August 2011 Archives

August 29, 2011

California Child Custody Primer

Justia-photo-110 custody.jpegCornell School of Law recently published an overview as to child custody law and this reminded me that there are many people searching the internet for basic information as opposed to advanced information. As a San Diego Certified Family Law Specialist lawyer I search for blog topics that appeal to my continuing education interest; however, this article reminded me that there is a need for basic child custody information. So, this blog starts with the reference to the Cornell SOL article and this is an excellent place to start for a child custody primer.

The U.S. Census Bureau publishes reports on a variety of child custody and support topics. Child care arrangements can be found here, up to the year 2006. The U.S. Census Bureau has more articles as to child support statistics. Statistical reports lend themselves better to numbers than to "arrangements" so this is understandable. Much of what the U.S. Census Bureau publishes pertains to the underpayment or nonpayment of child support.

Wikipedia contains a section on parents who don't pay their court ordered child support. This section immediately cites statistics from the U.S. Census Bureau. Back to child custody--the specific issues are enormous: Move away custody orders; Legal Custody orders (does the child get the medical operation or not? Which school will the child attend?); Joint Physical Custody or Sole Custody; or Right of First Refusal.

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August 24, 2011

San Diego Divorce Analysis: How to Navigate the Family Court System

Justia-photo-109 people lined up.jpegAs a San Diego Certified Family Law Specialist attorney I am involved in the family court system every work day. Change is a part of life and tremendous changes are now occurring in the San Diego divorce court. It is the job of my office to recognize the trends in family law and to work with the changes in the system to assist our clients. Journalist and TV personality Greta Van Susteren posted an article on 8/20/11 as to the California economy (mismanaged and disastrous) and used the California divorce court system to support her conclusions.

Greta's divorce court example was taken from a Wall Street Journal news report written by journalist David Ferry and published on August 20, 2011. He described the efforts of a California family going through a divorce and seeking to use the free services offered at the court house. The Husband and Wife lined up at 9 a.m. and by 4:00 p.m., when the free clinic stopped their services, the couple had still not been seen or helped by a court facilitator. These two articles are not blaming the courts, the attorney, facilitators or judges. They both use this example of the near bankrupt status of the California economy and charge those who are in charge of the economy with negligence to a degree that there are millions of victims impacted by the reduction in government services.

In recent years the California divorce system used a quasi fast track policy to push family law cases through the court in 12 months. Today, with cut backs to court personnel, loss of judges, fewer clerks, it is projected that it may take two years to get a divorce case to trial. It may take months to get into court to hear an initial child custody motion. Months--what a disaster. San Diego Family Court judges each have case loads of 4,000 and more. An extremely difficult situation. A family law "mission impossible". My office is turning more and more to private judging as a way to assist our clients.

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August 23, 2011

San Diego Divorce Evidence: Burden of Proof

Justia-photo-108 missing money.jpegA commonly asked question in California is "how much does a California divorce cost"? Many times in answering this question one must consider "who has the burden of proof"? Wikipedia defines legal burden of proof through different examples and Latin phrases and also states that the person who does not have the burden of proof is assumed, by law, to have the winning side of the case. In other words, the person who does not have the burden of proof does not have to say or do anything in court unless the other party meets his or her burden of proof. These rules applies to property division and other family law issues.

As a San Diego Certified Family Law Specialist lawyer, my research came across a case that addresses the question of burden of proof; and that case is Marriage of Margulis. You may read the case decision here. Inspired by the facts of the Margulis case, consider this example in order to see the role of burden of proof in a San Diego family court trial: Husband and Wife were married for 10 years. At the date of separation Husband disclosed that he had stock and financial accounts, under his name, with a value of $900,000. For many reasons, the case does not go to trial for two more years. At trial Husband claim that the $900,000 is now down to $150,000.

He says that $750,000 is gone by virtue of the downturn in the market, and money he gave to Wife for support as well as paying off marital debts; but Husband fails to bring documents to court to prove all of this. Wife's attorney at trial simply shows the evidence of the $900,000 in stock and financial accounts as they existed at the date of separation and states that Wife requests that Husband pay her $450,000. The attorney cites the presumption that funds acquired during the marriage are presumed to be community property. The attorney shows that Husband was the spouse managing these accounts and argues that the Husband has failed to show any evidence accounting for the loss of these funds. (Divorce evidence takes many forms. See video below.)


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August 15, 2011

San Diego Attorney with Family Law Connection Arrested

Justia-photo-107 surrogacy.jpegThe shocking news did not result in a direct hit as to San Diego divorce or child custody; however it was too close for comfort and it needs to be discussed. Journalist Bonny Russell of examiner.com provides the horrific details in her news report. This news story is discussed here even though it involves surrogacy law which is a remote area of family law. "Surrogacy" is described by Wikipedia and it involves a woman surrogate giving birth of a child for a contracting couple. The surrogate might even have the embryo of the adopting mom placed in the surrogate's uterus.

The story that Ms. Russell breaks is that of a surrogacy attorney who reportedly went too far and broke the law. San Diego attorney Theresa Erickson, operating out of a Poway office, represented, according to the report, that she specialized in surrogacy law, involving egg donation and international clients. However the very expensive arrangements were reportedly fraudulent and violated law. According to the news, attorney Erickson pled guilty last week to charges related to fraud and faces sentencing in October 2011 which could bring a fine of $250,000 or five years in prison. Another defendant in this case reportedly described herself as a member of the American Bar Association Family Law panel.

