Divorce

August 24, 2011

Divorce and Custody Battle Causes Man to Set Himself on Fire

In an incident that received little attention in the mainstream press, a man named Tom Ball, 58, committed suicide in front of the Keene, New Hampshire County Courthouse on June 15, 2011 by dousing himself with gasoline and lighting a match. His 15 page suicide note explained that he was angry at the state child protection bureaucracy and the courts after his ten year battle over child abuse charges. He was angry at the US court system, the federal government, police, child protective services, in general, a system that in his opinion no longer works and no longer serves our interests.

Ball’s troubles began when he slapped his then four-year-old daughter, giving her a cut on the lip, when she refused to obey him after three verbal warnings.

His wife called the child’s mental health provider who apparently told her that if she did not call the police, both she and Ball would be arrested.

August 2, 2011

Divorce in the Diverse San Francisco Bay Area

by Lorna Jaynes

I live and practice law in Fremont, California, one of the most diverse communities in the diverse San Francisco Bay area. Over half the population of Fremont is Asian and Fremont has more folks from Afghanistan than any city in the US. Consequently, many of my clients are Asian and Middle Eastern.

Asian clients often express their belief that divorce is more shameful in their culture and consequently more difficult for them. In addition, in those cultures where arranged marriages are common, and even if the marriage itself was not arranged, the divorce involves the entire extended family.

Another difficulty for these clients in a divorce is that the cultural and legal systems from their country of origin differ from the American system, but American courts will not take these factors into account. For example, aspects of Sharia law or property issues related to dowry may be very important to the spouses but will not be factors that a California divorce court will consider. But in mediation or Collaborative, couples can incorporate their own sense of fairness and justice and/or values and principles that derive from their cultural and ethnic background and thereby create agreements that honor their highest values and the values of their culture.

July 30, 2011

Premarital Agreements in California

by Lorna Jaynes

To most couples planning to marry, marriage is a loving commitment between two people who want to share the rest of their lives. Under the law, however, marriage is a contract between two people … not a contract about love, but a contract about the legal and financial rights and obligations of marriage.

It isn’t easy to discuss marriage as if it were a business, but when considering a premarital (or prenuptial) agreement, that is precisely the right approach. A premarital agreement isn’t a predetermined exit plan and neither does it reflect a lack of faith in the relationship. It simply protects against unfortunate future circumstances that can, and frequently do, happen and is a most worthwhile effort to address the legal and financial issues of the marital contract.

The following suggestions may help you and your future spouse have a constructive conversation about what kind of premarital agreement would be right for your marriage and your relationship, as well as the role of money in your lives together, and if done right such a conversation can ultimately be more helpful in securing a strong foundation for the marriage than it’s actual, intended use.

July 26, 2011

Social Media, Facebook & Divorce

by Lorna Jaynes

As social media becomes increasingly more prevalent and dominant in our lives, not surprisingly it is increasingly involved in that time honored life passage known as Divorce. First, Facebook may actually help facilitate the divorce. A 2010 survey by the American Academy of Matrimonial Lawyers (an odd name for an organization devoted to the opposite of marital bliss) found that four out of five lawyers reported an increasing number of divorce cases citing evidence from social networking sites, primarily Facebook.

To begin with, Facebook can facilitate divorce in any number of ways. It is easy to rekindle old flames and to start new ones online; flirtatious comments can lead to more and/or can inflame jealousy that undermines the marriage. Or Facebook addiction, like any addiction, can lead to marital breakdown.

Once the divorce process starts, Facebook increasingly plays a role in custody and other battles as spouses use the site to spy on each other and find incriminating evidence such as drug or alcohol use or other misdeeds to paint the other as an unfit parent.

July 19, 2011

LGBT Adoption and Marriage Equality in California

by Lorna Jaynes

Representative Pete Stark (D-Calif), U.S. House member from California on Tuesday introduced legislation that would bar discrimination against lesbian, gay, bisexual and transgender (LGBT) people in adoption cases.

The Every Child Deserves a Family Act, HR 3827, which has 33 original co-sponsors, would restrict federal funds for states that allow discrimination in adoption or foster care placement based on the sexual orientation, marital status or gender identity of potential parents — as well as LGBT children seeking homes.

Some states recently have taken steps to inhibit potential LGBT parents from adopting. Last month, Arizona Gov. Jan Brewer (R) signed legislation that would give primary consideration in adoptive placement to opposite-sex married couples. Additionally, Virginia’s State Board of Social Services recently rejected adding protections against discrimination in adoption cases on the basis of sexual orientation as well as other statuses.

July 13, 2011

Child Custody & California AB 1050

by Lorna Jaynes

Prior to the passage of Senate Bill AB 1050 recently approved by the California legislature, the children of parents in custody battles have rarely been able to testify in court. Court’s typically obtain information from the child through third parties, commonly court appointed mediators who are often marriage and family therapists. Senate Bill AB 1050 which goes into effect January 1, 2012 amends California Family Code § 3042 and gives children a greater voice regarding their custodial preferences.

Existing law prior to AB 1050 required family courts “if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, to consider and give due weight to the wishes of the children” in making custody orders.

AB 1050, however, states that “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.”

