Posted On: August 25, 2008

California Custody Battle Ends in 15-Years-To-Life Murder Conviction

Linux computer programmer Hans Reiser was sentenced on August 29, 2008 to 15-years-to-life in prison after confessing to the murder of his estranged wife, Nina, during a heated argument over custody of the couple's young children. The two had been embroiled in a contentious divorce case in Oakland, California, until Nina's mysterious disappearance in early September 2006.

According to the San Francisco Chronicle, Reiser turned down the prosecution's pre-trial offer of three years in prison in exchange for his guilty plea to voluntary manslaughter, opting instead for a full trial. That strategy backfired, and after the jury returned a guilty verdict to first-degree murder, Reiser plea-bargained the conviction down to second-degree murder in exchange for his leading police to the makeshift grave where he buried Nina's body and for waiving any rights to an appeal of the conviction.

Today, more and more husbands and fathers complain that they are the victims of fabricated accusations of domestic violence by angry and vindictive spouses or partners who take advantage of California's rather liberal standards for obtaining protective orders. The DVPA, or Domestic Violence Prevention Act [California Family Code §6200 et seq.] is intended to prevent the recurrence of acts of domestic violence and to provide some separation, in terms of both distance and time, 702559_broken_relationship_1.jpg between the parties involved sufficient to enable them to resolve the cause(s) of the violence. Men frequently complain that many of the women who apply for restraining orders or emergency custody orders under the DVPA are not seeking protection so much as they are seeking either revenge or some kind of an advantage during the legal proceedings. They argue that the applications for relief are filled with creative fiction as opposed to facts. I myself have had experience with cases like this involving malicious and groundless allegations. And not just by women against men, but also by men against women.

Unfortunately, however, the Reiser case illustrates that domestic violence is and remains a serious problem in California (as well as in other states), despite the allegations of ongoing misuse of the system. Nina Reiser wasn't just harassed or injured; she lost her life, the couple's children lost their mother, and her family lost a daughter.

As legal practitioners, we grapple with how to ferret out those cases where protective orders are warranted versus those that are shams. All else being equal, when two parties in the courtroom appear perfectly calm, reasonable and credible, we sometimes give our judges the nearly impossible task of trying to balance fairness and justice with protecting one of the parties – and maybe even children – from harm.

Yet one thing is clear: until we as a society learn how to deal with and prevent domestic violence more effectively than we do now, we will continue to struggle with this problem. Innocent parties will continue to be accused of horrible actions, vengeful parties will continue to make those accusations, victims will continue to be injured, and people like Nina Reiser will inexcusably and unacceptably continue to die.

For more information about domestic violence prevention and other California family law issues, please contact attorney Gary D. Sparks.

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Posted On: August 21, 2008

California Divorce Law Requires Immediate, Full and Accurate Disclosure

Divorcing parties in California sometimes have a habit of playing fast and loose with the facts and not properly disclosing information regarding their incomes, expenses, assets and debts to their spouses. Consider this a big warning shot across the bow.

The recent trend by the California courts to be more critical of whether divorcing parties have fully complied with their disclosure obligations makes one principle perfectly clear: when in doubt, disclose. While it is frequently done in other areas of law, the California family courts will not tolerate individuals who try to "hide the eight ball" during dissolution proceedings. And this is true for cases that settle as well as cases that go to trial. A party cannot knowingly and intelligently settle a case when s/he is not fully informed of the facts. Neither can the court render a proper trial decision when the Judge is not fully informed of the facts.

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In re Marriage of Feldman, a 2007 appellate case, has suddenly brought the issue of disclosure to the forefront in California divorce proceedings. Mr. Feldman, a successful businessman, failed to disclose to his Wife a number of substantial financial transactions, along with his formation of multiple new companies, despite her repeated requests for the information. The trial court was deeply troubled by Mr. Feldman's lack of candor, and ordered him to pay his Wife $140,000 in attorney fees and $250,000 in sanctions for his failure to disclose the facts.

The Feldman court made it clear that the penalties for failure to disclose can be severe and immediate. The other party does not need to show that s/he has been harmed, nor does s/he have to wait for trial to ask the court to penalize the non-disclosing party.

