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CHILDREN AND CURFEW LAW

Thank you to the State Bar of California hich produced the “Kids and the Law” of which this is an extract. For the entire booklet go to: Children’s law

Curfew laws restrict the rights of youngsters to be outdoors or in public places during certain hours of the day. Such laws aim to establish a safer community and better protect children from the negative influences that they might encounter while wandering around late at night. Currently, there is no state curfew. But, under state law, cities and counties can enact their own curfew ordinances. And courts in California have generally upheld such laws as long as the local ordinance seeks to discourage “loitering” or “remaining” in certain places after certain hours.

Under such local laws, parents can be charged for the administration and transportation costs of returning a minor to his or her home on a second curfew violation. (W&IC § 625.5) Also, a child who is a frequent or habitual curfew violator may be declared a ward of the court and treated as a status offender. (W&IC § 601(a)) (see Juvenile Court) Most curfew ordinances prohibit minors from being out past 10 p.m. on weekdays and midnight on weekends. Exceptions to such laws do exist, however, allowing kids to legally stay out late if they are:

● Participating in a religious, educational or political activity.

● Running an errand for a parent or guardian.

● Accompanied by a parent, guardian or adult.

● Working or going to or from their place of employment.

● Responding to some type of emergency.

● Returning home from a school, cultural or recreational activity.

 What will happen if my teenager breaks curfew?

He or she could be temporarily detained by police and returned home. State law also gives local police some latitude in their enforcement of such curfew ordinances if the officer believes a youth has a “legitimate reason based on extenuating circumstances” for the violation. (W&IC § 625.5(c))

 This information is provided for educational purposes only. For more information about divorce and family law in Los Angeles  please visit www.la-familylaw.com


HOW TO COMMUNICATE DURING AND AFTER THE DIVORCE PROCESS

Los Angeles Divorce and Family law Attorney 

             One of the most important tools for making cooperative parenting work and, for that matter, negotiating any issues in a divorce or raising any matters of concern is to discuss them in a reasonable and non-accusatory manner. In her excellent book, “Mom’s House, Dad’s House,” Dr. Isolina Ricci, suggests applying what she refers to as basic parent-business principles,” when relating to one another. One of these principles is keeping your feelings in check. In a business relationship, feelings may run high, but good business people understand that feelings should not get in the way of negotiating solutions to problems. If many spouses talked to their bosses the way they talk to their partners they’d be fired on the spot.

             In a business relationship one of the keys to success is to be solution focused instead of focusing on blame or past mistakes. For example, if a couple are negotiating how they should share taking children to after school activities, it is more productive if the parties focus on working out a plan that realistically accommodates their schedules and provides certainty for the children than trading accusations about how one parent was always too busy to get involved before the divorce and why are they now suddenly showing an interest.

             However, applying “parent-business principles” is often easier said than done when the relationship has broken down in a hail of accusations and re-criminations and your ex-partner knows exactly what buttons to push. Even in the best relationships reasonable demands (e.g. How many times do I have to ask you to …….) can be met with tit-for-tat accusations in which there is no winner. In a divorce situation, especially where children are involved, acrimonious conflict serves no-ones best interests.  While you cannot change the past, you can change the way you communicate.

             One of the reasons dialogue gets out of control lies in the way requests are made. They often involve YOU STATEMENTS which feel like a first line of attack and invite defensiveness or a counteroffensive. They are guaranteed to start an argument.

             “Polite Requests” involving I STATEMENTS are a way of making a non-threatening requests for change. They begin with an "I" statement where you identify and take responsibility for your feelings and thoughts. They are an integral part of making a “Polite Request.”

 YOU STATEMENT =            "You are always late".

I STATEMENT =                   "I get very frustrated when I have to wait for you.”

 "I feel/felt ______________________ (insert feeling or word)

when __________________________ (this happens)

and what I'd like is _________________ (insert your request)

 This is what an “I” statement sounds like:

 "I feel angry when you let our son watch R-rated moves, and what I'd like is

for you to leave him with me when you want to go to an adult movie.”

 "I feel worried when Tasha comes home smelling of smoke and what I'd like

is for you to consider smoking outside.”

 Consider how you would discuss the following scenario with your ex-partner using a Polite Request Strategy:

 Your daughter tells you that she is having trouble getting to sleep at the

home of the other parent. You see that she is tired when she returns from

time there. You are not sure why she's having trouble sleeping, but you are

concerned.

 If the going gets tough and meaningful and courteous communication becomes difficult or breaks down, Dr. Ricci makes the following suggestions to minimize conflict:

 Make communications direct and formal and if necessary use email or leave voice messages.

  • Keep the agenda to what is best for the children.
  • Avoid the temptation to push buttons.
  • Try to acknowledge the other parents positive contributions.
  • Do your job as a parent, let him or her do their job as a parent.
  • Be reliable and live up to your side of the bargain. Do what you are going to say.
  • Be flexible. If he or she wants something, maybe you can trade.
  • If communications fails, use a mediator!   


CHILDREN AND ALCOHOL

Thank you to the State Bar of California hich produced the “Kids and the Law” of which this is an extract. For the entire booklet go to: Children’s law

The legal age for drinking alcohol in California , however, is 21. (B&PC §§ 25658, 25659) This means that providing alcoholic beverages to anyone under that age is prohibited. In California , an alcoholic beverage is any beverage that contains at least one-half of 1 percent of alcohol. (B&PC § 23004)

Those under 21 are not even permitted to possess alcohol in public places, including state highways or in and around schools. (B&PC § 25662(a)) Minors also must abide by city and county ordinances that prohibit everyone from consuming alcoholic beverages in public parks or recreation areas. Anyone, adult or minor, who possesses an open container of alcohol in a prohibited area is guilty of an infraction. (B&PC § 25620)

Also, with some exceptions, individuals under the age of 21 are prohibited from being in bars or other establishments where liquor is being served. The law makes it illegal to possess false identification or use a fake I.D. to purchase (or attempt to purchase) alcohol or to enter an establishment where alcohol is being served. (B&PC § 25661) While it is legal for those under 21 to be present in a home where adults over 21 are drinking alcohol, it is illegal to provide alcohol to anyone under 21. Parents and others providing the alcohol can be held criminally liable for contributing to the delinquency of a minor.

If someone under age 18—or the child’s underage companion—causes a traffic collision after drinking alcohol at home, his or her parent could face a misdemeanor charge, a year in jail and a $1,000 fine. The law would apply if the parent permitted the child to consume alcohol or use a controlled substance and then allowed the child to drive (with a blood-alcohol concentration of at least 0.05 percent). (B&PC § 25658.2)

Driving under the influence of alcohol (DUI) is a very serious crime that often requires the payment of a large fine, a mandatory jail sentence and the suspension or revocation of a driver’s license, particularly if the young person has been convicted of the same offense in the past. (See Cars, Kids and Traffic Laws.)

 Are there laws that address underage drinking at parties?

Yes. A police officer (who lawfully enters the gathering) can seize alcoholic beverages from anyone under 21 at an unsupervised social gathering. Under Californiaaw, an unsupervised social gathering is a public party or event that is attended by 10 or more people under the age of 21, and is not supervised by a parent or guardian of any of the participants. (B&PC § 25662(b)) The punishment for violating liquor laws varies. The offender may be found guilty of an infraction or a misdemeanor. In addition, young people between the ages of 13 and 21 who violate the law may have their driver’s licenses suspended, revoked or delayed for up to one year for each offense related to the possession, consumption or purchase of alcohol. This is true even if the offense does not involve an automobile. Also, for their first offense, young people may be asked to pay up to $250 in fines or perform community service. A young person convicted of a second or subsequent offense will be fined up to $500 or required to perform more community service. (B&PC §§ 25658, 25662(a); VC § 13202.5)

At least one county also has enacted a Social Host Accountability Ordinance to help curb underage drinking. UnderMarin County’s ordinance, social hosts of any loud or unruly gathering (or the property owners who allowed it to take place) can be fined $750 if any underage guests possess or drink alcohol. After three or more violations, the fine would jump to $2,500. In addition, such hosts would have to pay the costs of responding to the party or breaking it up.

