It's NOT Just Social Media in a Divorce!

Monterey Family Law Attorney
Monterey Divorce Lawyers
Monterey Child Custody Attorney

By Daniel S. Williams

As the age of Facebook, Twitter, and other social media is no longer in its infancy, you have probably heard why not to post certain things online for various reasons, be it so that perspective employers do not see it, or in the case of a divorce, so the "other side" can't use it against you.  You know how it goes, your out to dinner with some friends trying to enjoy a Friday night and someone orders a glass of wine, posts the picture online and then all of a sudden your ex is using it in Court to claim you are an alcoholic and were out drinking instead of being home with the kids.  Happens all the time.

But there is another thing that many people do not think about that can have a grave impact on your case that is not linked to social media in anyway.  It goes to the old saying "lose lips sink ships."  That saying for background comes from the days when on military submarines, crew were forbidden from talking because their voices could be picked up by very sensitive sound tracking devices and pin point the exact location of an "enemy" ship and thus sink it.

I am talking about the situation where you are at that dinner, or maybe even having breakfast with a family member or close friend talking about your case.  You look around, and you don't see your ex and anybody associated with him or her so it should be safe right?  WRONG.  In 2008 I had a friend going through a nasty divorce and child custody battle.  Both sides were accusing the other side of substance abuse.  Because one of the litigants was a friend, I was not the attorney of record.  I only new one of the parties through a secondary mutual friend.  She, the wife, had a fellow attorney in the community representing her and so did her husband.  They had a hearing coming up on spousal support and whether it should be extended, as the divorce by this time had been lingering with heavy custody litigation in the Court for well over two years.  My friend the wife was the recipient of the support and by the facts of the case, it did not look like she was going to get the extension.  However, after the hearing, she emailed me and stated she prevailed and got the extension.  The very next day, I was in Court sitting in the section for the attorneys and it was before the Judge came out and as it goes the several attorneys were talking among themselves.  I was sitting quietly going over my notes.  The attorney for the husband in the case I am referencing happened to be sitting right next to me.  He had NO idea that I knew the wife in his case.  He began talking to the attorney next to him, two seats away from me.  Husbands attorney did not mention any names, or anything that would stand out, he just was talking about how upset he was that he lost a particular hearing the previous day.  He then told the attorney sitting next to him, that his office had hired someone to follow the wife everywhere to see if they could catch her drinking.  Right then and there, his case was blown.  Again he did not mention any names, but I knew exactly who he was talking about

So after Court I called the wife and told her what I had heard.  She then knew to be on the lookout for someone following her.  So instead of potentially being caught by their trap, she began doing volunteer work and going to AA meetings etc.  This blew their case and husband ultimately could not sustain his allegation that the wife was abusing alcohol.  However, husband thinking that he was going to "get" his ex, was overconfident and wife had then hired a person to follow him everywhere.  He was caught drinking excessively and wife was able to sustain her allegation.  So the moral of the story is, DO NOT TALK IN PUBLIC ABOUT YOUR CASE.  Because you do not know what person is in an earshot and that they may have a secondary connection to the matter.  Your busboy or waiter could easily know you ex somehow and you may not even know it.  Make sure all conversations are done in private and keep your lips sealed.

Monterey California Family Law -- Imputed Income, When the Other Party is NOT Making What They Can

Monterey California Divorce Lawyer
Monterey California Child Custody Attorney
Monterey California Family Law Attorney
Monterey California Child Support Attorney

IMPUTING INCOME FOR SUPPORT

Often times as a family law attorney I am asked what happens if the other parent is working, but not working full time or to their potential?  In other words, what happens when someone is trying to artificially lower their income in order to pay lower child support?  The short answer is that the Court can impute income to that party, which means that although a party is not actually earning an income, the Court will use income figures as if the party were making the income the party has the ability to make.

How does this work?

Family Code §4053 sets forth principles to be followed by the Court in implementation of statewide uniform guidelines for child support.  Of importance in the instant matter are the following sections:

(a)    A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life.

(b)   Both parents are mutually responsible for the support of their children.

