Bay Area Divorce Lawyer Blog

Given the high divorce rate in this country, just about all of us have been impacted in some way by divorce and custody/support matters. Perhaps it was our own family or parents or our own divorce, or simply a very close friend or family member. And with few exceptions, a majority of folks in these situations feel they lost too much or paid too much, received too little, or had a custody/visitation order that was "unfair" to them, and worse. 
Based on these experiences, we develop opinions and biases about how such matters should be handled. And of course, every judicial officer, as well as recommending Family Court Services mediators and custody evaluators, have their own personal biases. Consequently, the reality is that the same exact case may have very different results in different court rooms.

This is not to disparage family court judges who deal with complex issues (permanent removal of children to another state, custody, visitation, domestic abuse, determining real income, valuing assets (eg, closely held businesses) on a daily basis, with honor and integrity. But the inherent bias based on one's experiences in many cases cannot help but bias the judge's factual findings, their discretion, and how they decide to apply the law. This bias probably exists more in family law than in other areas. No amount of bias elimination training can make a judge forget about their life experiences, assumptions, personal beliefs/views and biases. Consequently, family law litigation can be unfair and inequitable.

However, most judges it is hoped, exercise enough self awareness to check in with their personal biases before making a ruling. And it is important to note that mediators and Collaborative professionals are no less immune to being impacted by personal experience as judges and others in the court system. We too are human beings with biases and must guard against forming opinions based on them. However, we are not judging and making orders, rather our role to facilitate a full and constructive dialogue between the parties that will enable them to reach their own agreement, so our biases have less impact. And ethical and conscientious mediators are very aware of the potential for bias and work hard to be neutral and unbiased.

Alternative dispute resolution processes, however, such as mediation or Collaborative Divorce allow you to fashion your own outcome instead of having a stranger (judge) decide your future and that of your children. Mediators and Collaborative attorneys do not decide - they help you make your own decisions. And furthermore, why pay the always substantial legal fees incurred in litigation, when a much less expensive process means those funds could instead be used to pay for your child's college education. More often than not, litigation usually means going through the court process, several hearings, perhaps settlement or case conferences until, worn down by the conflict and fast becoming broke, you settle anyway. Why not focus on resolution (settlement) from the outset rather than pretending you're going to go to trial and then settling anyway but only after wasting tens of thousands of dollars to get there. And last ditch, in front of the courthouse door settlements are almost always hasty, last minute agreements, rather than the well thought out and thoroughly discussed agreements generally produced in out of court processes.

I recently had of a case where the litigators managed to spend tens of thousands of dollars in legal fees before the clients decided to try mediation. It was readily apparent that the husband was willing to give the wife more than her lawyer would likely have obtained through litigation. And both clients felt that their attorneys would not be reasonable unless the retainer was used up and either no more money was available or the client refused to replenish the retainer account. All in all, a tragic waste of emotional and financial resources for nothing. The mediation, however, was positive, constructive and successful.

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

As a Collaborative Family Law Attorney and Mediator, I am privileged to work with those who, because of their divorce, are undergoing a significant life change. Although a mediated or Collaborative divorce is far less painful, emotionally, psychologically, and financially, than a litigated divorce, it is still a divorce, and according to the Surgeon General, divorce is one of life's greatest stressors.

So it is often helpful to rely on insights from some our spiritual leading lights to help lead the way and remind us to be present when stress and anxiety arise. These sayings can also help us get in touch with our own inner wisdom as we move forward into a new life after divorce. They are also useful reminders for all of as a new year begins.

"Be kind whenever possible. It is always possible." ~ Dalai Lama

"If you want others to be happy, practice compassion. If you want to be happy, practice compassion." ~ Dalai Lama

"There is no way to happiness, happiness is the way." ~ Thich Nhat Hanh

"It is what it is, while it is." ~ Elisha Goldstein

"If we learn to open our hearts, anyone, including the people who drive us crazy, can be our teacher." - Pema Chodron

"As soon as we wish to be happier, we are no longer happy." ~ Walter Landor

"The fact is, we are not islands and we are far more connected than we know." ~ Elisha Goldstein

"There is no enlightenment outside of daily life." ~ Thich Nhat Hanh

"Realize that this very body, with its aches and it pleasures... is exactly what we need to be fully human, fully awake, fully alive." ~Pema Chodron

"After the ecstacy, the laundry." ~ Jack Kornfield

A recent California Court of Appeal opinion upheld a grant of visitation to a grandparent over a father's objection.

