July 2010 Archives

July 30, 2010

California Divorce Can Be, But Need Not Be, Destructive

Justia-photo-44 Dodgers.jpgAs a San Diego Divorce attorney and Certified Family Law Specialist, I constantly read articles published in my field. There is an in depth article about the Jamie and Frank McCourt California divorce which is ongoing at this time. The article was published by ESPN The Magazine and written by Molly Knight. It should be must reading for anyone about to get a divorce. The lessons of the McCourt case apply to all. There are just several zeros missing from the average Californian's divorce and the McCourt's case; however the issues are the same.

Jamie and Frank McCourt own the LA Dodgers. They had a humble wedding in their apartment in 1979. A Rabbi played the piano. Since that date they have amassed millions (billions?) through their relationship--their mutual trust--their hard work combined with their talents. Marriage requires trust. When it works, a couple can do almost anything.

After this incredible history, the article put together by Ms. Knight, describes how Jamie McCourt learned of her Husband's decision to end the marriage through a 405 word e-mail message starting with "Dear Jamie". Now their case is headed towards a Family Law trial. Here are some thoughts:

If you have children: Prior to reaching this point spend some time in counseling. Either secular or church marriage counseling. During the marriage find some way to stay grounded. How did this humble couple become so insensitive to each other that those around them passed on rumors of their fights? And a marriage ending with a CEO like e-mail? Working together to make vast sums of money is great and an inspiration to others; however, trouble begins when the importance of the money supersedes people and relationships.

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July 27, 2010

San Diego Divorce News of Abuse, Lies and Audiotape

Justia-photo-43 tape recorder.jpgIn the middle of July 2010 the news stories were full of the audio taping of a conversation between Mel Gibson and his supposed girlfriend, Oksana Grigorieva. SignonSanDiego.com carried a story written by Anthony McCartney, an AP entertainment writer, as to this story. Reportedly Mel and Oksana were face to face and Oksana covertly recorded Mel in his outburst(s) against her.

As a La Jolla divorce attorney we received many cases into my office pertaining to Domestic Violence Restraining Orders. We are often asked, "can I record the telephone call"? Or, "can I record my spouse (or the person with whom the client was living)"? California law on these questions can be complex. The answers here are for information purposes only. You must clarify these questions with an attorney as the answer may change according to the circumstances.

First, you must make a distinction between recorded telephone calls and in person conversations. California requires mutual consent, or two-party consent as to taping phone calls. For many of our clients, when the situation is appropriate, we obtain a court order which specifically allows the taping of phone calls. California provides a Penal Code section for the recording of a phone call without prior court approval and without consent. Since this code section may result in serious consequences, one must be very cautious prior to recording a phone call.

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July 23, 2010

California Divorce--Elkins or Small Claims Court?

Justia-photo-42 orange co court house.jpgAs a San Diego Certified Family Law Specialist attorney handling divorce and other family law matters for over thirty years I've seen different approaches by the Family Court in San Diego California, to family law over the years. The two approaches have always been whether to treat divorces as informal, administrative hearings, or whether to treat them as regular, civil litigation cases. Under the first approach there would be a relaxed approach by the court as to the taking of evidence, following discovery rules and other procedural rules applicable to all civil cases in a California Superior Court. This would be similar to informal administration hearings or Small Claims Court.

The second approach recognizes that California divorces are heard in a court of Equity however, in the San Diego Superior Court where the rules of evidence, procedure and discovery all apply as they would to any civil case in the Superior Court. Take for example the legal procedure of discovery.

"Discovery" is a legal word which signifies the procedures, techniques for requesting data, documents and information. And, The Discovery Act provides for enforcement including punishment, for the failure to comply with discovery items properly requested. I have had many cases where the one courtroom prefers strict adherence to the procedural and discovery and issues sanctions for noncompliance. I've experienced other courtrooms where the relaxed approach is applied and discovery sanctions for non-compliance are often not issued. In informal court rooms if the failure to comply with discovery requests (specifically, by issuing sanction orders) then the attorneys know that the cost of discovery isn't worth the effort and the cost. In these cases, the attorneys' ability to seek evidence is limited and the result is--Small Claims Court.

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July 16, 2010

California Divorce Filing Analysis: Kelsey Grammer Case

Justia-photo-41 Kelsey Grammer.jpegAs a La Jolla Divorce attorney and Certified Family Law Specialist I have reviewed many divorce filings. I have received the initial divorce paperwork filed by Camille Grammer. She is the Petitioner in this divorce action filed in the Los Angeles Superior Court. There is a good article about this filing by Joe Dziemianowicz and Nancy Dillon in the New York Dailey News.

