One of the recurring themes of this blog has been "Why do people get married? What will help then accomplish whatever it is they want to accomplish by marrying?"
It appears that the number of Americans, over-all, who believe that marriage does what they want done, continues to shrink, even as the broader recognition of same-sex marriage would seem logically to have increased it. There are theories, both social and economic, as to why this may be; my job, as a counselor at law, is to make sure, as much as possible, that when people enter into a legal relationship, they understand what it is, what it does, and are clear, as their partners are clear, that their expectations and understandings match, or at least, fit.
Showing posts with label California marriage. Show all posts
Showing posts with label California marriage. Show all posts
Wednesday, October 1, 2014
Monday, May 5, 2014
"Coupling" and "Uncoupling", Conscious Or Not
“Conscious Uncoupling” is the most recent "flavor of the month” to be launched into the popular terminology and fashion in divorce, following on the heels of “Integrative divorce”, “collaborative divorce”, and the division of “mediation” among “transformative”, “evaluative”, “facilitative”, and “adjudicative” mediation.
Leaving aside for a moment some of the more eccentric and New-Age-y thoughts* of the authors from whom Ms. Paltrow drew the phrase, the term suggests, as the other bookend, “conscious coupling”. That is a concept which I have been advocating and will advocate as long as I continue to have folks willing to listen to, or read, my thoughts on the subject. **
Those who’ve read this blog know that I believe and advocate that the closest someone about to marry can get to a policy of “marriage insurance” is making sure that both spouses-to-be have the same understanding and expectations of “the Deal”, the contract they sign on for when they say “I do”. Competent financial planners, when interviewing married potential clients, routinely ask both spouses to separately answer questions about financial philosophy, risk aversion, etc., and this occasionally uncovers widely divergent views, often to their clients’ dismay. Likewise, clergy whom I respect, regardless of denomination, often will want, before performing a wedding for their congregants, to have a serious pastoral discussion with them about their mutual understanding of their “covenant” (which is just an old word for a contract.)
If there’s more “Conscious Coupling”, there’ll probably be less “uncoupling”, conscious or otherwise.
* “The creation of insects was a failed attempt by nature to evolve a higher form of consciousness”, “Anthroposophic Medicine” and my favorite, “The misunderstandings involved in divorce also have much to do with the lack of intercourse between our own internal masculine and feminine energies. Choosing to hide within an endoskeleton and remain in attack mode requires a great imbalance of masculine energy. ” This latter is obviously intended to assist those who have considered developing an exoskeleton to hide in when they get divorced; Paging Gregor Samsa....
**Just passed my 25th anniversary, so I claim some personal, as well as professional expertise.
Leaving aside for a moment some of the more eccentric and New-Age-y thoughts* of the authors from whom Ms. Paltrow drew the phrase, the term suggests, as the other bookend, “conscious coupling”. That is a concept which I have been advocating and will advocate as long as I continue to have folks willing to listen to, or read, my thoughts on the subject. **
Those who’ve read this blog know that I believe and advocate that the closest someone about to marry can get to a policy of “marriage insurance” is making sure that both spouses-to-be have the same understanding and expectations of “the Deal”, the contract they sign on for when they say “I do”. Competent financial planners, when interviewing married potential clients, routinely ask both spouses to separately answer questions about financial philosophy, risk aversion, etc., and this occasionally uncovers widely divergent views, often to their clients’ dismay. Likewise, clergy whom I respect, regardless of denomination, often will want, before performing a wedding for their congregants, to have a serious pastoral discussion with them about their mutual understanding of their “covenant” (which is just an old word for a contract.)
If there’s more “Conscious Coupling”, there’ll probably be less “uncoupling”, conscious or otherwise.
* “The creation of insects was a failed attempt by nature to evolve a higher form of consciousness”, “Anthroposophic Medicine” and my favorite, “The misunderstandings involved in divorce also have much to do with the lack of intercourse between our own internal masculine and feminine energies. Choosing to hide within an endoskeleton and remain in attack mode requires a great imbalance of masculine energy. ” This latter is obviously intended to assist those who have considered developing an exoskeleton to hide in when they get divorced; Paging Gregor Samsa....
**Just passed my 25th anniversary, so I claim some personal, as well as professional expertise.
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.
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.
Tuesday, March 11, 2014
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.
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.
Friday, December 13, 2013
Duty to Disclose
Stuart Strumwasser and Jennifer Johnson got a divorce in New York in 2007. Shortly before filing for divorce, Johnson told Strumwasser that she was going to San Francisco to visit her brother. While in San Francisco, Johnson purchased stock in Twitter. She filed for divorce six months later. The stock was never disclosed or addressed in the divorce settlement. Strumwasser discovered the stock well after the divorce was finalized. As part of the divorce settlement, Johnson was ordered to pay $2,465 per month in child support although he was making a modest income because Johnson demanded he pay support based on income substantially higher than his actual income.
