Wednesday, December 16, 2015
Japan is once again making headlines in family law. (See previous post regarding Japan and child custody).
The Supreme Court of Japan has held that a 19th century law mandating couples to have the same last name (usually that of the husband) is not unconstitutional. This is a ruling resulting from a 2011 case filed by 5 women who claimed forcing them to have the same last names violates their rights. One of the stated it was losing her identity, "it's as if part myself vanishes".
There is no such law in the United States.
A minor victory for women in the latter part of the ruling shortened the requirements for remarriage after a divorce to 100 days (down from 6 months). Incidentally, there is no law stating when men can remarry.
Thursday, November 19, 2015
A San Francisco Judge has upheld a consent form between former spouses providing for destruction of the frozen embryos upon divorce.
In the case of Mimi Lee and Stephen Findley was decided yesterday. Mimi (an anesthesiologist), age 46, discovered she had breast cancer prior to her marriage to Stephen, and the two decided to freeze the embryos to preserve fertility. They signed a consent form in 2010, which provided that the embryos would be thawed and destroyed upon divorce. They later separated in 2013, and divorced this year.
Despite Mimi's arguments that this was the only chance she could have to bear children, Judge Anne-Christine Massullo firmly upheld the consent form in an 83-page decision, stating, "“It is a disturbing consequence of modern biological technology that the fate of nascent human life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles,” "Decisions about family and children often are difficult, and can be wrenching when they become disputes,” Judge Massullo wrote. “The policy best suited to ensuring that these disputes are resolved in a cleareyed manner — unswayed by the turmoil, emotion and accusations that attend to contested proceedings in family court — is to give effect to the intentions of the parties at the time of the decision at issue."
Judge Massullo's decision is consistent with approximately 11 other cases of this pattern. Mainly Judges have ruled in favor of the person who did not want to become a parent. It appears at this time the law seems to favor the right NOT to procreate over the right to procreate.
Mimi Lee will likely appeale case.
Wednesday, August 19, 2015
So you've been hacked. First, check if you name is on this list. If so, within days, you know you are going to have a head-on with your spouse. Without further ado, here are some answers you are dying to know.
1. Is cheating a crime?
Whether or not something is a crime is state-specific. Currently, in 21 states, infidelity is considered a crime. And thus, proscribed in the Penal Code (the law that governs crime, not what it sounds like, sickos). Yes, New York falls in this list. And so does Arizona, Illinois, and Massachusetts. And Georgia. California does NOT proscribe crime. HOWEVER, in California, you have a legal obligation under the Family Code to be faithful to your spouse. Seems like a lot of people don't do their duties.
2. Ok. It's a crime in my state. (Need to move!) What's the time?
It's state-specific. In Maryland, adultery is a misdemeanor, and you get fined $10.
3. It's not a crime. But what about lawsuits?
Shockingly, there are SEVEN (lucky 7!) states that recognize the tort (civil wrong) of "alienation of affection"! This means that in these states, your SPOUSE that you cheated on can SUE your mistress for alienating your affections, and claim damages (hospital bills, loss of wages, any other provable damages). Yes: Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and of course, UTAH! If you live in the lucky 7, and you are the spouse of the victim of the hack, pray that at least the mistress is rich!!! And victims, if you cheat in one of these states, at LEAST pick rich mistresses. You owe your wife (or husband) that much.
4. So now do I lose everything in the divorce?
Yes. Wait, define everything. If you guys don't get counseling, your marriage is over. THAT. IS. EVERYTHING! But, if you are selfish and don't care much about the marriage, then no, it's not over. If you have children, some problems may occur. (Yes, you can STILL be a good parent even though you are a dirty, rotten no-good cheater. However, try to convince your spouse that! Divorces get ugly when one person fights). You may have heard the term "no-fault" state. This doesn't mean what you think it means. Basically, all states don't require "fault" anymore to get a divorce. Historically, women (typically the one wanting the divorce) had to PROVE that their husbands beat them, or cheated on them in order for the courts to grant a divorce. THAT is what proving "fault" means. Somewhere along the line, people mistakenly reinterpreted "fault divorce" to mean "wrong-doing gets you less in the divorce". This may be true in some states, like Texas, but not in California. In SOME states, proving fault may prevent you from receiving alimony.
5. I bought my mistress a house and a basketball team. Does she have to return it?
Oh wait, wrong story.
6. Will I lose custody?
Not necessarily. Just because you suck as a spouse does not mean you are a bad parent. At least not in all Judge's eyes. You may find though, that because of your repulsive behavior, your spouse may be angry for a while, which may make it difficult to co-parent.
7. Will my divorce be expensive?
In all seriousness, if you are the victim of this hack, my heart sincerely goes out to you. It seems unfair that SO many people cheat, and only YOU (and the 26 million users who used their real email accounts) got caught. I truly hope that amongst all the decisions you made in your life, you at least chose a spouse who is not only compassionate, but forgiving with a short memory. The aftermath of all this won't be easy to handle. Personally, as a divorce lawyer, I am not looking forward to all these calls coming in due to the hack. Cheating is a red herring. The marriage was already having issues. I would recommend that both of you take great measures to SAVE your marriage. I once went to a couples seminar, and learned that 3 of 5 couples there suffered infidelity. It, however, was NOT a deal breaker. Cheating is usually a SYMPTOM, NOT the disease. INVEST in a good couples therapist and commit to work on it.
That said, if all else fails, you know where to find me.
Friday, March 13, 2015
These concepts are often used as a double-edged sword in family court. As often as mothers will hurl these words to deprive fathers of visitation, fathers will similarly contort images of abnormal needy behaviors that need to be quashed in order to deprive mothers.
Abraham Lincoln once said, "I destroy my enemy when I make him my friend."
In a high-conflict case, these concepts should be closely examined/embraced to promote mutual understanding and achieve favorable results.
What is Attachment Parenting?