If you research, you will find a photo of attorney Erickson; however it is not licensed for reuse so it is not included here. You will also find a book on Amazon which was reportedly authored by the attorney. I researched the State Bar of California website and found attorney Erickson still listed. Her listing states that she is involved in "Family Law". As a San Diego Certified Family Law Specialist attorney I picked up on this story and it leads to the topic of how can the public have some assurance that a divorce attorney is a solid choice.

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August 8, 2011

What Is The cost Of A California Divorce?

Justia-photo-106 mccourts.jpegIn a recent Los Angeles Times article journalist and sports writer Bill Shaikin discloses that Jamie McCourt might petition the divorce court to ask for the sale of the LA Dodgers baseball team. If you have not been following this case, the McCourts, Jamie and Frank, are involved in what might be the most expensive divorce in California history. They own the Los Angeles Dodgers baseball team as well as numerous properties in California. This blog has posted several articles regarding this case. We correctly predicted that Jamie would be successful in her motion for spousal support and we predicted that Jamie would be successful in her motion to set aside the pre marital agreement.

As a San Diego Certified Family Law Specialist attorney it is my field to follow legal trends in divorce law and family law in general. In recent months reports have described this case as financially destructive. The Australian just reported that this case could cost $35 million in legal fees. My office recently represented a spouse in a high income case. This couple had successfully sold businesses for millions and in one case for over a hundred million dollars. The case quickly was analyzed and successfully resolved. One of the spouses stated that one should never become emotional about business or financial issues.

So, where did this all go wrong for the McCourts? Both Frank and Jamie McCourt have expert, top rated, legal teams. I especially like the way that they have associated attorneys into the case to pull legal talent into their side of the case. Association of counsel is a practice that I use in some of my cases. However a quick scan of news articles* on this case show that the case is continuing to generate pre trial motions rather than to wrap this case up with a trial, or better, end this case with a successful mediation or negotiation. (*LA Times reports that Frank may request the court to lower Jamie's spousal support order; and, myfoxLA.com reports that the McCourts are heading for a mini trial as to the characterization of marital property.)

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August 4, 2011

California Divorce Report: Child Support News

Justia-photo-105 child support.jpegCBS 8, San Diego, reports a story of a congressman who reportedly owes over $100,000 in unpaid child support. Those opposed to the politics of the congressman are responding to this news by stating that his career is not effectively over. That he cannot go out into the public and campaign or speak as to financial matters when he cannot legally and properly handle his own financial matters. The congressman reports that the news stories are politically motivated and that individuals are attacking him to make him less effective as they disagree with his political views.

As a San Diego Certified Family Law Specialist attorney, my office handles cases involving the two family law issues that go hand in hand, namely child custody and child support. The child support laws in California provide that there are many factors that will determine the amount of a child support order. One such factor is the amount of child custody time that is awarded to the child support paying parent. In other words a parent who has 50% child custody will pay less child support than a parent who has 20% child custody.

I further researched the child support delinquency problem and found a web page that claims that it has the father's point of view. Whether or not this is true, it quoted government sources that provided interesting statistics as to this problem. In a study from many years ago, $10 billion per year in child support in not paid. Likely the unpaid child support is much higher now than at the time of this study. The article goes on to state that government is not very effective in collecting unpaid child support. At this point I turned to the National Coalition for Child Support Options. The NCCSO is an organization that describes itself as a coalition of people from all around the country who are devoted to address the "national epidemic" of unpaid child support.

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August 1, 2011

California Divorce News: Schwarzenegger Spousal Support Strategy

Justia-photo-103 Arnold Maria.jpegJournalist Megan Johnson of the Boston Herald reports that Arnold Schwarzenegger filed an amended divorce petition on or about July 25, 2011 under which places the issue of his Wife's spousal support before the California divorce court. Previously, his petition stated that Maria Shriver should be denied any right to spousal support. There can be no question that this was a significant change as every news reporting agency picked up this story. As a San Diego Certified Family Law Specialist attorney I want to raise the question of why Arnold Schwarzenegger changed his pleadings.

With a La Jolla divorce office, we handle spousal support issues in ordinary cases as well as high income cases. As to why Arnold Schwarzenegger would change his petition lets first consider whether he initially committed a mistake in the typing of his divorce petition. Divorce litigants, especially self represented litigants, commonly make mistakes in their divorce pleadings. My office took over a case last week from a self represented litigant (formerly known as a "pro per" litigant) and found a significant mistake on the petition that would have resulted in a significant waiver of legal rights. However, it is unlikely that Arnold Schwarzenegger's high priced and highly specialized divorce attorney made a mistake.

So next we turn to the reason of strategy (or, political correctness) as the explanation. Do you remember just a few weeks ago when Arnold Schwarzenegger's Wife, Maria Shriver, was found walking on the Santa Monica beach by the paparazzi? And similarly, when Sandra Bullock was found by the paparazzi walking alone in the mountains? Walking alone in an area of great natural beauty signifies humility and one reflecting on his/her life and the eternal lessons to be learned in going forward. It shows great inner strength and morality; even a spiritual side to the person. The opposite of this would be a celebrity who surrounds oneself in gaudy selfish displays such as riding in a chauffeured limousine to a ridiculously expensive bar or night club while in the midst of a divorce. These cases do get publicity as seen by the video below.

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