Child custody and visitation issues often give rise to the most high conflict disputes in a California divorce. If parents can't agree about living arrangements, vacation schedules and the best educational environment for their child or children, these decisions may very well be made by a family court judge based on his or her assessment of the best interests of the children and the parents' capabilities.

A recent California Court of Appeal Opinion in Hoag v. Diedjomahor considered a less common scenario: the court's grant of visitation to a grandparent over a parent's objection. The maternal grandmother filed for visitation following the death of her daughter, the mother of couple's daughters. The parents had lived at the grandmother's home, as had the mother and children alone during a period of legal separation. After the parents reconciled, the grandmother moved in with the family.

Soon thereafter, the mother filed for divorce, but died about a month later. The grandmother then petitioned for guardianship, claiming that the father was an unfit parent, and the father then countered with evidence of the grandmother's prior drug use and the loss of custody of her own children years before. The court found that no issues of concern were raised from a Child Protective Services investigation and did not grant the guardianship request to the grandmother, but it did grant her temporary visitation.

Several months later, the grandmother petitioned for permanent visitation rights. The court granted the petition based on a mediator's recommendation of a visitation schedule that included three hours of weekly visitation plus every other weekend. The court's decision was based largely on its finding that the father was opposed to reasonable visitation and that his offers were "feigned at best and without any substance."

Appellate Court Upholds Grant of Visitation to Grandmother

The father appealed the judgment for permanent visitation based on his constitutional due process rights. The California Court of Appeal reviewed the case primarily on the standard provided by the U.S. Supreme Court in Troxel v. Granville, which stated that the Due Process Clause does not permit state governments to infringe on the fundamental rights of parents to make child-rearing decisions "simply because a state judge believes a 'better' decision could be made."

On review, the California court emphasized that child-rearing decisions are not immune to judicial review. While the law presumes that a parent is acting in his or her children's best interests in proceedings involving a non-parent who seeks custodial recognition, the father had acknowledged to the trial court that visitation with the children was in the children's best interests. Therefore, denial of visitation was essentially spiteful, and the court's grant of grandparent visitation was proper.

Clearly, the specific circumstances behind every California family law dispute can make a big difference in the outcome. A California divorce lawyer will help a client understand the facts of his or her situation in light of current legal standards.

Visit us at www.lornajaynes.com

Talk to your children about what is happening
Only a minority of divorcing parents sit down with their kids and explain that the marriage is ending and encourage them to ask questions. Some say nothing, surely leaving the kids totally confused and fearful. It is so important to talk to your kids, because almost without fail, they know something is wrong, they just don't know what and that creates a great deal of anxiety. Tell them as simply as possible, what is happening and what it means to them and their lives. When parents don't communicate this to the children, the kids feel anxious, upset and fearful and have a much more difficult time coping with the separation and divorce.
Be sensitive and thoughtful
Your children love both of their parents and need to hear about the situation in a way that honors their love for, and relationship with, each parent. If you must litigate, don't leave court filings and documents out where they might be seen. Don't talk to others about the issue in front on the children or where they might overhear. Kids are curious will often go to great lengths to hear what is going on and will sneak up on phone call and other conversations.
Act like a grown-ups and keep the conflict away from the kids
This is so important and has been repeated so often it has become 'common knowledge' and yet it still happens, parents will argue and fight in front of the children and even use them as spies or messengers. Put the children first and refuse to argue in front of them or subject them to your conflict in any way.
Ensure that Dad stays involved
Studies show that the more involved fathers are after separation and divorce, the better it is for the children. Work with your spouse or partner to develop a child-centered parenting plan that allows a continuing and meaningful relationship with both of you. Strong father-child relationships help children do better academically and become well-adjusted adults. Fathers need to be more than just the fun parent, they need to be helping and involved with school, homework, extracurricular activities and also be available emotionally and a co-partner in issues involving discipline.
Don't act out of anger
Some parents, due to anger and pain, try to keep the other parent out of the kids' lives. Divorcing spouses, angry and upset with the other often think the other parent is not good for the kids. But children's and parents needs during divorce are very different. Researchers working with children of divorce consistently highlight that kids want more time with the non-custodial parent.
Be a good parent
It is OK to recognize, be present with, and work through the emotional pain you may feel. But you still need to be there for the children, both physically and emotionally. Competent parenting is one of the most important factors in helping children adjust well to separation and divorce.
Take care of your own mental health
Seek help for feelings of anger, anxiety, and sadness. Even a few meetings with a counselor or therapist can help and your own mental health is tremendously important for the well-being of your chidren. Generally, if you are OK, they will be OK.
Keep the people that are important to your children in their lives
Help your children stay involved with your spouse's family and with friends. This will help your child feel they are not alone in the world, but have a deep and powerful support system - an important factor in becoming a psychologically healthy adult.
Be careful about your future love life
Give yourself a lot of time before you remarry or cohabit again. Especially for young children, forming new attachments to new partners where the relationship may then break up, just creates more loss. And this can lead to depression and a lack of trust generally. And older children need to be given time to learn to adjust to, respect and care for your new partner also.
Pay your child support
Even if you're angry or have little time with your children, this is important. Children of divorce face much more economic instability than those from intact families even with child support. They might not notice or recognize the support when they are young but they will as they get older.