 Can bar operators be held liable for selling alcohol to someone under age 21?

Yes. Laws prohibiting the provision of alcoholic beverages to those under 21 also provide for penalties against bar operators and liquor store owners and their employees. For example, while parents and social hosts generally cannot be sued if a drunken, underage party guest causes someone to be hurt in a traffic collision, bar operators would be liable for civil damages in such situations under certain circumstances. If a bar operator serves alcohol to an underage, obviously intoxicated patron who later causes a car accident, that operator would be civilly liable for the resulting injuries (except for those sustained by the drunken youth). If the intoxicated patron was under 18, the operator could be sued for the patron’s injuries or death as well. (B&PC § 25602.1)

 This information is provided for educational purposes only. For more information about divorce and family law in Los Angeles  please visit www.la-familylaw.com


AGE OF MINORITY

Thank you to the State Bar of

California

which produced the “Kids and the Law” of which this is an extract. For the entire booklet go to: Children’s law In a 2006 Californiasurvey, nearly one in two 9th graders reported they had consumed at least one alcoholic drink at some point. Forty percent of the 11th  graders surveyed admitted drinking enough alcohol to become “drunk or sick.” And in a national survey, one in four high school students said they were under age 13 when they drank alcohol for the first time.

The age of majority is a term used by lawyers to describe the time in life after which a person is legally no longer considered a child. In essence, it is an arbitrary time when a child becomes an adult in the eyes of the law. Until fairly recently, the age of majority was set at 21 in most states. Following the ratification of the 26th Amendment to the U.S. Constitution giving 18-year-olds the

right to vote in federal elections, most states, including California , lowered their age of majority to 18. (FC § 6502) At the age of majority, teenagers acquire the right to:

●Enter into binding contracts.

●Buy or sell property, including real estate and stock.

●Marry without the written consent of a parent or guardian and a judge.

●Sue or be sued in their own names.

●Compromise, settle or arbitrate a claim.

●Make or revoke a will.

●Inherit property outright.

●Vote in national, state and local elections.

●Consent to all types of medical treatment.

●Join the military without parental consent.

 

This does not mean that once your child reaches the age of majority, he or she gains all of the rights and privileges available to adults. Some rights and responsibilities may come at an earlier age, while others come later. For example, California resident may be issued a provisional driver’s license at age 16 (see Cars, Kids and Traffic Laws), but may not purchase alcoholic beverages until age 21. What the age of majority has really come to mean is that point when an individual is treated as an adult for most purposes.

Attaining the age of majority, however, also brings with it some losses. These losses generally correlate with the rights that children are given for their own protection—for example, the right to their parents’ support, care and shelter (see Parents’ Rights and Responsibilities), their right to treatment within the juvenile court system (see Juvenile Court), and their protection against exploitation and harmful or dangerous conditions of employment under child labor laws (see Work, Work Permits and Taxes).

Note: An exception to the rule that your child must wait until age 18 to acquire the rights and obligations of an adult would apply if he or she were emancipated. (To understand how this might occur, as well as its legal consequences, see Emancipation.)

 This information is provided for educational purposes only. For more information about divorce and family law in Los Angeles  please visit www.la-familylaw.com


EMANCIPATION AND CHILDREN IN CALIFORNIA

Thank you to the State Bar of California which produced the “Kids and the Law” of which this is an extract. For the entire booklet go to: Children’s law

Legally speaking, emancipation is that point in time when parents are no longer responsible for their children, and children no longer have to answer to their parents. (FC §§ 7002, 7120)Once this occurs, parents do not have to give their permission for anything that the minor may wish to do. They also no longer have to provide their child with support or necessities such as food, shelter or medical care. This means that your minor child does not have to be responsible to you and may live wherever he or she wishes to live.In addition, an emancipated minor can make his or her own medical, dental or psychiatric care decisions. An emancipated youth also may, for example, enter into a contract, sue and be sued in his or her own name, make or revoke a will, buy or sell interests in property, and apply for a work permit without parental consent. At the same time, the minor’s parents lose control over his or her earnings. The minor must instead take care of his or her own financial affairs. (FC § 7050) In California, an emancipated minor’s identification card or driver’s license can state his or her emancipated status. (FC § 7140)

MYTH: Some kids believe that they can “divorce” their parents or seek emancipation without their parents’ permission. The truth, however, is that kids cannot unilaterally “divorce” their parents. The emancipation process is very complex and requires, at a minimum, a parent’s consent or acquiescence in order for a court to approve such a process.

In California, emancipation occurs automatically under certain circumstances. For example, as soon as a person turns 18 years of age, he or she legally becomes an adult and is emancipated. (See Age of Majority). When minors get married, they become emancipated from their parents. Emancipation also occurs if a minor is on active duty with the Armed Forces. (FC § 7002(a)(b))

In addition, a minor may become emancipated in California with a petition to the courts. In such instances, the minor (at least 14 years of age) must state that he or she would like to be emancipated and is willing to live separate and apart from his or her parents or guardian. The minor must be able to prove that this decision was made voluntarily and that he or she has parental consent or acquiescence to manage his or her own financial affairs. The minor must explain to the court how much money he or she makes, and how future expenses will be handled, including the cost of rent, clothes, food and entertainment. (FC § 7120)

Before the petition is heard, the minor’s parents, guardian or other person entitled to custody must be notified, unless the minor can show that their address is unknown or that notice cannot be given for some reason. (FC § 7121)

Also, a judge must find that it is in the minor’s best interests to become emancipated. If circumstances change after the emancipation order has been granted, the court has the power to rescind the order and notify the minor’s parents.

Note: Running away from home is not a legitimate way of becoming emancipated. Nor can parents simply abandon their responsibilities by forcing their children out of the home. In such situations, children may acquire the right to determine their place of residence and make certain other decisions without losing their right to parental support. (See Parents’ Rights and Responsibilities.)

 This information is provided for educational purposes only. For more information about divorce and family law in Los Angeles  please visit www.la-familylaw.com


Body piercing and tattoos

Thank you to the State Bar of California hich produced the “Kids and the Law” of which this is an extract. For the entire booklet go to: Children’s law

 Your teenager got her lip pierced without your permission? It is against the law to perform a body piercing (this does not include pierced ears) on anyone under age 18—-unless a parent or guardian is present or has sent their notarized written permission. (PC § 652) In addition, it is a misdemeanor to tattoo or even offer to tattoo anyone under age 18. (PC § 653)

 This information is provided for educational purposes only. For more information about divorce and family law in Los Angeles  please visit www.la-familylaw.com


CHILDREN AND DRUGS

Thank you to the State Bar of California which produced the “Kids and the Law” of which this is an extract. For the entire booklet go to: Children’s law

 In a 2006 survey of nearly 50,000 secondary school students nationwide, half of the high school seniors admitted they had tried some type of illicit drug. Roughly one in 20 reported using

marijuana or hashish nearly every day. Illicit drug use overall has declined significantly among 8th, 10th and 12th graders in the past five years, according to the annual study funded by the National Institute on Drug Abuse. But drug abuse among young people remains a serious problem—and parents are often the last to know when their children are in trouble.

