Donald F. Conviser, a Certified Family Law Specialist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, serving family law and divorce clients in the Courts of Los Angeles and Ventura County, 818-880-8990, writes:
Divorces used to be sporting events where, if you could find the asset, you get your share; if you could find the income, you get your spousal support and/or child support. Now, there are significant penalties for nondisclosure, as Aaron Feldman so sorely learned. Read on ...
In 1993, the legislature, in its wisdom, passed a bill now codified as Family Code Section 2100, et seq., declaring, among other things:
1. Sound public policy favors the reduction of the adversarial nature of marital dissolution and the attendant costs by fostering full disclosure and cooperative discovery.
2. In order to promote this public policy, a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for divorce or separation, regardless of characterization as separate or community, together with a disclosure of all income and expenses of the parties.
3. Each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these isues, each party will have a full and complete knowledge of the relevant underlying facts.
Some parties going through a divorce may be tempted to conceal income or assets. Those parties are penny wise and pound foolish. This article demonstrates why parties should resist the temptation and disclose, and what could happen to a party who conceals.
Marriage of FELDMAN (2007) 153 Cal.App.4th 1470 provides good reasons [390,000 of them] to resist that temptation. Aaron failed to disclose several assets and financial transactions in his Declarations of Disclosure; Elena learned of them through subsequent discovery, including her stumbling on Aaron's acquisition of a home through a deposition of an employee of one of the community businesses, on a 401K plan of Aaron at his deposition, and on theretofore undisclosed businesses through subsequently produced organizational charts.
During the divorce proceedings, Elena filed an application for an order for (1) imposition of monetary sanctions against Aaron for a violation of his fiduciary duty to make financial disclosures to her during the proceedings, and 2) imposition of monetary sanctions requiring Aaron to pay her attorney's fees, based on Family Code sections 1101(g), 2107(c), and 271(a).
The Appellate Court affirmed the trial Court's granting of Elena's Motion awarding Elena $250,000 in sanctions for breach of fiducary duty and $140,000 in attorney's fees.
The Appellate Court addressed the fiduciary duties that parties owe to each other as codified in Family Code section 721(b), stating that their confidential relationship imposes a duty of highest good faith and fair dealing, and that neither shall take unfair advantage of the other. The Court also addressed Family Code section 1100(e), requiring that such duty includes the obligation to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of assets in which the community has or may have an interest and debts for which the community may be liable, until such time as the assets have been divided by the parties or the Court.
Of significance in the Feldman opinion is that it states that no injury to the other party is required for the trial court to impose sanctions. Family Code section 2107(c) mandates the imposition of sanctions against the party who fails to comply with the disclosure requirements in an amount sufficient to deter repetition of the conduct or comparable conduct, including attorney's fees. That statute does not require that before seeking sanctions for nondisclosure that a party seek further disclosure or bring a motion to compel further responses or preclude evidence. If a party's disclosures fail to meet the statutory requirements for full, accurate and complete disclosure, Feldman shows us the penalty for the risk that the party is taking.
Family Code section 271(a) authorizes the imposition of monetary sanctions against a party to pay attorney's fees and costs when the conduct of the party or his/her attorney frustrates the policy of the law to promote settlement and reduce the cost of litigation by encouraging cooperation.
The lesson: Disclose, fully, as required. Don't conceal; the penalty is designed to deter concealment.
Thursday, April 30, 2009
Wednesday, April 29, 2009
DEATH BEFORE JUDGMENT
Donald F. Conviser, a Certified Family Law Specialist and owner of Warner Canyon Law Offices in Woodland Hills CA, in the San Fernando Valley, aggressively and effectively representing parties in Divorce [Dissolution of Marriage] and other Family Law proceedings in Los Angeles and Ventura Counties for over 35 years, offering a free, confidential consultation regarding your Divorce or Family Law issues - call him at 818/880-8990, brings you another informative blog, addressing DEATH BEFORE JUDGMENT, in a series of blogs designed to inform and educate readers about various areas of Family Law and Divorce.
What happens if a party to a Divorce dies during the proceedings?
If a Bifurcated Status Dissolution had not been entered [i.e., if the parties were still married when a spouse died], the death of a party terminates the dissolution proceeding. The surviving party obtains all rights to custody of the parties' children forthwith on the death of the custodial parent.
If a Bifurcated Status Dissolution had been entered, the Court retains jurisdiction to resolve the reserved issues, including issues preserved by the Bifurcation Order, and the deceased spouse's estate can proceed in the place of the deceased spouse to divide the community property and enforce the bifurcation orders.
Posted by DONALD F. CONVISER, owner of WARNER CENTER LAW OFFICES in Woodland Hills, California, a Certified Family Law Specialist who has aggressively and effectively represented people in family law and divorce cases in the Superior Courts of Los Angeles and Ventura Counties since 1972 in all areas of family law and divorce, including Bifurcation of Marital Status, property division, prenuptial agreements, premarital agreements, divorce, paternity, nonmarital dissolution, stepparent adoption, child support, spousal support, child custody, and visitation. If you have a question regarding any aspect of divorce or family law, call DONALD F. CONVISER at 818/880-8990 for a free confidential consultation.
What happens if a party to a Divorce dies during the proceedings?
If a Bifurcated Status Dissolution had not been entered [i.e., if the parties were still married when a spouse died], the death of a party terminates the dissolution proceeding. The surviving party obtains all rights to custody of the parties' children forthwith on the death of the custodial parent.
If a Bifurcated Status Dissolution had been entered, the Court retains jurisdiction to resolve the reserved issues, including issues preserved by the Bifurcation Order, and the deceased spouse's estate can proceed in the place of the deceased spouse to divide the community property and enforce the bifurcation orders.
Posted by DONALD F. CONVISER, owner of WARNER CENTER LAW OFFICES in Woodland Hills, California, a Certified Family Law Specialist who has aggressively and effectively represented people in family law and divorce cases in the Superior Courts of Los Angeles and Ventura Counties since 1972 in all areas of family law and divorce, including Bifurcation of Marital Status, property division, prenuptial agreements, premarital agreements, divorce, paternity, nonmarital dissolution, stepparent adoption, child support, spousal support, child custody, and visitation. If you have a question regarding any aspect of divorce or family law, call DONALD F. CONVISER at 818/880-8990 for a free confidential consultation.
Tuesday, April 28, 2009
THE POUND OF FLESH REQUIRED FOR BIFURCATION
Certified Family Law Specialist DONALD F. CONVSER 818/880-8990, an aggressive and effective family law and divorce attorney representing clients in Los Angeles County and Ventura County for over 35 years, owner of WARNER CENTER LAW OFFICES in Woodland Hills, California, offering a free confidential consultation regarding your divorce and family law issues, brings you another informative blog addressing THE POUND OF FLESH REQUIRED FOR BIFURCATION, in a series of blogs designed to inform and educate readers about various areas of Family Law and Divorce, and how he deals with challenges presented to him.
Near the end of my last blog, I stated: Whereas Family Code Section 2337 protects the non-bifurcating party, it requires a pound of flesh from the bifurcating party. In my April 26, 2009 blog, I warned readers that before any party decides to seek Bifurcation of Marital Status, he/she should consider the consequences of a Bifurcation, which include the loss of valuable rights associated with marital status as well as conditions which the Court may impose on the party seeking Bifurcation.
The pound of flesh that the bifurcator has to pay for the bifurcation could include an order requiring him to pay for health insurance for his spouse (equivalent to the pre-bifurcation health insurance) for the period following the bifurcation until the reserved issues (the balance of the issues in the divorce case) are fully resolved, and if that health insurance becomes no longer available (COBRA coverage is only available for 3 years post-dissolution of marital status, at a significant price, and there may well be other reasons that health insurance may become no longer available), if the bifurcator cannot replace that coverage with equivalent coverage (such as where the former spouse has a pre-existing condition that may preclude insurability), the bifurcator becomes the health insurer of his former spouse, i.e., he pays all of her medical, hospital, psychiatric, prescription, and other health care bills.
