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Posted on Nov 12 on 2014

Ready to post a picture of your new car? About to tweet how upset you are with your ex? You might want to think twice before doing that.

Like text messages and emails, social media websites such as Facebook and Twitter are now an important source of information for litigation. Individuals use these sites to share their daily thoughts, perhaps venting about pet peeves and expose to the public just about any detail of their lives imaginable. Many people put their entire lives on these sites without realizing the consequences.

Facebook and other social media websites have become a way to share information and keep in touch with friends, but they also permit others to obtain information about you. This might not raise any concern if you are the occasional user; however, there are many potential, negative side effects of social media when it comes to your court case, especially during a divorce or child custody dispute.

Those posts about your newly, single lavish lifestyle might not be beneficial when it comes to issues of support in a divorce. All the tweets disparaging your ex will not look very good when the other side uses them to show the court what you are saying about your child’s parent. Often times a questionable photo or comment can be used against you, even taken out of context, if the opposing party has access to your profile (and you should assume that they do!)

It is crucial to remember that when you are posting to a social media site, your ex or ex’s attorney is likely printing out what you have posted and will use it against you if they can. Why give the opposing side ammunition? Consider taking a vacation from social media while your proceedings are pending, or at the very least take a minute to reflect on the consequences before you post for the world to see. And of course, remember to look up the opposing party if you do find yourself in a legal proceeding – you never know what you might find!

– Sarah Rosenblatt

CATEGORIZED IN:News

Posted on Oct 14 on 2014

I have previously written on the need for alimony reform.  California law affecting what we call “spousal support” creates a situation where the supported spouse has, in many cases, little if any incentive to work.  Moreover, the legal presumption that one who is married for ten years or more is entitled to support until death or remarriage is patently unfair, mandating that the payor of support continue to fund the recipient’s lifestyle for years far beyond the duration of the marriage.  Rather than being rehabilitative, our spousal support laws reward the spouse who historically did not work or made less income to the expense of the higher earning spouse.

While our Sacramento legislators have not been interested in making people responsible for themselves, and would rather put the burden on the individual taxpayer, it appears that the concept of alimony reform is getting traction in at least some states.  As previously addressed, for many years the State of Texas has limited the duration of alimony to five years with a cap on the amounts that can be ordered paid to the recipient of $5,000 per month.   Back in 2007, the American Academy of Matrimonial Lawyers recommended that alimony laws be changed nationwide to restrict the amount of alimony and the duration.  That recommendation led to the State of Massachusetts abolishing permanent alimony in 2011.  It also resulted in Massachusetts promulgating guideline amounts of alimony that are to be ordered in each case.  The Massachusetts law further provides that alimony obligations end when the payor reaches normal retirement age according to the Social Security Administration.  It provides for modification or termination when the supported spouse takes up residence with someone for three months or longer.

The State of New Jersey adopted alimony reform just this past month.  On September 10, New Jersey adopted alimony reform which in several regards is similar to the Massachusetts law.  Under New Jersey law, there is a rebuttable presumption that payment should end when the payor reaches age 67.  New Jersey judges can terminate alimony if the recipient is cohabiting with someone, and in marriages of less than 20 years in duration, support cannot be ordered for a period of time longer than the marriage itself.  The presumption that alimony should be permanent has been removed from the law entirely.

It is unfortunate that our own legislature has failed to take up the subject of alimony reform.  The very inequities which the Massachusetts and New Jersey laws intended to address are present in our existing system. California is usually at the forefront of changes to the law.  We were the first state to adopt “no-fault” divorce.  It is unfortunate that in regard to alimony, California will not take a leadership role, to the detriment of its own citizens.

CATEGORIZED IN:News

Posted on Oct 14 on 2014

Simply put, what is said during mediation stays in mediation. Well, that’s what most people think, but it is not actually that simple. A mediation privilege does exist in California, which means that in general, whatever is disclosed during mediation is considered privileged. (See California Evidence Code § 1119) The benefit of this confidentiality is that it allows parties the ability to speak more freely during mediation, without fear that what they say will affect the outcome of their case. Nevertheless, as with any rule, exceptions exist, and as discussed below, one of the main exceptions to the mediation privilege is a written settlement agreement.

There is a strong basis to protect discussions during mediation; however, there is an equally strong policy argument to promote the enforcement of settlement agreements. If an agreement cannot be disclosed to the court, it can never be enforced, so what would be the benefit of an agreement?   California Evidence Code § 1123 applies directly to this issue, which states that settlement agreements, signed by the parties during mediation, are admissible under certain exceptions. If the agreement states that it is admissible or “words to that effect”, if it states that it is binding or enforceable or “words to that effect”, if the parties agree that it is subject to disclosure, or if the agreement is needed to show fraud, duress or illegality, then the settlement agreement can be admissible in court. The tricky part is what does “words to that effect” actually mean?