The abuse of certain prescription-type drugs, including the painkillers Vicodin and OxyContin, has raised concerns in recent years. By some accounts, there are teenagers who raid their family medicine cabinets and hold so-called pharming parties to trade and sample the prescription drugs. The number of children misusing over-the-counter cough and cold medications is troubling as well. Recent data showed that children are taking high doses of such medications just to get high. Of those surveyed in 2006, roughly one in 25 eighth graders and one in 15

high school seniors had abused such medications. And experts fear that young people may not fully realize the risks because the drugs are sold over the counter. Other drugs abused by young people in recent years include inhalants, anabolic steroids and the so-called club drugs, such as MDMA (more commonly known as “ecstasy”). Certain club drugs have been associated with sexual assaults as well; the drug is slipped into an unsuspecting victim’s drink to render the victim defenseless. For more information, go to www.clubdrugs.gov.

 What could happen if my child is arrested for drug possession?

 It depends. The laws regulating drugs exist at the federal and state levels. Most of the federal laws deal with large-scale drug trafficking, an activity in which most children are not involved. It depends. The laws regulating drugs exist at the federal and state levels. Most of the federal laws deal with large-scale drug trafficking, an activity in which most children are not involved. Young people are far more likely to face state charges of possession of a controlled substance. (H&SC §§ 11053, 11350) More than 135 controlled substances carry a felony charge —and potential prison time—for possession alone. Such substances include, for example, concentrated cannabis, heroin, cocaine, LSD, amphetamines and barbiturates. The punishment for marijuana (the most commonly used illicit drug) is less severe. Possessing 28.5 grams of marijuana (other than concentrated cannabis) or less would be considered a misdemeanor, which could result in a fine of up to $100. Minors also may be escorted home to their parents or taken to a juvenile probation officer. However, if your child is found possessing more than an ounce of marijuana or with any amount on school grounds or cultivating marijuana, the consequences would be more serious. (H&SC §§ 11357-58)

 Possessing certain drug paraphernalia is against the law as well. And it is illegal fora young person to be anywhere—a party, for example—where controlled substances are being used if he or she is participating or assisting others in their use. (H&SC §§ 11364-65) In California, courts can suspend a young person’s driver’s license (if he or she is under the age of 21 but older than 13) for one year if he or she has been convicted of certain drug or alcohol-related offenses. If the minor has yet to get a license, driving privileges may be delayed for a year beyond the date that the teenager would normally become eligible to drive. And successive offenses could result in further suspension or delay in eligibility. The suspension, restriction or delay of driving privileges is in addition to any penalty imposed upon conviction. (VC § 13202.5)When young people are arrested with more drugs than they could reasonably be expected to use themselves, they may be charged with possession with intent to sell drugs. This is a felony, even if the simple possession of the particular drug would not be a felony. (H&SC § 11351)In addition, anyone under the age of 18 who induces another minor to violate certain laws related to controlled substances could wind up in state prison. (H&SC § 11354)

 Are there stiffer penalties for those who sell drugs to minors at school?

 Yes. The state imposes severe sanctions on anyone age 18 or older who unlawfully prepares for sale, sells or gives away certain controlled substances to a minor (or solicits a minor’s assistance) at certain locations where children are present. This would include a school campus, a public playground or a child day care facility at any time when minors are using the facility. Depending on the location, the type of drug and the age difference between the minor and the adult, such conduct could lead to an enhanced prison sentence of 14 years. (H&SC §§ 11353.1- 11353.6, 11380.1)The data, however, suggests that teenagers still have plenty of opportunity to obtain drugs. A recent nationwide survey found that one in four high school students had been offered, sold or given illegal drugs at school.

 Is it against the law to use someone else’s drug prescription?

 Yes. To possess or use someone else’s prescription is illegal. Depending on the drug, the penalty could range from 12 months in jail and a $500 fine, to a state prison sentence and a $2,000 fine. (B&PC § 4060; H&SC §§ 11027, 11350, 11357, 11377)

 STEROIDS

 Your young athlete may believe that anabolic steroids will improve his or her game. But without a prescription from a doctor, steroids are illegal. In addition, the federal penalty for distributing such drugs is up to five years in prison and $250,000 in fines. (H&SC §§ 11056(f), 11377 (b); 21 USC § 841) For more information on steroids, go to www.steroidabuse.gov.

people are far more likely to face state charges of possession of a controlled substance. (H&SC

§§ 11053, 11350) More than 135 controlled substances carry a felony charge —and potential prison time—for possession

By law, the following warning must be posted in all locker rooms, colleges and schools with middle and high schoolaged students. (CC § 1812.97)

Warning: Use of steroids to increase strength or growth can cause serious health problems. Steroids can keep teenagers from growing to their full height; they can also cause heart disease, stroke, and damaged liver function. Men and women using steroids may develop fertility problems, personality changes and acne. Men can also experience premature balding and development of breast tissue. These health hazards are in addition to the civil and criminal penalties for unauthorized sale, use or exchange of anabolic steroids.

 This information is provided for educational purposes only. For more information about divorce and family law in Los Angeles  please visit www.la-familylaw.com


Weddings In the Sky:Couples could marry in mid-air under new easyJet plans

Thanks to Judith Middleton's blog for bringing this to my attention. This is form the Telegraph:

" Couples could marry in mid-air under new easyJet plans

Couples could marry in mid-air after the budget airline easyJet took the first steps towards on board weddings.

Close up of bride and groom's hands with wedding rings: Couples could marry in mid-air under new easyJet plans

The company has asked authorities if pilots could be authorised to officiate weddings in the air. A spokesman said they had written to Luton Borough Council - the body responsible for registration in the area where easyJet's London Luton Airport headquarters lie - to make preliminary inquiries about the feasibility of marrying people on board.The move would appeal to a growing number of couples looking to get married somewhere out of the ordinary, and the company said it had already received numerous requests from couples.Paul Simmons, easyJet's UK regional general manager, said: "We're excited about these plans. If there is the opportunity, our pilots could soon be marrying couples in the air."If our request is replied positively, then so called 'floating on cloud nine' would get a new meaning for people in love - and we can offer another special service to our passengers."A spokesman said they were willing to take any necessary steps to help the airline become the first anywhere to hold wedding ceremonies in the sky.He said that if plans were given the go-ahead they would be able to tie in ceremonies at 30,000ft with taking couples to their dream honeymoon destination.EasyJet captain Jeffery Husson added: "To officiate a wedding is a special honour for me."It would be exciting if I could marry couples above the clouds."But today a spokesman for Luton Borough Council said although the airline had made early enquiries, no decision could be made until it received full details of easyJet's proposals.A spokesman said: "We have only just received a letter from easyJet and will be responding in due course."While there are clearly laws governing marriage ceremonies, we are not yet aware of the full details of what easyJet are proposing to do, therefore, it would be inappropriate to comment further."The spokesman said rules governing where marriages could be conducted included that they must take place in a permanent building which was licensed for marriages and conducted by an authorised person, essentially a superintendent registrar or a minister of religion."

Imagine if Southwest get hold of the idea. You get married on the way to Las Vegas and get divorced on the return flight. There could also be some interesting issues regarding choice of law and enforceability of prenuptial agreements signed mid air. What if you sign the Agreement while flying over Texas but get married when you enter California airspace. Does the seven day waiting rule apply.