If that isn't penalty enough, if the bifurcator was covered on his former spouse's health insurance available through her employment, guess what? Upon the bifurcated status dissolution that he hungrily sought, he no longer qualifies for such coverage. What's good for the goose is bad for the gander!
Other penalties that the bifurcator may suffer during the period after the Bifurcated Status Dissolution and the resolution of the balance of the issues in the case (the Judgment on Reserved Issues... which the former spouse could delay through discovery issues, continuances, etc., for years, and note - once there is a Bifurcated Status Dissolution, the 5-year Dismissal Statute for delay in prosecution no longer applies by virtue of Code of Civil Procedure Section 583.161, so the case could drag on, and on, and on...) include orders:
1. That the bifurcator must indemnify and hold his former spouse harmless from any taxes, reassessments, interest and penalties payable by his former spouse in connection with the community estate that would not have been payable if the parties were still married at the time the division of property was made;
2. That the bifurcator must maintain all existing health coverage for the other party and minor children or replace it with equivalent coverage or become their health insurer, as above noted;
3. That the bifurcator [and his estate if/when he dies] must indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in a termination of the other party's right to a probate homestead in which that party resides at the time the severance is granted;
4. That the bifurcator [and his estate if/when he dies] must indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of rights to a probate family allowance as the surviving spouse;
5. That the bifurcator must indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of retirement, survivor, or deferred compensation benefits or election/option rights under any pension or similar plan to the extent the other party would have been entitled to those benefits or elections or options as the surviving spouse of the bifurcator;
6. That the bifurcator must indemnify and hold the other party harmless from any adverse consequences if the bifurcation results in the loss of rights to social security benefits or elections to the extent the other party would have been entitled to those benefits or elections as the surviving spouse of the bifurcator [10 years of marriage is the magic number, after which a surviving spouse has the option/election to get derivative survivor social security benefits];
7. That the bifurcator maintain a beneficiary designation for his former spouse for nonprobate transfer assets;
8. That 1/2 or even all of the community interest in an IRA be assigned and transferred to the former spouse to preserve her ability to defer the distribution of the IRA on her death;
9. That upon a showing that circumstances exist that would adversely affect a party's community property rights if the other party died before the division and distribution and payment of community property interests, that the Court may order a specific security interest
.....
[such as an order for an "undertaking" (bond); a QDRO from the securing party's share of a retirement plan; an order for the creation of a Trust; an order for other arrangements to be made for security if the bifurcator died before Judgment on Reserved Issues is entered; and/or an interim order requiring the bifurcator to pay and post security for payment of any survivor benefit that would have been payable on the death of the bifurcator had he died married to the former spouse] designed to reduce or eliminate the possibility that a postmortem enforcement proceeding would be ineffective or unduly burdensome to the surviving party. If you can chew through that, you can taste the bitter pill; and ...
10. That the Court may impose any other condition that it determines is just and equitable. If you missed it, the kitchen sink is included!
And consider, for that heavy pound of flesh that the bifurcator may have to pay, he loses the benefits that he had that are preserved under Family Code Section 2337 for the former spouse.
I'll give thought to other losses that the bifurcator may stand to suffer, because I'm sure that the list above doesn't include all the bifurcation penalties (including loss of benefits as a military spouse... there's another penalty) - but: once the bifurcator gets a Bifurcated Status Dissolution, he may "feel divorced", he may "feel better", he may remarry, and he may file his income taxes as a single person.
So the proposed bifurcator should consider what he gets for what he has to pay, and he should carefully decide, with the assistance of a competent Divorce and Family Law Attorney, whether Bifurcation of Marital Status is worth the pound of flesh.
Posted by DONALD F. CONVISER, owner of WARNER CENTER LAW OFFICES in Woodland Hills CA, a Certified Family Law Specialist who has aggressively and effectively represented people in family law and divorce cases in Los Angeles and Ventura Counties for over 35 years, before the Superior Courts in Los Angeles, Van Nuys, San Fernando, Simi Valley, Ventura, Burbank, Glendale, Santa Monica, Torrance, Pasadena and Pomona, in matters including Bifurcation of Marital Status, premarital agreements, prenuptial agreements, divorces, paternity, stepparent adoption, nonmarital dissolution, child support, spousal support, child custody, visitation, and all other areas of family and divorce law practice. If you have any question or concern regarding Bifurcation or any other aspect of family law or divorce law, call DONALD F. CONVISER at 818/880-8990 for a free confidential consultation.
Near the end of my last blog, I stated: Whereas Family Code Section 2337 protects the non-bifurcating party, it requires a pound of flesh from the bifurcating party. In my April 26, 2009 blog, I warned readers that before any party decides to seek Bifurcation of Marital Status, he/she should consider the consequences of a Bifurcation, which include the loss of valuable rights associated with marital status as well as conditions which the Court may impose on the party seeking Bifurcation.
The pound of flesh that the bifurcator has to pay for the bifurcation could include an order requiring him to pay for health insurance for his spouse (equivalent to the pre-bifurcation health insurance) for the period following the bifurcation until the reserved issues (the balance of the issues in the divorce case) are fully resolved, and if that health insurance becomes no longer available (COBRA coverage is only available for 3 years post-dissolution of marital status, at a significant price, and there may well be other reasons that health insurance may become no longer available), if the bifurcator cannot replace that coverage with equivalent coverage (such as where the former spouse has a pre-existing condition that may preclude insurability), the bifurcator becomes the health insurer of his former spouse, i.e., he pays all of her medical, hospital, psychiatric, prescription, and other health care bills.
If that isn't penalty enough, if the bifurcator was covered on his former spouse's health insurance available through her employment, guess what? Upon the bifurcated status dissolution that he hungrily sought, he no longer qualifies for such coverage. What's good for the goose is bad for the gander!
Other penalties that the bifurcator may suffer during the period after the Bifurcated Status Dissolution and the resolution of the balance of the issues in the case (the Judgment on Reserved Issues... which the former spouse could delay through discovery issues, continuances, etc., for years, and note - once there is a Bifurcated Status Dissolution, the 5-year Dismissal Statute for delay in prosecution no longer applies by virtue of Code of Civil Procedure Section 583.161, so the case could drag on, and on, and on...) include orders:
1. That the bifurcator must indemnify and hold his former spouse harmless from any taxes, reassessments, interest and penalties payable by his former spouse in connection with the community estate that would not have been payable if the parties were still married at the time the division of property was made;
2. That the bifurcator must maintain all existing health coverage for the other party and minor children or replace it with equivalent coverage or become their health insurer, as above noted;
3. That the bifurcator [and his estate if/when he dies] must indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in a termination of the other party's right to a probate homestead in which that party resides at the time the severance is granted;
4. That the bifurcator [and his estate if/when he dies] must indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of rights to a probate family allowance as the surviving spouse;
5. That the bifurcator must indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of retirement, survivor, or deferred compensation benefits or election/option rights under any pension or similar plan to the extent the other party would have been entitled to those benefits or elections or options as the surviving spouse of the bifurcator;
6. That the bifurcator must indemnify and hold the other party harmless from any adverse consequences if the bifurcation results in the loss of rights to social security benefits or elections to the extent the other party would have been entitled to those benefits or elections as the surviving spouse of the bifurcator [10 years of marriage is the magic number, after which a surviving spouse has the option/election to get derivative survivor social security benefits];
7. That the bifurcator maintain a beneficiary designation for his former spouse for nonprobate transfer assets;
8. That 1/2 or even all of the community interest in an IRA be assigned and transferred to the former spouse to preserve her ability to defer the distribution of the IRA on her death;
9. That upon a showing that circumstances exist that would adversely affect a party's community property rights if the other party died before the division and distribution and payment of community property interests, that the Court may order a specific security interest
.....