Across the country, state courts face severe budget cuts that threaten access to justice for many and California is no exception. California state legislators have cut $350 million from the state court budget, with more cuts certain to follow. Local court will lose $135 million in the fiscal year that began July 1 and another $170 million next year from an overall budget of more than $3 billion.

In Santa Clara County, it means a loss of $6.8 million this year and perhaps more than double that amount next year. San Mateo County's courts will take at least a $2.7 million hit this year, while Alameda County's court system will be cut by more than $6.7 million. Contra Costa County's courts will absorb more than $3 million in cuts and will likewise be forced to cut even more from next year's budget.

For those considering divorce, be prepared. Twenty-five of San Francisco's 63 Superior court chambers have been closed; two hundred of 480 employees will be laid off. "It will take a year and a half to get a divorce in San Francisco and to get a child custody order. If you file suit, we won't do anything with your case for five years," according to San Francisco Superior Court spokesperson Ann Donlan. That can be disastrous if the matter concerns custody of children, visitation, or many other sensitive issues.

Getting on with life after divorce is key, and a long, costly court battle only continues the pain, multiplies the cost, and hurts you and your children.
But, there is hope and a silver lining. Collaborative Divorce and Mediation provide a less destructive and even positive, path to resolving the issues and rearranging the family. Both are sensible alternatives to the embattled and clogged state courts. Either choice will make the process shorter, less traumatic, more equitable and leave more goodwill and cooperation than traditional divorce.

We just got a new puppy, a 3 month old Australian Shepherd and while there is no separation or divorce pending, it made me think about what that situation might look like. For many couples who choose to forego having children, their pets become an increasingly important part of the family. But even in many families with children the pet is often almost another child whom all are very attached to. However, the family law system in California and most states provides few options to divorcing pet owners.
In California and most states the law regarding human children is intended to protect the best interests of children in divorce and thus provides for shared custody and support. Pets, however are classified as personal property. Some have advocated for additional recognition and status of companion animals, but legislators have yet to show that type of vision or thoughtfulness, so there is currently no legal distinction between your dog and your sofa when it comes to divorce and no basis in the law for treating the dog any differently than the sofa. (This article assumes the pet is community property) The Court of Appeals Iowa in ruling on an award of a dog to the husband in a dissolution held that a dog is personal property whose best interests need not be considered. In re Marriage of Stewart, 356 N.W. 2D 611 (Iowa Ct. App. 1984)

VALUATION
In order to rule on property division in a dissolution, personal property must be valued, commonly fair market value. The fair market value for companion animals, however, is generally very low while the emotional and sentimental value for the parties is very high. The Alaska Supreme Court in Mitchell v. Heinrichs,27 P.3d 309 (Alaska) held that "In determining the actual value to the owner, it is reasonable to take into account the services provided by the dog. Where, as here, there may not be any fair market value for an adult dog, the "value to the owner may be based on such things as the cost of replacement, original cost, and cost to reproduce." Thus, an owner may seek reasonable replacement costs- including such items as the cost of purchasing a puppy of the same breed, the cost of immunization, the cost of neutering the pet, and the cost of comparable training. Or an owner may seek to recover the original cost of the dog, including the purchase price and, again, such investments as immunization, neutering, and training. Moreover, as some courts have recognized, it may be appropriate to consider the breeding potential of the animal, and whether the dog was purchased for the purpose of breeding with other purebreds and selling the puppies."
Another valuation method considers the companion animal's intrinsic value, focusing on the animal as an individual, based on the value to the human guardian. In Houseman v. Dare, 966 A.2d 24, 29 (N.J. Super. Ct. App. Div. 2009), the court recognized a former couple's dog's intrinsic monetary value at $1,500, but also recognized that the dog represented a "special value" for which the monetary amount presented inadequate compensation.

