What? Lying in Divorce Court?

Posted on February 20, 2012 by admin

Shocked that your former spouse would lie in court?  It used to shock me too.  Word of advice – get used to it!  Well, no.  There are other things you can do about it.  You should of course try to catch them lying.  Attorney’s are very good at ferreting out the lies people tell.  They are not infallible, but they generally do a lot better than a lay person at getting down to the truth at a hearing.  It’s part art, part science, and mostly preparation and hard work to weave a powerful cross-examination to uncover the lies people tell in court.  With the right information and investigation, your attorney should be able to catch your spouse in the act.

Another word of friendly advice – if you’re the honest spouse, stay that way.  Honesty is the best policy, for so many reasons.  If your former spouse is lying,  don’t get dragged into the muck too and think it’s okay to lie because the other side is.  It’s never okay to lie in court.  For one reason, lying under oath is called perjury, and it’ s a criminal offense.  (By the way, once I heard a judge stop an evidentiary proceeding after he’d heard just about enough of some guy’s farfetched testimony and ask him why he shouldn’t call the District Attorney right then and there to file criminal charges for perjury.  I didn’t stick around for his answer, but I wish I had.  I just assume the judge called the D.A. because I certainly would have.)  Perjury aside, your credibility is your best asset in court.  While judges have a lot of cases (thousands each year, I imagine), they have surprisingly good memories, and if you strike them as being incredible (legal word for being a “liar liar pants on fire”), chances are they’ll remember that one thing about you in future hearings.  So don’t lie, take the high road, and do your homework on the other side.  If you know the other party’s tendency to lie, grossly exaggerate, tell tale tales, or whatever you call it, then tell your attorney about it and tell them often.  Knowledge is power and your attorney can do their best to catch them in the lies if given enough time and they can often “dig up the body” if shown where to look.  I don’t know who said it first, but they were right when they said, “The truth shall set you free.”  So stay honest.

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International Divorce – Problems and Pitfalls

Posted on December 8, 2011 by admin

Divorce when one of the parties is out of the country can be very difficult for a number of reasons.  The first problem is simply getting proper service of process on the person.  Depending on which country your spouse is in and whether the country is a member of the Hague Convention, you will have to comply with complicated rules for service of process.  Assuming you can even serve the person correctly, discovery will be a challenge.  The foreign spouse will undoubtedly have access to financial accounts and maybe even real property that someone in California may be unable to discovery.  If you can afford the additional costs, there are ways to conduct discovery in foreign jurisdictions, but you may double or triple your legal fees, depending on the amount, complexity, and cooperation of the other party.  Compliance with court orders, too, can be a problem.  Having an order and getting the other side to comply is challenging even when the parties are in the same city, let alone in different countries.  Enforcing the orders in a foreign jurisdiction would have the same hefty price tag as doing discovery in the foreign jurisdiction.  If your spouse travels between California and the foreign country, at least the threat of sanctions in California may help with court order compliance.

With all of the problems and pitfalls of a foreign divorce, if you can help it, you should try to get your divorce started before the divorce becomes an international affair.  At least if you start a case and properly serve your pleadings on the other party before they leave California, at least you won’t have a problem serving the initial pleadings in a foreign country.

Derrick Taberski has dealt with international divorce issues in the past and can assist clients with litigating a California divorce where one party is in a foreign country.

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Estate Planning and Divorce

Posted on December 5, 2011 by admin

Every divorce case should also be an estate planning case.  The reasons should be obvious.  Most, if not all, estate plans of married people usually leave the decedent’s (dead person’s) estate to his or her spouse after they die.  Well, if you are divorcing your spouse, there is a good chance that you do not want that person to inherit anything from you, now or ever.  While California does have a statutory provision in place to invalidate gifts to one’s former spouse in a will once a divorce judgment is entered (California Probate Code section 6122), it does not apply to a trust.  Most people have living trusts as part of their estate plans.  It would be wise to have an estate planning attorney review one’s estate plan prior to filing for divorce.

