Bay Area Divorce Lawyer Blog

In California, a court can annul a marriage that it determines is not legally valid based on a number of reasons, including a finding that one spouse is already married, not mentally capable of entering marriage or has committed fraud in inducing the other spouse to marry. Once a marriage is annulled, the law operates as though it never existed. In In re Marriage of Snowden, the Sixth District Court of Appeals explains that annulments don't often come easy, even for the shortest of marriages.

San Jose resident Norris Snowden and Simona Campeanu, a Romanian citizen, struck up a relationship online in 2006 and married three years later. Campeanu moved to the U.S. to live with her husband permanently in 2010, after obtaining a visa. The couple lived together for less than two months before separating.

Snowden later filed a petition seeking to annul the marriage, citing fraud. "Snowden maintained that Campeanu' s true motive for marrying him was to obtain a green card, allowing her to reside in the United States," according to the court. He also alleged that she refused to have sex with him and did not tell Snowden prior to the marriage that she is unable to have children. Denying these allegations, Campeanu sought a dissolution of marriage, rather than annulment. A trial court found that Snowden failed to prove fraud and denied his petition.

The Sixth District affirmed the decision on appeal. "Historically, annulments based on fraud have only been granted in cases where the fraud relates in some way to the sexual, procreative or child-rearing aspects of marriage," the court explained. For example, annulments have been granted where one spouse did not intend from the beginning of the marriage not to engage in sexual relations with the other spouse or where a spouse was pregnant with another man's child at the time of the marriage. Even in cases of potential immigration fraud, the court said, an annulment will not be granted unless the offending spouse never intended to carry out his or her "essential duties."

Here, Snowden acknowledged in testimony that he continued to engage in "flirtatious emails" with other women after becoming engaged to Campeanu, who became angry when she learned of the emails shortly before the couple was married. They decided to marry anyway. Campeanu returned to Romania after her fiancée visa expired and Snowden did not respond to her persistent emails for several weeks, later explaining that he was angry that she had looked at his private emails.

A criminal conviction is a serious matter that may not only come with significant fines and even jail time, but also have other far reaching effects. For example, as California's First District Court of Appeals explains in In re Marriage of Priem, a person convicted of domestic violence may be barred from obtaining spousal support in the event of a later divorce.

The couple was married in 1999 and had two children before divorcing more than 10 years later. A trial court ordered Husband to pay Wife more than $14,000 per month in child support as well as a portion of her attorney's fees. The court declined Wife's request of spousal support, however, finding that she was not entitled to such support as a result of a history of domestic violence toward Husband. Specifically, the court noted that Wife plead no contest to a misdemeanor for battery committed against a spouse in May 2008.

On appeal, the First District explained that California law "creates a rebuttable presumption that spousal support requests are not to be granted to spouses who have been convicted of domestic violence during the five years preceding the filing of a petition for dissolution." Essentially, according to the court, the law is designed to ensure that "victims of domestic violence not be required to finance their own abuse." A reviewing court may consider the other spouse's domestic violence history as well as any other factors that may weigh against the presumption in contemplating a specific spousal support request.

The Court rejected Wife's argument that the trial court wrongly denied her support request based on the 2008 battery because she pleaded no contest to this crime.

Under Penal Code section 1016, a no contest plea cannot be considered an admission of the crime in a civil suit stemming from the act on which the plea was based. Criminal defendants plead no contest for a wide variety of reasons, including bargaining with prosecutors, and the law is designed so as to limit any disincentives to making the plea. Here, the Court found that the spousal support proceeding was not based on nor did it "grow out of" the alleged battery in 2008. As a result, the lower court did not err in denying Wife's support request.

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.

There is more than one way to split a pie. For couples considering a divorce in California, for example, a variety of issues can determine how the pie (money, property, etc.) is divided between spouses. In In re Marriage of Baron, California's Second District Court of Appeals takes a look at some of those issues, including a spouse's ability to work.

Richard and Sandra Baron were married for nearly 30 years before divorcing in 2007. Shortly after they were married, the couple started a retail and commercial nursery in which Richard's brother also owned a 40 percent stake. Sandra worked for the company over three decades - as an office manager and in other clerical positions - until she was fired in 2010.

In a stipulated agreement, the Barons decided that Richard would buy out Sandra's interest in the business, paying her $1 million (plus interest) over the course of 15 years. Following a trial, a lower court also ordered him to pay spousal support in the amount of $5,500 per month until either person died or Sandra remarried. The court additionally required Richard to buy a $500,000 term life insurance policy as security for spousal support.

