Articles Posted in Mediation

Celebrities: they’re just like us, well sort of anyway. Among other things, that means that they often encounter the same types of issues as regular folks in divorce cases.

microphone-1382165-m.jpgCalifornia is a community property state, in which property acquired by a spouse during the marriage, except for gifts or inheritance, is shared equally between the spouses in the event of divorce. That might seem like a pretty clear-cut rule, but divorcing spouses often resort to the courts to decide disputes over how certain property should be characterized or divided. The California Supreme Court recently took on the issue as it applies to a life insurance policy taken out by one spouse – legendary singer Frankie Valli – for the benefits of the other.

Husband and Wife separated in September 2004 after 20 years of marriage. More than a year before, Husband used money from a joint bank account to purchase a $3.75 million life insurance policy. He named Wife as the sole owner and beneficiary of the policy and paid premiums with funds from the joint bank account.

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Trust is the cornerstone of any marriage, and the lack of it permeates a great many divorces. In In re Marriage of Vazquez, California’s Fourth District Court of Appeal explains that lying about income and other information in a divorce proceeding can be very costly.

the-truth-shall-make-you-free-1437041-m.jpgHusband and Wife divorced in 2008 and the court ordered Husband to pay Wife an unidentified amount of monthly child support. Wife returned to court four years later, however, arguing that Husband committed perjury by purposely misstating his monthly income.

During the 2008 proceedings, Husband asserted that he earned about $9,550 a month. Three years later, however, Wife obtained his 2008 income tax return while seeking an order to force him to contribute to their child’s orthodontic expenses. The trial court granted Wife’s motion to compel Husband to respond to a demand for inspection of documents relating to his finances, including the tax returns, which showed that Husband made nearly $21,000 a month in income during the time of the divorce. The trial court set aside its previous child support order and entered a new order requiring Husband to pay more in current child support as well as $25,000 in sanctions and more than $36,000 in attorney fees.

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San Ramon family law attorney, Mary Nolan, was recently sentenced to two years in federal prison for unlawful interception of telephone communications and tax evasion. Ms. Nolan illegally intercepted telephone conversations by accessing a listening device that now-imprisoned private investigator Christopher Butler had installed in a victim’s vehicle. Butler hired women to approach men at bars, drink with them and set them up for drunken-driving arrests that their wives could use against them in divorce cases. Two of the men whose wives were represented by Nolan have sued her, Butler and others for damages. Nolan also hid $1.8 million in income from the Internal Revenue Service to avoid paying $400,000 in taxes between 2005 and 2009, and admitted to obstructing justice by submitting false contracts to the IRS during an audit.

Mary Nolan was my opposing counsel, my client’s wife’s attorney, in my first divorce litigation. At the time I had no idea about her ethical challenges but I did know that she was not very nice. (That is very polite understatement.) So not surprisingly, given her apparent challenges with ethical behavior, the matter was a nightmare for my client and me. Rather than trying to help the clients work out reasonable solutions for a negotiated settlement, she engaged in abusive discovery and trumped up domestic violence allegations in order to reduce my client’s time with his children and more child support for her client. Essentially, she did everything she could to destroy, rather than helping to restructure the family. After several months of this nightmare I told my client that if he was going to survive with this ogre on the other side he needed to fire me and retain a seasoned and aggressive litigator. And I told myself that if I was going to survive in this business that I needed to find another way to practice law.

And that is exactly what I did. I found Collaborative law and mediation and learned that there is another way, a far superior way, and never looked back. Now I offer divorcing couples alternatives to the court system, Collaborative Law and Mediation, to help them create positive, mutual agreements and divorce without the emotional and financial costs of litigation.

It is nowhere near as lucrative as Ms. Nolan’s nefarious law practice, but it feels good to help people solve their problems, rather than helping to destroy their families.