BEST INTEREST STANDARD
The best interest of the child standard used by courts in ruling on custody and visitation typically includes consideration of factors such as the wishes of the child and parents, parent child and other familial relationships, the mental and physical health of all involved, and the child's relationship to home, school, and community. Sometimes the inquiry will focus on who has been the primary caretaker of the child. Also part of the best interest inquiry, is the presumption that siblings should be kept together.
The A.L.D.F. (Animal Legal Defense Fund) has filed.amicus briefs advocating the best interest approach Along these lines, they offer the following as advice on the website:
In determining custody, courts might consider which party has been primarily involved with the animal's basic daily needs; who takes the animal to the veterinarian; who provides for social interactions; and who has the greatest ability to financially support the animal.
Most courts reject this and stick with their personal property model view of companion animals. However, some courts have, in a circuitous, indirect way, allowed the companion animal's best interest to enter their decisions regarding custody.
In Pratt v. Pratt, No. C4-88-1248, 1988 WL 120251, at *1 (Minn. Ct. App. Nov. 15, 1998) the court held that the best interest standard for children is inapplicable to dogs, but stated that the trial court can consider past mistreatment of the dogs.
In Vargas v. Vargas, No. 0551061, 1999 WL 1244248, at *8, *10, *13 (Conn. Super. Ct. Dec. 1, 1999) the court awarded custody of the couple's dog to the wife after considering that the husband was not treating the dog very well, and his home included both a scrap metal yard and a five-year-old child, despite the fact that the dog was a gift from the wife to the husband and the dog was registered to the husband with the American Kennel Club.

VISTATION AND CUSTODY ARRANGEMNTS

Some parties have argued for such a shared custodial arrangement regarding their companion animals as is common with children. There is no requirement in divorce that the parties' joint ownership of property be terminated and that title be vested in only one spouse. However, an important goal of property division is final separation. Consequently, courts often reject shared custody of companion animals based on a lack of statutory authority for shared custody of personal property, fear of the slippery slope, or judicial economy and the problems that would result from enforcing such an order (ie how to enforce, which agency would be responsible, etc.)

• In Lanier v. Lanier in Pulaski, the wife argued for custody of the dog based on evidence that she kept him away from "ill-bred bitches," ensured that he attend a weekly ladies' Bible class, and prevented others from drinking alcohol in his presence; the husband argued for custody based on the fact that he had taught the dog numerous tricks such as riding on his motorcycle and had himself refrained from drinking beer in front of the dog. The judge granted joint custody of the dog, ordering a switch in custody every six months. The wife then violated the order by moving to Texas.
Jim T. Hamilton, Dog Custody Case Attracts Nationwide Attention, in Tales From Tennessee Lawyers 180, 180-81 (William Lynwood Montell ed., 2005), this portion available at http://www.kentuckypress.com/0813123690excerpt.pdf (last visited July 25, 2009)

• In Juelfs v. Gough, 41 P.3d 593 (Alaska 2002), the couple agreed to shared ownership of their dog which was made part of the court's order. But because of danger to the dog from other dogs in the wife's home and increased conflict between the parties, the court then gave the husband custody and the wife visitation, and finally awarded sole custody to the husband.

• In Bennet v. Bennet, 655 So.2d 109, (Fla. Dist. Ct. App. 1995) the trial court awarded the wife visitation of the dog, but the appellate court overturned the order stating that the trial court lacked authority to order visitation with personal property, and stated that the dog be allocated according to the state's equitable distribution of property doctrine. The court was concerned with judicial economy: "Determinations as to custody and visitation lead to continuing enforcement and supervision problems (as evidenced by the instant case). Our courts are overwhelmed with the supervision of custody, visitation, and support matters related to the protection of our children. We cannot undertake the same responsibility with animals."