Besides not wanting to give one’s former spouse all of your worldly possessions, there may be other reasons to change your estate plan after a divorce (or before you file, if you are that foresighted).  For one thing, your financial circumstances after a divorce may be drastically different than they were before.  You may no longer own the same assets or wish to make gifts to the same people in light of your changed circumstances.  People in blended families often provide for their step-children in their estate plan.  After a divorce, people may not feel the same way about their former step-children.

If you are considering changing your estate plan during your divorce, you should consult an attorney because your choices may bump up against the automatic restraining orders.  However, if you are lucky enough to have forewarning of your dissolution, you may wish to change your estate plan before filing.  And, always, after the divorce is final, you should review your estate plan and make appropriate changes.

Attorney Derrick Taberski can assist you with your pre- or post- dissolution estate planning needs.

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Dividing Pensions in a California Divorce – Part 1

Posted on April 7, 2011 by admin

Before the current recession, it was common knowledge that a divorcing couple’s biggest marital assets were their house and their pensions.  While neither of these maxims may ever be true again, pensions are still very valuable assets of the community estate.

In order to consider how to divide a pension, it is necessary to first understand the basics of retirement plans.  There are really only two basic models for employer-sponsored retirement accounts – the two most common being defined contribution plans and defined benefit plans.  Defined contribution plans are typically 401(k) plans where the participant contributes a certain percentage of his or her pay into the plan where it may be invested in a variety of sub-accounts.  The employer may also match the employee/participant’s contributions up to a certain point.  This vehicle functions like a savings account and the “pot” gets bigger according to market performance and the contributions of the participant and the employer.  A defined benefit plan, on the other hand, offers a set payment to the participant, usually a monthly amount, once the participant retires.

In dividing a 401(k) plan, it is often necessary to trace the community versus separate property contributions and then divide the asset according to the community and separate property components.  In practice, this is often quite difficult and parties may opt to “ballpark” a figure or use a forensic accountant to attempt to trace the various interests.  The actual division of the account is generally done by means of a qualified domestic relations order (QDRO) .

A defined benefit plan can be quite valuable, and the community and separate property interests are generally easier to identify as a proportion of the asset.  If for example, an employee worked at a company for 10 years and was married for only 5 of those years, then there would be a 50% community interest in the defined benefit plan (approximate – if the participant continues working there after separation, then the denominator (bottom number) will slightly increase and make the CP interest a little smaller).  So the other spouse would approximately have a 25% interest (one half of the CP interest) in the pension.  But how to divide it?  Again a QDRO is the vehicle used to divide the pension.  More difficult is how to value the asset, as it is a contingent future stream of income.  Your divorce attorney should have access to experts who can value the asset.  Sometimes the community interest is so small or the value of the asset is not enough to justify the cost of having a QDRO done, and one spouse can “buy out” the other’s interest in the asset if the value is known.

That’s all for dividing pensions 101.  There are other retirement vehicles I haven’t discussed and I’ll comment on them another time.

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Is Inheritance Community Property?

Posted on April 7, 2011 by admin

This is another question people ask all the time.  Strictly speaking, items acquired by a married person through gift, bequest, or devise (basically, gift or inheritance) are considered that person’s separate property.  But most married people muddy the waters quite a bit and do things to blur the character of the inheritance.  For example, somebody inherits $100,000 and puts it in a community property savings account.  The parties draw from that account and buy cars, go on vacations, etc. while still depositing their community property paychecks in the account.  Over time the account dwindles to say, $50,000.  The parties divorce and now the person who inherited the money wants his or her $100,000 because it is separate property.

The problem of character is complex.  First, did the character of the property remain separate?  After all, money is what is called “fungible” or simply speaking, you really can’t tell one dollar bill from another and how do you know which dollar you spent?  Was it the inherited dollar or the community dollar?  You know each party will argue the opposite position.  Often co-mingled assets lose their separate property character.  Second, even if the $50,000 that was spent was the person’s separate property, was there a gift to the community for vacations, furniture, and even household maintenance?  Third, did the levels in the account go below the $50,000 remaining?  Arguably, there may be even less separate property than what remains if the levels dipped below $50,000.   It is up to the “separatizer” to prove the separate property nature.  Often that person has their work cut out for them.  Using a forensic accountant can help in situations like these, but an expert is often limited by the documentation available.