In most divorce cases, the terms of any spousal or child support obligation are set forth in either a court order or an agreement between the parties. Often, that includes a stipulation that spousal support payments will stop when the person receiving them remarries or otherwise “cohabitates” with another person. In In re Marriage of Woillard, California’s Second District Court of Appeals makes clear that the term “cohabitation” is interpreted fairly broadly.

holding-hands-207150-m.jpgHusband and Wife divorced in 1990 after what the Court called a “lengthy” marriage. Under the terms of the divorce judgment, Husband was required to pay wife $4,000 a month in spousal support until Husband or Wife died or until she was remarried or began cohabitating with an “unrelated male.” In 2011, Husband filed an action seeking to terminate the spousal support payment, arguing that Wife had been cohabitating with her boyfriend, Keith, for the last six years. A trial court agreed, concluding that the spousal support agreement expired in 2005 and ordering Wife to pay Husband back $256,000 in support payments that she shouldn’t have received.

The Court noted that Wife and Keith were engaged in 2004, vacationed and attended family events together and “shared significant resources” through the course of their relationship, which began three years earlier. Wife loaned Keith $30,000 – an amount he later paid back – and he often stayed at her home, where he kept clothes and other personal belongings and received his mail. The couple kept a joint checking account related to expenses and rental income for two condominiums that Wife owned. They also jointly purchased a boat in 2005, securing a loan for it by using Wife’s home as collateral. Keith slept on the boat when he didn’t stay at Wife’s house.

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Bonuses are a common and often significant form of compensation for a number of people who live and work in California, particularly those in certain professional fields. In In re Marriage of Finby, the state’s Fourth District Court of Appeals explains that all or some of the money is likely to be deemed community property to be divided among spouses in the event of divorce.

untitled-1237498-m.jpgHusband and Wife married in 1985 and separated 15 years later in February 2010. Wife worked as a financial advisor during the course of the marriage and was employed by UBS before signing a contract with Wachovia in 2009. The company was later purchased by Wells Fargo.

Wife’s contract with Wells Fargo provided for a variety of bonuses, including a “transitional bonus” of more than $2.8 million. The bonus was premised on the fact that she had developed a list of clients – referred to as her “book of business” – whose investments were worth more than $192 million at the time and whose accounts were expected to go with her to the new job. Under the terms of the contract, the bonus was conditioned on Wife’s staying at Wells Fargo for more than 9 years and maintaining a gross production level of over $1.12 million, as determined on an annual basis. Wife opted to obtain the complete amount of the bonus immediately, however, and signed a loan agreement with her employer under which it agreed to forgive $27,700 each month over the course of 112 months. If Wife stopped working at any time during the period, the company had the right to demand the entire amount remaining on the bonus/loan.

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Even for happily married and intact families, the holidays can be fraught with conflict and compromise. But for divorced or separated parents and for blended families – the potential for conflict is much greater. Negotiating co-parenting agreements and sharing time with kids is rarely easy, but this is a time of year when it can be most difficult to let go because of the tradition and ritual around the holidays.

But for the sake of the kids you have to share it. And here are tips to
 help your holiday season be filled with merriment – not resentment.

Make a plan

 If you don’t already have a holiday schedule, and do it now, the earlier the better. You don’t want to create anxiety for the kids about what they’re going to be doing at Christmas. Sit down with your ex and a calendar to determine how you will share time. The plan can be fluid and can change, but a basic structure reduces miscommunication and sets expectations. Ideally, a vacation and holiday schedule will be part of a marital settlement agreement in a divorce. Think about the even year – odd year compromise. One parent gets first choice in even years and the other in odd years or simply switch the holiday time on an alternating year basis. For example, in even years one parent may have the children for Christmas Eve and morning, then take them to the other parent at noon. In odd years, the schedule would be reversed. It might also be worthwhile to review the kids Christmas presents together to avoid duplicate gifts and to ensure that similar amounts will be spent. For co-parents who live far away from each other it’s not so easy. If you have to be without your kids for the entire holiday make sure you can call and talk to them.

Focus on the kids

. As a mediator who helps couples resolve parenting and custody issues, I sometimes have a photo of the kids on the table during a session and ask: “What do you think they would really enjoy? What would work for them?”