In reaching this decision, the trial court noted that Sandra was 62 years old and had recently been fired from the only job she'd ever had. "The court finds it is unrealistic to believe that [she] will find employment in the near future," the trial judge wrote.

The Second District upheld the order on appeal, rejecting Richard's argument that he couldn't afford to pay support because of the money he owed Sandra for her share of the business. The court explained that these were two separate issues. "Richard's analysis is based on the incorrect assumption that his property division obligation affects his ability to pay spousal support," the court said. Citing its 1991 decision in In re Marriage of Martin, the court further explained that "a spouse may not finance a 'buy-out' of community property and then successfully claim inability to pay spousal support."

A judge from the state of Minnesota, Michael Haas, said the following in 2001.

"Your children have come into this world because of the two of you. Perhaps you two made lousy choices as to whom you decided to be the other parent. If so, that is your problem and your fault.

No matter what you think of the other party - or whatever your family thinks of the other party- these children are one-half of each of you. Remember that, because every time you tell your child what an "idiot" his father is, or what a "fool" his mother is, or how bad the absent parent is, or what terrible things that person has done, you are telling the child half of him is bad.

That is an unforgivable thing to do to a child. That is not love. That is possession. If you do that to your children, you will destroy them as surely as if you had cut them into pieces, because that is what you are doing to their emotions.
I sincerely hope that you do not do that to your children. Think more about your children and less about yourselves, and make yours a selfless kind of love, not foolish or selfish, or your children will suffer."

Wise words from a judge, but the sad part is that by the time a judge makes comments of that nature, the damage has been done. Sadly, many parents do not understand long-term impacts their divorce has on children and they are so focused on themselves that only a very small percentage have constructive divorces such through mediation or Collaborative Divorce. The nature of the parents' relationship, pre and post-divorce, permanently impacts children.

See the work of Judith Wallerstein, a psychologist who triggered a national debate about the consequences of divorce by reporting that it hurt children more than previously thought. Much of the damage, however, can be mitigated by conscious parents who divorce with care and compassion.

A successful co-parenting arrangement depends on the child, the parents, and how the parents treat each other and their children. It matters whether the arrangements accurately reflect the needs and wishes of the child, but at the same time, the choices should not generally be left up to the children as that puts them in a very difficult place. It's a complex undertaking. What works for a child at one age may be harmful to the same child at another developmental stage. One size can never fit all children or families. Children who are required to traverse a battleground between warring parents show serious symptoms that affect their physical and mental health. The research findings on how seriously troubled these children are and how quickly their adjustment deteriorates are very powerful. The bottom line that our studies show is that the legal form of custody is not what matters in the child's welfare. Nor is there any study that shows the amount of time spent with a parent is relevant to psychological adjustment. 

Parents who spend thousands of dollars in legal fees to fight over the merits of joint or sole custody of their child are simply wasting their time and money. Litigation does not constructively address the emotions involved. Rather, it adds fuel to the fire. No model of custody or time-sharing determines how well children do after their parents' divorce. Joint custody can work very well or poorly for the child. The same is true of sole custody with visitation. What matters is the mental health of the parents, the quality of the parent-child relationships, the degree of anger versus cooperation between the parents, plus the age, temperament, and flexibility of the child.

Divorce education and appropriate dispute resolution such as Collaborative Divorce and mediation can help parents do less destructive things to their children during and after the divorce. With offices throughout the San Francisco Bay Area, California divorce lawyer Lorna Jaynes provides innovative legal tools to resolve many family law disputes without the bitterness and acrimony engendered by the adversarial process.

A segment of This American Life with Ira Glass on NPR, entitled Breakup, addresses divorce from several different perspectives and is well worth a listen.

In Act Two, an eight-year-old girl embarks on a campaign to understand her parents' divorce, a campaign that takes her to school guidance counselors, children's book authors, and the mayor of New York City. The segment re-plays her 1986 interview on All Things Considered as a young child and how she struggled to understand why the divorce happened. In this interview 20 years later, she praises her mother for putting her daughter's interest first by encouraging and supporting her relationship with her father, never blaming her father, and never saying anything about her father's affair.

In Act Three, Ira speaks with a Collaborative Divorce attorney and Mediator about why it is so bad when the justice system gets involved in a divorce and the many benefits for families who can resolve the issues outside of court. The attorney speaks to the value of a process that focuses on listening to the other and seeking to understand.
Act Four looks at divorce from the dog's point of view.