In the case of inheriting real property, the same sort of mess can occur.  While the real property starts out as separate property, people do things like invest community funds into the separate property asset (creating a right of reimbursement) or they take out a HELOC and use the equity for something else.  What is the character of the funds borrowed using the inherited house as security and is there now a community interest in the house because the funds used to pay back the HELOC were community?  Only your judge will know.

The best way to deal with inheritance is to keep it separate and not to co-mingle the asset with community assets.  But that is easy to say and hard to do in an ongoing marriage.

If you have complicated marital property issues in your divorce, you should retain an experienced and knowledgeable attorney like Derrick Taberski to help you protect your property rights.

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Determing the Best Interests of the Child

Posted on April 4, 2011 by admin

Family courts determine child custody and child visitation on a daily basis.  They decide who spends how much time with the child, with whom the child will reside, and who will make the big decisions regarding the education and welfare of the child on one simple standard – the best interests of the child.  There is a lot riding on that simple phrase.  However,  it is far from simple to determine what is truly in the best interests of a child.

To aid them in the quest to find out what is in the best interests of the child, many family law practitioners and probably all courts welcome the input of an expert.  Usually the expert of choice is a child custody evaluator (sometimes just referred to as a 730 evaluator referencing that portion of the evidence code they fall under).  A child custody evaluator usually holds an advanced degree (Ph.D.)  in psychology or similar field and conducts interviews and home studies with many people who have contact with the children, including people like the parties and children themselves, teachers, health care professionals, baby-sitters, and family members (and anyone else the evaluator cares to interview).  From these interviews the evaluator can offer his or her insight into the family dynamic, the relationships between the parties and children, the children’s preferences and reasons for their preferences, and can then make a recommendation to the court regarding what custody and visitation arrangement he or she thinks is in the best interests of the child(ren).

While using a child custody evaluator is very common, it does cost a significant amount of money.  Typical retainers for a child custody evaluator are $3,500 or more, and may evaluations can exceed $5,000 depending on the amount of work that the expert must to do interview people and prepare a report.  While it may seem expensive, the work done by the 730 evaluator may ultimately save you money in terms of litigation costs avoided.  Often attorneys will use the 730 report to help them negotiate a settlement informed by the expert’s opinion.

As mentioned above, the bests interests of the children is a very nebulous standard.  However, a common sense approach to the issue can lead you in the right direction.  If, for example, the father never helps the children with homework, then that would be a factor weighing against father’s having significant time with the children on school nights.  The circumstances and needs of the children are of course the focus of the issue, and the parent who is able to and does fulfill those needs is more likely to have a greater timeshare with the children, assuming there are not other factors weighing against such a determination.

If you do not use an expert in your child custody and visitation case, then unless you can settle the matter, you are looking at litigating a very fact intensive and complex issue.  Even with a custody evaluator on board, the matter may still be litigated before a family court judge if the parties do not agree with the recommendations.

If you are facing a custody and litigation battle, this is one area of family law where you should not be self-represented.  You should hire an experience family law attorney to represent you.

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Divorce and Immigration

Posted on April 1, 2011 by admin

In our multicultural state, immigration issues come up surprisingly often in divorce and family law cases.  Sometimes couples are in the process of adjusting the status of one spouse to that of a lawful permanent resident to get the spouse a green card.  Depending on various factors, the sponsored spouse may or may not be able to finalize the process.  Marital status may also affect how soon an alien might be able to apply for citizenship.  In other situations the commission of domestic violence against one spouse may affect either or both parties’ immigration rights (the perpetrator, if convicted of the crime of domestic violence may even face deportation  charges and the victim might be entitled to certain benefits under the Violence Against Women Act).

