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Monday, August 24, 2009

Going to Court? Ten Do's!






Ok, before we start, let me share a secret with you. Attorneys like me LOVE LOVE LOVE the courtroom! Some of us thrive on the thrill of getting into our Armani suits, lugging our LV briefcases straight through security, through the elevators up to that beautifully organized courtroom. It's soooo deliciously exciting to hob-nob with our cohorts and respected judicial officers. I LOVE IT!!!


Everyone loves it, and TV continues to prey on our passion for the courtroom by putting out hit after hit: Law and Order, The Practice, and Ally McBeal...


But here is another secret: it's GENERALLY not in anybody's best interests but the paid attorneys to go to court.

In one word, here is why: TIME. Attorneys bill by the 6-minute increment. If someone says X, and the other immediately says, "Yes!", that takes no time and everyone is happy and attorney only gets paid 10 minutes. (Well, typically more, because we have the burden of preparing lots of paperwork...but you get my point.)

However, in a divorce case, it's not ever "Yes, OK!" So there is the back and forth, back and forth - and EVENTUALLY, you both get to Yes. (hours later).

Even more frequently, you don't ever get to Yes...and so you end up in the courthouse next to your attorney in the Armani suit and LV briefcase who didn't explain what happens. (many, many hours later)

Here are some tips for surviving your first court appearance.

DO'S


1. Do appear timely. If your appointment is 8:30 am...don't show up at 8:35 am. Be there at 8:15 am. Arrange for childcare months in advance. Make sure you have reliable transportation. Get adequate rest and nourishment. (I always make sure I have my cup of coffee in the morning before court.)

2. Do dress for success. Gentlemen, no hats, jeans, shorts, or T-Shirts. Ladies, no hats, jeans, shorts, low-cut anything. NO open-toe shoes. Remember, you are in a court of LAW. Respect that.

3. Do bring all of your paperwork, in an organized manner. If it's a custody case, bring a calendar of events. Trust me, if you already have a semi-faulty memory like mine, being in the spotlight of the courtroom won't help you. You will need refreshers. If it's a support case, bring all of your bank statements, organized chronologically. If you have time, prepare an Excel spreadsheet summarizing payments, etc. Make sure you bring copies of the documents filed by your attorney and the opposing counsel. Bring all receipts.

4. Do remind yourself of the purpose of the hearing. Is the hearing an OSC for spousal support? Remember, the goal is to obtain spousal support based on proper documentation of both sides income. If the hearing is specifically for support, do NOT bring up irrelevant issues not previously discussed in the paperwork. WHY are we in court? Remember the purpose and stick to it.

5. Do speak clearly and look at the Judge when he/she speaks to you. The Judge may want to speak to YOU, not your attorney. Though you have hired an attorney, YOU are still your best representative. If your attorney fails to mention facts, specifically request that before the hearing is over, he or she pause and ask you if everything is covered. Most Judges will allow a brief meet-and-confer session with counsel before concluding.

6. Do remember to summarize. One of my favorite Judges had this sign in his courtroom, "Brevity is next to Godliness". True that!!! Judges are people. Judges are people with limited time slots. Just look at the daily calendar. Most judges have at least twenty (20) matters to rule on. This means you need to tell your attorney to kick some butt on PAPERWORK...because most Judges have already made the decision based on paperwork. There are people with amazing oratory skills, but you will have VERY limited time to impress the Judge, as he/she has other matters that day.

7. Do prepare yourself for alternative solutions. Yes, you should aim to get all your requests granted. But make sure you also have secondary solutions in case the Judge denies your first request. In my experience, Judges want what's fair to both sides. So be prepared to make an offer of compromise if your first solution isn't granted. Be detailed in your requests, i.e. - instead of saying, "I want full custody"....say, "I believe it is in the children's best interests to spend weekdays with me, and weekends with the mother." Instead of saying, "I cannot live on anything less than $5000 a month, say, "I have properly submitted an Income and Expense declaration, and my expenses are approximately $5000 a month. I have always stayed home with the children so I do not have an earning potential right now, although I am sincerely looking for a job. Respondent earns approximately $12,000 a month as submitted, and has no other expenses."

