Who this Blog is for:
Everything in this blog is to try to help you win your family law case. Actually, more specifically stated, everything in this blog is to help you win particular issues in your divorce, child custody fight, spousal support disagreements, or family law property division and disputes. I am giving this blog literally everything I know. My intention is to start this blog with writings, add downloads (for a fee), add a FAQ of important questions readers ask me, and ultimately, add video content that walks you through how to find and fill out certain forms.
I have been at work on a book that is essentially the layperson’s guide to the California Family Code – it is called tentatively “Better Divorce: A handbook for Surviving the Worst Time in Your Life.” The word “Bitter” is in the title, but it’s crossed out and the word “Better” takes its place. See what I did there? It’s meant to be a little bit cute. But it is also meant to be a storehouse of actually useful, actual information. The book, like this blog, is written from the perspective of the high-earner (at least sort of – because the low earner can use the strategies too).
Back when society was more gender-stratified, I would have said the blog/book is written from the perspective of the man/father/husband. But in the current era, where women are outearning men just as often as men are outearning women (and men are playing a much larger role in child rearing), I think of the blog as helping people who are going to pay child and spousal support understand (and maybe even reduce) their obligation, helping people who have less custodial time with their children get more custodial time with their children, and helping those who brought property to the marriage, leave the marriage with that property. It is designed to help people keep their pensions (even if they have to trade the house to get them), to negotiate support that they are going to be paying to an amount they can live with, and to encourage strong, but reasonable settlement positions. It is also written to help you give up worthless positions and take meaningful positions so that you can get through the divorce as quickly as reasonably possible, because there is value to being done, a lot of value, more value than anyone will ever explain to you. Get it our divorce done fairly, quickly and completely. Do it. Don’t mess around fighting and fighting and fighting.
That said, this is also advice for those who need more support, need their ex to have less time with the children (for any good reason) and for those who feel that inherited property was inherited by both parties, but you need to play out this advice in reverse.
Old Joke:
Q: How can you tell family lawyers and chameleons apart?
A: The Family Lawyers have briefcases.
Bah-dump-bump.
But there is truth in this old joke. It is not uncommon at all for me to have four cases on calendar on a given family court day and make one argument in the first appearance and exactly the opposite argument in the third (I try not to switch arguments one case to the next, but sometimes it cannot be helped).
4 Personal “Leanings” of this Blog and Blogger:
I should be clear from the outset that there is no magic bullet in family law.
1)You have to pay your support. High earners pay support to low earners – both spousal and child support. They should feel good about paying that support rather than trying to fight it at all costs. It’s the right thing to do. I think it shows commitment to parenting to pay support for your children. It’s something to be proud of. But you should definitely pay only what you owe and not a penny more. This blog is not about how you can avoid a support obligation when you are the high earner and you see your kids on alternate weekends. It is also not about how you can get out of paying alimony after a 30-year marriage. But, I reiterate, you should understand and take advantage of every single support variable that can reduce your payment to exactly what the law requires of you.
I hope I do not have to repeat this too many times, but: please pay the support you owe on time at the same time every week, two weeks or month. Your ex-spouse depends on it. Your children depend on it. When you destabilize your ex-spouse and children financially, you make them make difficult decisions, like moving a new boyfriend in earlier than they may have wanted or wanting to move to Temecula with their parents. Paying support means keeping your kids stable. You can’t complain that you your ex uses the money on nails and hair or sugar-food or travel. It’s your ex’s money to spend how they see fit. And you still have to chip in for shoes, soccer fees, and school clothes. Having kids is expensive. Being divorced is expensive. I can almost promise that after the gut-punch that is your first support payment, it gets better and most high-earners recover financially in about 18-24 months. I will explain more later.
2) Shared Parenting Time. I believe firmly in shared parenting time. I think children are better off knowing both of their parents well. If mom dies tragically, Dad will be the only parent who will raise the children. The only parent. Alienated parents don’t make kids available to grandparents or aunts and uncles. They move the kids out of state. They change last names.