• In Desanctis v. Pritchard, 803 A.2d 230, 232 (Pa. Super. Ct. 2002), appeal denied, 818 A.2d 504 (Pa. 2003), a couple's complaint requesting enforcement of a settlement agreement that provided for shared custody of the dog was dismissed by the trial court, and the appellate court upheld the dismissal stating that "[a]ppellant is seeking an arrangement analogous, in law, to a visitation schedule for a table or lamp," and that "any terms set forth in the [a]greement are void to the extent that they attempt to award custodial visitation with or shared custody of personal property."

• The court in Nuzzaci v. Nuzzaci No. CN94-10771, 1995 WL 783006 at *1-*2 (Del. Fam. Ct. Apr. 19, 1995) refused to sign a stipulation and order based on the agreement of the parties and their attorneys regarding visitation of the couple's dog, stating that the court can only award the dog to one party or the other and advising the couple to reach their own agreement since the court has no jurisdiction and no way to side with one party or the other in the event of a future dispute.

• The court conferred special status upon companion animals in Arrington v. Arrington, 613 S.W.2d 565, 569 (Tex. Civ. App. 1981) in classifying them as personal property but also holding that visitation should be allowed.

• In re Marriage of Fore, No. DW 243974 (Minn. Dist. Ct. Jan. 9, 2001) the wife got primary custody of the dog and the husband was granted access during the first seven days of every month. If the wife planned to board the dog for any reason she was to give the husband "the opportunity to spend the additional time with Rudy rather than putting him in a kennel."

• "Just as with childrens' visitation schedules, visitation with pets can occur during specific blocks of time during the year. In Assal v. Barwick, No. 164421 (Md. Cir. Ct. Dec 3, 1999) the husband was given a thirty day visitation period during each summer."

• In Fitch v. Eiseman, No. S-9322, 2000 WL 34545801, at *1-*2 (Alaska Apr. 19, 2000) the divorce decree included the couple's agreement for the dogs to remain with the children, which involved travel between the parties' homes as part of the children's shared custody agreement. When the wife failed to abide by the agreement, the state Supreme Court remanded the matter to the trial court to determine sole ownership of the dog by one of the parties.

Clearly, just as with children, divorcing couples with pets would be well advised to craft agreements for custody and visitation outside of court themselves or through a mediation or Collaborative process.
And ultimately, as with children, try to do what's best for the pet.
Sometimes that may mean the pet stays with the person who keeps the house where it has lived, but not always. Sometimes it's best to have a shared custodial arrangement so each partner gets some time with the pet, but not always.
Unfortunately, in a divorce, there is often little common sense or thoughtful discussion. Sometimes people demand custody just because they can but most often it is because this is a painful time, and the thought of also losing their pet adds to the pain.
If the person who is most heartbroken at the thought of losing the pet is not the one who can, realistically, provide a good environment and life for it, hopefully that person can put aside his or her own desires and do what's best for the pet.

With all due respect to the customs, laws and practices of other cultures and countries, this story made me glad that I practice family law in California.

The BBC reports that a Sudanese man has been forced to take a goat as his "wife", after he was caught having sex with the animal.
The goat's owner, Mr Alifi, said he surprised the man with his goat and took him to a council of elders.
They ordered the man, Mr Tombe, to pay a dowry of 15,000 Sudanese dinars ($50) to Mr Alifi.
"We have given him the goat, and as far as we know they are still together," Mr Alifi said.
Mr Alifi, of Hai Malakal in Upper Nile State, told the Juba Post newspaper that he heard a loud noise around midnight on 13 February and immediately rushed outside to find Mr Tombe with his goat.
"When I asked him: 'What are you doing there?', he fell off the back of the goat, so I captured and tied him up."
Mr Alifi then called elders to decide how to deal with the case.
"They said I should not take him to the police, but rather let him pay a dowry for my goat because he used it as his wife," Mr Alifi told the newspaper. 


Divorce is one of life's biggest and most painful stressors and traumas and far too often those involved carry the weight, the pain, the blame, the hurt and the anger around with them for years, long after the divorce itself.

