TLD's General Counsel Blog

The Holidays are Not An Emergency

Family law courts can become congested this time of year. The congestion is not from the scheduled matters, which in some instances may be postponed until after January 1 by parties and attorneys to avoid conflicting holiday plans, but from unscheduled EX PARTE or emergency matters parties filed at the "last minute" with the hope of the court addressing glitches in holiday custody schedules.

When seeking emergency relief, be prepared to explain to the court why the situation was so troubling as to have the Court stop what it is doing to address your problem; and with that, why the other side should not have the right to ample time to tell their side of the story. Christmas falls the same time every year. If there is a dispute over what is going to happen on Christmas eve, you had better prepared to have things filed by Columbus Day. Court are loathe to make these kinds of decisions, and ever more troubled when the analysis takes place within a limited emergency application. It is best to limit these requests to when there is "blood on the carpet" or when there is true "irreparable" harm that might result if the Court doesn't act on an emergency basis.

Article Submitted By: Attorney Daniel Gold

Make Sure to Get in Writing

In the rush for parties who are ending their marriage to save money, people find themselves having verbal "agreements" as to how things are going to work out. This is not the way to go! All understandings regarding kids, financial support, and property division need to be in writing at a minimum to have any legal effect. The first step is to contact an attorney experienced in this area of law to piece a successful resolution strategy. The dollars spent up front, will save many dollars, significant resources, and time, later on when there are enforcement and interpretation issues that often crop up with verbal agreements.

Article Submitted By: Attorney Daniel Gold

Be Careful When Dividing Pensions in a Divorce

One asset that has tended to become overlooked in many dissolution matters are defined benefit pension plans. Defined benefit plans are plans in which the employee holds in a pool of money which is contributed by current employees, perhaps the employer, and then invested by the fund which maintains the monies. This pool of money is then used to fund continuing income streams for the retirees. With defined contribution plans (401K, deferred compensation plans, etc). The employee funds their own personal account, which the employee can withdraw from after retirement. The defined contribution plan is limited to the amount the employee (and/or employer) has invested in the account. With the defined benefit plan, the monies last the balance of the retiree's lifetimes, in theory. That last fact, in this age of increasing life expectancy, has created incentives to go away from defined benefit plans, particularly as the number of younger employees paying into these plans has dwindled.

When dividing defined benefit plans, the trial court has discretion to divide these plans in the most equitable fashion. The trick is understanding in most cases there is no current funds in which to draw cash if the employee is below retirement age, and still actively employed when the marriage comes to an end. Hence, the Court must take into account the number of years the parties were married, the number of years the employee spouse was employed and a member of the fund, and the income they will be at or or near retirement age.

In some cases, the parties lawyers' will employ actuaries to estimate the present community interest value in the pension. While these estimates maybe accurate, there are two problems which occur with these estimates. First, they assume that the employee spouse will live for up to 20 years after retirement, which may not be the case. Second, the estimates will sometimes be large enough to force the employee spouse to give up other assets to keep their pensions intact.

The more common way is for the parties to request that the Court order the pension to be divided when the employee spouse retires. Once this is done, the Court can order a separate order (A DRO or Domestic Relations Order). The most common method to determine and divide the community interest in a pension is to use the "time rule". The "time rule" is a fraction used to determine the number of service credits included in the years that the spouse was employed during the marriage. While the most common, the method may not be the best. As a recent case In re Marriage of Gray [(2007) 2007 DJDAR 1482] pointed out, the parties and attorneys need to obtain an accurate understanding about how the pension benefits are determined before selecting the method to apportion separate property and community property benefits.

Article Submitted By: Attorney Daniel Gold

Where there's Smoke...Second Hand Smoke and Child Custody Litigation.

Does your estranged or ex-spouse/cohabitant smoke around the kids when they are in their custody? As California and other states start to create new laws to keep people from smoking around co-workers, and children in cars, it would surprise me if Judges begin to order parents not to smoke around their kids, period! While some may feel this goes too far, the trend is pretty much tilted in this direction. Depending on which side you are on, it is adviseable to seek experienced family law counsel to determine your rights and obligations.

Private Judicial Officers in Family Law

With congested court calendars in most family law courtrooms, parties are increasingly turning to private judicial officers (typically retired from the bench). This option is being selected for both ADR/mediation settings and for contested hearings. Corporate litigants in civil lawsuits have been using these methods for some time. Over the past six years, however, family law attorneys and parties have been increasingly drawn to this forum for dispute resolution.

Consumers in family law matters, particularly in complex custody and property matters, are finding that it is "cheaper" to pay a private judge than to be at the mercy of uncertain and delayed trial calendars, which force lawyers and parties to continuously "re-prepare" for hearings that wind up not taking place or taking place many months, even years after operative events have taken place.