[such as an order for an "undertaking" (bond); a QDRO from the securing party's share of a retirement plan; an order for the creation of a Trust; an order for other arrangements to be made for security if the bifurcator died before Judgment on Reserved Issues is entered; and/or an interim order requiring the bifurcator to pay and post security for payment of any survivor benefit that would have been payable on the death of the bifurcator had he died married to the former spouse] designed to reduce or eliminate the possibility that a postmortem enforcement proceeding would be ineffective or unduly burdensome to the surviving party. If you can chew through that, you can taste the bitter pill; and ...
10. That the Court may impose any other condition that it determines is just and equitable. If you missed it, the kitchen sink is included!
And consider, for that heavy pound of flesh that the bifurcator may have to pay, he loses the benefits that he had that are preserved under Family Code Section 2337 for the former spouse.
I'll give thought to other losses that the bifurcator may stand to suffer, because I'm sure that the list above doesn't include all the bifurcation penalties (including loss of benefits as a military spouse... there's another penalty) - but: once the bifurcator gets a Bifurcated Status Dissolution, he may "feel divorced", he may "feel better", he may remarry, and he may file his income taxes as a single person.
So the proposed bifurcator should consider what he gets for what he has to pay, and he should carefully decide, with the assistance of a competent Divorce and Family Law Attorney, whether Bifurcation of Marital Status is worth the pound of flesh.
Posted by DONALD F. CONVISER, owner of WARNER CENTER LAW OFFICES in Woodland Hills CA, a Certified Family Law Specialist who has aggressively and effectively represented people in family law and divorce cases in Los Angeles and Ventura Counties for over 35 years, before the Superior Courts in Los Angeles, Van Nuys, San Fernando, Simi Valley, Ventura, Burbank, Glendale, Santa Monica, Torrance, Pasadena and Pomona, in matters including Bifurcation of Marital Status, premarital agreements, prenuptial agreements, divorces, paternity, stepparent adoption, nonmarital dissolution, child support, spousal support, child custody, visitation, and all other areas of family and divorce law practice. If you have any question or concern regarding Bifurcation or any other aspect of family law or divorce law, call DONALD F. CONVISER at 818/880-8990 for a free confidential consultation.
REASONS TO OPPOSE BIFURCATED STATUS DISSOLUTION
DONALD F. CONVISER, CFLS [Certified Family Law Specialist] 818/880-8990, an aggressive and effective divorce and family law attorney representing clients in Ventura and Los Angeles counties for over 35 years, owner of WARNER CENTER LAW OFFICES in Woodland Hills, California, offering a free confidential consultation regarding your divorce or family law issues, brings you another informative blog addressing a few REASONS TO OPPOSE BIFURCATED MARITAL STATUS DISSOLUTION, in a series of blogs designed to inform and educate readers about various areas of Family Law and Divorce, and how he deals with challenges presented to him.
Speaking about challenges, you might note the time I posted this blog - I prepare my blogs before the day's work begins or after the day's work is done. Fortunately (as noted in yesterday's blog), I don't wait until the last minute to do my work. This blog was prepared after midnight.
Today, when I turned on my computer at my office, I was met with a new, unexpected challenge: my hard disk crashed. I'm a fireman, so I got to put out another fire.
After many F10s (for those of you who know what F10s are), I chose the last remaining option other than buying a brand new PC and tolerating Vista's faults: to take the plunge and do a system recovery on my PC, and if the system recovery worked, I would get to [my semantic preference to "have to", to reduce cognitive dissonance] reload all of my software and data into my PC.
My priorities instantly shifted: the appointments and work that I had scheduled for the day had to take a back seat - so I rescheduled them. I got my necessary work and communications done in the time gaps while my system recovery slowly but successfully worked and while I revisited and reloaded my software and data into my PC.
I got home a few minutes before midnight, PC back in operation - challenge overcome. I ate dinner, and then sat down to think and write this blog.
I could have just gone to bed, but I have been enjoying the discipline and opportunity to take on new challenges that daily blogging has offered me, so I will endeavor to keep the daily blogs going until my next vacation [and vacation means to me freedom from any activity, rest, respite, intemission, recreation, an "interval" to give my brain and hands a break, time to go out to play].
In the 4th paragraph of yesterday's blog, I briefly addressed the possibility that a Court might not grant a Bifurcation under certain circumstances. In the 6th paragraph, I noted that the granting of a Bifurcation is discretionary - it is not mandated.
So today, in the wee hours of the morning, I conceived and am writing about few examples of circumstances in which a good argument can be made to oppose a bifurcation.
Family Code Section 2337(c)(2) provides that between the time of the bifurcated status dissolution of marriage and the entry of judgment on all remaining issues, the bifurcating party shall maintain all existing health insurance coverage for the other party and any dependent minor children so long as eligible to do so. BUT if or when the bifurcating party is not eligible to do so, he, in effect, becomes the health insurer of the other party: the bifurcating party must, at his sole expense, provide and maintain comparable health insurance coverage to that which has been existing just prior to the bifurcation, and if that coverage is not available, the bifurcating party shall be responsible to pay, AND SHALL DEMONSTRATE TO THE COURT'S SATISFACTION THE ABILITY TO PAY for the health care of the other party and minor children to the extent that care would have been covered by the existing health coverage, but for the dissolution of the marital status, and shall hold the other party harmless from any adverse consequences resulting from the loss or reduction of the existing coverage. OUCH!
As I noted above, the bifurcating party, in essence, becomes the health insurer for the other party pending resolution of the reserved issues in the case following the Bifurcated Status Dissolution. To cover the health care costs of someone with a pre-existing condition can be a mighty expensive obligation, and the Court will, pursuant to Family Code Section 2337(c)(2), make a determination as to whether or not the bifurcating party has the ability to pay for such health care during the period between the bifurcation and resolution of the balance of the divorce issues in the case.
If the judicial officer feels that the bifurcating party may not be able to afford to pay the health care expenses of the other party pending determination of the reserved issues, the judicial officer may deny a reqested Bifurcated Status Dissolution.
If a Bifurcated Status Dissolution is sought against a person with significant health problems, a competent divorce and family law attorney representing that person should perform discovery into the Bifurcating party's ability to pay significant health care expenses; if ability to pay is apparent, that person's attorney should ask the Court to require the Bifurcating party to post security to provide a fund to cover those expenses to ensure that payment will be forthcoming; if discovery reveals inadequate income or assets to cover such health care expenses, those facts and documents should be set forth in the opposing party's response to a motion for bifurcation, along with historical documents reflecting the non-bifurcating party's ongoing and anticipated continuing health care needs and expenses, as justification demonstrating why the Court should deny the motion.
Another consideration could be argued. COBRA coverage is available only for three years following a Status Dissolution, and is costly. The advantage of COBRA coverage is that there is no exclusion for pre-existing conditions.
A party with pre-existing conditions will likely find it impossible to secure health insurance coverage following expiration of the COBRA period. The COBRA period begins upon entry of the Status Dissolution. The Bifurcating party would be required to pay the COBRA costs pending resolution of the reserved issues in the case. However, the clock would start to tick on the three years of COBRA coverage upon entry of the Status Dissolution, effectively shortening the period of time during which the party with pre-existing conditions could obtain health coverage [since the ATROs during the pendency of the divorce case restrain the parties from cancelling insurance coverage; during the marriage, employment-realted health insurance coverage invariably provides for coverage of spouses and dependents - even with pre-existing conditions, at reasonable cost].
