Articles Posted in Mediation

California’s community property system is meant to simplify property division issues in divorce cases by making it clear that all property gained through the efforts of either or both spouses during the marriage is to be split evenly between them. The reality, however, is that complicated issues still arise, including those related to property and income taxes. The state’s Fourth District Court of Appeals recently considered such a case.

accounting-calculator-tax-return-90376-mHusband and Wife married in 1997 and had two daughters before separating nine years later. While their divorce case was pending, the couple entered into a “post nuptial agreement,” wherein they resolved various issues, including their rights to the family home in Southern California. They agreed to list the home for sale and to treat the proceeds as community property, except that Husband was entitled to an additional $2.5 million for separate property funds he had contributed to the residence.

The couple eventually sold the home in 2009 for $10 million. They used nearly $1.4 million from the proceeds to pay state and federal taxes on their estimated capital gains from the transaction. They evenly divided the remaining $3.5 million after covering the additional $2.5 million owed to Husband, as well as interest, fees, commissions, and closing costs. Husband and Wife filed separate 2009 tax returns, with each reporting $5 million in income from the sale of the family home. Husband was required to pay an additional $65,000 in estimated capital gains taxes, while Wife estimated a $475,000 refund because she included the $2.5 million separate property payment as part of her nontaxable basis for the property.

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Gwyneth Paltrow’s announcement on her website Goop last year that she and husband Chris Martin were divorcing presented the views of Dr. Habib Sadeghi & Dr. Sherry Sami, apparently experts on what it means to divorce. Sadeghi and Sami use evolutionary biology and the structure of the human skeleton (“Life is a spiritual exercise in evolving from an exoskeleton for support and survival to an endoskeleton”) in order to explain why a divorce might happen. Good grief. One might think that a simple press release announcing the divorce would suffice, but apparently the star feels the need to use her divorce as an occasion to enlighten us all. Regardless, the impetus and intent behind so called “conscious uncoupling” is a good one.

It is about putting the children first by minimizing conflict and supporting the child’s relationship with the other parent. A thoughtful process can help couples from regressing into immature and harmful behavior. They can be helped to understand why they chose to end the marriage and how the process can be managed without unnecessary harm to any children and without catastrophic financial consequences. Disputes about custody, visitation, and spousal support can be addressed with much less anger if the couple elects to approach the end of their marriage “consciously,” instead of trying to hurt the other person.

The term conscious uncoupling derives from psychologist Katherine Thomas Woodward and the goal is to to negotiate the end of a romantic relationship with goodwill and respect; in a way that enriches rather than wrecks lives. Katherine is a romantic and a realist; a fan of marriage and love who endeavors to explore the possibility that couples seeking her guidance in ending their relationship might actually stay together. But also, she argues that the ideal of lifelong monogamy is antiquated: researching the ‘happy-ever-after myth’, she discovered that it emerged 400 years ago and ‘had a lot to do with the life conditions of the time – many people died before the age of 40’. The Goop article also references the academic journal Evolutionary Anthropology, stating that we are living too long for marriage to one person to be a sensible choice. We are out of evolutionary synch, and shouldn’t feel wretched that we want out, it’s normal.

A long and happy marriage is a truly beautiful thing. But most of us are unable to achieve it and need processes to end a relationship with our personal and economic dignity intact.

Helping couples divorce without destroying their families is what my firm does – and why it is gratifying to see high-profile couple showing others how to find creative, forward-thinking solutions and eliminating the risk of having a judge make decisions for their family. If you would like to discuss creative resolutions that work for your family, contact Lorna Jaynes,  to get started!

If you’ve gone to one of those retirement planning sessions lately, you may already know that saving for life after work is not only incredibly important but also can be very complicated. These matters often become even more difficult in divorce cases, where spouses or a court have to decide how to divide savings that the parties can’t actually access yet. California’s Second District Court of Appeals recently considered such a case.

tightened-100-dollar-roll-1377964-mHusband and Wife separated in April 1998 after nearly 11 years of marriage. Husband had been working for the Los Angeles Fire Department for 18 years at the time and was eligible to retire in 2000. The couple entered into a marital settlement agreement in December 2000. The agreement divided the couple’s assets between the spouses and provided that all “income, earnings, employment benefits, or other property” acquired by one spouse after the separation date would be considered the spouse’s separate property. It also stated that Wife was entitled to half of Husband’s pension/retirement plan, due after he reached 30 years of service, if he decided to keep working past his earliest retirement date.

In 2010, Husband began participating in a new LAFD retirement program, the DROP program, which provides firefighters a lump sum payment upon their retirement, along with any monthly retirement allowance to which they are entitled under another plan. As a condition to the program, Husband agreed that his years of service and accrual amounts would freeze upon the date of his entry in the program. Money would be credited to his DROP account during the five-year period, and he would be able to access that money directly upon retirement.