8. Do let your inner light shine. In Sunday School, I sang this song, "This little light of mine, I'm gonna let it shine!" Believe that you are a good person, and be reasonable to the other side. Don't call it, "MY child", but "our child"...don't be accusatory or speak inflammatory words. Contrary to popular belief, the courtroom is not where you want to insult people. Remember your goal. Remember you ALWAYS catch more flies with honey than vinegar.

9. Do work with your attorney. On that day, your attorney is your voice. Remember, you made the choice in the beginning to work with him/her. Don't start doubting your decision on the date of court. If you trust him/her, then you trust they have your best interests in mind. Trust and rely on them that day to represent you.

10. Do respect the Judge, and everyone in the courtroom. The Judge is always, "Your Honor". All of his/her Orders are to be received with a "Thank you, Your Honor."

Saturday, August 22, 2009

Facebook and Divorce

Very interesting article in Time magazine in June 2009, for those who missed it...
http://www.time.com/time/magazine/article/0,9171,1904147,00.html
Facebook and Divorce: Airing the Dirty Laundry
By Belinda Luscombe

Monday, Jun. 22, 2009.


Not long after Patrick told his wife Tammie he wanted a divorce, she posted an angry, hurt note on "the wall," or public-comments section, of his Facebook page. Embarrassed that his colleagues, clients, church friends and family could see evidence of his marital woes, he deleted it and blocked his wife from seeing his page. A couple of days later, the IT worker in Florida--who asked that his last name not be used in this story — found alarmed messages from two Facebook friends in his inbox. Tammie had used a mutual friend's account to view Patrick's wall and e-mailed several women he had had exchanges with. He says her e-mails were borderline defamatory. She says they merely noted that he was married with children, a fact he had left off his Facebook profile. Either way: Ouch.

For those who want to connect or reconnect with others, social-networking sites are a huge, glorious honeypot. But for those who are disconnecting, they can make things quite sticky. And as the age of online-social-network users creeps up, it overlaps more with the age of divorce-lawyer users, resulting in the kind of semipublic laundry-airing that can turn aggrieved spouses into enraged ones and friends into embarrassed spectators.
(See five no-nos for divorcing couples.)

Lawyers, however, love these sites, which can be evidentiary gold mines. Did your husband's new girlfriend Twitter about getting a piece of jewelry? The court might regard that as marital assets being disbursed to a third party. Did your wife tell the court she's incapable of getting a job? Then your lawyer should ask why she's pursuing job interviews through LinkedIn.

Battles over finances and custody remain the Iwo Jima and Stalingrad of divorce cases. Opposing lawyers will press any advantage they have, and personal information on sites like Facebook, MySpace and LinkedIn is like decoded bulletins from enemy territory. "It's now just routine for us to go over with clients whether they have an active presence on the Web and if they Twitter or have a MySpace page," says Joseph Cordell of Cordell & Cordell, a domestic-relations law firm with offices in 10 states. He advises his mostly male clients to scour their page — and their girlfriend's — for anything that could be used by their ex's legal team. Then Cordell studies the page of the soon-to-be ex-wife.

"We had a custody case where a mom assured the court that she hadn't been drinking," recalls the Missouri-based attorney. "But her MySpace page had actual dated photos of her drinking — and smoking, which is also of interest." In another case, a mom had listed herself on a dating site as single with no kids, which Cordell's firm used to cast doubt on her truthfulness.

And that's just the courtroom stuff.

