Issues in Divorce

New Mate Income CAN NOT BE CONSIDERED in setting Child Support.

Knowles clarifies and reiterates the law that if you re-marry your new spouse’s income and even their assets may not be considered for purposes of establishing child support. In this case the Husband had joint assets with his wife and his ex-wife tried to get at these assets for child support. The appeals court clarified that the ex-wife could only get one-half of the income from these assets as only one-half was husband’s share of the community property assets. This case clearly sets forth a bright line standard— if you re-marry your new spouse’s income is off limits for purposes of establishing support. 

Furthermore, the Court also went on to state that Capital Gains should not be considered as income when the husband presented evidence as to a reasonable rate of return to his investments. This is an important holding as in many cases there is a supported spouse who has considerable investment income but that investment income is invested in stock or other non-income producing assets. In such cases it is appropriate to argue that the assets could be re-invested and generate a reasonable rate of return, thus lessening the payor-spouse’s liability for support. Child Support Calculator

Virtual Divorce: Defining the line between fantasy and reality

Online gaming has gone to new extremes.  In a story by the Associated Press, it details how a woman who was mad at her virtual husband took revenge by killing his online character in a game called “Maple Story.”

A Japanese piano teacher has been arrested for the murder of her virtual husband after an abrupt but messy online divorce. The 43-year-old from Kyushu province in southern Japan faces a maximum sentence of five years in jail if she is found guilty of killing off her digital partner.

She is accused of hacking into the profile of a 33-year-old office worker from Sapporo 620 miles away, whose avatar on the Maple Story computer game was married to her character until he unexpectedly demanded a divorce.

The spurned make-believe wife was so angry at being jilted that she logged into the game using her partner’s password and destroyed the character that he had spent a year creating.

The man was so upset at the killing of his vitrual MMORP character that he called the police and reported the killing. The police then put the women in jail on suspicion of illegally accessing a computer and manipulating electronic data, used his ID and password and killed is character. 

Think twice before you decide to take revenge on your virtual spouse by logging into their game account and trying to kill them off. While this isn’t the first time someone has committed such an offense, it is starting to become more common for them to be prosecuted.

 

Online divorcee jailed after killing virtual hubby

By MARI YAMAGUCHI, Associated Press

TOKYO: A 43-year-old Japanese woman whose sudden divorce in a virtual game world made her so angry that she killed her online husband's digital persona has been arrested on suspicion of hacking, police said Thursday. The woman, who is jailed on suspicion of illegally accessing a computer and manipulating electronic data, used his identification and password to log onto popular interactive game "Maple Story" to carry out the virtual murder in mid-May, a police official in northern Sapporo said on condition of anonymity, citing department policy. "I was suddenly divorced, without a word of warning. That made me so angry," the official quoted her as telling investigators and admitting the allegations. The woman had not plotted any revenge in the real world, the official said.

She has not yet been formally charged, but if convicted could face a prison term of up to five years or a fine up to $5,000. Players in "Maple Story" raise and manipulate digital images called "avatars" that represent themselves, while engaging in relationships, social activities and fighting against monsters and other obstacles. The woman used login information she got from the 33-year-old office worker when their characters were happily married, and killed the character. The man complained to police when he discovered that his beloved online avatar was dead.

Voluntary Declaration of Paternity: What It Is and What You Should Know

You are unmarried man and a woman just gave birth to a child that she says is yours. The mother and the hospital staff are asking you to sign something called a Voluntary Declaration of Paternity at the hospital.  What should you do? 

When both unmarried parents sign a Declaration of Paternity, it means they are the legal parents of the child. You have the choice of whether or not to sign the Declaration of Paternity, but once you do, you are recognized as the legal parent. When parents are married, paternity is automatically established in most cases. If parents are unmarried, paternity establishment is not automatic and the process should be started by both parents as soon as possible for the benefit of the child.

If you sign the declaration at the hospital, your name will go on the child's birth certificate, and the mother does not need to go to court to prove that you are the father of the child.  If they sign the declaration after the child's birth certificate has been issued, a new birth certificate can be issued with the father's name.

