LA Divorce Blog

Ruminations on coming together and breaking up in Southern California

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To Appear or Not To Appear, That Is the Question: Trial Courts Cannot Grant Excessive Relief

When someone goes to court asking for something, due process considerations are in place to help one decide whether he/she should even object.  If you’re okay with it, why waste time fighting it?  Courts should not penalize “defaulting” unless it actually results in damage to the requesting party.

In In re Marriage of Siegel, A140559 (August 21, 2015), the parties were married in 1957, divorced in 1987, and Wife filed a motion in 2013 concerning a life insurance trust Husband was supposed to set up to cover spousal support to Wife in case Husband died.  Husband agreed to what Wife was asking for in her motion and he filed court papers saying so. 

At the court hearing, Husband did not show up because he agreed to the requests.  The judge granted Wife’s requests, plus more.  Note was taken by the judge that Husband had failed to show up in court, so there was no one there to object when the judge decided to let Wife ask for more than what she included in her papers.  The judge, though perhaps with good-intentions, ordered Husband to set up a separate insurance trust in case there were delays in payments to Wife while Husband’s estate was being sorted out.  A nice idea, but not one Husband knew could be ordered.  He took advantage of an efficiency built into the court system that lets matters proceed with a minimum of time and hassle when someone does not oppose what’s being requested.  If Husband had known what was really at stake, he probably would have shown up.

The appellate court agreed with him.  Of importance was the fact that Wife requested specific relief, not more broad relief related to property rights, or even to enforce the judgment to its fullest extent, which might have put Husband on notice that almost anything within reason could be ordered.   As such, he stipulated to the actual relief being requested and elected not to appear and defend himself. Anything more was beyond the authority of the court.

You can read a more in-depth analysis of this important case by reading my article that appeared in the most recent Los Angeles County Bar Association E-News publication.  The link appears below.               

http://www.lacba.org/connect/sections/family-law/family-law/family-law-newsletters/family-law-newsletter-dec-2015#4e

[ladivorceblog]

Domestic Violence Prevention Laws Trump the Right of Free Speech

Most will not be surprised to learn that the right of free speech is not absolute. After all, libel is not freely allowed and we all know that you cannot shout, "Fire!" in a crowded theater, at least not without paying the price. But those remedies normally come after the speech has been uttered.

"Prior restraint" orders are normally considered unconstitutional because they prevent free speech. In our society, we hold the exchange of ideas to be paramount, even those ideas we find offensive or repugnant. Therefore, any order or regulation that prohibits speech, rather than remedying the ill effects of such speech after the fact, is constitutionally suspect. Usually, such orders or regulations are only constitutional when a competing important interest is in the balance, such as the right to a fair trial in "gag order" cases.

A recent California Court of Appeals case found that the right of free speech must come second to the right of a victim of domestic violence to protection from abuse. In Evilsizor v. Sweeney, the court held that downloaded text messages and diary entries of wife must not be disseminated by husband to third parties. This is because husband was found to have disturbed wife's peace of mind in relaying portions of the downloaded information to wife's friends and family members. These actions on the part of husband destroyed wife's mental or emotional calm, said the court, and therefore constituted "abuse" and, as such, was no longer protected speech.

Think about what other actions might destroy the mental or emotional calm, or otherwise disturb the peace of another. For further thoughts and analysis, check out my recent Los Angeles County Bar Association article on this case at www.lacba.org/showpage.cfm?pageid=16604#cawelti

[ladivorceblog]

When Someone’s on a Mission, How do you Survive?

I have several cases now, and tons historically, where one of the parties is “on a mission”.  The missions vary, from the woman (and nearly as often, the man) scorned, to disagreements involving coparenting.  Sometimes these missions are worthy, such as when there is a history of breaches of fiduciary duty, but just as often they are incredible wastes of time, money and energy.

Generally, at least one side has unrealistic expectations, or else has not been adequately advised of expected outcomes.  Recently, I was sitting as the daily family law mediator in Pasadena, and a case came before me where one of the attorneys admitted upfront that he was just there to do his client’s bidding.  On the one hand, I was grateful that the attorney was honest and I could assess the situation quickly and effectively as a result.  On the other hand, I ended up being the person that explained the “facts of life” to his client, when it clearly should have been the attorney doing that.  She thanked me; someone had finally told her the truth. 

A good family law attorney can help you make smart decisions about your case, keeping money in your pocket.  After all, for most people, your divorce should be an ongoing cost-benefit analysis.  A bad attorney can at best keep you financially and “litigationally” (I just invented a word) alive, and at worst can cost you tens or hundreds of thousands of dollars, bleeding your future dry.  Make sure to retain an attorney that shares your goals.  Just make sure those goals are worth attaining.  If in doubt, drop me a line.             

[ladivorceblog]

What Do You Gain and Lose When You “Do It Yourself”?

During a recent conversation I had with a law enforcement officer, she told me about her divorce.  She and her husband went to a paralegal to assist with the paperwork and essentially “did it themselves”.  The process was fairly amicable, and she mentioned her ex is now a much better dad to their children because he has much more responsibility now that he has them 50% of the time.  He “stepped up”.