Half the fun of social-networking sites is the posting of personal news. The other half is the posting of personal opinion, something spurned spouses typically have in spades. MySpace and its ilk offer the giddying cocktail of being able to say something in the privacy of your home that will be publicly accessible, along with a chaser of instant gratification. All this at a time when people are often less than their best selves. On the walls of two Facebook groups — I Hate My Ex-Husband and I Hate My Ex-Wife, which together had been joined by 236 Facebook users as of early June — posts include all manner of (often misspelled) vitriol, including some colorful British slang: "my husband is ... a dirty smelly chavvy theivin alcoholic drug addict selfish scum bag" and "my ex wife is a no good lieing slag," each of which was posted alongside a smiling photograph of the commenter.
(Watch TIME's video "Beer Pong Strikes Back.")

There's little the besmirched can do legally, unless there are children involved. Family-law courts routinely issue restraining orders to prevent one parent from disparaging another to a child. "The question is, If it's on the Internet, can that speech be blocked?" says Stephen Mindel, a managing partner at Feinberg, Mindel, Brandt & Klein in Los Angeles. "The First Amendment is going to come into conflict with the family-law courts."
(Read "Your Facebook Relationship Status: It's Complicated.")

Issuing an order to remove children's access to Facebook is pointless, says Chicago-based lawyer Jennifer Smetters. "The kids just go on a fishing expedition to find out what's so secret. And no child needs to see their parent being publicly humiliated." Smetters has seen cases where messages on a social-networking site were part of a harassment campaign that led to the court's issuing a civil order of protection.

It seems everybody — except perhaps some lawyers — would be better off if divorcing spouses gave each other some space on MySpace. But when confused, anguished people look for ways to work through their feelings, a social-networking site can be an almost irresistible venue.

Patrick and Tammie are still active on Facebook. So are decoupled East Coast residents Andrea and Adrian, even after "he told me he didn't have any money and then posted pictures of his new BMW bike," Andrea says. He says Facebook helped her stalk him. "It's had a very negative impact on our communication," he adds.

But there can be some positives. Tammie's friends post supportive messages on her Facebook page. And Patrick says he understands online social networks better now. "It's like putting everybody you know in the same room. I'm using it, but I'm much more careful."

See the 25 best blogs of 2009.


See the best social networking applications.

Successful Marriage: Unity




LEAVING AND CLEAVING





Mankind's earliest marriage is Adam and Eve. In Genesis 2:24, marriage is explained as the reason "a man will leave his father and mother and be united to his wife, and they will become one flesh."

Other translations of this verse have yielded the principle of "leaving and cleaving". To "cleave" means to "adhere to, stick to, join with". The "leaving" involved refers to parents, but also to close friends and those who have significance and influence in your life. Nowhere does the Bible suggest "cutting off" your father or mother. Rather, it is a time-honored commitment and one of the 10 Commandments that you forever "Honor your parents".

I have been a divorce lawyer for almost 10 years. I have witnessed the demise of hundreds of marriages. In my experience, all marriages end because of the violation of this "leave and cleave" principle. Whether you fail to "leave", or fail to "cleave", the result is the same - divorce.
In short, a successful marriage depends on TWO people's promise re-prioritize past relationships and ties, and join as ONE in a new union. How does this happen?


1. KEEP THE MARRIAGE SACRED AND DON'T SHARE WHAT'S YOURS

When you marry someone, you will have differences of opinion. Why? Because they are NOT you. Expect disagreements. Expect frustration. Expect that you will some days feel utterly alone because this person you promised to be with for the rest of your life (and vice versa) simply will not understand you.

When this happens, don't fall apart. And whatever you do, do NOT turn to other people. Do NOT confide in your parents about these little disagreements. Your parents will love you forever and will never leave you. They will naturally want to protect you and run to your side, offering assistance. This is harmful for your marriage. Because of the bond they have for you, and because of your natural inclination to turn to them for support, you must be vigilant and actively leave them, and instead cleave to your spouse.

When you marry, immediately claim this marriage as YOURS TOGETHER. Your marriage will be a journey of many, many experiences. Some will be glorious, like childbirth and financial success. Some will be doom, like death in family or financial distress. This is the wonderful privilege of marriage; when you are married, you truly share everything -you get to double your joy and half your pain.

A couple should carefully guard this privilege and ensure they do not carelessly share or break this bond.