More than that, I think there are so many arguments between parents about kids needing structure, kids having one parent who does their homework more with them, kids eating too much sugar, kids needing to sleep in their “own bed” every night. All of these arguments, to me, are just justifications by the parent wanting the lion’s share of the time with the children. Kids need access to and substantive time with both parents. I think it’s their right to know each parent for who that parent is, unless there are drugs, crimes, violence or mental illness issues that would lead to possible harm to the child. If those are present, that is what I mean by a “good reason” as I mentioned above.
Even if shared parenting causes problems for children into adulthood or messes with their grades – non-shared parenting will do these things too. In other words, what is made up for in stability, organic foods, and Star Wars sheets is lost in relationship with the other parent. The psychologists do not know what is better or worse for kids. The reality is that divorce is tough on kids just like it is tough on their parents. The answer is not to stay married – the kids would hate that too – the answer is to reduce harm to the children as much as possible and to me the very best way to do that is shared parenting.
3) The 3 Family Law Property Rules:
- Anything you had before marriage or got after separation is separate property;
- Anything you got during the marriage is community property;
- Except inheritances and gifts, which are separate property.
From these basic three rules you can derive the correct answer for the division of any type of property: community property houses with separate property contributions (i.e., a gift of down payment from the parents or grandparents); separate property houses with community property contributions (i.e., Wife owns house before marriage and community pays the mortgage during marriage); pensions and annuities that are part separate and part community property (i.e., Husband keeps pre-marital contributions to his pension plus any gains on that portion during marriage and splits all marital contributions plus gains or losses on that portion); anything that has a value can be split, no matter its value and no matter whether the interest can be split.
There is actually a fourth property “rule” but it’s not enshrined in the law like the other three. The fourth is that the person who values something the most or uses it the most (like vehicles, tools, guns, antique collections, beanie babies, figurines, books, etc.) should get it, regardless of value (you aren’t going to throw value away, you are just going to ensure that the person who wants it the most has the opportunity to get it – Wife is not going to take Husband’s coin collection, just as Husband isn’t going to take Wife’s beloved 1972 work truck).
The beauty of the 3 (4) Family Law Property Rules is that everyone understands them, once they play around with them a little.
4) Don’t Mediate. The fourth major conceit that I have about the family law is that if you are mediating, someone is getting taken advantage of. Mediation is not for the faint of heart. I believe firmly in settlement. In fact, you should settle every single case (with certain exceptions). But I do not believe in mediation as it is currently practiced.
This position will get me run out of a lot of important meetings of important family law lawyers and judges – or they won’t invite me to the next meetings. Everyone wants people to mediate. Talking badly about family law mediation is the surest way to people thinking that you are a jerk. Talking badly about Collaborative Law is almost even worse. I won’t spend a bunch of time attacking mediation and Collaborative Law, but I will say a few words about it below. Suffice it to say, I believe that you should always settle your case without a trial, but you must know the law and what a Judge who follows the law will likely do, what the range of expected outcomes is if you litigate and what you are willing to accept in a negotiation. Knowledge is power.
Bargaining in “the shadow of the law” is the way to settle your case. The law makes an appearance and stays with you, but always avoid spending your money and stress on litigation. Let them know that you can take it away from them at trial and settle your case. For God’s sake, settle your case. That’s the surest way to make sure that a judge doesn’t decide to make some crazy order that ignores the law. It’s the surest way to make sure you get the things you want most. It’s the surest way to cure reading internet blogs in the middle of the night. It’s the surest path out of the hell that is divorce and child custody fights.
A word more on that, if you will indulge me. Mediation is usually two spouses, completely clueless about the law, sitting in a room with a third person. These two people know how to get under each other’s skin emotionally and mentally; normally, one spouse is dominant. The dominant spouse uses loud voices, threats of physicality, demands without backing down, tears and crying, yelling, guilt and/or shame to get what they want. They work the other spouse. They pick at them. They cry at them. They use fear of falling into poverty. The threaten to take away the children, to “go work at Taco Bell” (as if they’d hire such jerks at the Bell), or to “go on disability.” They shame each other, extort each other and extort and shame each other (“I’ll tell everyone about the affair…, “….about your porn addiction”; “…about your pill addiction”; “…about how you were never home”; “….to change the children’s last name and move them to Solvang”). They alienate adult children (this is almost the worst – there is no punishment for a parent getting the adult children on their “side” and adult children have almost endless power).