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California Family Code §§2100-2113 define each party's disclosure obligation as a mandatory, affirmative and ongoing duty. In layman's terms, this means that each party must voluntarily provide full, accurate and updated information regarding his/her complete financial condition. A party must disclose every asset and every debt, along with complete details regarding his/her income from all sources and monthly expenses. And, each party must voluntarily update that information anytime there is a material change.

While it may be tempting to consider hiding important financial information from your spouse, the potential consequences for failure to disclose are much more severe than the benefits. It simply is not worth the risk. Remember -- when in doubt, disclose.

For more information about disclosure obligations or other California family law issues, please contact attorney Gary D. Sparks.

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Posted On: August 19, 2008

California Annulment Erases a Marriage When Fraud Goes To The Heart of the Marital Relationship

In a surprising result, the California Court of Appeal has upheld a lower Court's decision to annul the marriage of a Southern California couple where Husband carried on a sexual relationship with Wife's sister prior to and after marriage. The Court held that Husband committed fraud by purposely deceiving Wife into believing he would be faithful to her, when in fact he did not intend to terminate his relationship with her sister.

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So what's the big deal about the Court granting an annulment instead of a divorce? Plenty. An annulment voids the marriage; it simply erases the marriage from existence as if it had never happened in the first place. On the other hand, divorce (or dissolution, as it's officially called) terminates a valid marriage. In other words, the marriage actually did exist, but has now ended.

Under California law, certain legal rights and obligations are triggered when two parties marry. The most common examples are community property rights and spousal support (formerly called alimony). Once a couple marries, all property acquired during the course of the marriage is presumed to be community property, meaning that each party has an undivided 1/2 interest in that property (there are exceptions, of course). Also, once a couple marries, each spouse has an obligation to provide support for the other, both during marriage as well as after divorce. Thus, a career working spouse may have the obligation to provide financial support to a stay-at-home spouse or parent for anywhere from a few months to an indefinite number of years after divorce.

However, in the case of an annulment, neither community property rights nor spousal support obligations ever arise, because there never was a valid marriage. Consequently, parties must then seek relief through the conventional civil courts based on, for example, real property or contract law.

Family Code §2210 permits the Court to annul a marriage when the consent of a spouse was obtained by fraud. Additionally, Family Code §720 specifies that the marriage contract includes obligations of "mutual respect, fidelity, and support." The Courts have previously defined the fraud necessary for annulment as deceit that goes to the very essence of the marital relation. In the above case, the appellate Court went so far as to hold that Husband's intent to carry on the sexual relationship with Wife's sister was a fraudulent and intentional breach of his contractual obligation of fidelity, and that Wife was therefore entitled to a Judgment of Annulment.

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

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Posted On: August 15, 2008

California No-Fault Divorce Has Its Advantages

Thank goodness California doesn't require a showing of marital fault to grant a divorce the way that New York state does. You need only look at the now-infamous YouTube divorce case to understand why.

For those of you who missed it, British actress Tricia Walsh-Smith lashed out at her Broadway-mogul husband Philip Smith in a tearful and furious video that she posted on YouTube. In her video, Mrs. Smith trashed her husband and his family, made embarrassing claims regarding the couple's intimate life, and even called his office while filming to repeat those claims to his stunned assistant.



Apparently, Mr. Smith wanted to divorce his wife and enforce a prenuptial agreement whereby he would pay her a large sum of money and she would have to move out of their luxury New York City condominium. This didn't sit real well with Mrs. Smith, who contested the divorce on the grounds that there was no marital fault to justify the divorce.

In New York, there must be marital fault for the Court to grant a divorce. If there is no fault, the couple must live separate and apart for a year, at which time they can apply for a no-fault divorce. In marital fault states, Courts can divide the couple's property unequally to compensate the party deemed not to be at fault. Or, Courts can refuse to grant the divorce, which can have the consequence of negating a prenuptial agreement.

California, on the other hand, requires no showing of fault whatsoever. In fact, the Family Code specifically forbids the introduction of any evidence intended to show fault. As long as one of the parties believes that the marriage is irreparably broken, and that irreconcilable differences exist that prevent the marriage from being saved, the family Court will grant the divorce. And, the Court will equitably divide the couple's community property between them. As a result, there are no Court battles about who is at fault or who should get more property because of that fault.

