Mediation

I have never been a huge fan of traditional mediation, although I believe wholeheartedly in negotiation. The Law Office of M. Jude Egan treats divorce mediation like more traditional mediation. Divorce lawyers are taught to mediate divorce cases on “fairness.” Sit down in mediation and tell the mediator what you think a fair outcome would be. I believe that each side should come to mediation with knowledge of the law and an understanding of what a court would likely do. This allows you to have an understanding of your “best/worst alternative to a negotiated agreement” (the classic book, Getting to Yes, Fisher and Ury calls this your BATNA/WATNA).  This is what happens if you don’t get an agreement.

We work with divorcing couples in my office regularly. It is mediation but it is also education. I typically represent one party and negotiate with the other. I advise the other to seek an attorney after they make an agreement, i.e., I do not have them sign the Agreement in my office but rather have them have it reviewed by a capable attorney in the area (usually I give them some names), so that they make sure that it is well understood and there are “tricks.”  I explain the law to both sides in this negotiation, so both know their liabilities. I tell the unrepresented party the risks associated with any particular position such that when they go and see a lawyer, the lawyer should not tell them anything they don’t already know.

I have settled hundreds of cases in this manner. I think it’s effective and fair. I think it helps both sides get what they want but also within the realm of reason about what the law would give. We meet with people in this manner three-four times per week and it is a part of my practice that I find highly rewarding. I believe my personality is well suited to this kind of negotiation. We work hard to see if we can get each party the thing they want the most in exchange for something they do not want as much.  I think when two people sign a settlement agreement and walk out of my office feeling like they “won” the divorce, that is an incredible situation. More than one divorcing couple has told me that their ability to co-parent has increased after such a negotiation. I remain convinced that this is better than a pure “fairness” based mediation. 

High-Asset Divorce

There are few offices in Santa Barbara and San Luis Obispo Counties that have the level of technical expertise to handle high-asset or complex asset matters. From horses and cattle, to productive farmland and tightly structured business entities, to stock and dividend accounts, to REITs and Family Trusts and corporations, oil leases and water rights, highly complex assets create a world of problems for attorneys not experienced in California family law. Often, in high-asset cases, there already is a business attorney who represents the family and may attempt to assist in the division of assets. While, from a business perspective, this can make some sense, just the financial disclosures and discovery issues alone can overwhelm an attorney who is more focused on business transactions. The Family Code is its own beast and requires in-depth knowledge of its discovery and disclosure rules, how the Three Basic Property Division Rules work in various situations, ensuring proper calculation of ownership shares and valuations of real and business property.

Then there are possible Breach of Fiduciary duty claims that can lead to tens of thousands of dollars in sanctions and hundreds of thousands of dollars in attorney’s fees, just because you missed a set of disclosures. The infamous Marriage of Rossi decision (a lottery winner did not tell Husband that she had hit a $1 million jackpot – the Court awarded the entire winnings to Husband 6 months after the divorce was final because she had intentionally concealed a known asset) and cases such as Marriage of Davenport (2011) 194 Cal.App.4th 1507 and In Re Marriage of Feldman ( 2007) 153 Cal.App.4th 1470 set forth large sanctions for failing to provide material disclosures.

The California legislature views your case as a general partnership dissolution, and therefore adopts relevant portions of the Corporations Code into the Family Code. Fiduciary and confidential duties abound. Constructive trust and restitution remedies with large interest calculations lurk in hidden places. The disclosure laws punish incompleteness.

We work with business attorneys in high-asset cases, taking the lead as divorce counsel and learning from business and corporate counsel where need be or, alternatively, we work as a full-service firm on high-asset cases, by working directly with the corporate and business documents.

It takes a rare lawyer who can handle both highly complex and technical transactions and the raw litigation of the child custody court.

The Law Office of M. Jude Egan does both. 

Litigation

Divorce litigation is its own animal. We are conditioned as trial lawyers to believe that we are governed by the Code of Civil Procedure the same as all other matters, but the reality is that the rules of evidence are relaxed in the family court – whether by rule/statute or by practice. There is a sense that documents may or may not have to be authenticated before they are received, hearsay goes more to weight than admissibility, lawyers do a lot of argument.

Winning in divorce litigation is about getting the half that you wanted rather than the half your spouse wanted you to have. We litigate with certain ends in mind. We always seek to understand your goals – from quick settlement to full blown, scorched earth litigation (within the boundaries set by Marriage of Davenport above) – and then work tirelessly toward achieving those goals. We are in it for you.

Litigation should always be the second option; because divorce law is fairly straightforward we should be able to discern the facts enough to settle every case (except maybe custody issues). When we cannot, it is usually because someone is being unreasonable or difficult. In that case, we litigate and we litigate with full force and fury. But litigation is expensive and we always work toward reasonable outcomes that account for the costs of engaging in litigation. I would always rather have you keep the attorney’s fees you spend by a trial and get what you want.  And if we get what you want, I work hard to make sure that you want to take Yes for and answer. But if you do not get what you want, then litigation always remains a viable alternative. I am your advocate but I am also your counsel, so I believe in making sure that you are always aware of risks and liabilities in your case so that you can make informed decisions. I do not like going to litigation over a matter that we know is a loser before we walk into the courtroom, but at the Law Office of M. Jude Egan we turn over every stone to see if we can work within the law to make sure that we give you the best chance of winning. 

Support Issues

Child and spousal support are hotly contentious these days. I have noticed a changing world in which women have much more power in the market. Women attend college more regularly than men (the number is something like a staggering 57% women v. 43% men in colleges and universities these days). This translates to higher earnings. We are seeing more men as primary caregivers of children while women are holding professional careers.  We are seeing many more cases where earnings are relatively even and child and spousal support calculations resulting in very small or $0 orders. There is also an increase in palimony payment (Wife pays Husband spousal support) orders. 

Child support is calculated by a computer program that crunches input variables into a formula that is so complex no one knows it by heart. But it’s also not even that simple. Lawyers have many “tricks” to skew the formula one way or another that an unsuspecting party or lesser experienced lawyer may not otherwise know about. Issues such as PERS employees mandatory retirement or mortgage interest deductions, pre-tax contributions to a 401K or the difference between pre- and post-tax health insurance premiums, long-term capital gains, and add-backs into self-employment income for depreciation, meals and entertainment and shared expenses like car payments, cell phone and internet payments, and insurance all contribute to the computer program calculation.

There is an old saying about computer programs: garbage in, garbage out. This is just as true in the support calculation and when a mistake has been made, very difficult to correct. It is always best to get it right the very first time.

Property Division

Property is divided in California Family Law with three basic rules:

1.    All property acquired before marriage or after separation is separate property;

2.    All property acquired during the marriage is community property,

3.    Unless the property acquired during marriage was by personal gift or inheritance, then it is separate property.

These three rules apply to every situation. The challenge is to figure out how to distinguish assets that have a mixed character. Thus, your spouse is entitled to the portion of your pension that you contributed during the marriage, but not the portion that was before the marriage or after separation. Your spouse is entitled to a portion of the equity in your separate property home that was paid down during the marriage (and any increase in value as a percentage of the ownership), but none of the separate property down payment or premarital appreciation in the home or growth on the separate property portion. There are complex calculations regarding stock options (that may be both income and an asset), inherited property maintained with community funds, refinances, and items purchased with community credit. Disability benefits, workers’ compensation benefits, and personal injury settlements must all be divided in ways that comport with the Three Basic Property Division Rules above. 

 

Child Custody

Child custody and visitation matters are near and dear to all parents’ hearts. Virtually every divorcing parent who has walked into my office the first time tells me that the children are all that matters, the number 1 priority. I tell them that I am a father who co-parents with my daughter’s mother and that I understand what they are going through (her mother and I get along great and it’s still not always easy). I also understand that money matters – and I tell people that your children come first, but so does money because you need money to live and care for your children. I remind people that it is not “greedy” or “shameful” to seek money from your spouse. That support and property are essential to giving your children the best life possible for them.

Custody cases are fraught with emotion. Many people, believing they can represent themselves, make the mistake of handling their own custody case. I believe that you are your own best advocate, but I also believe what Abraham Lincoln once said: “he who represents himself has a fool for a client.” This is nowhere more true than in the emotionally charged world of child custody and visitation. We begin to strategize your case through a mixture of storytelling and fact-finding from the minute you step into our office. Constructing a narrative of your case, you as a parent, the life the children have with the other parent, their future opportunities, their mental health and well-being, and how the future is likely to play out gives the Judge a sense of who you are as a person. We approach each case with a similar fact-finding mission, but work to uncover the best approach to present you to the Court. We parcel out all of the irrelevant details of your case – things that when you represent yourself you may think are very important (evidence of affairs or some small amount of marijuana or alcohol use) – and focus on you. What you bring to the children’s lives, your particular situation and how you give care to your children.

This is a level of detail that few firms can provide. We are tenacious and tactical, an approach that has brought us tremendous success in the child custody and visitation realm. We also try to manage expectations about the types of results that are likely – the court will rarely award a week on/week off with an infant and will also just as rarely award “full custody” to one or the other parent of a 12 year old. There are times for each scenario however.  This office has been a part of many different custody and visitation outcomes over the last almost decade of work.

