Recent Blog Posts in 2008 |
| 21 posts found. Viewing page 1 of 1. |
| December 23, 2008 |
| Do Divorce Rates Drop During Bad Times? |
| Posted By Donald P. Schweitzer |
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A San Francisco reporter recently wrote that today's bad economic times are causing a downward trend in the amount of divorces filed within the United States. I have no idea if this claim has any validity, but I can report on my personal observations while practicing family law in Southern California.
Overall the number of consultations and new clients my law firm has had during 2008 was significantly larger than past years. However, I did notice a slow down during September and October, which corresponds to the time when the banking institutions were in distress. After October, things sped up and my law firm is back to business as usual.
An informal poll I took at a recent bar meeting revealed that most family law attorneys in my geographical area have experienced a similar slow down. I have also noticed the court dockets are less crowded, which is nice as it allows our clients to have more time in front of the judges.
So there you have it, my unscientific report on the supposed decrease in divorce filings!
While researching this issue, I found numerous articles reporting on studies that have shown that the amount of divorces increase during recessions. Thus, it remains to be seen if the current economic problems will cause a rise in the divorce rate in the United States, or if many couples will decide to stay together and weather the storm. My experience tells me that the recession is causing some to divorce, and others to hang in there. Based on historical evidence, however, I also believe that any change we may see in the amount of divorce filings caused by this economy, will be slight.
Why Recessions Cause Some to Divorce and Some to Stay Married
The experts who claim that recessions cause more divorces, rely on the theory that poor finances leads to additional stress, which causes depression. And nobody likes living with a depressive personality! Some experts also opine that without a money cushion, couples are left with the bare bones of their relationships and sometimes that's not so pretty to look at. Once they realize what the relationship actually is at its core, many want a divorce.
The experts who believe the recession is causing a decrease in divorce filings assert that people wanting a divorce know that the costs and fees associated withdivorce litigation can be steep, as well as the costs associated with setting up separate households. People also know that the loss of jobs and the depreciation of assets mean that there will be less to go around when the divorce takes place. This obviously means that child and spousal support orders are going to be less than what would have been expected a year ago.
But I disagree with all of those who entertain the notion that the recession is going to have a long term effect on keeping marriages in tact. Most family law attorneys, including myself, will tell you that when a relationship is over, it is done! In most cases, any delay in filing for divorce because of the recession will only be a postponent of the inevitable.
Wisdom of Not Going Forward
In the end, holding off on going forward with a divorce during tough financial times may or may not be a wise decision, depending on whether or not you are the bread winner, how irresponsible the other person is in accumulating debt, and most importantly, if there has been a history of domestic violence. But under no circumstances would I recommend people stay together where there is domestic violence, emotional abuse, or child abuse. After all, there are some things money cannot buy, such as your right to be safe from abuse. |
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| November 05, 2008 |
| Chicago Sheriff Halting Evictions |
| Posted By Donald Schweitzer |
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| Join our own Donald Schweitzer on CNN's Prime News. Here he discusses the current situation in Chicago where a Sheriff has refused a court order to evict tenants of a foreclosed apartment building. |
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| October 29, 2008 |
| An Update on the Missing Caylee Marie Anthony |
| Posted By Family Law Attorney |
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| Continue reading "An Update on the Missing Caylee Marie Anthony" » |
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| October 28, 2008 |
| "Haute Couture," Family Law: Three California Trends in Divorce, Custody, and Property Division |
| Posted By Kayla Horacek |
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by Kayla Horacek
The mores in California family law are changing. Highly litigious clients, as well those who favor settlement, are now faced with new realities and options. To that end, it is important that all represented parties retain counsel who are aware of these possibilities and can explain them to his or her clients. There are various examples of this progressive thinking which should be explored by all parties involved in a family law proceeding. What follows is only a glimpse into some of the new developments in family law litigation and settlement.
The Full Monty
In a family law proceeding involving support and/or property division, both parties are required to reveal all of their financial information to one another, under penalty of perjury. The goal behind this policy of full disclosure is to place each party in the most informed position possible in order to settle or litigate their matter. This disclosure requires that each party complete and exchange various court forms and charts detailing all benefits and obligations, whether they are claimed to be of a community or separate nature. Furthermore, California family law places a continuing obligation upon a husband and wife to independently update and augment these disclosures.
This transparency is nothing new. The policy of full disclosure is written into the California Family Code, and has been the legislative mandate for many years. For whatever reason, however, courts were not inclined to penalize a party for their failure to disclose relevant financial information during a pending divorce.
In 2007, one California family court chose to enforce the high standards for truthfulness mandated by the legislature. It found that a party had waited several months to disclose relevant financial information to the other during their divorce proceedings, in direct defiance of the disclosure statutes. At the end of the day, the offending party ended up paying $250,000.00 in sanctions for his behavior, which did not include attorney's fees for the other party amounting to $140,000.00.