Attachment parenting was invented by pediatrician William Sears. It is a parenting style based on the belief that the emotional bonding of a young child with a caregiver carried lifelong benefits and consequences. Sensitive and emotionally available parenting helps the child to form a secure attachment style which fosters a child's socio-emotional development and well-being. Less sensitive and emotionally unavailable parenting or neglect of the child's needs may result in insecure forms of attachment style, which is a risk factor for many mental health problems (e.g. depression, anxiety and eating disorders.) In extreme and rare conditions, the child may not form an attachment at all and may suffer from reactive attachment disorder - one extreme form being conduct disorder. Conduct disorder is a severe condition characterized by hostile and sometimes physically violent behavior and a disregard for others. Children with CD exhibit cruelty, from early pushing, hitting and biting to, later, more than normal teasing and bullying, hurting animals, picking fights, theft, vandalism, and arson.
The Baby Book by William and Martha Sears, sometimes referred to as the 'Bible of attachment parenting', gives practical attachment parenting advice in the form of the following ‘seven baby B’s of attachment parenting’:
* Birth bonding: The first few hours after birth are regarded as very important to promote attachment.
* Belief in the signal value of your baby’s cries: Parents are encouraged to learn to understand their baby’s cries and respond quickly and appropriately to them.
* Breastfeeding: This is regarded to have physical and psychological advantages to both mother and child.
* Babywearing: The term was first used by Dr. Sears and it means carrying the baby in a sling or other carrier, close to the body of the caregiver.
* Bedding close to baby: Sleeping in the same room and preferably in the same bed as the baby is encouraged, as is frequent (breast)feeding at night.
* Balance and boundaries: Appropriate responsiveness (knowing when to say yes and when to say no) is needed to keep a healthy family alive.
* Beware of baby trainers: Instead of taking advice about how to ‘train’ the baby to make it cry less and sleep for longer stretches, parents are encouraged to listen to their own instinct and intuition.
According to attachment parenting advocates this advice helps parents to respond quickly and sensitively to their baby’s needs, thus facilitating development of secure attachment.
With any theory, there are boatloads of criticism. The biggest one is that it's not science-based. It can best be described as an "art", not "science". It's too demanding and raises needy children. Google it - you'll find bajillions of articles against it. My favorite is "Babies are Assholes: The Problem with Attachment Parenting".
Attachment parenting is not a strict set of rules. A full-time work-out-of-the-home mom can be an attachment parent as much as a stay-at-home mom.
Attachment parenting usually refers to the baby's attachment to one parent - usually the mom. It is true that babies benefit from attachments to both parents. But in the earlier years, the focus is on the primary caretaker's bond.
How Long Should One Breastfeed?
It's now widely accepted that "breast is best".
In the U.S., the American Academy of Pediatrics (AAP) recommends babies be exclusively breastfed for the first 6 months. Then, from 6 mo - 1 year, continuing to breastfeed while introducing solid foods.
The World Health Organization (WHO) also recommends exclusive breastfeeding for 6 months, and then continued up to age 2 and over.
The United Nations Children’s Fund (UNICEF), believes that breastfeeding should continue until the child is two years or older.
The American Academy of Family Physicians (AAFP), recommends exclusive breastfeeding for six months and warns: “If the child is younger than two years of age, the child is at increased risk of illness if weaned.
Breastfeeding is an infant's natural way of feeding upon birth. All humans and mammals alike give birth and nurse their young. Breastmilk from the mother is uniquely superior to any other form of nourishment. "Breast milk is widely acknowledged as the most complete form of nutrition for infants, with a range of benefits for infants' health, growth, immunity and development."
-- Healthy People 2010, Centers for Disease Control and Prevention, Atlanta, Georgia.
Besides fighting infection, lower rates of childhood obesity, better brain development, decreased allergies and asthma are all linked with breastmilk. Breastfed children are 50% more likely to get sick during their first year of life. Human breastmilk contains living antibodies. Formula does not come close to this "liquid gold".
Breastfeeding also benefits the mother. Women who breastfeed have a lower risk of breast and ovarian cancer.
Most importantly, breastfeeding is bonding. Upon birth, babies come out "rooting" - the suckling instinct that defies science - where did they learn this? As soon as they come out, they have a need to suck. And the suckling is what brings in the milk - what turns only drops of colostrum into buttery white breastmilk.
The Centers of Disease Control puts out an annual "Breastfeeding Report Card" (see 2014). In California, 92.8% of women have breastfed. However, only 63.1% are still breastfeeding at 6 months; and only 38.4% are still breastfeeding at 12 months.
If all agencies encourage 1-2 years, who are the numbers so low? Amongst new moms, common stressors include production of breastmilk; latching; fearing baby isn't eating enough. It is very important for breastfeeding moms to receive all the support they need to encourage breastfeeding.
For those who don't breastfeed, it is important to understand the mechanics. Unlike breathing or eating, breastfeeding is rarely instinctive. The first couple of days after birth (sometimes up to a week), the body only produces colostrum, a gold gel-like substance. Though it appears scarce, the baby's needs are entirely met by this gel until the milk comes in. The body has its own regulating mechanism - it will produce as much as the baby needs. So in the beginning, for milk production and sufficient nourishment, it is essential for babies to be breastfed at least every 2 hours, or on demand (per attachment parenting). Babies that are breastfed on demand will never overeat (common problem with formula babies). And, if fed on demand, they should never be hungry.
Some may suggest pumping milk to provide for the father. If this is possible, then it's a good solution. However, a lot of women cannot produce milk with the pump, because it is the baby's skin-on-skin that draws out the milk. Also, some babies will refuse to take milk from a bottle. Some women report that pumping decreased their production, leading to babies' early weaning.
If the breastfeeding relationship is to be protected, it is important that mother and child not be separated for lengthy periods (2-4 hours). Some babies will refuse bottle to wait for mommy's milk, so they will go hungry until breastfed.
