Tuesday, February 2, 2016
Divorce is expensive. As the joke states, they're worth it. Sometimes it's "cheaper to keep her".
Around this time of the year (starting the first work day of January) to right after Valentine's Day, most divorce lawyers' phones are ringing off the hook. In fact, I was quoted here, in this article, "Kelly Chang, a Los Angeles-based divorce lawyer said she has seen an increase in divorce filings shortly after Valentine’s Day. This can be attributed to two major groups of people: the ‘Delayed New Year’s Resoluters’ who are merely moving forward on their resolution to be single, just a month late, and the ‘Waiting to Exhalers,’ who, depending on the actions of their spouses on Valentine’s Day, will either reconcile or file for divorce,” she said.
Google "expensive divorces", and you will find a listing of the most expensive divorces in history, including but not limited to: Alec Wildenstein's divorce from Jocelyn Wildenstein; estimated at $3.8 billion; Rupert Murdoch's divorce from Wendi Deng; estimated at $1.8 billion.; Rupert Murdoch's divorce from Anna Murdoch: estimated to be $1.7 billion.
I have been a divorce attorney for over 16 years. Here in Los Angeles, the estimate is that a contested divorce costs approximately $100,000 total in attorneys' fees, and lasts 3-4 years.
Why? Because it's divorce!!! They still want to WIN!!! DESTROY!!! They want that PITBULL! I wish I could share some of the emails I have received from people i have NEVER met, telling me how much they hated their spouses and how much they needed to WIN.
Here are 10 ways to drive up your divorce costs.
1. Refuse to talk to your spouse. Have everything go through the lawyers.
2. Don't teach yourself anything about the divorce process. Just stick your head under the sand and have your lawyer handle it.
3. Email/call your lawyer to tell her everything that happened today between you and your ex.
4. Assume settlement is for "losers", and always try to "win".
5. Insist on being "heard" in court, because your situation is different, and you just KNOW the Judge will always side with you.
6. Even though you have always handled the finances, develop a conspiracy theory that your spouse is hiding assets, and stick to it. Hire private investigators and forensics to back up all your theories.
7. Refuse to read any documents presented by the other side's lawyer, because you don't trust them. At all.
8. Even though your wife hasn't worked in over 12 years because she has been a stay-at-home mom, refuse to pay ANY spousal support and make her undergo a vocational evaluation.
9. Fight for FULL CUSTODY, because you alone KNOW what's in the best interests of your children.
10. Refuse to hear anybody's version of "what's fair", because only you know best, and you will get what you want in Court.
Good luck out there!
Tuesday, January 5, 2016
Your children have come into this world because of the two of you. Perhaps you two made lousy choices as to whom you decided to be the other parent. If so, that is your problem and your fault.
No matter what you think of the other party - or what your family thinks of the other party - these children are one-half of each of you. Remember that, because every time you tell your child what an "idiot" his father is, or what a "fool" his mother is, or how bad the absent parent is, or what terrible things that person has done, you are telling the child half of him is bad.
That is an unforgivable thing to do to a child. That is not love. That is possession. If you do that to your children, you will destroy them as surely as if you had cut them into pieces, because that is what you are doing to their emotions.
I sincerely hope that you do not do that to your children. Think more about your children and less about yourselves, and make yours a selfless kind of love, not foolish or selfish, or your children will suffer.
- Honorable Judge Michael Haas
Mediating Child Support
When couples with children separate, both know that support must be paid. We've heard of "deadbeat" moms and dads, but in reality, in the almost 20 years that I have been a divorce/family lawyer, I have never met a parent who would purposely shirk their financial obligations to their children to spite their wife. (Which makes sense because those who don't want to pay child support will not likely want to pay an attorney either, so our paths don't cross.)
In any case - usually, spats over child support result from fear, yielding the following types of accusations: "He's spending this money on his mistress instead of his children". "She is using it for Botox and alcohol instead of the children". "He really makes 50,000 a month!" "She is a doctor! She chooses not to work to punish me!"
In California, child support is calculated using the formula found in Family Code 4055. Family law practitioners who are not good at algebra, use this God-sent program named Dissomaster (I've heard it called Discomaster many times). You just plug and chug and bam, you get a number for child support!