All acts highlight the value to everyone involved of a divorce grounded in respect, compassion and love. And these are the values that ground and sustain Collaborative and mediated divorces. With either mediation or the Collaborative process you have control over the decisions that are made and will be firmly supported, legally and emotionally, in achieving a successful dissolution of your relationship. This not only allows, but also encourages you and your partner to create, or leave open, lines of communication that are of enormous benefit to the whole family.

Working as a team we can achieve a successful resolution of the issues in dispute without the bitterness and acrimony engendered by the adversarial process. The Law & Mediation Office of Lorna Jaynes is based in Alameda county and serves Alameda, Santa Clara and San Mateo counties.

Spousal support is an important issue in many California divorce proceedings. As California's First District Court of Appeals' recent ruling in In re Marriage of Cesana shows, the issue can become tricky when one or both former spouses' situations change over the years.

Nelly and Amedeo Cesana were married for 24 years before divorcing in 1985. Under the terms of a settlement agreement between the former husband and wife, Amedeo agreed to pay monthly spousal support to Nelly at a rate of 30 percent of Amedeo's income, capped at a maximum $9,000 per month. As the court explained, "Amedeo's financial circumstances varied greatly" in the years following the couple's divorce. As a result, the two agreed verbally that Amedeo would support Nelly to the best of his ability. He made varying payments until 2008.

Later, Amedeo experienced financial difficulty when the company that he founded went bankrupt shortly after the divorce. He subsequently started a second company with his new wife, Rhonda, and employed Nelly as an administrative assistant from 2004 to 2007. He did not pay marital support during this time, but began paying Nelly $1,500 a month after her employment with the company was terminated.

Amedeo (60 percent) and Rhonda (40 percent) owned the company jointly until 2007 when he transferred his ownership interest in the company to his wife, making Rhonda sole owner. A lawyer for Nelly contacted Amedeo by letter in January 2008, claiming that he owed Nelly a significant sum of money for missed spousal support payments over the years. Amedeo disputed the claim and shortly thereafter retired from the company, reducing his salary to $60,000 from $180,000. Rhonda, meanwhile, continued to work for the company at an annual salary of $140,000.

In the lawsuit that followed, a trial court ordered Amedeo to pay $1,500 per month in spousal support, as well as $15,000 for Nelly's attorney fees, but denied Nelly's request that he also be required to pay support arrears. In determining the monthly support sum, the court combined Amedeo and Rhonda's current salaries ($200,000) and divided the figure in half to calculate what it called Amedeo's annual income. The court explained that much of Rhonda's income was owed to Amedeo's efforts in starting and running the company. "[W]hile Rhonda has a significant management role in the company, and certainly performs more than just a clerical or administrative function,... it is inequitable and unreasonable to divide the collective income received by Amedeo and his wife in anything other than an equal manner," the trial court explained.

"If ever there was a case where the adage 'be careful what you wish for' applied, this is surely it," Judge P.J . Moore recently wrote, introducing the matter of In re Marriage of Barth. As Moore went on to explain, California law allows a court to order a parent to pay retroactive child support going back to an original petition for divorce, even if it was filed in the wrong state.

Jeffrey Barth spent years trying to avoid the enforcement of an Ohio court's ruling granting wife Andrea Barth's petition for divorce, custody and child support, only to have a California court grant similar petitions and order a substantially larger child custody payment.

The couple were married in 1989 and had two children. Ms. Barth filed for divorce in October 2004 after her husband admitted to extramarital affairs, according to the court. Following protracted litigation on the matter, an Ohio court awarded the divorce, granted Ms. Barth custody of the children and ordered Mr. Barth to pay $1,600 per month in child support.

Mr. Barth ultimately had the order overturned after the Ohio Supreme Court agreed that the state courts did not have jurisdiction over the matter because Ms. Barth had not lived in Ohio long enough before filing suit. Prior to the divorce, she left the state with her kids to join Mr. Barth in California, but returned shortly thereafter upon learning of her husband's affair.

Litigation moved to California, where an Orange County court granted the divorce and ordered Mr. Barth to pay retroactive support of between $2,700 and $3,125 per month for 2004 to 2005, $7,645 per month for 2006 and between $1,000 and $3,050 per month for 2007.

In a recent ruling in the matter of In re T.J., the Second District Court of Appeals tackled an important question that often arises in California child custody cases: which court has jurisdiction to consider a custody matter when the parents live in different states?