That can be as simple as letting the kids call mom on Christmas Eve or attend a special holiday event with Dad. For mom Penny Barton, the answer was more extreme. When she and her husband split up, their daughters, then aged 15 and 10, stayed behind in San Jose with their dad while Barton took a job in Los Angeles. Penny did homework with them every night over the phone and flew back to San Jose for six to eight days every month. 

Because Christmas was so important to the girls the parents agreed that for two weeks every Christmas, Penny would camp out in her ex-husband’s basement – once with her boyfriend in tow. “I sort of took over and did Christmas the same way we did when we were married,” said Barton. It wasn’t easy being a guest in her former home, and her need to impose her way of doing things on her ex’s household created tension. “But Christmas morning was child-centered, and we both enjoyed their joy so much, that how we felt about each other didn’t much matter,” says Barton. “We didn’t want them to experience the tension kids who are pulled between two households feel.”



And although children’s preferences should always be an important consideration, it is also important not to give them too much input into co-parenting decisions. The burden of choice is problematic for kids because they know their choices will make one of the parents unhappy. And for most children, that is not a good place to be. Kids will often tell each parent whatever they believe he or she wants to hear. Kids need a predictable schedule that both parents seem happy with, even if that means putting on a brave face. Practice emotional restraint, maturity and leadership. The most important thing is to continue to be loving parents, and to keep the conflict away from the kids.



Create new traditions. 

Your holiday celebrations may change after divorce, but they can still be wonderful. Think together with your kids about how you want to celebrate the holidays. And though it will be painful, be prepared to let go of some of the activities you used to do. Don’t make the kids feel bad that they missed out on something when they come home.

 And no matter how sad or angry you are, never badmouth your ex in front of the kids. Save that for a good friend, therapist or support group. 



Stay busy. 

If you’re going to be on your own for the holidays, be prepared and plan for it. Maybe it would help to celebrate with other family and friends, or perhaps a quiet evening at home with a special meal. Or venture out and volunteer to help others, go on a trip or do something else special for yourself.

Stay hopeful. 

It is the best gift you can give yourself and your loved ones. Make the commitment to take the time that’s needed to heal and remember that healing is a process, so give yourself the time and space to find hope and healing.

And if you cannot agree on the holiday plan, consider a mediator. A mediator is like a referee or better yet, your kindergarden teacher: someone who will help you share and play nicely in the sandbox, or in this case the mediator’s office.

As a mediator, it is important to practice what we preach and walk the talk. So, I invite my husband’s ex-wife and her husband over for Christmas so that their kids can be with both of their parents. But sadly, this is not a viable solution with my own ex-husband, so we have to share the kids separately. Every family is different but with an open mind and an open heart and a willingness to try to understand each other, parents can create positive solutions.

For more information, visit us at www.lornajaynes.com

In California divorce cases, spouses often want to determine not only basic child support issues, but also how to cover future expenses related to their children’s higher education. In In re Marriage of Humphries, the Fourth District Court of Appeals addresses a dispute about college expenses.

graduation-cap-993663-m.jpgThe Humphries married in 1990 and had three children before separating 16 years later. Ms. Humphries obtained an emergency protective order against her husband under the Domestic Violence Protection Act in 2006. The couple later entered into an agreement in which Ms. Humphries agreed to drop the protective order and provide Mr. Humphries with child visitation rights. In turn, Mr. Humphries agreed that his wife and children would remain in the family’s residence and that he would pay various forms of support, as well as paying for the children’s private school education. Mr. Humphries further agreed for each child to “pay for four years of undergraduate education at a certified university of the child’s choice, at the rate of a school in the UC system in California” plus related expenses, provided that the child was a full-time student and maintained at least a 2.5 grade point average.

Ms. Humphries subsequently filed for divorce from her husband in 2008 and also sought an order requiring him to pay spousal and child support. The parties later entered a stipulated agreement providing that Mr. Humphries would “continue to support [Ms. Humphries] and the children.” Following additional litigation, they entered another agreement, this one stating that Ms. Humphries would be named joint custodian on three separate bank accounts – one for each child – and that the funds would be used to cover the children’s college tuition and expenses.

