Pet Custody? What's The Standard?

Recent changes in the California version of the Domestic Violence Prevention Act now permit a judge making a restraining order, to make an order for "... the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence.... The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal."   There is no explanation provided as to what the court should and should not consider to be "good cause" for such an order, and how a court is to resolve conflicting claims to possession of a particular animal. 

This new law is inconsistent with long-standing law in California and most other states that dogs, and other "domestic animals" are personal property, to be divided in a divorce, and  worth, according to California law,  their sale price.

We've negotiated  pet custodial arrangements in the past, understanding that, in some cases, the emotional value to a party of a pet may be vastly different than the pet's "market value".

California has not yet recognized any claim for money damages for being deprived of the custody of a dog.  A Vancouver judge recently rejected a similar claim in Canada, but it seems to have been only one of several pretty frivolous claims brought by the parties, and all summarily rejected by the judge.

"Grey" Divorce and Retirement Plans

From today's New York Times

Common Financial Issues In Divorce

http://online.wsj.com/news/articles/SB10001424052702303380004579521661563711986

    Interesting read about the some common issues in divorces identified by financial experts from the financial perspective.  For the most part, I agree with everything these experts say.  Often, I will advise clients to consult with a financial advisor before so that they can resolve many of these common issues or determine whether these will even be a problem based on the particular assets and debts of a case and their potential division. 

Concealing Assets During a Divorce

A northern California man, Steven Zinnel, was sentenced to more than 17 years in prison for declaring bankruptcy and hiding assets to avoid paying child support and spousal support. He was also ordered to pay a $500,000 fine and forfeit assets worth more than $2,8 million. The sentence is said to be one of the longest prison terms given for bankruptcy fraud in federal court in the Sacramento Eastern District of California.

Zinnel, the father of two teenage children, split from his wife in 1999 and had a contentious divorce. Apparently, there was a history of Zinnel concealing his assets throughout he case and afterwards in an attempt to avoid paying support.

http://www.mercurynews.com/california/ci_25280558/northern-california-man-who-hid-assets-avoid-paying      

In California, spouses have a fiduciary duty to disclose their complete financial information to each other. If a party’s financial situation changes (upwards or downwards), that party also has a duty to provide supplemental or amended information to the other party disclosing the change to their finances.

Family Law And Religion, Again

The first defendant has entered a Federal guilty plea in the "extort a divorce"  ("get a get"?) case in New York. David Hellman, a New York personal trainer, succumbed to a Federal sting operation, and traveled across a state line (or more specifically, across the GW bridge) to meet with some co-conspirators, and an FBI undercover agent, posing as the brother of a soon-to-be-ex-wife who needed her soon-to-be-ex-husband "convinced" to grant her a get, a religious divorce. 

A tip o' the kippah to Howard Friedman at Religion Clause.

Family Law Attorneys' Letter to Santa Claus

Not California-centered, but pretty good anyway.    Tip of the red hat with the pom-pom to Gregg Herman.

Celebrity Divorce Without Tabloids: It Can Be Done!

Without noise, paparazzi, or even appearance on a public docket, Tim Duncan and his ex finalized their divorce by settling it, in a non-public document.  As with the Schwarzenegger/Shriver settlement, they decided that a long bitter public court battle wasn't anyone's best career move.

...and incidentally, an acknowledgement for the pointer and a hat tip, to Peter Salem of the AFCC,  whose (co-edited) Family and Divorce Mediation: Models, Techniques and Applications was name-checked in the Onion article about Duncan!

Family Law Goes To The Movies

There’s a “Winter RomCom” which bears on family law this season: Vince Vaughn’s comedy of assisted-reproductive-technology, “Delivery Man” (short non-spoiler synopsis: he’s been a artificial insemination donor, and discovers that, due to a paperwork snafu, he’s the father of 500+ children). Haven’t seen it yet, but I’m hoping it has a bit more of legal reality infused in it than past “family law” movies, comic or serious, including “Mrs. Doubtfire”, “Kramer v. Kramer”, “Intolerable Cruelty” (a prenup comedy) and “Next Best Thing”, a fairly dismally received film (Rotten Tomato-meter: 19%)  on which, I must admit, I received a screen credit (I and my partner are right there, between the caterer and Madonna’s yoga consultant), but couldn’t manage to get director to make the courtroom scenes quite right.