Take Home Tip: When you hire a family law attorney to represent you during your dissolution action, and arguably, during an action for support, ensure that they are familiar with the strict disclosure requirements imposed upon you. Provide your attorney with EVERYTHING related to your assets, debts, and income early and continuously.
The Custody Marathon
For most people engaged in a dissolution action, financial concerns are only a small part of the struggle. The vast majority of family court litigants also have children. Thus, they must grapple with the emotionally charged world of custody negotiation.
In the most egregious custody disputes, particularly when one party alleges some kind of substance abuse or an outright inability to care for a child, the court will often appoint some kind of expert to assist it in fashioning a plan in the best interests of the minor(s) involved. This expert is a custody evaluator--a psychologist/psychiatrist with extensive experience in child development. The financial circumstances of the parties will determine whether a court psychologist or a private expert is utilized, as the latter is almost always significantly more expensive.
Many parents are now enlisting the services of another kind of professional designed to guide them through this evaluation process--the "custody coach." This person is typically also some sort of therapist who is intimately familiar with the world of custody disputes and litigation. A parent hires a custody coach in an attempt to prepare for the various exercises, tests, and observations which he or she will undergo as part of the custody evaluation. The coach is likely to provide a litigant with feedback on appropriate behaviors, language, and writing samples before they are seen by the evaluator.
Take Home Tip: When determining whether to hire a coach, consider the fact that such a person may not be seen favorably, as he or she may arguably hinder a genuine evaluation of your parenting abilities. Also, when choosing between coaches, retain someone who has an extensive working knowledge of the procedures used by a private custody evaluator, as well as California custody law. If you cannot afford a custody coach, but need pointers, your attorney should have a handful of helpful hints for you. At the very least, he or she should be able to explain the evaluation process.
The Think-tank
Another trend in California family law combines two terms rarely seen in the same sentence-- collaborative and divorce.
In the collaborative divorce, the parties agree to stay out of the courtroom, and focus on obtaining a global settlement. Initially, each party retains an attorney familiar with this type of practice and commits to settle the matter without litigation. Depending on the issues in the case, various other professionals then become involved. For example, in a high asset case, a forensic accountant may provide an evaluation for the parties. In a contested custody case, a therapist and/or evaluator may make a recommendation for a custody plan in the best interests of the child(ren). In a case with novel issues, an appropriate expert may offer feedback in order to educate the parties and their counsel to allow for a fair settlement. Assuming all aspects are negotiated and agreed to, the parties' attorneys can then memorialize the understanding in writing. If done properly, this agreement will have all the force and effect of a litigated Judgment of Dissolution.
Take Home Tip: When searching for a divorce attorney, consider the collaborative approach if you and your spouse have an amicable relationship, and are truly committed to avoiding the stress, delay, and public nature of litigation. Be prepared for a potentially high retainer for collaborative services, as you will likely be hiring your own attorney, as well as other professionals to evaluate your matter.
This article was written by Kayla Horacek. Portions of article appear in the November 2008 issue of Pasadena Magazine |
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| July 30, 2008 |
| Still Missing: Caylee Marie Anthony |
| Posted By Don Schweitzer |
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We join attorney DONALD P SCHWEITZER again in the studio with CNN's NANCY GRACE, as they discuss the case of the still missing Florida toddler, daughter of CASEY ANTHONY. Intercepted phone conversations from the Florida jail reveal that family members of Casey Anthony believe she is lying about the disappearance of her two year old daughter. Listen in as Nancy Grace and Don Schweitzer discuss the incriminating phone conversations and other evidence known about this case. |
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| July 22, 2008 |
| Do Your Neighbors Know Too Much About You Because of the Internet? |
| Posted By Donald P Schweitzer |
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| Join attorney Donald P Schweitzer in Fox New's Studio B as he discusses the potential invasive practices of your neighbors using criminalsearches.com. |
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| July 21, 2008 |
| Child goes missing in Florida, Mother withholding information |
| Posted By DONALD SCHWEITZER |
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| A two year old toddler is missing in Florida for more than a month before her mother makes a police report. When the police investigate the case, the mother tells them multiple lies about the little girl's disappearance. Today, the mother refuses to speak to the police, asserting her Fifth Amendment right against self incrimination. What is wrong with suspecting the mother of foul play in light of these facts? Join attorney DONALD SCHWEITZER on CNN's
Nancy Grace, as he discusses the case of the missing 2 year-old Caylee Anthony. Joining Don are host JANE VELEZ-MITCHELL, and CASEY ANTHONY's attorney, JOSE BAEZ. You be the judge after hearing the responses given by Ms. Anthony's attorney to Donald's cross examination. Click onto the above presentation to watch their discussion. |
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| July 20, 2008 |
| The Non Custodial Parent's Quest for Dependency Exemption |
| Posted By Donald P. Schweitzer |
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As a parent you may assume that you can claim your children as dependants on your tax returns. But what if you and the other parent do not live together and share custody of your child? In review of Anderson v. Commissioner, a recent case decided in tax court, we see that there are specific rules as to which parent is entitled to the dependency exemption. Rules that you may need to know before filing your taxes. Continue reading or click onto the above presentation for a detailed analysis of this case.