Those factors, coupled with the non-bifurcating party's inability to afford the COBRA payments after the reserved issues are resolved, could be presented and argued to the Court by a competent divorce and family law attorney as justification why the Court should not grant a Bifurcated Status Dissolution.
Another area of opposition to a Bifurcated Status Dissolution comes to mind. After 10 years of marriage, a spouse is entitled to derivative Social Security benefits, i.e., that spouse has the election of receiving his/her own Social Security benefits, or if the other party earned significantly more, that spouse has the election of receiving Social Security benefits calculated on the basis of the other party's contributions to the Social Security system. So if a Bifurcation is sought by the wealthier party at a point 9-1/2 years into the marriage, a Court may well pay attention to an opposition to the Bifurcation seeking to delay termination of marital status until after the 10-year mark.
It is after 1:00 a.m., so these examples will be all that I post tonight - more may follow. Perhaps I'll follow with a blog reflecting some of the protection areas that the Bifurcating party loses by bifurcating marital status. Whereas Family Code Section 2337 protects the non-bifurcating party, it requires a pound of flesh from the bifurcating party.
Please address to me any areas of divorce or family law on which you would like to see another Blog from me.
Posted by DONALD F. CONVISER, a Certified Family Law Specialist in Woodland Hills, California, owner of WARNER CENTER LAW OFFICES, effectively and aggressively representing clients in family law and divorce cases throughout the counties of Los Angeles and Ventura for over 35 years, based in the San Fernando Valley, and appearing before Superior Courts including Los Angeles, Van Nuys, San Fernando, Simi Valley, Ventura, and many others, representing divorce and family law clients in matters involving (or opposing) Bifurcation of Marital Status, premarital agreements, prenuptial agreements, divorces, paternity, stepparent adoption, nonmarital dissolution, child custody, visitation, child support, spousal support, and all other areas of divorce and family law practice.
Speaking about challenges, you might note the time I posted this blog - I prepare my blogs before the day's work begins or after the day's work is done. Fortunately (as noted in yesterday's blog), I don't wait until the last minute to do my work. This blog was prepared after midnight.
Today, when I turned on my computer at my office, I was met with a new, unexpected challenge: my hard disk crashed. I'm a fireman, so I got to put out another fire.
After many F10s (for those of you who know what F10s are), I chose the last remaining option other than buying a brand new PC and tolerating Vista's faults: to take the plunge and do a system recovery on my PC, and if the system recovery worked, I would get to [my semantic preference to "have to", to reduce cognitive dissonance] reload all of my software and data into my PC.
My priorities instantly shifted: the appointments and work that I had scheduled for the day had to take a back seat - so I rescheduled them. I got my necessary work and communications done in the time gaps while my system recovery slowly but successfully worked and while I revisited and reloaded my software and data into my PC.
I got home a few minutes before midnight, PC back in operation - challenge overcome. I ate dinner, and then sat down to think and write this blog.
I could have just gone to bed, but I have been enjoying the discipline and opportunity to take on new challenges that daily blogging has offered me, so I will endeavor to keep the daily blogs going until my next vacation [and vacation means to me freedom from any activity, rest, respite, intemission, recreation, an "interval" to give my brain and hands a break, time to go out to play].
In the 4th paragraph of yesterday's blog, I briefly addressed the possibility that a Court might not grant a Bifurcation under certain circumstances. In the 6th paragraph, I noted that the granting of a Bifurcation is discretionary - it is not mandated.
So today, in the wee hours of the morning, I conceived and am writing about few examples of circumstances in which a good argument can be made to oppose a bifurcation.
Family Code Section 2337(c)(2) provides that between the time of the bifurcated status dissolution of marriage and the entry of judgment on all remaining issues, the bifurcating party shall maintain all existing health insurance coverage for the other party and any dependent minor children so long as eligible to do so. BUT if or when the bifurcating party is not eligible to do so, he, in effect, becomes the health insurer of the other party: the bifurcating party must, at his sole expense, provide and maintain comparable health insurance coverage to that which has been existing just prior to the bifurcation, and if that coverage is not available, the bifurcating party shall be responsible to pay, AND SHALL DEMONSTRATE TO THE COURT'S SATISFACTION THE ABILITY TO PAY for the health care of the other party and minor children to the extent that care would have been covered by the existing health coverage, but for the dissolution of the marital status, and shall hold the other party harmless from any adverse consequences resulting from the loss or reduction of the existing coverage. OUCH!
As I noted above, the bifurcating party, in essence, becomes the health insurer for the other party pending resolution of the reserved issues in the case following the Bifurcated Status Dissolution. To cover the health care costs of someone with a pre-existing condition can be a mighty expensive obligation, and the Court will, pursuant to Family Code Section 2337(c)(2), make a determination as to whether or not the bifurcating party has the ability to pay for such health care during the period between the bifurcation and resolution of the balance of the divorce issues in the case.
If the judicial officer feels that the bifurcating party may not be able to afford to pay the health care expenses of the other party pending determination of the reserved issues, the judicial officer may deny a reqested Bifurcated Status Dissolution.
If a Bifurcated Status Dissolution is sought against a person with significant health problems, a competent divorce and family law attorney representing that person should perform discovery into the Bifurcating party's ability to pay significant health care expenses; if ability to pay is apparent, that person's attorney should ask the Court to require the Bifurcating party to post security to provide a fund to cover those expenses to ensure that payment will be forthcoming; if discovery reveals inadequate income or assets to cover such health care expenses, those facts and documents should be set forth in the opposing party's response to a motion for bifurcation, along with historical documents reflecting the non-bifurcating party's ongoing and anticipated continuing health care needs and expenses, as justification demonstrating why the Court should deny the motion.
Another consideration could be argued. COBRA coverage is available only for three years following a Status Dissolution, and is costly. The advantage of COBRA coverage is that there is no exclusion for pre-existing conditions.
A party with pre-existing conditions will likely find it impossible to secure health insurance coverage following expiration of the COBRA period. The COBRA period begins upon entry of the Status Dissolution. The Bifurcating party would be required to pay the COBRA costs pending resolution of the reserved issues in the case. However, the clock would start to tick on the three years of COBRA coverage upon entry of the Status Dissolution, effectively shortening the period of time during which the party with pre-existing conditions could obtain health coverage [since the ATROs during the pendency of the divorce case restrain the parties from cancelling insurance coverage; during the marriage, employment-realted health insurance coverage invariably provides for coverage of spouses and dependents - even with pre-existing conditions, at reasonable cost].
Those factors, coupled with the non-bifurcating party's inability to afford the COBRA payments after the reserved issues are resolved, could be presented and argued to the Court by a competent divorce and family law attorney as justification why the Court should not grant a Bifurcated Status Dissolution.
Another area of opposition to a Bifurcated Status Dissolution comes to mind. After 10 years of marriage, a spouse is entitled to derivative Social Security benefits, i.e., that spouse has the election of receiving his/her own Social Security benefits, or if the other party earned significantly more, that spouse has the election of receiving Social Security benefits calculated on the basis of the other party's contributions to the Social Security system. So if a Bifurcation is sought by the wealthier party at a point 9-1/2 years into the marriage, a Court may well pay attention to an opposition to the Bifurcation seeking to delay termination of marital status until after the 10-year mark.
It is after 1:00 a.m., so these examples will be all that I post tonight - more may follow. Perhaps I'll follow with a blog reflecting some of the protection areas that the Bifurcating party loses by bifurcating marital status. Whereas Family Code Section 2337 protects the non-bifurcating party, it requires a pound of flesh from the bifurcating party.
Please address to me any areas of divorce or family law on which you would like to see another Blog from me.