After a signed Declaration of Paternity is filed with the court, the judge can make orders for child custody, visitation, and child support. Unmarried parents who sign the Declaration of Paternity form help their child(ren) gain the same rights and privileges of a child born within a marriage. Some of those rights include: financial support from both parents, access to important family medical records, access to the non-custodial parent's medical benefits, and the emotional benefit of knowing who both parents are.

Caution! Once paternity or parentage is established, it can be difficult or impossible to undo-even if blood tests later show that you are not the father of the child.

 After parentage is established, you, along with the child’s mother have the responsibility to support the child.  You will be afforded benefits in the right to request custody or visitation with the child. 

 The signing of a Voluntary Declaration of Paternity can have long term implications in your life.  Before you sign one, consult with a lawyer to protect your rights. Dishon & Block’s team of Family Law Attorneys can assist with all aspects of paternity, child custody and visitation

"Mommy Can I Live With Daddy?"

Children's Choice In California

At what age can my child decide which parent to live with?

In some states, there is a certain/minimum age at which a judge will consider a child’s wishes.  However, the California divorce law does not provide a specific age at which a child may choose which parent they wish to live with.

Assuming that both parents have decided to establish different households, the initial position is that determination of child custody is an adult matter and children should not dictate with which parent they will choose to live.  This would be a classic example of “the tail wagging the dog.”  However, in certain circumstances, a child’s opinion is given some weight when there appears to be a certain level of maturity which means they can’t be easily influenced by parental pressures.  There is clearly no definite age when a court will automatically consider a child’s opinion, so each case is considered individually depending on the age, sophistication of the child, and dispute presented by the parties. 

To be clear, children do not testify in court because it is not in their best interest to be involved in their parent’s custody dispute.  This can place a child in a precarious situation because a child may fear alienating a parent’s love or affection by being forced to “choose” one parent over another. 

This fear of alienating a parent’s love can also result in another difficult situation -- a child may tell both parents that he or she wants to live primarily with that parent – making it likely that both parents will present completely contradictory positions because their belief is based on what the child has expressed to them.

One solution that the State of California has established to give a child a “voice” in the courtroom, is the appointment of an attorney for the child.  This attorney, referred to as “Minor’s Counsel” represents only the best interests of the child and not any one parent.  Minor’s Counsel may be appointed at the request of either party, or on the court’s own motion, and requires a court order to do so.  Once appointed, that attorney will contact the minor child, interview him or her, conduct a further investigation, and present those facts relevant to determining the best interests of the minor child to the court at time of hearing, either orally or by a written report.  Additionally, at the discretion of Minor’s Counsel and with the consent of the child, Minor’s Counsel may choose to indicate the child’s wishes orally at the time of the hearing.  The Court would then consider this evidence in determining where a child should reside and what kind of parenting plan is appropriate.

Another option to consider for older children is to involve them in the free custody mediation services offered by the courts.  At the request of either parent, a court may order that a minor child participate in mediation.  In this way, a child can directly express her or his preferences in a safe environment, where hopefully both parents will listen to those expressed desires.

Notwithstanding the above, as parents, it is always best for you both to decide the best parenting plan for your children.  When all is said and done, your child (ren) will appreciate being left out of your custodial dispute.

Gay Marriage is Legal | Now What About Gay Divorce?

 As many celebrate the recent Supreme Court ruling that allows gay couples to legally marry in the State of  California , what some don’t realize is that getting a divorce can be another hurdle for same-sex couples. The problem arises when couples who get married in states like California  or Massachusetts  arrive home to states where same-sex marriages are illegal.

For same-sex couples, the divorce process can be burdened with additional hassles, such as appearing in three different courts, including a civil court that treats the separation as a business breakup.

In addition to the standard questions about dividing assets and paying alimony, same-sex couples also find themselves confronting a host of sticky legal issues not faced by heterosexual couples, complicating a process that even under the best of circumstances can be emotionally exhausting and expensive. For instance, there's the federal government. For federal tax purposes, alimony is normally deductible for the person paying and counted as income for the person on the receiving end. But same-sex marriages don’t yet have standing in the eyes of the IRS.