The meaning of “words to that effect” was recently addressed in Daly v. Oyster, a Second District Court of Appeal opinion, filed on July 29, 2014. In Daly v. Oyster, a marital dissolution petition was filed in 2005. In 2006 the parties attended mediation and entered into a proposed stipulated judgment following the mediation; neither the stipulated judgment nor any other documents were ever filed with the court. Presumably, the parties followed the judgment as though it had been entered. In May 2011, the court dismissed the petition for lack of prosecution. In June 2011, Daly filed a second dissolution petition to enforce the stipulated judgment. Oyster objected to the admission of the stipulated judgment on the grounds that it was protected by the mediation privilege. Oyster assumed that since it was prepared during the course of the mediation, and never filed, it was considered confidential and could not be disclosed to the court.

The Court of Appeal disagreed with Oyster and found that an exception to the mediation privilege applied. The court found that “words to that effect” does not mean specific language must be written, but that if the terms unambiguously signify the parties’ intent to disclose the agreement or be bound by it, that is sufficient. Such was the case in Daly v. Oyster, when the court opined “The parties agreed the court enforce the document, which it could not do unless the document was disclosed to it.”

One way to avoid the problem that arose in Daly is to make sure that there is specific language in your settlement agreement, if achieved through mediation that it is subject to disclosure to the court, enforceable, admissible and binding. Any experienced attorney will meet with their clients before the mediation to review any outstanding questions, this is the perfect opportunity to speak with your attorney about the mediation privilege.

-Sarah Rosenblatt

CATEGORIZED IN:News

Posted on Sep 16 on 2014

Robert Emery’s op-ed in last week’s New York Times (“How Divorced Parents Lost Their Rights”) addressing how parents who are separated or divorced lose their rights concerning children only touches upon one area of familial regulation that divorced or separated people face, which they would not have faced if they had remained married.  While Professor Emery addresses the fact that parents in this situation lose rights to make decisions regarding their children, the issue is much more all-encompassing than that.

Think about the couple that while married and living together had an understanding over finances.  In that not uncommon scenario even in this age, husband is the proverbial bread-winner and bill payer.  He handles the family finances.  He keeps an eye out for what goes out each month.  He maintains control over the amount charged on the credit cards and in our hypothetical, he is a prudent investor and saver.  However, when he and his wife separate, the ability to make those determinations goes out the window along with the ability to make decisions concerning his children in the way Professor Emery addresses.  That is to say that the state now takes over the decision as to how much money his soon-to-be-ex spends each month in terms of spousal support.  Depending on the facts of the case and the amount of money that he earns, it may be more than he spent on the entire family while this family was intact, or it may be a different amount.  The issue here is that he loses control to make that decision.  And in the process, he also loses the right to decide how much money he is going to spend each month, and in turn, how much money he is going to save each month because that is affected by his overall cash-flow.  The flip side to this, of course, is that once he pays it, his ex decides how to spend it.  It may be that his ex was never a saver and spends every penny.  In the end, not only has he lost control over his finances, but his children are also impacted if no one is saving the money that they formerly saved which was going to college funds for his children.

And, similarly, the state is going to decide how much he pays in child support.  Not that people shouldn’t be paying child support, but the part of the equation that no one ever focuses on is where that money actually goes to and what it is used for.   In this case, the spouse paying it has no control over whether it actually goes to buy food, clothing, and shelter for his children, or whether it goes to clothing purchased by his ex for herself.

The point of this is our legal system takes control away from those who were once married.  And that control goes well beyond issues concerning children.   In fact, it invades every aspect of the life of both people going through the divorce.

When people decide to divorce they often understand that they will have to divide up property. They often think that they are doing so in exchange for their personal freedom.  But the fact is that their personal freedoms are significantly more infringed upon once they are divorced than they ever were while married.  One has to question why it is, that the state has the right to dictate these decisions for someone solely because they chose to get out of a marriage, when the state does not dictate the decisions while they are in the marriage.   It is an interesting question raised by Professor Emery.  Having put one aspect of the issue up for discussion, we should think about all of the aspects and whether we want the state to treat people differently simply because they decide to get unmarried.

CATEGORIZED IN:News

Posted on Aug 12 on 2014

For those of you who have been following the highly publicized parentage case involving our client, Jason Patric, mother’s latest attempt to try and stop the parentage case from proceeding has failed.   Mother filed a Petition for Review with the California Supreme Court, asking that court to overturn the landmark decision issued by the Court of Appeal in May stating that Mr. Patric had the right to establish parentage at trial by demonstrating the familial relationship he had with his son.   As counsel for Mr. Patric, we opposed that Petition and on July 31, the Supreme Court denied review.  Trial is set to resume on September 2nd in the Los Angeles Superior Court.  The published decision known as Jason P. v. Danielle S., 226 Cal.App.4th 167, will remain the law in California, as it should.

CATEGORIZED IN:News