Sunday, September 7, 2008
1. Because people learn from their bad experiences, second marriages tend to be more successful than first marriages.
Although many people who divorce have successful subsequent marriages, the divorce rate of remarriages is in fact higher than that of first marriages. 1 [Sources]
2. Living together before marriage is a good way to reduce the chances of eventually divorcing.
Many studies have found that those who live together before marriage have a considerably higher chance of eventually divorcing. The reasons for this are not well understood. In part, the type of people who are willing to cohabit may also be those who are more willing to divorce. There is some evidence that the act of cohabitation itself generates attitudes in people that are more conducive to divorce, for example the attitude that relationships are temporary and easily can be ended. 2 [Sources]
3. Divorce may cause problems for many of the children who are affected by it, but by and large these problems are not long lasting and the children recover relatively quickly.
Divorce increases the risk of interpersonal problems in children. There is evidence, both from small qualitative studies and from large-scale, long-term empirical studies, that many of these problems are long lasting. In fact, they may even become worse in adulthood. 3 [Sources]
4. Having a child together will help a couple to improve their marital satisfaction and prevent a divorce.
Many studies have shown that the most stressful time in a marriage is after the first child is born. Couples who have a child together have a slightly decreased risk of divorce compared to couples without children, but the decreased risk is far less than it used to be when parents with marital problems were more likely to stay together “for the sake of the children.” 4 [Sources]
5. Following divorce, the woman’s standard of living plummets by seventy three percent while that of the man’s improves by forty two percent.
This dramatic inequity, one of the most widely publicized statistics from the social sciences, was later found to be based on a faulty calculation. A reanalysis of the data determined that the woman’s loss was twenty seven percent while the man’s gain was ten percent. Irrespective of the magnitude of the differences, the gender gap is real and seems not to have narrowed much in recent decades. 5 [Sources]
6. When parents don’t get along, children are better off if their parents divorce than if they stay together.
A recent large-scale, long-term study suggests otherwise. While it found that parents’ marital unhappiness and discord have a broad negative impact on virtually every dimension of their children’s well-being, so does the fact of going through a divorce. In examining the negative impacts on children more closely, the study discovered that it was only the children in very high conflict homes who benefited from the conflict removal that divorce may bring. In lower-conflict marriages that end in divorce—and the study found that perhaps as many as two thirds of the divorces were of this type—the situation of the children was made much worse following a divorce. Based on the findings of this study, therefore, except in the minority of high-conflict marriages it is better for the children if their parents stay together and work out their problems than if they divorce.6 [Sources]
7. Because they are more cautious in entering marital relationships and also have a strong determination to avoid the possibility of divorce, children who grow up in a home broken by divorce tend to have as much success in their own marriages as those from intact homes.
Marriages of the children of divorce actually have a much higher rate of divorce than the marriages of children from intact families. A major reason for this, according to a recent study, is that children learn about marital commitment or permanence by observing their parents. In the children of divorce, the sense of commitment to a lifelong marriage has been undermined.7 [Sources]
8. Following divorce, the children involved are better off in stepfamilies than in single-parent families.
The evidence suggests that stepfamilies are no improvement over single-parent families, even though typically income levels are higher and there is a father figure in the home. Stepfamilies tend to have their own set of problems, including interpersonal conflicts with new parent figures and a very high risk of family breakup.8 [Sources]
9. Being very unhappy at certain points in a marriage is a good sign that the marriage will eventually end in divorce.
All marriages have their ups and downs. Recent research using a large national sample found that eighty six percent of people who were unhappily married in the late 1980s, and stayed with the marriage, indicated when interviewed five years later that they were happier. Indeed, three fifths of the formerly unhappily married couples rated their marriages as either “very happy” or “quite happy.”9 [Sources]
10. It is usually men who initiate divorce proceedings.
Two-thirds of all divorces are initiated by women. One recent study found that many of the reasons for this have to do with the nature of our divorce laws. For example, in most states women have a good chance of receiving custody of their children. Because women more strongly want to keep their children with them, in states where there is a presumption of shared custody with the husband the percentage of women who initiate divorces is much lower.10 [Sources] Also, the higher rate of women initiators is probably due to the fact that men are more likely to be "badly behaved." Husbands, for example, are more likely than wives to have problems with drinking, drug abuse, and infidelity.
1 Joshua R. Goldstein, “The Leveling of Divorce in the United States” Demography 36 (1999): 409-414; Andrew Cherlin, Marriage, Divorce, Remarriage (Cambridge, MA: Harvard University Press, 1992) [back to text]
2 Alfred DeMaris and K. Vaninadha Rao, “Premartial Cohabitation and Marital Instability in the United States: A Reassessment” Journal of Marriage and the Family 54 (1992): 178-190; Pamela J. Smock, “Cohabitation in the United States” Annual Review of Sociology 26 (2000) [back to text]
3 Judith Wallerstein, Julia M. Lewis and Sandra Blakeslee, The Unexpected Legacy of Divorce (New York: Hyperion, 2000); Andrew J. Cherlin, P. Lindsay Chase-Landsdale, and Christine McRae, “Effects of Parental Divorce on Mental Health Throughout the Life Course” American Sociological Review 63 (1998): 239-249; Paul R. Amato and Alan Booth, A Generation at Risk (Cambridge, MA: Harvard University Press, 1997) [back to text]
4 Tim B. Heaton, “Marital Stability Throughout the Child-rearing Years” Demography 27 (1990): 55-63; Linda Waite and Lee A. Lillard, “Children and Marital Disruption” American Journal of Sociology 96 (1991): 930-953; Carolyn Pape Cowan and Philip A. Cowan, When Partners Become Parents: The Big Life Change for Couples (New York: Basic Books, 1992) [back to text]
5 Leonore J. Weitzman, “The Economics of Divorce: Social and Economic Consequences of Property, Alimony, and Child Support Awards” UCLA Law Review 28 (August, 1981): 1251; Richard R. Peterson, “A Re-Evaluation of the Economic Consequences of Divorce” American Sociological Review 61 (June, 1996): 528-536; Pamela J. Smock, “The Economic Costs of Marital Disruption for Young Women over the Past Two Decades” Demography 30 (August, 1993): 353-371 [back to text]
6 Paul R. Amato and Alan Booth, A Generation at Risk (Cambridge, MA: Harvard University Press, 1997) [back to text]
7 Paul R. Amato, “What Children Learn From Divorce” Population Today, (Washington, DC: Population Reference Bureau, January 2001); Nicholas H. Wolfinger, “Beyond the Intergenerational Transmission of Divorce” Journal of Family Issues 21-8 (2000): 1061-1086 [back to text]
8 Sara McLanahan and Gary Sandefur, Growing Up With a Single Parent (Cambridge, MA: Harvard University Press, 1994); Alan Booth and Judy Dunn (eds.), Stepfamilies: Who Benefits? Who Does Not? (Hillsdale, NJ: Lawrence Erlbaum, 1994) [back to text]
9 Unpublished research by Linda J. Waite, cited in Linda J. Waite and Maggie Gallagher, The Case for Marriage (New York: Doubleday, 2000): 148 [back to text]
10 Margaret F. Brinig and Douglas A. Allen, “’These Boots Are Made For Walking”: Why Most Divorce Filers Are Women” American Law and Economics Review 2-1 (2000): 126-169 [back to text]
Thursday, September 4, 2008
A common fight between divorcing parents is WHERE their children will attend school.
For parents with joint legal custody, the most frequent fight usually centers around the convenience of the PARENTS. One party has moved far away; and proceeds to enroll the children in another school, taking away the security of a school they've attended for a long time.
My advice here is the same everywhere - first and foremost, think of the CHILDREN - what are their best interests? Consider their stability - have they attended a certain school district for a while? Do they have good teachers, and friends at school? Remember, divorce is a very unstable event for a child, and a good support system outside of the home (in school) is vital. How do the schools rank in terms of academics? Does it have afterschool care? What are the transportation arrangements - must the children travel long distances in the car?
Custody battles are best resolved between the parties. I will tell you this - attorneys and Judges absolutely HATE meddling with people's custody disputes. I get involved only when one party is simply being unreasonable. Generally, I urge the parties to sit down, get over their animosity towards one another, and work out a good parenting plan.
My website contains a wealth of information on parenting plans, mediation, etc.
Work it out.
Monday, September 1, 2008
I have had several inquiries about annulments lately.
"He married me for a green card".
"I didn't know she was sleeping with someone else."
"He lied about how much money he has!"