Camille, in her Petition, states that the parties were married for 12 years and 10 months. They separated on June 28, 2010. They have two children. (Names of children are not discussed in this blog.) Camille states that she is not fully aware of the community property and separate property. This is standard. Her attorney will take on the obligation of issuing various discovery demands so that she will be better informed of the property identity, valuation, characterization and how items should be divided. Camille requests a dissolution of the marriage based on "irreconcilable differences". (It takes two to get married; however, under California no-fault law, one spouse may state that he or she is done with the marriage without having to specify any reason.) Camille requests sole physical custody of the children with visitation to Kelsey; spousal support (no spousal support to Kelsey); division of property and a Statement of Decision per CCP section 632.

In her Declaration Under UCCJEA, Camille states that her address is "confidential". Under FC section 3429 she may do so if there allegations of domestic violence or child abuse. Either this is just to protect her celebrity home address or this will become an ugly California child custody case. Reportedly, Kelsey is seeking joint physical custody of the children.

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July 14, 2010

California Divorce Blunders -- Out of Court Statements

Justia-photo-40 smoking car.jpegElon Musk, co-founder of PayPal, CEO of Tesla automobile (battery powered sports car as fast as almost any gas guzzling street muscle car) reportedly released his own blog in response to several articles concerning his divorce; his representations about his income and personal matters. He specifically stated that he was responding to large newspaper editorials and articles about him; however he addressed points (almost point for point) of the last blog that this site published concerning his divorce. This blog will deal with his comments as to his income.

As a San Diego Certified Family Law Specialist let me start by saying I don't know if Mr. Musk is telling the truth as to his income. It is the function of a legal system to rule on the legal issues according to the evidence. If someone is found to lack credibility, then any or all of that person's statements may be discounted by the judge; however that is a part of ruling on the issues per the evidence. San Diego divorce lawyers gather evidence in support of their client's case.

Elon Musk and Mel Gibson made the news this week with their out of court comments. Mr. Musk intentionally made his statements to the world. Mr. Gibson, in this blog's opinion, is ill (in need of counseling and possibly rehab) and his statements were recorded secretly without his knowledge or consent. Both Musk's and Gibson's comments were ill advised and have the potential of hurting each of their legal cases.

His main comments and responses from this blog. Note: an Income and Expense Declaration for Mr. Musk, utilized for financial issues in this case, is visible on the Internet. This blog makes no representation as to whether this is actually Mr. Musk's Income and Expense Declaration. Other articles have been written based on this document. This blog refers to the content of this document and the attached "Attachment 1 To Income and Expense Declaration of Petitioner Elon Musk".

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July 8, 2010

Sandra and Jesse are 'no mas': Analysis

Justia-photo-39 sandra bullock.jpegA San Diego divorce news report summed up the Sandra Bullock Jesse James marriage and divorce. Here, a San Diego divorce attorney provides an analysis to the case. What did we learn? How did the parties go from picture perfect marriage, to divorce in an instant? Why didn't Sandra see the high probability of this ending with divorce?

The San Diego news story originated from work performed by AP Entertainment writer, Sandy Cohen. It's a well researched article and added to my knowledge of this case. Reportedly, the couple met in 2003 and married in 2005. So many marriages that end in divorce were marriages entered into by impulse. Here, two years of dating should have exposed all personality traits and faults. However, reportedly, Jesse was married twice previously and this was Sandra's first marriage. Sandra was approximately 41 years old when she married Jesse. Reportedly, Sandra had previously dated actors (for example, Matthew McConaughey), and football star Troy Aikman. At age 41 wouldn't she be a fairly good judge of character? And, how did she go from the clean cut type to Jesse?

The 'not previously married' phrase may be the answer; however at age 41 and after dating Jesse for two years one would think that she knew what she was getting into. The Discovery Channel reportedly linked Jesse's genealogy to the infamous Jesse James outlaw. However more recently, his second wife was reportedly an adult movie actor. One reasonable conclusion is that Sandra took a calculated risk and proceeded with the marriage believing that the relationship would be beneficial to her career.

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July 5, 2010

California Divorce Report: Mel Gibson Meltdown

Justia-photo-38 mel gibson.jpgTMZ just circulated a story of Mel Gibson being secretly taped by his Wife Oksana Grigorieva. Reportedly he used the "n" word and a lot of other words from the alphabet. It was an alphabet soup message and it's being used by Oksana in her child custody case against Mel Gibson which is pending at this time.

San Diego child custody attorneys, La Jolla divorce lawyers and others are shaking their heads over this classic rookie mistake which is made over and over every day in California child custody cases. If you haven't heard this before then please write this down: Assume that any written messages to your spouse, in the midst of a divorce, will end up in front of the family law judge. This includes e-mails, text messages, any form of communication which can be taped, copied, printed, etc. E-mails and text messages are forever. An extreme e-mail exhibiting hate, mental instability, bad character, suicidal tendencies, etc., will be used against you in today's divorce case and against you ten years from today.

First, let me get it out that I am not one who dislikes Mel Gibson. I understand that people either love him or hate him but there must be a third group who are in the middle and I'm one of those. He's a passionate person. He expresses himself in the extreme. He possibly has a substance abuse issue. I have had cases where clients who abuse alcohol become angry when they are intoxicated. These people should not drink.

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