Seventeen year old girl escapes forced abortion. Can she protect herself and her pregnancy?

The courts in California have a strict policy, their primary concern is to act in the best interests of the child. Being forced to have an abortion might be considered child abuse by the court.

If so, your friend may be able to prevail in securing a temporary restraining order prohibiting her parents from forcing her to allow what may amount to a battery (an unwanted touching), by the doctor performing the pregnancy termination. The court could then appoint Minor’s Counsel, an attorney that would represent her interest.

Currently in California, your friend has a right to let a judge know her feelings because of her age. A court would likely give great weight to her preference and may very well protect her from her parents. It may even involve the child protective services who could remove her from her parents home.

She is old enough under the Domestic Violence Protection Act in the California Family Code to seek a restraining order on her own. The local court may have a Domestic Violence Help Center to assist her in obtaining the initial order, but she will probably need an attorney to represent her at the hearing. If she is successful in obtaining the initial order, he parents will be restrained from taking her back to India until the court decides her case.

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Her arrogant attorneys' rants cost her over $400,000!

A new published case from the First District Court of Appeal titled “Marriage of Davenport” (2011 S.O.S. 2343) (Cal.App. 5-4-2011), filed May 4, 2011 took to task a young lawyer whose poison pen letters to his opponent backfired after he filed a motion for sanctions. This is a mistake you must avoid.

In the end, his client was the one who was ordered to pay $100,000 in sanctions and over $300,000 in attorneys’ fees for his bad behavior!

The young, inexperienced attorney wrote mean spirited, nasty letters in which he degraded the integrity of his opposing counsel, accused them of being dishonest, and insulted them in numerous other ways. The trial court wrote a 31 page Statement of Decision stating why the court was ordering his client to pay sanctions and fees to her husband’s attorneys.  The Court of Appeal upheld the trial court’s sanction order.  In so doing, the court gave the following reasoning for admonishing the young attorney who wrote abusive, rude, and/or hostile correspondence to his client’s husband’s attorneys:

“Beyond all that, there is evidence of Andrew Watters’ treatment-more accurately, mistreatment- of his opposing counsel in his correspondence with them.  Bad enough that such correspondence occurs in any litigation.  It is utterly inconsistent with a fundamental aspect of proper family law practice.  ‘Family law cases are not supposed to be conducted as “adversarial” proceedings.  Quite the contrary, the goal is to reduce acrimony and adversarial approaches common to general civil litigation and, instead, to foster cooperation between the parties and their counsel with a view toward settlement short of full-blown litigation. [See Fam. C. §§ 2100 (b), § 271 (a) (sanctions for uncooperative conduct in family law cases); see also Cal. Atty. Guidelines of Civility & Professionalism § 19-‘in family law proceedings an attorney should seek to reduce emotional tension and trauma and encourage the parties and attorneys to interact in a cooperative atmosphere, and keep the best interest of the children in mind’]” Davenport at page 29-30 [emphasis in original].

The Family Law Court went on to warn:

“We close this discussion with a reminder to counsel-all counsel, regardless of practice, regardless of age-that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility… (Citations omitted) …Zeal and vigor in the representation of clients are commendable.  So are civility, courtesy, and cooperation.  They are not mutually exclusive.” id at page 33.

So the next time you want your lawyer to send a scathing letter to the opposing attorney, you might want to check your bank balance to see if you can really afford the consequences for so doing.

If you stay on the mortgage, you are obligated to make the payments to your mortgage holder, period. Even if your divorce judgment makes it clear that the party keeping the home must make the payments, this is not binding on your mortgage holder. They are not required, nor will they usually, take your name off of the loan obligation. Your mortgage bank wants to make sure they are paid and they have a better chance of that if they keep you obligated to repay the loan even if the house is no longer in your name. The only way out is to pay off the mortgage, which is usually done through a refinance or sale. But unless you have excellent credit and can demonstrate an ability to repay the loan, you are unlikely to qualify for refinancing in today’s tight credit market. And if, like many other people, you find that your home has no equity, or worse, negative equity, a sale will not help.

Even worse, if the home was refinanced or you live in a state that has recourse loans for any deficiency, you may still owe on the home after it is lost to foreclosure or sold for less than what is owed on the mortgage. Once your home is refinanced, the mortgage is no longer “purchase money” and protections from “anti-deficiency” laws will not apply. This also applies to equity lines and second mortgages. If your home is sold for less than is owed and your mortgage bank agrees to a “short sale,” thereby forgiving the balance that would be due to them, the IRS may tax you on the portion of the loan the bank has forgiven.