The transition from singleness to couplehood is not intuitive. You will need to make active changes.


2. IT'S US, NOT ME

Your individual choices and decision-making should end at "I do." After that declaration, it is now about US. With minor exceptions, you should no longer make major decisions without consulting in your spouse.

Relating this to the "leave and cleave" principle, it is not uncommon for newlyweds to appear like they are "abandoning" their respective families. Actually, they should. At least for a while. When my younger brother married, our family Christmases began missing his presence.

It is natural for his parents and sister to feel hurt, and a little jealous of the new wife. It is natural for us to desire the new wife become an addition to OUR family. It is natural for a strong personality like me to want to tell the new wife, "You didn't just marry my brother. You married his family, so behave like it!"

However, this is wrong. When two people marry, they marry each other. Their "I's" and "me's" became "us" and "we's". As much as my brother would naturally expect his new wife to come to our Christmases, and as much as he loves the Chang family tradition, he cannot agree to come without first considering his new wife. He cannot make decisions regarding holidays and vacations alone, as the two are now ONE.

Boundaries need to be established from the outset as an active announcement of "leaving". This is particularly important in the first few years of marriage, when roles are not particularly understood.

3. FROM DAY ONE, CREATE YOUR OWN TRADITIONS AND MAKE THEM A PRIORITY

I read this excerpt from an excellent article in Engagement by Cherie Burbach, so I thought I would quote it here:

"Too often families can become territorial about celebrations, and this can put undue pressure on newlyweds. As a new couple, you’ll probably be pulled in several directions when it comes to holidays and birthday celebrations. While you want to balance out time spent with your families, you also need to make sure to nurture your new union. After all, the two of you are creating your own family now. Start a few traditions all on your own, and let your families know that they are welcome to join you. By shifting the focus from “this is what we’ve always done” to “here’s what happening now”, it lets both sets of relatives know that while you want to remain part of the world they’ve helped build, you also want to start off on your own path."

Speaking from experience, immigrant families can have a lot of functions. My father has nine (9)brothers and sisters, and my mother five (5) brothers and sisters. They all have children, and everyone loves celebrating all the children's birthdays, American holidays AND Chinese holidays. The children also have sporting functions, and as a family that loves to travel, there are annual vacations to overnight destinations which are too fun to refuse!

When my brother first got married, it seemed that he stopped going to any of OUR functions. Of course, he is also an exceptionally busy doctor in private practice, with a new baby, with a full-time working wife, and loads of other responsibilities. As his sister (and speaking for my parents as well), it was thoroughly hurtful (and irritating) to have him miss all of OUR functions, and yet see his Facebook posts about his rock-climbing trips, honeymoon, babymoon, and countless other vacations and exotic destinations that he and his new family were now taking, and ignoring us.

It is natural for us to slightly resent his wife.

Looking back, I wonder if Katie (Yes, his new wife has a name!)'s family felt the same way. We didn't even consider that Katie (who has three brothers and sisters) also has family traditions and functions that she may be missing.

And looking back, how is it possible for both of them (full-time working with new baby) to attend ALL family functions on both sides, and have their own marriage thrive and succeed?

They simply could not survive if they were catering to OUR demands.

This is why it is the DUTY of both spouses to actively LEAVE their parents and families and CLEAVE to their new spouse.

Form new traditions and make those your priority. Christmas is a very important holiday for our family. I can naturally assume it is important for my husband's family too. However, for my family (or my wonderful husband Scott's family) to naturally assume I will be there every year, or every other year without first checking with Scott will cause inevitable conflict.

Also, on the same point, family vacations are like weddings - times 10,000 in terms of awkwardness. My parents should never expect my brother to bring Katie on weekly cruise that we used to go on every year when we were children, or even adults pre-marriage. You must first consider your spouse.
Even though I believe we are good-hearted, kind and intelligent people, and it would be absolute heaven to hang out with us for 6 nights, I can't expect that Katie would feel that way. I also can't expect my brother to clear his hectic schedule and his own family vacations just so he can continue the Chang tradition of annual vacations. The Chang-Kirby union has formed, and we need to respect that.