(c)    The guideline takes into account each parent’s actual income and level of responsibility for the children.

(d)   Each parent should pay for the support of the children according to his or her ability. 

Family Code §4058 defines annual gross income of the parents.  Of importance in the instant matter is the following section:

            (b) The Court may, in its discretion, consider the earning capacity of a parent in lieu of                  the parent’s income, consistent with the best interests of the children. 

In order to impute income to a non-working or under-working parent for purposes of calculating support, a three-prong test exists before a capacity to earn standard may be applied.  Earning capacity is composed of (1) the ability to work, including such factors as age, occupation, skills, education, health, background, work experience and qualifications; (2) the willingness to work exemplified through good efforts, due diligence and meaningful attempts to secure employment; and (3) an opportunity to work which means an employer who is willing to hire. [See: In Re Marriage of Regnery (1989); 214 Cal. App. 3d 1367; and In Re Marriage of Ilas (1993); 12 Cal. App. 4^th 1630].  However, MANY Courts discarded the second prong, and made an assumption or obligation of a party’s willingness to work.  Thus, it is in reality a two-prong test. 

It must be noted that in applying the capacity to earn standard, the Courts are permitted to do so when dealing with child support when it is consistent with the child or children’s best interests.  [In Re Marriage of Ilas (1993); 12 Cal. App 4th 1639, 1636]  This discretion is granted by looking at Family Code §4058(b) which allows the Court to substitute earning capacity for actual income in applying the guideline formula.  Although, Family Code §4053 states that the Courts shall adhere to the principle that guidelines take into account each parent’s “actual” income, that section does not prescribe hard and fast rules it only denominates a set of principles.  Further, Family Code §4053(d) states that each parent should pay for the support of the children “according to his or her ability.”  Read together, these two statutes ensure that, while actual income must be considered, so must the parent’s ability to earn.  Family Code §4058, actuates both of these principles by allowing the Court to substitute earning capacity for actual earnings consistent with the best interest of the child.  [See In Re Marriage of LaBass (1997); 56 Cal. App 4th 1331, 1337]

The Courts have also reasoned that a parent does NOT have the right to divest himself or herself of his or her earning ability at the expense of minor children.  When a parent decides not to seek employment to the best of his or her ability, the Court must retain discretion to impute income otherwise one parent by a unilateral decision could eliminate his or her own responsibility to contribute to the support of the child, causing the entire burden of supporting the child to fall upon the employed parent.  [Citing: In Re Marriage of Padilla (1995), 38 Cal. App. 4th 1212]

Additionally, the Court in LaBass noted that while most cases deal with imputation of income to the supporting spouse, there is NO support in case law or code which support a claim that the case law dealing with imputation of income to a supporting spouse does not apply to the “care giver” whose refusal to realize her earning potential is motivated by “her perception of ‘the best interests of the children.’”  [Emphasis NOT added] [LaBass, at 1340] Rather, Family Code §4053(b) states unequivocally that both parents are equally responsible for the support of their children.  Accordingly, Family Code §4058(b) makes no distinction between custodial and non-custodial parents. [Id.]

Why Don't I Get to See My Kids?

Daniel S. Williams -- Monterey Divorce and Child Custody Attorney

Over the last ten years, one of the most common questions I get is along the lines of "how much will I get to see my kids?" or "will I get to be able to see my kids more than my ex?"

Answers to that question are hard to give because its the wrong question to ask.  The correct question to ask is "how often will our children be able to see each of us?"  Now, while going through a custody process, that may sound altruistic or corny, but the fact of the matter is custody and visitation awards are not about how much time a parent gets to spend with their child or children, but how much time the child gets to spend with both parents.  The reason in logic is simple, it is the child who benefits from and needs the nurturing and care of both parents.

I can not stress enough the importance of the difference between looking at this from the often but innocently incorrect perspective of how much time does a parent get to see their child or children, and the logical and legally supported correct perspective of how much time does the child get to see each parent.  I am reminded of a trial I once had where I was successful in preventing a move-away case which by all respects given the facts was an uphill battle.  My client was the non-custodial parent and only saw the children every other weekend and during some but not all of the holidays from their school.  He worked out of town and had to travel a lot.  The mother was working for a company that offered her a big promotion and she would be moving to New York.  She requested a move-away.

