Bay Area Divorce Lawyer Blog

January 28, 2014

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

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

Co-Parenting During the Holidays

by Lorna Jaynes

Even for happily married and intact families, the holidays can be fraught with conflict and compromise. But for divorced or separated parents and for blended families – the potential for conflict is much greater. Negotiating co-parenting agreements and sharing time with kids is rarely easy, but this is a time of year when it can be most difficult to let go because of the tradition and ritual around the holidays.

But for the sake of the kids you have to share it. And here are tips to  help your holiday season be filled with merriment – not resentment.

Make a plan   If you don’t already have a holiday schedule, and do it now, the earlier the better. You don’t want to create anxiety for the kids about what they’re going to be doing at Christmas. Sit down with your ex and a calendar to determine how you will share time. The plan can be fluid and can change, but a basic structure reduces miscommunication and sets expectations. Ideally, a vacation and holiday schedule will be part of a marital settlement agreement in a divorce. Think about the even year – odd year compromise. One parent gets first choice in even years and the other in odd years or simply switch the holiday time on an alternating year basis. For example, in even years one parent may have the children for Christmas Eve and morning, then take them to the other parent at noon. In odd years, the schedule would be reversed. It might also be worthwhile to review the kids Christmas presents together to avoid duplicate gifts and to ensure that similar amounts will be spent. For co-parents who live far away from each other it’s not so easy. If you have to be without your kids for the entire holiday make sure you can call and talk to them.

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.

November 13, 2013

Court OKs Custody for Mother Living with Nudist Grandparents – In re Marriage of Meyer

by Lorna Jaynes

California custody determinations often turn on the well being of the child, leaving courts to determine whether a particular living situation is suitable for a child’s physical, mental and emotional security and development. Recently, the state’s First District Court of Appeals took on a unique version of this question when it was asked to decide whether living with a grandmother and her boyfriend who are practicing nudists is detrimental to children. At least in this case, the answer was “no.”In re Marriage of Meyer involves spouses Wendy and David, who were married in 2000, and their two daughters. The kids were ages ten and four when David, who had become estranged from his wife, filed a petition seeking sole legal and physical custody, with visiting rights for Wendy, in November 2010. One month later, Wendy took the girls out of school and moved with them from the family’s home in Castro Valley to her mother’s apartment in Fairfield.

At a hearing in March 2011, the couple gave differing versions of two events involving alleged physical abuse. Wendy asserted that David was the aggressor in two physical confrontations, which took place in 2002 and 2008, as well as during a number of other incidents. An Alameda County police officer backed up this version of the events, testifying that he arrested David for the 2008 incident after arriving at the scene and interviewing both spouses as well as their oldest daughter. According to the officer, Wendy had injuries consistent with domestic violence and the daughter essentially corroborated her version of the events.

David, on the other hand, argued that Wendy was the aggressor on both occasions and that he simply tried to defend himself from her attacks. Further, according to David, the living situation in Fairfield was detrimental to the girls because Wendy’s mother and her boyfriend were nudists and lived in “Section 8” public housing in a bad neighborhood. He also argued that the girls had been harmed by being uprooted from their school and social circles and that he did not get to spend as much time with them following the move to Fairfield.

The trial court awarded Wendy full legal and physical custody of the children with David having weekly visits and phone calls. The court said there was no evidence that the girls’ current living arrangement was “anything but wholesome or presented any type of danger.”

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.

June 4, 2013

California Adoption Based on One Parent’s Consent – In re Adoption of Janelle M

by Lorna Jaynes

There are certain circumstances in which a California court will allow a person to adopt a child, even where it is without the consent of one of the birth parents. The state’s Fourth District Court of Appeals recently considered a rather extreme (not to mention scary!) example of the type of situation in which such an adoption may be permitted in In re Adoption of Janelle M.

RM and BB married in 2002 and the couple had a child – Janelle – three years later. They eventually separated in 2008 and BB filed for divorce, claiming that RM had physically and emotionally abused her over the course of their marriage. One month later, RM’s friend allegedly told BB that RM was plotting to have her murdered. In addition to contacting the local police, BB obtained a restraining order, moved to a confidential location and had RM’s scheduled visits with Janelle discontinued. Janelle was three years old when she last saw her father in 2008. He was jailed the same year and later convicted for solicitation of murder.

The couple’s divorce was finalized in 2009 and a court granted BB sole legal and physical custody over her daughter. RM, who was released from prison the following year, was not allowed visitation rights. He was also not ordered to pay child support until April 2012.

BB married RB in November 2011. According to the Court, RB supported Janelle “financially and emotionally” for at least two years prior to the marriage. BB’s restraining order against RM was renewed the next month.

RM nevertheless sought visitation with Janelle shortly thereafter. He and BB attended family court mediation in early 2012. The mediator recommended that BB retain custody and that psychological evaluations and clinical assessments of RM, BB and Janelle be conducted to determine whether RM posed a risk of harm to his daughter.

May 1, 2013

Support Awards and Earnings Capacity in California Divorce – In re Marriage of Lim

by Lorna Jaynes

In California divorce cases, courts typically calculate the amount of any spousal and child support awards based on not only the spouses’ current earnings, but also their respective capacities to earn. As the Sixth District Court of Appeals explains in In re Marriage of Lim, the latter figure can be difficult to determine for a spouse working in a field that requires “excessive” hours on the job.Carrasco (husband) and Lim (wife) were married in 2003 and separated eight years later. They had two children under the age of five at the time. Carrasco was a college professor with average monthly earnings of more than $9,000, while Lim worked as a partner in a law firm, earning more than $27,000 a month.