Family law is a legal practice area that bumps up against many areas of law, including immigration.  If your case involves immigration issues, contact our office today to consult with attorney Derrick Taberski.  Derrick practices immigration law as well as family law and understands the complex interactions between these two bodies of law.

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Should You Return Your Wedding Rings?

Posted on March 30, 2011 by admin

This may be more of an etiquette question than anything else.  Assuming wedding rings were purchased before marriage by each party and then given to each other at the wedding ceremony, there is no reason to give it back.  The rings were separate property gifted to each party.  Gifts are generally in the separate property category (community property is all property acquired during marriage by a married person except items acquired by gift, devise, or bequest…).

There is an exception that I have not found in case law (yet), but that seems to be an equitable solution.  Sometimes people give wedding gifts that are family heirlooms.  A son may give his bride a wedding ring that may have been his grandmother’s or some item of jewelry that has been passed down through the generations.  In that case, I think the item should be returned, as the recipient arguably is merely holding on to the item to pass down to the next generation – a sort of bailee or trustee for the item.  So in that case, I would urge a return of the property to the originating family.

So, basically, wedding rings are gifts and there is usually no reason to give them back.  When in doubt and there is a dispute over the return of the items, you can always ask the judge to make the call.

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Misconceptions About Restraining Orders

Posted on March 27, 2011 by admin

While domestic violence does occur, I happen to think domestic violence restraining orders are abused by people especially to get an unfair advantage against the other party in a custody dispute.  But getting an unfair advantage is not the only reason I think the orders are abused.  I think they are abused because too often I have seen one or both parties try to reconcile after obtaining the order or one party tells the other to come over.  I’ve also known children to be conceived between the parties when a restraining order is supposed to be in effect.  Talk about violating a restraining order.

The fact is an order is an order and one party telling the other it is okay to call, come over, make love, or whatever does not change the order.  The restrained person violates a restraining order at his or her own peril.  If he or she wanted, the protected party could call the police and have the restrained person arrested as soon as he or she arrives.  They could bring a contempt action to try to put the restrained person in jail or pay a fine.  It is risky to violate an order, and the consequences are dire.

A restraining order is not like a light switch.  It cannot be turned on and off depending on how the parties feel about each other that day.  An order is an order is an order, and neither party can change it between themselves just because they want to.  If the protected party has a change of heart, the safest way to withdraw the restraining order is to get the court to vacate the restraining order.

The Law Office of Derrick J. Taberski provides domestic violence assistance and help with bringing and defending against a restraining order.

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Enforcing Child Support – Part One

Posted on March 26, 2011 by admin

It seems that in family law world, having a support order and getting paid the order are not necessarily the same thing.  By getting an order, you are empowered with the right to receive the money but that is about it.  Conscientious parents will pay the support amount as ordered.  The other 80% won’t (just kidding about the 80% – I don’t actually know how many people don’t pay – but it seems like a lot judging from what I hear people complain of in court).  The Department of Child Support Services really can only do so much.  They rarely if ever go out of their way to identify assets of the debtors and convert them into cold hard cash.  They are also overworked and take a long time to do anything (compared to private counsel).

The partial answer to the dilemma of getting paid is to have a wage assignment issued and properly served on the debtor’s employer.  By doing this you basically you take out the middleman (the debtor) and go straight to the income source (the employer).  It is a simple solution that works for many people.  Why wait for the debtor to pay you when he (or she) sees fit?  Get it from the employer and you’ll be paid like clockwork (for so long as the debtor is legitimately employed).

These days many people are using paralegals and other freelance document preparers to do their support paperwork or they do it themselves.  Many of them complain that if they get the order, they still do not get paid.  When asked if they have a wage assignment in place, they ask, “A what?” or “My paralegal didn’t do that.”  If you want to get paid, you need to follow through.  Getting the order is only half the battle.  An experienced family law attorney such as Derrick Taberski can help you get your support order and get paid.

For a free initial child support consultation, call Derrick Taberski at 714-900-3627.

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