Posted by DONALD F. CONVISER, a Certified Family Law Specialist in Woodland Hills, California, owner of WARNER CENTER LAW OFFICES, effectively and aggressively representing clients in family law and divorce cases throughout the counties of Los Angeles and Ventura for over 35 years, based in the San Fernando Valley, and appearing before Superior Courts including Los Angeles, Van Nuys, San Fernando, Simi Valley, Ventura, and many others, representing divorce and family law clients in matters involving (or opposing) Bifurcation of Marital Status, premarital agreements, prenuptial agreements, divorces, paternity, stepparent adoption, nonmarital dissolution, child custody, visitation, child support, spousal support, and all other areas of divorce and family law practice.
Sunday, April 26, 2009
UNTYING THE KNOT EARLY: BIFURCATION OF MARITAL STATUS
Certified Family Law Specialist DONALD F. CONVISER, owner of WARNER CENTER LAW OFFICES in Woodland Hills CA, a divorce and family law attorney who has been aggressively and effectively serving clients in Los Angeles and Ventura counties for over over 35 years, offering a free confidential consultation regarding your divorce or family law problems, brings you another informative blog, addressing BIFURCATION OF MARITAL STATUS, in a series of blogs designed to inform and educate readers about various areas of Divorce and Family Law, and how he deals with challenges presented to him.
In my Friday, April 24, 2009 blog, entitled A CREATIVE APPROACH TO THE PRACTICE OF DIVORCE AND FAMILY LAW, I addressed services that I had performed for a client who had an exigent need to "untie the knot", i.e., obtain a Judgment terminating his marital status before the balance of his divorce issues were resolved, so that he could marry his fiance' before her U.S. visa expired.
Today, I'll address some of the mechanics, requirements and consequences for BIFURCATION OF MARITAL STATUS.
Before any party decides to seek Bifurcation of Marital Status, he/she should consider the consequences of a Bifurcation, which include the loss of valuable rights associated with marital status, and conditions which the Court may impose on the party seeking Bifurcation, and the possibility that a Court may not grant a Bifurcation under certain circumstances. Consult a competent divorce or family law attorney for guidance before you make such an important decision.
Bifurcation of Marital Status cannot become effective prior to the 6-month time limitation under FAMILY CODE Section 2339: "Waiting Period Before Dissolution Judgment Becomes Final" - the clock on which begins to tick only upon service of a copy of the Summons and Petition on the Respondent [the "cooling-off period" mandated by the legislature for parties to re-think dissolving their marriage; until the early 1970s, the initial Judgment issued by the Court was only an "Interlocutory Judgment" and the "Final Judgment" couldn't be filed until at least 6 months later].
Bifurcation is consistent with the legislative policy of the Family Code to allow quick dissolution of Marriage. The FAMILY LAW ACT, as augmented and interpreted by the Judicial Council rules, authorizes a trial court, in its discretion, not only to bifurcate the trial, but to enter a separate judgment of dissolution before other issues have been litigated. [In re Marriage of FINK (1976) 54 Cal.App.3d 527]. Consistent with the legislative policy favoring no-fault dissolution of marriage, the moving party needs only slight evidence for bifurcation. [GIONIS vs. Superior Court (1988) 202 Cal.App.3d 786, 790]. California Rules of Court, Rule 5.175, authorizes the bifurcation of one or more issues to be tried separately before other issues are tried. Family Code Section 2337(a) provides that upon noticed Motion, the court may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues.
An APPLICATION OR RESPONSE TO APPLICATION FOR SEPARATE TRIAL [Judicial Council Form FL-315] must be included with the Notice of Motion. That form was revised in January, 2009 from the former APPLICATION FOR SEPARATE TRIAL, and is the current form adopted for mandatory use by the Judicial Council for such purpose.
Family Code Section 2337(b) and Los Angeles Superior Court local Rule 14.17 require that the moving party serve his/her Preliminary Declaration of Disclosure with all required attachments on the nonmoving party, with the proposed Status Judgment, and file a proof of service with the Court, for a bifurcated dissolution of marital status.
Family Code Section 2337(d) requires that the moving party join his/her retirement or pension plan as a party to the proceeding for dissolution (divorce) prior to or simultaneously with entry of judgment granting status dissolution, and requires certain language to be set forth in an attachment to the Judgment granting status dissolution provisionally awarding, without prejudice, a separate interest equal to 1/2 of all benefits accrued under the specific plan(s), naming the plans, during the marriage, and requiring the plans to continue to treat the parties as married (or domestic partners as the case may be) for purposes of any survivor rights or benefits available under the plan, among other required language.
A BIFURCATION OF STATUS OF MARRIAGE OR DOMESTIC PARTNERSHIP - ATTACHMENT [Judicial Council Form FL-347, adopted for Mandatory Use - new as of January 1, 2009] must be attached to the proposed Judgment, and the Court will impose certain conditions and may impose certain other conditions set forth in Family Code Section 2337(c) upon the moving party if it grants the Motion for Bifurcation of Marital Status and a Status Dissolution of the Marriage, and the Court will reserve jurisdiction for later determination of all other pending issues in the case.
If you have any questions or concerns about BIFURCATION OF MARITAL STATUS, or any other Divorce or Family Law matter, call DONALD F. CONVISER at 818-880-8990 for a free confidential consultation.
Posted by DONALD F. CONVISER, a Certified Family Law Specialist in Woodland Hills, California, owner of WARNER CENTER LAW OFFICES, aggressively and effectively representing people in divorce and family law cases throughout the counties of Los Angeles and Ventura for over 35 years, before the Superior Courts in Los Angeles, Ventura, Van Nuys, Simi Valley, San Fernando, Burbank, Glendale, Pasadena, Pomona, and Santa Monica, representing family and divorce clients in matters involving Bifurcation of Marital Status, premarital agreements, prenuptial agreements, divorces, paternity, stepparent adoptions, nonmarital disollutions, child support, spousal support, child custody, child visitation, and all other areas of family law and divorce law practice.
In my Friday, April 24, 2009 blog, entitled A CREATIVE APPROACH TO THE PRACTICE OF DIVORCE AND FAMILY LAW, I addressed services that I had performed for a client who had an exigent need to "untie the knot", i.e., obtain a Judgment terminating his marital status before the balance of his divorce issues were resolved, so that he could marry his fiance' before her U.S. visa expired.
Today, I'll address some of the mechanics, requirements and consequences for BIFURCATION OF MARITAL STATUS.
Before any party decides to seek Bifurcation of Marital Status, he/she should consider the consequences of a Bifurcation, which include the loss of valuable rights associated with marital status, and conditions which the Court may impose on the party seeking Bifurcation, and the possibility that a Court may not grant a Bifurcation under certain circumstances. Consult a competent divorce or family law attorney for guidance before you make such an important decision.
Bifurcation of Marital Status cannot become effective prior to the 6-month time limitation under FAMILY CODE Section 2339: "Waiting Period Before Dissolution Judgment Becomes Final" - the clock on which begins to tick only upon service of a copy of the Summons and Petition on the Respondent [the "cooling-off period" mandated by the legislature for parties to re-think dissolving their marriage; until the early 1970s, the initial Judgment issued by the Court was only an "Interlocutory Judgment" and the "Final Judgment" couldn't be filed until at least 6 months later].
Bifurcation is consistent with the legislative policy of the Family Code to allow quick dissolution of Marriage. The FAMILY LAW ACT, as augmented and interpreted by the Judicial Council rules, authorizes a trial court, in its discretion, not only to bifurcate the trial, but to enter a separate judgment of dissolution before other issues have been litigated. [In re Marriage of FINK (1976) 54 Cal.App.3d 527]. Consistent with the legislative policy favoring no-fault dissolution of marriage, the moving party needs only slight evidence for bifurcation. [GIONIS vs. Superior Court (1988) 202 Cal.App.3d 786, 790]. California Rules of Court, Rule 5.175, authorizes the bifurcation of one or more issues to be tried separately before other issues are tried. Family Code Section 2337(a) provides that upon noticed Motion, the court may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues.