I can understand the appeal of an annulment (v. a divorce) in these situations. An annulment basically says the marriage never existed to begin with. There would be no community property to divide; and no spousal support.
It's not that simple.
California law is this: An annulment based on fraud requires a VERY SUBSTANTIAL AND SPECIFIC SHOWING that the the fraud relates to an issue that is "...vital to the marriage relationship."
Here are some examples, listed in Williams v. Williams (1960) 178 Cal.App. 2d 522:
1. A secret intention not to have sex after marriage with spouse;
2. A secret intention of one spouse never to live as husband and wife in same house;
3. Party's concealment that she was pregnant by another man;
4. Concealment of sterility;
5. Secret intention to continue romantic affair with third person.
Bottom line: Annulments based on FRAUD will only be granted where the fraud is related in some way to the sexual or procreative aspects of marriage.
So, in my first three examples....green card fraud is probably not sufficient.
Sleeping with someone else - if the romantic affair was continuous and started before the marriage - could possibly annul the marriage.
Financial misrepresentation would probably not annul the marriage.
In conclusion, when you are seeking an annulment, be sure you request a divorce in the alternative, in case your annulment is denied.
Thursday, July 10, 2008
Recently, I appeared on TV Guide again to discuss Christie Brinkley's divorce tactics. Apparently, she is determined to air Peter Cook's dirty laundry. That begs the question - Why?
In a divorce case, does infidelity play a role? The answer turns on fault v. no-fault divorce, which this article shall discuss.
First thing to know: California is a no-fault state. ("But why are there so many earthquakes?!", interjects my witty and incredibly handsome husband).
Seriously now: No-fault, in legal terms, means that a dissolution of a marriage (divorce) does not require a showing wrong-doing of either party nor any evidentiary proceedings at all. In the olden days, Judges would only grant a divorce upon a showing that one of the parties committed some type of wrongdoing: adultery, abuse, abandonment, etc. If the Judge decided that the alleged wrongdoer didn't commit the wrongful acts, the divorce would be rejected.
Because of these strict requirements, married couples who had absolutely committed no wrongs, but were just sick of being married to each other, would begin to lie about who committed faults in order to obtain a divorce. In 1950, the most popular allegation for grounds of divorce was "cruelty", apparently cited by 70% of divorce cases. So, things begin to change. In the 1960's, proponents argued that the law should adapt by providing a straightforward procedure for ending a marriage, rather than forcing a couple who couldn't get along to choose between living together in "marital hell" or lying under oath in open court.
So our wonderfully innovative of State of California, in 1970, pioneered the first "no-fault" divorce, signed in by Ronald Reagan.
I conducted cursory research on this topic, and discovered that now, in 49 states, there is an option of no-fault divorce. New York is the only state that remains strictly fault.
That may help explain Christie Brinkley's determination to air the lurid details of her husband's affair. Arguably not, because everyone already knows about that, and the grounds for a divorce have already been established.
Monday, June 30, 2008
At the wedding reception, the bold DJ inquired as to the longest-married couple in the room. A couple married for 40 years proudly raised their hands. "So what is your secret?" asked the DJ. The husband humorously replied, "We stay out of each other's hair".
Then, the DJ inquired as to the shortest-married couple (other than Jomar), which I proudly raised my hand. "So what is your secret?" he asked me. Without hesitation, I proudly stated, "Scott gives me everything I want."
I know we'll last forever.
But why do other marriages fail? Here are some top-cited reasons for divorce, as posted by the American Academy of Matrimonial Lawyers, in their article, "Making Marriage Last"
Why Marriages Fail
Not all marriages fail for the same reason. Nor is there usually one reason for the breakdown of a particular marriage. Nevertheless, we hear some reasons more often than others.
A lack of commitment to the marriage
A dramatic change in priorities
There are other causes we see a lot, but not quite as often as those listed above .They are:
Failed expectations or unmet needs
Addictions and substance abuse
Physical, sexual or emotional abuse
Lack of conflict resolution skills.
If you are considering divorce, please consider this: Statistics are against couples who remarry one another. More second marriages end in divorce than first marriages. Psychology Today stated that a whopping 60% of remarriages fail. And they do so even more quickly; after an average of 10 years, 37% of remarriages have dissolved versus 30% of first marriages.
If you have not yet divorced, but are considering it, please explore couseling. In this day and age, there are several resources for those whose marriages need help. If you need referrals, you may always contact this office in confidence. Marriage is for life. It is worth saving.
Saturday, June 28, 2008
I found a wonderful article on-line which can address some of these concerns.
A Mid-Marriage Change in the Rules May Make Sense
By Abigail TraffordTuesday, May 27, 2008;
A friend telephones me with the news: She and her husband are back together. Both are academics, and they've had a rocky few years. She came to Washington to pursue a dream of working on health-care policy. He was left in his university town. Her one-year fellowship turned into a five-year sabbatical. A commuter marriage, she said. Abandonment, he said. They were inching toward the edge of the divorce cliff.
Now they are starting over. They've settled their arguments over money. They've divided up some of their assets. They are maintaining two households but agree to try to spend no more than 10 days apart in a month. They are about to celebrate their 40th wedding anniversary. "Deep down we really do love each other," she says. "If you once loved in a passionate way, you can reclaim that."
The news is the tool this 60-something couple used to reclaim their marriage: the post-nuptial agreement.
The post-nup is a contract signed during marriage to manage financial affairs and divide income and assets in the event of death or divorce. Unheard of 25 years ago, this mid-marriage document is gaining a foothold in American matrimonial culture. It was even featured on the television program "Boston Legal." In a recent survey of members of the American Academy of Matrimonial Lawyers, 49 percent said they had seen an increase in post-nuptial agreements in the past five years.
Like its better-known cousin, the prenuptial agreement, the post-nup is responding to two demographic trends: the overall aging of the population and the increasingly common pattern of marriage, divorce and remarriage along with its complicated legacy of children from different relationships.
One purpose of the post-nup is estate planning. "That is a perfectly good reason to do it," says Jeff Atkinson, principal author of "The American Bar Association Guide to Marriage, Divorce & Families" (Random House, 2006). It is a way to direct retirement benefits to children of a previous marriage, or to an adult child with special needs. Or to make sure a beloved summer cabin stays in the family by making it separate from the couple's community property.
For my friends, the post-nup removed money as an issue in their marriage and allowed them to focus on their relationship.
To be sure, many couples fight about money -- one is a spendthrift, the other a saver. He buys a new car without consulting her. She resents the money going to college tuition for his children. And in late-life marriages, what's fair when one spouse earns more money than the other? A post-nup can give couples predictability and a sense of security about their financial future.
But using a post-nup to heal a troubled marriage is controversial.
"There are cases where that's advisable," says Gregg Herman, a family law attorney in Milwaukee. "But I only recommend it where there is an equal desire to stay married and work on the marriage." These are committed couples with "soft" problems of incompatibility, from struggling with retirement issues to coping with boredom. "Counseling and joint therapy are critical to these people," Herman says.
The post-nup is not recommended for couples who are confronting the "hard" problems: physical or mental abuse, infidelity, substance abuse. Nor for people who are really planning to break up and want to use the post-nup as a Trojan horse settlement in any future divorce battle.
Partners are rarely in the same place in a troubled relationship, and one spouse is often more committed to the marriage. The temptation is to use the post-nup as leverage to change behavior. For example, if one has a drinking problem or has had an affair but wants to preserve the marriage, the other makes staying together conditional on signing an agreement that says in effect: If you slip up again, you give up your rights -- you have to pay me a lot of money in support and I get the house, too! This kind of post-nup is really an ultimatum. Money becomes the glue of the marriage. As Herman says: "Money is rarely a good bond for keeping people together. People stay together because they love each other, not because of financial reasons."
States vary in how they view the legality of post-nup agreements. Spouses must fully disclose their income, assets and debts. They should each have legal representation -- and plenty of time to think about the terms so that neither is pressured to sign. And most important, the agreement has to be fair to both. Post-nups are held to a very high standard of fairness in financial matters, lawyers say, perhaps an even higher standard than are pre-nups.
These agreements are not about love. They can help couples deal with financial issues. But by itself, a post-nup cannot save a marriage.
Thursday, June 26, 2008
Hollywood 411 summoned me to come discuss Madonna's impending divorce on air today. Unfortunately, I had other obligations.
Apparently, the couple who married December 22, 2000 (almost 8 years), are fighting nasty divorce rumors. Madonna has reportedly consulted with a divorce attorney. They allegedly have no premarital agreement.
