Bay Area Divorce Lawyer Blog

If you watch a lot of TV crime dramas, you may already be familiar with a criminal defendant’s right to an attorney, and, of course, the person’s right to be told that he or she is entitled to an attorney. In fact, the right to seek legal counsel is important in a wide variety of litigation contexts, including divorce and other related proceedings. In In re Marriage of Metzger, California’s Fourth District Court of Appeals explains that the right to counsel may also extend to a child who is the subject of a custody dispute among parents.

my-shadow-937478-m.jpgHusband and Wife were married in November 2003 and had a daughter, M, one year later. Wife filed a petition to dissolve the marriage in June 2009. Following a number of delays, extensions, and squabbles over depositions, and autism screenings for M, the trial court granted the dissolution and scheduled a separate trial on the issue of child custody in 2012.

Over Husband’s opposition, the lower court later issued an order appointing a lawyer to represent M in the proceedings and obligating Husband to advance $100,000 for the attorney’s retainer, an amount the trial judge said should ultimately be reimbursed from the spouses’ community property. The trial court said the move was justified by Wife’s concerns about whether the child might be autistic. Husband had previously dismissed the concerns as delay tactics, while Wife argued that M showed some signs of developmental delay. The trial judge said M was caught in the middle of the debate and “needs someone to speak for her.”

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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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Anyone who has been through a divorce probably already knows that it can be a stressful, complicated, and emotionally and financially draining experience. The legal issues involved may be even more complex in situations where the couple work together running a business. In In re Marriage of Greaux and Mermin, California’s First District Court of Appeals explains that the spouse who is ultimately awarded the business has the right to protect it from being devalued by the other spouse. In some cases, that may include seeking a court order to stop the spouse from starting a competing business.

stapling-machine-1440644-m.jpgIn this case Wife filed for divorce in 2009. During the six-day trial that occurred two years later, one of the few remaining disputed and unresolved issues was what to do with the beverage company they owned and jointly operated during the marriage. The company distributed and sold a type of rum.

The business was community property and the judge determined that both spouses brought “unique talents to it.” Husband had little education, training, or experience running a business, but the judge said his considerable effort and determination were “crucial” to the business’ success. Husband also developed relationships with others in the industry whose experience and personal relationships were very helpful to the business. Wife, on the other hand, had marketing and sales skills also crucial to the business, and her family history in the Caribbean served as the “brand story.” The trial judge also noted that Wife had a deep understanding of the rum, its ingredients, and the process for making it, and had qualified as an official industry “taster.” She was designated in company investment materials as the “face of the brand.”

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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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Retirement benefits are an important piece of the puzzle in transitioning comfortably to life after work. And often, they are the subject of intense debate in divorce proceedings. In In re Marriage of Green, California’s Supreme Court considered what to do with retirement benefit credits made available based on service before the marriage, but paid for with community money.

fire-extinguisher-483491-m.jpgMr. Green began working as a firefighter in 1989 and married his wife, Ms. Green, roughly two years later. He continued to work for the Alameda County Fire Department over the course of the marriage and earned retirement benefits through the California Public Employees’ Retirement System (CalPERS). Mr. Green also exercised his option to purchase four additional years of service credit for retirement purposes based on his stint in the U.S. Air Force before joining the Department. Under this option, Mr. Green agreed to pay bi-monthly installments of $92 for 15 years.

The Greens separated in October 2007. At that point, Mr. Green had paid more than $11,400 in payroll deductions toward the additional retirement credit. The payments were scheduled to be completed in July 2017.

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I’ve long believed that Californians thinking about divorce and grappling with related issues like child custody and support consider avoiding the time, cost and stress associated with the traditional judicial system by exploring alternatives like mediation and collaborative divorce. But sometimes, well actually very rarely, that’s just not possible. When proceeding in court, it’s vital to remember that there are a wide range of procedural rules that you must follow closely or otherwise risk losing your case. The First District Court of Appeals’ recent ruling in In re Marriage of Kosharek is just one example of that risk.

please-stay-on-path-578462-m.jpgMs. Kosharek sought to modify her former husband’s child support obligation in November 2011. She argued that Mr. Egorov didn’t spend as much time with their two children as had been anticipated in the original custody and support order issued at the time of their divorce. The order had assumed a roughly 50-50 split of time between the parents and crafted the support award accordingly. Egorov opposed the modification.

After hearings in August and November 2012, a trial judge issued a ruling finding that the children spent only about 22 percent of the time between March and August of that year with their father and ordered that he pay additional child support for this time as a result. The judge further found that the children spent equal time with their parents going forward from September 2012 and re-adjusted the child support obligation accordingly.

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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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We live in a highly mobile society. That means it’s no longer out of the ordinary for spouses who are married in one state to be living in another when they later separate and divorce. Nor is it unlikely for spouses to be living in two separate states when one or both files for divorce.

usamap-jpg-1417432-m.jpgForum non conveniens is a discretionary power that allows courts to dismiss a case where another court, or forum, is substantially better suited to hear the case. In In re Marriage of Malcolm, the state’s Sixth District Court of Appeals explains how the legal doctrine applies in California divorce cases in which the spouses are located in different states.

Mr. and Ms. Malcolm married in Carmel, California in 1999. They later had three children, with whom they primarily resided in Aspen, Colorado. They paid state income taxes in Colorado, held driver’s licenses issued by the state and were also registered to vote there. They also kept ties in California, however. The Malcolms founded a company in Sunnyvale, where Mr. Malcolm worked five days a week. Ms. Malcolm served as the company’s general counsel, but worked primarily from Aspen. The family also owned two homes in California, in Los Altos and Carmel. Mr. Malcolm, a licensed pilot, maintained a hangar and apartment at the Monterey Airport, where the couple kept their four planes.

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