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Child support payments are intended to help cover kids’ basic costs, including money for food, clothing, and shelter. Sometimes, other costs come up. As California’s Fourth District Court of Appeals recently explained, any healthcare-related costs that arise along the way are usually considered additional child support costs to be split evenly between divorced parents.

tightened-100-dollar-roll-1377964-mHusband and Wife separated in 2007. A court awarded Husband primary custody of the couple’s daughter in 2012 and ordered Wife to pay him $540 in monthly child support. The court also ordered Husband to pay Wife $1,800 in monthly spousal support. In reaching the decision, the court found that Wife was making about $2,000 per month, while Husband was bringing in roughly five times that amount.

Father went back to the court about five months later, informing it that a juvenile court had ordered the couple’s daughter to spend four months in an inpatient substance abuse program in juvenile hall or be placed in an inpatient rehabilitation facility. Father asked that Wife be ordered to pay half of the $8,000 per month it was going to cost to send Daughter to the out-of-state facility. He said Wife had insisted on sending Daughter to an inpatient facility and had agreed to foot half of the bill. Husband added that his savings were rapidly depleting and that he could no longer afford to pay spousal support, since he was paying for Daughter’s care.

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Many divorcing couples who wish to resolve the issues in their divorce with their personal and economic dignity intact, preserve or create a positive co-parenting relationship for the benefit of their children, save money and preserve assets, or for a host of other good reasons, choose mediation or Collaborative Divorce rather than litigation and traditional attorneys. Such folks tend to see divorce as a problem to be solved rather than a battle to be won.

But whatever process is used, divorce in California requires that a Petition for Dissolution and Summons be filed by one spouse and served on the other spouse in order to commence the dissolution process and to establish the court’s jurisdiction to terminate the marriage.

The Summons, in particular, can be problematic. The first page states, “You are being sued” and “you have 30 days to respond” and the second page sets forth numerous rules called automatic restraining orders. It is not uncommon for spouses who are trying to work together in a civil and respectful process to be shocked and somewhat hurt when faced with a document telling them they are being sued by their spouse.

The restraining orders prohibit either spouse from doing any of the following:

  1. Remove the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court;
  2. Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their minor child or children;
  3. Transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life; and
  4. Creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.

Parties must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective.

The principles and policies underlying the restraining orders generally make sense and are rules that should be followed by divorcing spouses for all of the right reasons. For example, assets should not be hidden, new debt should not be created, and insurance should stay intact until there has been adequate disclosure and agreements made.

Fortunately, divorcing couples using mediation or Collaborative divorce processes need never step foot inside the courtroom, but must comply with the requisite judicial paperwork, some more useful than others, to obtain a divorce. Issues of property division, child custody and child support, and spousal support can all be resolved by gathering all of the financial disclosure information and brainstorming and creating optimal outcomes for the entire family.

But there should be a way for those folks who are willing and able to resolve the issues with respect and civility outside of the courts, to obtain a divorce without the harsh and decidedly uncivil service of a summons. And furthermore, those folks who can solve their problems without the aid of the courts should have substantially reduced filing fees and not have to pay $435 for filing a Petition and another $435 for filing a Response.

However, since the state of California is unlikely to see the wisdom of this anytime in the near future, the best that divorcing couples can do is work with professionals who will explain the process to them together so that both can hear and understand at the same time and have their questions answered. It is very helpful in reducing the fear and anxiety that normally arises when one is served with a document that says, “You Are Being Sued.”

With offices throughout the San Francisco Bay Area, Collaborative divorce attorney and mediator Lorna Jaynes provides innovative legal tools to resolve many family law disputes without the bitterness, acrimony and out of control costs engendered by the adversarial process.




In a new commercial in India for Tanishq jewellery, a woman preparing for her wedding puts on a Tanishq necklace. At the ceremony, her daughter calls her asking if she can participate in the pheras, an Indian ceremony where the couple walk around a fire seven times while saying their vows. The groom is moved by the girl and picks her up, filling his bride with emotion.

A non-Indian would likely miss this point, but it is clear in the ad that this is a second marriage for both bride and groom, and since historically in India, divorced or widowed women are outcasts, the ad is contrary to Indian tradition. The ad is apparently causing quite a stir in India with viewers talking about the cultural taboos and also about the bride’s relatively dark complexion, a turn away from the country’s mainstream obsession with light-skinned lead actresses.

The ad has sparked conversations on Twitter, with celebrities and politicians also weighing in. Parliament member and industrialist Naveen Jindal praised the bride’s darker skin tone and the non-traditional marriage. Apparently, the team that created the ad chose the actors to ensure the couple would look like one of respectable equals, because otherwise traditional-minded Indians might otherwise have assumed that the man was marrying the divorced or widowed woman out of pity.