A Very Busy Man
We invite you to peer into the life of Albert Anderson and his busy work schedule. Albert was married to Angela in December, 2004. Albert and Angela did not live together during the year following their marriage, however. Albert was very busy as he worked two jobs, which may be one of the reasons why Angela did not move in with him. From 9:00 am to 5:00 pm Albert worked as a gas station attendant, and from 11:00 p.m. to 7:00 am he worked as a room service attendant at a casino. As you can imagine, Albert had very little time to attend to personal matters, while moonlighting, and literally working night and day. With such a hectic schedule, Albert would go home for a few hours to sleep, and then he would wake up, eat, take a shower, and head back to work. Albert spent very few hours at home. In May, 2004 Albert's personal life became even more complicated, when a woman named "Cynthia," gave birth to his son. After the baby's birth, Albert continued to live by himself. Cynthia and the baby lived about fifteen minutes away. When Albert filed his 2004 federal tax return, Albert claimed head of household filing status, a dependency exemption for his son, and an earned income credit of $2,406. Obviously Albert believed he was entitled to the dependency exemption, since he was the child's father.
The Internal Revenue Service Comes Knocking
Unfortunately, the IRS had problems with Albert's tax return. The IRS sent Albert a deficiency notice taking the position that his correct filing status was single and that he was not entitled to either the dependency exemption or the earned income credit. According to the IRS, Albert's deficiency amounted to $2,406, the amount of the disallowed earned income credit. Albert subsequently petitioned the tax court for relief. In tax court, Albert testified that although Cynthia and the baby did not live with him full-time, the two would come to his house every morning to be with him while he slept a little before going to work. According to Albert, Cynthia and the baby stayed at his house during the day while he worked at the gas station, and he would take them home when he went to his night job at the Casino. Moreover, Albert argued that he was entitled to the exemption based on the amount of child support he was providing for the baby. As evidence of the support he provided for the baby, Albert submitted to the tax court receipts for things he bought the baby, such as food, clothing, diapers, and of course toys. However, Albert had not documented the total amount of money he claimed to have spent on the baby.
And the Tax Court Speaks . . . .
The tax court denied Albert's relief and held that he was not entitled to the dependency exemption. In rendering it's decision, the tax court reasoned that Albert would be allowed to claim the dependency exemption for his son only if he could show that he had furnished over half of the child's support for 2004 and had custody of him for more than half of the year. In review of the evidence, the court further stated that Albert's testimony regarding his daily routine "strains credibility," but even if it were true it would not entitle him to claim the exemption because he failed to show that he provided over half of the child's support or had custody for more than half of the year. Furthermore, based on Albert's testimony, the court found that Cynthia had custody of the baby, and Albert failed to document the support he had paid. As to Albert's request for the earned income credit, the court noted that a married person cannot claim the credit unless he or she files a joint return, which Albert had not done. Moreover, Albert would not be entitled to claim the credit if he was not entitled to claim the dependency exemption. Thus, all of Albert's requests were denied and the court held that he owed the government money.
