Articles Posted in Mediation

Child support payments are intended to help cover kids’ basic costs, including money for food, clothing, and shelter. Sometimes, other costs come up. As California’s Fourth District Court of Appeals recently explained, any healthcare-related costs that arise along the way are usually considered additional child support costs to be split evenly between divorced parents.

Husband and Wife separated in 2007. A court awarded Husband primary custody of the couple’s daughter in 2012 and ordered Wife to pay him $540 in monthly child support. The court also ordered Husband to pay Wife $1,800 in monthly spousal support. In reaching the decision, the court found that Wife was making about $2,000 per month, while Husband was bringing in roughly five times that amount.

Father went back to the court about five months later, informing it that a juvenile court had ordered the couple’s daughter to spend four months in an inpatient substance abuse program in juvenile hall or be placed in an inpatient rehabilitation facility. Father asked that Wife be ordered to pay half of the $8,000 per month it was going to cost to send Daughter to the out-of-state facility. He said Wife had insisted on sending Daughter to an inpatient facility and had agreed to foot half of the bill. Husband added that his savings were rapidly depleting and that he could no longer afford to pay spousal support, since he was paying for Daughter’s care.

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Many divorcing couples who wish to resolve the issues in their divorce with their personal and economic dignity intact, preserve or create a positive co-parenting relationship for the benefit of their children, save money and preserve assets, or for a host of other good reasons, choose mediation or Collaborative Divorce rather than litigation and traditional attorneys. Such folks tend to see divorce as a problem to be solved rather than a battle to be won.

But whatever process is used, divorce in California requires that a Petition for Dissolution and Summons be filed by one spouse and served on the other spouse in order to commence the dissolution process and to establish the court’s jurisdiction to terminate the marriage.

The Summons, in particular, can be problematic. The first page states, “You are being sued” and “you have 30 days to respond” and the second page sets forth numerous rules called automatic restraining orders. It is not uncommon for spouses who are trying to work together in a civil and respectful process to be shocked and somewhat hurt when faced with a document telling them they are being sued by their spouse.

In a new commercial in India for Tanishq jewellery, a woman preparing for her wedding puts on a Tanishq necklace. At the ceremony, her daughter calls her asking if she can participate in the pheras, an Indian ceremony where the couple walk around a fire seven times while saying their vows. The groom is moved by the girl and picks her up, filling his bride with emotion.

A non-Indian would likely miss this point, but it is clear in the ad that this is a second marriage for both bride and groom, and since historically in India, divorced or widowed women are outcasts, the ad is contrary to Indian tradition. The ad is apparently causing quite a stir in India with viewers talking about the cultural taboos and also about the bride’s relatively dark complexion, a turn away from the country’s mainstream obsession with light-skinned lead actresses.

The ad has sparked conversations on Twitter, with celebrities and politicians also weighing in. Parliament member and industrialist Naveen Jindal praised the bride’s darker skin tone and the non-traditional marriage. Apparently, the team that created the ad chose the actors to ensure the couple would look like one of respectable equals, because otherwise traditional-minded Indians might otherwise have assumed that the man was marrying the divorced or widowed woman out of pity.

Child custody and support are often common issues in California divorce proceedings, both for children born during the marriage, as well as those born prior to one or both spouses prior to their marriage.  In In re Marriage of Abbate, the Fourth District Court of Appeals explains the circumstances where a divorcing spouse may be required to pay support even if he or she isn’t the natural parent.

Ms. Camarata had a three-year old son when she married Mr. Abbate in 2005 and the parental rights of the biological father of the boy were terminated one year later. Abbate agreed to assume the role as the boy’s father, and the couple filed a petition for Abbate to become the child’s adoptive father the same year, but they divorced before the petition was approved.

In 2007, Camarata took her son to a hospital for treatment, asserting that that he’d been sexually molested. The boy was sent for therapy, which the court said continued until at least June 2010. Believing it was Abbate who had molested her son, Camarata left the marriage and filed a petition for divorce. She named Abbate as the child’s adoptive parent and asked for child support. A court granted a dissolution of the marriage in 2010, but denied the request for child support.

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If you’ve previously read this blog, you may already know that we generally advise divorcing spouses to avoid the court system as much as possible and to strongly consider alternatives to traditional divorce litigation, including mediation and collaborative divorce. A recent case out of California’s Fourth District Court of Appeals is a good reminder of one of the major drawbacks of the traditional system:  the significant possibility for unreasonable delay and improper judgments.

In this particular case, the spouses’ divorce was assigned to a court commissioner. Since the judiciary is flooded with work, the powers that be have devised a system in which non-judge commissioners act as “temporary judges” to hold hearings and render decisions in divorce and other matters. However, this particular commissioner was not qualified to render a decision.

Husband and Wife divorced in 2004 and entered into a marital settlement agreement in which the couple agreed to split child care and health care expenses for their children, and Husband pledged to pay child support on a sliding scale that eventually increased to more than $800 per month. In March 2011, the San Diego Department of Child Support Services levied money from Husband’s bank account for unpaid support and filed two motions against him:  one seeking to modify the payments and require Husband to look for a job and the other asking a court to determine the amount that he owed Wife in past due support payments.

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Sometimes courts get it wrong. If you’re unhappy with the outcome of a divorce case, you have the legal right to file an appeal. As California’s First District Court of Appeals recently explained in In re Marriage of Shimpi and Sonawane, however, a party filing an appeal bears the burden of providing a detailed record of the proceedings in order to show where the lower court made an error.Husband and Wife were married in January 2003, and Wife gave birth to their only child 11 months later. Wife filed for divorce in October 2008. In the litigation that followed, the spouses disputed the date on which they separated. Wife claimed that the separation date was Aug. 1, 2008, while Husband maintained that the separation actually happened in December 2006. Husband submitted a number of e-mail exchanges between the two spouses and family members, which the First District later said “reflect the demise of the parties’ relationship,” in support of his claim.

After a January 2013 hearing, however, a trial court ordered that the marriage be dissolved and set the separation date at Aug. 1, 2008, per Wife’s request. It also ordered Husband to pay nearly $550 in temporary spousal support and nearly $1,100 in child support. The spouses later agreed to a settlement during a mandatory conference.

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Spouses considering a divorce often have second thoughts, and many choose to give the marriage another chance before calling it quits. For those who try to reconcile after a petition for divorce has been filed in court, it’s important to keep in mind how this may affect the case from a legal perspective. In In re Marriage of Honarkar, the Fourth District Court of Appeals recently looked at one of these issues: the application of the five-year dismissal rule.

Husband filed a petition for divorce in September 2000, alleging that the couple had separated two months earlier. They’d been married for 16 years at the time and had two children. Wife responded to the petition by arguing that the couple had, in fact, not separated. Nothing further was filed and no action taken until Wife filed an amended response nearly six years later. This time, she said the parties had separated in December 2005. She also filed a motion asking the court to rule on custody of the children and support.

After Husband failed to respond to Wife’s motion and didn’t appear at the scheduled hearing, the court entered a November 2006 order granting the couple joint custody of their minor child and requiring Husband to pay Wife more than $24,000 per month in child and spousal support.

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

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

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