An APPLICATION OR RESPONSE TO APPLICATION FOR SEPARATE TRIAL [Judicial Council Form FL-315] must be included with the Notice of Motion. That form was revised in January, 2009 from the former APPLICATION FOR SEPARATE TRIAL, and is the current form adopted for mandatory use by the Judicial Council for such purpose.
Family Code Section 2337(b) and Los Angeles Superior Court local Rule 14.17 require that the moving party serve his/her Preliminary Declaration of Disclosure with all required attachments on the nonmoving party, with the proposed Status Judgment, and file a proof of service with the Court, for a bifurcated dissolution of marital status.
Family Code Section 2337(d) requires that the moving party join his/her retirement or pension plan as a party to the proceeding for dissolution (divorce) prior to or simultaneously with entry of judgment granting status dissolution, and requires certain language to be set forth in an attachment to the Judgment granting status dissolution provisionally awarding, without prejudice, a separate interest equal to 1/2 of all benefits accrued under the specific plan(s), naming the plans, during the marriage, and requiring the plans to continue to treat the parties as married (or domestic partners as the case may be) for purposes of any survivor rights or benefits available under the plan, among other required language.
A BIFURCATION OF STATUS OF MARRIAGE OR DOMESTIC PARTNERSHIP - ATTACHMENT [Judicial Council Form FL-347, adopted for Mandatory Use - new as of January 1, 2009] must be attached to the proposed Judgment, and the Court will impose certain conditions and may impose certain other conditions set forth in Family Code Section 2337(c) upon the moving party if it grants the Motion for Bifurcation of Marital Status and a Status Dissolution of the Marriage, and the Court will reserve jurisdiction for later determination of all other pending issues in the case.
If you have any questions or concerns about BIFURCATION OF MARITAL STATUS, or any other Divorce or Family Law matter, call DONALD F. CONVISER at 818-880-8990 for a free confidential consultation.
Posted by DONALD F. CONVISER, a Certified Family Law Specialist in Woodland Hills, California, owner of WARNER CENTER LAW OFFICES, aggressively and effectively representing people in divorce and family law cases throughout the counties of Los Angeles and Ventura for over 35 years, before the Superior Courts in Los Angeles, Ventura, Van Nuys, Simi Valley, San Fernando, Burbank, Glendale, Pasadena, Pomona, and Santa Monica, representing family and divorce clients in matters involving Bifurcation of Marital Status, premarital agreements, prenuptial agreements, divorces, paternity, stepparent adoptions, nonmarital disollutions, child support, spousal support, child custody, child visitation, and all other areas of family law and divorce law practice.
Saturday, April 25, 2009
VAN HOOK: A valuable resource in this market
Certified Family Law Specialist DONALD F. CONVISER, owner of Warner Center Law Offices in Woodland Hills CA (818) 880-8990, offering a free confidential consultation regarding your divorce or family law concerns, representing Divorce and Family Law clients throughout Los Angeles county and Ventura county for over 35 years, brings you another informative blog, addressing the use of a VAN HOOK Motion to preserve the status quo during divorce proceedings, in a series of blogs designed to inform and educate readers about various areas of Divorce and Family Law, and how he deals with challenges presented to him.
I don't have to tell you what you already know: we are living in trying economic times - sales have drastically diminished, companies are going out of business, people are losing jobs, the values of their investments and homes have plummeted, people are having a hard time finding the money to pay their mortgages, real estate taxes, and homeowners' association dues, lenders are foreclosing, and that is having a snowball effect: marital stress is increasing, and people are divorcing at a faster rate.
In Marriage of VAN HOOK (1983) 147 Cal.App.3d 970, the Appellate Court authorized the entry of injunctive relief against a third party without the necessity of joining that third party in the divorce case proceedings, in order to preserve the status quo during the pendency of divorce proceedings, for the purpose of preserving community property until an equal division can be accomplished, stating at Page 986 of its opinion that the family law courts are allowed to freeze the assets of parties to a marital dissolution until the appropriate ownership, value, and equal distribution of the assets can be adjudicated.
In VAN HOOK, the Appellate Court authorized the issuance of preliminary injunctions restraining a judgment creditor of a spouse from executing on community property involved in a divorce proceeding,http://www.conviser.net upon the posting of an "undertaking" to protect the interest of the judgment creditor pursuant to Code of Civil Proceedure Section 529.
The VAN HOOK case authorizes the issuance in divorce cases of restraining orders to protect and preserve community property arguably even against foreclosures on mortgages in arrears.
I successfully used the VAN HOOK case as authority to tie up (and restrain distribution of any monies from) all of the 401K and pension assets of an estranged wife who had moved and spirited those assets out of California, until that case could be tried or otherwise resolved. When one party to a divorce remains in the family home, and the mortgage is in arrears, a VAN HOOK motion may be an appropriate vehicle to preserve the home pending trial or resolution of the divorce case.
A resourceful Divorce Attorney could concieve other creative uses for the VAN HOOK authority in Dissolution of Marriage and other Family Law cases.
Posted by DONALD F. CONVISER, a Certified Family Law Specialist in Woodland Hills CA, the owner of Warner Center Law Offices, representing divorce and family law clients in Los Angeles and Ventura County for over 35 years, before the Superior Courts in Van Nuys, Los Angeles, Simi Valley, Ventura, San Fernando, Burbank, Glendale, Pasadena, Pomona, Santa Monica, Torrance and a host of others, representing family law and divorce clients in matters involving premarital agreements (prenuptial agreements), divorces, paternity cases (the mother or the alleged father), stepparent adoptions, nonmarital dissolutions, child support, spousal support, child custody, child visitation, and all other areas of family law practice. Call for a free confidential consultation. (818) 880-8990
I don't have to tell you what you already know: we are living in trying economic times - sales have drastically diminished, companies are going out of business, people are losing jobs, the values of their investments and homes have plummeted, people are having a hard time finding the money to pay their mortgages, real estate taxes, and homeowners' association dues, lenders are foreclosing, and that is having a snowball effect: marital stress is increasing, and people are divorcing at a faster rate.
In Marriage of VAN HOOK (1983) 147 Cal.App.3d 970, the Appellate Court authorized the entry of injunctive relief against a third party without the necessity of joining that third party in the divorce case proceedings, in order to preserve the status quo during the pendency of divorce proceedings, for the purpose of preserving community property until an equal division can be accomplished, stating at Page 986 of its opinion that the family law courts are allowed to freeze the assets of parties to a marital dissolution until the appropriate ownership, value, and equal distribution of the assets can be adjudicated.
In VAN HOOK, the Appellate Court authorized the issuance of preliminary injunctions restraining a judgment creditor of a spouse from executing on community property involved in a divorce proceeding,http://www.conviser.net upon the posting of an "undertaking" to protect the interest of the judgment creditor pursuant to Code of Civil Proceedure Section 529.
The VAN HOOK case authorizes the issuance in divorce cases of restraining orders to protect and preserve community property arguably even against foreclosures on mortgages in arrears.
I successfully used the VAN HOOK case as authority to tie up (and restrain distribution of any monies from) all of the 401K and pension assets of an estranged wife who had moved and spirited those assets out of California, until that case could be tried or otherwise resolved. When one party to a divorce remains in the family home, and the mortgage is in arrears, a VAN HOOK motion may be an appropriate vehicle to preserve the home pending trial or resolution of the divorce case.
A resourceful Divorce Attorney could concieve other creative uses for the VAN HOOK authority in Dissolution of Marriage and other Family Law cases.