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My practice has been limited primarily to Collaborative Practice and Mediation for many years, since I learned long ago that divorce is a problem to be solved not a battle to be won, and the court system only exacerbates the problem and most often leaves couples worse off, financially and emotionally. Collaborative Practice and Mediation allow a couple to divorce in a structured and facilitated process that enables them to stay out of court, gather and review all of their financial information together, brainstorm options for property division, co-parenting and support, and craft an agreement that works for all. This process reduces the fear and anxiety because every step in the process is taken together and both understand that nothing will happen and no agreements will be signed or filed until both agree.

These processes are not without difficulty and conflict. The couples are divorcing after all so there is most always conflict. But unlike the court system with uncaring judges and litigious attorneys, Collaborative Divorce and mediation endeavor to help parties communicate more effectively, understand each other’s needs and interests, and help them find common ground and shared goals. This most always leads to agreement.

Another reason I value out of court processes is that I believe in personal empowerment and the right and ability of most everyone to make their own decisions in such matters. With very rare exceptions, I can’t think of any good reasons divorcing spouses would want a judge (ie government official) to make decisions about how they divide marital property or co-parent and support their children and each other. In most all cases, the best people to make these important and personal decisions, are the parties themselves.

Once a couple agrees on the terms of their settlement agreement, the agreement and judgment forms are submitted to the court for processing. Sadly, the court processing can be unduly lengthy, often as long as three or four months, but until recently, most judges would approve judgments provided the parties completed the requisite paperwork and filed documents signed under penalty of perjury stating that they had each completed and exchanged the requisite financial disclosures. Parties working together can make any agreements they want, but the agreements must be based on full knowledge and understanding of all separate and community income, assets and debts.

Recently, however, many judges have begun asking mediating or Collaborative parties who have submitted their judgments to court for processing to attend uncontested hearings to explain and justify the terms of their agreement to the judge. These are folks who have chosen mediation or Collaborative divorce precisely because they wish to stay out of court. Often the first question people will ask is , “We won’t have to go to court, will we?” I used to be able to answer no to this question, but no longer. This unwarranted interference by the courts is, in my opinion, intrusive and overbearing and deprives the couples of their autonomy, dignity and right to make their own decisions.

So, for those who really wish to stay out of court, it appears that a good option is to stipulate to a private judge, which usually costs around $500 – $550. An extra fee, but well worth it for many. The other benefit of a private judge is that they are much faster than the courts – a private judge will review and sign off on a judgment in probably two to three weeks, rather than the three to four months taken by the court coupled with their burdensome requests to come to court to justify decisions and agreements. Plus there is the added psychological benefit that the entire divorce, not just the process of reaching an agreement, is outside of the dreaded court system.

With more than 13 years of experience working with clients in divorce and other family law matters, attorney and mediator Lorna Jaynes utilizes innovative legal tools to resolve these and other family law disputes for clients in the San Francisco Bay Area.

“This case presents an issue that would vex Solomon himself.” That’s how the Fourth District Court of Appeals described In re Marriage of Keith, a child custody case that ultimately turned on the parents’ efforts (or lack thereof) to facilitate their daughter’s relationship with each other.

1064479_father_and_daughter.jpgHolly and Keith married in 2004, had a child (Daughter) in 2005 and separated a year later. Unbeknownst to Keith, Holly and Daughter then moved to Arizona. Holly also obtained a restraining order against Keith, accusing him of physical abuse. An Orange County court later order quashed the restraining order and required her to return to California.

Back in California, a court granted Holly a new restraining order against Keith as well as sole legal and physical custody of Daughter. Keith completed a court-ordered batterer’s intervention program and was permitted monitored visits with Daughter. After the couple divorced in 2008, Holly sought permission to move back to Arizona with Daughter. Keith opposed the move, claiming that Holly had sought to isolate him from Daughter and destroy their relationship, first by claiming that he had assaulted Holly, then by moving “surreptitiously” from Irvine to La Quinta and finally by seeking to move to Arizona.