Breastmilk (both for physical health and emotional bonding) should be a priority in the early months. Even into toddler years, studies have shown that breastmilk contains more concentrated quantities of antibodies, and will continue to protect the child. Once the child has started solids, they can go for longer periods without the breastmilk, however, for bonding purposes, lengthy times away from mom should develop over time, and after adequate bonding with another childcare provider (father, babysitter, daycare, etc.).
How Can a Father Get Custody when Mother is Attachment Parenting and Breastfeeding?
For a father seeking custody in the early months, all is not lost.
You know now that Attachment and Breastfeeding are in the child's "best interests".
After educating yourself, set reasonable expectations. Just because the mom is breastfeeding, doesn't mean you don't get any custody. You can have joint physical custody, with increasing periods of time.
Learn all there is to learn about babies. For example, they sleep a lot. During the early months, they sleep 16-18 hours a day. During this time, it is not reasonable to request 50-50 custody. They are asleep.
I encourage my clients who are fathers to keep in close communications with the mother (as much as practicable). Through the mother, you can learn the sleeping/waking habits. If you are nearby, you can visit the baby during the waking hours. For amicable couples, this is possible. However, most custody cases are high-conflict and contentious. Sometimes the father fears the mother will move out of state. The best thing to do is to make sure that you file a case so the automatic temporary restraining orders will kick in. Next, you must gingerly serve the papers. Rather than instilling fear, I recommend alerting the mom that a case has been started with a nice letter stating you are seeking custodial time, but in increasing increments, and to the needs of the child.
If the mother is refusing any sort of visitation, I advise setting the case for mediation before filing any Request for Order for Custody. This is required by the courts, and will be received better.
I strenuously advise against any sort of custody litigation during the first year of the baby's life. Even more so if the baby is breastfeeding.
If the mom is still breastfeeding after age 1 - or 18 months, and still refusing overnight visits, this would be an appropriate time to inquire into getting more through legal action, if the below tips are unsuccessful.
How to Craft a Reasonable Visitation Plan Around Breastfeeding and Attachment Parenting
A reasonable plan should look at some of these factors:
1. What is the father's relationship with the child? If the baby was born after the parties separated, then this will require a longer step-up increased custodial time than if the couple separated when the baby was 1. If the father lived close to the mother, and was able to visit every day for a few hours, this would allow for more rapid increased schedule as the child grows. Here, in Los Angeles County, the court posts a "model parenting plan" for children under 3. The Court suggests from birth to 6 months, 3 non-consecutive days visits for up to 2 hours each to the non-custodial parent, increasing to 3 non-consecutive day visits for up to 3 hours each from 7 months - 12 months, and overnights if appropriate.
This is just a suggestion. Studies have shown that overnights for children under age 2 with a parent they have not bonded with, can be stressful. Also, it is essential that overnights are worked up to - that is, the father has spent frequent and continuing times throughout the weeks with the child, gradually increasing time as the bond grows.
2. What is the mother's relationship with the child? A stay-at-home mom who is breastfeeding on demand and co-sleeping will have a different relationship that the working mom who returned to her 9-5 job after 12 weeks of maternity leave. In the latter, she may still be breastfeeding when she returns home. However, if she is pumping milk to give to her nanny during the day, then she can certainly do the same with the father during the day.
Does the mom cosleep or does baby sleep in a crib in his own room? In the former, overnights would probably not be feasible when the child is not age 2.
How long has the child been away from mom? Has grandma watched her for a weekend while she was on a girls' trip? Or does mother Ergo the baby all day, for naps and to run errands?
3. What are the parties' desired parenting plans in the future? Is it mom's desire to keep dad out of baby's life until age 10? Is it dad's desire to have 50-50 the day after baby turns 3?
Children benefit best from two loving parents. Child-rearing was never meant to be a single person's job; it takes a village.
Often, the mom's distrust and gatekeeping causes the father's irresponsibility and eventual "giving up" on the system, causing the child to lose the support and love from one parent. This harms the children. More love, not less, is in their "best interests".
Sometimes the moms are the perpetrators - immediately getting into a relationship with a new man; moving as far away as possible to "alienate" the father. This also harms the children. Knowing their legacy, and who their father is, is in their "best interests".
In the ideal world, family court litigants foster nothing but love and understanding for their babies, and the other parent. In this world, moms who want to breastfeed are not blamed for a child's development issues, and not mocked for cosleeping with older kids. In this world, dads who want to be involved can see the children and spend nights at the moms house until the child is comfortable at his house.
I have a dream that one day, the parents of beautiful babies - though separated, can be in the same room so babies can bond with both and still have a special attachment to their one primary caregiver.
Family law attorneys and Judges have a duty to educate themselves in this area, so no mother is forced to wean a child too early, so no child is forcibly "detached" from their primary caregiver, so no father is deprived of bonding in favor of breastfeeding.
Reality is far from my dream. I end with unaltered excerpts of transcript from a custody hearing on a high-conflict custody case I had last year, where I represented the mother of 2 young boys, ages 6 and 2. The father had been on an extended absence of over a year, and when he returned, he demanded the same schedule he had prior to his departure. Mother works full-time but was still breastfeeding and co-sleeping with Younger. (Names have been changed)
Custody evaluator: The children are experiencing difficulties in the current schedule.
Opposing counsel: What difficulties are they experiencing?
Custody evaluator: As noted, Younger has regressed a great deal in the concrete skills that he's had. In terms of Elder, I saw a child who was very anxious. They are not doing well in their current schedule.
Opposing counsel: Did you know the Mother is still breastfeeding Younger at age two and a half?
Custody evaluator: Yes.
Opposing counsel: Do you think that has anything to do with his regression?
Custody evaluator: No.
Opposing counsel: Were you aware the mother is using the fact that she is breastfeeding to prevent visitations?