Dr. Fred Luskin of the Stanford Forgiveness Project defines forgiveness as follows: to forgive is to gibe up all hope for a better past. If you are stuck in regret or anger over the past you have less energy available for your life today, and are in some ways compromising your future by being defensive and carrying around some unhappiness from the past.
Forgiveness is about healing. There is a distinction between justice, reconciliation, condoning and forgiveness. Forgiveness does not mean you condone what was done, nor does it mean you have to reconcile with or like the person who did it. It is fine to say, "This was such a dreadful act that I must end my relationship with them." And it doesn't mean you don't seek justice, if warranted. These are separate from the inner healing that occurs with forgiveness, which means that you don't take what happened as just personal, but that you see it as a part of the bigger, ongoing human experience of hurt, resolution, conflict and negotiation.

Dr. Luskin outlines 9 steps to forgiveness. http://learningtoforgive.com/9-steps/

1. Know exactly how you feel about what happened and be able to articulate what about the situation is not OK. Then, tell a trusted couple of people about your experience.
2. Make a commitment to yourself to do what you have to do to feel better. Forgiveness is for you and not for anyone else.
3. Forgiveness does not necessarily mean reconciliation with the person that hurt you, or condoning of their action. What you are after is to find peace. Forgiveness can be defined as the "peace and understanding that come from blaming that which has hurt you less, taking the life experience less personally, and changing your grievance story."
4. Get the right perspective on what is happening. Recognize that your primary distress is coming from the hurt feelings, thoughts and physical upset you are suffering now, not what offended you or hurt you two minutes - or ten years - ago. Forgiveness helps to heal those hurt feelings.
5. At the moment you feel upset practice a simple stress management technique to soothe your body's flight or fight response.
6. Give up expecting things from other people, or your life, that they do not choose to give you. Recognize the "unenforceable rules" you have for your health or how you or other people must behave. Remind yourself that you can hope for health, love, peace and prosperity and work hard to get them.
7. Put your energy into looking for another way to get your positive goals met than through the experience that has hurt you. Instead of mentally replaying your hurt seek out new ways to get what you want.
8. Remember that a life well lived is your best revenge. Instead of focusing on your wounded feelings, and thereby giving the person who caused you pain power over you, learn to look for the love, beauty and kindness around you. Forgiveness is about personal power.
9. Amend your grievance story to remind you of the heroic choice to forgive.

According to Dr. Luskin, the practice of forgiveness reduces anger, hurt depression and stress and leads to more hope, peace, compassion and self confidence. Practicing forgiveness leads to healthy relationships and physical health. It also influences our attitude which opens the heart to kindness, beauty, and love.

When you meet people who have forgiven, you see their power. You see the strength and courage it takes to forgive in a world dominated by "an eye for an eye and a tooth for a tooth." I have seen this in the truly amazing, inspiring and wonderful story of Azim Khamisa, whose only son Tariq, a 20 year old student was shot and killed while delivering pizza. His killer received a 25-year prison sentence. Azim, a Sufi Muslim, turned to his faith in his grief. Through prayer, he found the blessing of forgiveness, concluding that there were victims at both ends of the gun. Azim reached out to the grandfather and guardian of his son's killer, Tony Hicks, and eventually to Tony also. Azim chose the path of forgiveness and compassion rather than revenge and founded the Tariq Khamisa Foundation by break the cycle of violence and teach peace, compassion, and forgiveness. Tony Hicks and his grandfather, Plez Felix, also work with Azim at the Tariq Khamisa Foundation.
Forgiveness provides a fresh start. So, you can say yes this terrible thing happened to me, and it hurt so much but I'm not going to let it take over my life. That's the choice that's always available. And without making that choice one can get stuck in bitterness and revenge. That's the cost of not forgiving.
And Divorce is a fresh start also. And that fresh start will have a much better beginning if it includes forgiveness.