Some Armchair Quaterbacking
It is always easier playing arm chair quarterback, but it seems to be a no brainer that Albert should have obtained the advice of a family law attorney or tax expert before filing his taxes. According to the Internal Revenue Code, the custodial parent (defined as the parent with custody for more than half the year) is entitled to claim the dependency exemption. However, there are a couple of ways to get around this rule. First, the non custodial parent may claim the dependency exemption if (1) the custodial parent signs a declaration that releases the claim to the exemption, and (2) the noncustodial parent attaches the signed declaration to the tax return for the year in question. Without this release, the noncustodial parent may not claim the exemption, despite the terms of a Judgment of Dissolution, or child custody or support order, and despite any written or verbal agreements between the parents. It is important to note that the custodial parent does not have to use Form 8332 as long as the declaration conforms to its substance. However, the declaration requires certain information as specified by the Internal Revenue Code, which Form 8332 includes, so it is probably not a bad idea to use the form. If the noncustodial parent is granted the dependency exemption for multiple years, the custodial parent may either sign a declaration each year or sign one release, with copies to be attached each year by the noncustodial parent. It is very important to know that the failure to attach the declaration to the tax return can be fatal, as the IRS takes no prisoners when it comes to this rule. Another exception is when the family court orders the custodial parent to release the dependency exemption to the non custodial parent, which can happen in California and many other states. California has followed the majority view that state trial courts have jurisdiction to allocate federal dependency exemptions between parents when child support is at issue. Thus, in California, family courts often order allocation of the dependency exemption to the non custodial parent and order the other parent to sign the declaration, when it makes financial sense to do so. And it makes sense when reallocation of the exemption results in more child support to the custodial parent and more cash in the pocket of the parent ordered to pay child support. In light of the intricate tax laws and where child or spousal support is involved, it does not make sense to proceed with filing your tax returns without the advice of an attorney or tax expert. In the instant case, we can see that Albert clearly was not entitled to the dependency exemption, but he may have been able to cure his problem by obtaining Cynthia's waiver (it never hurts to be nice to the other parent), or by going to family court to obtain an order. Some Practical Advice
In summary, if you are a non custodial parent, paying child support, and you want to claim the dependency exemption on your tax return, consider the following: 1) Ask the other parent if he or she will agree to the release, and if so, be sure to have the declaration signed. Again, I would suggest you use Form 8332, so that you do not forget to include all of the information required by the Internal Revenue Code; 2) Be sure to attach the declaration to each year's tax return in which you are claiming the dependency exemption; and 3) If you cannot secure the custodial parent's cooperation, find out if it makes financial sense for you and the custodial parent to reallocate the exemption, and if so consider filing a request with the court that the exemption is reallocated to you. Obviously, there is no guarantee the court will agree with you, and you should consider the fact that the prevailing party may request and receive attorney's fees. Thus, it would probably be a good idea for you to speak to a competent family law attorney to help you decide if going forward with the motion would be in your interest.
Written by Donald P. Schweitzer |
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| July 15, 2008 |
| Donald Schweitzer - Certified Family Law Specialist |
| Posted By Law Offices of Donald P. Schweitzer |
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We are proud to announce that on July 1, 2008, Donald Schweitzer was certified as a Family Law Specialist by the State Bar of California - Board of Legal Specialization. The specialization process requires applicants to have had a specified amount of experience in handling family law cases, to have completed educational requirements pertaining to family law, as well as gathering recommendations from opposing attorneys and judges who have seen the applicant in action. In addition, the applicant must pass a rigorous examination, testing his or her knowledge and mastery of family law. At the Law Offices of Donald P. Schweitzer we believe our clients deserve the best representation possible in handling their family law matters. As such, our staff is committed to meeting the highest of professional standards. Our experienced attorneys and paralegals are continuously trained and educated on the current issues of family law. It is our goal that by specializing and dedicating ourselves to family law cases, our clients will have the edge and benefit at every stage of their proceedings. We congratulate Don on his dedication and commitment to earning this distinction. If you would like to read more about the standards for certification for a family law specialist click here. Posted by: Law Offices of Donald P. Schweitzer |
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| July 10, 2008 |
| When A Widow Is Not A Surviving Spouse |
| Posted By Law Offices of Donald P. Schweitzer |
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Is it possible to be a widow, yet not a surviving spouse in the state of California? The answer is a resounding "yes," according to "Estate of McDaniels" (2008) 161 Cal.App.4th 458. Continue reading or click onto the above presentation for a detailed analysis of this case.
The facts of this case are interesting and tragic at the same time. Troy and Marie McDaniel were married in 2002. Unfortunately their relationship was volatile and dysfunctional due to the fact that Troy had a habit of abusing alcohol and losing his temper. It appears from the opinion that Marie filed for divorce following a domestic violence incident, which led to Marie obtaining a restraining order and Troy getting arrested. After Troy was charged with committingdomestic violence against Marie, she filed her Petition for divorce. Troy filed his Response in April, 2005 and the parties began work on a Marital Settlement Agreement. Troy and Marie signed Interspousal Transfer deeds to one another; concerning two properties they held in joint title. In addition, they signed a Stipulated Judgment of Dissolution that contained provisions to divide their community property and debt, waivers of spousal support, and waivers of their right to appeal. The Judgment of Dissolution was filed with the court in June, 2005, and the family court promptly entered the judgment. The judgment provided that the parties' marriage would not be dissolved until October, 2005, which was six months from the date that Troy filed his Response (based on the cooling off period written into our divorce law). In spite of the fact that Troy and Marie signed and submitted their Judgment of Dissolution, they were attempting to reconcile their marriage. The parties attended counseling and Marie accompanied Troy while he went to alcohol anonymous meetings. Troy and Marie also signed an agreement where Marie agreed to request that her restraining order against Troy be quashed and they agreed that would continue their marriage with love and respect, and that they would keep their divorce open but acknowledged that they could dismiss the action at anytime before October. Troy and Marie also signed a judicial counsel form, requesting the dismissal of the divorce, but they held off on filing it. According to Marie, they decided not to file the request until Troy made a court appearance concerning the domestic violence charges filed against him. Based on the facts as presented in the opinion, there is no question that Troy and Marie were attempting to reconcile their marriage. Sadly, however, Troy died in a motorcycle accident in September, 2005. Troy was interstate at the time he died, meaning he had not prepared a will or trust concerning the distribution of his estate at the time of his death.