Pursuant to California Family Code Section 7501(a) which states "A parent entitled to custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of a child."  What does this mean in laypersons terms. Basically, that the parent with primary physical custody can relocate with a child so long as it is done for a reason that is other than to disrupt the visitation of the non-custodial parent. This came from a case referred to as In Re Marriage of Burgess (1996) 12 CA 4th 473, in which the Supreme Court of California stated that once the "moving" custodial parent made a threshold showing that the move was nor for the purpose of frustrating the "remaining" parent's visitation and was for any proper purpuse, the remaining parent then had to prove that the move would actually be detrimental to the child.  Now since that decision, the Courts have what I call a split of authority and the burden of the remaining parent is not so high.  The Courts will generally look to see if the purpose is legitimate and the bests interest of the child are met.  Now how does this relate to the question at hand.  Simple.

When we were at trial, thousands of thousands of dollars had been spent on psychological examinations, interviews with both parents, depositions, and other discovery such as and down to which school was better and if the walk to school in the new location versus the old location was more dangerous.

In closing argument I was very nervous for my client because the law and the fact that he traveled was very stacked against him.  However, I can not recall the exact way it came to me, but I sat in my office thinking, gee these are both great parents, its a shame they ever got divorced.  I really thought the mother was an outstanding parent, and I thought the same of my client. By all accounts of what I had seen from the child, it appeared that the child was a great kid too.  I then realized that the reason the child was so great was because the kid had to outstanding parents who did not fight or haggle, they just could not live with each other.  One parent liked hot, the other parent liked cold.  One parent liked up, the other parent liked down, for a lack of better terms.  Then I realized, you take this straight A student with an outstanding record on everything and add to the fact "what if one of there parents were deceased or otherwise out of the picture, would the kids still be so well adjusted?"  I really couldn't answer that question.  That's when I realized that if the move-away were denied and the mother moved anyway the child was really going to miss out on a great parent.  I wondered to myself, if the move-away was denied, would the mother choose the job over the child?  That is when I asked the judge to put my client back on the stand before closing arguments and I asked my client one simple question.  "Sir, what is the hardest thing for you in this case?"  My client responded, "Well, I know the cards are stacked against me, but if the move-away is denied, I know our kids is really going to miss the mother, and I will just be heart-broken to see our child go through that."

That was it, a simple statement.  Counsel and I then made our closing arguments and the judge took a short recess to render a decision. When the Judge came out, he stated that all through the trial he felt his hands were tied and he was going to order the move away.  But when he heard my client say what he said above, he realized, this was a parent who cared more about what the child would go through then what either of the parents would go through.  The move-away was denied based on the grounds that the child would not benefit from seeing both parents at the rate of the current schedule.

Accordingly, next time you think about why you do not get to see your kids as much as you want or why the other parent gets to see them more, the real question you should be asking is, how much is our child or children benefiting from seeing both of us.

Payment of Benefits Under Union Employee Benefit Plans with a Qualified Domestic Relationship Order {QDRO}

Union Benefit Plans

Union pension plans are different from single-employer or other corporate pension plans.  They are administered jointly by an equal number of employer and union representatives.  The "equal representation" requirement is mandated by the Labor Management Relations Act of 1947 (LMRA) 29 USC Sections 121-187.  The LMRA is commonly referred to as the Taft-Hartley Act, and union plans are known as "Taft-Hartley plans."

One primary difference between union plans and corporate plans is that union plans are often administered by third party administrators, rather than the human resources department of a corporation. This is especially true in "multiple employer" pension plans in which multiple employers are involved with the pension plan.

Process of QDRO Administration

Most Union pension plans, like most corporate plans, have now developed sample orders and procedures for administering domestic relation orders. Unlike most single-employer pension plans, however, union pension plans often retain outside legal counsel to handle the QDRO review and approval process.