In an incident that received little attention in the mainstream press, a man named Tom Ball, 58, committed suicide in front of the Keene, New Hampshire County Courthouse on June 15, 2011 by dousing himself with gasoline and lighting a match. His 15 page suicide note explained that he was angry at the state child protection bureaucracy and the courts after his ten year battle over child abuse charges. He was angry at the US court system, the federal government, police, child protective services, in general, a system that in his opinion no longer works and no longer serves our interests.
Ball's troubles began when he slapped his then four-year-old daughter, giving her a cut on the lip, when she refused to obey him after three verbal warnings.
His wife called the child's mental health provider who apparently told her that if she did not call the police, both she and Ball would be arrested.
So she called the police and Ball was arrested. After six months, the wife filed for divorce. Clearly, no one should strike children. But a cut lip under some circumstances, if a clearly isolated instance and without more, probably should not constitute child abuse, and certainly not domestic violence. This family probably needed help and what they got was an inflexible system that was not, by its very nature and structure, able to help the family in the ways they needed it. What if instead of dealing with the bureaucratic and inflexible family and criminal court systems, the family had been provided with therapy and counseling, what if they had been able to learn effective and compassionate communication skills, what if they had been able to learn how to resolve conflicts and better discipline skills? Perhaps the couple would still have divorced, but they probably would have learned to co-parent effectively despite the divorce. Perhaps Mr. Ball would have learned more effective methods of discipline and conflict resolution, and the child would probably have had a father and close and loving relationship with him. A far better outcome in my opinion, than a broken family and a dead father.
One interesting part of his suicide note was his observation that the United States is no longer a nation of laws; Ball described what he calls the 'second set of books,' which is essentially the collection of policies, procedures, and protocols that courts and executive agencies rely upon. According to Ball this includes police departments and other 'enforcers' across the country who use standardized responses to take judgment out of the equation. Even the guys who drove the trains to the concentration camps were just following procedures claims Ball.
Tom Ball owed about $3,000 in child support, and in his suicide letter noted that he could have borrowed the money. However, Ball had not worked in two years and faced jail time for failure to pay child support. Wouldn't the court and his ex-wife know about his financial status? If he did not have the money before, how would he get the money after spending a year in jail?
In his lengthy note, Ball expressed his frustration with domestic violence charges and lengthy divorce proceedings, and wrote of a conspiracy of feminists and governments that disenfranchise men. I don't agree with the claims of Ball and others that this was due to feminism and a bias in favor of women and against men in family court. But I do believe it lends credence to the view that in so many cases, the court system simply does not work and that most of us are better off learning conflict resolution skills to solve our own problems, and if necessary working with professionals to assist in that effort, rather than relying on the court system and other bureaucracies.

I live and practice law in Fremont, California, one of the most diverse communities in the diverse San Francisco Bay area. Over half the population of Fremont is Asian and Fremont has more folks from Afghanistan than any city in the US. Consequently, many of my clients are Asian and Middle Eastern.

Asian clients often express their belief that divorce is more shameful in their culture and consequently more difficult for them. In addition, in those cultures where arranged marriages are common, and even if the marriage itself was not arranged, the divorce involves the entire extended family.

Another difficulty for these clients in a divorce is that the cultural and legal systems from their country of origin differ from the American system, but American courts will not take these factors into account. For example, aspects of Sharia law or property issues related to dowry may be very important to the spouses but will not be factors that a California divorce court will consider. But in mediation or Collaborative, couples can incorporate their own sense of fairness and justice and/or values and principles that derive from their cultural and ethnic background and thereby create agreements that honor their highest values and the values of their culture.

To most couples planning to marry, marriage is a loving commitment between two people who want to share the rest of their lives. Under the law, however, marriage is a contract between two people ... not a contract about love, but a contract about the legal and financial rights and obligations of marriage.

It isn't easy to discuss marriage as if it were a business, but when considering a premarital (or prenuptial) agreement, that is precisely the right approach. A premarital agreement isn't a predetermined exit plan and neither does it reflect a lack of faith in the relationship. It simply protects against unfortunate future circumstances that can, and frequently do, happen and is a most worthwhile effort to address the legal and financial issues of the marital contract.

The following suggestions may help you and your future spouse have a constructive conversation about what kind of premarital agreement would be right for your marriage and your relationship, as well as the role of money in your lives together, and if done right such a conversation can ultimately be more helpful in securing a strong foundation for the marriage than it's actual, intended use.

Discuss the Issue Early
It is very important that you don't wait until four weeks before the wedding to discuss these issues. The earlier these topics are explored, the better.

Ask, Don't Assume
People have all kinds of ideas about premarital agreements, and often they are biased biased or incorrect or based on publicity involving contentious, high-conflict celebrity divorces. You and your spouse may have very different ideas about this issue and it is important not to assume you share the same ideas - ask.

Focus on Practical and Logical Matters, not Emotions
It's difficult to talk about your relationship as if it were a commercial transaction, so it is helpful if you can both agree to be logical rather than emotional in discussing these issues.

Ask A Third Party
It is most always helpful and advisable to consult with a legal professional, and perhaps a financial professional, to explore the benefits and to understand the legal issues. The better informed you both are, the easier it will be to reach a mutual and positive agreement.

