November 2, 2011

California Foster Children Deal With Identity Theft

Foster children, almost by definition, have faced more than their fair share of obstacles and difficulties. Whatever circumstances brought them into the foster care system, someone in a position of authority had to make a determination that those circumstances merited removing them from their homes and placing them somewhere else. It is therefore upsetting to learn that foster children in California and around the country are becoming the victims of identity theft in ever greater numbers, as reported recently in the California Bar Journal. Often because of the uncertain situation in which they live, foster children make an attractive target for unscrupulous identity thieves. California divorce attorneys who might have to deal with situations of abuse or neglect of children must understand the risks these children face.

Children usually land in foster care after a report of abuse or neglect leads to an investigation by state or local child protection agencies. Case workers may recommend removal of the child or children, who may then be placed with relatives or with families approved by the state as foster homes. In some instances, children may go to a facility such as a hospital or group home. While the removal may prove to truly be in the child's best interest, it often leaves the child emotionally, and as it turns out financially, vulnerable. Identity thieves may prey on them for their pristine credit scores.

An investigation led by the California Office of Privacy Protection in Los Angeles County looked at older children in the foster system to determine the extent of the problem and develop processes to repair damage and prevent future harm. State and county officials ran credit checks on 2,110 youths aged 16 to 17 in the foster system. Generally speaking, children should not have credit histories. They found that five percent of the group, 104 children, had credit problems. They identified 247 accounts opened in these children's names, with some resulting from simple errors and others from outright identity theft. They found an average account balance of $1,811, and in one case a child had a $217,000 home mortgage outstanding. The officials were able to clear all of the problem accounts.

Studies on identity theft have yielded widely varied results. A study by a security firm that deal with identity theft issues found possible identity fraud in 140,000 children out of a total of 172,000 enrolled in their program. Another firm found 10.2 percent of the children enrolled had suspicious outstanding credit balances.

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October 27, 2011

California Law Gives Minors Right to STD Prevention Without Parental Consent

schoolbandred_10262011.jpgA controversial new law in California, Assembly Bill 499, allows minors between the ages of 12 and 17 to receive vaccinations and preventative treatment for sexually transmitted diseases without first obtaining parental consent. This includes the vaccine that prevents HPV infections in girls and women. HPV can cause cervical cancer in many who are infected. Several other states have passed laws either allowing or mandating this particular vaccine, and these moves have been quite controversial. Supporters of the California law, which was introduced by Democratic Assembly Member Toni Atkins of San Diego, say that it provides needed protection for children aged 12 to 17 years from serious health concerns. Opponents have expressed concern over both the safety of the vaccines themselves and the broader implications for parental rights to make decisions regarding their children's health. The law could have an interesting effect on the practice of San Diego divorce law, both in how parents approach the issue of medical decisions in negotiation or litigation and in how attorneys draft divorce and custody decrees.

Before AB 499 became law in August of this year, California did not allow teens access to preventative treatments for STD's without parental permission. Teens already had the legal right to seek treatment for existing infections without notifying their parents. Proponents have acknowledged that parental involvement is ideal, but not always possible. Part of the rationale offered for the new law is teenagers' need to access preventative health care regardless of their family situation, such as where parents are absent, abusive, or suffering from addictions or disabilities that might prevent them from engaging in the child's health care decisions. Critics have argued that this is too great a burden to place on children as young as 12, and that the law should emphasize uniting parents and children rather than separating them.

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October 20, 2011

Preventing Domestic Violence in San Diego

In the past year, San Diego County has had 17,000 reported incidents of domestic violence. Twelve domestic violence cases resulted in murder. Both the City and County of San Diego recently announced the formation of the Domestic Violence High Risk Response Team, a collaboration between city and county law enforcement to identify cases with a high risk of extreme violence or death and to direct resources to the victim right away. Additionally, a program called Thriving, Healthy Relationships in Violent-Free Environments will handle lower-risk cases involving victims living with minor children.

San Diego seems to have had a surge in domestic violence recently. The Response Team's formation is partly a response to the October 2010 murder of 19 year-old Diana Gonzalez. Gonzalez's estranged husband, Armando Gabriel Perez, is alleged to have murdered her on the San Diego City College campus. Perez is still at large, and authorities believe he is hiding in Mexico. Gonzalez's death has become a rallying cry for many to fight against domestic violence. California Governor Jerry Brown signed a bill into law that was inspired by the Gonzalez case. The new law enhances punishments for people convicted of strangling or suffocating a spouse or partner.