Joinder of Plan
The initial step is for counsel to send a joinder request to the plan office.  The employee or the non employee spouse may have the the necessary contact information.  Additionally, the employee's local union office will help locate the plan office.

The Judicial Council has developed an informational form describing the types of plans that can be joined to a family law proceeding, entitled to Retirement Plan Joinder FL-318-INFO

For more information on your rights as a non-employee spouse or an employee spouse, contact a family law attorney regarding your rights to union benefit plans as these are complex issues that if handled incorrectly could cause financial losses to one or both parties. 
www.danwlaw.com

On What Grounds Can a Divorce be filed in California and Does it Matter Who Files?

Law Offices of Daniel S. Williams

Often times attorneys such as myself meet with people for a consultation regarding the filing of a divorce for a person who is totally unfamiliar with how one is able to get divorced in California.  Whether is be in Monterey or San Diego, the entire State of California is a NO FAULT divorce state.  As a Monterey Family Law Attorney, I meet with many people during consultations who are originally from different states, but are in California on military assignment.

In recent years, some states have put "hurdles: into law in the guise of "promoting" marriage, making the divorce process more timely.  For example, one state requires a year separation before the divorce process can starting, and others require marital counseling prior to a divorce process starting.

California is NOT one of these states.  However, there is a misconception about the "six-month rule."  The six-month rule simily states that the marriage can NOT be adjudicated dissolved until six months have passed since the summons and petition was served upon the Respondent.  This simply means that the earliest possible date that the parties to a divorce in California can be restored to the status of "single" is six months from the day the summons and petition were served on the Respondent.    

The initial filing paper is referred to as the "Petition" and the person who files the Petition is the "Petitioner." The Petition and a Summons must be served on the other party who becomes the "Respondent."  The Respondent then would file a "Response and Request for Dissolution of Marriage."  Accordingly, it makes NO difference who files first, as both parties are essentially requesting the Court dissolve the marriage. Often times on post-judgment modifications, attorneys and judicial officers have to refer to paperwork to see who the Petitioner is and who the Respondent is.  Regardless of any future moving papers, the Petitioner will always be the Petitioner and the Respondent will always be the Respondent.

Nevertheless, while there are many different causes for divorce, the fact that California is a NO FAULT divorce state, means that their need not be anything of significance shown for a Court to grand a divorce. The two options for dissolution of marriage are as follows:

1. Irreconcilable Differences:  Irreconcilable differences means things have occurred which have caused an irremediable break down of the marriage.  Irreconcilable differences are those grounds which a party feels are substantial for not continuing the marriage and which make at least one party want the marriage to be dissolved.  It only takes one party to believe that irreconcilable differences are existent.  Thus, if another party does NOT want the divorce, there are no grounds to prevent the party believing irreconcilable differences exist from dissolving the marriage. 
2. Incurable Insanity: While many people may desire to file on grounds that the other party is incurably insane, the truth is that this means of divorce is not practically used, despite it still being a legal option for requesting a dissolution of marriage.  There are several reasons for this, the most notably is the cost in that in order to get a dissolution of marriage on the grounds of incurable insanity, the party alleging incurable insanity must shop upon proof, including competent medical or psychiatric testimony that the insane spouse was at the time the petition or response was filed, was and remains incurably insane. This also may be difficult to prove because of the fact that the testimony required to show someone is "incurably insane" is difficult to secure and presents a malpractice risk to any person who would give such testimony.  Additionally, with advances and de-stigmatization of mental health issues, there are few if any mental health professionals whom would go on record in a court of law and give testimony that a party is incurably insane. 

In short, California is one of the States that provides for the simple reason that someone does not want to be married any longer, as that in and of itself would constitute irreconcilable differences.  If you are contemplating a divorce or going through one, you should not rely on legal advice from anybody other than an attorney.  Clerks of the court are prohibited by law from giving legal advice, and while a friend for family member may have gone through the divorce process in California, the fact remains that each and every case is unique and the division of assets and liabilities, as well as child custody and visitation outcomes very dependent on each cases unique facts.  

Collaborative Divorce -- A Better Option?