Posted by DONALD F. CONVISER, a Certified Family Law Specialist in Woodland Hills CA, the owner of Warner Center Law Offices, representing divorce and family law clients in Los Angeles and Ventura County for over 35 years, before the Superior Courts in Van Nuys, Los Angeles, Simi Valley, Ventura, San Fernando, Burbank, Glendale, Pasadena, Pomona, Santa Monica, Torrance and a host of others, representing family law and divorce clients in matters involving premarital agreements (prenuptial agreements), divorces, paternity cases (the mother or the alleged father), stepparent adoptions, nonmarital dissolutions, child support, spousal support, child custody, child visitation, and all other areas of family law practice. Call for a free confidential consultation. (818) 880-8990
Friday, April 24, 2009
A CREATIVE APPROACH TO THE PRACTICE OF DIVORCE AND FAMILY LAW
Donald F. Conviser, a Certified Family Specialist in Woodland Hills, California, owner of Warner Center Law Offices, representing Divorce and Family Law clients thoughout Los Angeles County and Ventura Count for over 35 years, brings you another informative blog, addressing time limits on service and prosecution of a divorce case, and how he creatively resolved a dilemma caused by a former pro-per's lack of diligence, in a series of blogs designed to inform readers about various areas of Divorce and Family Law practice and how he deals with challenges presented to him. Call (818) 880-8990 for a free confidential consultation regarding your divorce or family law problem or concerns.
Someone who had found my website through a Google search sought my services to "untie the knot" in his divorce to enable him to marry his fiance', whose visa in the U.S. was going to expire within six months. He had filed a divorce case in Pro Per (representing himself), and had it served just a day short of five (5) years later, but had failed to proceed with his divorce case.
My first concern was to preserve the case, for a number of reasons:
Code of Civil Procedure Section 583.210 required service of his divorce case within three (3) years after the case was filed [and he had failed to timely accomplish that];
Code of Civil Procedure Section 583.250 required that the case be dismissed without further prosecution;
Code of Civil Procedure Section 583.310 [Dismissal for Delay in Prosecution] required his case to be brought to trial within five (5) years of its filing; and
Code of Civil Procedure Section 583.360 required that the case be dismissed by the court on its own motion or on his estranged wife's motion, if not brought to trial within five (5) years of its filing.
If my client's divorce case were dismissed, he would have to file a new divorce case, but he would be unable to obtain a status dissolution of his marriage until a date at least six (6) months following service of the new divorce case on his estranged wife... which would be substantially beyond the date that his fiance's visa expired.
My job: how to resolve that dilemma. He needed a bifurcation of his marital status [i.e., splitting that issue from the balance of the issues in his divorce], and a status dissolution of his marriage, reserving jurisdiction for the Court to determine the balance of the divorce issues later.
I will deal with the details of bifurcation law at another time in another blog.
Today's blog is focused on the creative approach that I employed to resolve my client's dilemma.
Someone who had found my website through a Google search sought my services to "untie the knot" in his divorce to enable him to marry his fiance', whose visa in the U.S. was going to expire within six months. He had filed a divorce case in Pro Per (representing himself), and had it served just a day short of five (5) years later, but had failed to proceed with his divorce case.
My first concern was to preserve the case, for a number of reasons:
Code of Civil Procedure Section 583.210 required service of his divorce case within three (3) years after the case was filed [and he had failed to timely accomplish that];
Code of Civil Procedure Section 583.250 required that the case be dismissed without further prosecution;
Code of Civil Procedure Section 583.310 [Dismissal for Delay in Prosecution] required his case to be brought to trial within five (5) years of its filing; and
Code of Civil Procedure Section 583.360 required that the case be dismissed by the court on its own motion or on his estranged wife's motion, if not brought to trial within five (5) years of its filing.
If my client's divorce case were dismissed, he would have to file a new divorce case, but he would be unable to obtain a status dissolution of his marriage until a date at least six (6) months following service of the new divorce case on his estranged wife... which would be substantially beyond the date that his fiance's visa expired.
My job: how to resolve that dilemma. He needed a bifurcation of his marital status [i.e., splitting that issue from the balance of the issues in his divorce], and a status dissolution of his marriage, reserving jurisdiction for the Court to determine the balance of the divorce issues later.
I will deal with the details of bifurcation law at another time in another blog.
Today's blog is focused on the creative approach that I employed to resolve my client's dilemma.
My client's estranged wife was unaware that he was engaged to be married once the parties' marital status was dissolved, and my client assured me that she would not cooperate if she knew his plans.
His dilemma became my challenge.
I immediately researched and determined that Code of Civil Procedure Section 583.161 provides that no Divorce Petition shall be dismissed if an order for child or spousal support has been issued or a bifurcated marital status dissolution has been entered in the case.
Since the divorce case had been filed over five years before, I opined that to seek a bifurcation of marital status first would risk dismissal by the Court of its own motion at any moment, since a Motion for Bifurcation of Marital Status must be given on 45 days' advance notice, and the dismissal alarm on the ticking clock was about to ring . Further, I opined that to even seek the wife's cooperation to sign a Stipulation for Bifurcation of Marital Status might raise suspicion in the wife that my client may be seeking to remarry and jinx any other effort of mine to expedite the resolution of his issues within his fiance's visa expiration time limit. I chose to use Child Support as the method I would use in an effort to preserve the divorce case against the impending dismissal, because Child Support is a priority of the legislature and the Court, and I figured that the wife would welcome and cooperate with a Stipulation which would quickly result in an enforceable order for Child Support.
His dilemma became my challenge.
I immediately researched and determined that Code of Civil Procedure Section 583.161 provides that no Divorce Petition shall be dismissed if an order for child or spousal support has been issued or a bifurcated marital status dissolution has been entered in the case.
Since the divorce case had been filed over five years before, I opined that to seek a bifurcation of marital status first would risk dismissal by the Court of its own motion at any moment, since a Motion for Bifurcation of Marital Status must be given on 45 days' advance notice, and the dismissal alarm on the ticking clock was about to ring . Further, I opined that to even seek the wife's cooperation to sign a Stipulation for Bifurcation of Marital Status might raise suspicion in the wife that my client may be seeking to remarry and jinx any other effort of mine to expedite the resolution of his issues within his fiance's visa expiration time limit. I chose to use Child Support as the method I would use in an effort to preserve the divorce case against the impending dismissal, because Child Support is a priority of the legislature and the Court, and I figured that the wife would welcome and cooperate with a Stipulation which would quickly result in an enforceable order for Child Support.
It is (nearly) always best and most expedient to seek resolution via mutual cooperation of the parties.
I prepared a Stipulation and Order for "generous" temporary child support, providing that the wife may revisit the issue of child support at any time without the need to show a change of circumstances. My client feared that if I appeared as his attorney of record, his wife would immediately retain her own counsel, resulting in intolerable delays, given his fiance's upcoming visa expiration. We decided that to minimize the risks of delays, I would "ghost" the Stipulation and Order for him, so I prepared that Stipulation and Order with my client remaining in Pro Per.
It worked - his wife signed that Stipulation, I filed it, the Court signed its Child Support Order, and I was thereby able to preserve the divorce case and prevent its dismissal.
I then prepared, again in Pro Per, a Stipulation and Order for Bifurcation of Marital Status, a Preliminary Declaration of Disclosure for my client[including an Income and Expense Declaration and a Schedule of Assets and Debts] which is required for the Court to order the bifurcation, and a Status Judgment of Dissolution of Marriage which complied with the requirements of Family Code Section 2337 [among other documents required to obtain a status dissolution]. My legal assistant immediately served his Declaration of Disclosure .
Unfortunately, my client's estranged wife didn't cooperate - she suspected that he had consulted an attorney; she dragged her feet and ultimately refused to sign the Stipulation and Order for Bifurcation of Marital Status.
Time was running short for my client - his fiance's visa was then going to expire in three months. A Motion for bifurcation of marital status has to be given on 45 days' advance notice [as opposed to 16 Court days' advance notice of other Family Law Motions]. I made my client aware of the deadlines and we met to take an aggressive approach to resolve his dilemma.