Los Angeles airborne divorce attorney


COPYRIGHT AND DIVORCE

 Intellectual property rights such as copyrights, patents and trademarks can be valuable assets which should not be overlooked in any divorce settlement.  This article will briefly look at copyrights and community property in California. In California the case of In Re Marriage of Worth[1] established that copyright should be treated as community property subject to equal division in a marital dissolution. In that case Susan and Frederick Worth agreed in a stipulated Judgment that she would be entitled to royalties from two trivia books he authored during the marriage. When Frederick Worth later filed a copyright infringement action against the Trivial Pursuit board game, Susan claimed that she should be entitled to half the proceeds of the infringement action. The Court agreed with Susan and rejected Frederick ’s arguments that State community property law was preempted by Federal copyright law. Although the decision has been heavily criticized by scholars and by other courts, it remains the law in California .[2]

            This means that when a marriage ends it is important to identify any copyright that either spouse holds, to place a value on that copyright and to make adequate provision for its division. This is especially important for copyright works such as literary and music creations which can be licensed and generate future income. For example, consider an author who writes a series of books featuring a famous cartoon character. While the non-author spouse is entitled to fifty percent of the copyright in the books written during the marriage, what is the situation where the author continues to write new books after the marriage using the same cartoon character? The post divorce books might then be turned into television shows and movies generating further income. In this kind of situation, in creating a settlement your attorney will need to distinguish and value the various forms of intellectual property that are created during the marriage. These will include the copyrights in the books and the character, good will developed by the author and trademark rights created in the character and the series. It is likely that these values will depreciate over time due to post divorce services performed by the author.  This was the situation in the divorce of Charles M. Schulz, the creator of the comic strip “Peanuts”. His wife of 24 years reached a property settlement whereby he agreed to pay for a share of the revenues he received from the comic strip after the divorce that would decline from 27% to 15% over ten years to take into account the fact that over time an increasing percentage of revenues would be attributable to his personal efforts.

            It is important to distinguish between the physical work and the underlying copyright in the work.  For example, in the case of an artist, the community will be entitled to the market value of any unsold paintings in a divorce but if the painter is famous there may be value to the other reproduction and merchandising rights in the paintings. Even where the copyright has been sold, there may be valuable residual rights that should be considered. For example, a novelist even after selling a book to a publisher may retain movie rights and even when the movie rights are sold may be entitled to “reserved rights” such as stage and performance rights. Screenwriters who are subject to the Writers Guild of America (WGA) Theatrical and Television Basic Agreement may not be the primary owner of the copyright in their scripts which are deemed “works for hire” and are owned by the studio or production company. However, the writer may be still be entitled to “separate rights” which can include stage, publication, series and sequel rights depending on the terms of the writers negotiated contract. Given the complexity of characterizing and valuation issues, in many cases it is a good idea to retain an experienced entertainment lawyer and accountant.

            The first step in a divorce is to identify the nature of the intellectual property rights that may exist. A search of the U.S. Copyright Office will determine whether the copyright has been registered in the U.S. However, copyright registration is not a requirement for copyright protection and will not reveal works that have not yet been published or exploited or foreign works.  For example, a half written book or a story outline is not likely to be registered but may still have value. Informal or formal discovery methods can be used to discover copyrighted works from the creator spouse or interested third parties such as book or music publishers, agents, business or personal managers and accountants. In some cases, it might be advisable to join them in the marital proceeding. In the case of a T.V. writer you would want to examine all contracts and royalty statements. In California, section 2100 et seq. of the Family Code requires both spouses to make a “full and accurate disclosure” of all separate and community assets and liabilities and to supplement those disclosures through the proceeding. Failure to do so may result in sanctions against the non-disclosing spouse and in extreme situations an award of those non-disclosed assets to the innocent spouse.

            Once you have identified community copyright there are various methods for distribution. With copyright, the cleanest method is for one of the spouses to buy out the other’s copyrights interests although this can present valuation problems. Value is often speculative especially with the development of new technologies which can take many years to add value to old properties. Another solution is to equally divide both the ownership and control of the copyright assets. Often this will be problematic since it may impair the creator’s ability to commercially exploit the work. By analogy, in dealing with the division of the family business where one spouse has been responsible for management, it would be rare to give the other spouse a say in management. That leaves the other solution which divides ownership –that is the legal title and right to revenues- between the spouses but leaves control of the copyright to the creator spouse. This can create problems since it gives the creator spouse the ability to structure deals in such a way that disadvantages the other spouse. Consider the case of Jerry Lewis and Patti Lewis who divorced after 35 years.  In the divorce, Patti reached a settlement under which she was entitled to a one half interest in royalties from “Community Titles” over which Jerry retained control. This included the Nutty Professor which was remade by Universal with Eddie Murphy. In a subsequent lawsuit, Patti alleged that Jerry structured the deal with Universal is such a way that minimized the “remake rights” (to which she was entitled to 50%) but paid him substantial personal service fees as writer and producer (which did not). If you do decide to separate ownership and control of the copyright it is important to negotiate how the managing ex-spouse will administer the asset, including defending the copyright and bringing infringement claims, and what fiduciary duties will be owed to the other spouse.  Also there should be provision for a buy-out in certain circumstances e.g. an ex-spouse dies or no longer has the ability to manage or either party wishes to sell.

            Whatever method of division of copyright is determined it is important that all the copyright formalities for transfer are observed. Your attorney should pay particular attention to the Copyright Act’s provisions regarding termination of transfers, reversions and renewals. Any transfers or assignments should be in writing and it is wise to register the copyright transfer or assignment at the Copyright Office. [3]

 

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[1] 195 Cal App. 3d 768 

[2] See Nimmer “Copyright Ownership by the Marital Community: Evaluating Worth” 36UCLA Rev. 383 (1988); Rodrigue v. Rodrigue, 39 USPQ2d 1157(E.D. La.1996)

[3] Registration is often a condition for bringing an infringement action and attorney fees.


Dividing debts in divorce


Kathy M. Kristof
KATHY M. KRISTOF:  From Los ANGELES TIMES
Personal Finance
Couples often think that if they've figured out who pays what and get court approval, they're safe. Not necessarily. And it's even more important to be careful during this economic downturn.
Kathy M. Kristof, Personal Finance 
April 19, 2009
Couples in the process of divorce spend a lot of time divvying up their assets. But in today's miserable economy, experts maintain that soon-to-be-exes should take even greater care dividing up the debts. 

Otherwise, your former spouse's job loss could end up hitting your balance sheet -- and credit report -- years after you think the divorce is settled.

"This is one of the more difficult things to do and people often forget about it," said John Ulzheimer, director of consumer education at Credit.com. "But if you don't do it, or don't do it right, it can not only cost you money, it can cost you your credit rating for a long period of time."

Unfortunately, even people who think they are dividing debt often aren't dividing it legally -- despite approval from a divorce court, experts say. 

Couples often think that they can assign repayment of debts in the process of a divorce -- e.g., you repay the Visa; I'll take the AmEx -- said D. Michael Bush, a Newport Beach-based lawyer. But unless they got the creditor's approval -- in addition to the court's -- the assignment is not legally enforceable, he said.

"There has to be an upfront agreement that includes the lender, or the lender can go where the money is -- it doesn't matter what you did in court," he said.

So how do you properly divide debt?

First, order credit reports.

Everybody has the right to one free credit report every year from each of the three major credit bureaus. Now is the time to request one at www.annualcreditreport.com. On the report, you'll see that each credit listing shows the status of your account, when opened, when closed (if applicable) and whether the responsibility is individual or joint. These reports also show your payment history with each debt, the addresses your creditors have on record, and the names under which you have received credit. 

Under normal circumstances, it's wise to check your report once annually for errors and signs of identity theft, such as new addresses and new credit that you didn't secure. In a divorce, you need the credit report because you're likely to find old accounts you'd forgotten about that have never been properly canceled, said Bill Hardekopf, chief executive of LowCards.com.

Next, cancel joint credit cards.

If both you and your ex are authorized users on credit card accounts, those cards should be canceled. If the cards have revolving balances, you must pay off the balances with other assets or transfer the debt to cards that are newly issued in just one name.

Why is that so important? A jointly held card is reported on the credit reports of both you and your ex-spouse. If your ex fails to pay bills on time, the damage ruins your credit too.