A Divorce App?

Per the Wall Street Journal, a new online "divorce manager"

Family Law and Religion: Religious Divorce

It's not every day that someone's divorce results in protests to the staff of the House Ways and Means Committee. Maryland, unlike New York, apparently does not have a legal mechanism by which recalcitrant divorcing husbands can be directly coerced into granting their observant ex-wives religious divorces, so it appears the judge may have fashioned his own remedy. While I have some serious doubts regarding the Federal constitutionality of the New York get statute, I also understand the civil law effects, internationally, of the absence of a get.

Another Child Custody and Religion Case

...in which nobody seemed to raise the Constitutional issues. This time, it's Georgia; by agreement, Mom was to have the authority to make decisions about child's religious training and upbringing. Mom wanted to give child Jewish religious training and practice, and Dad had, it appears, originally agreed. Then, it appears, Dad changed his mind, and (as is sometimes the case in these sorts of cases) also began acting like sort of, well, a jerk.

The Court warned Dad that he risked being found in contempt, and provided the following admonition as to how to "purge" the contempt, from which one might reasonably infer additional details of Dad's behavior:

(a) Mr. Greene may not indoctrinate the child in a manner which promotes the child's alienation from Judaism.

(b) Mr. Greene shall not take the child to church (whether to church services or Sunday School or church education programs); nor engage the child in prayer or Bible study if it promotes rejection rather than acceptance, of the child's . . . Jewish self-identity.

(c) Mr. Greene shall not share his religious beliefs with the child if those beliefs cause the child emotional distress or worry about the child's mother or the child herself. Thus, for example, Mr. Greene may have pictures of Jesus Christ hanging on the walls of his residence. But, Mr. Greene may not take the child to religious services where they receive the message that adults or children who do not accept Jesus Christ as their Lord and Savior are destined to burn in hell. Further, he may not pray Christian prayers with the child, play Christian songs with the child present, read the Bible to the child or in any way attempt to indoctrinate the child into the Christian Faith.

(d) Neither party is to talk negatively or derogatory about the other party's religion in the presence of the child, and there shall be no derogatory comments that could be construed as anti-Semitic of any nature, meaning Mr. Greene shall no longer refer to Ms. Greene's parents, who are Jewish, by any numbers or anything similar to that.

Mr. Greene shall ensure that these rules are followed by persons whom he allows the child to be in the presence of or have contact with. No secondary person shall teach or read the Bible to the child, or pray any Christian prayers, or otherwise attempt to indoctrinate the child into the Christian faith.

Even assuming that Dad was doing the obnoxious stuff we can infer from the details, why didn't making any of this order trouble the judge?

Are You and Your Fiancee Working From The Same Blueprint? The Pre-Nup Conversation as Marriage Insurance

Over at Gitlin Law Blog, Illinois family law attorney Joe Gitlin muses that marriages break down when (to use a metaphor which dates both him and me) the spouses aren't "building from the same blueprint".

This is consistent with my take: the crux of the decision to divorce isn't usually specifically about money, or sex, or intimacy, it's that moment, a year, a decade, four decades into the marriage, when one spouse says "This ISN'T the deal I thought I signed on for!"

I consult with folks frequently about whether they need, or want, a pre-marital agreement. The first part of that conversation explores whether the client, and the spouse-to-be, have ever talked seriously about the sorts of things that a pre-marital agreement might address: who's going to control the money? Are both spouses going to have accounts for "their own" money, and a joint "pot" out of which they'll pay joint expenses? Is the plan that one spouse will work, and the other will be a stay-at-home parent for a number of years? If one owns a house, what's the other's expectation as to what's going to happen with that house after the marriage?

Even if folks are okay with the "off-the-shelf" marriage contract, if they understand it, and each understands in advance what the other's expectations are, the chances that they'll manage a lasting marriage are increased.

With all respect to my friends in the floral, couture, and catering industries, marriage planning's less romantic, but more important than wedding planning, and almost nothing is less romantic than divorce court...

Divorce, Italian Style?

The New York Times reports Italy's first "divorce trade show". I guess "Divorce, Italian Style" no longer carries quite the significance it once did.

Why Do People Divorce, and Should We Make it Harder To Do?

A family law blogger colleague argues against Maryland’s pending reduction of the minimum waiting period for entry of a divorce judgment.