California does not recognize community property rights between cohabiting couples and does not recognize "common law marriage", and therefore does not protect those who opt out of traditional marriage or registered domestic partnerships. There are no automatic property rights or support rights under the California Family Code for unmarried cohabitants. Though there may be judicial recognition and enforcement of express or implied agreements between unwed cohabitants, such as breach of contract, partnership theories, constructive trust, declaratory relief, specific performance, quantum meruit and other equitable remedies, the legal process to obtain such recognition is likely to be emotionally torturous and very costly in the absence of a clear, written agreement.

Therefore, it is important for unmarried couples living together to discuss and reach agreements on financial and property rights if the relationship ends. These agreements should be reflected in a cohabitation agreement and testamentary documents such as wills or trusts.

Palimony is a combination of the words pal and alimony coined by celebrity divorce attorney Marvin Mitchelson in 1977 when his client Michelle Marvin (Marvin v. Marvin, 8 Cal. 3d 660 (Cal. 1976) filed an unsuccessful suit against the actor Lee Marvin. Palimony is a popular term, not a legal term, and is often used to describe the division of financial assets and real property when parties end an unmarried domestic relationship. Unlike alimony or spousal support, which is often provided for by law, palimony is not guaranteed to unmarried partners. There must be a clear agreement, written or oral, by both partners stipulating the extent of financial sharing and/or support in order for palimony to be granted. Palimony cases are determined in civil court as a contract matter, rather than in family court, as in cases of divorce.

In 1971, Michelle Marvin claimed that Lee Marvin, who was still married to someone else at the time they began living together, promised to support her for the rest of her life. In the end, in Marvin v. Marvin, the California Supreme Court ruled that Michelle Marvin had not proven the existence of a contract between herself and Mr. Marvin that gave her an interest in his property. Thus, the common law rule applied and she was only entitled to the property that she brought to the relationship.

The Court explained that while the state abolished common law marriage in 1896, California law recognizes non-marital relationship contracts. These contracts may be express or implied, oral or written--but either way, they must be provable. Michelle Marvin did not meet her burden of proof. The contract may also provide for a sexual relationship as long as it is not a contract for sexual services. Eventually, the California Court of Appeal ruled that since Michelle and Lee Marvin never had a contract, she was not entitled to any money.

Consequently, cohabitation agreements are important and are particularly important if one or both has significant assets or debts, owns a property or business, or has children from a previous relationship. In addition, a cohabitation agreement can provide clarification and understanding on issues such as how income and expenses are handled and provide clarity on division of property and support if the relationship ends. This is especially important if there is an income disparity or if one person is sacrificing income to raise children.

For example, one partner stays at home to raise children while the other earns a substantial income and acquires significant assets during the relationship which ends. A married partner in California has the community property law of equitable distribution to protect her interest in half of the assets earned and the right to spousal support. The unmarried partner has nothing except for the ability to obtain child support if the children are still minors.

In addition to the legal protection provided by unmarried partners setting forth their rights and obligations in a cohabitation agreement; the process of creating the agreement provides an opportunity for couples to discuss the role of money in their lives gain clarity and understanding that benefits the relationship.

There are so many reasons to end a marriage through the mediation or Collaborative process, rather than resorting to litigation and traditional legal representation. For example, the opportunity to create a positive and supportive co-parenting relationship for the benefit of children and parents, minimizing conflict so that children (and parents) can survive a divorce with little, or at least much less, emotional trauma, reducing legal fees and other divorce costs so that there are more assets available for the divorcing spouses and their children, the opportunity to craft a creative settlement that meets the needs of all concerned. The list is truly endless.

But there is another reason not generally highlighted by those who advocate alternative dispute resolution processes. And that is the satisfaction that one derives from being the master of one's own destiny. Who is really the best person to make vitally important decisions about your family? Lawyers whom you have probably just met and a judge that you never really get to talk to, and who never gets to hear what really matters to you? In my experience, the best people to make these decisions are those whose lives will be impacted. With the right support, most people who are willing to express their own needs, to hear and understand what is important to the other, and are willing to address the others' needs as well as their own, can do much better than courts.

It is enormously empowering to solve these problems together, and be able to say "We don't need the government, we don't need the courts, we don't need the system to solve our problems. We can do it ourselves."