www.la-familylaw.com
Previous month:
December 2006
Next month:
February 2007

NY couple build wall through home

A bickering New York couple have had a dividing wall constructed inside their home as part of an acrimonious divorce. Chana and Simon Taub, both 57, have endured two years of divorce negotiations, but neither is prepared to give up their Brooklyn home. Now a white partition wall has been built through the heart of the house to keep the pair apart. Mr Taub asked a judge to allow him to erect the partition when the couple's divorce stalled over financial details. Read more


Why hiring an attorney in a divorce is more than just a good idea!

Here's an article from the Los Angeles Times entitled Do-it-yourself divorce doesn't always sever ties.article

When Yanic Chan and Vanessa Van split up in 1995, they couldn't afford a lawyer. So, like thousands of other people without money, they filled out the divorce paperwork themselves, with help from a friend.
    In November 1997, Van went to the Riverside County Courthouse to enter a final judgment. "The clerk put the stamp on it," Van said. "I asked, 'Everything finished?' She said 'Yes.' "
    Chan returned to his native Cambodia and married again. Then, in 2006, he tried to bring his new wife to this country. And that's when Van and Chan got a nasty surprise, one that court officials fear could be awaiting thousands of other former California couples: Their divorce had not been finalized.
    Driven by rising legal fees, a shortage of legal aid lawyers and a do-it-yourself philosophy, about 80% of people in California handle their own divorces, according to court officials.
    Many of them are not quite as divorced as they think they are. Some of them, like Chan, are even accidental bigamists, carrying not only hopes and dreams but also an earlier marriage to their new one.
    Tens of thousands of others have some understanding that their divorces are not done. But stumped by complex paperwork and court procedures, and unable to afford thousands of dollars for attorneys, they simply let their cases languish.
    Court officials across the state say they suspect the problem is vast. In Los Angeles County, Kathleen Dixon, who heads the Superior Court's programs for self-represented people, estimated that a third or more of all divorce petitions filed in the county in the last several years have not been finalized.
    Neither state nor county officials have statistics because they don't monitor cases to make sure they are finished. But the evidence they have worries them.
    One L.A. County Superior Court judge, Mark Juhas, found that about a third of the roughly 3,600 divorce cases filed in 2001 and 2002 and assigned to his courtroom remain open. Some of those couples may have reconciled, but Juhas suspects that many more are stuck or may even think they are divorced when they are not.
    Bonnie Hough is supervising attorney for the Center for Families, Children and the Courts, a division of the state Judicial Council's Administrative Office of the Courts. She noted a study in Placer County in the 1980s that found that 30% of people there who filed for divorce did not complete the process.
    At one legal services center in Van Nuys, officials say they see 20 people a month who incorrectly thought they were divorced.
    "They come in screaming," said Norma Valencia, a paralegal at the center operated by Neighborhood Legal Services. "They say, 'You don't understand my situation. I want a divorce right now.' "
    Others show up weeping: They've remarried without a finalized divorce, and they're afraid to tell their new spouses.
    Many people, Valencia said, think divorce is like a traffic ticket and if they fail to take care of it properly, the court will track them down and notify them.
    But it doesn't work like that. In California, getting divorced takes at least three steps: filing divorce papers, serving them on the spouse and then writing and processing a judgment with the court. The process can be more complicated if there are children or fights over assets. A divorce cannot become final until at least six months after the date the papers are served.
    Increasingly, across California and the nation, people are handling their own civil court matters. In San Diego County, one of the few counties where statistics are available, 46% of people represented themselves in divorces in 1992; by 2000 that figure had climbed to 77%.
    One reason: increasing fees for lawyers combined with decreasing legal aid services for poor people, said Richard Zorza, who coordinates a national network of organizations working on self-representation.
    Also a factor, he said, is a "Home Depot philosophy of people feeling they can do things on their own." But the legal system wasn't organized with a do-it-yourself approach. It's meant to be navigated by lawyers. And people without legal training often make mistakes.
    "People just don't get it done. They don't know how to get it done," said Juhas, the Los Angeles Superior Court judge. "That's troubling. There are legal ramifications to continuing to be married."
    Juhas said the problem was brought home to him a few years ago, when two people appeared in his courtroom on a routine matter. They had filed for a divorce a few years earlier, and both had since remarried. Juhas said he looked down at their file and then back up at the couple. "I said, 'Do you realize your judgment was never entered?' "
    In plain English, that meant they weren't divorced. Luckily for the couple — and their new spouses — Juhas finalized their divorce without invalidating their new marriages.
    But it got him thinking: What about the thousands of other people whose files remain open?
Last spring, the judge, one of more than 40 who handle family law in L.A. County, began calling in about 100 people a month whose divorce cases have languished and asking them if they need help.

About 10% say they have reconciled, and about 30% ignore his summons. But more than half, he said, want to be divorced and just need some help.