In support of his argument that this is a bad thing, he republishes a study which notes a statistical correlation between a state’s minimum time for completion of divorce proceedings and the divorce rate in the state (and also cites a similar correlation as to foreign countries).

Leaving aside a myriad of science/statistics problems with the underlying study, I’ll ask, provocatively, “So what?”

A state could reduce its divorce rate to zero, quite simply, by either making divorce a sufficiently long or expensive process, or by simply eliminating it completely, by repealing its divorce statute. That would not mean, obviously, that the families in such state would be “less dysfunctional”, or that the children in those families were better-adjusted, or anything like that.

The more significant argument is buried within the discussion: there is some reason to think that divorce has a better outcome for kids if we allow married parents to finalize their divorce more quickly if they reach a complete agreement regarding the custodial arrangements for their children (or stated more realistically, that we don’t allow couples to dissolve the marriage quite as expeditiously if they DON’T reach an agreed resolution of their issues).

There also is some evidence that suggests that some sort of dispute resolution counseling may both reduce the rate of divorces completed, and result in a substantially better outcome for the kids involved.

Which is lovely, except that the budget for any such intervention (custody mediation, dispute resolution education and counseling) has never been adequate, and at least in California, is now evaporating.

A while ago (in the last century, actually) I’d argued that the best way to lower the divorce rate was to remove some the impediments to divorce (cost, minimum waiting periods, congested court calendars, etc.) , but to add similar impediments to marriage. Originally my feeble attempt at Swiftian satire, I’ve now come around to the view that this is an idea worthy of serious consideration; if you put the counseling and waiting period in at the front end, the outcomes are likely to be far better at the back.

. . . or should we just say “. . . those that are married already. . . . . . shall keep as they are”?

Now Why Didn't I Think Of That?

A divorce gift registry. Those Brits are so far ahead of us in handling matters of etiquette.

Just In Time for The Holidays: When Is That Porsche With The Big Red Bow NOT A Gift?

Ms. Buie was married to Mr. Neighbors. Ms. Buie had previously sold a piece of real estate, and had some money in the bank, so shortly before Mr. Neighbors' birthday, she allowed him to take $60,000 of that money and buy himself a Porsche. . . . . . or so he thought.

As a California court has already observed, ". . . divorce unsettles many of the parties' significant plans and assumptions, no matter how carefully crafted. . ."*

There was, you see, apparently no writing from Buie to Neighbors saying something like "Here is my gift to you!", or if there was, nobody could find it by the time Buie and Neighbors got to court.

California law requires that there be a writing for such a "transmutation" of community property to separate property, except as to a

". . . gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage." **

The trial court said "Gift!", perhaps reasoning that a Porsche was, for a middle-aged husband in Southern California, of a "personal nature", the way clothing or wearing apparel or jewelry is for a middle-aged wife. He would, after all, no more expect her to drive his Porsche than he'd expect her to let him wear her fur coat and diamond earrings.

Not so fast, said the Court of Appeal. The legislative comments to the 1984 enactment of F.C. 852 were fairly explicit that an automobile isn't "a tangible article of a personal nature". In the absence of a writing, there's no gift transmutation of the car from community to Mr. Neighbor's separate property. Even more dismaying for him, since the money used was traceable to Ms. Buie's separate property house proceeds, and she also had never made a written waiver of her right of reimbursement, she was entitled to be reimbursed for her contribution, up to the remaining equity in the car. The car was in essence, all hers, not all his.

If you find a car in your driveway this month, with a card from your spouse on it, save, treasure and keep that card!


* Marriage of Destein (2001)
**California Family Code Sec. 852

Divorce and Social Security

A quick explanation, from the Wall Street Journal, of divorce and Social Security benefits.

Surprisingly, Los Angeles is NOT the Divorce Capital!

In fact, California's not really in the running. Looks like Indiana and Florida are the big contenders.

Divorce Can Make You Sick

This just in: divorcing is often so stressful that it will make you sick.

Divorce, Tabloid News, and the First Amendment

The Connecticut Supreme Court has held that once someone with a "celebrity divorce" signs an agreement that gives away the right to blab about the divorce to the media, in exchange for money from her ex, that agreement will be enforced, and isn't an improper violation of the would-be-blabber's First Amendment rights.