RJ and AJ married in Texas in 2001 and had a son, TJ, two years later. The couple split in 2004 and AJ moved to New Jersey with the child. The parents obtained a divorce in Texas in 2007. Through mediation, they reached a custody agreement under which AJ was declared the "Sole Managing Conservator" of T.J., with the right to decide his primary residence while RJ was given detailed visitation rights. RJ talked to TJ over the phone regularly and the child spent long stretches of the summer in Texas with his father.

After living together in New Jersey for several years, AJ and the child moved to California in 2011. The move was in part intended to help AJ cope with depression, her thinking being that the weather and a location change would improve her general mood. A few months after the move, however, AJ checked herself into a clinic with depression and thoughts of suicide. A hospital social worker referred TJ to the L.A. Department of Children and Family Services because AJ was unable to make other arrangements for him while she was being treated. AJ later completed her treatment.

The Department filed a petition in state court pursuant to Welfare and Institutions Code section 300, which gives courts jurisdiction to ajudicate matters concerning a minor child who has suffered or is at substantial risk of suffering "serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child." RJ then filed a motion seeking custody. The court later ordered that TJ be placed in his mother's home under Department supervision.

On appeal, the Second District reversed the decision, finding that the lower court lacked jurisdiction to issue it. The Uniform Child Custody Jurisdiction and Enforcement Act, which has been adopted as law in both California and Texas, "is the exclusive method for determining the proper forum in custody cases involving other jurisdictions and governs juvenile dependency proceedings," the court explained. Because the original decision regarding TJ's custody was rendered by the Texas court, that court maintained exclusive jurisdiction under the UCCJEA to decide any further custody-related issues.

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 significantly higher. 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 how the holidays are managed.

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, do it now. 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're going to share time during the holiday break. The plan can be fluid and can change, but a basic structure reduces mis-communication 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. Often it is worthwhile to go over 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 Maureen Palmer, the answer was more extreme. When she and her husband split up, their daughters, then aged 15 and 10, stayed behind in Edmonton with their dad while palmer took a job as a TV producer in Vancouver. She'd do homework with them every night over the phone and fly back to Alberta for four or five days twice a month (a schedule she kept up for a decade).

"Christmas was very, very big in our family," she says, and her girls weren't ready to let that go. So for two weeks every Christmas, she 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 Palmer, who went on to make the documentary How to Divorce and Not Wreck the Kids. It wasn't easy being a guest in her former home, and her need to impose her version of "order" 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 barely registered," says Palmer. "We didn't want them to feel any of the tension kids who are pulled between two households feel."



As for me, well I am having my partner's ex-wife and husband over for Christmas so that their kids get to be with both of their parents.

And although children's preferences should always be a priority, it is also important not to them too much input into how they spend the holidays. The burden of choice is problematic for kids "because they know it's going to make one of the parents really unhappy. Kids will often tell each parent whatever they believe he or she wants to hear. And for most children, that is a terrible place to be. 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 have changed after the 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, consider a mediator. A mediator is like a referee or better yet, your first grade teacher: Someone who will help you play nicely in the sandbox, or in this case the mediator's office, and hopefully just long enough to make a deal.

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

In a recent opinion, California's Fourth District Court of Appeals explained that when a couple has children and later marries, the marriage nullifies a child support order entered prior to it, even if they later divorce.

Mark Wilson and Tamara Bodine were not married when their son was born in August 2001. Bodine obtained a child support order in July 2002 that required Wilson to pay $1,600 a month in support and granting sole legal and physical custody to Bodine. The couple had a second child in June 2003. Then they married in 2005 and separated two years later. A court entered a judgment dissolving the marriage in January 2009.

Wilson filed an action in state court on June 2010, seeking a modification of the 2002 child support order. According to Wilson, he had recently received a notice from the Department of Child Support Services indicating the he owed more than $150,000 in arrears for unpaid support, including payments covering the time during which the couple lived together and were married. Claiming that the couple was operating under 50 percent time-share with both children, Wilson asked that the support award be re-determined based on this arrangement. In response, Bodine argued that Wilson owed unpaid support for a 15-month period after the order was entered and before the couple married.

Following two hearings, a lower court issued a ruling in July 2011, ordering Wilson to pay $100 per month "on undetermined arrears." The court did not determine the specific amount of arrears owed.

On appeal, the Fourth District ruled that Wilson could not be required to pay support following the divorce because the couple's marriage nullified the previous support order. The court explained that the situation was analogous to one in which a couple divorces and later remarries after a court has entered a child support award. Pursuant to the state Supreme Court's 1968 decision in Davis v. Davis, the support award is extinguished by the second marriage in such a scenario.