Simple? Not so much. As with all computer programs, it's GIGO (garbage in, garbage out).
What causes most disputes over child support is when one or both of the parents is self-employed, and there is a dispute over how much money is made, and thus, how MUCH support should be paid.
Or, when one or both of the parents' income fluctuates. (because of seasonal work, or bonuses).
SO....we should go to Court, right? The Court can apply Family Code 4055 and get a number.
Wrong. First, it takes money to go to Court. If you and your ex simply cannot agree on how much money is being made, you will need to hire attorneys (the average family law attorney in Los Angeles charges 200 - 1000/hour; it's more for a Certified Family Law Specialist), who will then file Motions to get into Court to convince the Judge to see it their way.
Secondly, it takes time! If you are a business owner, you will likely have to hire a forensic to prepare a sophisticated Income Available for Support chart, which comes with bells and whistles - at a steep price.
If your ex is not working, but arguably could be working, you may need the services of a vocational evaluator who can assess him/her, and peg him/her with an imputed income that he/she could potentially be earning.
It's a lot of work. And with parties with a lot of anger and no trust, it's easy to see why money (which should be paying child support) go to pay attorneys instead.
Issues regarding child support are appropriate for mediation. Both you and your ex can benefit from discussing your fears which drive you, and talk about the needs of the children in a non-combative format. Mediation is confidential, so there is no risk of something "being used against you in a court of law".
In mediation, you can use the Dissomaster (Discomaster) to arrive at a number; or, you may choose not to use it at all if you are self-employed. Ask any attorney or accountant you know - the "numbers game" can be played forever, with no end.
In mediation, here are some tips:
1. Be real. Create charts of spending. What are the real costs of supporting these children? Do they attend private school? Do they have tutoring, counseling, soccer team dues? What about childcare?
2. Expect costs to increase after a separation. When you are ONE raising a family, it was tough enough. Now, if there is only one breadwinner, that person is now supporting TWO families under TWO separate roofs. Sometimes it's possible to go on living the same way. The majority of the time, there will need to be adjustments.
3. Bonus income? Consider using Ostler-Smith support order. I discuss it in detail in this blog post.
4. Consider paying family support so you can deduct it.
What's important is that the children are protected. After all, would you rather pay for your kids to go to college, or your lawyer's kids?
Wednesday, December 16, 2015
Japan is once again making headlines in family law. (See previous post regarding Japan and child custody).
The Supreme Court of Japan has held that a 19th century law mandating couples to have the same last name (usually that of the husband) is not unconstitutional. This is a ruling resulting from a 2011 case filed by 5 women who claimed forcing them to have the same last names violates their rights. One of the stated it was losing her identity, "it's as if part myself vanishes".
There is no such law in the United States.
A minor victory for women in the latter part of the ruling shortened the requirements for remarriage after a divorce to 100 days (down from 6 months). Incidentally, there is no law stating when men can remarry.
Thursday, November 19, 2015
A San Francisco Judge has upheld a consent form between former spouses providing for destruction of the frozen embryos upon divorce.
In the case of Mimi Lee and Stephen Findley was decided yesterday. Mimi (an anesthesiologist), age 46, discovered she had breast cancer prior to her marriage to Stephen, and the two decided to freeze the embryos to preserve fertility. They signed a consent form in 2010, which provided that the embryos would be thawed and destroyed upon divorce. They later separated in 2013, and divorced this year.
Despite Mimi's arguments that this was the only chance she could have to bear children, Judge Anne-Christine Massullo firmly upheld the consent form in an 83-page decision, stating, "“It is a disturbing consequence of modern biological technology that the fate of nascent human life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles,” "Decisions about family and children often are difficult, and can be wrenching when they become disputes,” Judge Massullo wrote. “The policy best suited to ensuring that these disputes are resolved in a cleareyed manner — unswayed by the turmoil, emotion and accusations that attend to contested proceedings in family court — is to give effect to the intentions of the parties at the time of the decision at issue."
Judge Massullo's decision is consistent with approximately 11 other cases of this pattern. Mainly Judges have ruled in favor of the person who did not want to become a parent. It appears at this time the law seems to favor the right NOT to procreate over the right to procreate.
Mimi Lee will likely appeale case.
