorcing parents sit down with their kids and explain that the marriage is ending and encourage them to ask questions. Some say nothing, surely leaving the kids totally confused and fearful. It is so important to talk to your kids, because almost without fail, they know something is wrong, they just don’t know what and that creates a great deal of anxiety. Tell them as simply as possible, what is happening and what it means to them and their lives. When parents don’t communicate this to the children, the kids feel anxious, upset and fearful and have a much more difficult time coping with the separation and divorce.

Be sensitive and thoughtful

November 21, 2011

Budget Cuts Threaten Access to Bay Area Family Courts

by Lorna Jaynes

Across the country, state courts face severe budget cuts that threaten access to justice for many and California is no exception. California state legislators have cut $350 million from the state court budget, with more cuts certain to follow. Local court will lose $135 million in the fiscal year that began July 1 and another $170 million next year from an overall budget of more than $3 billion.

In Santa Clara County, it means a loss of $6.8 million this year and perhaps more than double that amount next year. San Mateo County’s courts will take at least a $2.7 million hit this year, while Alameda County’s court system will be cut by more than $6.7 million. Contra Costa County’s courts will absorb more than $3 million in cuts and will likewise be forced to cut even more from next year’s budget.

For those considering divorce, be prepared. Twenty-five of San Francisco’s 63 Superior court chambers have been closed; two hundred of 480 employees will be laid off. “It will take a year and a half to get a divorce in San Francisco and to get a child custody order. If you file suit, we won’t do anything with your case for five years,” according to San Francisco Superior Court spokesperson Ann Donlan. That can be disastrous if the matter concerns custody of children, visitation, or many other sensitive issues.

November 14, 2011

Divorce, Family Law & Pet Custody in California

by Lorna Jaynes

We just got a new puppy, a 3 month old Australian Shepherd and while there is no separation or divorce pending, it made me think about what that situation might look like. For many couples who choose to forego having children, their pets become an increasingly important part of the family. But even in many families with children the pet is often almost another child whom all are very attached to. However, the family law system in California and most states provides few options to divorcing pet owners.

In California and most states the law regarding human children is intended to protect the best interests of children in divorce and thus provides for shared custody and support. Pets, however are classified as personal property. Some have advocated for additional recognition and status of companion animals, but legislators have yet to show that type of vision or thoughtfulness, so there is currently no legal distinction between your dog and your sofa when it comes to divorce and no basis in the law for treating the dog any differently than the sofa. (This article assumes the pet is community property) The Court of Appeals Iowa in ruling on an award of a dog to the husband in a dissolution held that a dog is personal property whose best interests need not be considered. In re Marriage of Stewart, 356 N.W. 2D 611 (Iowa Ct. App. 1984)

VALUATION

October 11, 2011

Forgiveness and Divorce

by Lorna Jaynes

Divorce is one of life’s biggest and most painful stressors and traumas and far too often those involved carry the weight, the pain, the blame, the hurt and the anger around with them for years, long after the divorce itself.

Dr. Fred Luskin of the Stanford Forgiveness Project defines forgiveness as follows: to forgive is to gibe up all hope for a better past. If you are stuck in regret or anger over the past you have less energy available for your life today, and are in some ways compromising your future by being defensive and carrying around some unhappiness from the past.

Forgiveness is about healing. There is a distinction between justice, reconciliation, condoning and forgiveness. Forgiveness does not mean you condone what was done, nor does it mean you have to reconcile with or like the person who did it. It is fine to say, “This was such a dreadful act that I must end my relationship with them.” And it doesn’t mean you don’t seek justice, if warranted. These are separate from the inner healing that occurs with forgiveness, which means that you don’t take what happened as just personal, but that you see it as a part of the bigger, ongoing human experience of hurt, resolution, conflict and negotiation.

October 2, 2011

Frenchman Ordered to Pay Damages for Lack of Sex, or Why California No-Fault Divorce is a Fine Idea

by Lorna Jaynes

The Telegraph reports that a Frenchman has been ordered to pay his ex-wife £8,500 (approximately $14,000) in damages for failing to have enough sex with her during their marriage.

The 47 year old wife in this case filed for divorce blaming the break-up on her husband’s lack of activity in the bedroom and sought 10,000 euros in compensation for her Husband’s lack of sex during their 21 year marriage. Despite the husband’s claim that tiredness and health problems prevented him from being more sexually active, the 51-year-old husband was fined under article 215 of France’s civil code, which states married couples must agree to a “shared communal life”.

A judge in southern France ruled that the Husband was solely responsible for the split and that article 215 implies that “sexual relations must form part of a marriage” and that “a sexual relationship between husband and wife is the expression of affection they have for each other, and in this case it was absent.” By getting married, couples agree to sharing their life and this clearly implies they will have sex with each other.” the judge ruled.

September 7, 2011

Why is there no contract disclosure language on a marriage license application in California?

by Lorna Jaynes

As I often explain to clients, it is far easier to get married than to get divorced. As probably the most common and incredibly complex contracts that a party can enter into, why is there no requirement for acknowledgement of the laws, obligations, and responsibilities? Why is there no arbitration or mediation clause?

It would be enormously helpful to prospective marriage partners to be informed about the financial and other considerations of the contract they are entering that is commonly referred to as marriage. Many married couples don’t understand that retirement plans and other assets and debts accumulated during the marriage are community property. Debt assumed during the marriage – even if in one party’s name – is a community obligation. If one party works and the other does not, the earners sometimes think their earnings are theirs alone.

There is insufficient basic information about the contractual rights and obligations that should be understood and agreed to before marriage. This information would resolve many problems if and when the marriage fails. And a standard arbitration or mediation clause that is typically found in most all other contracts would, in the event of marital breakdown, be the first step in an out of court process that would save the courts, and most couples, a great deal of time, energy and money.   

September 1, 2011

Divorce is Painful But Not This Painful

by Lorna Jaynes

In July of 2011, an obviously angry and unhappy 48 year old wife from Garden Grove in southern California whose husband of 16 months had recently filed for divorce cut off her 60 year old husband’s penis and then tossed it into the garbage disposal.

According to the police, Catherine Kieu Becker made her husband a delicious and unbeknownst to the husband, poison laced dinner and served it to him.

As the dinner (poison) kicked in, the husband felt sick and went to lie down. Shortly thereafter he lost consciousness and Becker tied his arms and legs to the bed with a rope and stripped him naked. She took a 10-inch kitchen knife and began sawing away at her husband’s penis, according to police.