California Divorce Weblog

What is Collaborative Divorce?

Our office is now offering Collaborative Divorce services. In a Collaborative Divorce case the spouses and their attorneys sign an agreement in which they commit themselves to resolving the issues in the divorce without going to court. The agreement further provides that if either spouse decides to litigate the case in court, both of the attorneys will withdraw from the case and will not be allowed to perform any further services in connection for either spouse.

The Collaborative Divorce process involves the assembly of a team of professionals who are all dedicated to achieving an amicable resolution of the divorce without going to court. In addition to the attorneys, the team includes four other professionals.

• Divorce Coach: Each spouse has his/her own mental health professional who functions as a "divorce coach," assisting the spouses to deal with the emotional issues in the case.
• Child specialist - a mental health professional who focuses on the needs of the children.
• Financial Specialist - an expert, such as an accountant or financial planner, who assists the spouses in creating household budgets and dividing the community property.

A Collaborative Divorce differs from the traditional litigated divorce in several important respects:

• A Collaborative Divorce can usually be completed in a few months. A typical litigated divorce takes between six and eighteen months to complete, sometimes longer.
• A Collaborative Divorce usually costs between one-third and one-half the cost of a litigated divorce
• The spouses in a Collaborative Divorce case use joint accountants, mental health consultants, appraisers, and other consultants, instead of hiring their own separately retained experts.
• At the end of a Collaborative Divorce the spouses are more likely to retain goodwill and respect.
• The feelings and desires of the children are considered throughout the entire process.

Governor of Arkansas to Enter into Covenant Marriage.

Two couples who have been together for a very long time have put marriage back in the news, and I'm not talking about the product-placement extravaganza of the Trump nuptials in Palm Beach.

I'm talking first about Little Rock, Ark., where, on Monday, Gov. Mike Huckabee, who's contemplating a run for president, and his wife of 31 years, the former Janet McCain, entered into what's known as a "covenant marriage." The Huckabees' new, improved marriage differs from their previous one in that they agreed to undergo premarital counseling and have vowed to seek divorce only on grounds of near-biblical proportions.

Second, I'm talking about London, where, in a demonstration of romantic, not moral, values, 56-year-old Charles, the Prince of Wales, announced that Mummy had given him permission to make an honest woman out of his 57-year-old paramour, Camilla Parker Bowles.

In both cases, the marriages ratify relationships that have been underway for decades, but otherwise they appear to have little in common. The Huckabees, who lived in a double-wide trailer while waiting for the governor's mansion to be renovated, held their ceremony in a local sports arena. Gospel singer CeCe Winans performed. The bridegroom wore street clothes, the bride a red dress. Private donors covered the $65,000 cost. The crowd erupted in cheers when the Pulaski County clerk stamped the license, making it all official.

By contrast, Charles, who divides his time among his many palaces, will marry Camilla, a divorcee, for the first time after more than 30 years of pining. Camilla, who lives discreetly with Charles at Clarence House, where the prince performs his official, and apparently other, duties, never stopped believing that her prince would come despite his marriage to the virgin princess Diana (apparently under orders from his family).

Although the Church of England was founded on the principle that kings shouldn't have to behead their wives to remarry, the marriage at Windsor Castle will be a civil ceremony. The archbishop of Canterbury, who supports the union, will preside over a private service of prayer and dedication that will follow. Though some conservatives are outraged, most in the British establishment are relieved that the prince, who may yet be king and, therefore, Defender of the Faith, will not be living in sin.

The Huckabees' intent is to shore up the beleaguered institution of marriage (although it seems so unfair that some people can get married twice and some not at all) as well as jump-start their own political fortunes. Their hyped public display gives covenant marriage a boost (it hasn't caught on since it was adopted into law in Arkansas in 2001) and successfully captured the attention of the Christian right as well as mainstream media hungry for a fresh angle on Valentine's Day.

Rather than just being a governor of a Bible Belt state with a divorce rate, embarrassingly, higher than Massachusetts', Huckabee is now the proud leader of one of only three states to super-size marriage. If moral values helped President Bush win the White House, why not Gov. Huckabee?

But in the end, I suspect, Charles and Camilla are likely to do a lot more than Mike and Janet for the institution of marriage, for the simple reason that their wedding is for them, not us. The Huckabee marriage is like Charles' first — pitched to a gullible public for maximum effect. The prince could have sent a cardboard cutout of himself to St. Paul's Cathedral for the fairy-tale wedding to the young, callow Diana. She wanted so much to be a princess she overlooked that the bridegroom loved another woman. He was a jerk and can't make amends to her, but he can to Camilla and to himself, by doing what he should have done to begin with.

