California Divorce Lawyer Blog

Those of us who practice divorce and family law in California for a living frequently hear our clients complain that their spouses have made one sort of threat or another... anything from "you'll never see the kids again" to "I'll make sure this divorce bankrupts you," and so on.

Thanks to San Diego family law attorney Paul Staley for his take on these threats, which he calls "urban legends" because they are frequently believed but mostly not true. I thought I'd share them here with readers of my blog because it is important to understand that these threats are, well... just threats. Keep in mind that there is a big difference between what your spouse says and what the Judge says. And guess which one is more important?

Here are the common urban legends per Attorney Staley:

1. "I'll quit my job before I pay you that much support." Not likely. This is usually an attempt to bluff you into a lower support amount. Ask your attorney whether you should "call" this bluff. Document the statement right away. Write down the date, circumstances and exact words used. Better yet, if the spouse sends this to you by e-mail or, in a letter, save it for use as evidence. Judges do not tolerate this kind of bullying and they can find interesting and painful ways to send that spouse the message.

2. "It doesn't make sense for us to be paying two lawyers; it's just a waste of money that we could otherwise keep. Let's just both use mine." Aside from the obvious conflict of interest here, the spouse making this plea wants to control you and the process by controlling how much advice and information you get. Don't fall for this. Good legal advice and representation may not be inexpensive, but often its value is priceless.

3. "You have no right to take what's mine away from me." Usually refers to a pension earned by the complaining spouse. The error is that it's not just his/hers: earned during the marriage, it belongs to both of you. Your request for half of that is fair and the law entitles you to it.

4. "I'm taking the children to North Carolina (or Texas, or some other place) and filing the case there." If the other parent makes this threat, and actually does move without your permission, it's time to get into Court quickly because they might actually get away with this, at least in part, if you wait too long to do something. There are different rules for which "jurisdictions" can do what, with regard to: children, property, and marital status.

5. "You'll never see the children again." Usually an attempt to get you to stay in the relationship. California law presumes frequent and continuing contact with both parents is a good thing, so this is seldom a legitimate threat.

6. "Your attorney is just running up your bill with all these documents he's demanding that I provide. Call him off." Any family law attorney is going to need to see documents which relate to your and your spouse's financial situation. Otherwise, the attorney can't advise you on what you should expect or demand. Trust your lawyer on this.

7. "You didn't work a day during our marriage, just stayed home and took care of the kids. Hell will freeze over before you get a dime of my retirement." Usually it's a husband who makes this threat, since stay-at-home moms still outnumber stay-at-home dads (about 4-1). A spouse making this threat has no power to make good on it, since the court can and will just order the employer directly to pay the stay-at-home parent.

8. "I'll go to jail before I pay support to you." Jail time is among several tools the judge has available to enforce a support order, but it's seldom necessary. This is a common bluff. For anyone with a paycheck, it's easy enough to extract support involuntarily, but most people just pay it.

9. "I'll only pay support if I know the money is going to the children. I want receipts for everything you spend that child support check on." California law does not require the supported parent/spouse to account to the other for how the money is spent. Period.

10. "If the court finds out how you've behaved, you'll never see the children." i.e., back off or the mud slinging begins. Family court judges aren't outraged by a lot of things your spouse thinks are outrageous: your promiscuity as a teenager, a several-years-past drug habit, infidelity, moderate drinking, etc. These are things which the judge realizes don't reflect poorly on your parenting qualifications, so he/she doesn't take them seriously.

11. "We'll do this like I say, or else...?" This legend is usually capped off with a threat of withholding money in the form of support and, sometimes, less frequently, a veiled or a direct threat of harm. The law exists to ensure justice and fairness as between adversaries of unequal strength, funding and sophistication. Attorneys work diligently to see that the law is applied to their clients' best advantage. This process works. Let it work for you.

12. "I'll litigate you into bankruptcy. I'd rather pay my lawyer than yours so don't expect me to compromise on anything." It is true, many spouses threaten this hoping you will give up and run. While this is unfortunate that people use such tactics, there are legal techniques to stop the spouse from going forward with this threat. A good attorney can push a case forward to trial. The court can sanction a delaying spouse employing these tactics, making them pay your attorneys fees.

Continue reading "Beware the Urban Legends of California Divorce" »

In two separate lawsuits heard by a federal court in Massachusetts, the federal Defense of Marriage Act (DOMA) passed in 1996 which defines marriage as "between a man and a woman" has today been deemed unconstitutional on two separate grounds.