That Twitter stock is now valued at between $10 and $50 million. Strumwasser is requesting $120,000 plus 30% of her Twitter shares.
http://www.nydailynews.com/new-york/brooklyn/twitter-investor-hid-earnings-child-support-dad-article-1.1530653
In California, if a spouse fails to disclose an asset, it is considered an omitted asset. The court reserves jurisdiction (the power to resolve the issue) over the disposition of omitted assets even after a judgment is entered. If the court finds that the omission was intentional or fraudulent, then there are consequences to the party who fails to disclose. Such consequences can include assigning the entire asset or the entire value of the asset to the other spouse regardless of whether that asset would have been considered community or separate property. Since the penalties can be this severe, it’s important to always disclose everything during a dissolution. In California, spouses not only have a duty to disclose everything (assets and debts) to the other party, they have a duty to update any financial information if it changes during the case.
That Twitter stock is now valued at between $10 and $50 million. Strumwasser is requesting $120,000 plus 30% of her Twitter shares.
http://www.nydailynews.com/new-york/brooklyn/twitter-investor-hid-earnings-child-support-dad-article-1.1530653
In California, if a spouse fails to disclose an asset, it is considered an omitted asset. The court reserves jurisdiction (the power to resolve the issue) over the disposition of omitted assets even after a judgment is entered. If the court finds that the omission was intentional or fraudulent, then there are consequences to the party who fails to disclose. Such consequences can include assigning the entire asset or the entire value of the asset to the other spouse regardless of whether that asset would have been considered community or separate property. Since the penalties can be this severe, it’s important to always disclose everything during a dissolution. In California, spouses not only have a duty to disclose everything (assets and debts) to the other party, they have a duty to update any financial information if it changes during the case.
Tuesday, November 19, 2013
Tuesday, August 20, 2013
Can You Kiss Your Cousin?
A recent Slate advice column inquiry about the impending marriage of two people who are cousins, but don't know it, has led to a fascinating discussion over at Volokh Conspiracy about the circumstances under which such a marriage might, or might not be legal.
A tip of the late August panama hat (supplied by Meyer the Hatter of New Orleans) to Doc Volokh.
A tip of the late August panama hat (supplied by Meyer the Hatter of New Orleans) to Doc Volokh.
Wednesday, June 26, 2013
DOMA Donesky! What Does This Mean For "Domestic Partners" and the "Civilly United"?
I'm still digesting the SCOTUS' decisions in the Federal DOMA and California Prop. 8 cases. The short take-away is that it is probable (though I will never say certain) that the thousand-plus references to the rights/obligations of "spouses", in Federal laws and regulations, will now include same-sex couples who are "spouses" under the laws of the state in which they contracted a "marriage". It is not yet clear is whether or not those folks who have a state-recognized relationship which is called something other than "marriage" will fall within that umbrella.
Sunday, August 1, 2010
Separated, But Never Divorced?
The New York Times on some of the reasons that some folks (including, apparently, Warren Buffet) continue in marital limbo, for years, and in some cases, decades. The record, in my own practice, was a client who had cohabited with his new spouse just long enough to conceive, and for her to give birth to, a child; now that their son was finally reaching adulthood, they thought it would be a good time to finally dissolve the marriage...
Wednesday, June 30, 2010
On-Line Marital "Tune-Ups"?
Per the New York Times, a number of efforts are afoot to provide on-line tools for "preventive maintenance and assessment" for married couples. (Providing relationships with something between scheduled maintenance/inspection visits by your car dealer, and your annual physical?)
Professors from UCLA and University of Miami are soliciting 500 married couples to participate in a study of on-line self-help couples therapy.
Researchers at Brigham Young offer an (inexpensive) on-line martial/relationship assessment which, they say, yields a graphic report depicting a couple’s communication and conflict style, and how much effort each partner puts into the relationship.
A similar assessment tool is also being studied in Australia as part of a telephonic and remote program of marital counseling, intended for those in remote areas who simply cannot practically arrange for face-to-face contact with a counselor.
Professors from UCLA and University of Miami are soliciting 500 married couples to participate in a study of on-line self-help couples therapy.
Researchers at Brigham Young offer an (inexpensive) on-line martial/relationship assessment which, they say, yields a graphic report depicting a couple’s communication and conflict style, and how much effort each partner puts into the relationship.
A similar assessment tool is also being studied in Australia as part of a telephonic and remote program of marital counseling, intended for those in remote areas who simply cannot practically arrange for face-to-face contact with a counselor.
Wednesday, December 9, 2009
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
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
Thursday, September 24, 2009
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.
Tuesday, August 25, 2009
We're saying the same thing; we're just saying it differently
My learned colleague Mark Chinn** from Jackson, MS, posted a deliberately provocative title to his blog this week: said Mark: "If you get a prenuptial agreement in the days before the marriage, don’t sign it!"
My thought was: "If your fiance hands you a prenuptial agreement at the church door, stop the music, and postpone the wedding! You've just learned something very valuable about your fiance, before you've married him!"
Mark's point, as we kicked it around on Facebook afterwards, was: "If you are going to sign a life time contract, you better have counsel and some time to think about it."
Mine was: "That INCLUDES that big contract you sign on when you say "I do!"