Worse, said Hardekopf, is that you are jointly and separately liable for any balance on that card. The divorce court does not have jurisdiction over existing contracts with your credit card companies. So even if the court says your ex is supposed to pay that bill, the creditor can come after you to collect. If an account is left open, your ex can add more debt and leave you holding the bag.

Not fair? True. But if you don't cancel the cards upfront, you'll be left to argue about it, possibly in court (again) later.

It's also important to check student loans. 

Many student loans are issued in just one name and payable by just one person. But if you incurred private student debts while married -- or if you cosigned on your spouse's loan -- they may be joint obligations. Traditional student debt is low-cost and flexible and generally the last debt you want to pay off. However, you might want to pay off or refinance any private student debt to clarify repayment obligations after the divorce.

Auto and home loans also become an issue in divorce. 

You don't necessarily want to refinance a home loan if you have a good rate, and you might not be able to refinance a used automobile. If you have these debts, you may want to try to modify them with your lender. 

Typically, this requires the lender to look at your new, single financial statements and determine whether you can afford the payments on whatever income you'll maintain, whether that's from work or spousal support.

Another thing that can have enormous effect in a divorce is if one spouse files for bankruptcy protection.

Gary Leibowitz, a Los Alamitos bankruptcy attorney, says he's increasingly getting referrals from divorce lawyers who realize that their clients have more debts than assets. In these cases, it's often necessary to file for bankruptcy in conjunction with the divorce, he said. 

And if one spouse is in bankruptcy, Leibowitz maintains that it would be foolish not to have the other look closely at filing too. The reason: all those joint debts.

"Any debt that was incurred during the marriage is joint debt," he said. "You could have divided up $100,000 in debt and then one spouse files bankruptcy and gets their $50,000 discharged. 

"That leaves the other spouse with the whole obligation because that debt was never really divided. The [divorce] court doesn't have the jurisdiction."

Los Angeles Divorce Attorney

ENFORCEABILITY OF PRENUPTIAL AGREEMENTS

ENFORCEABILITY OF PRENUPTIAL AGREEMENTS

 

By Warren R. Shiell

 

            In 1976 the California Supreme Court in the landmark decision of In Re Marriage of Dawley recognized that prenuptial agreements that contemplated divorce were not invalid per se and against public policy but should be reviewed on a case by case basis to determine if they promoted marital breakdown. In 1986Californiatook another important step in recognizing the validity of prenuptial agreements by adopting its version of the Uniform Premarital Agreement Act which was further amended in 2002. This Act is now adopted in twenty four other states. The current version ofCalifornia’s Premarital Agreement Act is contained in Family Code sections1600-1617.

 

            In order to ensure its enforceability any attorney drafting a prenuptial agreement (also referred to an antenuptial or premarital agreement) should be familiar with the provisions ofCalifornia’s Premarital Agreement Act and the case law. For prenuptial agreements executed after January 1, 2002, the Family Code provides that an agreement will not be enforceable if either (1) the agreement was involuntary or (2) the agreement was unconscionable and there was no adequate disclosure or (3) the agreement violates public policy.

 

            The following general conclusions can be learned from these requirements which are discussed in more detail below:

 

  • Both parties should be represented by independent counsel
  • Never wait until just before the wedding to sign a prenuptial agreement
  • Always provide full, fair and reasonable disclosure of all income, assets and liabilities of both sides
  • Ensure that the agreement is fair and does not leave one party without any means of support in the event of divorce

 

The agreement must be voluntary

 

            Family Code 1615 places on the party seeking to avoid enforcement the burden of demonstrating that the agreement was involuntary.[1] All prenuptial agreement executed after January 1, 2002 are deemed to be involuntary and therefore unenforceable unless the court finds that all of the following requirements are met.:

 

1.   Independent counsel: The party had independent counsel or was advised to seek independent counsel but waived that right in a separate legal writing. This means that if you can only afford one attorney, the non-represented party must sign a separate written acknowledgment that they have been advised to retain an attorney but declined to do so. It is not enough that the acknowledgement is contained in the prenuptial agreement itself. It is often the case that the idea for a prenuptial agreement is initiated by one spouse: usually the one with the greater assets and income. That person may be tempted to provide assistance in finding and paying for the other’s attorney. It is good practice to find and pay for one’s own attorney. If you must rely on a referral from the other party or their attorney then get at least three referrals. Further, if a party cannot afford to pay an attorney, the other party should loan the money for legal fees rather than paying that attorney directly in order to avoid the appearance that the attorney is not independent.

 

2.   Seven day waiting period: At least seven days must have elapsed between the date that the parties were “first presented” with the agreement and advised to seek independent counsel and the time the agreement was signed. This means that if you decide to consult an attorney about drafting a prenuptial agreement days before the wedding, you are too late. Even if you wait until a few weeks before the wedding, you may run foul of this provision because it is not clear whether the seven days runs from the first or last draft of the agreement. A conservative interpretation of the statute requires that once you have negotiated a final draft of the agreement, you must wait a further seven days before signing the agreement.

 

3.   Full disclosure to an unrepresented party: If a party waives their right to independent counsel, for the agreement to still be enforceable the court must find the following: (a) they were fully informed about the terms and basic effect of the agreement and the rights they were relinquishing by signing the agreement (b) they were proficient in the language of the prenuptial agreement and in the language in which explanation of the effect of the agreement was given. Further this advice must be memorialized by the attorney in writing and given to the unrepresented party before they sign the prenuptial agreement. These requirements make it very difficult for only one party to be represented by an attorney. If you think that you are saving money by having only one attorney, you are not. That is because that attorney will have to prepare a lengthy opinion letter to the unrepresented party explaining not only the effect of the prenuptial agreement but also all the rights they will be relinquishing underCalifornialaw. Therefore, both sides should always be represented by independent counsel in preparing a prenuptial agreement.

 

4.   Duress, Fraud and Undue Influence: The court must also find that in signing the agreement or any of the other writings referred to above, a party did not act under duress, fraud, or undue influence. Fraud is an intentional concealment of a material fact with intent to deprive the other of a legal right. Duress is where a person has been deprived of their free will by a threat to the safety of their person, family or property. Undue influence takes place where one takes a “grossly oppressive and unfair advantage of another’s necessities or distress” or takes unfair advantage of a confidential relationship. The leading case of In Re Marriage of Bonds (2000) 24Cal.4th is interesting because it suggests that there is a high burden to prove duress or undue influence. The Court found that there was no confidential relationship between parties contemplating marriage. They also stated that the overall fairness or unfairness of the agreement was not relevant to the test of its validity.  They found that the agreement was voluntary in spite of the fact that Bond’s fiancé was unrepresented, was presented with the agreement a day before the marriage, Swedish was her main language and it was unclear whether there had been full disclosure. In December 1987, Barry Bonds, the baseball player, told his fiancé, Sun, a Swedish waitress and make-up artist who was unemployed at the time, that he wanted a prenuptial agreement prior to the planned wedding that was scheduled to take place the following year. The couple were living in PhoenixArizona and planned to fly out to Vegas on February 5, 1988 and get married the day after. On the day of the flight, Barry and Sun met at his attorney’s office where she was presented for the first time with a prenuptial agreement to sign.  According to evidence at trial she was advised to consult an independent counsel but declined because she had no assets.  The agreement also referred to a schedule of the party’s property and assets but there was no such schedule attached. The Supreme Court of California upheld the trial court’s finding that the agreement was voluntary:

 “The trial court determined that there had been no coercion. It declared that Sun had not been subjected to any threats, that she had not been forced to sign the agreement, and that she never expressed any reluctance to sign the agreement. It found that the temporal proximity of the wedding to the signing of the agreement was not coercive, because under the particular circumstances of the case, including the small number of guests and the informality of the wedding arrangements, little embarrassment would have followed from postponement of the wedding. It found that the presentation of the agreement did not come as a surprise to Sun, noting that she was aware of Barry's desire to "protect his present property and future earnings," and that she had been aware for at least a week before the parties signed the formal premarital agreement that one was planned.”