The federal court held that DOMA interferes with a state's right to define marriage as it sees fit. It further held that DOMA violates the equal protection clause of the United States Constitution. Although this ruling applies only to Massachusetts for now, it could have wide-ranging impact across the country.

In particular, the finding that DOMA violates the equal protection clause will be closely monitored by the plaintiffs in a federal lawsuit in California alleging that Proposition 8, the law which defines marriage in California as between a man and a woman, is also unconstitutional. Plaintiffs in that case have argued that the California law is a violation of equal protection because it specifically seeks to exclude a target group of people of whom the voters disapproved.

It is expected that these two rulings will be appealed, but it is uncertain at this time how vigorously the Obama administration will attempt to overturn the court's rulings. Stay tuned, more developments are bound to happen soon.

Continue reading "Federal Ban on Same-Sex Marriage Found to be Unconstitutional" »

In a story reported by the Associated Press, a bill pending before the California legislature is intended to close a loophole in the state's "no-fault" divorce laws. Under California law, if you are convicted of murdering or attempting to murder your spouse, you cannot collect any financial reward from the divorce proceedings. But, if you hire a hit man to do it, the law is silent.

"It's just a glaring case where California law as it is now can reward someone who plans vicious murder," said Democratic Assemblyman Marty Block, who introduced the bill, AB2674. "In a way, the current law rewards the spouse for committing this kind of crime against the person they're married to or in the process of divorcing."

The full article appears below:

Calif. bill would target spouses who hire hit men
June 14, 2010|By CATHY BUSSEWITZ, Associated Press Writer

The story behind the legislation reads like a movie pitch.

The wife of a Southern California police detective, distraught because she had lost custody of her children, tries to hire a hit man from the Vagos motorcycle gang to kill him.

Instead, gang members alert police, who disguise themselves as biker thugs and secretly tape a conversation with her, leading to the wife's arrest and ultimate conviction for solicitation of murder.

But later on, in divorce court, she is awarded half the couple's property, even though she tried to have her husband whacked. He then calls Sacramento, determined to change the divorce law.

A bill scheduled to be heard Tuesday in a state legislative committee seeks to close what its author says is a loophole in the state's no-fault divorce code. In part, the legislation will specify that spouses who solicit the murder of their husband or wife are not entitled to collect financial rewards in divorce proceedings.

The bill was prompted by John Pomroy, a police detective in Pomona, about 30 miles east of Los Angeles. His wife collected about $70,000 from their estate after she was released from prison in 2004.

"If you commit arson on your house, you don't get the insurance money. You go to prison and all sorts of things happen to you," Pomroy said in an interview. "But if you try to kill someone that is your spouse, the current law allows you to collect something."

State law says that if spouses are convicted of murdering or attempting to murder their husband or wife, they are not entitled to reap any financial benefits during divorce proceedings. But if they hire someone else to do the dirty deed for them, their victims' assets are not protected.

The bill would amend the law to include husbands or wives who solicit the murder of their spouse.

"It's just a glaring case where California law as it is now can reward someone who plans vicious murder," said Democratic Assemblyman Marty Block, who introduced the bill, AB2674. "In a way, the current law rewards the spouse for committing this kind of crime against the person they're married to or in the process of divorcing."

Divorce laws vary from state to state. In California, a couple's shared assets are generally split evenly during a divorce.

That's the case in most states, said Krystal Callaway Jaime, supervising attorney for the Family Protection Clinic at the University of California, Davis.

"This bill is very, very necessary," Jaime said. "It seems obscure, but this does happen more frequently than people realize."

After being married for a decade, Pomroy said his marriage dissolved when his wife became addicted to pain killers after injuring her foot in a dirt bike accident. She later turned to alcohol, and finally illegal drugs, he said.

He said they separated when she became physically abusive. He lived in the basement of the police department for a month after moving out of the couple's house and later gained custody of their children.

When his wife faced losing the children and her husband's monetary support, she solicited members of the Vagos motorcycle gang living down the street. She said she wanted them to kill her husband while he was on duty, Pomroy said.

"I think she felt like she had to hurry up and get rid of me, because she was going to lose our sons," Pomroy said.

The San Bernardino County district attorney's office said Pomroy's ex-wife pleaded guilty to soliciting others to murder her husband in early 2003.

An official at the Central California Women's Facility in Chowchilla said Pomroy's ex-wife entered the prison in February 2003 and served time until she was paroled in March 2004. She was returned to prison twice since then and is currently on parole, said the official, who was not authorized to speak publicly but relayed the details of the woman's corrections department record.