Any way you look at it, if you are obligated to pay for an asset that now belongs to your former spouse, you could find yourself in deep financial and/or credit distress through no fault of your own!

If you are thinking about allowing your spouse to keep the house without refinancing to remove your name from the obligation, you might want to think twice. At least, if you are going to take the chance and remain on the loan, have something written in your settlement/judgment that has a remedy if the other party fails to make the payment. It could save your credit, savings, job and perhaps your sanity if you hope for the best and plan for the worst.

Is it incurable insanity or just irreconcilable differences?

Incurable Insanity? Seriously. In California, there are only two grounds someone can site in seeking a divorce, and they’re (1) irreconcilable differences and (2) incurable insanity.

That’s been the law in California since 1970 when we became a no-fault divorce state. In other words, you can get a divorce simply because you and your spouse no longer get along or because he or she is insane.

As to the insane, it’s tempting, I know. But trust me, it’s a technical term and probably doesn’t apply to your spouse despite everything he/she does or says.

So why do I get an I-Pad “alert” eagerly telling me that when Maria Shriver filed for divorce from Arnold Schwarzenneger she cited “Irreconcilable Differences” as the grounds? Habit is my best guess. When we were a fault state, the cited grounds in celebrity divorce was a juicy tidbit of information. Why are they divorcing? Was it Cruelty? Abandonment? Adultery? Something else? You can see the gossip value in knowing why.

Now, even though the grounds is basically meaningless, the press insists on repeating the breaking news that “irreconcilable differences” was cited. Clearly, this is an example of institutional habit….unless they’re making the point that Maria doesn’t believe Arnold’s incurably insane? (Sorry. The incurable insanity comments bubble to the surface real easily.)

The next time you hear “irreconcilable differences” cited by the press, you can be the smart-aleck among your friends, exclaiming with sincere disgust, “Well, of course!! What else was going to be cited? Incurable insanity?” Most people (including the press, apparently) aren’t aware of this interesting piece of information. Share it and you’ll look sound really smart. And it might come in handy at your local pub quiz. You can thank me later.

More about divorce

Not a divorce party really, more of a friendship party.

After 6 years of marriage and 2 kids, Jack White (front-man musician of the defunct band The White Stripes) and his wife, Karen Elson, are getting a divorce. Know what else they’re doing? They’re throwing a divorce party.

Although I’m a divorce lawyer, I still tear up at weddings. When people ask me for help going through one of the most difficult experiences of their lives – divorce, I help them. But I’m not jaded about marriage and I don’t promote divorce. Having said that: Wow! I love the idea of White/Elson divorce party!

Jack White and Karen Elson aren’t really throwing a divorce party, they’re throwing a friendship party. In a joint statement, the two said:

“We remain dear and trusted friends and co-parents to our wonderful children Scarlett and Henry Lee. We feel so fortunate for the time we have shared and the time we will continue to spend both separately and together watching our children grow… In honor of that time shared, we are throwing a divorce party… An evening together in Nashville to re-affirm our friendship and celebrate the past and future with close friends and family.”

In the face of a difficult reality, Jack White and Karen Elson are at least starting off with acknowledgment, appreciation, and mutual respect for each other. If they can hold on to those feelings, despite their divorce, they will be giving themselves and their kids a great gift. I hope the spirit of their “divorce party” carries them through their lives and sees them dancing with each other at their children’s weddings. I’d raise a glass to that, any day.

Terminate jurisdiction of Maria Schriver's spousal support?

Arnold Schwarzenegger filed his Response to Maria Schriver’s Petition for Dissolution of Marriage on Wednesday stating he wanted the court to terminate jurisdiction to award spousal support and deny attorney’s fees to Maria.

While this may sound harsh, it is common in responding to a Petition for divorce for the responding party to check the boxes on the forms requesting the court to terminate jurisdiction to award spousal support to the other party and to ask the court to make the other party pay their attorney’s fees. This doesn’t mean it will happen however. It only means that the issue is now in play.

What are is chances for success? Since the couple had been married since 1986 and they had no premarital agreement, all of the proceeds from Arnold’s movies are community property and will be equally divided.

If it turns out that Maria has equal assets to Arnold’s and they both have the ability on their own to support themselves in the same manner as they did when married. It is likely the court would not order spousal support to Maria.

This is also true for each parties’ attorneys. Child support however, is a different matter. That will be determined by each parties’ income and the amount of time they each spend with their children.