Then there is a third person who is totally untrained in dealing with high-emotion, high-conflict situations. They aren’t therapists. They are human beings, usually former litigators. Litigators tend to see the world as “us versus them.” They can’t help themselves. They try not to pick a side, but they do pick a side. you have no idea if anything you agree to is supported by the law and no clue whether you would win at trial. The mediator knows the law, but won’t tell the spouses what the law is (it is literally the only upper hand the mediator has). The mediator asks the spouses what they think is fair. The mediator won’t tell either party the odds of winning, say, 50-50 custody of a 1-year-old or the chances they won’t have to pay spousal support after a 30-year marriage. The mediator will entertain asinine ideas sometimes for months in an attempt to get to a mediated resolution. Normally, stronger, more demanding personalities win in mediation.
The same is true twofold for Collaborative Law, where instead of there being a mediator, now there are two lawyers and no threat of litigation.
In my view, parties should always try to settle their cases, but they should come from a place of strength. They should know the law. They should know their odds of winning certain arguments: for example, q reimbursement request for improvements made on separate property with no receipts 15 years ago is a tough win to get (that doesn’t mean you should not assert it, it just means you should not let it keep you awake at night), while a 50-50 custody request of a 12-year-old and a 10-year-old may be matter-of-course in certain jurisdictions. Those two things usually should not be traded against each other.
I try to figure out what it is my client wants the most. There are two ways to “win” the divorce – the first is to end up with more than 50% of the assets and the other is to end up with the share of assets you want most, whether that is 50% or not. If you want the house, play for the house and trade things that you don’t care about to get it. If you are young and good-looking, don’t fight for long-term spousal support orders, chances are you will remarry and it won’t matter anyway (because spousal support terminates upon remarriage).
Goals of this Blog
With those four personal leanings, this blog has some ambitious goals. First, I am going to excerpt chapters from a book about the family law system that I have been writing. The book will have more detail and contain more illustrations, but the text here, as I develop it, will cover the same areas of the law and hopefully do so in a way that is understandable and intelligible so that if all you do is read the blog you will have a good idea of the basics of the law.
Secondly, I will be making legal briefs available for purchase and download. They will be moderately priced – usually you can figure that the client who originally paid me to draft the brief, paid on the order of $5,000-$7,500 for the research and writing (and the all-important analysis of facts and law together). These motions and briefing will be available for $50-$100 (depending on the amount of research and writing that went into them) as downloadable Word documents that you can modify to fit your own facts in with the law. I think the legal analysis (using your facts with the law) is the hardest part, but the research is usually also beyond the reach of most laypeople trying to represent themselves in a divorce and for $50-$100 you are a long way toward meeting your goals. Further, no lawyers will ever sell these to you without you paying a $5,000-$10,000 retainer. I make them available to you relatively inexpensively as a Word document so that you can modify them to fit your needs.
To be clear, downloading one of my briefs DOES NOT MAKE ME YOUR LAWYER. I am putting that in all capital letters to make it clear. But, you can pay for some of my time to consult on your case with you (by “consult” I mean: strategize, confer, counsel and/or write briefs and declarations in your name for you).
Thirdly, I will teach you about how to draft your own declarations. Family law is still a declaration-driven discipline even though the case of Elkins v. Superior Court(2008) and Family Code section 217 require that family law parties be given an evidentiary hearing or trial on the issues they bring to court. Knowing how to present yourself, how to conduct yourself in the courtroom, how to ask for what you want, and what to say to the court is as important as anything in your court case.
Fourth, this blog will eventually tell you what to expect in court, how to call a witness, how to cross-examine witnesses (sort of, this is actually quite hard for experienced practitioners as well), how to get documents into evidence, and how to keep your composure against evidentiary objections by opposing counsel, including laying a foundation for documents and trying to think of ways to overcome evidence problems. I am going to build out the blog focusing on the family law specific issues, starting with the issues that are usually the most important to family law parties. Then I will cover the how to present yourself and what to expect. Then, I will cover the more esoteric issues in family law.
Finally, if I can figure it out, I will do some video blogging (short YouTube tutorials on how to fill out California Family Law forms that you can find on the Judicial Counsel website for free).
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