Attempts to contact her were not successful.

Michael O'Brien, a Covina-based attorney who represented Pomroy's wife during the trial for solicitation of murder, agreed with the details of Pomroy's story.

But O'Brien said he doesn't believe Pomroy's wife was going to follow through with the murderous plot. He said she was broke, desperate and strung out after years of drug abuse, and couldn't afford to pay someone to kill Pomroy.

"She tried to steal a basket full of groceries for her family and got caught," he said. "She was at the end of her rope when these events took place."

During their separation, their house went into foreclosure and his wife said the cars were stolen, Pomroy said. His bank account, to which she had access, was drained. The only money he had left was in his pension account, and she was awarded half its value.

O'Brien said it was fair that Pomroy's wife got the money because she had supported him during the early years of their marriage by raising the children while he became a police officer.

But Pomroy, who still fears his ex-wife, disagreed.

"This Assembly bill is not going to award me anything retroactively; I'm not looking for that," he said. "I'm just trying to prevent some poor sap in the future who goes through this, to prevent him from losing his assets to somebody that's trying to kill him."

Continue reading "Hire a Hit Man, Lose Out in Your Divorce" »

Click Here For Official Press Release

Bay Area family law practice offers refreshing alternative to traditional divorce billing

Walnut Creek, CA – June 21, 2010 – Divorce is too expensive, fees are too unpredictable, and attorneys pad their bills to maximize profits. At least that’s the general sentiment shared by many divorce clients in California.

According to family law attorney Gary D. Sparks, there is a better way. Attorney Sparks, whose small family law practice has offices in Walnut Creek in the San Francisco Bay Area and in Vacaville just outside the Bay Area, is one of the first Northern California family law attorneys to forsake the traditional “billable hour” model in favor of flat fee (fixed fee) pricing for his clients.

“Many of my clients are concerned about their legal fees,” says Sparks, “and are worried that their family law case will put them into bankruptcy.” He continues, “More importantly, clients lay awake at night wondering how much their next bill will be, or how much that letter, phone call or email will cost. Flat fee billing removes the uncertainty from the process and gives clients the peace of mind and ability to know up front what their case is going to cost.”

Under the traditional hourly billing model, a family law attorney collects an initial retainer or security deposit – generally around $5,000 – and then bills against that retainer for every hour or fraction thereof. Then, some 14-15 hours later when the funds have run out, the attorney will demand to collect an additional retainer from the client. This cycle repeats until the case is complete, typically some $15,000 to $25,000 (or more) later.

On the other hand, under the flat fee model, the attorney quotes the client a fee in advance for the case, and that fee remains fixed for the remainder of the case unless some unanticipated event occurs. But even then, the attorney quotes the client a flat, fixed fee for that additional event. The base flat fee for an uncontested divorce begins at only $950, while the base flat fee for a contested divorce begins as low as $6,000.

Sparks explains, “The client’s base flat fee is based on several factors, including the size of the community property estate and whether or not there are businesses or professional practices to divide. To keep fees as low as possible, the base flat fee is quoted based on the assumption that the case will settle.” However, this is not always the case. “Sometimes a client needs to prepare a motion or defend against a motion and appear in Court. Other times a client may be deposed. Or the parties may need to seek the Court’s assistance with settlement. For each of these events, an additional flat-rate fee is quoted and applies.”

Flat fee pricing for family law cases represents a substantial value for clients and simplifies the process for both attorney and client. But it is important to understand the limitations of flat fee pricing ahead of time to avoid confusion and misunderstanding. Therefore, Sparks provides his clients with a detailed, comprehensive fee agreement that fully explains what is and what is not included.

Sparks concludes, “Clients are grateful that we are able to quote a fee for the case, giving them the assurance of knowing that everything necessary will be done to move the case forward and that the attorney is not doing unnecessary work or otherwise trying to maximize legal fees.”

CONTACT:

Gary D. Sparks
info@sparksfamilylaw.com
The Law Offices of Gary D. Sparks
2950 Buskirk Avenue, Suite 300
Walnut Creek, CA 94597
(925) 465-2500 or
(707) 398-6008

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Concerned about your legal fees? You should be. The fact is that working with an California divorce or family law attorney can be expensive. However it doesn’t have to put you or your family into bankruptcy, nor does it have to keep you awake at night wondering how much your attorney’s next bill will be. There is a better way.