Living and working in a town that is majority Asian, I have many divorcing Indian clients who invariably express their concerns that divorce is dishonorable and shameful in their culture. I feel sad for them because divorce is hard enough without this added burden. Most everyone feels sadness and a sense of failure at some level, among many other difficult emotions. These feelings should not be exacerbated by familial and social shaming and dishonor. Hopefully this ad will start a much needed conversation among Indians about the need to support each other in these difficult times, not shame each other and add to the pain.

Another way to minimize the financial and emotional pain of divorce is to resolve the issues outside of court through Collaborative divorce or mediation, private and voluntary processes that enable spouses to divorce privately and in accordance with their own values.

With offices throughout the Bay Area, California divorce lawyer Lorna Jaynes provides options and processes to resolve family law disputes and divorce without the bitterness and hostility engendered by the adversarial process.

baby-clothes-1406945-m.jpgChild custody and support are often common issues in California divorce proceedings, both for children born during the marriage, as well as those born prior to one or both spouses prior to their marriage.  In In re Marriage of Abbate, the Fourth District Court of Appeals explains the circumstances where a divorcing spouse may be required to pay support even if he or she isn’t the natural parent.

Ms. Camarata had a three-year old son when she married Mr. Abbate in 2005 and the parental rights of the biological father of the boy were terminated one year later. Abbate agreed to assume the role as the boy’s father, and the couple filed a petition for Abbate to become the child’s adoptive father the same year, but they divorced before the petition was approved.

In 2007, Camarata took her son to a hospital for treatment, asserting that that he’d been sexually molested. The boy was sent for therapy, which the court said continued until at least June 2010. Believing it was Abbate who had molested her son, Camarata left the marriage and filed a petition for divorce. She named Abbate as the child’s adoptive parent and asked for child support. A court granted a dissolution of the marriage in 2010, but denied the request for child support.

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If you’ve previously read this blog, you may already know that we generally advise divorcing spouses to avoid the court system as much as possible and to strongly consider alternatives to traditional divorce litigation, including mediation and collaborative divorce. A recent case out of California’s Fourth District Court of Appeals is a good reminder of one of the major drawbacks of the traditional system:  the significant possibility for unreasonable delay and improper judgments.

courthouse-1330873-mIn this particular case, the spouses’ divorce was assigned to a court commissioner. Since the judiciary is flooded with work, the powers that be have devised a system in which non-judge commissioners act as “temporary judges” to hold hearings and render decisions in divorce and other matters. However, this particular commissioner was not qualified to render a decision.

Husband and Wife divorced in 2004 and entered into a marital settlement agreement in which the couple agreed to split child care and health care expenses for their children, and Husband pledged to pay child support on a sliding scale that eventually increased to more than $800 per month. In March 2011, the San Diego Department of Child Support Services levied money from Husband’s bank account for unpaid support and filed two motions against him:  one seeking to modify the payments and require Husband to look for a job and the other asking a court to determine the amount that he owed Wife in past due support payments.

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Sometimes courts get it wrong. If you’re unhappy with the outcome of a divorce case, you have the legal right to file an appeal. As California’s First District Court of Appeals recently explained in In re Marriage of Shimpi and Sonawane, however, a party filing an appeal bears the burden of providing a detailed record of the proceedings in order to show where the lower court made an error.

imperfection-961100-m.jpgHusband and Wife were married in January 2003, and Wife gave birth to their only child 11 months later. Wife filed for divorce in October 2008. In the litigation that followed, the spouses disputed the date on which they separated. Wife claimed that the separation date was Aug. 1, 2008, while Husband maintained that the separation actually happened in December 2006. Husband submitted a number of e-mail exchanges between the two spouses and family members, which the First District later said “reflect the demise of the parties’ relationship,” in support of his claim.

After a January 2013 hearing, however, a trial court ordered that the marriage be dissolved and set the separation date at Aug. 1, 2008, per Wife’s request. It also ordered Husband to pay nearly $550 in temporary spousal support and nearly $1,100 in child support. The spouses later agreed to a settlement during a mandatory conference.

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wedding-rings---african-american-1384053-m.jpgSpouses considering a divorce often have second thoughts, and many choose to give the marriage another chance before calling it quits. For those who try to reconcile after a petition for divorce has been filed in court, it’s important to keep in mind how this may affect the case from a legal perspective. In In re Marriage of Honarkar, the Fourth District Court of Appeals recently looked at one of these issues: the application of the five-year dismissal rule.

Husband filed a petition for divorce in September 2000, alleging that the couple had separated two months earlier. They’d been married for 16 years at the time and had two children. Wife responded to the petition by arguing that the couple had, in fact, not separated. Nothing further was filed and no action taken until Wife filed an amended response nearly six years later. This time, she said the parties had separated in December 2005. She also filed a motion asking the court to rule on custody of the children and support.

After Husband failed to respond to Wife’s motion and didn’t appear at the scheduled hearing, the court entered a November 2006 order granting the couple joint custody of their minor child and requiring Husband to pay Wife more than $24,000 per month in child and spousal support.

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