We are passionate about representing parents seeking more time with their children whether at the beginning stages of a divorce or when seeking a visitation modification after the divorce has been final for years.  We file ex parte, emergency motions where there are domestic violence or substance abuse issues or where law enforcement is involved. We strategize longer, more drawn out processes when circumstances call for it – I call it a “double jump” like in checkers – when we play for one custodial order for a period of time solely with the intention to make a second request for a larger timeshare later. We deal with challenging out-of-state custody disputes as well as disputes between parents who are nearly neighbors. We also deal with challenging health, educational or religious issues in parenting – these are the Joint Legal Custody issues. We have worked with parents of sick children limited by religious beliefs, with parents of children whose health issues threaten their ability to work and earn income, with parents who are facing off with a spouse a deeply divergent religious tradition than their own, and with the issues of parochial and other private schools.

The Law Office of M. Jude Egan brings expertise into the area of child custody and visitation issues. 

Divorce

Few things inspire more anxiety than divorce court. Images of barracuda lawyers ready to spew truthless allegations about your marital problems to harsh judges and your ex-spouse laughing at you all the while, create sleepless nights filled with worry and doubt. There is no question that asking a person who does not know you to tell you when you get to see your children, how your personal property will be divided up, whether you can stay in your home and how much of your income you are going to get to keep, is a process like no other in the court system. However, with the right counsel, there is an order to it.

California divorces happen in 3 stages: the initial petition and response (and temporary orders), the financial discovery documents regarding income and assets, and the trial or settlement. California laws are very straightforward regarding the division of most property issues. I estimate 85-90% of the time, the law is very straightforward. Most courts do not award “full custody” to one parent or the other – in fact, most courts lean toward shared custody and the battle is over how much time each parent will spend with the kids. Child support and temporary spousal support is calculated by a computer.

We help you each step of the way, ensuring fair outcomes, always trying to resolve your case in a way that leaves you better off than when you walked through the door, first by settlement (settlements are less expensive and usually more durable than litigation) and, if not, through a process of aggressive and thorough representation to the trial court.

Divorce is an orderly process, although the issues are complex and highly technical at times. While the laws of financial issues are straightforward, the analyses are often very technical, leaving many with poor no representation leaving tens or hundreds of thousands of dollars on the table for their soon-to-be ex-spouse. From dividing up military retirements, Federal and ERISA pensions, to determining ownership of real and personal property, ensuring that debts get paid, credit scores stay intact, and that support (especially for self-employed spouses) is calculated properly, and your children have the time with each parent they deserve, good counsel is of paramount importance to your future.

As highly complex as the financial issues in a divorce can be, child custody and visitation is more about strategy: telling the story of you and your role and relationship with your children. This is where it is important to understand what our Judges view as relevant and to position yourself in a manner that will resonate with the Court. The custody and visitation issues are often the most emotional issues in a divorce case, and they are very important to the child and spousal support calculation.

A divorce is not unlike the Olympic biathalon – where competitors cross-country ski until their heart is going to burst out of their chest, and then the stop, calm their nerves and shoot a target. It is a process of both an all-out sprint for the custody and litigation issues and the calm and cool objectivity of reviewing financial documents.

The Law Office of M. Jude Egan brings a wealth of experience and knowledge of thorny and complex financial issues as well as an ability to strategize a child custody case to put you in the best light possible. We bring a rare mixture of technical expertise in the area of complex family law issues and old-fashioned litigation skills and tactics to help win the custody disputes.  We are well-versed in both asset issues such as stock options, trust income, small business ownership and separate property (before marriage or via inheritance) and in the types of issues that arise in custody disputes (substance abuse, child abuse, domestic violence, age-appropriate visitation schedules and physical and mental health issues).  We work with people of all income levels and bring the same high-quality of care to no asset divorces as we do to the most discriminating high-asset cases. You have an absolute attorney-client privilege and we fiercely protect that right.

Choosing The Right Lawyer

I have had over 400 family law clients in the last few years, the vast majority of whom have been satisfied with the work I have done for them.  I try very hard to settle cases quickly and fairly and when that fails the degree to which I am reasonable with opposing parties (and lawyers) depends entirely on the degree to which they are reasonable.  We litigate every case hard when it comes to litigation, but we litigate only as a last resort.  There are so many creative ways to settle cases, but once in the courtroom the Parties are subject to the blunt instruments of the judges.  This is fair – judges don’t really have much time to truly spend with individual sets of parties, so they rely on their tried and true means of resolving disputes.

For the judges, you fit into one of several pre-set categories the judges have set out ahead of time as a way of being efficient in their own work.  The family litigator’s job is to make sure you fit into the right category (the “good dad” versus the “absentee father”; the “stay at home mom” versus the “freeloader,” the “hard working mom who does all the housework and raises the kids on her second shift” versus the “party girl,” etc.).  This is done in a variety of ways – what I do at the Law Office of M. Jude Egan is figure out the way we going to tell your story from the very beginning – I call this “strategizing” your case.  I am continually thinking of ways to position you with the Court, including ways of dealing with set backs and new pieces of damaging information (including your ex positioning you as the bad guy).

All in all, the biggest complaint I hear when a client engages me after being with another attorney is not complaints about billing, which is what you might have thought, but rather complaints about personality fit (“she just screamed and yelled and billed me for it,” “it was embarassing”, “nothing ever got done”, etc.) .  When clients fire me and move to another attorney, which doesn’t happen often, but does happen, I don’t get to debrief them, but I can usually tell by the lawyer they picked and the differences of opinion that we had in the case that the personality fit just wasn’t there (“I wanted someone who was going to punch my ex in the nose”, etc.).

We settle most cases and the ones we don’t settle, we settle most issues in the case and litigate the hard stuff.  That’s because we have ways of working with just about every attorney in town.  You should want it that way, if you engage me.  If you are the type who wants to fight on for fighting’s sake that’s the type of personality non-fit that would usually lead me to make a referral to another attorney.  We have lawyers in town who will gladly take your money to tread water until you drown but they will make it a spectacular death with all sorts of blood and gore! Your ex will hate you and hate your lawyer! And everyone in the courtroom will see you scoring “nasty points” in the courtroom! But sadly, you will be nowhere closer to finishing your divorce and your ex will be nowhere closer to working with you after the lawyers are gone.

I say all this because I read a recent article on Huffington Post about choosing a good divorce lawyer.  While I don’t agree with absolutely everything the author says, I think it’s generally a very good piece on how to choose a divorce lawyer. Personality fit is front and center.  You need to trust your lawyer.  You need to feel good about the approach your lawyer uses in the courtroom (i.e., respectfully approaching the Court and other parties with reasonable settlement offers and working toward getting things accomplished; choosing battles versus kicking and screaming and raising a fuss – treading water and burning retainer;  etc.).  You need to be comfortable with the way your lawyer explains things to you.  You need to be comfortable with whether your lawyer stands up for you, and the ways in which he does so.  And you should never ever feel embarassed for one of your lawyer’s behaviors.

There are things that the lawyers in a smaller community know that you most likely don’t.  For example, the lawyers know how the judges are likely to rule on particular issues (does that mean we always predict things correctly? No, but we have higher than average success rates in predicting judicial behavior).  The lawyers know which other lawyers settle cases and which other lawyers litigate everything (i.e., the churners and water-treaders) and which lawyers will sit down and hash out (im)perfect but better than the alternative plans.  The lawyers know which lawyers take unsupportable settlement positions and losing courtroom arguments and which ones take reasonable steps to get your case resolved.

A key takeaway point: in California, “winning” a divorce means getting the 50% of the stuff that you wanted rather than the 50% that got assigned to you.  It means getting a decent and sustainable support order, one that your ex can live with and if you tighten your belt a little, you can live with too.  It means getting good orders for your children to spend time with each parent (so you have breaks too).  That means that even a divorce lawyer you find out is a terrible fit for your personality is unlikely, if they know the system at all, to lead you to a bad (i.e., losing) outcome.  Just make sure that you are making progress toward the finish line – always moving forward to finality.  Finality even with imperfect outcomes, 97% of the time is better than limbo in search of perfection (and is 100% of the time better than limbo to fuel the anger).

My unsolicited (non-legal advice) is this: do not let your lawyer fire your anger up so much that you do irrational things like spend all your money on unwinnable custody fights (trying to squeeze out an additional 4 hours with the kids each week – people who get along with their exes see their kids so much more than those who extract every second from their ex).  Don’t let anger fuel you in your quest to destroy your ex.  The chances that any of our judges (or any of our lawyers) will allow you to be completely destroyed (or completely destroy) is very slim.  The law really doesn’t allow it anyway.

Do, however, look for someone that asks what it is you really want as an outcome and works tirelessly to push toward fair final resolutions.  When they ask for documents, get them turned around right away.  When they ask for declarations or statements about the situation, turn them around right away.  Keep pushing toward judgment rather than revisiting temporary orders over and over again.  And be wary of lawyers who urge to rush into court on small things.  Keep your eyes on the prize – finality with dignity and the 50% of things that you want rather than the 50% that someone else makes you take.

Remember that personality is not the end all be all for a lawyer in the courtroom.  Our judges have been very clear that they don’t like blood in the water campaigns.  They want to see parties moving forward toward resolution.  Most of the lawyers in town can get you there so long as they are continuing to move a case forward.

Children In The Courtroom: A New Rite Of Passage – Santa Maria Child Custody Lawyer

Rites of Passage

Time was when a child went through a teenaged rite of passage with the elders of his or her clan.  Such a rite of passage might have included learning a Hebrew poem, an important dance, or going off into the woods on a solo adventure.

In more modern times, the rite of passage has increasingly been one in which kids come to the courthouse to talk to judges about their living situations.  Most judges don’t blatantly ask the children with whom they might like to live, but they will ask them a variety of other questions about who does the majority of the parenting and with whom they feel the closest feelings of warmth and love.