To the generation that swooned over the mile-long train and horse-drawn carriage, this bony-kneed couple is creating a far less glamorous but far more resonant fairy tale — one that reflects just how messy and complicated life and marriage can be. In this new Cinderella story, Camilla can almost be forgiven for giggling like an adolescent as she held out her engagement diamond for the world to see.

On April 8, I will follow this wedding just as I did the first, knowing that the prospects are much higher this time that the bride and groom will live happily ever after.

-Margaret Carlson, Los Angeles Times, February 17, 2005

Spyware evidence rejected from divorce battle

A Florida appeals court has refused to allow a woman to use evidence obtained by illegally planting spyware on her husband’s computer to support her case in their bitter divorce proceedings.

Beverley Ann O’Brian installed a surveillance program called Spector on the computer used by her husband James. She obtained transcripts of private on-line chats between James and another woman with whom he was playing Yahoo Dominoes, according to court papers.

The Circuit Court for Orange County, Florida, found that evidence obtained in this way could not be used in court because it had been intercepted – an offence under federal wiretapping regulations and the Florida Security of Communications Act 2003. It banned Mrs O’Brian from using spyware in the future and from disclosing any information obtained from the surveillance.

Mrs O’Brian appealed, arguing that the evidence should have been admissible, as it had been obtained by copying information stored on the computer, and not through the interception of electronic communications.

Spyware comes in various guises. It can be a program downloaded to a computer, or a hardware device plugged into the back of the keyboard; but in general terms it is a device that can record e-mail messages, chat room conversations, passwords and any other computer activity.

In this case the software took snapshots of the computer screen. The question for the appeals court was whether the surveillance amounted to an interception or, as Mrs O’Brian argued, was merely the retrieval of information stored on the computer.

Giving the ruling on behalf of the three-panel court, Chief Judge Thomas D Sawaya said that there had been an interception.

“The federal courts have consistently held that electronic communications, in order to be intercepted, must be acquired contemporaneously with transmission and that electronic communications are not intercepted within the meaning of the Federal Wiretap Act if they are retrieved from storage,” wrote the Judge.

In this case, he said, the software intercepted the communications as they were transmitted. The fact that the data sent was of a screen snapshot did not mean that it had been stored by the computer.

“We do not believe that this evanescent time period is sufficient to transform acquisition of the communications from a contemporaneous interception to retrieval from electronic storage,” he explained.

As it is illegal to intercept electronic communications, the lower court was therefore entirely within its rights to refuse to accept the evidence, said the court.

New Family Laws for 2005 (Part 1)

SOCIAL SECURITY NUMBERS IN COURT PAPERS

Added:   Family Code §2024.5

Existing Law:   Social security numbers of persons involved in a dissolution action are to be kept in the confidential portion of court files.

New Law:   Either party to a family law matter can delete his or her social security number from court papers. However, social security numbers cannot be deleted from forms created for the purpose of collecting child support or spousal support.

SEALING OF PLEADINGS CONTAINING FINANCIAL INFORMATION

Added: Family Code §2024.6

Existing Law: The court has the discretion to seal part or all of a court file. For example, the judge can order a child custody evaluation sealed.

New Law: When requested by a spouse, the court "shall" seal any pleading that ". . . lists the parties financial assets and liabilities." This request can be made on an ex parte (emergency) basis by either spouse. Commencing July 1, 2005, the ". . . form used to declare assets and liabilities of the parties. . ." is to be amended so that the party filing the form can indicate if it contains identifying information regarding assets and liabilities listed in the form. If a spouse requesting sealing files a pleading that is not a Judicial Council form, the pleading must state - in capital letters - that it lists and identifies financial information. The term "pleading" includes any ". . . document that sets forth the parties’ assets and liabilities, income and expenses, a marital settlement agreement that lists and identifies the parteis’ assets and liabilities, or any document filed with the court incidental to the declaration or agreement that lists and identifies financial information."

Comment: Three significant points are evident from this new code section:

1. It applies only to actions for dissolution of marriage, legal separation and nullity. Thus, it does not apply to paternity actions, even though parties in those actions have to file income and expense declarations when child support and attorney fee issues are being considered by the court.

2. The court does not appear to have any discretion in deciding how to rule on the request for sealing. The statute says that the court "shall" (i.e., is required to) order the applicable pleadings sealed.

3. Even though not specified, judgments that list assets and liabilities appear to be subject to sealing orders.

DRUG TESTING IN CHILD CUSTODY CASES

Added:  Family Code §3041.5

Existing Law:   The court can consider the habitual or continual illegal use of controlled substances, as defined, or continual use of alcohol by either parent in making a determination of the best interest of a child in child custody proceedings.