I objected. Assumes facts not in evidence. Judge sustained it. We moved on.
In the end, we won. My client was granted the custody/visitation schedule we requested.
But I still mourn for my client who was assassinated by uninformed opposing counsel for doing what was in the best interests of her child.
As heralded anthropologist Katherine Dettwyler, PhD states in her letter to courts in support of extended breastfeeding: "In conclusion, there is no research to support a claim that breastfeeding a child at any age is in any way harmful to a child . On the contrary, my research suggests that the best outcomes, in terms of health, cognitive, and emotional development, are the result of children being allowed to breastfeed as long as they need/want to. Around the world, most children self-wean between the ages of 3 and 5 years, but given that the underlying physiological norm is to breastfeed up to 6-7 years, it is quite normal for children to continue to breastfeed to this age as well, and the occasional “normally” developing child will nurse even longer."
Kelly Chang Rickert, Certified Family Law Specialist, is a family law attorney/mediator, advocating for protection of breastfed babies in divorce/paternity cases. She breastfed both her children for a total of over 4.5 years.
Tuesday, March 10, 2015
I swear some people float through life in an Altered State of Reality, a disease I will refer to as ASR. ASR is a mass-murderer; it kills our morale, our children, ourselves.
You read about it everywhere: moms posting their photoshopped naked bodies, kids "sexting" then committing suicide, parents plunging off a cliff to their death while taking selfies (with kid watching).
People with ASR don't understand what they are doing have consequences. Their reality is unchecked, and their lives are wrecked.
Having ASR will most definitely kill your marriage. It will also severely damage you in your divorce.
Having an altered state of reality does not automatically make you stupid. No. It's not recognizing you have it, and making decisions while in this altered state that makes you stupid.
This post deals with people who go through Divorce Altered State of Reality (DASR).
If you are going through a divorce, please read this list - and don't DASR destroy you.
1. Divorced Altered State of Reality: Stupid Reliance on Soon To Be Ex-Spouse
Some people think it's their soon to be ex-spouse's court-ordered/God-given obligation to provide them with everything. And they wait for it.
Even if you have served 7 million sub poenas, do NOT rely on your soon to be ex-spouse to provide you with tax returns, credit card statements, or vaccination or school records. Get them yourself.
Always know your spouse's social security number.
Most banks provide on-line services where you can download up to the most recent 12 months of statements. If you need more, go visit a branch.
If you have children together, you should always have copies of the children's medical and school records. It's as easy as a telephone call or a simple visit to the school. Make sure you are listed as the mother/father on all of the kids' medical and school records.
I have had several clients that FREAK out when they discover the mom/dad hasn't listed them as a parent at the kids' schools. Instead of calling/visiting the school to take care of it, they call me and immediately want to go to court to "punish" the other parent.
DASR: Judge "sides" with them, forces the other parent to comply on the spot, sends the other parent to jail, with Vangelis "Chariots of Fire" playing in the courtroom.
Reality: Judge asks why they haven't taken care of this themselves, and yells at them for wasting the court's time.
2. Divorced Altered State of Reality: Stupid Reliance on Google.com
Getting a divorce is not like replacing a water filter, cooking steamed clams, or cutting your own bangs (all of which I have successfully learned by simply watching Youtube.)
Do NOT rely on google to answer your questions about alimony or community property. As much as I love Sergey and Larry, they are not divorce specialists, and their company will mislead you.
There are 50 states, with different laws. California happens to be a community property state (there are only 9 of us). Do NOT rely on what you read on-line to navigate you through your own divorce.
DASR: Google.com will save the day - it will provide you with forms for prenups and divorce settlements, even appeals! Why pay when it's free?
Reality: The forms you used to finalize your divorce were from Alaska, in 1982. You are engaged to be married next month, and you are still married to your husband/wife, who has since left the country.
3. Divorced Altered State of Reality: Stupid Reliance on Friends/Family Advice
I belong to several mom's groups all over California. Being a new mom is tough - I think as high as 80% of my clients just had children within the last 3 years. In any case, divorce rates amongst new parents are high and bad advice runs rampant on these forums.
The other day, some woman in a mom's group told the other mom that as long as the father (who is married to another woman) doesn't pay child support, he will never have custody of that woman's baby. I've also read another long thread where some moms were advising the "victim" to run away with the baby while the paternity case was pending. (Can you say kidnapping?)
Your friends and family are not divorce/custody specialists. They have no idea what they are talking about.
DASR: Joining all the mom's groups in the world will get you the best friends and legal advice around. You can all sit around happily, with sole custody.
Reality: The "mom" that is helping you is in a vastly different situation, and her advice will hurt you.
4. Divorced Altered State of Reality: Stupid Reliance on Lawyer
Hire your divorce lawyer for one thing: knowing the law and how to best apply it to your situation.
Do not abuse your relationship with your attorney. People who exclusively rely on their divorce lawyers to tell them whether they should stay married, what to feed their kids, and how to treat their ex'es suffer from DASR.
Don't get me wrong - I am a counselor at heart. I love giving what I think is the best advice in the current situation. Honestly, if you have children, I will always think working on the marriage is the right answer.
Assume responsibility for your role in our relationship. DO review all documents I send you. DO ask me questions for the paragraphs you don't understand. DO ask me questions using hypotheticals.
DON'T expect me to be your eyes. (I am legally blind). You still have a duty to read everything. Computers get hacked. Dropboxes are synced without my permission. Sometimes the case number - your children's names and birth dates, are wrong. This is YOUR job to tell me your child's name and birth date is wrong.
I recently had a client who came to me to terminate his alimony. His marriage lasted 8 years, and he had been paying alimony for 25 years. I told him to bring his Judgment. Within 10 minutes, I found the clause that said bi-monthly alimony was to be terminated (along with jurisdiction) on January 15, 1999. He had overpaid 360 months of alimony!!!