The CA Family Code, section 3042 requires that the Court hear from a 14 year old regarding their preferences and may allow a child under 14 to state a preference, either in Court or to another person the Court appoints.

Here is the text of CA Fam. Code Section 3042 with my comments in bold:

3042.  (a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.

If a child is mature enough to address the court, the Court shall consider and give weight to the child’s wishes.

(b) In addition to the requirements of subdivision (b) of Section 765 of the Evidence Code, the court shall control the examination of a child witness so as to protect the best interests of the child.

The Court can control how a child witness is examined (i.e., usually in chambers with a court reporter but no lawyers or parties present).

(c) If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interests. In that case, the court shall state its reasons for that finding on the record.

Any child over 14 has the right to address the Court. 

(d) Nothing in this section shall be interpreted to prevent a child who is less than 14 years of age from addressing the court regarding custody or visitation, if the court determines that is appropriate pursuant to the child’s best interests.

A child under 14 may address the Court if the Court finds that the child’s best interests would be served by allowing this (the Court may but doesn’t have to allow a child under 14 to address the Court).

(e) If the court precludes the calling of any child as a witness, the court shall provide alternative means of obtaining input from the child and other information regarding the child’s preferences.

If a child is not permitted to testify, then the Court shall (must) provide an alternate method to gain information.

(f) To assist the court in determining whether the child wishes to express his or her preference or to provide other input regarding custody or visitation to the court, a minor’s counsel, an evaluator, an investigator, or a mediator who provides recommendations to the judge pursuant to Section 3183 shall indicate to the judge that the child wishes to address the court, or the judge may make that inquiry in the absence of that request. A party or a party’s attorney may also indicate to the judge that the child wishes to address the court or judge.

There are a number of different ways to get this input.

I write about this as a rite of passage for many children around the age of 14.  Many judges will meet with 11 or 12 year olds – indeed in an adoption proceeding, 12 year olds are required to speak with the court about their preferences.

What this means is that I have visions of skinny 12 year olds slouching outside the courtroom in the hallway staring down at the floor trying to control their emotions.  Too often one parent or both parents have talked to the child about their preferences and even coached them into stating that they want to live with one parent or the other.  We hope our judges are able to discern what is coaching from what is genuine feeling (and most of our judges are quite good at this – or I should say, all of our judges seem to be generally good at this).

I am on the record with clients and the Courts as saying that I do not believe children should come to court, that these are adult issues to be worked out by adults.  But there are simply times when the facts as seen by the parties are so at odds that the only thing to do is bring the children in.  I always feel it’s a sad day when the children come to court and, to quote my 5 year old daughter “it hurts my heart” to see it occur.  The kids suffer so much anxiety in the lead in to stating their preferences, that it’s something they will likely never forget (on a personal note, I talked to the judge at 14 in my own parents’ divorce and I will never ever forget the experience – we were well-coached by a family friend to walk into chambers and state emphatically that we loved both parents and wanted week over week visitation, which we got).

There is another side to having teens come to court, a positive side.  This is an opportunity for their voices to be heard, the only time most of them have their voices heard and considered by someone “official” in the divorce proceedings.  This is what I mean by rite of passage.  There is something powerful about letting children come to the courtroom and describe their experiences, wishes, hopes and fears to the judge in the case.  In some sense, it is the most “authentic” action that happens in an entire divorce case, because even the children who have been the best coached, end up telling the whole story to a judge who is paying attention and knows how to ask the right questions.  This can be empowering for the teenager whose voice is often so lost in the process of the divorce that they become hidden in the all of the action.  The parents become so intent on “winning” or “sticking it to” the other side, that they too forget (not out of malice or neglect, just out of sheer overwhelm) that the children have deep feelings about what is going on – those feelings may include more than anger or sadness – I remember feeling embarrassed, hurt, and guilty among other emotions.  Mostly, I just wanted things to get normal again.

So, while I am a strong advocate for keeping children out of the courtroom at almost any cost, I do think that this particular rite of passage can have a positive effect on the self-esteem of the children being asked to share their feelings with the Court.  It can give them a feeling that their voice is truly being heard by someone important at a time when their voices are often lost in the process.

I do not meet with children at my office as a general rule, largely because although I might hope they will say one thing or another to the Court, I do not want to put any such pressure on them.  Heck, the pressure on the adults can be very severe, so severe that many adults have a difficult time bearing it, but for the kids it can not only be extreme but they may carry it with them the rest of their lives.  The last thing most of them need is a lawyer in a suit coaching them on what to say.

If I do see a child, I tell them the same thing every time: “the judge will be very kind to you.  These are adult problems but you are old enough to have a voice.  Your voice will get louder and louder as you get older.  This is your opportunity to share with the judge the feelings you have about the situation – that no one else may know.  Be honest with the judge because your voice matters.”

I try to encourage my clients to say the same thing to their children.  By framing it this way, adults can help children can view what might otherwise be an unpleasant experience as an empowering moment in their lives.  Despite the acrimony between the parties in a divorce case, the children have an opportunity to grow each step of the way.

Santa Maria Child Custody Lawyer: A Father’s Day Blog Post

[Ed. Note: This post was written on Father’s Day 2013 but due to a technical glitch and site transfer, did not get uploaded until today. Father’s Day or not, I still feel like it’s relevant.]

Happy Father’s Day Blog Post

It’s Father’s Day and I had a great day I spent in that bittersweet way that only a father in a blended family can have. I had my four and half year old daughter Stella, a bundle of electric energy that is only outperformed by the depths of the thoughts she manages to put together as a pre-schooler. I also spent the day with my 20-year-old stepdaughter Savannah, herself a picture of grace caught in that in-between place between adulthood and late teenager with leanings each and every day more toward the adulthood side of things. My wife, who planned in the way that I love things to be planned, a gameplan with a lot of open space for changing things up as we went along with the day. Not to belabor the day, but I got to sleep in past Stella’s customary 5:58 am wake-up, had a way too carb-laden off-diet breakfast in Buellton, CA an then we fed ostriches on an ostrich farm, picked berries in Los Olivos, petted rescue donkeys in Los Olivos, and came home and planted some new vegetable starts in the garden (Stella didn’t want to get her hands dirty). I got a little sunburn. Then after dropping Stella at her mom’s house and Savannah leaving for work, my wife and I went on a lovely drive into Sisquoc and ended up having wine at Costa de Oro.

I’ve been wanting to write a good Father’s Day blog for a couple of years now, and since the day is almost over, I think it’s high time I tried it. I want to write a few words about all of the lame Father’s Day articles that get written each year around this time, point to the blog post that got me thinking and say a few things legal.

First, it’s overwhelmingly common for men as fathers to be stereotyped as absent minded, not overly caring and slightly goofy dads who need moms to fix everything. Articles about what to give dads on Father’s Day focus on booze, knick knacks, days on the golf course or other manly man pursuits. They forget that Father’s Day is about that most precious gift that any father ever experiences in their lifetime, fatherhood. This is also invariably the time of year when anecdotal comments come out about how dad ditched the family when they were young or dad was never present in people’s lives. The majority of the blog posts and articles that come out this time of year tend to focus on a) how dad was a real jerk or b) how dad is someone to be made fun of.

Even a recent article from my alma mater “Five reasons why it’s a good time to be a dad” by Jeremy Adam Smith on the Greater Good blogsite at UC Berkeley, which is a great step in the right direction, still falls short of honoring the true gift of fatherhood. The article has a great start: “are you feeling fed up and burned out, Dad?” and then it goes on to discuss something that is important in the current cultural climate: dads are more involved in their children’s lives than they ever have been before. In fact, the article cites Pew Center research that shows that Dads are juggling the work/life balance, “just like moms.” From there the article basically refutes a whole lot of stereotyping about dads. Again, a good blog post, or at least a blog post with its heart in the right place, but what’s missing?

His first article on the Pew Center (“How to be a happy working father”) research is better but still not great – he discusses something that is truly important – that even though the time dads have spent with their children has tripled since the 60s, men are twice as likely as moms to say they aren’t spending enough time with their kids.

The good stuff gets glossed over (and I don’t mean to pick on these articles, as I said, I think they are among the better ones out there compared to much of the men hating going on) – we already knew how important fatherhood was going to be to us, whether we became fathers by accident or by choice. I don’t believe though that it’s about finding a family friendly workplace or cutting down your commute or putting the extended family “team” in place, so that you are less tired when you see your children, it’s about digging deep inside yourself to spend quality time with your children even when you are exhausted, there is a looming deadline and your kids are full of unbridled energy that you simply cannot contain. It’s about finding a sense of calm amidst the chaos and getting your four year old into the bath and into jammies, reading a story, singing a lullaby and rubbing her back until she goes to sleep, even though you can feel that every second ticking off the clock is another second until you are going to be able to go to bed. It’s carefully putting a pink Dora the Explorer band-aid on your finger before you go to court in the morning and letting your daughter pick out your tie for the day. It’s sitting down with your child and taking the time to listen to everything from knock-knock jokes to the first time she has realized that it was a judge who decided how much time she was going to get to spend with you (I’m not kidding, four years old, and I get told “Judges think that kids should spend more time with mommies than with daddies”).

But this is a lesson for all parents. Spending quality time with the kids is being present for them even amidst the absolute pandemonium of the world outside.