Wednesday, August 19, 2015
So you've been hacked. First, check if you name is on this list. If so, within days, you know you are going to have a head-on with your spouse. Without further ado, here are some answers you are dying to know.
1. Is cheating a crime?
Whether or not something is a crime is state-specific. Currently, in 21 states, infidelity is considered a crime. And thus, proscribed in the Penal Code (the law that governs crime, not what it sounds like, sickos). Yes, New York falls in this list. And so does Arizona, Illinois, and Massachusetts. And Georgia. California does NOT proscribe crime. HOWEVER, in California, you have a legal obligation under the Family Code to be faithful to your spouse. Seems like a lot of people don't do their duties.
2. Ok. It's a crime in my state. (Need to move!) What's the time?
It's state-specific. In Maryland, adultery is a misdemeanor, and you get fined $10.
3. It's not a crime. But what about lawsuits?
Shockingly, there are SEVEN (lucky 7!) states that recognize the tort (civil wrong) of "alienation of affection"! This means that in these states, your SPOUSE that you cheated on can SUE your mistress for alienating your affections, and claim damages (hospital bills, loss of wages, any other provable damages). Yes: Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and of course, UTAH! If you live in the lucky 7, and you are the spouse of the victim of the hack, pray that at least the mistress is rich!!! And victims, if you cheat in one of these states, at LEAST pick rich mistresses. You owe your wife (or husband) that much.
4. So now do I lose everything in the divorce?
Yes. Wait, define everything. If you guys don't get counseling, your marriage is over. THAT. IS. EVERYTHING! But, if you are selfish and don't care much about the marriage, then no, it's not over. If you have children, some problems may occur. (Yes, you can STILL be a good parent even though you are a dirty, rotten no-good cheater. However, try to convince your spouse that! Divorces get ugly when one person fights). You may have heard the term "no-fault" state. This doesn't mean what you think it means. Basically, all states don't require "fault" anymore to get a divorce. Historically, women (typically the one wanting the divorce) had to PROVE that their husbands beat them, or cheated on them in order for the courts to grant a divorce. THAT is what proving "fault" means. Somewhere along the line, people mistakenly reinterpreted "fault divorce" to mean "wrong-doing gets you less in the divorce". This may be true in some states, like Texas, but not in California. In SOME states, proving fault may prevent you from receiving alimony.
5. I bought my mistress a house and a basketball team. Does she have to return it?
Oh wait, wrong story.
6. Will I lose custody?
Not necessarily. Just because you suck as a spouse does not mean you are a bad parent. At least not in all Judge's eyes. You may find though, that because of your repulsive behavior, your spouse may be angry for a while, which may make it difficult to co-parent.
7. Will my divorce be expensive?
In all seriousness, if you are the victim of this hack, my heart sincerely goes out to you. It seems unfair that SO many people cheat, and only YOU (and the 26 million users who used their real email accounts) got caught. I truly hope that amongst all the decisions you made in your life, you at least chose a spouse who is not only compassionate, but forgiving with a short memory. The aftermath of all this won't be easy to handle. Personally, as a divorce lawyer, I am not looking forward to all these calls coming in due to the hack. Cheating is a red herring. The marriage was already having issues. I would recommend that both of you take great measures to SAVE your marriage. I once went to a couples seminar, and learned that 3 of 5 couples there suffered infidelity. It, however, was NOT a deal breaker. Cheating is usually a SYMPTOM, NOT the disease. INVEST in a good couples therapist and commit to work on it.
That said, if all else fails, you know where to find me.
Friday, March 13, 2015
These concepts are often used as a double-edged sword in family court. As often as mothers will hurl these words to deprive fathers of visitation, fathers will similarly contort images of abnormal needy behaviors that need to be quashed in order to deprive mothers.
Abraham Lincoln once said, "I destroy my enemy when I make him my friend."
In a high-conflict case, these concepts should be closely examined/embraced to promote mutual understanding and achieve favorable results.
What is Attachment Parenting?
