Bay Area Divorce Lawyer Blog

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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For those who must litigate and who cannot afford to hire an attorney to represent them or who want to be in control of their own case, unbundled services can be a great solution.

Unbundled legal services, also known as limited-scope services, are legal services that are broken down and offered as individualized legal services, instead of “bundled” legal services–which generally means full legal representation. An attorney offering unbundled legal services makes it possible (and financially feasible) for someone to receive vital legal assistance without incurring great financial detriment.

In limited scope or unbundled representation, an attorney and client agree to limit the scope of the attorney’s involvement in a lawsuit or other legal action to specific items, leaving responsibility for other aspects of the case to the client in order to save the client money.

There are pros and cons to this approach. The pros for the client are saving money on attorney’s fees and possibly getting the case/issue resolved at a faster pace. The cons are that there are oflten pitfalls for those untrained in the law, so if a matter is complicated or if you feel it is too complicated for you, then perhaps full representation is warranted.

TYPES OF UNBUNDLED LEGAL SERVICES

• Consultations

• Legal and Court Coaching

• Document Review

• Preparation of Documents

For example, if you are getting a divorce and you only want an attorney to help prepare the documents that you will need to file, the document preparation is an unbundled service.

Quite often, folks do their own divorce but find that the paperwork, particularly at the end of the process, is more burdensome than they had anticipated and find unbundled services to complete the process to be very helpful.

In another situation, one may derive great benefit from having an attorney draft a declaration as part of a Request for an Order or a Response to a Request for an Order. It is very important that these declarations be as clear and concise and as well written as possible while also conveying the relevant information that is important for the judge’s decision. Relevance is key, the only information a judge wants to see is information that is relevant to the issue to be decided and it is common for non-lawyers to add information that may be very important to them, but is not relevant in terms of the legal issue to be decided. Judge’s have volumes of material to read before hearing a matter and don’t like to have to read material that is not relevant and/or not well written. It is to a litigant’s benefit to provide written material that will not irritate the judge.

The Law & Mediation Office of Lorna Jaynes offers unbundled services to suit your needs and will help you evaluate whether using an unbundled service will work for you. Our compassionate services will provide you with the information you need to move on with your life, so contact us to learn more about these services.

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

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

Make a plan

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

Focus on the kids

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

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

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



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



Create new traditions. 

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

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



Stay busy. 

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

Stay hopeful. 

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

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

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

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

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

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

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

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California custody determinations often turn on the well being of the child, leaving courts to determine whether a particular living situation is suitable for a child’s physical, mental and emotional security and development. Recently, the state’s First District Court of Appeals took on a unique version of this question when it was asked to decide whether living with a grandmother and her boyfriend who are practicing nudists is detrimental to children. At least in this case, the answer was “no.”

888677_sexy_feet__1.jpgIn re Marriage of Meyer involves spouses Wendy and David, who were married in 2000, and their two daughters. The kids were ages ten and four when David, who had become estranged from his wife, filed a petition seeking sole legal and physical custody, with visiting rights for Wendy, in November 2010. One month later, Wendy took the girls out of school and moved with them from the family’s home in Castro Valley to her mother’s apartment in Fairfield.

At a hearing in March 2011, the couple gave differing versions of two events involving alleged physical abuse. Wendy asserted that David was the aggressor in two physical confrontations, which took place in 2002 and 2008, as well as during a number of other incidents. An Alameda County police officer backed up this version of the events, testifying that he arrested David for the 2008 incident after arriving at the scene and interviewing both spouses as well as their oldest daughter. According to the officer, Wendy had injuries consistent with domestic violence and the daughter essentially corroborated her version of the events.

David, on the other hand, argued that Wendy was the aggressor on both occasions and that he simply tried to defend himself from her attacks. Further, according to David, the living situation in Fairfield was detrimental to the girls because Wendy’s mother and her boyfriend were nudists and lived in “Section 8″ public housing in a bad neighborhood. He also argued that the girls had been harmed by being uprooted from their school and social circles and that he did not get to spend as much time with them following the move to Fairfield.

The trial court awarded Wendy full legal and physical custody of the children with David having weekly visits and phone calls. The court said there was no evidence that the girls’ current living arrangement was “anything but wholesome or presented any type of danger.”

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

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

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

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

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

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

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

The ultimate goal in resolving child custody and co-parenting issues is to reach a resolution that is in the best interests of the child. In In re Marriage of Erb, California’s Fourth District Court of Appeals explained that sometimes that means limiting the amount of contact former spouses have with each other.

1162764_daddy.jpgMother and Father were divorced in February 2004. The parties agreed that they would share legal custody of their then two-year old daughter (Daughter) and that Mother would have primary physical custody over the child, while Father would keep visitation rights.

Four years later, Father asked that the arrangement be changed so that Daughter would spend Wednesday nights with him and that his time with her be increased gradually until both parents shared equal time. A trial court agreed to increase Father’s time with Daughter to a more limited extent. Mother retained primary physical custody.

Following further litigation, however, the trial court agreed to a co-parenting plan submitted by Daughter’s independent counsel in June 2011. The plan provided for equal sharing of time with Daughter by Mother and Father under a “2-2-5-5″ arrangement. Mother got two days with Daughter, Father got the next two days, then Mother got five days with Daughter and Father got the next five days.

Based largely on input from Daughter’s attorney – who interviewed Mother, Father, Daughter, her step-parents and a number of other family members – the trial court ruled that it was in Daughter’s best interests to put an end to the contentious litigation between her parents that had then been going on for seven years. “[W]e can’t go on like this,” the court said simply. It noted that the 2-2-5-5 plan would both add stability to Daughter’s everyday life and limit the number of exchanges between Mother and Father in an effort to avoid further disputes.

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There are certain circumstances in which a California court will allow a person to adopt a child, even where it is without the consent of one of the birth parents. The state’s Fourth District Court of Appeals recently considered a rather extreme (not to mention scary!) example of the type of situation in which such an adoption may be permitted in In re Adoption of Janelle M.

1350860_hand-in-hand.jpgRM and BB married in 2002 and the couple had a child – Janelle – three years later. They eventually separated in 2008 and BB filed for divorce, claiming that RM had physically and emotionally abused her over the course of their marriage. One month later, RM’s friend allegedly told BB that RM was plotting to have her murdered. In addition to contacting the local police, BB obtained a restraining order, moved to a confidential location and had RM’s scheduled visits with Janelle discontinued. Janelle was three years old when she last saw her father in 2008. He was jailed the same year and later convicted for solicitation of murder.

The couple’s divorce was finalized in 2009 and a court granted BB sole legal and physical custody over her daughter. RM, who was released from prison the following year, was not allowed visitation rights. He was also not ordered to pay child support until April 2012.

BB married RB in November 2011. According to the Court, RB supported Janelle “financially and emotionally” for at least two years prior to the marriage. BB’s restraining order against RM was renewed the next month.

RM nevertheless sought visitation with Janelle shortly thereafter. He and BB attended family court mediation in early 2012. The mediator recommended that BB retain custody and that psychological evaluations and clinical assessments of RM, BB and Janelle be conducted to determine whether RM posed a risk of harm to his daughter.

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