A new generation fathers are participating more fully in their children’s lives than the generation before – which participated more fully than the generation before them. Let’s stop talking about it in comparison to moms. That comparison is not only getting tired, but it’s also getting a little boring. The other thing that I find generally boring is the novel concept of the “stay at home father.” Let’s face it, other than a very few exceptions, the true stay at home father movement was a product of the downturned economy with men in the trades being out of work, while women in the services industry still had jobs. Daycare bills had to be cut, and Dad became the stay at home parent. I would hazard a guess that most of these guys loved their children as much as any parent, but did not prefer to be a stay at home dad or even classified as one. They were looking for work – signing the book at the union hall, scouring the internet for jobs, and taking the kids to the park while they did it. But, let’s not get confused that in most of these households the men were trading this task with the women – moms had already been working, it’s just that their jobs weren’t lost in the downturn.

I have a general feeling – anecdotal at this point, but having spoken with members of more than 300 families in the last two years, not so anecdotal as to be without any scientific basis – that men and women both overestimate the time moms spend with kids and underestimate the time dads spend with kids. So many of us live in two income households with dads and moms both doing everything they can to raise their children together. We are all tired and we are all struggling to find that one more gear to handle what is an overwhelming task – parenthood. But we are still bound by our preconceptions about who does the work with the children in the home. Is bath time any more caregiving than coaching soccer? Is helping with homework any less caregiving than making dinner? Is drop off at school less of a challenge than picking up from school?

As a family lawyer and noncustodial father, I am in a position to see the ways judges are bound to the designation of the primary caregiver – and the rules that flow from it. Moms tend to come to court very sure that they are obviously the primary caregiver, because they are the mom after all. And Dads are all too ready to concede the point – which is why many Dads come to court with the foregone conclusion that Mom will have the kids and they will get the Daddy Plan.

The truth is that while have seen a remarkable shift in Court rulings in recent months with judges in my jurisdiction beginning to award greater shared custodial arrangements, more shared parenting time, it has still not gone far enough. In my experience, there needs to be more recognition of two things: 1) in many respects, in two income families the notion of the “primary caregiver” tends to mean something different now than it did in the 1970s when the “best interests of the child” standard was born. I believe we should examine it more closely if it’s going to be meaningful and 2) it is demanding on anyone – mom or dad – to try to raise a child full-time on their own. This includes parents with strong extended family networks and parents with spouses who are involved and caring stepparents.

As to the first, the legal notion of the “primary caregiver” is that the best interests of the child will generally be served by having the child live with the primary caregiver.
But, who is the primary caregiver in a household where: 1) Dad takes the kids to school in the morning because Mom starts her shift at 6:45 am and Dad doesn’t have to be at work until 8:30 am; 2) Mom picks the kids up from after-school care at 3:45 pm and runs them to practices; 3) Dad stops at the store on the way home to pick things up for dinner and gets it started, then runs off to coach the youngest daughter’s soccer practice and take her home; 4) Mom finishes prepping dinner, has the oldest set the table, clears the dishes while Dad gets the kids into the shower and Mom figures out what to pack for their school lunches; and 5) they both tuck the kids into their beds at night and give them a good night kiss, only to fall asleep on the couch about an hour later and do it again? What if the parents share days off work if the kids are sick? What if only Mom takes days off work because she works an hourly wage job while Dad’s salary job means they can take paid vacations in the summer to take the kids to grandma’s house?

Increasingly in my practice, this is the type of shared parenting we are seeing at the outset of the divorce. Both parents want the children with them. Typically, Dads come to me asking that they have 50% custody of the children, stating emphatically “I would never take the children away from their mom, I just want them with me half the time.” Moms tend to come with the position that Dad can visit with the kids, but they need to sleep in their own beds.

I believe that men have become more involved as parents because we take our roles seriously. It can be simple: as one of my clients said in open court when asked why he was pushing for 50% time with his daughter, “I’m trying to keep my daughter off the [stripper] pole.”

There are also more complex reasons: we view it as a sacred bond and sacred duty. When my daughter was born, I felt my very DNA was changed upon seeing and holding her for the first time. She was born by C-Section and that meant that in her first two hours, it was just she and I. Her mom had had 9 months to bond with her in utero, but for those first two glorious hours it was just my baby girl and me in the hospital nursery. From the time when she was an infant, I carried her in the Baby Bjorn on early morning walks and stayed up late feeding her when her mom was exhausted. A bond was formed. Maybe more on me even than my daughter.

This is a little more personal than I usually get, but because it is Father’s Day, I am feeling a little more deeply about the subject. I am blessed with a great relationship with Stella’s mom and an involved and caring wife, who is a fantastic stepmother to Stella. I have been further blessed with three amazing stepchildren, each of whom I love dearly in their own ways. One of whom, in particular, whose dad is not in the picture, I feel is my own daughter. I am grateful for all that has been given to me each and every day.

But, it did not come easy and it took time, patience, pride-swallowing and releasing some of those negative emotions that were holding me back.

As a lawyer, I work tirelessly to bring parents to an understanding about the importance of involved parenting. By involved parenting, I mean being there for and with your child when your child is with you.

One of our judges said recently, “your child knows you love them because you show up when you say you are going to show up. If you can be there every Tuesday and Thursday than I will give you every Tuesday and Thursday. But when you miss your days, maybe we need to set the schedule when you can always make it. Wednesdays? One Saturday a month? When is it going to be?” Being there means literally being there. I will work as hard as I can for a Dad or Mom who wants to be there for their child more than they already are – and I believe that our Courts reward parents, particularly Dads because they are frequently the non-custodial parent, who want to be there for and with their child.
As a lawyer I work with both mothers and fathers as clients. I try to make sure that parents have healthy, active relationships with their children and that they understand what is lost when they keep the child from the other parent. That the person they hurt is the child and that ultimately, as another child of divorced parents told me, “my mom kept us from our dad most of our lives. I didn’t know my dad, I just knew my mom said that he was a true jerk. When I got to be 16, I decided I had to know my dad more than the one weekend a year that I would see him. So, I saved my money and bought a ticket to Norway and flew to go see him one summer. You should know that now, as I am a father, and all through my adulthood, my close relationship is with my dad. It’s my mom who I see one obligatory time per year.” I want to tell that story to my young father clients who find themselves with a parenting schedule dictated by a judge that has them spending so little time with their kids they aren’t sure what to do. When you see the tears on these men’s faces – and I am not talking about sensitive new age Berkeley guys like myself, but true working men, blue collar guys who the stereotype says won’t care – you know that they see fatherhood as I do, as a type of sacred duty.

As I mentioned, in our jurisdiction, the judges are beginning to see this new sort of reality, but it’s nowhere near perfect. When I read articles about “shared custody” I sort of gag a little bit. It’s the law in most jurisdictions that the parents, absent some good showing, will share legal custody of the children. This means they will confer about which school, which doctor, which religion and the like. But shared legal custody is increasingly meaningless because the parent with primary physical custody has the strongest role in making those decisions – shared legal custody is like a participation ribbon when you wanted the first place trophy – you get it as long as you cross the finish line. If there’s a tie (which is frequent between two people who got divorced because they couldn’t get along), the tie goes to the person with the larger share of physical custody.

True shared custody boils down to one thing: timeshare. Standard Daddy Plans still have Dad at 20% timeshare with every other weekend and one weekday dinner visit per week. These plans are entirely based on the financial outcomes – child support is calculated on the basis of timeshare and income differential and the state has a policy of maximizing support. This means the stated public policy in California of “continuing care and contact” is balanced against the need to maximize support. Timeshare, primary parenting, physical custody is a product of the financial equation. That means a 49% primary caregiving dad can end up with 20% timeshare of the children for support purposes.

Most dads I talk to in my office are there crying about the kids and not the money – they’d rather pay the 20% timeshare support and see their kids than effectively be shut out of their lives because of the money. But after custodial parents have been once through the system, they get wise to the idea that every additional minute Dad spends with the kids is a dollar less they get in their support each month. I believe in paying child support and I believe that the lower-income earner and the parent caring for the children the majority of the time needs support. But I do not like support being tied to timeshare.

Now I am getting a little far afield – I will pick up the support issue below.

The second point is that it’s damned difficult to be a good, involved parent and work full-time or more than full-time as many of us are now doing. You have to dig deep. You have to work a shift, be present for your children and then work a second shift. Without going into a whole bunch of self-congratulatory detail, during this last year, I worked as a tenure-track Cal Poly professor and a full-time lawyer and have been a husband and 35% timeshare father. What that effectively means is that there have been dozens of nights (this one included) when I have worked until picking up Stella from school – ten hours most of the time, no lunch break – picked her up, played princesses, jumped on the trampoline, got her fed (with my wife’s help) and into the shower, into jammies, read books, sung lullabies, and said our prayers, only to come back out to the living room couch right afterward and worked until 2 am. All this only to be woken up at 6 am to start again.
Exhausted as I sometimes am, I would do that every single day to have more time with my daughter. But we have to be reasonable. The body and mind do not function that way and we need time and space to replenish ourselves. We need time and space to spend with friends, to go on a walk by our own selves, to go to the gym (that’s wishful thinking), to fall in love again, to get married again, to do all of those things that are completely necessary to live fulfilled and fulfilling lives. Don’t we want our children to witness us happy and fulfilled in our lives? Our children need us to replenish ourselves so that we are ready to spend that time with them.