In a child custody evaluation completed prior to trial, Dr. W. Russell Johnson recommended that Holly be granted primary physical custody – with Keith being granted “liberal” visitation rights – if she remained in California. If Holly were to move Arizona, however, Johnson concluded that Keith should be granted primary physical custody. In the latter situation, “[Daughter]’s best interests require that she be placed in her father’s physical custody because he is more likely than her mother to support her relationship with her non-residential parent,” Johnson determined. The trial court granted Keith primary physical custody.

The Fourth District affirmed the decision on appeal. The court explained that a trial court considering a custody issue has “the widest discretion to choose a parenting plan that is in the best interest of the child,” but must weigh the health, safety, and welfare of the child, as well as any history of abuse by one parent of the other. Because Holly had obtained a restraining order against Keith, the court said that there was a presumption that granting her primary physical custody was in Daughter’s best interest. Keith rebutted this presumption, however, by showing that he had completed the batterer’s intervention program and had not been accused of physical violence since that time.

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As a new family law attorney my very first litigation matter involved a client whose spouse’s attorney was the (now disgraced) Mary Nolan. It was a horrific experience for me and I ultimately told my client that he needed to retain a different kind of attorney – the quintessential ‘shark’ litigator, if he was going to survive this divorce with Ms. Nolan on the other side. The great benefit that I derived from this experience is that I learned very early how ugly divorce could be, that the traditional process did not work for me or for the clients. I knew there had to be a better way.

A six-count indictment on September 18, 2012 charged Mary Nolan with tax evasion and unlawfully intercepting communications. Recently, Ms. Nolan pled not guilty to charges that she hired a private investigator, who was a central character in Contra Costa County’s “dirty DUI” scandal, to illegally install listening devices inside the car of a client’s ex-husband.

Mr. David Dutcher, from Contra Costa County, challenged a custody ruling he claims was based on a DUI charge that occurred after his ex-wife paid a blonde woman to trick into drunk driving. Mr. Dutcher said he was arrested and pulled over for drunken driving in 2008 shortly after he was propositioned by two young women to come home with them and ‘continue things in the hot tub’.

Mr Dutcher was on a second date with a woman he had met on Match.com, when she started chugging shots of hard alcohol and kissing him on the lips.

A second blonde showed up and they both flashed their breasts, before asking him to join them at home in the hot tub.

But just after leaving the restaurant, Mr Dutcher was pulled over for drunken driving with a blood alcohol content of 0.12 per cent, above the legal limit of 0.08 percent. Shortly after his conviction, his ex-wife’s lawyer, Ms. Nolan, filed a motion in court seeking to reduce his time with the children (and increase his ex-wife’s child support). Ms. Nolan claimed to have inadvertently learned of Dutcher’s drunken-driving episode and wanted to make the court aware of his run-in with the law. A judge then reduced the amount of time he could spend with his children because of his arrest. Mr. Dutcher has argued that his ex-wife orchestrated his arrest to gain advantage in the divorce case.

In another complaint filed in Contra Costa County Superior Court, Declan Woods of Clayton alleges that Mary Nolan was looking for an advantage for her client, Woods’ estranged wife. and hired Butler to set up Woods to be arrested for drunken driving.

Not surprisingly, in my case with Ms. Nolan, her trumped up allegations of domestic violence were very detrimental to my client and their five children who were only permitted to see each other through supervised visitation. This was a family of relatively modest means whose assets were quickly depleted by Ms. Nolan’s fee churning antics. And although the wife surely did not recognize it at the time and maybe still doesn’t, Ms. Nolan’s conduct was also detrimental to her since it resulted in an unnecessarily emotionally and financially burdensome process. And nor did her attorney encourage a positive and supportive co-parenting relationship, the touchstone of a good divorce.

But I was inspired to find a new and better way to help couples divorce and and trained in Collaborative Law and Mediation so that I could escape “the machine” and help couples divorce with their personal and economic dignity intact. To learn more about how to end your marriage with your personal and economic dignity intact, contact the Law and Mediation Office of Lorna Jaynes.