Probate Court's Findings
Since Troy died Intestate, his estate had to be distributed in probate court and in accordance with the probate code's manner of handling intestate cases. In probate court, Troy's mother filed a petition for entitlement of distributions, claiming that she and Troy's father were entitled to Troy's estate. Marie then filed an opposition, arguing she was entitled to Troy's estate as the surviving spouse because the dissolution was not final. Marie lost in probate court. The probate court judge determined that Marie was not a "surviving spouse," per Probate Code, Section 78, subsection (d), which provides that: "A person who was a party to a valid proceeding that ended in an order terminating all marital property rights does not qualify as a surviving spouse."
The Court of Appeal's Ruling
Marie filed an appeal, and argued to the appellate court that per Family Code, Section 2339, she was a surviving spouse since she was still married at the time Troy died. Family Code Section 2339 provides: "A dissolution judgment does not terminate marital status until earlier of six months after date of service or six months after filing of Response." Unfortunately for Marie, the Court of Appeal affirmed the probate court's ruling that she was not a surviving spouse. The Court held that even though Marie was technically married, she was not a surviving spouse per Probate Code, Section 78, subsection (d), based on the fact that the Judgment filed and entered in their case divided property and debt, waived spousal support, and waived the right to appeal. In rendering the decision, the Court cited the Estate of Lahey (1999) 76 CA4th 1056, where the parties had been legally separated at the time of the husband's death, and the wife was determined to not be a surviving spouse based on the terms of the Judgment of Legal Separation.
Should I get a Will?
One of the important lessons we can take from this case, is that parties should consider getting wills or possibly modifying their wills, during the dissolution of their marriage, which is permissible in California. Parties going through dissolution proceedings should also consider changing the way in which they hold joint title with their spouse. In the instant case, we will never know if Troy would have wanted Marie to have all or a part of his estate. From the facts of this case we know that Troy and Marie were headed for a divorce. We also know, however, that they were seriously trying to reconcile their marriage. Thus, it is very possible that Troy would have wanted Marie to have taken his entire estate. When I give advice to my clients I never tell them how to run their lives or make decisions for them concerning their personal affairs. I believe it would be improper as an attorney to tell my client that he or she should get a will during the pendency of a divorce, because it is a highly personal decision. It is important, however, that all of my clients understand the possible consequences of not having a will. After reading this article, I hope you have learned that there can be real consequences for not having a will during the process of a divorce. If you have any questions about your rights to obtain or modify an existing will during your divorce, be sure to speak to a competent family law attorney. Posted by: Law Offices of Donald P. Schweitzer |
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| July 09, 2008 |
| Teen Charged with Trying to Sell Vote on eBay |
| Posted By Donald P. Schweitzer |
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Millions of lives have been sacrificed for our right to vote. The right to vote is perhaps the most precious constitutional right we have. A right that should never be taken for granted. Yet, a teenager was recently caught trying to sell his vote on e-bay. Local law enforcement officers caught the young man and he has been charged with a law that has not been used in almost ninety years. The teenager claims he was only joking. The cops are not laughing and take the position that his acts were serious enough to warrant
criminal charges. Have the authorities gone too far? What would the consequences be if people were allowed to sell their votes on e-bay? Join Attorney Donald Schweitzer in Studio B as he debates this issue with criminal defense attorney John Dolan.
Posted by: Law Offices of Donald P. Schweitzer |
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| July 04, 2008 |
| Court Orders Google To Turn Over YouTube Data |
| Posted By Law Offices of Donald P. Schweitzer |
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A federal court has ordered the giant of all Internet companies - Google, to hand over documents concerning YouTube's viewing data to another media monster - Viacom. Viacom and Google are currently entangled in a no-holds barred lawsuit, concerning allegations of intellectual property rights infringements. Continue reading or click onto the above video presentation for a detailed analysis of this issue.
Viacom wanted the viewing data to help it determine the extent to which YouTube's success was built on the popularity of copyrighted clips that were illegally posted to the site. Google contended that YouTube's viewing data should be kept from Viacom to protect the privacy of its users. Unfortunately for the millions of people who view YouTube videos, the judge granted Viacom's request. The court's ruling has caused many advocates of privacy rights to cry foul. For the following reasons, I believe the federal judge was correct in ruling against Google:
The Court's powers to access records cannot be denied.
Like millions of Americans and other people around the world I love Google. I can say without a doubt that Google has been very good to me and my family law practice. And if Google wants to be viewed by it's customers as the champion of privacy rights, so be it. But, let's get real . . . , the court's access to private records under appropriate circumstances cannot be denied. We cannot let people hide behind their computers to commit crimes or torts. It would be absurd, for example, to give a child molester safe haven to either post or view child pornography. It would be equally absurd to give a person safe haven to infringe upon the property rights of another, to commit defamation of character, or to violate someone's privacy rights.