One more anecdote: a friend told me a story about how when his parents divorced when he was 8, his mom moved from Los Angeles to Nipomo, about a 3 hour drive away. He said that his dad was awarded weekend visits with him, two per month. He noted that his dad drove up from Los Angeles for every one of those weekend visits from the time when he was 8 until he was 18; he never missed a visit. In the meantime, his dad remarried and had two additional children. His dad would come even when my friend got to the age when he didn’t really want to see his dad that much – he’d have rather been hanging with his friends or girlfriend or whoever. This dedication never dawned on my friend until he was older and he realized how much energy his dad put into staying in contact with his son.
Not all dads will be like that. I see that some of the dads who tend to fade from the picture are the ones who get cut out of their children’s lives by early court orders – the ones with a single Saturday visit each week or alternate weekends with Mom in another town. You set Dad on a course where he sees the kids for Bob’s Big Boy on Wednesday nights and every other weekend in his apartment, and he is going to be trying to find some other meaning in his life – another relationship, other children he sees every day, extra hours at work, a promotion, devotion to his church or worse, alcohol and drugs. Being shut out of one’s child’s life is so painful, that you have to expect that some dads will start over again or get involved in something else just to ease the pain.

This is why sometimes I believe that custody/timeshare awards should have an aspirational character to them. Dad, if you want this much time with the kids, prove it. If Dad proves it, the situation is great for everyone – the kids have a dad who cares for and loves them and is involved with their lives, Mom has a chance to date, spend time with her friends or with herself, and Dad is given the gift of being allowed to be the father to his children.

Solutions

Finally, this blog post got very long: I argue for a new system of child custody proceedings. This has been taken up by others before me. It’s called “no fault child custody.” In child custody proceedings, for the low wage earner who is also usually the low-income earner, support is the most important part of the equation. The low-income earner, usually Mom, needs funds to be able to live. Dad usually has some additional funds (although not much) and wants to spend time with the children. Support is directly tied to timeshare. It is a common lawyer’s tactic when representing Mom to try to make Dad look like he is only trying to increase timeshare to reduce child support payments. Savvy lawyers know that they must get around this by not asking to change support at the time that they ask to change the timeshare. Wouldn’t it just be easier to have support from high-income to low-income parent at a reasonable formulaic level and then let the presumption be that the children would spend time with both parents on a relatively even level, making certain (BIG) exceptions? That is, rather than tie support to time-share, we would tie it to some other formula, such as income differential and need.

These BIG exceptions would be: 1) proven allegations of abuse, 2) proven lack of safe environment for the children, such as substance abuse; 3) very young children – infants in particular – who would be with their primary caregiver until a certain reasonable age at which point they would be introduced more and more to the other parent (so that Dad, if shut out early in the game would know that as the child got older, the child would definitely spend more time with him); 4) Dads (in particular) who do not exercise their time with their children; and 5) private custodial agreements. This doesn’t have to mean 50-50, but would certainly mean more than 20%. I think between 35-50% is reasonable. 35% would look like every other weekend Friday after school to Monday morning and one overnight per week – five overnight visits in 14 days. Further, we would not count hours in the week and give one parent credit for sleep time or time in school unless the child is in poor health and would need to miss a lot of school and one parent is primarily responsible for care giving on those missed days – then the other parent should share the cost of the lost work time.

I think that both moms and dads have come a very long way in recent years in their willingness to share children with one another. There is progress, but in order to see greater development in the area, we need to see policy shifts that create default positions that encourage sharing and discourage calculations of support based purely on timeshare. We also need to reduce the chance that either party could hurt the other with the children. It’s time to really start thinking about the changes we need to bring about.

One thing I would suggest is that every parent going through a divorce conduct a thought experiment: if you are a Mom, imagine that you are a Dad, and if you are a Dad, imagine that you are a Mom. Then both parents spend time imagining that they were each of the children. Ask what would be the things that would hurt most and what would be the thing that would ease the pain. Try to step outside of the anger for just a few minutes while you think through it. If you can do that, you can see just how important shared parenting really is.

My suggestion: we default to a 35% shared custody arrangement for kids under 8, and move to a 50% timeshare when kids turn 8 until high school. Child support would be calculated on a 30% timeshare basis immediately for all timeshares until the child turns 14 and starts high school. At high school age support drops to the 50% timeshare rate. Even when kids are under 8, they will spend 35% time with one parent and 65% with the other. The support number won’t move off the 30% level unless one of the BIG exceptions above is met with regard to support.

Spotlight On Family Law: Bill Of Rights For Children Of Divorce

A great article from several months ago by Julie Ross and Judy Corcoran deserves a repost here with proper credit.  They are marriage and family therapists who developed a Bill of Rights of Children of Divorce.  These are very basic tenets that any divorcing parent should follow and something I urge all of my clients – male and female – to bear in mind as they go through the process of dissolving their marriage.

Key points are that children have the absolute right to remain neutral in any post-separation hostility between their parents.  This is especially tough, possibly surprisingly, when the children are a little bit older (11-15 in particular).  By the time they are Tweens kids are grown up enough to have an idea of justice – knowing what’s right and wrong.  It’s part of their mental and emotional development.  Even though they are developing this sense of justice, they only have limited information about what went wrong in their parents’ marriage.  This leads them to take strong positions, often directed at one parent, usually the parent who “left” and can create a divide that can sometimes last for years.  Too often, because both parents are hurting (and I have seen divorces with all stages of emotional nastiness but have never seen one where the parties were not hurting about ending their relationship), the parent with the child “siding” with them will feel some gratification for the support rather than viewing support for them in the same vein as if the support had been “for” the other parent.  Namely, a child choosing sides is a child damaged by the divorce process.

Tweens are the ones generally at the age where choosing a side is an option.  By the time the get deep into their teens, they often could care less except and until the divorce starts impacting their social lives with their friends, younger than the Tween age range, they are often still innocent enough to love both parents unconditionally and without reproach.  Many times I have seen clients bring their Tweens with them to my office because the child is genuinely interested in showing support for one parent or the other and they want to meet the lawyer who is going to help their parent.  I try very hard to discourage this type of behavior because I think it is not healthy for anyone in the situation.

I make it a rule in my divorce practice never to help a parent evade child support obligations – I do this for a reason, I believe that children should never be collateral damage in a divorce and part of my job is to insulate them from bearing the cost of their parents’ difficulties.  By the same token, I let parents know that I will fight aggressively to get them more time with their children – again because I believe it is every child’s right to spend as much time as possible with both parents.   Since child support obligations are based in part on the income differential between parents and the timeshare between parents, fighting for more timeshare is one way of reducing support obligations, but it is not the main goal.  The main goal is to ensure that children spend time as equally as possible with both parents.

Believe it or not, the greatest animosity in most divorces is not the financial part of things.  Virtually everyone who walks in my door knows that in California, community property assets are divided in half and most people have a pretty good idea what their community property assets are before they walk in the door.  Division of assets is not usually that contentious (don’t get me wrong, it’s not a walk in the park either).   The issue from which most other issues arises has to do with the timeshare of each parent with the children.  If we are absolutely honest, the standard 20% timeshare is really not enough for a parent or child to feel like they are living with the noncustodial parent.  It feels like “visiting.”  The visiting parent gets more and more distant from the child’s life the longer the 20% timeshare goes.  As this happens, the child is likely to develop allegiances to the other 80% parent, pushing the 20% even further away.  As allegiances form, the 20% parent feels like an outsider from their own children and possibly as though their ex-spouse is poisoning the children against them.  And you can imagine the downward spiral from there.

In my opinion, most timeshares should try to get to 30-40% assuming a safe living environment in both homes and reasonably adequate means of getting children to and from school.  With that level of timeshare, both parents can feel like they have lots of time with their children and children can genuinely feel like they have a home in both homes.  This ultimately reduces the conflict in divorce case – it’s one thing to break up with your spouse and another thing to lose your home, your spouse, half your assets and your children at the same time.

Of course, lawyers and judges work off “standard plans” and other shorthand ways of resolving legal cases, so in many instances you will end up with the 80-20 split if you cannot come to an agreement with your ex-spouse.  Engaging a lawyer who can work with you and your ex-spouse and ex-spouse’s attorney is a great way of reducing conflict and ultimately saving you not only heartache but also, in the long run, money.  If you are already in the position of having 20% and you want more time, it is really important that you work hard to follow all of the orders in your case, work on your home life, ensure there is a great place for your child to sleep and spend all the time you can with your child.  You or your child will then be in a better position to ask for more time together and you avoid the problem of non-neutrality in children of divorce.

Please give us a call to discuss your case.

Spotlight On Family Law: Legal Victories And Moral Victories

First Steps

Your soon-to-be-ex is a no good, cheating, lying jerk!  But for all of the nonsense he/she has been pulling for the past twelve years, your marriage would be intact and harmonious.  Now everyone involved is suffering and you don’t just want to get divorced, you want to make them pay.  You want the entire community to know what a jerk they have been and it would make you feel especially good to have the judge dress them down right in front of God and everyone.  You want justice.  In particular, you want the kind of moral justice that demonstrates that you have been in the right and they have been in the wrong.

Every client who walks into my office has a story to tell.  The majority of these stories describe how the marriage broke down, usually littered with broken marriage vows and reasons why the marriage became unworkable.  Many clients hold to the idea that their spouse should be punished for reprehensible behavior – and they often make well-taken points regarding the moral failings of their spouse.

You want to hire a lawyer who is just as outraged as you are – who is dedicated to knocking this jerk out cold for all their bad behavior.  And we do that – but we are also stone cold strategists who do not let ourselves be overwhelmed by the emotional details of particular cases.  I am constantly strategizing your case through short-game, mid-game and long-game approaches.  We are cagey; we think through various approaches, taking victory when it is right in front of us and sidestepping and being patient when the circumstances call for it.  All in all, our goal is to get you what you want.