In determining whether a private judicial officers is a worthy option for your matter, ask the following questions:

1. Are any of the litigants out of state residents?

2. Are there issues in the dispute that might be better served in a "non-public", less sensitive arena?

3. Are there adequate resources for one or both parties to pay for the retired bench officer AND the lawyers?

4. Will the agreement to appoint the private judicial officer include a reservation of discovery and/or appellate rights you would have in any other matter?

5. How many hearing prior to the contested trial do you anticipate there will be?

There is no magic answer, and each marital dispute raises different concerns. You should  weigh the various options, and make the best informed decision you can make.

Article Submitted By: Attorney Daniel Gold

It's Not Always "50/50"

In California, the community property and the quasi-community and quasi-marital assets and liabilities must be divided equally upon dissolution absent a written agreement or in-court oral stipulation to the contrary. (Family Code Section 2550). This is only part of the story, however. Where economic circumstances warrant, the court may award an asset of the community estate to one party on such conditions as the court deems proper to effect a substantially equal division of the community estate.(Family Code Section 2601). This may be true where the debts outweigh the assets; so called "negative" estates. In these cases, the court may look at the pro rata breakdown of the parties incomes in dividing the debts between the spouses. This results in the higher earning spouse taking on a bigger portion of the "community" debt.

Other exceptions to the "equal division" rule include: Personal injury awards under certain circumstances.(Family Code Section 2603) Some out of state real property; Sums deliberately misappropriated, Property totaling less than $5,000 in value in default cases;in cases where debts were incurred in "anticipation of separation", where one spouse has attempted to murder the other; and where one spouse has been awarded civil damages against the other for domestic violence.

Article Submitted By: Attorney Daniel Gold

Child Support and Tax Planning

CHECKS AND BALANCES: FOCUS ON THE FINANCES

It is tough to deal with money when you are so emotionally involved with your spouse. However, statistics show, the better you handle your emotions, the better you will be able to manage your money during divorce.

If you find yourself attempting to get even, get it over with or get back together with your spouse, be on guard.  These three "gets" will affect your ability to think clearly and act in your own best interest.  The financial agreements you make during divorce, will affect you permanently.  Moreover, although you are entitled to pursue your legal rights, the judicial system is no place to get satisfaction for your emotional demands.

Research shows that divorce is second only to the death of a spouse in terms of the amount of stress produced.  You have to safeguard your sanity and emotional well-being.  As you move through your divorce, it will be easy to become overwhelmed with the financial details.  Nonetheless, you must make sure that the financial choices you make today will work for you tomorrow.  There is an excellent article, entitled, "Avoiding Common Pitfalls."  Click on the link to read about understanding your financial and emotional limits.

Article Submitted By: Attorney Daniel Gold

DIVIDED HOUSE: SHARING CHILD CUSTODY

As adults, the process of divorce can be overwhelming for us.  However, from a child's perspective, dealing with parents who are divorcing, can be tough.  Unless you were a child of divorced parents, many of us, do not know how it feels to live with Dad in one house and then live with Mom in another house.  We do not know the feelings associated with having to transfer belongings back and forth, sometimes within several days or several weeks.  A study by Greenstein, a psychologist, worked with a group of children whose parents were either separated or divorced.  These Children came up with a Bill of Rights for Children Whose Parents are Separated/Divorced.  The Bill of Rights read, 'The right not to be told the details of bitter or nasty legal proceedings going on between their parents,' 'the right to privacy when talking to either parent on the telephone, the right not to be made to feel guilty for loving both parents.'  Click here to see a complete list of the Bill of Rights.

I also highly recommend the book, "Mom's House, Dad's House: Making Two Homes For Your Child," by Isolina Ricci, Ph.D., and can be purchased new or used at amazon.com.  It provides great instruction on how to turn your crisis into a positive force that will propel you and your family into a comfortable and happy home life.  Happy living!!!

Article Submitted By: Attorney Daniel Gold

PET CUSTODY BATTLES

Although pet custody battles, may sound unusual, it is increasingly becoming common.  A survey by the matrimonial lawyers found that 90 percent of the pet-custody battles were about dogs.  For many divorcing couples, the pet is like their child.  It has been reported that there is a shift occurring in our society in which the pet is considered more a member of the family and thus becomes a part of the divorce battle.

I recall a case last year involving a custody dispute over a white poodle.  The parties ended up reaching a custodial plan wherein both parties shared joint legal and physical custody of the dog.  One party had the dog on alternate weekends and a mid week overnight.  Both parties equally shared in the medical expenses of the dog.

Generally, pets stay in the home where the children primarily live.  However, if the splitting couple does not have children, then the issue becomes complicated.  Usually, some type of custodial schedule is put in place so that both parties have quality time with the pet.

Read more from the Tribune newspapers: The Hartford Courant.

Article Submitted By: Attorney Daniel Gold