Thursday, March 5, 2015
EVERYTHING YOU EVER WANTED TO KNOW ABOUT PRENUPS
Spring is in the air!!! Allergies and engagements abound! For those romantics out there proposing in the beautiful Springtime, don't forget to schedule your appointments for prenups ASAP.
Tip #1: DO NOT RUSH A PRENUP
I mean it. I get calls from clients ALL THE TIME (i just got 6 calls last week), and it goes something like this: "My fiance just gave me a prenup, and I want to make changes. Our wedding is this weekend - please help!" Sorry!! It's too late! End of call.
(Then they call around to find another lawyer who'll gladly take their money to draft an unenforceable prenup).
Make sure you set aside enough time to draft, negotiate and edit a prenup. (Appointment with lawyer should be set at least 6 months prior to your wedding date). Getting your prenup done takes priority over the cake, the dress, and the venue. Leave yourself enough time - make it THE To-Do before your I Do!
These clients are never happy with me when I tell them it's too late. Truth is, if you are the out-spouse (usually the one being presented with the prenup), it's awesome news! It means the prenup is no good - in which case, go ahead and sign it. Then, when your marriage falls apart, just pull out the dusty thing, along with carefully documented calendar dates, and challenge the hell out of it. (You still need money to hire a lawyer, though).
Tip #2: AFTER PRENUP IS FINALIZED, WAIT IT OUT BEFORE SIGNING
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."
This does not mean that the prenup is automatically no good. Nothing is automatic. What this means is if you don't follow the rules, and the asshole you married decided to challenge the prenup, he/she would win. Prenup down the toilet.
I am overprotective of my clients, so my policy is to wait for a FINAL AGREEMENT to be accepted, then start the waiting period the very next day. A FINAL AGREEMENT means there are no more changes, no more hemming and hawing, NADA. For the math dummies out there, this means you add 8 days to finalization date. For example, if the prenup is finalized today, March 5, 2015- you add 8 days, and you can sign starting on March 13, 2015. The signatures can even happen ON the day of your wedding, but I don't recommend it. I probably would sign at least a MONTH before the wedding.
TIP #3: GET OVER YOUR FEAR OF A PRENUP
Prenups is not a scary P word. You know what is? Puberty, Public speaking, Paranormal Activity: Things you have absolutely NO control over. You may not be able to control the direction of your marriage, but with a prenup, you can control your divorce. (This statement comes with a disclaimer because as you well know, some assholes will still challenge a bullet-proof prenup). A carefully drafted prenuptial agreement can't protect you from those assholes, but it may save you a ton of money.
TIP #4: GET OVER THE FEAR OF INSULTING YOUR FUTURE SPOUSE
Pop culture is adamant on giving prenups a bad name. There is so much stigma surrounding this. Is it the word "prenup"? One of my clients (who used the F word a lot) once told me "prenup" was the dirtiest word alive. Look, I can't help that it sounds dirty. I don't particularly like the word either. A divorce has to happen before the prenup comes to play, so it's like a wretched omen. It's like "life insurance". It sounds so greedy - and dependent on someone's death!
No one likes to think about death or divorce. But, it happens - marriage ends with one or the other. And if it's done right, you get another lovely P word - protection. Yummy. My F-word loving client and I decided to call the "prenuppy" a "puppy", and we put a little red bow on it. Best. Gift. Ever.
Finally, you should know that the prenup-law is anti-divorce. Prenups that "promote" divorce are unenforceable. Talk to your lawyer about what constitutes "promoting divorce".
TIP #5: SPEAKING OF P WORDS, HERE ARE THE 3 P'S TO A PRENUP
PROTECTION OF PROPERTY: California applies the draconian "community property" law. Everything acquired after date of marriage, prior to date of separation is community property. This includes that winning lottery ticket that your husband told you NOT to buy. Also includes your wife's Neiman Marcus addition.
PROVIDING OF SUPPORT (OR NOT) AFTER MARRIAGE: What word is dirtier than "prenup"? Try alimony. Spousal Support. Especially to a cheating, lying no-good, abusive spouse. California does not care if your wife cheated on you. If you supported her during the marriage, you'll need to support her after the marriage.
PRESERVATION OF SEPARATE ASSETS AND DEBTS: Separate property are assets and debts that existed prior to the marriage. Sound lovely. EXCEPT if you co-mingle and/or transmutate. Dirty words everywhere! Ask your lawyer about these words.
TIP #6: THESE THINGS ARE ENFORCEABLE
(1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
(2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
(3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
(4) The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
(5) The ownership rights in and disposition of the death benefit from a life insurance policy;
(6) The choice of law governing the construction of the agreement;
(7) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
TIP #7: THESE THINGS ARE NOT ENFORCEABLE
You can still put social media, cheating, religious stuff, and mandates on sexual activity clauses in your prenup. Just remember they may NOT be enforceable if the asshole challenges it.
You also should NOT put anything relating to custody or child support in the prenup, as it won't be enforced.
Finally, don't put anything in the prenup that encourages divorce.
TIP #8: IF YOU ARE INCLINED TO GET A MARITAL AGREEMENT, GET ONE BEFORE THE MARRIAGE
Difference between a prenup and a postnup is a marriage in between.
Several clients who call me missed the deadline for a prenup. They shrug it off and say, I'll just get a post-nup. News from the underground: post-nups required much more disclosure and is less loved by the Court. If you are inclined to get a prenup, leave yourself enough time. Do not fool yourself into thinking a postnup will be as easy.
TIP#9: EDUCATE YOURSELF
Before getting a prenup, school yourself. I recommend reading the California Family Code, sections 1600 et seq. It's pretty good stuff. If reading statutes isn't your cup of tea, try this book, "Prenups for Lovers".
Now that you know everything you need to know about prenups, you can call a lawyer now to help you draft one. My fee for a prenup is $10,000.
Oh wait, no - that's my standard retainer for a divorce. Prenups start around $2,500, depending on the work that needs to be done.