Creating your own traditions does NOT mean you abandon your families. You still make it a point to "Honor your parents" and to keep in regular contact with them.


Don't let either side say, "This is how it's always been done."


Your new union has formed. Make decisions as a couple about how it will be.

The last time you should ever use "I" in a sentence is on your wedding day, when before, "do."

May all of your enjoy a long-lasting, sacred union!

Monday, August 17, 2009

Is Adultery Illegal in California?











I am proud to announce that I decided to partake in the making of a documentary entitled American Marriage: The Movie.


The two intuitive and brilliant filmmakers came over to my office, and my home, and posed some interesting questions - one of which prompted this blog entry.
Is adultery illegal?

Shockingly, I have learned that it still is against the law to cheat in twenty-two (22) states!




What about California?



My research unveiled the unfortunate answer of NO. However, it USED to be.



In 1872, the California Penal Code read,
§ 269a. Adultery. Every person who lives in a state of cohabitation and adultery is guilty of a misdemeanor and punishable by a fine not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding one year, or by both.

§ 269b. Adultery of married persons. If two persons, each being married to another, live together in a state of cohabitation and adultery, each is guilty of a felony, and punishable by imprisonment in the state prison not exceeding five years. A recorded certificate of marriage or a certified copy thereof, there being no decree of divorce, proves the marriage of a person for the purpose of this action. [Amendment approved 1911; Stats. 1911, p. 426.]



Unfortunately, both of these laws were repealed long ago as unconstitutional. These days, it is NOT against the law in California to commit adultery.



HOWEVER, California Family Code section 720 clearly states that in a marriage, "Husband and wife contract toward each other obligations of mutual respect, fidelity, and support."



Meaning, marriage is a contract consisting of FIDELITY, and cheating would be breach of contract for which, presumably, there may exist a civil remedy.



THIS LEADS TO EVERYONE'S BIGGEST QUESTION: ARE THERE ANY CONSEQUENCES TO ADULTERY?


We all know California is a "no-fault" state. (To read a full explanation on the "no-fault" system, go to my previous blog entry here.)



Does it affect child custody and visitation?


Cheating alone would probably not affect custody. Sad but true, we all know a couple of cheaters here and there that are still decent parents. Arguably, they cannot provide the moral background children deserve and need in this day and age...but neither does Grand Theft Auto and/or Facebook, and there are non-cheating parents that allow their children access to such!


Child custody and visitation is always determined strictly by the "best interests of the children". It is PRESUMED that children benefit the most from "frequent and continuing contact" with both mother and father.


I personally believe there must be boundaries when introducing children to a new girlfriend/boyfriend. Children are incredibly sensitive and delicate, and the sincere damage to them in being improperly exposed to a new girlfriend/boyfriend is irreparable. Parents should take their personal feelings and emotions OUT of the equation. No matter how you feel about your spouse, it is NOT ok to expose your children.

THINK BEFORE YOU ACT.


Does it affect support?


It does NOT affect child support.


However, it CAN affeect spousal support. California Family Code section 4323 states, "There is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex."


Does it affect property division?


California is a community property state. All property (NOT inheritance or gift) acquired during the marriage, before the date of separation, is community property.
This means specifically, if the cheating spouse is spending his or her salary acquired during the marriage OUTSIDE the marriage on someone else, they are spending community property and should be required to reimburse the community, sometimes with added interest.
I once had a case where I represented the spouse being cheated on. The "cheater" spouse spend close to 200,000 on extravagant trips, Cartier jewelry, Louis Vuitton handbags, lingerie, and other sundries. My deposition of the mistress revealed several thousands of other property.
Interestingly enough, this former mistress (she has long since been replaced, several times over), felt sincere regret and apologized on record and became friends with my client; thereby liberally disclosing all the information I needed to secure settlement within the HOUR.


Moral of the story: Don't cheat.