July 12, 2011

Cohabitation Agreements

by Lorna Jaynes

California does not recognize community property rights between cohabiting couples and does not recognize “common law marriage”, and therefore does not protect those who opt out of traditional marriage or registered domestic partnerships. There are no automatic property rights or support rights under the California Family Code for unmarried cohabitants. Though there may be judicial recognition and enforcement of express or implied agreements between unwed cohabitants, such as breach of contract, partnership theories, constructive trust, declaratory relief, specific performance, quantum meruit and other equitable remedies, the legal process to obtain such recognition is likely to be emotionally torturous and very costly in the absence of a clear, written agreement.

Therefore, it is important for unmarried couples living together to discuss and reach agreements on financial and property rights if the relationship ends. These agreements should be reflected in a cohabitation agreement and testamentary documents such as wills or trusts.

Palimony is a combination of the words pal and alimony coined by celebrity divorce attorney Marvin Mitchelson in 1977 when his client Michelle Marvin (Marvin v. Marvin, 8 Cal. 3d 660 (Cal. 1976) filed an unsuccessful suit against the actor Lee Marvin. Palimony is a popular term, not a legal term, and is often used to describe the division of financial assets and real property when parties end an unmarried domestic relationship. Unlike alimony or spousal support, which is often provided for by law, palimony is not guaranteed to unmarried partners. There must be a clear agreement, written or oral, by both partners stipulating the extent of financial sharing and/or support in order for palimony to be granted. Palimony cases are determined in civil court as a contract matter, rather than in family court, as in cases of divorce.

May 26, 2011

Questions To Ask Collaborative Divorce Attorney

by Lorna Jaynes

Potential Client: Good morning, my wife who lives in the San Francisco Bay Area has decided she wants a divorce and has retained an attorney. I received a letter from the attorney stating that my wife is interested in the Collaborative Divorce model and that to use that model I would have to retain a Collaborative Attorney also. But I have done some investigation and have several questions, the first of which is, where is the “zealous advocacy” in the Collaborative Process?

Me: If you are looking for a process where the attorney uses any and all means to achieve the best possible outcome for you at the expense of your wife and family then Collaborative is probably not for you. A Collaborative attorney understands that you have important needs and interests and the goal of the process is to meet those needs and interests, but at the same time other family members have needs and interests too. Participants in the Collaborative process must care not only about the outcome for them, but also the outcome for their spouse and children. Advocacy in the Collaborative model is about making sure you are heard and understood, and helping you ensure that your most important needs and interests are met, and helping you and your wife craft a durable, mutually agreeable long-term agreement that works for both.

Potential Client: Well, what kinds of strategies and tactics are used to wear down the other party and/or to stall the process so they give in and I maximize my gain in the process.

May 5, 2011

North Dakota’s SB 2367 A Major Setback for Amicable Divorces

by Lorna Jaynes

The North Dakota legislature has introduced SB 2367 which would require that couples with children seeking divorce must wait one year and undergo mandatory counseling before proceeding. During the one year waiting period, couples would have to participate separately or jointly in at least 10 one-hour counseling sessions. I won’t comment on the irony of a so-called conservative legislature that hails the importance of ‘freedom’ imposing excessive and inappropriate government intrusion into such a personal and private matter as divorce. These are the compatriots of those from South Dakota who came up with HB 1171 that would expand the definition of “justifiable homicide” to include killings intended to prevent harm to a fetus so that it would be legal to kill doctors who perform abortions.

Perhaps, they could consider instead following the lead of the thoughtful folks in the New Zealand Family Courts who provide free, yes free, counseling to folks experiencing marital problems or contemplating divorce. The confidential service provides therapists who can possibly help the couple resolve their marital problems and is recommended before filing for divorce. The counseling is offered rather than made mandatory, and again, it is free – both of which would likely go a long way to actually achieving the objective the North Dakota legislature would have us believe is their goal – helping to save marriages or at least reach agreements that facilitate a smooth and amicable divorce. California courts may not be as progressive as those in New Zealand but nor are they as regressive as those in North Dakota. We still have the opportunity to divorce in ways that serve the interest of the family and maintain positive relationships.

April 25, 2011

Collaborative Divorce or Mediation in California Allows Couples to Divorce With Their Personal & Economic Dignity Intact

by Lorna Jaynes

There are so many reasons to end a marriage through the mediation or Collaborative process, rather than resorting to litigation and traditional legal representation. For example, the opportunity to create a positive and supportive co-parenting relationship for the benefit of children and parents, minimizing conflict so that children (and parents) can survive a divorce with little, or at least much less, emotional trauma, reducing legal fees and other divorce costs so that there are more assets available for the divorcing spouses and their children, the opportunity to craft a creative settlement that meets the needs of all concerned. The list is truly endless.

But there is another reason not generally highlighted by those who advocate alternative dispute resolution processes. And that is the satisfaction that one derives from being the master of one’s own destiny. Who is really the best person to make vitally important decisions about your family? Lawyers whom you have probably just met and a judge that you never really get to talk to, and who never gets to hear what really matters to you? In my experience, the best people to make these decisions are those whose lives will be impacted. With the right support, most people who are willing to express their own needs, to hear and understand what is important to the other, and are willing to address the others’ needs as well as their own, can do much better than courts.

It is enormously empowering to solve these problems together, and be able to say “We don’t need the government, we don’t need the courts, we don’t need the system to solve our problems. We can do it ourselves.”