Conflict in the context of divorce can be emotionally and financially debilitating. Family court judges commonly make decisions and orders based on how the law applies to what has already transpired between the parties, to the past. And this approach keeps the spouses in a conflict trap where they are focused on the past and the grievances, hurts and betrayals; rather than on the future, and how they can best solve the problems in order to move forward.

Collaborative Divorce and Mediation on the other hand, enable the parties to focus on what is important for them now and in the future. By focusing on problem solving and real listening, there tends to unfold an understanding that can help couples let go of the conflict and the past and move forward in a productive way, solve the problems and help heal the pain, grief, and anger.

A forward looking focus, however, doesn't preclude talking about the past because sometimes it is important, essential even, for spouses to be able to express and have heard by the other, their understandings of what went wrong with the relationship. This mutual expression of the hurt and anger, if entered into with an open heart and deep listening can be profoundly instructive and helpful to the process. This is especially important if there will be a continuing relationship, for example, co-parents.

Usually, perception of the conflict radically changes when one's feelings, experience, and understanding are recognized by the other as completely valid, even if not agreed with. A goal of the understanding approach is to find connections between those in dispute. While understanding does not in and of itself resolve the dispute, it provides a foundation for productive problem solving. And when people can start to see the humanity in each
other, solutions tend to arise naturally.

Ultimately, this 'understanding' approach offers a way to achieve positive and respectful post-divorce relationships and enduring and mutually beneficial solutions. Not to mention the benefit of avoiding the financial and emotional pain of litigation.

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

Sometimes, quite often in fact, the flames of conflict in divorce cases are fanned by attorneys who have more to gain from conflict than from resolution. Against my better judgment, I recently accepted a litigation case with the hope that perhaps I could help facilitate a negotiated settlement. It appeared to be a matter that could be settled with relative ease. During the negotiation process between the attorneys, the clients had a long talk, longer than they had had in years from what I was told, and agreed to put the matter on hold for some time to see if they might reconcile and resolve some of the disputed issues between them.

Upon hearing this, I was tentatively hopeful for both and provided my client with resources he might consider to help improve their communication and relationship and suggested that marital counseling may also be very helpful. And of course, a flower or two wouldn't hurt.
When my client's spouse told her attorney of their plans, her attorney responded with the statement, "Oh, so he wins," and grudgingly prepared a stipulation to continue the scheduled hearing out for a mere three months. I was horrified but not really surprised.
This is a marriage of nearly 40 years, a couple of retirement age with adult children and grandchildren and very moderate assets. Divorce in a situation like this should be a last resort only after some attempt at counseling as it is certain to result in considerable hardship for both. And after nearly 40 years, there is so much to savor and cherish if reconciliation succeeds.


I sent this photo and waited, hoping that the gods and goddesses of peace and love would prevail. Alas, it was to no avail. Reconciliation and healing of the relationship proved futile but the parties at least tried to reach a settlement of the issues between them and rather than supporting them in their efforts, the other attorney dismissed and undermined their efforts, and most shocking of all, the wife told her husband she was afraid to discuss their proposals with her attorney because her attorney would yell at her.

I have no idea why anyone would hire and pay fees to an attorney who would yell at them. And I later heard that the attorney put a lien on their house to collect her fees.

Lesson for me: Never underestimate people's proclivity for conflict and the tendency of attorney's to exacerbate the conflict to line their own pockets. Just say no to litigation.

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

Marian, 57, and her husband for nearly 30 years, John, had buried their differences over money, child-rearing and more. But when the last of their two children was finishing high school, the differences became too glaring to ignore. Increasingly, they had little to talk about, and when they did, it was an argument.

They stayed together all those years because of the kids, but now there was little left to hold them together. Marian realized that she was alone in the marriage and would be better off either really alone or with someone who shared her values and interests. When the pain of staying was greater than the fear of leaving, she made a decision and told John the marriage was over.

For this generation of empty-nesters, divorce is increasingly common. Among people ages 50 and older, the divorce rate has doubled over the past two decades, according to research by sociologists Susan Brown and I-Fen Lin of Bowling Green State University, in their paper, "The Gray Divorce Revolution".
Though overall national divorce rates have declined since spiking in the 1980s, "gray divorce" has risen to its highest level ever, according to Prof. Brown. In 1990, only one in 10 people who got divorced was 50 or older; by 2009, the number was roughly one in four. More than 600,000 people ages 50 and older got divorced in 2009.