Another case that helped inspire the Response Team is that of Rosa Lisowski, who had filed for divorce from her husband in 2008 after enduring years of abuse. She disappeared in March 2008. Her husband was convicted of her murder and committed suicide in jail in 2010 while awaiting sentencing. Her niece, Veronica Ramos, said that Lisowski was not aware of resources available to her and that she did not report much of the abuse she suffered.

The Response Team, led by the district attorney's office, includes local law enforcement, county officials, and nonprofit organizations. Law enforcement or medical officials will identify cases presenting a high risk for violence or homicide and will report the cases to the Response Team. The Response Team will then determine what resources are needed to provide immediate help to the victims. The Thriving, Healthy Relationships in Violent-Free Environments program will be headed by the city attorney's office and will focus on early intervention to keep situations from becoming more violent or dangerous.

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October 13, 2011

Supreme Court Denies Review of Louisiana Adoption Decision for Same-Sex Couple

Oren Adar and Mickey Ray Smith, a same-sex couple, adopted a 1 year-old boy in Shreveport, Louisiana in 2006 and took him home to New York. They completed the adoption process in New York and legally became the child's parents. The family later moved to San Diego, where they live now. The problem arose when they tried to obtain an amended birth certificate for their son from the state of Louisiana. Their case demonstrates how family law can vary from state to state and the difficulty in bringing a family case from one jurisdiction to another.

fatherson10112011.jpgThe Louisiana registrar of vital records and statistics denied Adar and Smith's request to be listed jointly as the child's parents on the birth certificate. Louisiana only allows joint adoption of a child by married couples. Louisiana does not recognize same-sex marriage. Therefore, as far as the state of Louisiana was concerned, the two were not married and could not both appear on the birth certificate.

While the registrar's office agreed to recognize the legality of the adoption and list one of them as a parent on the birth certificate, Adar and Smith insisted that they both be listed. They filed a federal civil rights claim, alleging that Louisiana's actions denied full recognition of the New York adoption decree and thus violated the Constitution's "full faith and credit" clause. That clause declares that each state must give "full faith and credit" to the judicial decrees of each other state. By refusing to list both legal parents on the birth certificate, Louisiana was effectively trying to negate the full legal effect of the adoption decree, according to Adar and Smith's suit.

The Fifth Circuit Court of Appeals in New Orleans disagreed with Adar and Smith and dismissed the case. The court held in April 2011 that the question was actually legislative, not judicial, so the "full faith and credit" clause does not apply. It also concluded that each state has the right to create its own laws regarding birth certificates based on its own findings about what would benefit families and children in that state. Louisiana, the court declared, could conclude that adopted children would be best served by either a married couple or single person rather than "the freely severable relationship of unmarried partners." Of course, the court's logic only applies in a state that does not recognize same-sex marriage.

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October 6, 2011

Big Spousal Support Bill for the Richest Man in San Diego County

A recent court ruling reviewing the divorce settlement of billionaire investor Charles Brandes and his ex-wife Linda includes a hefty monthly spousal support payment. The ruling, issued by San Diego Superior Court Judge Jeffrey S. Bostwick, comes after a dispute arose over the division of property in the couple's 2005 divorce settlement. The original settlement agreement gave Mrs. Brandes five residences, including a penthouse and two condominiums in New York City and a house on the beach in Del Mar. She also received, in addition to other property, $18.7 million dollars from their savings and investments. The investments she received in the divorce reportedly generated around $154,881 per month, the sufficiency of which was one of the issues addressed by the court this year.

frances_marie_30102005_029_10062011.jpgCharles Brandes is a San Diego money manager and owner of Brandes Investment Partners. He has an estimated net worth of $1.3 billion. Forbes Magazine listed him 331st on its list of the 400 richest Americans for 2011. In 2010 it listed him at #655 among the world's billionaires. Mr. Brandes' monthly income when the he and Mrs. Brandes first met was allegedly around $12,500, and is now reported to be upwards of $16 million. He and Mrs. Brandes married in 1986 and separated in 2004.

The court reviewed the question of whether the original division of property was fair under California law and whether the amount of spousal support was sufficient to meet her needs. Mrs. Brandes requested spousal support of $735,000 per month, citing expenses such as a wardrobe budget of $70,000 a year and substantial expenditure on art collecting. She also requested modification of the property division based on a valuation of her share of the marital estate at $453 million to $597 million. The court awarded her an additional $10,052,042 "to equalize the division of community property," as well as spousal support of $485,000 per month, far less than her request but hardly a small amount.