Madonna is reportedly worth $595 million. So...What's at stake?
A £7 million family townhouse in Marylebone, London and a 10-bedroom, £6million property next door.
Two mews cottages for £2million each.
A £3.6million building in the West End used as the Kabbalah headquarters and a £1.6 million five-storey townhouse in Regents Park also used by the sect.
A £10million Ashcombe House estate in Wiltshire.
A £2million apartment in Manhattan, New York which overlooks Central Park and an adjoining apartment next door worth the same amount.
The couples vehicles include a £47,000 Audi Q7 4x4 a £35,000 Mercedes Benz people carrier and a £58,000 Range Rover 4.2 V8.
Here is a photo of the currently-intact family:
I do hope they can work it out.
Tuesday, June 24, 2008
The All-American cover girl is going through her fourth (4th) divorce. (She was previously married to artist Jean-François Allaux [1973–1981]; musician Billy Joel [1985–1994]; and developer Richard Taubman [1994–1995]).
I was called into TV Guide station today to discuss her latest tactics with the cast of Hollywood 411. Apparently, her estranged husband Peter Cook has an affair with his teeange assistant Diane Bianchi (age 18), and paid her $300,000 to keep quiet. According to him, he kept quiet due to his kids.
Christie Brinkley will have none of that, and is determined to take this divorce public. She has subpoena'ed the young assistant to testify in court.
Please tune in to "Hollywood 411", on the TV Guide Channel tonight, 9 PST to see my commentary.
Monday, June 23, 2008
They had a section called, "Ask the Stars", and they asked me this question:
"How can my online profile be used against me in court?"
Here it is, my blurb:
"Kelly Chang Rickert of Law Offices of Kelly Chang in Los Angeles responds …
In court, all is fair in love and war. Therefore, if counsel can properly establish foundation and other admissibility hurdles for evidence, then anything, including personal or professional networking sites, blogs, etc., is fair game. In a case in which I represented a famous film star, she claimed she wasn’t working lately. However, on her Web site’s blog, she wrote that she was in Florida doing photo shoots. Opposing counsel printed that information and used it to destroy her credibility. NEEDLESS TO SAY, We never made it to court - WE SETTLED. Having a heavily trafficked site has its pros and cons. The pros are that you are easily recognized in the community. The con, in this case, at least, is that all users are privy to knowing things about you that can be damaging in court. Average Joes should take heed, too. If you are involved in a lawsuit, be extremely careful about what is out in the public domain. You can always get away with things if no one finds it. However, if a piece of damaging evidence—be it an Internet photo, a blog post or even a malicious e-mail—finds itself in the hands of opposing counsel, you will most definitely be shooting yourself in the foot."
With the advent of the internet, it is entirely possible to spy on people via Google. I would recommend that during a divorce, if you have damaging information on the internet, you refrain from posting any personal information on networking sites such as Friendster, YouTube, MySpce, or Facebook. Otherwise harmless information has an interesting knack of surfacing and becoming damaging during a divorce. Just be careful of what you post. Also, if you are planning on starring in a reality TV show, you should also be careful.
That being said, recently, "Are You Smarter Than a Fifth Grader's" producers contacted me with this request: FRIENDLY DIVORCED COUPLES: We are searching for couples that are recently divorced (at least 6 months). The couples must have split on good terms and now have a friendly relationship. The couples cannot have had any children together! We want couples that can banter back and forth in a good-natured way and are competitive with each other!
If you fit into this category, and are interested, please contact firstname.lastname@example.org with the following details: NAME, AGE, CITY, and submitRECENT PICTURE & CONTACT info.
Wednesday, June 18, 2008
A new client had just come in to see a famous lawyer.
"Can you tell me how much you charge?", said the client.
"Of course", the lawyer replied, "I charge $200 to answer three questions!"
"Well that's a bit steep, isn't it?"
"Yes it is", said the lawyer, "And what's your third question?"
HOW MUCH WILL THIS COST ME?
As expected, I get this question on a daily basis. First of all, I can only quote what I charge. Frequently, in divorce cases, you will need to hire other professionals - such as forensic accountants, appraisers, child custody evaluators, counselors, etc. Even just for my services- here is my answer - which never changes - IT DEPENDS.
TWO VERY SIMPLE, BUT VERY IMPORTANT POINTS!
One. Lawyers, like most professionals, are high hourly workers. The product I sell is my time. You are paying for my time by the hour, which is charged in increments of 6 minutes. Thus, if you call me for 5 minutes, you are charged .1 (or $30). If your phone call is 7 minutes, that equals .2 (or $60).
Two. Unless it is a flat-fee case (possible if there are no contested issues), the more time I spend on your case, the more expensive it will be. The amount of time I spend on your case depends on you, your spouse, your spouse's attorney, and the issues involved in your case.
Keeping these two points in mind, I will now refer to my article, The Purpose-Driven Divorce, to prepare some price estimates.
STEP ONE: FILING OF PETITION/RESPONSE
Purpose: To get the process started.
California is a “no-fault” state. This means that either spouse may file a divorce
without proving someone is at fault (i.e. cheating, physical violence, etc.). Thus, in
order to start a divorce, one party simply files a Petition for Dissolution. Currently,
this petition costs $320 to file.
After the petition is filed, the party who filed it must serve the other side with the
papers in order to notify them that a divorce proceeding has been filed. I highly
recommend that prior to serving the divorce papers, you notify the other side. We’ve
all seen the video footage of the crestfallen face of Kevin Federline, who allegedly
discovered via text message that Britney filed for divorce. Divorce is difficult enough.
If there is any room for courtesy, apply it.
After the other side receives the papers, they have thirty days to respond to the
Petition by filing a Response. The Response currently costs $320 to file. If they do
not file a response within thirty days, the person who filed the Petition (called the
Petitioner), may request a default judgment. In this case, they will generally receive
everything they ask for in their papers. (with some exceptions which you must discuss
with an attorney).
In California, Judgment is entered no earlier than six months after the date the
responding party (called the Respondent) is served with papers. Why six months?
This is the waiting period created by the Legislature to encourage reconciliation. It is
also a period where you can obtain all the financial information you need before
entering into an agreement. Obviously, if you can get divorced as quickly as you can
get married, our society would have greater problems than it already does.
After the initial Petition is filed, automatic temporary restraining orders (ATRO’s) kick
in. They apply to both the PETITIONER and the RESPONDENT. Some examples of
ATRO’s are the following: 1) cannot remove minor children out of state; 2) cannot
take benefited party off of insurance; 3) cannot transfer, convey, encumber, or
conceal property; 4) cannot create probate transfer without notice. The purpose of
ATRO’s, amongst other things, is to prevent angry parties from absconding with the
children out of malice, and to waste away all community assets in order to spite the
Filing and serving divorce papers is the first step. It is by far not the last step. To get
a Judgment, you must keep going.
Attorney time: 5 -20 hours ($1500 - $6000)
Process Server: $40 - $500
Court Costs: $400
Time Factors: Is the case new, or has it gone through several attorneys and collected 1000 boxes of documents? Is your spouse cooperative, or difficult to the bone, requiring private investigators to stake-out and serve him? Are there children? Are there properties? Have you reached any agreements about anything in your case?
STEP TWO: GETTING TEMPORARY ORDERS VIA OSC
Purpose: To have a sense of peace and order by having temporary orders in writing pending the Judgment.
Because it takes six months (or longer) to obtain a Judgment, in the interim, some logistics must be sorted out. For example: Who stays in the house? Who pays for the mortgage? If you are the supported spouse, will you get your living expenses paid for? What about spousal support? If you have children, who has custodial rights? What about child support?Because your questions need immediate answers, it is wise to get an immediate court date in order to resolve these issues. You get a court date by filing an OSC. This stands for “Order to Show Cause”, and can resolve issues of Child Custody/Visitation, Child Support, Spousal Support, Attorneys’ Fees, etc., pending the issuance of a Judgment. Currently, this costs $40 to file.Filing an OSC does not mean you are trigger-happy, and immediately racing to court to win. Remember: At all stages of divorce, you always have the option to reach an agreement with the other side. You are always in control of whether you want to go to court or not. Usually, if you reach an agreement, you can file it the Court. Usually, the Judge will agree with you, and even commend you for settling. There are certain exceptions, of course. For example, in California, you can never totally take away the Court’s power to rule on child support. It is always a good idea to file an OSC when issues of custody/visitation and support arise. Again, it takes six months or longer to obtain a Judgment. In the meantime, both parties should desire temporary orders for peace of mind.Of course, if both parties have been separated for a long period of time, and are self-supporting, and have no children, there may not be any issues to be resolved pending the Judgment. In this case, I would opt to forgo the OSC. Although the orders obtained through use of an OSC are called “pendent lite” (Latin for “while the case is pending”) temporary orders, in some cases, they may end up being the permanent orders incorporated into the Judgment. This is especially true in custody cases, because “status quo” is favored, and the longer a “temporary order” stays in place, the firmer a “status quo” arrangement becomes. It is essential to understand the important role of an OSC.