No right is absolute!
The fact that the federal court did not buy into Google's privacy right argument comes as no surprise to those of us who go to court for a living and who know that the right of privacy is not absolute. Our courts are vested with the power to issue search warrants and subpoenas to allow lawyers access to private records. On every work day throughout America, judges are granting motions similar to the one filed by Viacom. Within my family law practice, for example, I serve subpoenas for personal and employment records almost on a daily basis. Personal records frequently lead to hard evidence concerning the opposing party's true income for the purpose of paying child and spousal support. Likewise, data collected from the opposing party's computer usage can also lead to damaging evidence concerning the issues of child custody, community property, or domestic violence. Thank goodness for those incriminating little e-mails. There is nothing like cross examining a perpetrator of domestic violence as to why he thought it was necessary to send 40 messages to my client concerning her new boyfriend! In case this information is beginning to scare you, keep in mind that our legal system allows parties the right to object to invasions of their privacy. In California, for example, before a subpoena for personal or employment records can be served, the attorney serving the subpoena must give notice to the opposing party and wait numerous days before sending the subpoena out for service. In addition, there are special rules when it comes to any attempt to obtain medical records, in which case the court is usually going to scrutinize the request for said documents. So if your ex is trying to get your phone records to obtain your friend's phone numbers, there are certain hurdles that need to be cleared before the court will release such records.
Can you say . . . , "protective order?"
There is nothing new about the possibilities of an attorney or party releasing confidential information. In the cruel world we live in, people misbehave and private information is often dispensed to people who have no right to the records. I'm sorry if I've just burst your bubble, but this happens all the time, especially in divorce cases. Fortunately, the court has a pretty strong remedy to this problem. Courts issue "protective orders" that forbid the release of private documents to third parties and impose huge sanctions on people for violating such orders. And let us not forget the fact that an attorney's license could be in serious jeopardy for intentionally releasing such information, which is a pretty strong incentive for not violating the court's order. Again, borrowing from my experience in litigating family law cases, I often find it necessary to obtain protective orders on behalf of my clients. In one case, where my client was an attorney who owned his own law practice, his wife demanded copies of all the records pertaining to his client's files. She purportedly wanted the records to assist her forensic accountant in determining the value and cash flow of his law practice. Obviously my client was concerned about the confidentiality of his client's files, especially since his wife was on the war path to destroy him. We could not get into court quick enough to obtain a protective order, which was granted without hesitation!
What about Viacom's underlying motives?
For the purpose of this discussion, Viacom's motives are irrelevant. Viacom has the right to our system of justice as any other company or person. It is, after all, the court's responsibility to ensure that Viacom does not release the information to third parties. If Viacom violates the court's protective orders, well, look out for an astronomical monetary sanction.
Be careful!
The bottom line is that the information obtained by Viacom will be safeguarded by a protective order restricting access to the data to outside lawyers or others. The lawyers representing Viacom will probably make sure the protective order is obeyed. Nevertheless, it behooves all of us to think twice about the sites we choose to view within the privacy of our homes. After all, the right to privacy is not absolute, and you never know who may get their hands on your records. Posted by: Law Offices of Donald P. Schweitzer |
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| June 30, 2008 |
| California Father Is Let Off The Hook From Having To Pay Child Support For Adult Son |
| Posted By Donald P. Schweitzer |
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Determining a parent's obligation to support a child in California is pretty cut and dry in most cases. However, as the parties in a recent published case learned, determining a parent's obligation to pay child support for an adult child will usually depend on the particular facts of the case. Continue reading or click onto the above presentation for a detailed analysis of this case. In Marriage of Edwards, a family court determined that a father's obligation to pay support to his ex-wife continued, even though the child was an adult and was attending a state university. The parties had previously stipulated that the father would continue to pay child support after the child became an adult and agreed to split the child's college tuition. Under California law, the father's obligation to pay child support would have ended when their son attained the age of 18 and graduated high school. But for reasons not mentioned within the decision, he agreed to pay child support until their son reached the age of 25. Several years after entering into the agreement, the father filed an Order to Show Cause for modification of the child support order, arguing that it was unjust and inappropriate for him to continue to have to pay support, since he had a significant decrease in income and the child was not living with the mother. Furthermore, the father argued that the child was not longer in the care and custody of the mother, since he lived at the university and had received a sizable financial aid packet from the state. Mother, on the other hand, argued that their adult son was still within her primary care, given that the son's "stuff" was still at her house, he used the house to receive mail, he listed the house as his address to the university, and