New Law:   Any parent who is seeking custody  or visitation with a child who is the subject of the proceeding, can be required to undergo testing for the illegal use of controlled substances and the use of alcohol under specified circumstances. Results of this testing is to  be confidential. The test results cannot be released for any purpose, except to assist the court in determining the best interest of the child and the content of the order determining custody or visitation.  Any breach of the confidentiality of the test results is to be punishable by civil sanctions not to exceed two thousand five hundred dollars ($2,500).

EMPLOYERS PROHIBITED FROM DENYING PROMOTIONS TO EMPLOYEES WHO ARE SUBJECT TO WITHHOLDING FOR CHILD OR SPOUSAL SUPPORT

Amended:  Family Code §5290

Existing Law:   Employers are prohibited from using a child or spousal support wage  assignment order as grounds for refusing to hire a person or for discharging or taking disciplinary action against an employee.

New Law:   Employers are also prohibited from using an assignment order as grounds for denying a promotion to an employee or for taking any other action adversely affecting the terms and conditions of employment of an employee.

Marriage of Riddle discusses calculation of child and spousal support

In re Marriage of Riddle
(2005) CA4 4th DCA Div. 3, Justice Sills
Orange County, Judge Polla

Summary                                                                                                   The calculation of income for determining child and spousal support orders must be based on fair and representative sampling period. "Income," as defined in the Family Code, is not synonymous with cash flow. Income can be imputed only where there is evidence justifying imputation. The fact that Husband earned a certain level of income in the past does not necessarily mean he will earn it in the future.

Facts
Husband was a commissioned financial advisor for a major investment firm. Prior to separation Husband received a $1 million advance as an inducement to come to work for his current firm. Husband received the $1 million before the date of separation and the parties proceeded to spend it. For tax purposes the employment arrangement provided that Husband would be required to "repay" the advance, with interest, on a monthly basis. Simultaneously, Husband would be "foregiven" the loan by the employer in an amount equal to the installments. Wife filed an order to show cause requesting pendente lite child support and spousal support.

Services Provided by the Law Offices of Glen L. Rabenn

THE COMPLETE FAMILY LAW OFFICE

Family Law deals with especially sensitive issues that can have life-long emotional and financial effects. It is a specialized area of law, requiring specific training in negotiation and litigation skills, taxation, property and business evaluation, as well as a knowledge of constantly changing rules and procedures.

The law office of Glen L. Rabenn is devoted exclusively to the practice of Family Law. With more than 32 years of hands-on experience, Mr. Rabenn offers a comprehensive understanding of the legal and human issues involved in all areas of Family Law

Family Law Litigation

We provide our clients with vigorous representation at all stages of a family law case. In a divorce or other family law matter clients often need immediate action to protect their rights or the interests of their children. In other cases, the client’s spouse might be hiding assets or understating income. Our office is experienced in dealing with these situations in a swift and effective manner by employing the following strategies:

* Next day filing of a dissolution of marriage case.

*Obtaining emergency restraining orders.

*Serving subpoenas on banks and other financial institutions.

*Depositions of the other spouse and witnesses.

*Preventing the other spouse from disposing of or borrowing against real estate.

*Preventing the other spouse from removing minor children from the state.

*Obtaining orders protecting our clients from domestic violence, including excluding the other spouse from the family residence.

Collaborative Divorce

Our office is now offering Collaborative Divorce services. In a Collaborative Divorce case the spouses and their attorneys sign an agreement in which they commit themselves to resolving the issues in the divorce without going to court. The agreement further provides that if either spouse decides to litigate the case in court, both of the attorneys will withdraw from the case and will not be allowed to perform any further services in connection for either spouse.

The Collaborative Divorce process involves the assembly of a team of professionals who are all dedicated to achieving an amicable resolution of the divorce without going to court. In addition to the attorneys, the team includes four other professionals. Each spouse has his/her own mental health professional who functions as a "divorce coach," assisting the spouses to deal with the emotional issues in the case. There is also a "child specialist" - a mental health professional who focuses on the needs of the children. The final member of the team is a financial specialist who assists the spouse in creating household budgets and dividing the community property.

A Collaborative Divorce differs from the traditional litigated divorce in several important respects:

*A Collaborative Divorce can usually be completed in a few months. A typical litigated divorce takes between six and eighteen months to complete, sometimes longer.

*A Collaborative Divorce usually costs between one-third and one-half the cost of a litigated divorce.

*The spouses in a Collaborative Divorce case use joint accountants, mental health consultants, appraisers, and other consultants, instead of hiring their own separately retained experts.

*At the end of a Collaborative Divorce the spouses are more likely to retain goodwill and respect.

*The feelings and desires of the children are considered throughout the entire process.