INTRODUCING FLAT-FEE (FIXED-FEE) PRICING
I am pleased to announce that we are one of the first Northern California family law firms to offer flat-fee, fixed-rate pricing for both contested and uncontested divorces. Flat-fee billing removes the uncertainty from the process and gives you the ability to know up front and in advance what your case is going to cost.

In many cases, we are able to provide our clients with upfront, fixed fees for their cases. This includes uncontested divorces, basic and contested divorce settlements, and even court-based (litigated) cases in addition to our new online divorce coaching and flat-rate mediation plans. (We continue to offer traditional hourly billing for clients who prefer that option, and for those cases that simply do not lend themselves to fixed fees.)

Flat-fee pricing can provide peace of mind and has many advantages over traditional hourly billing. For one thing, it offers you the predictability of knowing in advance how much our services will cost without having to worry about the expense of each call, letter or email. It gives you the assurance of knowing that everything necessary will be done to move your case forward without the stress of wondering how much your legal bill will be each month. It permits you to be confident that your attorney is not doing unnecessary work or otherwise trying to maximize your legal fees.

OUR SERVICES INCLUDE:
- Consultations and Second Opinions
- Limited Scope Attorney Court Appearances
- Unbundled (A la Carte) Attorney Services – "Attorney Assisted Divorce"
- Uncontested Divorces
- Basic and Complex Divorce Settlements
- Court-based (Litigated) Cases
- Mediation Services
- Online Divorce Coaching
- Paternity, Annulments and Other Family Law Matters

Continue reading "Flat-Fee California Divorce Lawyer - A Refreshing Approach to Family Law" »

Over the past few years, much has been written about the impending death of the billable hour. And the trend does seem to be picking up steam. Divorce cases would seem to be particularly ripe for flat-fee (also known as fixed-fee) billing.

Many of us, myself included, have heard the horror stories about families either shocked by their final invoices or driven into bankruptcy as a result of a high-conflict, high-cost divorce case. But, what are the alternatives? And are the alternatives as good? Well, the answer is "yes," there is an alternative and "yes," the alternative is as good and in many cases is much better.

In the coming weeks, my office will begin to offer flat-fee divorce services for both uncontested and contested cases. Not every case nor every situation lends itself to flat-fee services, so I will continue to provide hourly billing as well. However, I am excited about the prospect of offering flat-fee services, and look forward to discussing the various options with my clients to help them find the best solution for their particular case.

Watch this space over the next few weeks for more information and announcements. Be sure to visit our new domains (once they're up and running, of course) at: www.californiaflatfeedivorce.com, www.bayareaflatfeedivorce.com, and www.sanfranciscoflatfeedivorce.com.

Continue reading "California Flat-Fee Divorce: A Viable Alternative Coming Soon" »

California homeowners beware: if you short-sold your home in 2009 (e.g. during your divorce) and received less for the home than what you owed the bank, you may be faced with a huge California state tax bill, according to KGO TV-7 in San Francisco.

Many of my divorce clients in the past two years have unfortunately found themselves in the position of losing their family home. In better economic times, the worst scenario usually involved selling the house and dividing whatever sales proceeds were earned. Nowadays, when neither party can afford the home any longer given the financial realities of divorce, and when the home is underwater, or worth less than what is owed on it, there are few options. Foreclosure is one of them, and short-selling is another.

In most cases, if a homeowner short-sells his/her house and the bank forgives the remaining debt, the homeowner is given relief under federal tax law. In other words, the IRS gives them a break. [Note: keep in mind that there are exceptions, and you should consult a tax attorney or an EA (enrolled agent) to investigate your own particular tax situation.] However, California has its own set of tax laws – some of them bizarre, others not so much. In 2007 and 2008, California homeowners were given the same state tax relief as provided under federal law, but this law has since expired.

A new bill has been sent to Gov. Schwartzenegger's desk extending the law into 2009, but the "Governator" has threatened to veto this bill because legislative leaders inserted an unrelated provision into the bill in an attempt to force the governor's hand. The legislature is now considering replacing the bill with another version that does not include the unrelated provision.

If the legislature and governor cannot resolve this dispute, then the debt which was forgiven by the homeowner's bank will be treated as taxable income under California law, even though it likely will remain tax free under federal law. This may cause a huge and unexpected tax burden for those homeowners, who should monitor the situation closely and plan accordingly.

For more information about California family law and divorce issues, please contact attorney Gary D. Sparks at (925) 465-2500 or (707) 398-6008. Or, send a contact request directly from the californiadivorcelawyerblog.com page you are currently viewing.