Moreover, a 2004 survey by the AARP found that women are initiating most of these divorces. Among divorces by people ages 40-69, it was women who sought the divorce 66% of the time. Infidelity is not a primary factor in gray divorces. The same AARP survey found that only 27% cited infidelity as one of their top three reasons for seeking a divorce. This is consistent with estimates of infidelity as a factor in divorce in the general population.
In 1990, 1 in 10 of all divorces were by people ages 50+. In 2009, 1 in 4 of all divorces were by people ages 50+.

As always, there is probably no easy explanation for the trend but it probably derives at least in part from the boomers' status as the first generation to enter into marriage with goals largely involving self-fulfillment. With 'empty nests' on the horizon and many more years of a healthy and productive life, they are increasingly deciding that they have fulfilled their parental duties and now want out of the marriage.

Boomers married with expectations quite different from those of prior generations. "In the 1970s, there was, for the first time, a focus on marriage needing to make individuals happy, rather than on how well each individual fulfilled their marital roles," says Prof. Brown, author of the gray marriage paper.

According to Professor Brown, over the past century there have been three "phases" of American views of marriage. First, there was the "institutional" phase, in the decades before World War II, when marriage was seen largely as an economic union.
This was followed in the 1950s and '60s by the "companionate" phase, where a successful marriage was defined by the degree to which each spouse fulfilled his or her role. Husbands were measured by their capability as providers and wives by their skills in homemaking and motherhood.

The "individualized" phase, began by boomers in the 1970's according to Professor Brown, with an emphasis on the satisfaction of personal needs. "Individualized marriage is more egocentric... before the 1970s, no one would have thought to separate out the self as being distinct from the roles of good wife and mother."

Many of those opting for gray divorce, face complications in our current bleak economic landscape. Although such divorces generally don't involve co-parenting and child support issues, only issues of property division and spousal support, and are therefore simpler in principle, there are still difficult decisions and choices to be made. And as always, these decisions and choices are best made by the couple themselves in a Collaborative or mediated divorce, with the assistance of professionals trained to help the couple work together to make the choices that will benefit both.

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At my favorite local restaurant last weekend I recognized a former divorce mediation client. She did not recognize me as I was dressed in early 19th century garb for a historical event. As I approached her table to say hello, I saw that she was with her former husband, also my client, and their two children.

Since it was a busy Sunday morning brunch in the restaurant and they were with their two young children, it felt inappropriate to inquire about the nature of their dining together. But I have to assume that it was one of two possibilities: (1) either they had reconciled, or (2) they were enjoying a post-divorce family brunch.

I suspect it was the latter, but either way, both are positive and wonderful outcomes that, in my opinion, would almost never occur had the divorce been a contested/litigated one.
This client, pleased with the mediation process, later referred a colleague of hers to me. When I met with the prospective client and her husband I asked, as I often do, what were the hopes and goals of each for themselves, their spouse and their children. The woman responded that she did not care what happened to her husband and did not want him to have any meaningful time with their children. This should have been a big red flag for me that perhaps mediation was not a suitable process for her.

What I should have said to the prospective clients and in particular the wife is that mediation may not be the right choice since it requires more honesty and fair-mindedness and the ability to value post-divorce family relationships than she might be capable of.

Not surprisingly, the case fell apart shortly thereafter and the parties retained litigation counsel and well over a year later, are still battling. Instead of working together to create a good outcome for all, they are presumably paying opposing attorneys to draft disparaging briefs as to the parenting skills and abilities of the other, which may or may not include false accusations and parental alienation, and filing and serving and complying with costly discovery requests rather than simply exchanging the requisite financial information required in any divorce, and the children are surely bearing the brunt of all this negativity.

My mediation clients who dined together on the other hand, even though there was considerable conflict and disappointment at the beginning, learned to see the divorce as a problem to be solved rather than a battle to be won, and learned to focus on creating a new family model for the benefit of their children. Together they worked in mediation to complete their financial disclosures, ascertain the nature of separate/community property and divide the property equitably. Together they discussed and decided how to co-parent and financially support their children, and in the process created a positive, respectful and supportive co-parenting relationship, indeed a positive, respectful, and supportive new family structure that enables joint outings like this that are sure to benefit their children tremendously.

I felt proud and satisfied that I was able to facilitate a process that enabled both clients and their children to enjoy each other's company together as a divorced and still happy family.

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