She also mentioned that she gave up a lot of the property because she “just wanted it over with”.  Although this was not the case here, I often hear about one party giving up on property or support issues out of guilt, whether due to infidelity or lack of emotional availability because of work or other issues.  These issues come up in my cases, too, although I counsel my clients to first find out what you’re giving up, and only then do we discuss what to do about it.

It should be obvious that couples who go through the divorce process without the benefit of counsel to help them determine how California family law applies to their case do so at the peril of their financial futures.  Retaining an attorney should make things better, not worse, and doing so does not mean you and your spouse have to fight.  Just because you hire an attorney doesn’t mean you lose control of the process.  More on this in a future blog post. 

[ladivorceblog]

Sometimes Victims Get Arrested

As shocking as it may seem, sometimes the victim of domestic violence is the one that gets arrested.

Recently, a DV incident occurred involving a young couple with small children.  When Wife was trying to escape Husband’s attempts to physically restrain her, she elbowed him from behind and a short time later she kneed him in the stomach.  She then ran for the phone and called 911.

When the police arrived a few minutes later, Husband admitted nothing and portrayed Wife as the abuser.  Wife, on the other hand, gave a full account of what happened.  Because the common elements of the two stories were that Wife struck Husband, she was arrested and taken to jail.  The law enforcement officers, having a fairly good idea of what probably happened, tried to get Husband to drop the charges, but he was insistent and demanded that they arrest her.

In the post-O.J. Simpson era, law enforcement and even judges are reluctant to rely on their own assessment of the situation and often “err on the side of caution”.  In the above case, the likely victim of domestic violence went to jail and won’t be seeing her children for at least three weeks.      

Moral of the story: If you are the victim of domestic violence and the police come, do not admit to anything that could be considered assault, even if it was in self-defense.  Save the “complete” story for when you get to your attorney’s office to prepare your restraining order paperwork.

[ladivorceblog]

Child Custody Battles Can Take A Toll

The New York Times recently reported a story about a young couple divorcing.  Custody of their young son was at issue, and Husband was having his first unsupervised visit after a few weeks of monitored visits due to issues of domestic violence.  Tragically, Husband, in a confused and distraught act, threw himself and the parties' son off of a highrise building, killing both.

Obviously, these kinds of extreme cases are rare in family law.  Nevertheless, it's one too many.  Mental anguish can alter our reality and push us to do things we wouldn't normally consider.  Failure to seek out a counselor or therapist puts pressure on the suffering party to handle it all on their own, and that rarely helps. 

We certainly cannot know precisely what motivated Mr. Kanarikov.  Revenge, sadness, control, perhaps some or all of these.  As I frequently tell my client, check in with yourself.  Talk to a mental health professional or spiritual resource to get some perspective and get things off your chest.  These helping professionals are trained to both listen and advise.  In that way, they can be better than simply talking it out with your friends, who often blindly support you.  We often need both kinds of support when times are really tough.  During times of extraordinary stress, we mustn't forget to take care of ourselves.     

[ladivorceblog]

And Suddenly the Same Sex Couples are Getting On It...

In the last six months, I've seen growth in my business in two key areas.  The first is a broad focus on postmarital agreements.  More about those in an upcoming blog post.

The second area of growth is premarital agreements (also known as prenuptial agreements or prenups) for same sex couples contemplating marriage.  After decades of alternative planning (or, more commonly, no planning at all), finally same sex couples have the same options as others: Real prenups! 

In my mind, it's not that different from other prenups, although clear reference to new statutory and case law should be included to make sure all parties understand exactly what they're getting into. 

Some practitioners may not immediately appreciate the psychosocial dynamics of client relationships within this new client market.  However, very often the common themes of in spouse / out spouse and power wielding are present, and we have to be aware of potential biases to help our clients get the best results possible from attorney representation.

I, for one, am looking forward to helping all of my new clients to find peace of mind in their blossoming new relationships. 

[ladivorceblog]

So I was thinking about this idea of divorce parties...

USA Today recently had an article about the hot new concept of divorce parties. A direct analog to the bachelor/ette party, the divorce party is intended to represent a “rebirth” after the unfortunate right of passage that is marital dissolution.

My SoCal friends will look to Las Vegas as the natural site for such a shindig. Just like LA, you can find anything in Vegas, only bigger, badder, and almost certainly more expensive. 

If you want to partake in this new ritual, there are lots of ways to spend/save your money.  From the prestige of the venue to the quality of the refreshments and entertainment, there are lots of ways to go.  Think about what's important to you, just like when you got married.  Are you a homebody into craft beer and fine scotch?  Throw a house party!  Looking to send a message that you're moving on, and up?  Hold court at the local upscale hotel bar.  Money to burn?  Your well-heeled caterer/travel agent will know what to do.

A word of caution: Be careful what you post online!  Plenty have found themselves in trouble for posted party pix only to discover the ex using them against you in court.  Enjoy yourself but have a designated "social media" driver.