Since Arnold just announced he will be returning to acting and has landed the role in the upcoming movie “Last Stand,” his income from that film will be used in determining his support obligation. Until the children are 18, even the “Governator” can’t be the “Terminator” of child support.

Filing the correct paperwork with the help of a family law professional can make the process much easier.

The Judicial Council of California produces forms to be used by self-represented individuals to help them accomplish their own divorce or paternity cases.

Knowing which ones to use for what purpose and how many to file to the court can be confusing and frustrating.

Going to a self help document drafting service where non-attorney personnel assist you can lead to disaster. When a lay person gives you advice on how to fill out these forms they are breaking the law and you are setting yourself up for frustration and disappointment.

Many lawyers, including Hammers & Baltazar Family Law, will assist you with forms and drafting pleadings on a flat fee basis, ensuring your documents are done right.

This technique of lawyers assisting pro per (self represented) parties is part of a service known as “unbundling” and is encouraged by judges and the State Bar of California because of the need for competent attorneys to help people with limited resources to complete their cases efficiently and correctly.

Self-Represented Support

Robin Williams and former spouse Marsha were wise enough to work with a California no-court divorce option called Collaborative Law.

Robin Williams protected his families privacy, and his dignity, with a collaborative divorce.

In 2008, while working out the final details of his 19 year marriage, Robin Williams told talk show host Ellen DeGeneres:  “I think a lot of times divorce can be like circumcision with a weed wacker.” Classic Williams, but how insightful.

California Family Code states “If a written agreement is entered into by the parties, the parties may utilize a collaborative law process…”

That means settling your divorce without the Courts with each party guided by a trained Collaborative Lawyer. Both parties control the final outcome, not an overworked Judge in a public Court proceeding.

‘The Collaborative Law process requires both parties as well as the professionals engaged by the them… to agree in writing to use their best efforts to make a good faith attempt to resolve disputes related to the family law matters on an agreed basis without resorting to adversary judicial intervention.”

Robin and Marsha Williams successfully settled their divorce using the Collaborative Law process.  So did Roy & Patty Disney (yup, the major shareholders of the Walt Disney, Co., estimated worth over $1 bill).  Madonna and Guy Ritchie were reportedly the first ones to use the process, and it’s believed that Tiger Woods and Elin Nordergen are also using it.

Here are five good reasons why Collaborative Law is helping smart couples avoid the emotionally destructive, unpredictable nature of the traditionally litigated divorce.

1. It minimizes harm to both parties and their children by working toward a guided agreeable resolution.
2. It gives the family control over the result – something you don’t get from a judge imposing orders.
3. Shared experts and the voluntary disclosure of information decreases costs and avoids court deadlines.
4. You maintain your privacy.  You never testify or step into a courtroom with Collaborative Law.
5. Dignity. Both parties conclude the process with their integrity and self respect knowing they did their best for their family.

If I were Arnold, I wouldn’t want to cause any more hurt.  I would learn from Robin Williams, and other smart, high profile families and request that the divorce proceed collaboratively. Who knows?  Maybe the former California Governor can make better decisions now with his divorce than he did in his marriage.

About the author.

Armine Baltazar Collaborative Law Attorney

Armine Baltazar is a trained Collaborative Lawyer offering creative alternatives to divorce.  Her goal is to resolve family law problems with minimum possible impact on a family’s financial and emotional well-being.

Armine belongs to several Collaborative Law organizations, including Los Angeles Westside Collaborative Divorce Professionals. Los Angeles Collaborative Family Law Association and the International Association of Collaborative Professionals.

Assets come in many forms

Some assets you rarely think about can be easily overlooked during divorce. Millions of dollars of assets are missed every year in property division calculations.

Make sure all of your assets are divided.

Sometimes in the division of assets in a divorce you can see the forest and forget the occasional tree. Make sure you don’t overlook valuable “trees” in accounting for everything that may need to be considered. Tell your divorce attorney if you have any of the items on the following list.