he came home for extended visits during the school's breaks. Consequently, the mother argued that it was not unjust or inappropriate for the court to order the father to continue to pay guideline child support. The family court agreed with the mother and refused to depart from the guideline formula for calculating child support. The lower court found that there was no change of circumstances, warranting a departure from the guideline formula. The court proceeded to calculate child support based on the guideline formula and lowered the child support payment, based on father's decreased income. However, the court granted the mother 100 percent timeshare of the adult child, which is a significant factor in California, as the amount of time a parent has responsibility for a child impacts the amount of child support to be paid. Obviously, the lower court had bought into mother's argument that she had primary care and responsibility of the adult child. Fortunately for the father, the Court of Appeal was not persuaded by mom's argument, and reversed the lower court's decision to order guideline child support. The Court of Appeal agreed held that ordering guideline child support under the circumstances would be unjust and inappropriate. Furthermore, based on the facts presented, the court specifically found that the adult child was not in the mother's primarycare and responsibility. In rendering its' decision, the Court distinguished the case of In Re Marriage of Drake (1997) 53 Cal.App.4th 1139 where the guideline formula was applicable to child support for a mentally incapacitated adult child whose mother took full responsibility for his situation and care. An obvious lesson from this case is that the court will look to the parent who has responsibility of the child in determining the child's custodial parent. In a case where the child is an adult it is possible that neither parent may qualify. This case is also an eye opener to those who enter into agreements for the continued support of an adult child. We can see how a parent may get off of the hook by filing a modification of child support, when it becomes apparent that the other parent is no longer responsible for the child. In other words, these types of stipulations and orders may be more modifiable then what we previously imagined. Thus, parties should be careful not to bargain away significant rights on behalf of continued support of an adult child. On the other hand, the fact that the adult child attends college does not mean that an order will not be enforceable. In a case where the adult child continues to live with a parent, while attending a local college, the parent is still primarily responsible for the child, and the court would probably enforce the type of stipulation entered into by Mr. and Ms. Edwards.
Written by Donald P. Schweitzer |
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| Continue reading "California Father Is Let Off The Hook From Having To Pay Child Support For Adult Son" » |
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| June 24, 2008 |
| Do monthly annuity payments constitute income for calculating child support? |
| Posted By Family Law Attorney |
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| *IF AUDIO STOPS PLEASE CLICK ON THE TIMELINE TO CORRECT THE ISSUE*
On occasion California courts have to struggle with the issue of what constitutes income for the purpose of calculating child support. In a recent California decision entitled "Marriage of Rothrock," the court of appeal had to determine whether or not an uncharacterized personal injury settlement award that was paid into an annuity, constituted income for the purpose of calculating child support. In rendering its' decision, the court of appeal relied on the common law definition of income as well as a federal statute in determining that the monthly annuity did not constitute income. The court's use of the common law definition was somewhat new, in comparison to recent cases where the same issue presented itself. For a more detailed analysis of the court's decision, click onto the above presentation. |
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| June 13, 2008 |
| Florida Teacher Seduced at Least 2 Students. What Role Does Her Gender Play? |
| Posted By Donald Schweitzer |
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Donald Schweitzer appears on CNN's Nancy Grace to discuss the recent trial of a Teacher in Florida who seduced three of her students and what role her gender plays in the proceedings. |
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| June 12, 2008 |
| Breaking Investigation Into Sexually Abused Polygamist Boys |
| Posted By Don Schweitzer |
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While on Nancy Grace, attorney and former detective Don Schweitzer provides legal commentary on the investigation of possible sexual abuse of young boys within a polygamist cult in Texas. These allegations were raised after reading journal entries found on the ranch during a previous investigation in the community.
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| June 09, 2008 |
| Convicted Murderer Demands Sex Change |
| Posted By Robert Kosilek |
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Robert Kosilek, convicted of first degree murder for strangling his wife in 1990, is suing the state of Massachusetts to get a tax-funded sex change operation. A judge had previously entitled Kosilek treatment for his gender-identity disorder which included hormone treatment, laser hair removal, and psychotherapy. Attorney and former prosecutor, Don Schweitzerappears on CNN Headline News to discuss why he believes Kosilek, or any such criminal, shouldn’t be allowed to have this type of state-funded treatment.
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| June 02, 2008 |
| Registered Sex Offender Seeks Unmonitored Visitation |
| Posted By Family Lawyer |
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When modifying a child custody or visitation order the court has to apply certain tests in California, depending on the type of order that is in place. In review of the decision entitled, "Lucio," we see how serious the courts are to applying the proper test, even when the moving party is a registered sex offender.