Finalizing your divorce either right before the end of the year or just after the new year can have serious tax consequences for you and your soon-to-be ex-spouse. That's because the defining factor for whether you can file as a married person or as a single person for a particular tax year is your marital status on December 31 of that year.

So you and your spouse have negotiated for months and reached agreement on all the disputed issues in your case. Or have you? All the papers are signed. All your financial declarations are served and filed as necessary. Everything is done... except you still have to submit that Judgment to the Court.

Before you rush out to drop off your Judgment at the courthouse, you should take some time to consider whether or not you want your marital status for this year for purposes of income taxes to be "married" or "single." For some people, this can have tremendous tax consequences. In some cases both spouses gain from becoming single, in other cases they gain by remaining married for one more tax year. And sometimes one gains while the other loses.

You and your attorney should have a conversation about whether or not to submit that Judgment to the Court immediately. Although you may gain from filing single for this year, some judges have been known to penalize a party who gains financially from this maneuver at the expense of the other party by equalizing the net returns (and sometimes by imposing attorney fees as sanctions).

One more consideration is the local rule in your county for submission of Judgments at the end of the year. Many counties set a deadline by which time all Judgments must be submitted if they are to be finalized that calendar year. Other counties are satisfied so long as the Judgment is submitted by December 31. So even if you and your spouse have decided to submit the Judgment immediately to terminate your marital status this year, if you live in a county with a deadline for submission, you had better know and comply with the deadline.

In a future posting, I will address a process for submitting a Judgment "nunc pro tunc", which is an exception to the above rule. In some cases a party can submit a Judgment and ask that the Court essentially back-date the Judgment to some point in the recent past. However, this is a tricky request with a number of legal requirements that must be met. In other words, don't delay submitting your Judgment and count on the Court granting the "nunc pro tunc" request to back-date your Judgment to 2009.

For more information about California family law and divorce issues, please contact attorney Gary D. Sparks at (925) 465-2500 or (707) 398-6008. Or, send a contact request directly from the californiadivorcelawyerblog.com page you are currently viewing.

OK, summer's over, school's back in session and it's time to get back to blogging. I saw this article in the San Jose Mercury News over the weekend about a California couple going through a divorce and thought it was quite interesting.

In many ways, the experience of the couple about whom the article is written is similar to the situation many of my clients find themselves in. Including the legal fees. When a couple is unable to work things out between themselves, or at least work things out in a collaborative, reasonable manner, it's not unusual for each party to spend $15K, $20K or $25K in attorney fees during a divorce. If not much more.

My recommendation for anyone considering a divorce is that both parties first consult with a competent family law attorney who is more interested in providing honest advice than making a sales pitch. Generally, these consultations are not free but will run somewhere in the neighborhood of $250 - $300. In the long run, divorcing parties will be better served with an attorney who tells them the truth and gives a realistic assessment of each party's rights AND obligations during divorce (as opposed to what they want to hear).

Then, after the consultations, the parties should sit down and try to reach agreement on as many of the issues as possible. If you can't reach agreement on all issues, that's okay, too, but at least you will have minimized the number of disputes the attorneys need to handle during the case (translation: less attorney fees).

For more information about California family law and divorce issues, please contact attorney Gary D. Sparks at (925) 465-2500 or (707) 398-6008. Or, send a contact request directly from the californiadivorcelawyerblog.com page you are currently viewing.

Clients going through the divorce process in California aren't the only ones who struggle to cope with the stress of a failed marriage. The attorneys do, too.

La Jolla family law attorney Steven Robert Liss was arrested this past Monday and charged with solicitation to commit murder, false imprisonment and spousal battery, according to the Los Angeles Times and the ABA Journal.

Liss was arrested after his wife, Karen, and other members of the community contacted police with information that he was trying to harm her. "The investigation revealed that on multiple occasions over the past several months, Liss sought the help of others to have his wife murdered," said San Diego police spokesperson Monica Munoz.

Since 1987 when he began to practice law, Liss' law license has been suspended twice as a result of client complaints that he failed to complete legal work on their behalf.

No amount of stress from a failed marriage can justify a person's attempt to murder his/her spouse. However, the stress caused by failed marriages and divorce filings can be quite disabling in some instances, and can lead parties to make less rational decisions than they would otherwise do when not under the influence of stress.

For this reason, I strongly advocate that parties seek individual counseling or therapy to learn how to cope with this stress when faced with divorce. Furthermore, I almost always recommend that parents additionally seek out "co-parenting counselors" to help them learn how to parent their children together in the new post-separation reality.

For more information about California family law and divorce issues, please contact attorney Gary D. Sparks.