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Posted on Jun 4 on 2015

Those who follow me on Huffington Post and elsewhere are aware that I am an advocate for the reform of laws concerning alimony or spousal support.  I have written on the topic in the past, most recently last October (http://www.huffingtonpost.com/fred-silberberg/alimony-reform-revisited_b_5991334.html).  At that time, I wrote about efforts underway to reform these laws in other states, and lamented about the lack of any initiative to do so being undertaken by the California legislature.  In my almost thirty years of practicing family law, I have listened to clients complaining about the fact that they will be saddled with an unending obligation to pay support to their ex-spouses because they were married over ten years. In almost every instance, I have advised them that they need to take the issue up with the legislature.  I am unaware of a client who has ever followed through on that advice.

However, I recently learned of someone (not a former client) who is taking action to see that laws regarding the duration of spousal support are reformed in California.  Steve Clark is a resident of Orange County who, after his own divorce, decided that the law needed to be changed.  To accomplish that, Steve wrote his own proposed bill seeking to end the concept of “lifetime” alimony.  He worked with the Office of Legislative Counsel to ensure that his bill would be compliant with the California Constitution.  He has created a website which has information regarding his proposed bill (www.calalimonyreform.org) and how you can join the effort to support it.  Steve needs 365,880 signatures from registered California voters by November 2, 2015 in order to have the bill placed on the ballot for the November 2016 general election.

Steve has been getting the media’s attention with his bill. On May 20th, the Los Angeles Times did an article on Steve and his quest to reform the law (http://www.latimes.com/local/lanow/la-me-ln-alimony-initiative-california-20150520-story.html).  Steve is hosting a number of “petition signing events” which are listed on his website.  If you are interested in seeing these outdated laws changed, you may want to check Steve’s website and sign his petition.  It’s refreshing to see that someone is actually taking the initiative of getting these laws changed in California.

CATEGORIZED IN:News

Posted on Apr 23 on 2015

You refinance your house or purchase a new one.  You buy a piece of investment property and you apply for a loan. The mortgage broker sends you an application.  You give it a glance and you sign it.  The mortgage broker tells you it is “just a formality, the lender is going to run a credit check anyway”.  In the fine print on the last page of the application there is a paragraph that warns you that pursuant to Title 18, United States Code Section 1001 there are penalties for putting false information on the loan application.  You don’t notice this, or if you do, you ask the broker about it.  The broker tells you “it’s nothing”.  The application is submitted and the loan is approved.  You forget about it.

Sometime down the road you find yourself in divorce court, or in family court with a dispute over child support, spousal support, or some financial issue.  If your adversary has done due diligence they have subpoenaed that loan application.  While you are in court arguing that your income is $25,000 per month, your adversary presents the loan application to the court and it says your income is $35,000 per month.  While you claim that you owe money to other creditors, the loan application does not reflect that.  And when you contend that your net worth is “X”, the loan application states it is “Y”.  All of a sudden “just a formality” is anything but.  Now you have to try to explain that the application is inaccurate, that the loan broker filled it out and told you to sign it.  That you didn’t look it over very carefully, in fact, you didn’t look it over at all.  Your credibility has just left the courtroom.

This tactic is used in a family law proceeding fairly often with very damaging results.  A judge, duty-bound to uphold the law, isn’t going to just gloss over the fact that you signed this form with a warning on it of the effects of making a misrepresentation or an actual false statement.  If you say you were unaware of the consequences, your credibility is now called into question. If you say that the loan broker completed the application for you and you did not check it, same result.  The more significant issue, however, is that the court can now make orders based upon what is in the application whether that information is accurate or not.

While most people don’t expect that these applications often see the light of day, the truth is that they do.  You cannot rely on the broker or anyone else who tells you not to worry about what the application states. In many situations, including divorce court, that application can end up costing you plenty.

CATEGORIZED IN:News

Posted on Mar 10 on 2015

Times have changed. In the not-too-distant past, prenuptial agreements were not for everyone.  The vast majority of people got married without one. The general consensus was that such agreements were only for the ‘rich and famous’.

In today’s climate, people are seemingly more sophisticated than in the past. People marry later, and they are more sophisticated and generally more informed about what the implications of marriage are. People often times have previously married and that experience educated them. People seek prenuptial agreements with much higher frequency today than they did, say, 30 years ago.

But one thing has not changed in many of these situations: while people are using prenuptial agreements with more commonality than in the past they still make some people feel, for lack of a better term, “nervous”. This scenario often unfolds with one party thinking to himself or herself not only about asking the other party to marry, but also to execute a prenuptial agreement.  The problem is that thinking about it and doing it are two different things.  The call comes into the family law attorney’s office in one of two ways: 1) “I’m getting married next month and I want a prenuptial agreement, but I haven’t told my fiancé yet”, or 2) “I’m getting married next month and my fiancé just told me that I need to sign a prenuptial agreement first”.