Marriage is grand, people. Divorce is 100 grand.
Kelly Chang Rickert founded the Law Offices of Kelly Chang, A Professional Law Corporation. Her firm specializes in Divorce and Family Law, and handles all areas of Divorce, Annulment, Spousal Support, Child Support; Modification, Child Custody and Visitation, Prenuptial and Postnuptial greements, Adoptions, Property Division; Restraining Orders; and Family Law Mediation. She is happily married to the love of her life, and has a premarital agreement.
Monday, March 2, 2015
DIVORCE DREAM TEAM
You may have heard a divorce dream team consists of unforgiving child custody evaluators, genius forensic accountants, and pitbull lawyers. If you are gearing up to spend over $100,000 in litigation, you may be right.
For the 95% of us who don't have (and/or refuse to spend) this type of money, if you are contemplating or going through a divorce, here are the people you SHOULD be working with:
1. Therapist: To help you deal with changes, stress, and anger.
2. Lawyer: To give you a best/worst case analysis, to represent you if you have to go to court, to educate you on family law.
3. Mediator: To find a solution without fighting.
4. Parenting Plan Coordinator: This is mediator who specializes in custody issues - if you have children.
Therapists save you money in a divorce. Expensive divorces are not caused by RICH people with lots of assets. Rather, they are caused by ANGRY people who want to fight. Angry people are blinded by their fury, and intent on destroying their spouses. Angry people will willingly spend thousands of dollars to prove worthless things, and then accuse their lawyers, therapists, mediators of wrong-doing. Angry people will unnecessarily prolong their divorce.
Look, you are going to be angry at some time in the divorce. You should be angry! I am all for letting out all that steam - you don't want any of that toxic stuff bottling up inside. But don't be angry at the people who are trying to help you. Therapists are best equipped to deal with angry people. They went to school for this, and are trained to handle anger. I'm a lawyer, and I certainly can't handle angry people. They drive me batty. I don't know about you, but my helping heart grows cold when people spew angry fires at me. (self-defense). I can't whole-heartedly do my job for angry people.
Lawyers also save you money. Expensive divorces are caused by people who are ignorant of the law. Your lawyer can and should educate you. For example, you should learn from your lawyer that California is a community property state. Thus, all property and debts acquired during the marriage and before the date of separation is community. Even if you are completely angry with your spouse for cheating on you, don't let anger affect your rational thinking when dividing the assets - i.e., she still gets half of the community portion of your 401k; she still gets half the equity of the home you bought during the marriage. Your lawyer should also advise you that spousal support is an obligation. Thus, even if your cheating lying no-good husband left you for that hypocrite skank at church who teaches Sunday School, just suck it up and pay the alimony for half the length of the marriage.
Mediators also save you money. Once you know you have to divide your stuff, and have to pay alimony, the MEDIATOR should help you decide the amount, and for how long. Financial issues should always be resolved sooner or later. Obviously, if your spouse runs his own business, or has massive undisclosed accounts, you may need to spend some money to ascertain these accounts. But after the numbers are out, rather than fight over which number to use - it is 100%, without exception, cheaper to settle sooner than later. You do NOT want to be the sucker that spends over $40,000 to find an account that had only $30 in it.
Parenting Plan Coordinators also save you money. Custody is perhaps the ONLY issue that I believe could understandably take a bit longer to resolve. If there are custody issues which don't involve drug/alcohol or child abuse/neglect, rather than litigating from the outset, it is highly recommended that you hire a Parenting Plan coordinator to help you reach a parenting plan that will work with your family.
Choose your team wisely. Educate, mediate, and meditate. You can absolutely control how much money you spend in your divorce.
Friday, February 27, 2015
Just kidding! My absence was due to end of the month billing.
Anyway, out of curiosity and for professional research, I clicked on the ad. Since then, Facebook has been inundating my page with advertisements and articles about cheating. By the way, Ashley Madison is THE online playground for married cheaters, by the way. At least, it WAS. There may be an updated site, but I wouldn't know.
All this cheating hoo-hah reminds me that it's been 6 years since I have blogged about the legality of cheating.
Is it illegal to cheat on your spouse? In 2009, it was illegal in 22 states. Colorado then dropped out.
It's 2015 now, and only 21 states are against it. (Idaho, Utah, Arizona, Kansas, Oklahoma, Minnesota, Wisconsin, Illinois, Michigan, Mississippi, Alabama, Georgia, Florida, North Carolina, South Carolina, Virginia, New Hampshire, Massachusetts, New York, Maryland, Rhode Island).
I think New Hampshire recently repealed this law, so it is probably illegal only in 20 states now. Punishments, if caught, vary from $10 (Maryland) to a whopping 3 years in jail (Massachusetts).
In California, it's not illegal to cheat. There are no longer any laws in the Penal Code governing cheating. You won't be fined, and you won't be thrown in jail.
Technically, when you say your vows, you enter into a contract, and Family Code 720 states "Spouses contract toward each other obligations of mutual respect, fidelity, and support."
I suppose if you find your spouse cheating on you, you can sue them for breach of contract. Personally, I wouldn't sue Scott if I find him cheating. But one of you may decide to - just remember the code section, "FAMILY CODE 720".
SO back to my post: Are there any consequences from cheating and does it affect the divorce?
Top questions in this area:
1. Can I get sole child custody and visitation because my spouse is a dirty, lying, no-good cheater?
No. Cheating alone does not affect custody. In California, custody is awarded based on the "best interests of the children". Arguably, it's not in the best interests of children to be morally exposed to cheaters, but frankly, if you have a computer with wi-fi at home, they are exposed to far, far worse. California is a very pro-joint custody (and not anti-adultery) state, so infidelity will probably not play as big of a role as you wish. Some cheaters are actually pretty decent parents.