One of my jobs as an attorney is to help my clients distinguish between moral and legal victories.  Although, at least on its face, California has done away with moral victories –we set most support based on rigid calculations and the majority of child custody and visitation provisions follow general principles even if they are not structured in the same rigid manner.  We can often use facts that sound like the moral failings that my client would like to share about their spouse, but we do so in the context of factual evidence that tends toward leading us to a place we want to be.

Gone are the Days of the Contested Divorce

California did away with contested divorce actions back in 1969.  In the old days, a party would claim that the other party breached the marital contract in order to push up support or to take advantage in the division assets.

There were several important reasons for this: first, to say that people stretched the truth in these actions is an understatement.  The truth is that parties had to allege a violation of the marital compact or continue to live in “marital hell.”  In order to avoid getting nailed with increased support and/or losing out in the division of assets, rather than provide defenses, would essentially claim “recrimination” –or “you did it too.”  This lead to nasty legal battles over essentially who was at fault for the failure of the marriage and long examinations of witnesses and parties about the intimate details of the sex lives and the rest.

Gone from the divorce courts are the types of moral victories that used to be sought in divorce cases.  Now, all it takes is for one party to claim “irreconcilable differences” – which the Court accepts as true – and the parties can proceed to divorce, even if one party makes clear that they disagree.

Legal Victories and Moral Victories

For example, the wife might have been gone five nights a week at her boyfriend’s house during the marriage.  That is a great moral reason for getting divorced, indicating “irreconcilable differences,” all that is needed for a divorce in California.  However, generally speaking, this information is going to prove that the marriage broke down, something that does not need to be proven in California.  What we can use such testimony for is to show that the father, in this case, has been home each night with the children and is thus their primary caregiver.  We use that type of information not to punish the wife for stepping out on the marriage, but to award custody and the lion’s share of custodial timeshare with the children to the father.  Again, the Judge should not (not always, but most of the time will not) consider that the wife was no longer honoring the marriage contract but rather that the wife was not home to take care of the children.

The legal victory is that dad has more custodial time with the kids and thus either a reduced child support payment or a larger child support payment from the wife.  Note, however, that the moral victory the client might be seeking is not front and center.

Using Your Testimony to Get You What You Want

I am often asked to bring out certain types of testimony that is only potentially or tangentially relevant – drugs, alcoholism, previous criminal history, adultery, pornography and other addictions, new boyfriends/girlfriends, immigration status (this is a big one in Santa Maria and the biggest no go since the Court has ruled that undocumented immigrant status is not a “bad act” for dissolution purposes).  I work very diligently to help my clients tell coherent story so that they are heard by the Court, but I am also very aware of the limits of relevance of particular evidence on the one hand and the possibility of doing damage to our case on the other.

The key is to make a presentation of evidence that gets the client what she wants.  So, where a client wants to ensure that she has the bulk of the parenting time and a support payment to match, we will work very hard to show that she is the primary caregiver to the children and that the father works a second job or that the father has a place to move (i.e., with the girlfriend).  What we generally will not do is try to show that the father has taken a new girlfriend, at least not to punish him for it, unless it is relevant to the matter at hand, i.e., custody and support.

Strategy Wins Cases from the Beginning to the End

While my clients are often seeking moral victories, I work with them to understand that the only true victories they are going to get are legal victories – and while these may not seem like moral victories (i.e., the judge may not reproach the bad acting spouse for their behavior), they are the most powerful victories.  By seizing the advantage in early hearings, the party then keeps that advantage throughout much of the matter.

As I have said elsewhere, if you have limited resources, hire a lawyer right at the beginning of your case so that you can seize any legal advantage you can get.  After that, you can spend your money more judiciously by hiring experts and presenting testimony.

My firm strategizes every case from the beginning to the end.  We work  through small trade-offs at the beginning of a matter that  create a greater likelihood that, as the matter plays out to its conclusion, my clients are in the best position to take the things that they want.  Now, this often does not turn into the type of moral victory that they set out to achieve at the outset of the case, but legal victories taste much sweeter than moral victories, and they last much longer too.

Spotlight On Family Law: Child Support Calculations

Calculating child support is contingent on two major factors: timeshare and income differential between the parties.  In basic terms, if you earn significantly more than your ex-spouse you will likely make a child support payment even if you have the children the majority of the time.  California public policy is that the children’s love should not be bought by the parent with the greater income.  Therefore, the law requires a child support payment equalizer that brings the parents’ income closer together.  However, California also recognizes that raising children costs money and therefore offsets income differential based on the timeshare or percentage time the child is with each parent.

Lawyers and judges use the Dissomaster program to interweave a variety of offsets – including mandatory retirement contributions, health insurance premiums and spousal or child support paid in previous relationships to calculate the support figure.  Contrary to what you might think, new spouse income rarely factors into the equation.  In theory, new spouse income can actually only help reduce your child support payments – if for example your new spouse is a high earner, she will increase your marginal tax rate, thus reducing hte amount of income you receive from your employment.

Child support is a major issue in many divorces – see my article on No Fault Child Custody – and I often tell clients that there is little way to decrease child support without spending more time with their children.  I am firm believer that where both parents are healthy, children should have regular and ongoing time with both parents and that such time should not feel like “visits” but rather like they are home when they are with either parent.  While increasing time share has the benefit for one parent of reducing their support payment, my philosophy behind this approach has everything to do with the children.  Children who see both parents regularly tend to be better adjusted and healthier themselves – in fact, the new research points to regular time with both mom and dad as being the greatest factor to overcoming the difficulties children face after a divorce.  All that said, the reduction in child support payments for the parent increasing their timeshare usually simply leads to more expenditures on the children by that parent (i.e., instead of payment going to the other parent to buy necessities for the children, the support paying parent simply buys them himself).

Thus, increasing timeshare should be a major goal of parents seeking to spend more time with their children rather than parents simply seeking to reduce support obligations.  The judges are very smart and they see through the latter approach quite easily.  I often recommend to support paying parents who really do desire more time with their children that they pay a little bit more than the guideline support level to keep them from “counting hours” and allow for a more free flow of timeshare with the other parent.

Good, healthy parents want to spend time with their children and their children deserve the opportunity to know them and to spend time with them.  The courts tend to lean toward some standardization – say a 20% timeshare – but this can be overcome through demonstrating a healthy and loving home environment that the children want to come to.  I work very hard with my clients and opposing parties/counsel to get agreements made on timeshare and support that work for both parties and ultimately benefit the children who not only get to spend great time with both parents but have the advantage of parents who, though not married, choose to be good co-parents of their children.

Text Message Anonymizers – Courtroom Evidence

In a recent and ongoing matter, I have come up against something I did not know even existed, the presence of text message anonymizers that apparently allow a user to send a text message to a phone with a fake phone number attached – in my matter, the phone messages were purported to have come from a new spouse to one of the children and then from that child to the new spouse (with inappropriate messages ensuing).

The family court in particular, but the civil and criminal courts as well, are going to have to examine this as a potential roadblock to the admission of text messages as evidence in the courtroom. In my practice, I have watched as lawyers attempt to deal with the submission of text messages as evidence. There has been some evolution from the need to actually submit the phone as evidence in the matter being heard – to demonstrate that the messages have been received on the phone – to taking screen shots of the messages on the phone. Working with the mobile carriers to subpoena text messages has neither been easy nor cheap, so lawyers in relatively lower budget dissolution cases have been trying to find workarounds that allow their clients to keep their phones.

In general, text messaging has been a very effective tool to reduce conflict between parties in dissolution actions. The parties know, and some judges will actually caution them at the outset of a case, that their phones may be plugged in to the overhead projector and text messages displayed for the entire courtroom to read, the theory being that if the message is on the phone, it must have been sent/received by the numbers displayed on the phone.

A text anonymizing program such as “text r us” or “text anonymizer”, both websites, allows a party to send fake messages. When conducting research for this blog post, I tried to register and send test messages to my own phone using the fake number 805-555-5555. The sites both claimed they were “down due to abuse.” Hopefully, the site owners are rethinking the way that messages are sent and received given the great potential for identity theft and other criminal actions.

In my ongoing matter, an entire series of messages – pages and pages worth – was submitted to the court as evidence attached to an affidavit from one of the parties that claimed the other party was using the anonymizing service. If admissible, the evidence is pretty inflammatory in both directions.

What should the court do? Will simple affidavits to the effect of “I did not use a text anonymizer” be enough?

I don’t think so. If text messages, like emails, can be hacked or faked, the court is going to have to take a long hard look at the chain of custody of evidence and return to looking at such evidence with suspicion, requiring a higher burden of proof regarding that evidence. The evidentiary standards in the family court have already been drastically reduced in an effort to get evidence before the court with the minimal amount of cost to the parties. However, the ability to cheaply (free) to fake or hack emails and text messages creates a real burden on the lawyers and the parties and creates an opportunity to fool the court.

My understanding is that the anonymizer websites will allow parties to track IP numbers to show not only that emails and text messages were fake but who faked them. But how do we provide such evidence? If the bar is going to need to retain tech experts to come to testify to the court about how anonymizers work and the IP addresses of the senders, the cost of getting text evidence into the court is going to drastically increase. On the other hand, I think it is important that we acknowledge the degree to which text messaging and the possibility that texts will be displayed in the courtroom, has reduced conflict in dissolution actions.

My suggestion is that, for the time being, court treat all text message and potentially email messages with deep caution given the relative ease for faking the origin of a text or email. I have not yet tried it, but my understanding is that some of the anonymizing programs actually have apps that can be downloaded to smart phones so that when they are sent they look like actual text messages sent from actual phones.