Given the messy situation of recognition and non-recognition for same-sex relationships that currently exists in the United States, getting married in California, especially for non-Californians, is a serious decision with an assortment of complicated legal and financial consequences that can cost you.  

Everyone has the right to marry. The Supreme Courts in  California and Massachusetts  have taken the bold step of saying that the right to marry includes the right to marry a person of the same sex. However, gay couples who still live in the state where they got married can split up with little difficulty; the laws in those states include divorce or dissolution procedures for same-sex couples. But gay couples who have moved to another state are running into trouble. Getting a divorce could prove toughest in some of the 43 states that have explicitly banned or limited same-sex unions.

In  Rhode Island , for example, the state's top court ruled in December that gays married in neighboring Massachusetts can't get divorced in Rhode Island because lawmakers have never defined marriage as anything but a union between a man and woman. In Missouri, a judge is deciding whether a lesbian women who was married in Massachusetts can get an annulment. 

Obtaining a marriage license in  Massachusetts has been made relatively simple. But the rules governing divorce are stricter. Out-of-state couples could go  back to Massachusetts to get divorced, but they would have to live there for a year to establish residency first.

In the last few months, many people from across the country have come to California, gotten married and gone back home. The issues are going to have many practical ramifications in all of these other states that have passed either Constitutional amendments or Defense of Marriage Acts that say we do not recognize this kind of relationship.

The court will say that they don’t recognize you as a legally married couple. But, as with heterosexual couples, the likelihood of gay couples owning homes together, having kids in school and dealing with medical issues is very real. So, whether for it or against it, perhaps the courts might eventually have to deal with these situations and be forced to figure out how these couples can divorce in their home states.

Is the Housing Slump Making it Easier to Divorce?

 We’ve all heard how the home-mortgage crisis in the U.S.has wreaked havoc in the real estate and banking industries, but now its affect is trickling down into other areas, such as divorce. With more and more consumers facing mortgage-payment increases, the number of foreclosures will likely climb even higher. The housing market slump is now having a major impact on divorce cases – not only how they’re being handled, but the increase in the number of divorces being filed. The financial pressure that comes with an escalating house payment or a foreclosure may indeed be playing a role in breaking up marriages.

Many say it's too soon for a study linking divorce to the country's recent foreclosure woes, but most attorneys and real estate agents probably don’t need a study to validate what we already know: the mortgage-industry crisis is causing an increase in the number of couples who are getting divorced. Real estate agents nationwide have seen the number of listings increase of which many are divorce sales.

In the last few months, median house prices saw their largest annual decline in nearly a decade, while sales for single-family homes nationwide dropped .5 percent with prices down 8.5 percent from a year ago, according to the National Association of Realtors. As shrinking home values, slow home sales and the credit crunch take their toll on American homeowners, splitting couples seeking to sell property are finding themselves in a tougher spot than ever before.

Because there is a whole new aspect of divorce that most couples never had to face in a flourishing economy. But, under the current market conditions, breaking up is harder to do than ever. Many divorcing couples are forced to live under the same roof because they can't afford to move on until their home gets sold. If a house doesn't sell, it can have a major impact on cash flow for child support, where people live, and on future taxes. Another problem being caused by the economic slump is owners who owe more on their homes than they are actually worth.

In many divorces, the family home is the biggest asset to be divided. When couples become involved in a divorce, the disposition of their home becomes the largest issue in the final resolution.  In the majority of cases, the home (if titled in joint name) is considered community property and subject to equal division.  Now, with the housing market in a slump, it is not uncommon for a house to remain on the market for a year, with not even as much as an offer.  Many people are forced into “short-selling” their home which results in little or no profit margin. Divorcing couples have a few different options for dealing with the house:

