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Friday, February 27, 2015

Is it against the law to cheat?


On Valentine's Day this year, I clicked on a private investigator's ad for discounted services.   I hired him and discovered Scott's torrid love affair on Ashley Madison and I've had to take a leave from blogging to deal with the aftermath.

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I think New Hampshire recently repealed this law, so it is probably illegal only in 20 states now.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

Marriage Advice from a Divorce Lawyer

More Marriage Advice from a Divorce Lawyer

My disclaimers:

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.

2.  Love your Routines!!! 

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.


Fight for your marriage like gay people!!!  FIGHT FIGHT FIGHT.  

And never give up.


Friday, February 20, 2015

What is the 10-year rule for divorce???



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.