Bay Area Divorce Lawyer Blog

July 19, 2011

LGBT Adoption and Marriage Equality in California

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 19, 2011

Birth Parents Rights vs. Adoptive Parents Rights

by Lorna Jaynes

Hallelujah! Sometimes courts get it right and the Baby Vanessa case is one of those cases. This is hopefully the end of a three year custody battle over a two-year-old girl that involved the rights of adoptive parents, fathers’ rights and the best interest of the child. Vanessa’s birth mother, Andrea Conley, placed Vanessa for adoption with Stacey Doss without the knowledge or consent of the infant’s father, Benjamin Mills, in violation of his parental rights.

Conley and Mills had a long and problematic relationship that produced two other daughters who live with Mills’ mother, their foster parent. All of Mills four children live in foster care. Mills, who has multiple domestic violence convictions, assaulted Conley before Vanessa’s birth. Prior to the birth of Vanessa, Mills was arrested for beating, strangling and dragging Conley by the hair while she held one of their other children. Mills had been jailed in the past for domestic violence and child endangerment. Conley, for what appears to be good reason, did not want Mills to know about Vanessa and supported Vanessa’s adoption by Doss throughout the process.

And this has been a lengthy complicated legal process involving not simply a contest between the biological and adoptive parent, but jurisdictional issues between the state of Ohio where Mills lives and California where Doss lives. Doss, a self-employed single parent paid for all of her legal costs whereas taxpayers in both California and Ohio are footing the bill for Mills’ legal costs.

May 12, 2011

California Child Support Options – State Guideline or Something Better?

by Lorna Jaynes

For those who go to court to determine how much child support should be paid by whom in a typical California divorce, there is a formula used to calculate the amount according to the state guidelines for child support.

The formula for the calculation of guideline child support is contained in California Family Code section 4055. That formula is expressed as follows: CS = K [HN – (H%)(TN)]. In this formula, the symbols set forth below (and used in the formula) make reference to the following definitions: CS = child support amount K = amount of both parents’ income to be allocated for child support HN = high earner’s net monthly disposable income H% = higher earner’s approximate time of physical responsibility for the children TN = the parties’ total monthly net income This formula will produce an amount of support per minor child. When more than one child is involved, the end result (CS) is then multiplied by a specific factor depending upon the number of children. For example, for two children the multiplier is 1.6; for three children, the multiplier is 2; for four children the multiplier is 2.3; for five children the multiplier is 2.5; for six children the multiplier is 2.625, and so on.

Roughly speaking, if the parents share relatively equal time and make roughly equal amounts of money, it is likely that neither will pay child support and that both will share costs such as unreimbursed medical and daycare. However, if either time or income vary, the formula will generate the guideline amount to be paid.

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.”

February 21, 2011

Why Do I Have To File a Lawsuit to Get Divorced in California

by Lorna Jaynes

Many divorcing couples who wish to resolve the issues in their divorce with their personal and economic dignity intact in order to preserve or create a positive co-parenting relationship for the benefit of their children, or to save money and preserve assets, or for a host of other good reasons, choose mediation or Collaborative Divorce rather than litigation and traditional attorneys.

But whatever process is used, divorce in California requires that a Petition for Dissolution and Summons be filed by one spouse and served on the other spouse in order to commence the dissolution process and to establish the court’s jurisdiction to terminate the marriage. Divorcing couples need never step foot inside the courtroom but must comply with the requisite judicial paperwork, some more useful than others, to obtain a divorce.

The Summons, in particular, can be problematic. The first page states, “You are being sued” and “you have 30 days to respond” and the second page sets forth numerous rules called automatic restraining orders. It is not uncommon for spouses who are trying to work together in a civil and respectful process to be shocked and somewhat hurt when faced with a document telling them they are being sued by their spouse.