•   The spouses continue to co-own the house

•  One partner stays in the house and buys out the other partner’s share

• The spouses sell the house and divide the proceeds

If a couple that agrees to split the equity in their home as part of a divorce settlement and it stays on the market for a long period of time, this limits their ability to go and purchase a new home. Rental property rates are skyrocketing and combined with the high cost of living expenses, couples are being forced to continue live in the same house, or one spouse may be stuck in the house with an overwhelming mortgage. Either situation makes it extremely difficult to move on with their lives and gain any closure. And, in order for one spouse to buy the other out, they have to be able to afford it, which many can’t these days. So, the dilemma becomes that one person wants to sell at all costs and the other wants to hold the house until the real estate market rebounds. Once these arguments reach court, judges are being put in the position of becoming real estate analysts.

This leaves me wondering how much more complicated, stressful and time-consuming divorces will become – and I’m sure I’m not alone on this concern.

If you are going through a divorce, the team of  family law attorneys at  Dishon & Block can assist you with settlement negotiations involving the most complex property issues. We regularly handle all aspects of family law and work with clients in Orange and Los Angeles counties. Contact our office to schedule a consultation with one of our attorneys.

Same Sex Marriage in California

                                                                                                                            
The status of same-sex marriage in California known for its large gay communities and generally liberal political climate, has been a political issue since at least the late 1970s.

On May 15, 2008, the Supreme Court of California overturned the ban on same-sex marriage. The four-to-three decision made California the second state, behind Massachusetts, to allow full marriage rights for same-sex partners. Barring a last-minute injunction, marriage licenses will be issued to same-sex couples starting on June 14, 2008.

California had already permitted domestic-partner registration, a right similar to civil unions found in other states. This grants "same-sex couples all state-level rights and obligations of marriage — in areas such as inheritance, income tax, insurance and hospital visitation" but does not apply to "federal-level rights of marriage that cannot be granted by states."

California Supreme Court overturns gay marriage ban

In a 4-3 decision, the justices rule that people have a fundamental 'right to marry' the person of their choice and that gender restrictions violate the state Constitution's equal protection guarantee

By Maura Dolan
Los Angeles Times Staff Writer

May 16, 2008

SAN FRANCISCO -- — The California Supreme Court struck down the state's ban on same-sex marriage Thursday in a broadly worded decision that would invalidate virtually any law that discriminates on the basis of sexual orientation.

The 4-3 ruling declared that the state Constitution protects a fundamental "right to marry" that extends equally to same-sex couples. It tossed a highly emotional issue into the election year while opening the way for tens of thousands of gay people to wed in California, starting as early as mid-June.

The majority opinion, by Chief Justice Ronald M. George, declared that any law that discriminates on the basis of sexual orientation will from this point on be constitutionally suspect in California in the same way as laws that discriminate by race or gender, making the state's high court the first in the nation to adopt such a stringent standard.

The decision was a bold surprise from a moderately conservative, Republican-dominated court that legal scholars have long dubbed "cautious," and experts said it was likely to influence other courts around the country.

But the scope of the court's decision could be thrown into question by an initiative already heading toward the November ballot. The initiative would amend the state Constitution to prohibit same-sex unions.

The campaign over that measure began within minutes of the decision. The state's Catholic bishops and other opponents of same-sex marriage denounced the court's ruling. But Gov. Arnold Schwarzenegger, who previously has vetoed two bills in favor of gay marriage, issued a statement saying he "respects" the decision and "will not support an amendment to the constitution that would overturn" it.

The ruling was greeted with loud cheering and whooping when it was released at the high court's headquarters here Thursday morning. About 100 people lined up outside to purchase copies of the decision for $10 apiece. Some people bought 10 to 15 copies, calling it a historic document. One man said he planned to give them out as Christmas presents.

Gay groups planned celebrations up and down the state.

"I can finally say I will be able to marry John, the man that I love," said Stuart Gaffney, one of the plaintiffs in the case, referring to his partner of 21 years, John Lewis. "Today is the happiest and most romantic day of our lives."

Conservative and religious-affiliated groups denounced the decision and pledged to bring enough voters to the polls in November to overturn it. Mathew Staver, founder of Liberty Counsel, called the decision "outrageous" and "nonsense."