Law Offices of Daniel S. Williams

by Daniel S. Williams, Esq.

Often times I am asked what the easiest way to get divorced is and how much will it cost. This is a question that I have found over the years that the client knows the answer better than I could.  Why is this?  After all, I am an attorney and the client is seeking my counsel.

The reason is simple.  How long a divorce will last and how much it will cost depends on how much cooperation and trust is left in the marriage.  In its simplest form, a summary dissolution (a topic for another posting), may be the fastest way to get divorced, but often with children and debt issues, parties do not qualify for a summary dissolution.  

So what is the next best option, one that is better for the parties involved, and helps ease the pain and upset that goes with almost every divorce?  Collaborative Divorce. 

First, one must ask: 

What is Collaborative Law?

Quite simply, it is a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers and, on occasion, other family professionals in order to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of contested litigation. The voluntary process is initiated when the couple signs a contract (called the "participation agreement"), binding each other to the process and disqualifying their respective lawyer's right to represent either one in any future family related litigation.

The collaborative process can be used to facilitate a broad range of other family issues, including disputes between parents and the drawing up of pre and post-marital contracts. The traditional method of drawing up pre-marital contracts is oppositional, and many couples prefer to begin their married life on a better footing where documents are drawn up consensually and together. 

How Does Collaborative Divorce Work in California?

Clients and their attorneys are at the heart of a working team which often includes mental health, financial and other professionals as needed to provide information and help clients explore a variety of solutions. The clients don`t sign a settlement agreement until each of them is comfortable with it.  This promotes an atmosphere of trust, and cuts down on the need for discovery, depositions, subpoenas, and other hearings that often can eat away at upwards at the marital equity, and often times leaves parties in debt to creditors in order to pay their legal bills and related expenses.  For example, on a recent case I spent four to five hours going through financial records and assembling them pursuant to a discovery request by an opposing counsel. The time spent preparing this and assembling it pursuant to the discovery request cost my client over $1,000 in legal fees.  The opposing party (by projection) probably billed their client a similar amount in preparing the discovery request and examining it.  Thus, between the parties, it would be fair to say that $2,000 to $3,000 was spent from their assets just to pinpoint one thing, what was the average monthly income of my client who is a small business owner. Contrast that with the collaborative process and the parties would have each brought the documents to a meeting, and I could project within an hour the average monthly income could have been agreed upon.  Thus, the parties could have came to the same needed number and between them spent about $500 total. 

Why is a Mental Health Professional Involved?

This is a question asked most frequently and comes down to a simple old saying: never make important decisions when your upset or emotional.  While the process of Collaborative Divorce is meant to have the parties work together, the fact remains that tough decisions have to be made and as the process continues, often parties relive the good and the bad of the marriage.  This makes parties emotional, and a mental health professional or coach for each party is extremely useful in keeping a party focused on an end goal.  Divorce is upsetting and often people can dig their feed into the ground unwilling to budge because of an aspect that has no bearing on what the law says or how a Court would ultimately treat the issue.  Additionally, a mental health professional can be extremely helpful in preventing the process from breaking down and thus having the divorce proceed as a contested and nasty process. 

If the Process Fails, What is Confidential?

In legality: everything.  In reality: the cat is out of the bag.  While collaborative law is a no hiding of secrets process, and promotes the spirit of working together, in reality, nothing comes out that should not come out in a contested process anyway.  Refer to the financial discovery example above.  Many people fear that if the process fails, the other side will already know everything.  Yes, this is a reality, but this is also life and this is also the law applied.  Parties should look at it more as what ever is said would be said anyway.  What ever is brought to the table, would have come out in discovery.  Again, I refer back to the financial discovery example above. 

Overview of Benefit

• All information is voluntarily shared as soon as possible.
• Good faith efforts to explore options are central to the process.
• Skills are developed which enable parties to handle new issues as they come up.
• Collaborative attorneys work only as settlement specialists, and disputing parties will need to hire other lawyers if any of the parties want to litigate.
• Participants can add neutral experts to their supportive team.
• Clients retain the power to create a resolution that fits their particular needs and priorities.

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