I substituted in as attorney of record for my client, prepared, prepared, filed and served a Motion for bifurcation of marital status, the matter was heard 45 days later, the Court ordered the bifurcation and granted my client his Marital Status Dissolution, and my client married his fiance' in time!
I enjoy challenges and the opportunity to employ my creativity in solving them. Whereas most attorneys wait until the last minute to get the job done [with inherent risks that there may not be adequate time to do it well, or that something may happen that makes it impossible for the attorney to do that last minute job], I snap into action when presented with a challenge.
This dilemma afforded no time for delay.
I brainstormed at our first meeting, acted immediately and successfully to preserve a case that risked immediate dismissal, then diligently attempted a resolution of the exigent issue through cooperation of the adverse party, but I did not put all my eggs in that basket. When prompt cooperation wasn't received, I aggressively, diligently and timely sought and obtained my client's needed bifurcated status dissolution.
I consider putting all your eggs in one basket risky. A lot of attorneys put all their eggs in one basket, expecting cooperation from the other side, sometimes waiting for cooperation that never comes, missing deadlines, harming their clients, and risking malpractice suits.
A couple of weeks ago, three of my blogs addressed violation by an adverse wife of ATROs: it appeared that she had removed my client as beneficiary of her life insurance policy during the pendency of a divorce case. I didn't put all my eggs in the basket of the lip-service given by her attorney that she would have her client sign an authorization that I FAXed to the attorney; a month later, the attorney told me that she didn't remember agreeing to have her client sign the authorization [although when I called the attorney a week after I had sent the authorization, she told me that she had sent it to her client.]
In an abundance of caution, I had already subpoenaed documents from the life insurance company, because the wife is drinking herself to death and I need the records to verify whether the wife changed her life insurance beneficiary to enable me to quickly file an Ex Parte Application for an order restoring my client as the beneficiary, and perhaps to file a Contempt of Court ... before the wife kills herself with her drinking while her designated beneficiary is someone other than my client. A stitch in time saves nine.
My happily-remarried bifurcation client considers me a hero and contributed a testimonial that is set forth on the testimonal page of my website.
I invite you to call me at 818-880-8990 for a free confidential consultation about your divorce or family law dilemma.
Posted by Donald F. Conviser, owner of Warner Center Law Offices in Woodland Hills, California, a Certified Family Law Specialist serving clients throught Los Angeles and Ventura counties for over 35 years, including all of the San Fernando Valley, Northridge, Granada Hills, Encino, Van Nuys, Reseda, Tarzana, Woodland Hills, West Hills, Agoura, Calabasas, Westlake Village, Thousand Oaks, Moorpark, Camarillo, Oxnard, Ventura, Simi Valley, Los Angeles, Santa Monica, and beyond, employing a creative approach to the practice of divorce and family law, in all aspects of divorce and family law, including Divorce, Mastering Divorce, Premarital Agreements, Prenuptial Agreements, Child Custody, Visitation, Child Support, Spousal Support, Property Division, Nonmarital Dissolution, Paternity, Stepparent Adoption, and creative problem solving. I will be happy to answer your questions.
I prepared a Stipulation and Order for "generous" temporary child support, providing that the wife may revisit the issue of child support at any time without the need to show a change of circumstances. My client feared that if I appeared as his attorney of record, his wife would immediately retain her own counsel, resulting in intolerable delays, given his fiance's upcoming visa expiration. We decided that to minimize the risks of delays, I would "ghost" the Stipulation and Order for him, so I prepared that Stipulation and Order with my client remaining in Pro Per.
It worked - his wife signed that Stipulation, I filed it, the Court signed its Child Support Order, and I was thereby able to preserve the divorce case and prevent its dismissal.
I then prepared, again in Pro Per, a Stipulation and Order for Bifurcation of Marital Status, a Preliminary Declaration of Disclosure for my client[including an Income and Expense Declaration and a Schedule of Assets and Debts] which is required for the Court to order the bifurcation, and a Status Judgment of Dissolution of Marriage which complied with the requirements of Family Code Section 2337 [among other documents required to obtain a status dissolution]. My legal assistant immediately served his Declaration of Disclosure .
Unfortunately, my client's estranged wife didn't cooperate - she suspected that he had consulted an attorney; she dragged her feet and ultimately refused to sign the Stipulation and Order for Bifurcation of Marital Status.
Time was running short for my client - his fiance's visa was then going to expire in three months. A Motion for bifurcation of marital status has to be given on 45 days' advance notice [as opposed to 16 Court days' advance notice of other Family Law Motions]. I made my client aware of the deadlines and we met to take an aggressive approach to resolve his dilemma.
I substituted in as attorney of record for my client, prepared, prepared, filed and served a Motion for bifurcation of marital status, the matter was heard 45 days later, the Court ordered the bifurcation and granted my client his Marital Status Dissolution, and my client married his fiance' in time!
I enjoy challenges and the opportunity to employ my creativity in solving them. Whereas most attorneys wait until the last minute to get the job done [with inherent risks that there may not be adequate time to do it well, or that something may happen that makes it impossible for the attorney to do that last minute job], I snap into action when presented with a challenge.
This dilemma afforded no time for delay.
I brainstormed at our first meeting, acted immediately and successfully to preserve a case that risked immediate dismissal, then diligently attempted a resolution of the exigent issue through cooperation of the adverse party, but I did not put all my eggs in that basket. When prompt cooperation wasn't received, I aggressively, diligently and timely sought and obtained my client's needed bifurcated status dissolution.
I consider putting all your eggs in one basket risky. A lot of attorneys put all their eggs in one basket, expecting cooperation from the other side, sometimes waiting for cooperation that never comes, missing deadlines, harming their clients, and risking malpractice suits.
A couple of weeks ago, three of my blogs addressed violation by an adverse wife of ATROs: it appeared that she had removed my client as beneficiary of her life insurance policy during the pendency of a divorce case. I didn't put all my eggs in the basket of the lip-service given by her attorney that she would have her client sign an authorization that I FAXed to the attorney; a month later, the attorney told me that she didn't remember agreeing to have her client sign the authorization [although when I called the attorney a week after I had sent the authorization, she told me that she had sent it to her client.]
In an abundance of caution, I had already subpoenaed documents from the life insurance company, because the wife is drinking herself to death and I need the records to verify whether the wife changed her life insurance beneficiary to enable me to quickly file an Ex Parte Application for an order restoring my client as the beneficiary, and perhaps to file a Contempt of Court ... before the wife kills herself with her drinking while her designated beneficiary is someone other than my client. A stitch in time saves nine.
My happily-remarried bifurcation client considers me a hero and contributed a testimonial that is set forth on the testimonal page of my website.
I invite you to call me at 818-880-8990 for a free confidential consultation about your divorce or family law dilemma.
Posted by Donald F. Conviser, owner of Warner Center Law Offices in Woodland Hills, California, a Certified Family Law Specialist serving clients throught Los Angeles and Ventura counties for over 35 years, including all of the San Fernando Valley, Northridge, Granada Hills, Encino, Van Nuys, Reseda, Tarzana, Woodland Hills, West Hills, Agoura, Calabasas, Westlake Village, Thousand Oaks, Moorpark, Camarillo, Oxnard, Ventura, Simi Valley, Los Angeles, Santa Monica, and beyond, employing a creative approach to the practice of divorce and family law, in all aspects of divorce and family law, including Divorce, Mastering Divorce, Premarital Agreements, Prenuptial Agreements, Child Custody, Visitation, Child Support, Spousal Support, Property Division, Nonmarital Dissolution, Paternity, Stepparent Adoption, and creative problem solving. I will be happy to answer your questions.
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