Attachment parenting was invented by pediatrician William Sears. It is a parenting style based on the belief that the emotional bonding of a young child with a caregiver carried lifelong benefits and consequences. Sensitive and emotionally available parenting helps the child to form a secure attachment style which fosters a child's socio-emotional development and well-being. Less sensitive and emotionally unavailable parenting or neglect of the child's needs may result in insecure forms of attachment style, which is a risk factor for many mental health problems (e.g. depression, anxiety and eating disorders.) In extreme and rare conditions, the child may not form an attachment at all and may suffer from reactive attachment disorder - one extreme form being conduct disorder. Conduct disorder is a severe condition characterized by hostile and sometimes physically violent behavior and a disregard for others. Children with CD exhibit cruelty, from early pushing, hitting and biting to, later, more than normal teasing and bullying, hurting animals, picking fights, theft, vandalism, and arson.
The Baby Book by William and Martha Sears, sometimes referred to as the 'Bible of attachment parenting', gives practical attachment parenting advice in the form of the following ‘seven baby B’s of attachment parenting’:
* Birth bonding: The first few hours after birth are regarded as very important to promote attachment.
* Belief in the signal value of your baby’s cries: Parents are encouraged to learn to understand their baby’s cries and respond quickly and appropriately to them.
* Breastfeeding: This is regarded to have physical and psychological advantages to both mother and child.
* Babywearing: The term was first used by Dr. Sears and it means carrying the baby in a sling or other carrier, close to the body of the caregiver.
* Bedding close to baby: Sleeping in the same room and preferably in the same bed as the baby is encouraged, as is frequent (breast)feeding at night.
* Balance and boundaries: Appropriate responsiveness (knowing when to say yes and when to say no) is needed to keep a healthy family alive.
* Beware of baby trainers: Instead of taking advice about how to ‘train’ the baby to make it cry less and sleep for longer stretches, parents are encouraged to listen to their own instinct and intuition.
According to attachment parenting advocates this advice helps parents to respond quickly and sensitively to their baby’s needs, thus facilitating development of secure attachment.
With any theory, there are boatloads of criticism. The biggest one is that it's not science-based. It can best be described as an "art", not "science". It's too demanding and raises needy children. Google it - you'll find bajillions of articles against it. My favorite is "Babies are Assholes: The Problem with Attachment Parenting".
Attachment parenting is not a strict set of rules. A full-time work-out-of-the-home mom can be an attachment parent as much as a stay-at-home mom.
Attachment parenting usually refers to the baby's attachment to one parent - usually the mom. It is true that babies benefit from attachments to both parents. But in the earlier years, the focus is on the primary caretaker's bond.
How Long Should One Breastfeed?
It's now widely accepted that "breast is best".
In the U.S., the American Academy of Pediatrics (AAP) recommends babies be exclusively breastfed for the first 6 months. Then, from 6 mo - 1 year, continuing to breastfeed while introducing solid foods.
The World Health Organization (WHO) also recommends exclusive breastfeeding for 6 months, and then continued up to age 2 and over.
The United Nations Children’s Fund (UNICEF), believes that breastfeeding should continue until the child is two years or older.
The American Academy of Family Physicians (AAFP), recommends exclusive breastfeeding for six months and warns: “If the child is younger than two years of age, the child is at increased risk of illness if weaned.
Breastfeeding is an infant's natural way of feeding upon birth. All humans and mammals alike give birth and nurse their young. Breastmilk from the mother is uniquely superior to any other form of nourishment. "Breast milk is widely acknowledged as the most complete form of nutrition for infants, with a range of benefits for infants' health, growth, immunity and development."
-- Healthy People 2010, Centers for Disease Control and Prevention, Atlanta, Georgia.
Besides fighting infection, lower rates of childhood obesity, better brain development, decreased allergies and asthma are all linked with breastmilk. Breastfed children are 50% more likely to get sick during their first year of life. Human breastmilk contains living antibodies. Formula does not come close to this "liquid gold".
Breastfeeding also benefits the mother. Women who breastfeed have a lower risk of breast and ovarian cancer.
Most importantly, breastfeeding is bonding. Upon birth, babies come out "rooting" - the suckling instinct that defies science - where did they learn this? As soon as they come out, they have a need to suck. And the suckling is what brings in the milk - what turns only drops of colostrum into buttery white breastmilk.