Oh, and in case you're wondering... the Manhattan judge hearing the Smiths' divorce case blasted Mrs. Smith for conducting what he called a "calculated and callous campaign to embarrass and humiliate her husband." He then granted Mr. Smith's request for the divorce on the grounds of cruel and unusual treatment. You can read more about the story at CNN or at Reuters.

For more information about no-fault divorce or other California family law issues, please contact attorney Gary D. Sparks.

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Posted On: August 14, 2008

Online Self-Help Available for California Divorce, Custody, Support and Other Family Law Matters

Are you a self-represented party getting ready to begin the process of divorce in California? Or a single parent seeking child support from your children's other parent? Do you have an attorney who's not speaking to you but instead is speaking at you, and you're overwhelmed and lost in the process?

The good news is that there are plenty of self-help and information resources available on the Internet. The bad news is that the resources on the Internet are not always reliable nor accurate. Pay particular attention to the source of any information you obtain online. Amateur attorneys are everywhere, and you have to sort out the reliable information from the hyperbole.

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Two of the best starting places are the self-help pages of the California Courts and the consumer information pages of the California Bar Association. If you're so inclined, you can even browse the entire California Family Code.

The California Department of Child Support Services has a very informative site for both parents, compete with an online child support calculator.

LawHelpCalifornia is a site dedicated to helping low-income families who need LegalAid or other help find the resources you need.

Finally, for families with children who are already divorced, separated or living apart, take a look at Our Family Wizard. While this is not a free service (it's a fee-based, subscription service), it provides families with an invaluable set of tools for managing shared communications, schedules and other or other information necessary for successful co-parenting relationships. In case you're wondering, I have no interest nor relationship whatsoever with the service.

Over the coming weeks and months, I plan to post more information about additional self-help resources. Bookmark this blog; or better yet, subscribe to one of the newsfeeds that are listed along the left side of your browser window.

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

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Posted On: August 13, 2008

California Couple Files for First Same-Sex Divorce

It was bound to happen sooner or later. It happened sooner.

Theresa Ramirez and Adelita Guajardo, a gay couple who were married in Fresno County on June 27, 2008, have filed for divorce. Ramirez and Guajardo filed for divorce on June 30, just three days after being married, and appear to be the state's first same-sex couple to file for divorce under California's recently expanded marriage laws. The story appears in the Sacramento Bee.

On May 15, 2008, the California Supreme Court struck down the state's ban on same-sex marriages, holding that marriage is a fundamental right under the California Constitution [In re Marriage Cases]. The Court ordered county clerks to begin issuing marriage licenses to same-sex couples starting June 16, 2008. Regardless of how you feel about the issue, and I recognize that feelings run deeply on both sides, same-sex marriage is now a fundamental right in the State of California. Within the state, same-sex couples are now afforded the same rights and opportunities as heterosexual couples. Likewise, they are also burdened with the same obligations.

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At the time of this posting, only Massachusetts and California recognize same-sex marriages, while other states (notably Vermont) offer civil unions that attempt to offer the same rights as marriage but under a different name. The federal government, however, specifically refuses to recognize same-sex marriage. There is an interesting commentary on the issue at FindLaw.

Opponents of the Supreme Court's decision have qualified "Proposition 8" for the November 2008 ballot. Proposition 8 is an attempt to amend the California Constitution to specifically exclude the right of same-sex couples to marry, thereby effectively circumventing the Supreme Court's decision. Proponents of Proposition 8 argue that the ballot measure is about "preserving marriage" and reversing the decision of "activist judges," and that it is not an attack on the gay lifestyle. Those opposed to the measure respond that government shouldn't be in the business of deciding who can and who can't be married, and that the issue is really about "equality, freedom and fairness, for all." More information is available from the California Secretary of State.

Ultimately, voters in the State of California will make the decision on whether they feel a ban on same-sex marriage rises to the level of a Constitutional amendment.

For more information about same-sex marriage and divorce, or other California family law issues, please contact attorney Gary D. Sparks.

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