       If the facts had been the same but the prenuptial agreement had been executed after January 1, 2002 there may well have been a different result since there as no written waiver of the right to obtain independent counsel, no seven day waiting period and no written explanation in Swedish of the effect of the prenuptial agreement and the rights that Sun was relinquishing.

       A court might find duress or undue influence if there is a history of domestic violence. The case of In Re Marriage of Balcof (2006) 141 Cal App. 4th 1509 while dealing with a postnuptial agreement signed after the marriage is illustrative. In that case the court invalidated a post nuptial agreement on the grounds of duress and undue influence where the husband signed a post nuptial agreement transferring a percentage of his business to his wife as a result of continued verbal and physical abuse from the wife, including being hit in the face front of the children and threats by his wife to undermine his relationship with his children.

       In the Dawley case, the Supreme Court held that the fact that wife entered the prenuptial agreement because she was pregnant and was concerned about her financial security did not amount to under influence but only because “James, threatened with a paternity suit and likely loss of his position, was in no position to take advantage of her distress” reflecting this rough equality of bargaining power.” This appears to leave the door open that the threat not to marry a pregnant woman may be partial evidence of duress or undue inference. In other States the courts are split on the issue and one commentator has stated that where pregnancy is the only evidence of duress or undue influence, the cases tend to find agreements valid but where there are other aggravating factors in addition to the pregnancy, the agreement is more likely to be invalidated. [2]

 The agreement was unconscionable and there was no adequate disclosure

             A party may claim that a prenuptial agreement is invalid because it was both unconscionable when the agreement was executed and that there was no adequate disclosure.

             The burden is on the party claiming that the agreement is invalid. Unfortunately, there are no California cases that address whether or not a prenuptial agreement is unconscionable in this context. Applying the test of contractual unconscionability, most commentators argue that there must be both procedural and substantive unconscionability. Procedural unconscionability has been defined as oppression caused by unequal bargaining power and surprise due to hidden and unexpected provisions. Substantive unconscionability involves a one sided and unreasonable agreement lacking in any justification. [3]Factors which might have a bearing on the issue of unconsionability would be whether a party was presented with the agreement as a fait accompli at a lawyers offices just before the wedding or was given advanced warning and had an opportunity to review a draft before signing, whether any revisions were made to the agreement at the request of the party challenging enforcement, whether they were represented by counsel, whether they considered the agreement fair at the time of signing and whether the agreement’s terms were clearly set out and not hidden in small print. There are many cases upholding prenuptial agreements which seem unfair but are “well within the permissible scope of advantage to one of the parties.” [4]

             Even if the agreement is unconscionable there must also be a finding that there was no full disclosure for the agreement to be invalidated. The person claiming that the agreement was invalid must also prove all of the following elements: a) the party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party, (b) the party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided, and (c) that party did not have, or reasonably could not have had, an adequate knowledge of the property or financial  obligations of the other party.  It is therefore good practice to provide for full disclosure of all the parties’ income, assets and liabilities within the body of the agreement and for the parties to acknowledge that they have exchanged tax returns. The parties should also state in the agreement that they have waived any disclosure beyond that provided.

 Violation of public policy

             Provisions in an agreement that seek to impose moral or religious conduct upon the parties during the marriage, limit child support obligations and divest the Court of the power to make custody decisions in the event of a divorce are against public policy and may make the entire agreement unenforceable. Therefore it is a good idea to have a provision that the agreement is severable. Agreements which attempt to impose a penalty upon a party as a result of that party’s “fault” during the marriage (e.g. infidelity) are generally held to be unenforceable as contrary to the public policy underlying no-fault divorces in California . In one case a provision in an agreement that contained a liquidated damages clause of $50,000.00 payable by a party who was unfaithful rendered the entire agreement unenforceable. [5]  This case therefore makes it very unwise to contain any provisions which seek to place restrictions on the division of property or support on the basis of fault. A more difficult question is whether an agreement that makes provisions for lump sum payouts is unenforceable on the grounds that it promotes divorce.  In the landmark Dawley case the Supreme Court drew a distinction between terms which encourage or promote dissolution (invalid) and terms which reorders the property rights of the parties to fit their needs (valid).  Therefore, in one case a Jewish couple signed a “Kethuba” in which the husband promised in the event of divorce to give wife his separate property house and $500,000 or one half of his assets whichever was greater.[6] The court believed that the settlement was so substantial that it "threaten[ed] to induce the destruction of a marriage that might otherwise endure" and invalidated the agreement. In another case, the court upheld the agreement where the 76 year old husband millionaire promised to pay his 46 year old fiancé $100,000 if they divorced on the grounds that this payment was calculated to compensate her from the loss of spousal support from a former marriage and was therefore a proper "reordering of property rights to fit the needs and desires of the couple" even though the marriage only lasted a year.[7]  For this reason it is good practice to ensure that any payments following divorce are in the form of support instead of lump sum property payments.

 Special rules for spousal support

 A waiver or a restriction of spousal support in the agreement is unenforceable if either the party was not presented by independent counsel or the agreement was unconscionable at the time of enforcement. There is no provision for a knowing waiver of the independent counsel requirement. It is impossible to know in advance whether the spousal support provision is unconscionable because it is tested at some time in the future. We know that a spousal waiver will not be enforced if it leaves an ill or disabled spousal unable to support themselves.[8] Unfortunately, there is scant California authority for the meaning of unconscionability in the support context. A leading Oregon case which has been cited by California cases suggest that a waiver of support will be upheld unless the other spouse has no other reasonable source of adequate support.[9] That case made it clear that adequate support means the minimum amount a person needs to support themselves and is not related to the parties’ marital standard of living.  A Colorado Supreme Court upheld a spousal support waiver between a millionaire husband and wife who was earning only $1500 after the divorce.[10] An Arizona Court of Appeals adopted what it called the “majority rule” established in these cases that spousal support waivers will be enforced unless it would render one spouse without a means of reasonable support or a public charge either because of a lack of property or unemployment. [11] However these cases are not binding on California courts which have not shown any reluctance to follow a “minority” rule if they feel that to be the enlightened position. It may be prudent to contain restrictions on the payment of support rather than an outright waiver in any agreement.

 

© 2009 Warren R. Shiell. All rights reserved. Los Angeles Divorce and Family Law Attorney. The information contained in this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this   Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement. This article states the state of the law as of 2009 and there may be subsequent changes in the law which render all or part of this article obsolete.

 

California Prenuptial Agreements, California Prenups, California Premarital Agreements



[1] In Re Marriage of Bonds (2000) 24Cal , 4th 1, at 37.

[2] Drafting Prenuptial Agreements by Gary N. Skoloff, Richard H. Singer, Jr. Ronald Brown (2008 Supplement case review)

[3]  Little v. Auto Steigler, Inc. (2003) 29Cal.4th 1064.

[4]  In Re Marriage of Dawley (1976) 17 Cal. 3d 342 (premarital agreement in which all property, earnings and income acquired during marriage remain the acquiring party’s separate property); Marriage of Bonds (2000) 24Cal. 4th1, (premarital agreement wherein each party waived any interests in any earnings and acquisitions of the other during marriage); Marriage of Cleveland (1976) 76 Cal. App. 3d 357 (agreement signed 15 minutes before marriage providing that all property then owned by each party acquired daring marriage would remain the acquiring party’s separate property).

[5]  Diosdad v. Diosdado (2002) 97 CA4th 470.