"No matter how you stretch California's Constitution, you cannot find anywhere in its text, its history or tradition that now, after so many years, it magically protects what most societies condemn," Staver said.

The decision came after high courts in New York, Washington and New Jersey refused to extend marriage rights to gay couples. Only Massachusetts' top court has ruled in favor of permitting gays to wed.

The court's ruling repeatedly invoked the words "respect and dignity" and framed the marriage question as one that deeply affected not just couples but also their children. California has more than 100,000 households headed by gay couples, about a quarter with children, according to 2000 census data.

"Our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation," George wrote for the majority. "An individual's sexual orientation -- like a person's race or gender -- does not constitute a legitimate basis upon which to deny or withhold legal rights."

Many gay Californians said that even the state's broadly worded domestic partnership law provided only a second-class substitute for marriage. The court agreed.

Giving a different name, such as "domestic partnership," to the "official family relationship" of same-sex couples imposes "appreciable harm" both on the couples and their children, the court said.

The distinction might cast "doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples," George wrote, joined by Justices Joyce L. Kennard, Kathryn Mickle Werdegar and Carlos R. Moreno. All but Moreno were appointed by Republican governors. George was appointed by Gov. Pete Wilson in 1991.

The ruling cited a 60-year-old precedent that struck down a ban on interracial marriage in California.

The three dissenting justices argued that it was up to the electorate or the Legislature to decide whether gays should be permitted to marry.

In 2000, 61% of California voters approved a ballot measure, Proposition 22, that said "only marriage between a man and a woman is valid and recognized in California."

Since then, the Legislature has passed one of the strongest domestic partnership laws in the country, giving registered same-sex couples most of the rights of married people.

"In my view, California should allow our gay and lesbian neighbors to call their unions marriage," Justice Carol A. Corrigan wrote in the first sentence of her dissent.

"But I, and this court, must acknowledge that a majority of Californians hold a different view and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not."

Justice Marvin R. Baxter, joined by Justice Ming W. Chin, said the ruling "creates the opportunity for further judicial extension of this perceived constitutional right into dangerous territory."

"Who can say that in 10, 15 or 20 years, an activist court might not rely on the majority's analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?" Baxter wrote.

The decision takes effect in 30 days. Gay couples would then be permitted to marry in California, even if they do not live in the state, gay rights lawyers said. Under federal law, however, other states would not have to recognize those marriages as valid. And same-sex couples would remain ineligible for certain federal benefits, including Social Security benefits for spouses and joint filing for income taxes.

Lawyers on both sides of the debate said they were uncertain how a victory for the proposed November initiative -- which both sides predict will qualify for the ballot -- would affect gay couples who marry during the next several months.

University of Santa Clara law professor Gerald Uelmen, who has closely followed the state high court for decades, said he was "blown away" and "very surprised" by the ruling.

"The court is exerting some leadership here, and I think it needs to be said that it is a new role for the court," Uelmen said.

"This has not been a court that has been willing to stick its neck out and lead the way on cutting-edge issues like this that involve such strong political feelings."

Uelmen said the court's vote probably reflected the fact that a growing number of Californians favor marriage for gay couples. He noted the case attracted a record number of friend-of-the-court briefs, most of them in favor of same-sex marriage.

Although critics of the ruling, including the dissenters, argued the court should have waited for the voters to decide the question of same-sex marriage, "the majority is not always supposed to have its way" in constitutional democracies, said University of Pennsylvania constitutional law professor Kermit Roosevelt, one of many legal scholars who weighed in on the case Thursday.

Roosevelt predicted more states would follow California's example and that the U.S. Supreme Court would eventually rule in favor of same-sex marriage.

"That decision will come at the end of a process that is now just beginning," Roosevelt said. He predicted it would follow the pattern of state courts that struck down laws banning interracial marriage decades ago.

The decision followed several recent rulings by the state high court recognizing the rights of same-sex parents, including those not biologically related to their children. The children in those families figured prominently in the court's reasoning in those cases.