If you are pissed as hell that your spouse is cheating, and you want to use your children against him/her, don't. If you want to tell your children your spouse is a lying sack of trash, don't. The damage you do to your children by bad-mouthing half their DNA is FAR worse than the damage he/she did by screwing that whore. Karma's a bitch! Let her do her work.
2. Does it affect support?
No. Cheaters do not have to pay more child support. It MAY affect spousal support. Family Code section 4323 creates a rebuttable presumption that the cheating co-habiting spouse has a decreased need for support. Great section!
3. Does it affect property division?
Not necessarily. But if the cheater is wasting community assets, you may have a claim against him/her - and force them to reimburse what they spent on the affair (s), with interest. I once had a case where I represented the innocent. Her cheating, lying, no-good husband spent over $200,000 wining and dining the mistress (trips to Maldives, Cartier, LV, lingerie, French Laundry, etc.) By the time I deposed the mistress, she had been long replaced, several times over. She obviously had no desire to protect the cheating, lying, no-good ex, and became very good friends with my client. I was able to secure all the information I need to reimburse the community within the hour. Case settled.
In summary, California doesn't really punish cheaters as much as it should. If you are being cheated on, you should probably look into self-help, like this man who hired a witch doctor to cast a muthi (evil spell) on his cheating wife's vagina, which led to penis captivus of her lover. Apparently, no medical intervention can separate them - they have to wait for the husband to revoke the curse. True story. It just showed up right now on my Facebook feed.
Tuesday, February 24, 2015
More Marriage Advice from a Divorce Lawyer
I have been practicing divorce and family law for over fifteen (15) years. I have been married for over seven (7) years. (Itchy? No.)
I have been practicing divorce and family law for over fifteen (15) years. I have been married for over seven (7) years. (Itchy? No.)
My last marital advice column was posted 7 years ago. At the time, I had just ran off to Vegas and married my husband whom I have known for almost 2 months. I was somewhat idealistic and mostly an idiot back then, and you can quench your curiosity by clicking here.
2 kids and almost 1 divorce later, I am definitely an expert, and I will share with you the secrets of having an everlasting marriage.
Everything should be taken with a grain of salt. (I've only been married 7 years - what do I know?)
1. After children, marriage metamorphosis must happen. Family first, marriage first.
Focus on family first, and the marriage will follow. This does not mean marriage is second. They are both first, but BOTH of you must value family, and having that MUST be enough in the meantime to keep your marriage together.
So....since my last post, Scott and I have had 2 kids (who are now 6 and 3). Man, have they changed us. I am not sure how to describe how exactly children changes the marriage. You hear this all the time (much like, "babies deprive you of sleep"), but it is really difficult to describe how a marriage changes after kids unless you have been through it. One light-bulb "Ding!" moment for me was when , during one major fight, where Scott tearfully announced,"I can do without the two of us. But it's the picture of the 4 of us that I can't do without!" It was an earth-shattering epiphany, insulting and denigrating to the marriage, yet at the same time, the utter breakthrough of marriage metamorphosis. We had become 4 from 2 - doubled in identity and bonds. What could be more powerful to a relationship than family?
In order to have children be the rope, you both need to use rope made of electric barb wire, not hay. Don't allow the children to BE the only reason you are staying together. According to a recent study done, 25% of married couples are staying together ONLY for the children. And amongst those who divorced, 26.5% admitted they stayed in the marriage longer than they wanted to - because of the children. Where did they go wrong? Simple. One, or both of them, failed to put FAMILY first.
It is important that your marriage undergoes this transformation after children - that both partners are on the same page about family. I admit that after my first child, I completely lost focus on my family, and the marriage. Between running a law firm and breastfeeding, I just didn't have enough room for Scott. What little time I have I focused only on the baby. THE BABY. NOT the family. I did things good for the baby - sang to her, rocked her, wore her around town (I am the Ergo baby cover girl), read to her, cooed at her, made her food - all my love was for the BABY. My family? Not so much. Sure, the baby is a component of my family, but it was just a little iota. For my family? Nah. I continued to do things on paper - I booked trips for us which included breastpumps, milk bags, burp clothes, and Elmo. But nothing included Scott. Nothing except the plane ticket. I looked right through him - not at him. By the way, I wasn't such a terrible vicious person. I just was clueless. I thought I was the best mom on the planet. Sometimes when you're all wrapped up in something, you just don't see what's really happening - I was alienating my husband. It took couples counseling and a lot of fights with Scott (another child, and 6 years), to finally get to this point where I am focusing on my FAMILY, and not just the kids.
It is true that you need to focus on the marriage -don't let too many sexless years drive you apart. but at the beginning of the race, is the utter importance of family. You must allow and enjoy the transformation from two to three or four first.
You may have heard from sources that you need to focus on marriage first, then children. I think that's a bunch of bullcrap. Your 1 year old needs to be fed. Your 4 year old needs advice on how to make friends at school. These little children are always number one. You and your spouse need to understand this first and be good parents first. I have handled a zillion divorces and custody cases, and i will tell you from experience - NEVER have I seen two people who care about their family split up. Sure, they may say they care about the family (everyone does), but in the end, it's the selfish one that ruins it. Not that this is a blame game. but SOMEONE had to be at fault, right? Get on the same page, and never let go.
If you don't like routines, don't get married, and don't have children. You will fail. Blame it on the second law of Thermodynamics, Entropy, aka "Law of Disorder". Basically, it says this: if you are left to your own devices, you will end up in disorder. That's why even though the maids came this morning, my house will be a pigsty when I get home this evening. And why some of these sentences make no sense. And why most marriages fail.
You MUST love them routines. Every morning, for as long as I remember, my morning-person husband brings me a fresh cup of coffee while I am still in bed with my babies. Every morning without fail. Even after the epic, "I can do without the 2 of us, but not without the 4 of us!" fight above, he still dutifully, begrudgingly-yes, lovingly-no threw boiling coffee at my face in the morning. Just kidding.