I guess we should have known we were headed in this direction.

It’s Time To Start Thinking About No Fault Child Custody Proceedings

A great op-ed piece in the New York Times by Ruth Bettleheim on February 18, 2010 tackles a important issue in the family courts: no fault child custody proceedings.  So called “No Fault Divorce” which is now 42 years old in California, paved the way for couples to get divorced based on “irreconcilable differences” and removed the parties’ need to state reasons for divorce.  The idea was to do away with much of the ugliness about actions and extracurricular activities that dog many marriages on the brink of failure.  In many instances, this has been a good thing for those of us who work in the family courts – it reduces our need to tell stories and name-call on behalf of our clients and it also reduces the he-said/she-said battles about infidelities and the like.  With much of that ugliness gone between the parents the leftover issues are usually centered around divvying up whatever is left of the family’s finances and deciding where the children will reside.

Unfortunately, support calculations follow the timeshare.  Because the “best interests of the child” standard is how the Court will determine with which parent the children reside (or at what percentage the children will reside with each parent), this often takes the ugliness that was restricted in the “no fault” divorce proceedings and pushes them into the custody and timeshare proceedings.

Support calculations are based on a rather complex formula that accounts for income differential and timeshare.  So, like it or not, timeshare battles are also typically battles over support payments.  Bettleheim notes this in her article and argues for support payments to be split from timeshare calculations allowing both parents to provide a decent standard of living for their children and then requiring mediation so that the parents can figure out how the child spends time with each parent.

Several thoughtful articles responding to Bettleheim’s piece have suggested that there are problems with this approach because the children’s best interests are constantly changing as they get older.

My suggestion, following Bettleheim, is that we use no fault support calculations based on income differential alone, usually a little more than one party wants to pay and a little less than the other party wants to receive.  Then we let parents work things out with strong mediators trained in the family law.  If they cannot work things out there would be some default custody rules – more like Massachusetts’ Father’s Bill of Rights bill that has been circulating in the legislature (see Boston Globe article here), which would have the judges consider joint parenting plans in making their decisions.  By removing timeshare from support calculations, we would likely get more fairness between the parents as agreed upon by the parents.

I have long advocated to both mothers and fathers that I represent that more equal time is better for everyone (usually – the exceptions are glaring and probably should be mentioned: physical, emotional or sexual abuse, drug abuse, or neglect).  What I argue is not grounds for unequal timeshare that really boils down to: the other parent does it differently than I do (i.e., the routines are not the same; the child won’t sleep in his or her “own bed”; the food is not the same; bedtimes are later, is too strict; is not strict enough, etc. ).

We can continue to proceed down the path we are on, but I think the Courts are a little overwhelmed, good fathers are being lumped in with the old, worn stereotype of the “disengaged” or worse “bad” father, and moms who become single mothers often end up overburdened and frazzled trying to work, do all of the childrearing and have a life at the same time.  But the support factor often keeps everyone fighting over timeshare.

Going forward, the family bar and the California Superior Courts should begin to think about how they can get fathers and mothers on board with a system that recognizes each parent’s talents and the children’s need to know them both at their best and on a daily basis (e.g., to see that dad’s house has the structure and rules that come with daily life and is not just every other weekend Disneyland and that Mom’s house can be fun and playful and full of life when she has time to herself every week).

Get Your Divorce Worked Out…Outside Of Court

This is a repost of an excellent article by a Chicago divorce attorney with 48 years of practice.  He basically points out that virtually all divorces in which there are any means settle outside of Court, but not before it ends up costing the parties a good chunk of the money they have collectively saved.  In my experience there are three things that cause people to go to Court rather than settle differences outside of Court.

1) They do not understand the law very well:

This should be obvious, but most people neither really understand the legal rights and obligations we owe our spouses when our marriages break up.  They also rarely understand the local judges and the types of decisions they render.  Judges are people too and they have massive caseloads, which is why their decisions can be roughly predicted based on the facts in the case.  This is in no way a criticism – in fact, when the decision processes and outcomes are largely known before you go into Court (and an experienced lawyer can help you understand not only what the law says but what the Courts are likely to do given your facts) they can better settle your case for you with the most minimal cost.  When you go to Court, either against your lawyer’s advice or on your own, you put yourself at the mercy of the Court.  You often don’t really get the chance to tell your story (and if you do, there are so many stories that judges simply don’t have the time to give them anywhere near the amount of deep thought you have given them).  And while your story is novel to you, to the judge it is just another story that sounds like many other stories that have gotten in front of her.

2) They are emotional:

Yes, we are all emotional during a divorce.  It is probably the most emotional time in our lives.  But because of that, in California at least we have so-called “no fault” divorce.  Judges want to keep the emotion out of the courtroom – the issue is not who had an affair or who yelled loudest or whatever, the issue for the judge is how do we divide assets a efficiently as possible as quickly as possible?  Support levels are really the major issue for most divorcing couples where one party may well be writing the other party a check for many years to come (whether for spousal or child support or both).  But the law accounts for this too, trying to keep the emotion out things.  Support levels are generally set by a combination of a State child support calculator (attorneys and Courts use the Dissomaster program) and the local rules – which again, the two lawyers representing you already know and you don’t.

If I have any rule of thumb about support payments it’s this: the support payment will equal more money than the supporting spouse believes he or she can possibly afford to pay and less money than the supported spouse possible believes he or she can live on.

3) The children:

Ok here is the most emotional issue of all for most parties in a divorce and the reason why many both go to Court and stay in Court after they get there.  One party wants more time with the children, believes he or she should have more time with the children and believes that the children should have more time with him or her.  This is a very difficult and very emotional issue.  Both parties feel the “best interests of the child” involve the child spending more time with them.  Tons and tons of research in the area leads both sides to have a lot of ammunition about whether children are better off with good dads or good moms.  Judges are forced to make decisions quickly and in many instances the decisions are not really what either party wants.

Child support is calculated on a mix of differential in income AND timeshare, so timeshare fights over the children also usually entail deep financial consequences.  Mom can’t stay in the home if Dad won’t pay child support at the 80%-20% plan.  Dad can’t afford to get a new home for him and the children without paying support at the 50%-50% level.  What to do?  In my opinion, the best strategies are compromise strategies.  Dad (in this case, but it could be Mom), pays a little more support than he wants but gets more time with the kids (breaking support from timeshare).  Mom gets a little more money than the timeshare would require gives up some time with the kids.  The result is a workable plan – truly workable – where the kids are able to see both parents regularly and both parents have the time to rebuild their lives.

Get an Attorney at the Beginning

You might think this is self-serving, because I am an attorney, but it’s very important that you consider working with an attorney toward a settlement agreement as quickly as possible.  This saves you the preliminary hearings where judges make quick “temporary” decisions that tend to become the rule of the case.  If these early decisions were truly temporary decisions, parents could come together balancing the cost of litigation at $245 an hour or more (for 25-30 hours of attorney time apiece – or roughly one year’s worth of college tuition at the University of California!) against the cost of some additional support.

Do not get me wrong.  There are absolutely times to fight it out in Court, particularly where the children are in real danger.  But you need a good attorney who can help you understand when this time is and when it is not.  Working together with legal counsel, both sides can have a true negotiation in which they understand their rights and obligations toward each other and what the Court is likely to do in their case.  Then they can sit and negotiate fairly and with as limited emotion as possible, getting things worked out the right way, outside of Court.  Litigation should always truly be the last resort, but if it comes after negotiations between the parties and their attorneys, then you will be prepared.

As always, this blog is my own opinion and does not constitute legal advice.  It also does not form an attorney-client relationship.

Steward Your Parents Assets Like An Emergency Manager: Long-Term Health Care

The number one question I hear in my elder law practice is: how do I help my parents protect their assets from nursing home costs?  Often, the question is coming at a very late stage in the game – usually after the parent is already in the nursing home or assisted living facility.  At this point, it gets a little more complex for a lawyer to help protect the parents’ assets.

Lawyers are a lot like emergency managers – we are usually brought in to a crisis situation with limited tools and resources available and attempt to help guide the best possible outcome under the circumstances.  Emergency managers know that the best way to increase the odds in your favor is to start planning for a crisis before it occurs.  Emergency managers along the Gulf Coast know that a hurricane is coming, just not when.  They make all of the necessary arrangements to resolve 90% of the problems that are easily anticipatable before the crisis occurs and then devote their resources during an event to resolving the unanticipated.  Note that good planning reduces the degree to which an event actually becomes a crisis – it’s only a crisis if you have a number of options and limited resources to deal with consequences.

If you have aging parents, or if you are getting to the time when you are thinking not just about retirement but about what happens when you are less able to care for yourself, it’s a good idea to treat the future as an anticipatable crisis and begin planning for it as early as reasonably possible.  So, because many of us worry (and as a lawyer, I get paid to worry on your behalf) about health care eventualities (note: like the Gulf Coast emergency managers with hurricanes, we know that our parents – and ourselves – will eventually need long term healthcare, just not when), good planning is the key to reducing the degree of crisis we face when it is time for long-term healthcare.

We can learn several keys to protecting the assets you have worked so hard to create from emergency managers.

1)      Emergency Managers assemble their teams.  Work with a lawyer and financial planner as a team to develop avenues to protect and grow your assets with trust vehicles.