[6]  E.g Marriage of Noughrey (1985)  169 CalApp. 3d 326

[7]  In Re Marriage of Bellio (2003) 105 Cal App. 4th 630.

[8] In Re Marriage of Rosendale (2004) 1119 Cal App. 4th, 1202 (spousal support waiver unenforceable where wife suffered brain damage, on life support, numerous injuries. Court also stated that Family Code section 1612 only clarified prior common law requirements.)

[9]  Unander v. Undander (Ore.1973) 506 P.2d 719.

[10]  Newman v. Newman (Col1982) 653 P.2d 728.

[11] Williams v Williams (Ariz 990) 801 P.2d 495.1


MEN FILING FOR ALIMONY

As a Hollywood actor, John David Castellanos is protective of his image. He stays in phenomenal shape and looks much younger than his 50 years.

But he admits to a fact that might be considered unflattering: He receives alimony from his former wife. To be exact, $9,000 a month.

"The law provides" for it, says Mr. Castellanos, who for years starred in the soap opera "The Young and the Restless."

More women are paying alimony, or maintenance checks, to their ex-husbands as they make inroads in the workplace. Jacqueline W. Silbermann, deputy chief administrative judge for matrimonial matters in New York, discusses the trend.

In the nearly 30 years since the U.S. Supreme Court ruled against gender discrimination in alimony, few male beneficiaries have stepped forward to talk about it. Those who did typically went by pseudonyms or the golden rule of 12-step recovery: first names only.

Little wonder, considering the attention that has come to some former husbands of alimony-paying celebrities. "Why the courts don't tell a husband, who has been living off his wife, to go out and get a job is beyond my comprehension," Joan Lunden, the television personality, said in 1992 when a court ordered her to pay her ex-husband $18,000 a month.

But today's men are shaking off the stigma of being supported by their ex-wives. Several agreed to talk on the record for this article, in part because they say the popular image of the male alimony recipient is unfair: He's not always a slacker.

Mr. Castellanos says he has acted in or produced five movies since the breakup of his marriage, including a couple of projects that he says are nearing completion. If any of these projects strike gold, he says he would gladly forgo alimony. Even Ms. Lunden has had a change of heart. Through a former publicist, she now says of her 1992 comment: "That was a statement made in haste many years ago. I regret having said it."

[John Castellanos]

Divorce experts say that fewer and fewer men are rejecting outright any talk of seeking alimony. The percentage of alimony recipients who are male rose to 3.6% during the five years ending in 2006, up from 2.4%, in the previous five-year period, according to the U.S. Census Bureau.

That percentage is likely to rise as more and more marriages feature a primary earner who is female. In 2005 (the latest year for which data are available), wives outearned their husbands in 33% of all families, up from 28.2% a decade earlier.

Alimony -- a distinctly different category from child support -- is the money that higher-earning spouses hand to their lower-earning counterparts following the end of their marriage. Often it is court-ordered, years in duration and based on big discrepancies in spousal incomes.

Classic Reasons

Today, men in growing numbers are receiving alimony for the classic reasons that women traditionally did. A common argument is that they sacrificed their careers for the sake of their wives'.

"If it was not for the joint decision to support Marjorie's career advancement to the detriment of mine, I would be making considerably more money than I am currently," Christopher Bowen argued in a 2005 filing in Los Angeles Superior Court.

At the time of that request, Mr. Bowen was a Wachovia Securities executive receiving about $550,000 in annual pay, according to the court documents. But his wife, Marjorie Bowen, was expected in 2005 to earn $1.5 million as an executive at investment-banking boutique Houlihan Lokey Howard & Zukin, according to the court documents.

Mr. Bowen argued in the filing that when the couple moved back to Los Angeles because of her career opportunities, he took a cut in pay. "Based on my salary alone, I cannot maintain the marital standard of living," Mr. Bowen wrote in a petition filed in the Los Angeles court in August 2005.

[Joe Garnick]

Male alimony seekers are also touting sacrifices made on behalf of children. In the marriage of Joe and Diane Garnick, she logged 12-hour days as a global equity derivatives strategist for Merrill Lynch, earning several times what Mr. Garnick did as a top-performing toilet salesman. So in 2001, he quit that job to focus on raising their two girls, keeping the house clean and doing the shopping.

Following his 2002 divorce, he received alimony of $50,000 a year for four years from Ms. Garnick, now an investment strategist at Invesco Ltd.

As a stay-at-home dad, Mr. Garnick notes that he missed out on career opportunities that would have boosted his earning potential, particularly those involving travel. "I couldn't [travel] while I had a kid," Mr. Garnick says.

Mr. Garnick used the alimony to earn a mathematics degree from a community college. But he has returned to his old job selling toilets, where he earns only half what he did before quitting. "Society thinks that just because you are a man you can pick up a career after you have dropped it for 10 years and jump right back," he says. "That's just not the case."

Still, relatives of his former wife continue referring to Mr. Garnick as a "deadbeat," he says. And Ms. Garnick herself says, "In some instances, alimony has become akin to a social-welfare program provided by working women to their ex-husbands."

[Diane Garnick]

Some feminists say cases such as Mr. Garnick's show progress of a sort. "We can't assert rights for women and say that men aren't entitled to the same rights," says the famous feminist lawyer, Gloria Allred.

But the women who have to pay it are sounding a different chord. "I feel financially raped," says Rhonda Friedman, the former wife of Mr. Castellanos. So distasteful are the monthly payments she makes to him that after filling out the check she used to spit on it. Especially galling, she says, is that she was required to pay a substantial portion of the legal fees he racked up while securing a lucrative divorce agreement.

To be sure, some men don't want alimony, viewing it as an embarrassment. Others are just as high-powered as their wives. Yahoo President Susan Decker and her soon-to-be ex-husband have taken alimony off the table, according to court records. Meanwhile, Sara Lee Chief Executive Brenda Barnes is paying no alimony to her ex-husband, a former PepsiCo Inc. executive who now manages his own money. Until their youngest child recently turned 18, Ms. Barnes, who earned a total of $8.7 million in fiscal 2007, was receiving child-support payments from her former husband, according to court records.

[Bringing It Home]

Other men have learned that alimony is a powerful negotiating tactic, especially when their estranged wives clearly want to sever all ties. "For some people, it is truly offensive to write out a check each month to a spouse for support," says Sue Moss, a divorce lawyer at Chemtob Moss Forman & Talbert LLP in New York. "In those instances, if you can offer a financial package that is essentially the same as if maintenance was being paid, it is the preferable alternative."

Indeed, the increasingly common practice of trading alimony for a fatter slice of marital assets helps explain why the overall number of people reporting alimony income fell 17% during the decade ended in 2006, to a total of fewer than 400,000, the Census Bureau says.

In the case of Wachovia's Mr. Bowen, he ultimately waived his rights to spousal support. But the resulting settlement -- which neither party will publicly discuss -- suggests that Mr. Bowen received a generous division of assets. In addition to half of his wife's substantial private-equity investments, Mr. Bowen received a home in Manhattan Beach, Calif., a parcel in Utah and some properties in Brooklyn, N.Y.

Due Payback

Soap star Mr. Castellanos bluntly says he deserves alimony for the same reason that his former wife, Ms. Friedman, says he doesn't: He earned more than she did during six of the nine years they were married. Only after losing his regular role on "The Young and the Restless," and only after his wife received several promotions, did she start earning more than he. For years, his big paychecks financed their lavish lifestyle, and now he is due some payback, he says.

Invaluable Advice

To Ms. Friedman, that financial history fails to support the argument that she should send thousands a month to her ex-husband, with whom she had no children. "I don't understand why someone becomes your financial responsibility just because you married them," says Ms. Friedman, who earns about $500,000 a year as the supervising producer of the soap opera "The Bold and the Beautiful."