The parties resolved all of the issues related to their divorce, including the decision that Carrasco be given primary physical custody of the children, with one exception: the amount of temporary spousal support and child support Lim would pay to Carrasco per month.

Lim explained to the court that she had been on a leave of absence from her job for medical reasons and intended to return, working 80 percent of her previous hours in order to aid her children’s transition following the divorce. As a result, she expected to earn about 80 percent of her previous salary, or just over $22,000. Based on the 80 percent earnings figure, the trial court ordered Lim to pay temporary spousal support of $2,705 and monthly child support of $1,568. Carrasco appealed the decision, arguing that the support payments should have been calculated based on Lim’s full-time earnings capacity.

On appeal, the Sixth District ruled that the trial court did not abuse its discretion in using the 80 percent earnings figure to calculate the support orders. Noting that “it has long been the rule in this state” that courts may consider a spouse’s earning capacity in determining support, the court further explained that “the court’s determination of earning capacity must be consistent with the best interest of the children.”

April 23, 2013

California Court Denies Custody to Mother, Citing Her Efforts to Alienate Father from Child

by Lorna Jaynes

“This case presents an issue that would vex Solomon himself.” That’s how the Fourth District Court of Appeals described In re Marriage of Keith, a child custody case that ultimately turned on the parents’ efforts (or lack thereof) to facilitate their daughter’s relationship with each other.Holly and Keith married in 2004, had a child (Daughter) in 2005 and separated a year later. Unbeknownst to Keith, Holly and Daughter then moved to Arizona. Holly also obtained a restraining order against Keith, accusing him of physical abuse. An Orange County court later order quashed the restraining order and required her to return to California.

Back in California, a court granted Holly a new restraining order against Keith as well as sole legal and physical custody of Daughter. Keith completed a court-ordered batterer’s intervention program and was permitted monitored visits with Daughter. After the couple divorced in 2008, Holly sought permission to move back to Arizona with Daughter. Keith opposed the move, claiming that Holly had sought to isolate him from Daughter and destroy their relationship, first by claiming that he had assaulted Holly, then by moving “surreptitiously” from Irvine to La Quinta and finally by seeking to move to Arizona.

In a child custody evaluation completed prior to trial, Dr. W. Russell Johnson recommended that Holly be granted primary physical custody – with Keith being granted “liberal” visitation rights – if she remained in California. If Holly were to move Arizona, however, Johnson concluded that Keith should be granted primary physical custody. In the latter situation, “[Daughter]’s best interests require that she be placed in her father’s physical custody because he is more likely than her mother to support her relationship with her non-residential parent,” Johnson determined. The trial court granted Keith primary physical custody.

The Fourth District affirmed the decision on appeal. The court explained that a trial court considering a custody issue has “the widest discretion to choose a parenting plan that is in the best interest of the child,” but must weigh the health, safety, and welfare of the child, as well as any history of abuse by one parent of the other. Because Holly had obtained a restraining order against Keith, the court said that there was a presumption that granting her primary physical custody was in Daughter’s best interest. Keith rebutted this presumption, however, by showing that he had completed the batterer’s intervention program and had not been accused of physical violence since that time.

April 10, 2013

California court Refuses to Annul Internet Couple’s Marriage on Fraud Grounds – In re Marriage of Snowden

by Lorna Jaynes

In California, a court can annul a marriage that it determines is not legally valid based on a number of reasons, including a finding that one spouse is already married, not mentally capable of entering marriage or has committed fraud in inducing the other spouse to marry. Once a marriage is annulled, the law operates as though it never existed. In In re Marriage of Snowden, the Sixth District Court of Appeals explains that annulments don’t often come easy, even for the shortest of marriages.

San Jose resident Norris Snowden and Simona Campeanu, a Romanian citizen, struck up a relationship online in 2006 and married three years later. Campeanu moved to the U.S. to live with her husband permanently in 2010, after obtaining a visa. The couple lived together for less than two months before separating.

Snowden later filed a petition seeking to annul the marriage, citing fraud. “Snowden maintained that Campeanu’ s true motive for marrying him was to obtain a green card, allowing her to reside in the United States,” according to the court. He also alleged that she refused to have sex with him and did not tell Snowden prior to the marriage that she is unable to have children. Denying these allegations, Campeanu sought a dissolution of marriage, rather than annulment. A trial court found that Snowden failed to prove fraud and denied his petition.

The Sixth District affirmed the decision on appeal. “Historically, annulments based on fraud have only been granted in cases where the fraud relates in some way to the sexual, procreative or child-rearing aspects of marriage,” the court explained. For example, annulments have been granted where one spouse did not intend from the beginning of the marriage not to engage in sexual relations with the other spouse or where a spouse was pregnant with another man’s child at the time of the marriage. Even in cases of potential immigration fraud, the court said, an annulment will not be granted unless the offending spouse never intended to carry out his or her “essential duties.”

Here, Snowden acknowledged in testimony that he continued to engage in “flirtatious emails” with other women after becoming engaged to Campeanu, who became angry when she learned of the emails shortly before the couple was married. They decided to marry anyway. Campeanu returned to Romania after her fiancée visa expired and Snowden did not respond to her persistent emails for several weeks, later explaining that he was angry that she had looked at his private emails.