As large as the award to Mrs. Brandes may seem, it might be considerably less than what California law could allow. California follows community property rules, meaning that all property acquired during the marriage, with a few exceptions, belongs to the marital estate. Each spouse is entitled to half of the community estate in a divorce, with adjustments made based on a number of factors. For example, a court may award more than 50% to one spouse of it finds the other spouse to be at fault for the marriage's breakup. Out of an alleged total net worth of over $1 billion, Mrs. Brandes seems to have gotten a rather small percentage.

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October 3, 2011

Which Court Has Custody Of A Child Custody Case?

Justia-photo-117 Texas Court.jpegFox News published a story on Thursday, 22 Sep 2011, regarding Jesse James's child custody case. (Jesse James was married to Sandra Bullock and this marriage was dissolved in 2010.) The custody motion was filed by Mr. James to change the venue of the court case from Orange County California to the state of Texas. The case was between Mr. James and Janine Lindemulder. Wikipedia reports that Mr. James and Ms. Lindemulder have a daughter and that Ms. Lindemulder is an adult film star. (A photo of the Hays County courthouse is to the right.)

As a San Diego Certified Family Law Specialist attorney, my office receives calls from people all over the country and jurisdiction and venue issues are frequently involved. Just today a mom with a case in the Los Angeles court wanted to know which court would take over the case if she moved to San Diego and the father moved to Idaho. Similarly, Mr. James now reportedly lives in Texas while Ms. Lindemulder lives in Oregon. The news report did not say why Ms. Lindemulder opposed the motion to move the case to Texas, or whether she filed to move the case to Oregon. The report stated that the motion had been filed approximately one year ago. (Mr. James is shown in the video walking in Orange County California.)

There are extensive rules under the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) which helps courts to resolve which state should take over a child custody case. Years ago a parent could file a motion for the custody of a child in one state, for example, Indiana; then if the parent lost the custody motion, he or she could grab the child and file for custody in another state, for example, California. The UCCJEA law was passed in each and every state in the country and the law seeks to end this problem by only allowing one state to proceed with a custody case, to the exclusion of all other states.

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September 28, 2011

Child Custody Move Away Cases Increase

Justia-photo-115 foreclosure.jpegCBS 8 San Diego reports that child custody relocation cases have increased during our economic recession. In a story dated September 26, 2011, a survey from the AAML (American Academy of Matrimonial Lawyers) is cited and discussed. The survey cites that a significant increase in housing debt during the last three years is connected with an increase in custody move away cases. As a San Diego Certified Family Law Specialist lawyer my office has witnessed similar events over the last three years.

This is easy to understand. For example, picture a couple coming to a point where one spouse files for a divorce. Assume that the Husband moves out of the family residence leaving the Wife and children behind. The Wife, with or without a job, finds herself unable to afford the mortgage. This is common. (The Ventura County Star reported on August 10, 2011, that foreclosures in California led the country in July 2011. That over 56,000 foreclosure filings occurred during the month.) The Wife, in our hypothetical, is the primary caretaker of the children. She cannot afford the home. Rental units are expensive in San Diego and she has family who will assist her in the mid-west. She files for a child custody order and permission to relocate with the children.

Child custody under California law is comprised of Physical Custody and Legal Custody. Simply put, these terms define where the child primarily lives and the rights of the parents as to information and decision making concerning the health, education and welfare of the child. The issue of "move away" or "relocation" is whether the physical custody parent may take the child with him or her when the custody parent relocates to another geographic area.

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September 26, 2011

California Divorce Resolution - Settlement Through Negotiation

Justia-photo-114 negotiation.jpegThe Los Angeles Times reported the news as to the Mel Gibson and Oksana Grigorieva settlement. Gibson and Grigorieva had been involved in a nasty and escalating family law case involving claims of domestic violence, the release of tapes to the media where Mr. Gibson reportedly was caught up in angry ranting, claims that Grigorieva was an unfit mother and therefore should have restricted child custody rights, etc. Mr. Gibson and Ms. Grigorieva were never married however they had a child together therefore the case came before a family law judge regarding custody and child support issues.