The Centers of Disease Control puts out an annual "Breastfeeding Report Card" (see 2014). In California, 92.8% of women have breastfed. However, only 63.1% are still breastfeeding at 6 months; and only 38.4% are still breastfeeding at 12 months.
If all agencies encourage 1-2 years, who are the numbers so low? Amongst new moms, common stressors include production of breastmilk; latching; fearing baby isn't eating enough. It is very important for breastfeeding moms to receive all the support they need to encourage breastfeeding.
For those who don't breastfeed, it is important to understand the mechanics. Unlike breathing or eating, breastfeeding is rarely instinctive. The first couple of days after birth (sometimes up to a week), the body only produces colostrum, a gold gel-like substance. Though it appears scarce, the baby's needs are entirely met by this gel until the milk comes in. The body has its own regulating mechanism - it will produce as much as the baby needs. So in the beginning, for milk production and sufficient nourishment, it is essential for babies to be breastfed at least every 2 hours, or on demand (per attachment parenting). Babies that are breastfed on demand will never overeat (common problem with formula babies). And, if fed on demand, they should never be hungry.
Some may suggest pumping milk to provide for the father. If this is possible, then it's a good solution. However, a lot of women cannot produce milk with the pump, because it is the baby's skin-on-skin that draws out the milk. Also, some babies will refuse to take milk from a bottle. Some women report that pumping decreased their production, leading to babies' early weaning.
If the breastfeeding relationship is to be protected, it is important that mother and child not be separated for lengthy periods (2-4 hours). Some babies will refuse bottle to wait for mommy's milk, so they will go hungry until breastfed.
Breastmilk (both for physical health and emotional bonding) should be a priority in the early months. Even into toddler years, studies have shown that breastmilk contains more concentrated quantities of antibodies, and will continue to protect the child. Once the child has started solids, they can go for longer periods without the breastmilk, however, for bonding purposes, lengthy times away from mom should develop over time, and after adequate bonding with another childcare provider (father, babysitter, daycare, etc.).
How Can a Father Get Custody when Mother is Attachment Parenting and Breastfeeding?
For a father seeking custody in the early months, all is not lost.
You know now that Attachment and Breastfeeding are in the child's "best interests".
After educating yourself, set reasonable expectations. Just because the mom is breastfeeding, doesn't mean you don't get any custody. You can have joint physical custody, with increasing periods of time.
Learn all there is to learn about babies. For example, they sleep a lot. During the early months, they sleep 16-18 hours a day. During this time, it is not reasonable to request 50-50 custody. They are asleep.
I encourage my clients who are fathers to keep in close communications with the mother (as much as practicable). Through the mother, you can learn the sleeping/waking habits. If you are nearby, you can visit the baby during the waking hours. For amicable couples, this is possible. However, most custody cases are high-conflict and contentious. Sometimes the father fears the mother will move out of state. The best thing to do is to make sure that you file a case so the automatic temporary restraining orders will kick in. Next, you must gingerly serve the papers. Rather than instilling fear, I recommend alerting the mom that a case has been started with a nice letter stating you are seeking custodial time, but in increasing increments, and to the needs of the child.
If the mother is refusing any sort of visitation, I advise setting the case for mediation before filing any Request for Order for Custody. This is required by the courts, and will be received better.
I strenuously advise against any sort of custody litigation during the first year of the baby's life. Even more so if the baby is breastfeeding.
If the mom is still breastfeeding after age 1 - or 18 months, and still refusing overnight visits, this would be an appropriate time to inquire into getting more through legal action, if the below tips are unsuccessful.
How to Craft a Reasonable Visitation Plan Around Breastfeeding and Attachment Parenting
A reasonable plan should look at some of these factors:
1. What is the father's relationship with the child? If the baby was born after the parties separated, then this will require a longer step-up increased custodial time than if the couple separated when the baby was 1. If the father lived close to the mother, and was able to visit every day for a few hours, this would allow for more rapid increased schedule as the child grows. Here, in Los Angeles County, the court posts a "model parenting plan" for children under 3. The Court suggests from birth to 6 months, 3 non-consecutive days visits for up to 2 hours each to the non-custodial parent, increasing to 3 non-consecutive day visits for up to 3 hours each from 7 months - 12 months, and overnights if appropriate.