For a detailed analysis of this case, click onto the above presentation. |
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| Continue reading "Registered Sex Offender Seeks Unmonitored Visitation" » |
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| May 30, 2008 |
| Passing Of Our Friend and Colleague, Suren Stepanyan |
| Posted By Attorney |
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| This week we mourn the loss of our beloved colleague and friend, Suren Stepanyan. Although he worked with us for a brief time, he made a big impression on those of us who spent time with him day in and day out. Interestingly enough, he also made it a point to meet and befriended all of our other employees who joined the firm after he left. He was a kind soul, who always had a smile on his face, and laughter in his eyes. He was incredibly talented as a writer and attorney, and had a promising future cut short, far too early in his young life. Suren was 33 years old. He will be missed by all of us. |
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| January 23, 2008 |
| How To Sell Any Property In A Down Market |
| Posted By Clifford Diamond |
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If you are planning on selling your property in this market you are going to need a strategy. In the last 20 years I have pretty much seen everything and I would like to give you helpful and timely tips to help you get it done right.
In Southern California, and most parts of the country, there is a huge standing inventory of homes for sale. This is your competition. It is a buyers market right now and adding another overpriced, unmotivated home for sale in this market is not a positive thing for most realtors. Also, now is not the time to shop for a "discount" realtor; you are going to need the best you can find and listings are "a dime a dozen" right now.
Let’s start with why. If you're not serious about selling your home right now or not willing to set a realistic asking price, then don't list your house at this time because it won't work out well for you, your realtor, or your neighbors. If you are motivated and ready, then come up with a game plan. Some of these may be obvious but hear me out; you may want to re-define your goals and priorities.
First, let’s start with you. Your goal is to find a buyer. This means your tastes and décor choices don't matter anymore. You want to appeal to a future buyer and make your home more appealing and more attractive than any other in this price range. In a perfect world your home would be vacant or professionally staged with no personal items in sight. You will also need to decide what you are really trying to accomplish. What is your goal? Is it a quick and painless sale? Squeezing every penny out of the sale? Cashing out and renting back? Avoiding foreclosure? If you are in an emergency or panic sale mode then your choices will narrow.
Secondly, your property will need to be in tip-top condition. If you want top dollar, consider a professional paint job, inside and out, with up to date neutral colors. Consider new flooring. Depending on price range and your goals, you may want to consider upgraded granite counters, new appliances, and updated baths. If you can not or choose not to upgrade and update then your price expectations should shrink. If your goal is top dollar then these upgrades become mandatory. It’s that simple and it really is your choice.
Consider this before it's too late. The most ideal choice would be to hire an independent licensed and experienced appraiser to give you a realistic valuation of your home. An appraiser can also tell you what those upgrades would be worth before you spend your money needlessly. A room addition, extra bath, or complete kitchen remodel can be valued before you spend a dime. This is an appraiser's job and is money well spent. If you were off in your estimate and listed the property too high you will loose out on potential offers. Conversely, if your listing is too low, you may loose that money that you have invested in remodeling.
Now comes the important part. Here is an example of what most sellers are doing incorrectly right now. If your home is worth say $600,000 most people automatically set their asking price just above that, around $625,000. This makes sense to most people, but that's where the trouble begins. I personally watched a neighbor do exactly that. He listed his house for $625,000 and nothing happened, weeks turned into months and that same property is still listed today, a year and half later, for $399,000. On the other hand, a clever neighbor sold his house for $610,000 to the first buyer he found and generously gave that buyer $15,000 cash back for a "landscaping allowance." The buyer was thrilled to pay the full asking price because he closed and got cash back to start a pool, landscape the yard or go to Hawaii.
Here is another way to look at it. You can go with the herd mentality and make your price the same as everyone else and ride it all the way to the bottom or you can under-price your home and make the sale happen today and avoid any price reductions at all. It’s like catching wave, you need to be at the front, do all your paddling at the beginning and catch it before it drops or you will miss the buyer and be stuck behind the wave always waiting for something to happen. It's not a good bet, but if you price it way under market you can end up with multiple offers and even get an overbid. Here is a secret; what is working right now is buyer incentives directly to the buyer, they are your customer. Instead of dropping your price $10K, give that to your buyer in the form of cash, home improvement gift card, landscaping allowance, luxury items etc. You will create buyer activity.
Lastly, think positive. It's all about finding a win-win deal. What you probably want is to get the house sold as painlessly as possible. So price it right immediately and make the property as marketable as you can afford without wasting time or money. Keep in mind where the market is going. If it's a buyers market and prices are dropping, get it sold quickly and don't try to hold out for a better offer. But remember it's hard to sell any property with "warts” in this market. Think in these terms. A $100 repair that you neglect will take off $1,000 on your final sale price, so cure all the negatives before you list and price it right from the first day and you'll be successful.
Remember to use your appraisers experience and skills in the very beginning not just at the end and you will bargain from a position of knowledge and strength.
Written by Clifford Diamond, CREA
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| January 17, 2008 |
| Should Britney Spears Be Committed To Rehab? |
| Posted By Don Schweitzer |
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California family law attorney Don Schweitzer appears on Star Jones Live to discuss Britney Spears' recent health crisis and what her family can do to help.
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