Every day, around noontime, we text each other to "check-in" on the kids, the weather, what's for dinner.
I used to say my last name was one letter from "change" because I couldn't stand to be boring. But I also used to listen to New Kids on the Block.
Nowadays, I loved coming home to my family. I love the stability and the unchanging DNA's of our children. They will forever call me "mama". Scott and I will forever be the parents of these kids.
What do we do to spice it up??? Lots of stuff! But I won't use our life as fodder. Be creative. Be mature.
Children excel from routines. Right after school, there is piano on Tuesdays, choir on Wednesdays, Art on Thursdays, and homework every night. Mama fixes dinner every night. There is bath after dinner every night. It is how they come to trust you.
If you don't love your routines, your relationship WILL fall into the great unwashed "entropy" of life. It isn't just 1 of 2 marriages!!! it's like 75% of marriages fail. I know.
Continue to fight marriage entropy. LOVE your routines. It's very simple.
3. Cherish your status as "eternal lovers, more than friends". I stole this one from my first post. Ha! It's still true. I cannot count how many clients have uttered this line to me, "We love each other, but we are not in love."
I used to empathize with this statement, but now I think it stinks like shit. How friggin' cliche can you be? If you are going to end your marriage, have it go down in flames, not an uncreative oneliner.
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. He likes to kiss me and i like to hug him. And we both love hugging our girls!!!!
Whatever it is, find it. Don't ever lose your status as "eternal lovers, more than friends".
4. Don't throw your spouse under the bus.
According to Wikipedia, "To throw (someone) under the bus is an idiomatic phrase in American English meaning to sacrifice a friend or ally for selfish reasons. It is typically used to describe a self-defensive disavowal and severance of a previously-friendly relationship when the relation becomes controversial or unpopular."
People do this ALL the time, and I hate it!!!! I absolutely hate it when someone in my mom's group tells me, "My husband is a selfish asshole who I think is having a affair." Ok, you think? What about being a selfish asshole who talks about her husband behind his back?? These days, it is very common to bitch about your marriage. I know I have done it. And I feel like shit afterwards. It tears me apart as a person, wife and mom. You either stick with your family or you are against it. If you are badmouthing your husband, you are committing the ultimate crime of defecating on your marriage (I was going to say desecrating, but really, it's more like shitting on it than making it unholy).
And if you are fighting a custody battle, it is case-suicide to badmouth your co-parent. Does Hitler marry Mother Theresa? NO!!!! Do NOT throw your spouse under the bus. There is a correct way to handle this, and talking trash is NOT it. GO to couples counseling. Write in your journal. Go to Zumba. Do not talk trash.
5. FIGHT FOR YOUR MARRIAGE!!!!
Fight for your marriage like gay people!!! FIGHT FIGHT FIGHT.
And never give up.
Friday, February 20, 2015
ALIMONY FOR LIFE!!!!
Today, I am going to talk about the mythical "10-year rule" in California as it pertains to marriages and divorce. I have seen and heard a lot of crap as to this, and it's my turn to step up and dispel confusion.
So what does it mean for people who have been married for 9.5 years? Should you race to a divorce lawyer's office? What about 11 years? Are you screwed and paying alimony for life?
Relax. There is no 10-year rule as it applies to alimony for life, people!!! It's all hoopla over practically nothing.
The ONLY thing the Family Code says is that marriages over 10 years is one of "long duration". And in such cases, the court retains jurisdiction to modify support indefinitely. SO....the only thing lasting forever is the Court's power to have a say in this matter. It does NOT automatically mean that the payor has to pay support forever.
10 years of marriage is also important for Social Security derivative benefits. If you have been married for 10 years, you may be able to collect benefits from your spouse if 1) you aren't remarried; 2) your earned income benefits are less; and 3) your ex-spouse is over age 62.
Generally, if you are the payor of spousal support in a long-term marriage, here are some tips for you:
1. Always bargain for a termination of jurisdiction date. I am a fan of bargaining. It is easier to get what you want from your ex-spouse than a Judge. Certainly a lot cheaper. If you have been married for 10-12 years, a safe bargain would be half the length of the marriage. Specify the termination of jurisdiction in the agreement and insert other precise language warning about the termination of jurisdiction. Courts are extremely busy, and it is not their desire to retain jurisdiction over anything other than they have to. If you have a very specific clause, it will prevent future litigation.
2. If you can't catch the fly with honey or vinegar, try using Family Code 4320, subsection (l), which states: (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a "reasonable period of time" for purposes of this section generally shall be one-half the length of the marriage. You will want to tell the Court that it is the GOAL that your spouse become self-supporting within a REASONABLE period. You may also want to mention this case, Marriage of Prietsch and Calhoun, (1987) 190 Cal.App. 3d 645, and quote that Court in saying, "Your honor, in this case, the Court held "the duration of support should be limited so that both parties, where possible, can develop their own lives, free from obligations to each other.
3. Request a Gavron warning from the Judge. The Judge will put the payee on NOTICE that she is expected to become self-supporting. This is very important! She MUST be put on notice.
4. Immediately after receiving the Gavron warning, request a Richmond order, setting a specific date jurisdiction of spousal support will terminate. A Richmond order gives the payee notice that on a date certain, spousal support will terminate, along with jurisdiction (meaning, the Court can no longer extend or award support after this date), UNLESS the payee files a motion prior to that date to extend, and can meet her burden of proof for showing need. This is a very important request, and unless the payee is elderly and/or has mental/physical problems, should be granted. I once represented the husband in a divorce. The marriage lasted 37 years, and the woman had a brain tumor. The Court retained jurisdiction indefinitely in that case.
IF you are the recipient of spousal support, this isn't good news for you. Don't expect to hold out 10 years in a rotten marriage with great hopes of lifetime alimony.
You can, however, bargain for it BEFORE the marriage, with a prenup.