Attorney time: 10 - 30 hours ($3000 - $9000)
Court Costs: $40 per motion
Time factors: Are you cooperative and return my phone calls? Do you cooperate with my requests for documents? Are you immediately available to meet with me to go over the specifics of your case? Are you able to revise your declarations and promptly return to me? If you have witnesses, what is their availability, and do they cooperate? Is the other side represented? Is their representation well-versed with family law procedure and protocol? Does the court hearing conclude in one day? Does it get continued?
STEP THREE: DOMESTIC VIOLENCE RESTRAINING ORDERS
Purpose: In a high-conflict divorce and custody case, to protect the parties and children involved.
Unfortunately, sometimes, after a divorce or custody case is filed, someone gets angry and becomes physically or emotionally violent. This is particularly troublesome if there are minor children involved. In order to protect yourself, it may be vital to obtain a temporary restraining order against the other side.Temporary restraining orders (usually lasting no more than 20 days) may be granted without a full evidentiary hearing (based on declaration alone). Since they are granted based on one party’s declaration, they are set for hearing, where the Judge will take evidence from both sides before entering an Order for a longer restraining order. (lasting up to five years).In California, there is a rebuttable presumption that an award of custody to a perpetrator of domestic violence is detrimental to the best interests of the child. Because of the weight this carries, restraining orders are often abused in custody cases. It is essential to immediately consult with a competent family attorney if you are experiencing domestic violence in your case.
Attorney time: 15 - 40 hours ($4500 - $12,000)
Court Costs: $40 per motion
Time Factors: Domestic violence restraining orders are extremely important and take a lot of preparation. Preparation time includes setting up the case, interviewing witnesses, taking statements, preparing declarations, speaking with police officers. Are the court appearances on calendar ,and do they take place without delay? Does the Judge have time on his calendar to hear all witnesses? Do the witnesses appear? Does the other side have witnesses? Have you anticipated all issues that could be raised at the hearing?
STEP FOUR: DISCLOSURES OF FINANCES
Purpose: To Reach a Fair Settlement, and Ensure the Settlement Is Not
Later Overturned Due to Lack of Disclosure.
Frequently in relationships, one person knows more about their finances than the
other. California is a community property state. This means, all property acquired
after the date of marriage, before the date of separation, except for gift and inheritance,
is community property. Community property assumes the notion that even in
relationships where only one spouse works, the other spouse is contributing to the
marriage by staying at home and providing domestic duties.
Sometimes, the spouse that doesn’t work stays at home and does nothing. In a
community property state, that doesn’t matter. The law assumes they are contributing
something. Thus, in a divorce, both parties are entitled to half of what was earned
during the marriage.
Because of the community property laws, the law mandates that both parties must
make extensive financial disclosures. Generally, they will come in two parts – the
Preliminary Declarations of Disclosures (served at the outset); and the Final
Declarations of Disclosures (prior to settlement or trial). Because one party may know
more than the other, these mandatory disclosures are the court’s way of preventing
foul play. You must exchange disclosures. You cannot waive them.
If you are the supporting spouse, you may wonder: What happens if I don’t disclose
my assets? He or she does not know of my offshore bank account in the British
There are several consequences to not disclosing. The Judge may overturn your
agreement. The Judge may punish you by awarding the non-disclosed asset to the
other side. In a famous 1996 case against non-disclosure, Marriage of Rossi, Denise
Rossi won $1.3 million in the California State Lottery. 11 days later, she filed for
divorce, from her 25-year marriage, never telling her husband. Judgment was
entered. 2 years later, her ex-husband discovered that his ex-wife had won the
lottery. (They always find out.) He filed a Motion and the judge gave the ENTIRE
$1.3 million dollar lottery winnings to the husband, since the wife had intentionally not
disclosed her winnings in the divorce proceedings.
Attorney Time: 10 - 50 hours ($3000 - $15,000)
Costs of subpoenas, documents: $500 - $1500
Deposition costs: $2000 - $5000
Court Costs: $40 per motion
Time Factors: Discovery is perhaps the most tedious process in a divorce case. If you have little or no assets, there should be very little to work on. However, the more assets or debts you or spouse have, the more time we will need to obtain documents necessary to determine the value for settlement, and the more time we will need to review the received documents. If your spouse is uncooperative, we may need to file court motions in order to obtain necessary documents. The time it takes to complete discovery depends mostly on the cooperation of the parties and the availability of the documents.
STEP FIVE: REACHING AN AGREEMENT OR PREPARING FOR TRIAL
Purpose: To Get the Judgment Finalizing your Divorce Case
After disclosures have been completed, it is time to start negotiating settlement. For
example, who will keep the house? How much support will you pay? And for how
long? Who will have the children for Christmas or Hannukah this year?
Because both of you have completed full and thorough disclosures, you are both now
in a good position to discuss settlement. It is a good idea at this time to simultaneous
request the court for a trial date. I do this for my clients because with a looming trial
date, both parties are more eager to resolve the case. In addition, if settlement
discussions fall apart, there is already a trial date set in the future, so as not to delay the
dissolution. Other attorneys prefer not to do this, so they will have more time to
prepare for the trial.
If you reach an agreement, you can file a Stipulated Judgment, or a Marital Settlement
Agreement (MSA). The difference between both is that in addition to being attached to
the Judgment, the MSA is also a contract, and if either party breaches it, you have an
additional remedy – to sue for breach of contract.
Once the Judgment is stamped by the Judge, you should receive a Notice of Entry of
Judgment, which gives you a date of divorce. Only when this piece of paper has been
filed is your divorce final. Congratulations!
Of course, in divorce cases, nothing is final. You may always file for Modification,
but there are legal standards you must meet before the Judge will grant you one.
Please consult with a competent family attorney.
If case settles:
Attorney Time: 5 - 20 hours ($1500 - $6,000)
Time Factors: How cooperative are the parties?
If case goes to trial
Attorney Time: 50 - 200 hours ($15,000 - $60,000)
Time Factors: Trial is no joke. You will be paying for the attorney's time day in, day out. - this includes prep time, trial time, review time, prep time...round the clock. It is not unusual for an attorney to bill 10-15 hours a day for trial. My mentor once had a trial lasting 22 days. I think it helps to think of trial as an hourglass with your money as the sand...
In conclusion, a divorce case can run anywhere from $1820 (uncontested divorce) to hundreds of thousands of dollars. There's always Britney Spears, who paid over 1 million to her attorneys for her custody case, and Larry Birkhead, who paid over $600,000 to his attorney.
Yes, lawyers are expensive. But if you find the right one, they're worth it.
Tuesday, June 17, 2008
However it pays to be careful, according to this article.
1. Such marriages might be annulled in just over four months. California voters might repeal marriages between people of the same sex on November 4th. There is a referendum on the ballot this general election in California to amend that state's constitution to define marriage as between one man and one woman. In a prior post, I explained why I think that this amendment won't pass, but it is possible that it will pass. If it does, it will probably void marriages between people of the same sex celebrated in California.