As a San Diego Certified Family Law Specialist attorney, my office has found that settlement skills are just that - techniques that are learned. There are many conferences, handbooks, and programs which specifically teach settlement skills. In California family law, the specific legal effort to settle a case and to avoid litigation is known as "alternative dispute resolution". How did this case, between Mel and Oksana, which started out so conflicted, with so much anger, result in a quick settlement which allow for Oksana's use of one of Mr. Gibson's home (to raise their child), and a reported case settlement of $750,000 to Oksana? How did this case head towards resolution out of court when cases such as the divorce between Jamie and Frank McCourt continue to return to court with one contested motion after another?

I am told by settlement experts that a case does not settle until both sides of the case are highly motivated to end the dispute. I have seen that some cases settle for the right reasons and some do not. For example, in a child custody case, the issue of the child's welfare must be examined prior to a settlement. Businesses and property need to be appraised. Support should be based on an examination of earnings. Settlements which come about for the wrong reason (for example, one party is bullied into the agreement), often come back into the court systems more conflicted than previous to the settlement.

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September 12, 2011

California Divorce Report: When Is A Gift Not A Gift?

Justia-photo-113 diamond ring.jpegAs a San Diego Certified Family Law Specialist Lawyer, continuing education is a part of the work of my office. Since my office only works in the field of Family Law, the research of new cases and statutes is greatly limited whereas a general practice attorney has a duty of continuing education in a variety of fields of law. One issue in family law that seems to never go away is the Husband requesting the engagement ring returned to him, from the Wife, pursuant to the divorce proceeding. The Husband may claim that the ring is very valuable, or that it is community property, or that the Wife secured it by fraud, etc.

ABC News reports of a man, Mr. Mekalian (James), who sued his former fiancee, Ms. Grazioli (Nichole) for the return of the engagement ring and a car or monetary damages to replace the value of both items. I've researched James' pleadings and you may see the Complaint here. His case is based on alleged fraud, and other. He specifically cites Civil Code Section 1590 which allows the donor (giver of the engagement ring in contemplation of marriage) to require the done to return the ring or the value of the ring if the marriage does not occur.

James accuses Nichole of acting in a fraudulent manner. Nichole is not commenting on the law suit. Presumably she may state that she had many marriage opportunities and that when she received the ring she terminated all other relationships and that she acted in good faith during this engagement. 1590 does require the judge or jury to consider all circumstances of the case and that the judge or jury find that which is just under the circumstances of the particular case. James apparently thinks that Nichole is a "gold digger" however the judge or jury may not agree. Possible James should seek a woman for marriage who has a job, and an income, and doesn't need James' money as in the video below of a five year old girl who charming millions on the Internet.

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September 7, 2011

How Does Child Custody and Child Support Go Hand In Hand?

Justia-photo-111 hand in hand.jpegYou have heard that California divorce courts make child custody decisions based on the Best Interest Of The Child. Therefore, if mom is primarily available to raise a child and she's doing a good job, while dad is hard at work making a good income, then, while unfair to some, it's easy to see that the court will order primary physical custody of the child to mom. Further, the court would order dad to pay a significant amount of child support. However, what if mom does something that causes mom to lose much of her custody time to dad? Would the court still order dad to pay a significant amount of child support to mom?

Justia-photo-112 jon cryer.jpegAs a San Diego Certified Family Law Specialist attorney, much of my time is spent in reading new cases and following changes in family law and child custody law. In researching, I came across an appellate court decision at the same time pop celebrity news was circulating the story of Jon Cryer's failed attempt to substantially lower his child support. This celebrity divorce story combines all of the elements of interesting news and legitimate legal education as to California child custody and support law. Actor Jon Cryer divorced Sarah Trigger in 2004. Reportedly, after a change of the custody order where Sarah only has a four (4) percent time share with the child, Jon motioned the court to terminate or greatly reduce his child support order. His motion failed; he appealed and lost. Why?

When the divorce judgment was entered in 2006, Sarah had a 65% time share of the child and Jon (actor on the popular Two and a Half Men TV show) was ordered to pay $10,000 per month in child support. Within a few years after the divorce, the court intervened and removed the child from Sarah pursuant to a report (and evidence presented) regarding neglect. Jon requested that his child support order be lowered to zero as Sarah, for all practical purposes, no longer was raising the child. The court reduced Sarah's child support from $10,000 per month to $8,000 per month even though her custody time had been reduced from 65% to 4%. Jon appealed however was he overlooking the factors of the child's "best interest" and his overall income available for support?

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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 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, reports that the McCourts are heading for a mini trial as to the characterization of marital property.)

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