Just after 9 a.m. on a recent morning, Juhas hoisted a stack of divorce files onto his desk and began calling names. About a dozen people stared back. Some were alone. Some were with spouses. Some looked fearful. Others glowered. Juhas asked them to stand and follow Janice Shurlow, a lawyer who works with the court helping people representing themselves.

Shurlow led them to a conference room. "If both parties are here and you get along, please feel free to sit together," she said. "If you don't get along, feel free to sit on opposite sides of the room."

For the next two hours, attorneys, some volunteer, others employees of the court's family law resource center, assisted people with paperwork.

A man with tattoos lacing up his neck and down his arms bent over a stack of forms in the front of the room. The man, who said he did not want his name printed because of the personal nature of the matter, said he had filed for divorce in 2002.

"I thought I was divorced," he said. A moment later, he said he knew he wasn't divorced but was uncertain about what to do after his spouse refused to sign papers he gave her.

"Out of sight, out of mind," he said. He looked at the mass of paperwork in front of him and sighed. "It's so easy to get married. Sign your name and say, 'I do,' " he said. "Say I don't. I don't want to be married anymore."

Court officials say they are studying Juhas' approach and may expand it if it proves successful.

At the same time, court officials in L.A. and elsewhere in the state have launched self-help programs so people can get divorced.

But that does little to help the thousands who are stuck in legal limbo now, Chan and Van among them.

After they thought their divorce had become final in 1997, Chan married a second time. He divorced — properly — in 2003, although he later discovered that marriage was not legally valid.

But that was nothing compared with the problem he encountered when he tried to bring his third wife to the U.S.

Earlier this year, he got a notice from the U.S. State Department asking for proof of his divorce from Van. He provided the paperwork the Riverside court had given him in 1997.

"They said everything is not final," Chan said. "I felt very upset. I could not eat for three days."

He found a lawyer, Faith Nouri. She said a judge had asked for additional information about child visitation. But Van and Chan say they had never received any notice from the court.

In 2001, after their case had been dormant for five years, the Riverside court dismissed it. Again, Chan and Van said they were never notified.

But now there is no easy way for a judge to retroactively divorce them.

Nouri said she plans to ask a judge later this month to set aside the dismissal, but she said "it's a long shot." If the judge won't, Nouri said, she doesn't know how Chan can bring his new wife to this country.

"Then he is in a bigamous marriage," she said. "There will be a lot of explaining to do."


In Re Marriage of Ackerman and spousal support

    The California Court of Appeal recently handed down an interesting decision in the case of In Re Marriage of Ackerman which discusses a number of issues including the award of spousal support.Download ackermanmarital_standard_of_living.pdf
     Unlike the calculation of child support, the Court has traditionally had much greater discretion in calculating the award of spousal support using a list of factors set forth in Family Code 4320 Read section.  In calculating spousal support the court usually starts with a determination of the marital standard of living at the date of separation sufficient to meet the needs of the supported spouse.
    Unfortunately, under California law there is no hard and fast way of calculating the marital standard of living.  One approach the courts have taken is to look at the "reasonable" expenses of each party at the date of separation and see whether the supporting spouse has sufficient cash flow to pay support to cover these expenses.  For example, if the supported wife spends $6,000 a month on her living expenses a court might use that figure as the marital standard of living if the husband has sufficient income to pay that amount. In other words, husband ends up paying spousal support so that after taking account child support and wife's other sources of income, her total income is topped up to $6,000. But it needn't do so.
    The case of In Re Marriage of Akerman illustrates what happens when the spouse claiming support claims unreasonably high expenses. In this case Anne Ackerman claimed that her monthly expenses as a stay at home wife were $50,000 a month. She claimed she needed two nannies, a cook and several babysitters based on the fact that her eldest son was autistic. However the parties stipulated that, her husband, Boris Akerman, a plastic surgeon, only had GROSS monthly cash flow of $61,000 a month. Further, the parties tax return for 2001 (the year in which the parties separated) showed that the parties monthly net income was $36,000. The trial court therefore halved this amount and rounded it up to $20,000 and used this as the marital standard of living. In other words, instead of looking at the parties income and expenses, the trial court only looked at the family's average income as evidence of the standard of living.
    The trial court then said that once you took into account Anne's award of child support, spousal support, the reasonable rate of interest on her investments (4.3-4.5% government bond rate) and what she could earn working as a paralegal because she had a law degree, her monthly income would be at least $20,000.
Anne's initial Child support:    $10,070
Spousal support:                    $7,500
Anne's imputed income
working as a paralegal:           $3,000
      The Court of Appeal affirmed the trial court's approach. It also affirmed the trial court's approach of imputing income to Anne because she had a law degree and although she hadn't passed the bar exam she could earn at least $3,000 as a paralegal. The Court didn't seem particularly impressed by her arguments that her employability was limited by her need to look after an autistic child. However, from the record there doesn't appear to be any expert evidence presented on this issue.

Warren Shiell is a divorce lawyer in Beverly Hills