2. Most states will not recognize such marriages. Many states won't recognize a marriage between people of the same-sex. Forty-four states have either a law or a constitutional amendment (or both) that deny recognition to same-sex marriages from other jurisdictions. If you are a resident of California or Massachusetts, then your home state will recognize your marriage to a person of the same sex. For now at least, the same is true for New York, but that could change if an appellate court decision in a case called Martinez v. County of Monroe is overturned by the New York Court of Appeals. That is possible, but also not likely. (For a discussion of why, see my prior post.) If, however, you live in one of the forty-four states (including, for example, Pennsylvania, Ohio, Texas, Virginia, and Florida) that have laws and/or constitutional provisions that specifically deny recognition to same-sex marriages, your marriage will probably get little or no recognition or respect in your home state, which is what matters in terms of the various legal rights and benefits associated with marriage. If you live in a state that doesn't have such a law but also hasn't recognized same-sex marriage (such as New Mexico, Rhode Island, or Vermont), then the status of your marriage in your home state is at present uncertain. (For a map showing which states have such laws or amendments, see this. (PDF)
3. It might be difficult to get divorced if you don't live in California. Like it or not, about fifty percent of first time marriages end in divorce. A same-sex couple who gets married in California cannot, if they are residents of another state, go back to California to get a divorce. Most states are happy to have non-residents come there to get married, pay a fee for a marriage license, stay in their hotels, pay their caterers, and the like. But the situation is different with divorce. States require that one of the parties to a marriage be a resident in order for their courts to hear or grant a divorce. If a same-sex couple lives in a state that does not recognize marriage between people of the same sex, they may find that they cannot get divorced, not unless they take the extreme and perhaps expensive measure of establishing residence in another state that will recognize their relationship, at least for purposes of dissolving it. Some same-sex couples who have married in Massachusetts (or obtained a civil union in Vermont) and then want to end their relationship when they are residents of another state may find themselves without access to a court willing or able to issue them a divorce. It is a big legal mess, a kind of hellish legal purgatory, to be trapped in a marriage that you want to get out of but can't.
4. Such marriages won't qualify for any federal benefits. Many of the important legal rights, benefits, and duties of marriage flow from federal law, including those related to federal taxes, immigration and naturalization, social security, ERISA, and bankruptcy, to name just a few. Thanks to a federal law passed in 1996, known as the Defense of Marriage Act, same-sex marriages are simply not recognized under federal law.
There remain reasons -- including important personal and symbolic reasons -- to get married in California. But it is a mistake to embrace these reasons without thinking carefully about the serious legal and financial implications of getting married. Everyone has the right to marry. The Supreme Courts in California and Massachusetts have taken the bold step of saying that the right to marry includes the right to marry a person of the same sex. But just because you have the right to marry doesn't mean that you should exercise that right, at least not in California at this moment.
Monday, June 16, 2008
Today, I received a phone call from a client wanting a prenuptial agreement. His fiancee drafted a prenup, and gave it to him. He wants changes. His wedding is on Saturday. "It's too late," I told him.
California Family Code section 1615 (c)(2) clearly states that "It shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following: THE PARTY AGAINST WHOM ENFORCEMENT IS SOUGHT HAD NOT LESS THAN SEVEN (7) CALENDAR DAYS BETWEEN TIME THE PARTY WAS FIRST PRESENTED WITH THE AGREEMENT AND ADVISED TO SEEK INDEPENDENT LEGAL COUNSEL AND THE TIME THE AGREEMENT WAS SIGNED.
Obviously, this can be interpreted in several ways. I tend to be very protective of my clients, so my policy is that the FINAL AGREEMENT must be presented and accepted as final by all parties, then a waiting period of 7 days, AND THEN signatures. The signature may even occur on the date of the wedding, but to be safe, I recommend one week. This means, you should leave yourself AT LEAST two (2) weeks prior to the wedding to have a finalized agreement.
THIS MEANS you need to hire an attorney AT LEAST 4 -6 weeks prior to your wedding, so the planning, drafting, and negotiating can take place.
If you are planning a wedding, you need to make your premarital agreement part of the process. It is THE TO-DO on your list of to-do's.
I turned down the prospective client. I told him that the prenup is no good. Beware of attorneys out there who will draft a prenup 5 days prior to the wedding. You may as well do it yourself on a piece of toilet paper, and then flush it.
If you want to learn more about premarital agreements, please read my highly-informative ARTICLE.
Tuesday, June 10, 2008
WHAT IS AN ANNULMENT AND HOW DO I GET ONE?
Whereas a divorce ends a marriage, an annulment declares that the marriage never existed. This means, if you had your marriage annuled, you can tell people you were never married without lying. Since there is no marriage, there is no community property, and no spousal support. This, of course, is very attractive to most people, and that is why I am constantly asked by clients to annul their marriage.
Unfortunately, it is not easy to get an annulment. Let's look at the difference between "void" and "voidable" marriages. "Void" marriages cannot exist. Examples include bigamy and incest. If you are already married, your second marriage is void. You cannot marry your brother.
Then there is a "voidable" marriage. These marriages are valid until annuled. These include:
Minority Of A Party: The party who commences the nullity proceeding (or on whose behalf it is commenced) was under the age of lawful consent (under age 18) and did not obtain the requisite parental/court consent unless, after attaining age 18, the party "freely cohabited with the other as husband and wife." [Ca Fam § 2210(a)];
Prior Existing Marriage Or Domestic Partnership: Either party was legally married to another or a member of another domestic partnership, but the subsequent marriage or domestic partnership is not illegal and void because within the § 2210(b)(1) & (3) "voidability" rule (former spouse/domestic partner absent for five years and not known to be living or generally reputed to be dead. [Ca Fam § 2210(b)];
Unsound Mind: Either party was of "unsound mind" (unable to understand the subject matter of the marriage/domestic partnership contract and obligations incident thereto) unless, "after coming to reason," he or she "freely cohabited with the other as husband and wife." [Ca Fam § 2210(c)];
Force: Either party's consent to the marriage or domestic partnership was obtained by "force," unless the coerced party thereafter "freely cohabited with the other" as husband and wife. [Ca Fam § 2210(e)];
Physical Incapacity: Either party was "physically incapable" of entering into the marriage state (unable to engage in normal copulation) and such incapacity continues and appears to be "incurable." [Ca Fam § 2210(f)];
Fraud: Either party's consent to the marriage or domestic partnership was obtained by "fraud," unless the defrauded party thereafter, and with full knowledge of the facts constituting the fraud, "freely cohabited with the other" as husband and wife. [Ca Fam § 2210(d)]
Most people wish to annul their marriage based on fraud. So what constitutes fraud?
The long-standing rule in California is that marriage can be annulled for fraud if the fraud relates to an issue that is "...vital to the marriage relationship". The fraud must go to the "heart or essence of the marital relationship." Some examples are:
1) A secret intention not to engage in a sexual relationship after marriage with the spouse;
2) A secret intention of one spouse never to live as husband and wife in same residence;
3) The concealment by a party at the marraige that she was pregnant by another person;
4) Concealment of sterility;
5) A secret intention to continue a romantic affair with a third person.
Basically, the fraud has to be related in some way to sexual or procreative aspects of the marriage.
Here is a frequently asked question: What if I discovered that he/she married me for a green card? Is that fraud sufficient?
The answer is NO, unless it was coupled with a fraud relating to the essence of the marriage.
So unless the fraud is related to sex or procreation, you cannot get an annulment. In other words, if you have had sex with your spouse, even if he/she only married you for a green card, the annulment will be denied. Even if he/she married you for "money", that fraud alone is not sufficient.
So what happens if your annulment is denied? If you request it, the case will then proceed in the alternative as a divorce.
Tuesday, June 3, 2008
Ten Tips for Divorcing Parents
Divorce is never easy on kids, but there are many ways parents can help lessen the impact of their break-up on their children:
1. Never disparage your former spouse in front of your children. Because children know they are "part mom" and "part dad", the criticism can batter the child's self-esteem.
2. Do not use your children as messengers between you and your former spouse. The less the children feel a part of the battle between their parents, the better.
3. Reassure your children that they are loved and that the divorce is not their fault. Many children assume that they are to blame for their parent's hostility.
4. Encourage your children to see your former spouse frequently. Do everything within your power to accommodate the visitation.
5. At every step during your divorce, remind yourself that your children's interests – not yours – are paramount, and act accordingly. Lavish them with love at each opportunity.
6. Your children may be tempted to act as your caretaker. Resist the temptation to let them. Let your peers, adult family members, and mental health professionals be your counselors and sounding board. Let your children be children.
7. If you have a drinking or drug problem, get counseling right away. An impairment inhibits your ability to reassure your children and give them the attention they need at this difficult time.
8. If you are the non-custodial parent, pay your child support. The loss of income facing many children after divorce puts them at a financial disadvantage that has a pervasive effect on the rest of their lives.
9. If you are the custodial parent and you are not receiving child support, do not tell your children. It feeds into the child's sense of abandonment and further erodes his or her stability.
10. If at all possible, do not uproot your children. Stability in their residence and school life helps buffer children from the trauma of their parent's divorce.
Thursday, May 29, 2008
This is a poem by Pamela Redmond Satran (not Maya Angelou, as if oft thought)...
A WOMAN SHOULD HAVE . . .enough money within her control to move outand rent a place of her own, even if she never wants to or needs to…
A WOMAN SHOULD HAVE. . . something perfect to wear if the employer, or date of her dreams wants to see her in an hour…
A WOMAN SHOULD HAVE. . . a youth she’s content to leave behind….