2)      Emergency Managers form compacts and agreements before an event.  They work with other counties and states to provide resources while they have them in order to build relationships of trust and confidence for the future.  There is a an understanding that “paying it forward” not only helps build trusting relationships.  Give strategically and early – you can’t take your assets with you but you of course worry about being asset-less as you get older.  Still, it makes more sense to gift assets to your children who will care for you as you age than to use those assets to pay for your nursing home care later.  Giving early is key because Medicare/Medicaid will “look back” 60 months from the date you apply for coverage to see if you gifted any money.  If you have, you can be penalized on receiving coverage for a period of time depending on the size of the gift.

3)      Emergency Managers take stock of their resources before an event.  Emergency managers always take stock of what is available to them, what might be available to them and what probably is not available to them.  This helps them plan for contingencies.  Know your assets.  Take stock of what you have liquid (cash, investments) and the values of assets you currently own (cars, homes, businesses, etc.).  Some assets are not included in the Medicare calculation while others will make it difficult to receive coverage.  Know your income streams and tax liabilities.  In retirement, income can be from pensions, social security, Veterans Administration benefits, dividends, and loan repayment.  Calculate all of this to make sure you know what is going to be coming in.

4)      Emergency Managers use expertise to solve complex problems.  When faced with a complex or novel problem, emergency managers look to experts in a particular field to help them solve them.  Work with an attorney who is experienced in the area of Medicare, to figure out what your liabilities will be and what the law is regarding qualification for Medicare and any other state or Federal benefits to which you might be entitled.  See some of my other blog posts regarding social security and VA benefits.  Working with an attorney with expertise in the field will help you ensure that you are capturing each and every dollar to which you are entitled.

5)      Emergency Managers use their experience to guide their decision-making.  As a side note: attorneys require upfront costs, money you may prefer, in a perfect world, not to spend.  But attorneys worth their salt will save you tens of thousands of dollars above and beyond what they charge you to put things in working order.  Knowing that your assets are protected and that you won’t be burdening your children (or bearing the cost of care for your parents) gives many people restful nights of sleep.  The importance of sleep cannot be overstated – better sleep means you will live healthier and longer.

6)      Emergency Managers do not panic. If you are coming around to planning for long-term care a little late in the game, all is not lost, but it is very important that you do not simply take “self-help” actions like making large gifts, transferring titles, and the like.  As the event comes closer and closer and a crisis looms large, experienced emergency managers do not panic, they take stock of resources and options, they talk to experts, they gather their team and they proceed based on the best information and options available to them.

Thinking and planning strategically is the absolute key to reducing the amount a future event turns into a crisis.  When you know an event is coming, it makes sense to plan for it now to reduce the cost of the event later.  Most of us prefer to delay costs to a future date in hopes of avoiding the inevitable.  This is the greatest cost strategy in terms of both assets/resources and your own stress.  It creates a future scenario when there are limited resources, numerous options and limited time to act.  Good emergency managers know that they can operate in sub-optimal conditions, but they would always prefer to increase their odds by anticipating and resolving threats before they become problems.

Veterans’ Pension Benefits For The Surviving Spouse

Good news….Veterans! If you served during wartime, even if you were not injured while on active duty, and even if you did not serve overseas or participate in direct combat, you may be eligible to receive a special VA pension benefit.  If you 65 years old or older or are permanently and totally disabled you can claim between $600 to $1,949 per month, based upon your need.  This is also true of a surviving spouse of a wartime veteran, even if the veteran never claimed them.

This pension is usually called a “Death Pension,” or an “Aid and Attendance” pension.  Basically, it is a needs based monthly pension to help the surviving spouse of a veteran manage ongoing monthly expenses.  Paying these expenses with Veterans Administration benefits becomes critical especially if there is a need for long-term care assistance because the spouse can no longer care for himself or herself.

The veteran must have served 90 days of active duty, with at least one day of service, during wartime, which includes:

  • World War II:  December 7, 1941 – December 31, 1946
  • Korean War:  June 27, 1950 – January 31, 1955
  • Vietnam Conflict:  August 5, 1964 – May 7, 1975
  • In-Country Vietnam:  February 28, 1961 – May 7, 1975 if served in the country of Vietnam
  • Persian Gulf War:  August 2, 1990 – Present

The surviving spouse must be able to demonstrate limited financial means in terms of income and assets.  The spouse’s income can be reduced for the purposes of eligibility by out-of-pocket medical expenses, such as in-home care, assisted living expenses, doctors’ fees, prescriptions and insurance premiums, and much more.  This is a key point in elder care planning issues.  As we learned yesterday, the former or surviving spouse can claim either their own social security benefit or half of that of their former spouse (all of it if he is deceased).  If the spouse is also a wartime veteran, there may be both the Aid and Attendance pension and the Social Security benefit that can benefit the spouse.  However, for Medicaid and pension purposes some of this can be calculated after out of pocket medical expenses, given the surviving spouse additional income that can be used for paying non-medical bills.

The surviving spouse will need to demonstrate the need for assistance in daily living activities – usually this is done with a physician or a long-term care facility’s certification.  Almost all debilitating diseases qualify a person directly including: Alzheimer’s, Parkinson’s, Multiple Sclerosis, arthritis, and dementia.

If you think you may qualify for this benefit, get advice immediately from an attorney who can guide you through the VA maze.  Remember that legally, no one can charge you a fee to assist you in filling out your benefits applications. We can help direct you to several local VA accredited attorneys that can help with claims filing and adjudication – our office’s estate planning, trust drafting and elder care practices work directly with VA accredited attorneys to help guide you through the process and ensure that you or your loved ones receive the greatest amount of benefits to which they are entitled.

Social Security Benefits For Divorced Couples Over 60

Did you know that your parent (likely your mom or grandmother given the earning gap between genders in the 1950s and 1960s) may be receiving less social security than she is entitled to?  Under the social security laws, a divorced spouse can receive social security based on her own income during her working years or choose to receive half of her spouse’s benefit.

The basic social security rule is that a person can collect Social Security benefits based on her own earnings history, or 50% of her spouse or former spouse’s benefit, if it is greater than her own, and 100% if he is deceased.  Many people do not know that in cases of divorced or widowed couples who were married at least ten years, the lower earning spouse can elect to take her own social security or half of her former husband’s (the full amount of his if he is deceased).   The social security benefit claims process does not even require notifying the former spouse and does not affect their benefit at all.

Social security is, for many, a key part of the elder care planning process.  By adding, in some cases, as much as $1,100 if the former spouse is still alive and the social security maximum payment of $2,366 per month if the former spouse is deceased can add major income and relieve some of the stress in the planning process.

You might be eligible for a bigger Social Security benefit based on a former spouse’s earnings record if the marriage lasted at least 10 years, and:

– You are at least 62 years old and unmarried and your former spouse is currently collecting benefits.
– You have been divorced at least two years, your former spouse isn’t collecting benefits and you are both over 62.
– You are over 60 and your former spouse has died.
– Your spouse or former spouse delayed taking Social Security until after his full retirement age.

Please get in touch with me at jude@judeeganlaw.com

or better yet, give us a call, at 805-727-4165 and let us help you with your social security, Medicare, trust and elder care planning needs.

Remember, when it comes to Elder Care, we make housecalls.

Should You Be Able To Sue Your Spouse’s Mistress?

Here’s an interesting article from Vicki Larson about tort (personal injury) laws in some states that would allow a spouse to sue their spouse’s mistress (or mister) for the emotional harm and suffering the affair has caused them.  To be fair, the (possible) laws are only on the books in seven states while in another 16 states adultery is illegal, but William Corbett, an LSU law professor – and someone I knew professionally while I was a professor at LSU – argued that there were several torts available that might give spurned spouses some redress for the mental suffering they experience when their spouse has an affair.

The point, Corbett argues, is not that such laws would save marriages, per se.  But as he points out, tort law has many policy goals – one of which might be deterrence, or trying to stop a particular type of behavior – but others of which might well be compensation for suffering/injury, revenge, and punishment.  These types of laws – and their application in the adultery context – are an interesting way of seeking to serve these latter goals of the tort system.  Deterrence could be one additional factor.

Let’s be clear…these laws are likely not to apply in California but that does not stop California tort and divorce attorneys from thinking through ways in which they might apply to a particular set of circumstances.  It also helps the spurned spouse cope with the idea that their partner stepped outside of the relationship.  Sometimes it just help to know that others not only have the same feelings, but that in some places they have actually created laws on the books to deal with those feelings.

By the way, breaking the marriage contract – or the promise of a marriage contract (i.e., the promise to marry) – was an action that sounded in contract law in many jurisdictions including our common law cousins in the British Isles until more recently than most would have thought.  And given the huge cost of planing a wedding, often at least by tradition, borne by the bride to be, there are a number of states (OK a few, like Georgia), that will treat a promise to marry contract like any other contract and will consider a case of cold feet or jilted bride to be a breach of contract action and let the bride recover for the costs of the wedding planning.  AND, some states require the jilted bride to give back the wedding ring, but Georgia is among other states that does not consider it a conditional gift and lets the spurned bride keep the ring.

OK, getting back to reality.  In most instances in California, adultery – whether seeking compensation or revenge or punishment – will not create a cause of action in tort law.  Likewise, breaking an engagement will likely not create a cause of action for breach of contract.  But as the laws on the books in 7 states in the first instance and some number of (mostly southern) states in the second instance indicate, if you have been in the situation before, it certainly does seem enticing to make the other person pay for the suffering they have caused.

On the bright side, in the case of the broken engagement, you won’t likely be calling on folks like me to represent you in a divorce action in a few years.  In the case of the adulterous spouse, California has no-fault divorce, meaning you can seek a divorce without having to relive all the gory details of the affair – just quietly file suit, get half of everything and walk away clean with a fresh start.