Neither scenario is ideal on several levels.  First off is the issue of whether the person being asked to sign the prenuptial agreement is under duress. Is the request being made after 250 people have responded that they are attending the wedding? Is the request being made after the couple has moved into a new home together, the intention being that this would be the marital home? While the law in California states that a prenuptial agreement presented to the other side less than 7 days prior to the wedding date is presumptively invalid, it does not mean that agreements presented 14 or 21 days prior to marriage will be automatically upheld.  There are various circumstances that can be addressed by a court when the prenuptial agreement’s validity is examined-oftentimes many years after it was executed.

And that isn’t the only issue: aside from the legal implications of duress, there is the negative light placed upon all of the ceremonial events that traditionally take place in the weeks leading up to the wedding. While people often say that these agreements do not serve to enhance the romantic aspect of getting married, the real truth is that these agreements put a damper on things because people wait too long to address them.

If you want the marriage to work and you want a prenuptial agreement, then speak up about it right at the outset. Like most things in life, being upfront about one’s desires, and doing it far enough ahead of time to allow for proper planning and negotiation can serve to make not only the marriage itself run more smoothly, but it will also serve to ensure that the agreement is executed under circumstances which are legally proper and which will not put a dark cloud of stress on the betrothed couple.  If the prenuptial agreement is drafted, signed, and put away far before the pre-wedding festivities and planning begin, the couple can put those issues out of their minds and happily proceed with wedding plans.  In addition, the peace of mind will be there that neither party can claim duress caused them to sign on the proverbial dotted line.

CATEGORIZED IN:News

Posted on Feb 10 on 2015

For those who keep asking, the long-awaited reunion between Jason Patric and his son finally took place. Nearly two years to the day since Jason was cut-off from access to his child, they have been reunited. After a contested custody trial, the court’s orders will insure that Jason and his son are able to be together again, with the parents ultimately sharing custody on an equal time-sharing arrangement. It is rare in a family law case that lawyers get to do the kind of good that has taken place in this situation and we are thankful for the opportunity to have been able to represent our client and achieve such a significant outcome that will undoubtedly impact his life and his son’s life in such a positive way.

The Winning Team

The Winning Team

 

CATEGORIZED IN:News

Posted on Feb 10 on 2015

Just last month the Golden Globe Awards gave the Best Television Series Award to the Showtime series, “The Affair”.  The program depicts two people each independently recalling the emotional effects of an affair that they began when they met during a summer trip.  While the focus of the program revolves around the emotional impact of the affair the issue portrayed calls into question the cost of an affair and whether in a no-fault divorce state there is any compensation to the aggrieved party.

Last summer U.S. News and World Report quoted a survey finding that people involved in affairs spend an average of $444 per month on them.  This includes such things as hotel bills, meals, and activities that they engage in with their extra-marital partners. The “average” hotel bill cost was $123, $162 on dinners and drinks and $54 on gifts.  Undoubtedly, these expenses would be much higher on the Westside of Los Angeles.  This being a ‘no-fault’ divorce state, the Family Code does not allow a spouse to recover damages for such things as emotional distress against the cheating spouse.  While one could institute a personal injury claim for infliction of emotional distress, or a battery claim if a sexually-transmitted disease were passed on to the innocent spouse, those claims require the filing of a separate civil action tried in a civil, as opposed to family law, courtroom.  From strictly a family law perspective, certain financial claims do exist that can be resolved or adjudicated in the course of a divorce proceeding.  These include claims for misappropriation of assets.  These claims are essentially efforts to recapture the funds that were spent without the consent of the spouse who did not know that community property moneys were being expended.  Additionally, there are potential claims for breach of fiduciary duty which could arise in various circumstances, such a transferring assets to the paramour, or using the proceeds of a community-owned business to support that person.  Claims for misappropriation result in the recovery to the non-offending spouse of half of the funds expended, those for breach of fiduciary duty can involve the recovery of the entirety and in certain instances penalties, depending on the level of conduct involved.  Unfortunately, it is often times costly to try and assess the value of these claims.  People involved in affairs don’t generally leave a paper trail.  Depending on the length of the affair and the behaviors involved, there are situations when these claims can amount to significant dollars.  The best way, of course, to avoid getting into a situation where such a claim can arise is to try and maintain good communication in your marriage and to make a conscious effort to deal with relationship issues when they arise, including getting professional assistance.  In these ways, you may be able to avoid not only the financial losses sustained in an affair, but more importantly, the emotional losses and the significant attorney’s fees that be occasioned in a divorce.

CATEGORIZED IN:News