A WOMAN SHOULD HAVE. . . a past juicy enough that she’s looking forward toretelling it in her old age….
A WOMAN SHOULD HAVE. . .a set of screwdrivers, a cordless drill, and a black lace bra…
A WOMAN SHOULD HAVE. . . one friend who always makes her laugh… and one who lets her cry…
A WOMAN SHOULD HAVE. . .a good piece of furniture not previously owned by anyone else in her family…
A WOMAN SHOULD HAVE. . .eight matching plates, wine glasses with stems, and a recipe for a meal, that will make her guests feel honored…
A WOMAN SHOULD HAVE . . .a feeling of control over her destiny. . .
EVERY WOMAN SHOULD KNOW . . .how to fall in love without losing herself.
EVERY WOMAN SHOULD KNOW…how to quit a job, break up with a lover, and confront a friend without ruining the friendship…
EVERY WOMAN SHOULD KNOW…when to try harder… and WHEN TO WALK AWAY…
EVERY WOMAN SHOULD KNOW…that she can’t change the length of her calves,the width of her hips, or the nature of her parents..
EVERY WOMAN SHOULD KNOW…that her childhood may not have been perfect…but its over…
EVERY WOMAN SHOULD KNOW…what she would and wouldn’t do for love or more…
EVERY WOMAN SHOULD KNOW…how to live alone… even if she doesn’t like it…
EVERY WOMAN SHOULD KNOW..whom she can trust, whom she can’t, and why she shouldn’t take it personally…
EVERY WOMAN SHOULD KNOW…where to go…be it to her best friend’s kitchen table…or a charming inn in the woods…when her soul needs soothing…
EVERY WOMAN SHOULD KNOW…what she can and can’t accomplish in a day…a month…and a year…
Thursday, May 22, 2008
I have been practicing law for over eight (8) years, over five (5) years of which I specialized in divorce and family law.
I have been married for almost a year.
Based on my background, I will share with you the secrets of having an everlasting marriage. Remember, good tips are specific. I can tell you to communicate, don't go to bed angry, be honest, be loyal, blah blah blah...but blanket statements, in my opinion, are not really helpful. Also, everything should be taken with a grain of salt. (I've only been married for a year - what do I know?)
1. Before you marry, define marriage with your to-be. WHAT does marriage mean to you? Here is a good tip. MARRIAGE IS FOREVER. It's not temporary, not "just for now", not "until he does something horrible". NO. It's forever. Before you enter in the sacred bond of marriage, you both need to understand that. If you have a fear of commitment, get over it, or stay single. If both of you have been married before, understand and accept that statistics has you pegged at 60% likelihood of getting divorced again. Discuss that. CONQUER your fears. Get a Prenuptial Agreement .
2. Discuss the tough, nasty topics that people tell you NOT to talk about. Yes, that's right. Talk about your ex'es, your seedy past, your addictions, fears, past arrests - whatever you are hiding, TALK ABOUT IT. I mean, I probably wouldn't do on the first couple of dates, but somewhere between that and engagement, you should definitely have an unveiling of all the crap that is out there. Here is a tip: EVERYONE has crap. Just because your crap is different than his crap, doesn't mean you are incompatible. As Leo Tolstoy said, "“What counts in making a happy marriage is not so much how compatible you are, but how you deal with incompatibility.” And by the way, fighting is GOOD, if it's done right. I have learned that just because two people argue, it doesn't mean they don't love each other. And just because they don't argue, it doesn't mean they do. (More on this later).
Discussing taboo subjects will reveal your true tolerance for the person. Let's face it, time will reveal lots of things. But if you can expedite the process, why not do it before entering into forever?
3. Cherish your status as "eternal lovers, more than friends". I cannot count how many clients have uttered this line to me, "We love each other, but we are not in love." I empathize with that sentiment. I really do. But seriously, you're ending your marriage with a cliche excuse? Here is news for you - you and your spouse SHOULD BE the best of friends. That's expected. But, if you don't cherish your status as always "more than just friends", your marriage may be in trouble. There are many ways to remain as intimate as you were in the first two months of courtship, or even the first two years. Be affectionate towards each other. For some, that means taking out the garbage. For others, that means buying jewelry. For my husband and me, this means hugging and kissing every day. Whatever it is, find it. Don't ever lose your status as "eternal lovers, more than friends".
On that note, I read an article about Sexual Incompatibility. If your sex life is unfulfilling, TALK ABOUT IT. Sex is a taboo topic that NEEDS to be discussed, per my Advice Tip #2. If you are both honest and open, and keep an open-mind, any weirdness in the bedroom should be resolved. When you talk, you will realize that a lot of sexual problems stem from emotional roadblocks. I am a licensed attorney, NOT a psychotherapist, so I cannot tell you HOW to talk about it. Just do it.
4. Find a higher meaning to life (including your marriage), and share it with your spouse. In this world, nothing is certain except for death and taxes. You can never truly depend on someone - and that doesn't mean they don't love you. It only means that they are human. The sooner you accept that in people, especially your spouse, the happier your life will be. So, therein lies the dilemma: how do you reconcile my advice #3 with advice #4? How can you accept fault and still retain intimacy? I actually don't know the answer to that. But I can tell you that our faith has helped my marriage greatly. I believe that sharing a faith strengthens marriage. Yes, statistics out there do show that Christian couples have the same divorce statistics as non-Christians. And I am not, in any way, selling Christianity as the answer to a solid marriage. (Ha! I've handled several Christian divorces). I just know, from my professional and personal life, that you have to have a higher focus than what is in this life. I encourage struggling couples to seek counseling, and to find a faith. It doesn't matter whether it's Jewish, Muslim, Buddhism - just find a faith. Many problems in marriage arise because people don't understand themselves and their stances on some of the major issues in life. If you don't know what you believe in, how do you understand a completely different person?
5. Rule out divorce as an option. I didn't say murder. Just divorce.
Remember, marriage is grand! Divorce is ten grand. (If you're lucky. Over 60% of my cases end up billing over $15,000).
So, five (5) tips for now. I may pipe in with more later. And for those who want more sage advice, I highly recommend the book Everlasting Matrimony: Pearls of Wisdom From Couples Married 50 Years or More . You can buy it on Amazon.com!
Tuesday, May 20, 2008
With the advent of more marriages happening in the near future, I thought I would take some time now to research the divorce statistics. Interestingly enough, the Maldives (touted as paradise on earth) tops the charts as the "Divorce Capital of the World". Allegedly, all you need to accomplish a divorce in this Muslim nation is for the husband to say to the wife, "I divorce you" three times. See Article.
The divorce rate per every 1000 people is a whopping 10.97% in the Maldives! Here are the rest of the Top 10, followed by Belarus (4.65%); USA (4.19%); Panama (3.82%); Russia (3.66%); Estonia (3.65%); Puerto Rico (3.61%); Ukraine (3.59%); Costa Rica (3.58%); and Cuba (3.54%). See Statistics .
Here are some other noteworthy statistics, all derived from the Americans for Divorce Reform website .
* 43% of first marriages end within 15 years.
* Red states have a divorce rate 27% higher than blue states.
* 75% of all divorced people re-marry, half of them within three years.
* 65% of new marriages fail.
* Roughly 1 in 5 adults has ever divorced; First marriages that end in divorce last about 8 years, on average.
* Marriages are most susceptible to divorce in the early years of marriage. After 5 years, approximately 10% of marriages are expected to end in divorce - another 10% (or 20 % cumulatively) are divorced by about the 10th year after marriage. However, the 30% level is not reached until about the 18th year after marriage while the 40% level is only approached by the 50th year after marriage.
* Seven-year itch? Try TWO! According to research, they are far more likely to separate after about two years of marriage. One in 12 couples is heading for the divorce courts after 24 months - more than double the figure for seven years.
* Divorced men and women suffer to a much greater degree than married persons early death from cancer, cardiovascular disease, strokes, pneumonia, hypertension, and suicide. According to researchers at the National Institute of Mental Health, "The single most powerful predictor of stress-related physical, as well as emotional, illness is marital disruption."'
* Children of divorce are twice as likely to drop out of school as those from intact homes, three times as apt to have a baby out of wedlock, five-fold more likely to be in poverty and 12 times more apt to be incarcerated. Judith Wallerstein followed 100 children of divorce for 25 years after parental divorce. Only 60 of the 100, now aged 27-43, had ever married vs. 84 percent of those from intact families. And 25 of the 60 had already divorced, leaving only a third who built lasting marriages.