1. Security deposits- There may be a security deposit on the home or apartment you rented or there may be deposits paid that relate to other items like a lease on a business property, storage unit, or vacation package;

2. Frequent Flyer miles- Many of the airlines will allow the transfer of frequent flyer miles to another account or can place a monetary value on miles earned. In California, these are divided as “property” to the extent they can be valued. In the event they cannot be transferred, they can be given a value and off-set from other assets;

3. Time Shares- Because it is not real estate like a home, time shares can often be overlooked or forgotten. Be sure to include them in the property division;

4. Patents, Copyrights and Royalties- to the extent these were created or secured during the marriage or on which community property money was expended, they become marital property to be valued and considered in asset division;

5. Tax refunds- Are either of you owed a tax refund for a tax year in which you were still together? This is another item that can be easily missed;

6. Hobby or collections- Some people collect coins, stamps, baseball cards or even spoons from every state. Have these collections appraised. They may be more valuable than you realize. Hobby equipment like woodworking or other craft tools can also be very valuable;

7. Antiques, artwork, gun collections and tools can be easily overlooked or undervalued. Expensive furnishings, paintings or valuable rugs used at the office or to decorate a business need to be included;

8. Debt repayment from friends or family to whom you have lent money in the past;

9. Insurance policies- Some insurance policies have a cash value that can be a marital asset. Even some term life insurance policies pay a dividend which gives them a small cash value if liquidated;

10. Credit card points- Some credit cards have award points that can be redeemed for travel or other goods and some even pay cash rewards. Make sure your credit card statements are reviewed and document the reward points accumulated.

Failing to include all of your valuable assets may cost you thousands of dollars. Don’t be one of the divorcing couples who lose millions of dollars each year by simply forgetting to include all their assets! Make sure you alert your Family Law attorney to any other items that will need to be considered when dividing your marital estate.

Even though the court in California always retains jurisdiction to divide omitted assets in a divorce, going back to court can be expensive and stressful. Including everything will keep either side from gaining a windfall or losing out altogether.

Your documentation is very important, learn what records you need to photo copy to assure you are treated fairly.

Learn how spouses can hide income or assets and where to look to find them.

California courts have an obligation to divide community property equally. This can only happen if the court knows what assets there are to divide. There are laws that require both parties to disclose all of their assets, debts and income during the divorce process. However, not all spouses are forthcoming and there are some clever ways people find to hide income or assets, both before a divorce is filed and during the process. Here are a few ways you or your family law attorney can check for anything out of the ordinary that might tip you off to a less than candid spouse.

• Get copies of back tax returns from your tax preparer or the IRS from the last five years. If you get them from the IRS you will need Form 4506. You can usually get old returns from the IRS in a couple of months. Your tax returns will show interest deductions and interest earnings which can identify real property and interest bearing accounts or capital gains. Working with an accountant, you can get a breakdown of assets you hold based on what has been reported on old tax returns.

• Get copies of all of the records from any bank, brokerage firm, credit union, or other investment institution to check for unusual transactions. This might include large cash withdrawals, ATM transactions, the purchase of traveler’s checks, or checks written to friends or relatives.

• Check for accounts opened as a custodial account for a minor child using the child’s Social Security number. This is fairly common and is an easy way for someone to have an account they can use for deposits and withdrawals without detection.

• Obtain copies of credit card statements which will reflect previous spending habits and may show suspicious transactions which can lead you to assets purchased without your knowledge.

• Order your credit report. This may reveal accounts of which you may be completely unaware or other suspect activity that could raise the red flag as to what may be going on with finances. You can get a free credit report from all three credit reporting agencies once a year.

• Look for evidence of payments made to friends or family of your spouse. This can indicate money is being channeled to others for return at a later time.

• Look for any investment in bonds for which there would be no account statement such as certificate “bearer” municipal bonds or Series EE Savings Bonds.

• Be aware that there are severe penalties for a spouse that hides income or assets in a divorce. In one case, a wife hid the fact that she had won the California lottery from her husband and failed to reveal that fact to him during their divorce. After it was discovered, the court awarded 100% of the lottery winnings to the husband for wife’s deception! (Marriage of Rossi (2001) 90 Cal.App.4th 34)

If you are concerned that your spouse may try to hide assets, it would be wise to get as much information as possible before filing for a divorce or as soon as you know your spouse has filed. Make copies of important documents such as tax returns, bank account statements, insurance policies, business records, pay stubs, investment portfolios, credit reports and any other documents that show assets or debts while you still have access to the documents.

Keep the copies with a friend or relative outside your home if you’re still living together with your spouse or domestic partner. It might also be wise to open a separate account only you have access to and deposit some of your joint savings into the account. Although this account will have to be disclosed and the money accounted for, you will not be in the position of having your spouse remove money from your joint account cutting off your access to cash until your assets can be divided.

By documenting for the court what assets there are to divide you will help assure that  your community property will divided equally.