Mr. Castellanos also argues that as an artist, he provided his wife with invaluable advice and insight that helped Ms. Friedman rise from production coordinator to producer.

Ms. Friedman hotly denies that he had anything to do with her success.

Even men without marital sacrifices to cite as cause for alimony are coming around to the idea that good fortune is no cause for shame. Women, after all, have been crowing for decades about the financial scalpings they collect monthly from their ex-husbands. So why shouldn't Phillip Upton take pride in his classic "muscle cars"?

A shop foreman at the time of his divorce last year, Mr. Upton says he couldn't have afforded the $20,000-a-year cost of maintaining his 1960s-vintage collection of cars with outsized motors.

But in his divorce settlement, he won alimony payments totaling at least $40,000 a year from his ex-wife, a marketing executive. "Had I not gotten that, I would have lived a different lifestyle," says Mr. Upton. His former wife, Noreen Upton, declined to comment.

Write to Anita Raghavan at anita.raghavan@wsj.com

Corrections & Amplifications

In 2005 (the latest year for which data are available), women outearned their husbands in 25.5% of families where both spouses received income. This article said wives outearned their husbands in 33% of all families; that number referred to families where wives, but not necessarily husbands, received income.

Los Angeles Divorce Attorney 

California Spousal Support


Surge in child support modifications Los Angeles


Family court
Mark Boster / Los Angeles Times

This article from the Los Angeles Times by By Molly Hennessy-Fiske 
May 3, 2009


Doreen and Carlos Mazariego wait for their case to be called at L.A. County’s Central Civil West Courthouse, where they are appealing for lower child support payments for Carlos’ children from a previous marriage.
As unemployment rises, so does the number of cases being reassessed. Collections are up as the state garnishees more unemployment checks, and more from the middle class are seeking the state's help.

California's rising unemployment rate is driving a steep increase in child support cases, as the newly jobless appeal for increases in monthly payments or argue that they can no longer afford the amounts ordered by the court.

In Los Angeles County, about 450 new cases are filed each day, double the amount at this time last year. More than 3,000 calls come in daily -- up 25% -- increasingly from custodial parents asking child support staffers to crack down on deadbeats. The number of parents seeking help with child support modifications has tripled during the last month and a half, with some parents showing up at 5 a.m. to wait in line.

 
Related Content
"Can we handle it? No," said L.A. County Child Support Services Director Steven J. Golightly.

Family court judges and commissioners are calling it the worst avalanche of new cases they have seen in 30 years, many involving laid-off workers who have struggled to find new jobs.

Paradoxically, higher unemployment rates have led to a slight rise in the amount of child support collected this fiscal year, in part because the state can easily garnishee unemployment checks.

As child support money taken out of payroll checks dropped by more than $20 million through the end of February, compared with the same period a year ago, money withheld from unemployment checks nearly doubled, rising to $64 million from $34 million.

Parents who once hired lawyers or handled child support privately are now going to courts or child support services for help, according to staff members.

"I have never seen the situation as bad as it is now," said Christine Reiser-Juick, lead attorney at the state-run Office of the Family Law Facilitator in Los Angeles County Superior Court's Central Civil West Courthouse, which helps parents who cannot afford to hire attorneys.

Reiser-Juick, a 10-year veteran of the system, said her staff can assist about 150 people a day and regularly have to turn away an additional 60 to 80. Many of the people they see are newly unable to afford their payments or to provide their children with health insurance, she said.

It appears to be a national trend. The American Academy of Matrimonial Lawyers in late March reported a 39% increase nationwide in the number of divorced spouses requesting changes to child support agreements.

At the Central Civil West Courthouse, benches outside 16th-floor family courtrooms were full of parents, some with children in tow.

Martha Padilla, 35, of Santa Fe Springs listened as her ex-husband pleaded with a judge not to raise his $758 monthly payments for their three children. Rogelio Gallegos, 40, a delivery truck driver, said his monthly pay was recently cut from $3,000 to $1,900, and he had a new wife and two other children to support. He wanted to pay less.

"I understand, sir, but having children means making sacrifices," Family Court Commissioner Nicholas Taubert said.

Padilla, a restaurant cashier, had asked for increased payments but offered to make do with the status quo, which she said she relies on to pay for after-school child care. Gallegos, holding his head in his hands, grudgingly agreed.

Two floors above them, dozens more parents waited for their names to be called for child support mediation.

Amador Rios, a mechanic, pays $225 a month to support his 11-year-old son. He came to ask for a reduction after his workweek was reduced to two days, lowering his weekly pay to $160.

"I earn very little, and I have to eat and buy gas," Rios, 43, said as he sat next to the windows, waiting for his name to be called. "There's no work. You go out and look, and they don't have it."

County child support attorneys used to postpone unemployed parents' cases for a few months until they found work, but that is no longer an option, they said.

"There's no guarantee they'll find anything," said Barbara Catlow, head attorney at the Central Civil West child support office.

Most of the cases Catlow sees involve blue-collar workers, but child support officials say they are seeing the same phenomenon in low- and high-income areas, urban and suburban. In Orange County, family courts received 722 requests for child support modification in February, compared with 518 during the same month last year. In the Bay Area county of San Mateo, modification requests were up 30% in February.

"They are either furloughed and they are working less hours, or they have become unemployed and they are trying to avoid accumulating that debt," said Iliana Rodriguez, director of San Mateo County's Department of Child Support Services.

In L.A. County, child support staff withheld 144% more in child support from unemployment checks in February than in the same month last year. The rise in collections from unemployment checks has offset other drops, at least so far. In March, L.A County collected $47.7 million in child support, about half of what was owed and a 2% increase from the same month last year.

Many custodial parents who are owed child support are on the swelling welfare rolls. When the state tracks down fathers and mothers who are delinquent in those cases, their monthly payments offset state aid already paid out to their families.

But there are also signs that more middle-class families are relying on child support to make ends meet. Typically, about 25% of families in L.A. County child support cases have never received government assistance. That rose to 34% in recent months.

In Orange and Ventura counties, the number of parents who had never received assistance and were referred by social services to child support offices increased 14% as of February, compared with the same period last year.

Child support officials said the increases underscore the needs of families who have fallen on hard times but still have resources that make them ineligible to receive welfare, food stamps or other aid. Getting child support owed to them is crucial, said Jennifer Coultas, a lawyer and special assistant to L.A. County's director of Child Support Services. "It's just really hard out there for families."

Coultas and other county child support officials are pushing for California to rethink its "fair share" formula for monthly child support payments owed by noncustodial parents. The guidelines, which take into account how much time children spend with each parent, work out to roughly 25% of the noncustodial parent's net income after state and local taxes for one child; 40% of net income for two children; and 50% of net income for three children. If a parent becomes unemployed, the payments may be adjusted based on new income -- the unemployment pay -- but only after an appeal to a judge for a modification.

Other states, such as New York, which is second only to California in child support collections, take both parents' income into consideration and allow judges to issue "poverty-level" child support orders if a parent becomes unemployed.

"Those states are quicker to respond to economic downturns," Golightly said.

In San Mateo County, Rodriguez, who also serves as president of the state Child Support Directors Assn., compares massive child support debts to foreclosed homes that people walk away from, unable to pay the mortgage.

"At some point, you set the bar too high and the person just feels defeated," she said.

But any attempt to change payment guidelines is likely to face strong opposition from mothers' groups. So far, state child support officials have not taken a position on whether changes should be made in light of the deep recession.

"We understand it's a difficult economic time, but we are focused on collecting child support and making sure those monies go to the individual it is owed to," California Department of Child Support Services spokeswoman T. Maria Caudill said. "Oftentimes, child support makes the difference between a family remaining economically self-sufficient and applying for aid."

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