* Living in sin? Suffer the consequences. Unmarried cohabitations overall are extremely unstable. The probability of a first marriage ending in separation or divorce within 5 years is 20%, but the probability of a premarital cohabitation breaking up within 5 years is 49%. After10 years, the probability of a first marriage ending is 33%,compared a whopping 62%! for cohabitations.
* On the same note, there is a higher risk, 40% to 85%, of divorce between couples cohabiting before marriage than couples waiting until after marriage to share a home together.
So I guess it's true ... why buy the milk when you can get the cow for free?
Thursday, May 15, 2008
Associate Justice Carlos R. Moreno, Associate Justice Joyce L. Kennard, Associate Justice Kathryn Mickle Werdegar, Chief Justice Ronald M. George, Associate Justice Ming W. Chin, Associate Justice Marvin R. Baxter, and Associate Justice Carol A. Corrigan.
In a 4-3 ruling, the justices rule that state marriage laws are unconstitutional.
By Maura Dolan, Los Angeles Times Staff Writer 10:40 AM PDT, May 15, 2008
SAN FRANCISCO -- -- The California Supreme Court ruled today that same-sex couples should be permitted to marry, rejecting state marriage laws as discriminatory.The state high court's 4-3 ruling was unlikely to end the debate over gay matrimony in California. A group has circulated petitions for a November ballot initiative that would amend the state Constitution to block same-sex marriage, while the Legislature has twice passed bills to authorize gay marriage. Gov. Arnold Schwarzenegger vetoed both.
Same-sex weddings can't be, Presbyterians decide
Gay-marriage ban won't go to voters
Same-sex unions OKd by Assembly
The long-awaited court decision stemmed from San Francisco's highly publicized same-sex weddings, which in 2004 helped spur a conservative backlash in a presidential election year and a national dialogue over gay rights.Several states have since passed constitutional amendments banning gay marriage. Today, 27 states have such amendments.The reaction to today's ruling outside the courthouse in San Francisco was one of jubilation as couples, once denied marriage, hugged, kissed, shouted and shook their fists at the sky. Holding up a sign that says, "Life feels different when you're married," Helen Pontac said she was beyond words.
"Oh, wow," she said. "It felt so good when we got married in San Francisco. This feels better."She hugged her partner Shelly Bailes. "The best day of my life was when I met Helen," Bailes said. "This was as good as that."Both women said they have been together for 34 years. Added Bailes, "This feels good for us. But I can't imagine what it means for all those young couples with their entire lives ahead of them."Pontac shook her fist at the sky. "We got a bottle of champagne on ice."A few feet away, Kate Kendell, executive director of National Center for Lesbian Rights, was mobbed by reporters and well-wishers."As of today, the right to marry is now guaranteed to anyone," she said. "All I know is that we won."At his home in Toluca Lake, Jim Smith a parent and part of a same-sex relationship, also rejoiced. "I'm ecstatic," said Smith, 40, chief technology officer for an online advertising agency. "I think this is the beginning of the end of ostracism, bullying, and all the things that used to make people feel less human than others."Opponents of same-sex-marriage had a much different reaction.Ron Prentice, executive director of the Sacramento and Riverside-based California Family Council, said the group was "not surprised by the ruling, though extremely disappointed."He said the group expects "that with the November ballot we will have the opportunity for the people of California to once again define marriage as only between a man and a woman and this time place it into California's constitution which would strengthen it and keep it out of the hands of the courts.""We have not been able to count on the legislature or the courts of California to adhere to the will of the people," Prentice said. "This is yet another example why the people need to go to the polls in November to defend the historic and natural definition of marriage."After a month of jubilant same-sex weddings here, the California Supreme Court intervened and ordered the city to stop issuing licenses to gay couples. The court later invalidated the documents and declined to address the constitutionality of a state ban on same-sex marriage until lower courts acted first. Today’s ruling by the Republican-dominated court affects more than 100,000 same-sex couples in the state, about a quarter of whom have children, according to U.S. census figures. It came after high courts in New York, Washington and New Jersey refused to extend marriage rights to gay couples. Before today, only Massachusetts' top court has ruled in favor of permitting gays to wed.Gay rights lawyers won an early victory in the dispute when a San Francisco trial judge decided in 2005 that gays should be permitted to wed. An appeals court later overturned that decision on a 2-1 vote, ruling that only the Legislature or the voters could change California's traditional definition of marriage.Lawyers in favor of same-sex marriage argued that the law discriminated on the basis of both gender and sexual orientation.
Opponents countered that the ban was gender-neutral, barring both women and men from marrying members of their own sex. They also argued that people could be treated differently because of their sexual orientation if there was a rational basis for it.In 2000, 61% of California voters approved Proposition 22, which said that "only marriage between a man and a woman is valid and recognized in California."
Since the ballot measure, California has passed one of the strongest domestic partnership laws in the country, giving registered same-sex couples most of the rights of married people.The plan by San Francisco Mayor Gavin Newsom, City Atty. Dennis Herrera and gay rights lawyers to challenge state marriage laws by wedding same-sex couples was carefully considered.City officials chose the first couples to wed, hoping their long unions and sympathetic stories would put a face on same-sex marriage that courts would find difficult to reject. The city also decided to begin the weddings on a day when courts were closed to deprive opponents of quick legal intervention.
One of the first couples to wed, the lead plaintiffs in San Francisco's lawsuit challenging marriage laws, has since separated and is no longer part of the case.The long parade of weddings fours years ago -- at City Hall and across the street from the California Supreme Court -- provided a dramatic backdrop for the gay rights debate.Young gay fathers with babies strapped to their chests, lesbian couples with children and elderly gay couples who had been together for decades celebrated their unions while passersby honked their horns and friends threw rice and popped champagne corks. Protesters also showed up, carrying signs and denouncing the newlyweds.Before today's ruling, gay rights lawyers predicted a victory in the California Supreme Court would help them defeat the proposed constitutional amendment against same-sex marriage, which the lawyers expect to qualify for the November ballot. A loss in the court would have helped the backers of the measure, they said.The California Supreme Court has six Republican appointees and one Democrat. Scholars have described the court under the leadership of Chief Justice Ronald M. George as cautious and moderately conservative.
Tuesday, May 13, 2008
Posted May 6th 2008 3:59PM by TMZ Staff
Britney Spears has gained more visitation of her two young sons, Sean Preston and Jayden James -- though how much more is unclear.K-Fed's attorney, Mark Vincent Kaplan, said after the court hearing today that he wouldn't talk about the custodial timeshare between Brit and K-Fed -- except to say that it is "more than it has been." Kaplan said the modifications to custody made today will be implemented "in the near future" and Kevin's "goal and his hope is his children will have the benefit of having two parents participating actively in their lives."Jamie and Lynne Spears released a statement that says they were "so pleased with Britney's progress" and "very appreciative" of the court's recognition of her progress.
And here I am, discussing the latest custody finding with Chris Harrison of Hollywood 411, on the TV Guide Channel.
Wednesday, April 30, 2008
I wanted to take this entry to discuss the issue of engagement rings and marriage in California. Many a client has asked me, "I was engaged but not anymore. Can I get the ring back if I don't marry?"
In California, there is actually a law written on this! It is found in California Civil Code § 1590, and it says, "Where either party to a contemplated marriage in this State makes a gift of money or property to the other on the basis or assumption that the marriage will take place, in the event that the donee refuses to enter into the marriage as contemplated or that it is given up by mutual consent, the donor may recover such gift or such part of its value as may, under all of the circumstances of the case, be found by a court or jury to be just."
In other words, the answer hinges on "Who broke it off?" The law says if the RECEIVER broke it off, or it's mutual, you can get it back.
Speaking of rings, companies are specializing in making "DIVORCE RINGS" now. Says the owner of http://www.transitionrings.com/ - "...it's my divorce ring but it was all about hope." "They are symbols of hope for life's transitions," she said. "They are all about hope and moving on ... step by step, day by day with hope. "It's about taking it a day at a time," she said. "I have a heart to see people emotionally heal." Sounds like a gold mine! For the full article, CLICK HERE.
And here is some advice from Abby:
LITTLE ROCK — DEAR ABBY: I am a 45-year old woman with two daughters, ages 20 and 23. I married my high school sweetheart, “Cooper.” I had heard rumors that Cooper had strayed from time to time, but had no evidence to back it up, and, of course, he denied it.