** Mark's a great guy, and a wonderful lawyer, but he's about as different from me as someone who would fit my superficial police description (6'2"+; 200 lb. + white male, brown hair, glasses, over 40, lawyer, married, parent) could be: he's perpetually cheerful when I'm saturnine; he's relaxed and Southern and small-towny where I'm a perpetual pent-up Northern cosmopole, etc.
My thought was: "If your fiance hands you a prenuptial agreement at the church door, stop the music, and postpone the wedding! You've just learned something very valuable about your fiance, before you've married him!"
Mark's point, as we kicked it around on Facebook afterwards, was: "If you are going to sign a life time contract, you better have counsel and some time to think about it."
Mine was: "That INCLUDES that big contract you sign on when you say "I do!"
** Mark's a great guy, and a wonderful lawyer, but he's about as different from me as someone who would fit my superficial police description (6'2"+; 200 lb. + white male, brown hair, glasses, over 40, lawyer, married, parent) could be: he's perpetually cheerful when I'm saturnine; he's relaxed and Southern and small-towny where I'm a perpetual pent-up Northern cosmopole, etc.
Thursday, August 6, 2009
Friday, February 20, 2009
A Cup of Coffee On The Way, Pt. II: Why Is Getting Married Easier Than Joining a Health Club?
When I was younger, and even more cynical, I once joked that the best way to reduce the divorce rate was to make it a lot more difficult to get married.
It's not as funny as I used to think it was.
When you buy a house, or even a car, you get a stack of many pages full of tiny type, which you are expected to read. Some really important paragraphs are in BOLD TYPE, with lines for you to sign or initial, confirming that the BOLD TYPE got your attention, and that you at least read those parts, and that you say that you understand them. Then, if you change your mind within a day or so, within some limits, you can back out. Heck, in California, if you just want to join a gym, you have to go through a similar ritual*.
If you want to get married, on the other hand, you pays your money, and you gets your license. There's a contract there, all right,** it's just that nobody really demands that you read it, let alone that you have any idea what it says before you sign on for it.
I've spent 29 years wrestling with what the terms of that contract really are, and I've got sort of a handle on it, says the State Bar*** . I used to keep the terms of that contract in a shelf-full of books, which had to be updated annually; now I keep it on my computer, where it occupies a swath of virtual space. Most of those young folks lining up at ring stores in the Jewelry District haven't a clue what's in there.
Next topic up: If you want the "off-the-rack" marriage contract, we've made it fast, cheap, and easy; if you want to think about, and change, what you're signing on for, even if you and your spouse-to-be agree, it's expensive, complicated and takes at least a week.
Why would we discourage people from looking before leaping?
* California law regarding this implies that it came to the attention of our Legislature that miscreants were going out and signing up, say, 90-year-old ladies to expensive "lifetime" installment contracts for gym or "dance studio" memberships, and swindling the heck out of them; thus there are now fairly comprehensive rules for what you have to read, before you can get those mambo lessons.
**Says so, right there in California Family Code 300: " Marriage is a personal relation arising out of a civil contract between a man and a woman. . .". Don't send me a comment about the validity of those last five words; I'll be coming around to THAT debate presently.
*** "Family Law Certified Specialist, State Bar of California Board of Legal Specialization"
It's not as funny as I used to think it was.
When you buy a house, or even a car, you get a stack of many pages full of tiny type, which you are expected to read. Some really important paragraphs are in BOLD TYPE, with lines for you to sign or initial, confirming that the BOLD TYPE got your attention, and that you at least read those parts, and that you say that you understand them. Then, if you change your mind within a day or so, within some limits, you can back out. Heck, in California, if you just want to join a gym, you have to go through a similar ritual*.
If you want to get married, on the other hand, you pays your money, and you gets your license. There's a contract there, all right,** it's just that nobody really demands that you read it, let alone that you have any idea what it says before you sign on for it.
I've spent 29 years wrestling with what the terms of that contract really are, and I've got sort of a handle on it, says the State Bar*** . I used to keep the terms of that contract in a shelf-full of books, which had to be updated annually; now I keep it on my computer, where it occupies a swath of virtual space. Most of those young folks lining up at ring stores in the Jewelry District haven't a clue what's in there.
Next topic up: If you want the "off-the-rack" marriage contract, we've made it fast, cheap, and easy; if you want to think about, and change, what you're signing on for, even if you and your spouse-to-be agree, it's expensive, complicated and takes at least a week.
Why would we discourage people from looking before leaping?
* California law regarding this implies that it came to the attention of our Legislature that miscreants were going out and signing up, say, 90-year-old ladies to expensive "lifetime" installment contracts for gym or "dance studio" memberships, and swindling the heck out of them; thus there are now fairly comprehensive rules for what you have to read, before you can get those mambo lessons.
**Says so, right there in California Family Code 300: " Marriage is a personal relation arising out of a civil contract between a man and a woman. . .". Don't send me a comment about the validity of those last five words; I'll be coming around to THAT debate presently.
*** "Family Law Certified Specialist, State Bar of California Board of Legal Specialization"
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