This is just a suggestion. Studies have shown that overnights for children under age 2 with a parent they have not bonded with, can be stressful. Also, it is essential that overnights are worked up to - that is, the father has spent frequent and continuing times throughout the weeks with the child, gradually increasing time as the bond grows.
2. What is the mother's relationship with the child? A stay-at-home mom who is breastfeeding on demand and co-sleeping will have a different relationship that the working mom who returned to her 9-5 job after 12 weeks of maternity leave. In the latter, she may still be breastfeeding when she returns home. However, if she is pumping milk to give to her nanny during the day, then she can certainly do the same with the father during the day.
Does the mom cosleep or does baby sleep in a crib in his own room? In the former, overnights would probably not be feasible when the child is not age 2.
How long has the child been away from mom? Has grandma watched her for a weekend while she was on a girls' trip? Or does mother Ergo the baby all day, for naps and to run errands?
3. What are the parties' desired parenting plans in the future? Is it mom's desire to keep dad out of baby's life until age 10? Is it dad's desire to have 50-50 the day after baby turns 3?
Children benefit best from two loving parents. Child-rearing was never meant to be a single person's job; it takes a village.
Often, the mom's distrust and gatekeeping causes the father's irresponsibility and eventual "giving up" on the system, causing the child to lose the support and love from one parent. This harms the children. More love, not less, is in their "best interests".
Sometimes the moms are the perpetrators - immediately getting into a relationship with a new man; moving as far away as possible to "alienate" the father. This also harms the children. Knowing their legacy, and who their father is, is in their "best interests".
In the ideal world, family court litigants foster nothing but love and understanding for their babies, and the other parent. In this world, moms who want to breastfeed are not blamed for a child's development issues, and not mocked for cosleeping with older kids. In this world, dads who want to be involved can see the children and spend nights at the moms house until the child is comfortable at his house.
I have a dream that one day, the parents of beautiful babies - though separated, can be in the same room so babies can bond with both and still have a special attachment to their one primary caregiver.
Family law attorneys and Judges have a duty to educate themselves in this area, so no mother is forced to wean a child too early, so no child is forcibly "detached" from their primary caregiver, so no father is deprived of bonding in favor of breastfeeding.
Reality is far from my dream. I end with unaltered excerpts of transcript from a custody hearing on a high-conflict custody case I had last year, where I represented the mother of 2 young boys, ages 6 and 2. The father had been on an extended absence of over a year, and when he returned, he demanded the same schedule he had prior to his departure. Mother works full-time but was still breastfeeding and co-sleeping with Younger. (Names have been changed)
Custody evaluator: The children are experiencing difficulties in the current schedule.
Opposing counsel: What difficulties are they experiencing?
Custody evaluator: As noted, Younger has regressed a great deal in the concrete skills that he's had. In terms of Elder, I saw a child who was very anxious. They are not doing well in their current schedule.
Opposing counsel: Did you know the Mother is still breastfeeding Younger at age two and a half?
Custody evaluator: Yes.
Opposing counsel: Do you think that has anything to do with his regression?
Custody evaluator: No.
Opposing counsel: Were you aware the mother is using the fact that she is breastfeeding to prevent visitations?
I objected. Assumes facts not in evidence. Judge sustained it. We moved on.
In the end, we won. My client was granted the custody/visitation schedule we requested.
But I still mourn for my client who was assassinated by uninformed opposing counsel for doing what was in the best interests of her child.
As heralded anthropologist Katherine Dettwyler, PhD states in her letter to courts in support of extended breastfeeding: "In conclusion, there is no research to support a claim that breastfeeding a child at any age is in any way harmful to a child . On the contrary, my research suggests that the best outcomes, in terms of health, cognitive, and emotional development, are the result of children being allowed to breastfeed as long as they need/want to. Around the world, most children self-wean between the ages of 3 and 5 years, but given that the underlying physiological norm is to breastfeed up to 6-7 years, it is quite normal for children to continue to breastfeed to this age as well, and the occasional “normally” developing child will nurse even longer."
Kelly Chang Rickert, Certified Family Law Specialist, is a family law attorney/mediator, advocating for protection of breastfed babies in divorce/paternity cases. She breastfed both her children for a total of over 4.5 years.