I went by my husband’s office one day to surprise him, and his new secretary informed me that Cooper had just taken his wife to lunch at a local bistro! I went right over there and found them whispering, kissing and feeding each other. I did not make a scene. When Cooper arrived home that evening, I confronted him. He tried to deny it. I called him a liar and he slapped me! (A first.) He moved out that night, and I filed for divorce.
I pawned my wedding band and engagement ring. The clerk asked if I was going to buy a divorce ring. I had never heard of one. I searched online, found a nice one, ordered it and wear it proudly.
Cooper and his parents are livid! They say I am poking fun at him and accuse me of “promoting divorce.” My friends and oldest daughter think it’s cool. Some of my divorced friends have ordered rings, too. The ring is different in design, beautiful, makes me feel good and shows my independence. Should I feel guilty for wearing an identity ring like this?
- Divorcing and Loving it North Carolina
DEAR DIVORCING AND LOVING IT: No, you should not. The next time Cooper and his parents accuse you of “promoting divorce,” remind them that it was Cooper who promoted divorce by openly cheating on you. If the ring brings you pleasure - and comfort - then enjoy it.
However, please be aware that many people will not understand its significance - and if you wear it on the third finger of your left hand, they may think you are still married and unavailable.
Monday, April 28, 2008
So this article recently came out in the Wall Street Journal. The basic findings on successful women and divorce:
1. Women with MBAs described themselves as divorced or separated more often than women with only bachelor’s degrees (12% of female MBAs compared with 11% of women with only bachelor’s degrees) and more than twice as often as men with MBAs (5% of whom reported being divorced or separated);
2. Women with law or medical degrees divorce less often than those with only bachelor’s degrees, but are still more likely to divorce or separate than their male counterparts (10% of women with law degrees and 9% of women with medical degrees, compared with 7% of male lawyers and 5.1% of male doctors).
3. Finally, the study also found that female professionals (aka high wage earners) abstain from marriage at double and sometimes nearly triple the rate of men.
This article is reminiscent of the article in Newsweek magazine published in June of 1986 entitled "Too Late for Prince Charming?" which contained the infamous line, "Well-educated women over the age of 40 are more likely to be killed by a terrorist than to find a husband." Newsweek incidentally retracted this statement 20years later.
Truly harsh words. It seems like everyone blames WOMEN for today's failed (or non-existent marriages). In my own experience, I do handle several divorces of women who are extremely well-educated (sometimes more so than their husbands). However, it seems to me that their education doesn't really have anything to do with the rising divorce rates. I think it has more to do with today's changing society and morals. Decades ago, when women weren't allowed to work or be self-supporting, it was much more difficult to file for divorce. Financially, it wouldn't make any sense. That didn't mean there weren't any unhappy marriages. Just meant there weren't any divorces.
I think the best advice I can give to marrying couples is to:
1) Pick the right person at the right time in your life. Yes, like the standard "best interests of child", this label is incredibly vague, and contains many factors. But, as an ecstastically married person, I can tell you - you definitely know when you find him or her;
2) Prior to marriage, have the tough discussions. You know - about money, about children, about religion, about beliefs. Leave no stone unturned. ALWAYS get a prenup. It's worth it. As they say, "Marriage is grand! But divorce is ten grand. (at least).
3) After you get married, honor your commitment. Treat each other like equals. Share chores and duties. You'll know when you're honoring.
The WSJ article on MBA's ended with this bad advice: "Well-educated, highly compensated women should be targeting particularly loving and supportive men."
My own two cents: I think EVERYONE should marry loving and supportive people, not just MBA's.
Saturday, April 26, 2008
"My wife nor I ever told the third party he was the father of our little girl. We never pursued child support or asked for any type of help at all. I was in the hospital when she was born, I signed the birth certificate, and I am raising her. Now, my daughter is age two, he wants to do a paternity test. Neither me or my wife want this done. What are his rights?"
This entry will discuss the difference between a biological father and a presumed father. In California, presumed fathers are accorded greater rights than natural fathers, such as the right to counsel and reunification services. [In re A.A. (2003) 114 CA4th 771, 779-780; see WIC §361.5(a).] Services are discretionary for non-presumed parents. Due process for an alleged father requires only that he be given notice and an opportunity to appear and assert a position and attempt to change his paternity status, and he is not entitled to appointed counsel or to reunification services. [In re Kobe A. (2007) 146 CA4th 1113, 1120.] A man is a presumed father of a child if he meets any of the following conditions:
So what is a presumed father?
A man is a presumed father if:
1) he was married to and cohabiting with the mother at the time of conception, and was not impotent or sterile. [FC §7540 et seq.]; OR
2)He and the mother were not married, but they both executed and filed a witnessed voluntary declaration with the Department of Child Support Services. [FC §7570 et seq.]; OR
3) He and the child's natural mother are married or were married, and the child is born during the marriage or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after entry of a judgment of separation. [FC §7611(a).] OR
4)He and the child's mother tried to marry before the child is born, but the marriage is not legal, and the child is born either: During the attempted marriage or within 300 days after the marriage is declared invalid, or Within 300 days of cohabitation if the attempted marriage is invalid without a court order. [FC §7611(b).]
5) After the child is born, he and the mother marry or attempt to marry and
He consents to being named on the child's birth certificate, or
6) He is obligated to support the child under a written, voluntary promise or by court order. [FC §7611(c).] OR
7) He receives the child into his home and openly holds out the child as his natural child. [FC §7611(d).]
The presumption may be rebutted by clear and convincing evidence [FC §7612(a)], or by a judgment establishing paternity by another man [FC §7612(c)]. IT IS IMPORTANT TO REMEMBER THAT THERE CAN BE MORE THAN ONE PRESUMED FATHER. And when there are competing presumed fathers, the biological paternity of one father does not necessarily rebut the presumed status of the other man.
So what's the answer to the original question. If you had presumed father status, this would effectively override any biological father claims.
It is important to remember that presumed father status MUST be raised in order to successfully challenge a bio dad's paternity action. I once had a case where I represented the bio dad, and on the other side, there was a presumed father. The mother's attorney never raised the issue, and I was able to successfully obtain custody and visitation for my client.
Yes, I know this is confusing. If you have any questions, please discuss with someone well-versed in California Family Law.
I would estimate that approximately 70% of my clients are referrals from past clients. That is sincerely the biggest secret of being in practice. NEVER disappoint your clients. I have had over 800 clients, and though some of them are difficult, while others are outrightly insane and vindictive, I have generally had great luck wtih my clients. I think my biggest secret is my ability to connect with clients. I am blessed in that way. I am very happy with their ratings, and often update my website with their appreciative emails and remarks, and pictures they send me of their clients. Happy clients are still the best source of referrals.
Then there is about 5% of my business which comes from just being at the right place, at the right time. I get a lot of referrals from being very active in the community, and knowing a lot of people. In addition, I have actually gotten clients from being in court. They will walk up to me and ask for my card after I have successfully argued and won a case. (Thank God for Advanced Trial Advocacy classes in law school!)
The remaining 25% of my business comes from the blind internet referrals. Admittedly, I receive 100's of hits on my website daily. However, of these, very few are promising. There are several people out there that wish to receive free legal advice. Although I would love to help everyone who calls me, there is only a limited amount of time in one day. That is why lawyers charge consultation fees. They would otherwise be out of business!
I find it amusing that people think that my advertising on the net is the reason for my busy practice. There have actually been articles written about my many YouTube videos, television appearances, etc. Here's one called "Kelly Chang, Esq.: Online Marketing Genius". Here's another one: "Do Lawyers Leverage YouTube? Kelly Chang Does, But You Probably Don't.". And here is one I just found right now - called "Not your grandchildren's YouTube:
Lawyers tap into marketing potential of online video".
I do have several videos online - you can view them here:
Here are some straight-forward, strictly marketing videos.
Then, here are some other videos that went up on the internet AFTER I made guest appearances on the news, etc.
Here is a clip for when I was a regular at Legal Grind, a wonderful coffeeshop located in Santa Monica and Inglewood, which offered "Coffee and Counsel". Unfortunately, since my schedule has become superbusy, I have not had the time to volunteer there.
Here are two videos for when the Britney Spears custody case, for TV Guide
Though I have had the fortune of being quoted by MTV, and other quality magazines, as a result of the popularity of my website, I still have to say, "word of mouth" is still the best way to generate real business. In conclusion, I must say that my YouTube videos and media appearances basically serve no purpose but shameless self-promotion. It's a lot of fun though, to be net-savvy!
Here is a good article written by the experts on http://www.divorce360.com/, which quotes me.