The road to Thursday's ruling began with San Francisco's highly publicized same-sex weddings, which in 2004 helped spur a conservative backlash in an election year and a national dialogue over gay rights.

Several states later passed constitutional amendments banning gay marriage, and same-sex marriage became an issue in the race for president.

After a month of jubilant gay weddings here, the California Supreme Court intervened and ordered the city to stop issuing licenses to same-sex couples.

The state high court later invalidated the licenses, saying the city should have waited for a judicial ruling before acting.

The plan by San Francisco Mayor Gavin Newsom, City Atty. Dennis Herrera and gay rights lawyers to challenge state law by marrying same-sex couples was carefully drawn.

City officials chose the first couples to wed, hoping their long unions and sympathetic stories would put a face on same-sex marriage that courts would find difficult to reject. The city also decided to begin the weddings on a day when courts were closed to deprive opponents of quick legal intervention. One of the first couples to wed has since separated.

The long parade of weddings at City Hall -- across the street from the California Supreme Court -- provided a dramatic backdrop for the gay rights debate.

As the issue moved into the high court, Brad Sears, executive director of the Williams Institute at UCLA's law school, which examines sexual orientation and the law, said the state's broad domestic partner law had undercut the traditional argument that children were better off being raised by opposite-sex parents.

"Taking those issues off the table, which the domestic partners act did, might have made this an easier case for everyone," Sears said. Once the state recognized the right of gays to rear children, the fight for same-sex marriage was shaped as "the right to have a family" and the ruling became "about family being protected."

The court concluded that giving gays a separate institution -- domestic partnership -- "marked gays and lesbians as second-class citizens," Sears said.

The Massachusetts high court ruling that permitted gays there to marry did not give sexual orientation the same kind of constitutional protection that Thursday's decision did, nor was the Massachusetts ruling as explicit in stating that marriage licenses must be given to same-sex couples in the immediate future, legal analysts said.

Sears said recent polls show that Californians are divided over same-sex marriage. Forty-three percent of Californians supported gay marriage in a Field Poll taken a year ago.

He added that the issue was likely to affect the political debate even outside California.

"It is going to give some new teeth to an issue that was losing its potency in terms of being a wedge issue," Sears said.

SPYING ON YOUR SPOUSE’S COMPUTER? What Digital Evidence Means for the Future of Divorce

Like many other things in our lives, technology has changed the face of divorce forever. Whether text messages, cell phone records or email messages, digital evidence has increasingly become part of nearly every contentious divorce case and/or custody issue. With people relying more and more on digital communication and paperless transmissions, the computer has become an even more integral part of daily life.

A recent poll conducted by the American Academy of Matrimonial Lawyers found that 88 percent of its members surveyed had seen a "dramatic increase" in such evidence. Statistics from many electronic discovery and computer forensics firms indicate that more than a third of electronic discovery cases are divorce-related. In divorce, digital evidence can be the most damning in terms of financial deceit/disclosure and/or ex-marital affairs. The evidence can be devastating.

Employing a private investigator isn't the only way to gather evidence in divorce or child custody proceedings anymore. Valid and dependable methods to recover data from computers as part of discovery in divorce proceedings are becoming essential for divorce lawyers. This is particularly true in cases with larger estates, complicated business or real estate holdings or multi-jurisdictional assets. Snooping through files, staking out hotel rooms and snapping photos have been replaced with forensic hard drive examinations, key logging and sophisticated software tracking programs which often provide more concrete and excuse-proof evidence. And, there’s more. There are newer technologies also being used to collect evidence against spouses. Cell phone records are almost always admissible in divorce court, E-Z pass toll records have been subpoenaed to catch cheaters in lies and GPS devices have been sneakily applied to vehicles by suspicious spouses in order to track one’s whereabouts.

In light of this new kind of evidence, it’s critical to hire an attorney and computer forensic expert capable of finding critical information and effectively presenting it in court.

A forensic analysis can serve as a valuable tool in high conflict divorce cases where there is suspicion of wealth transfers or prove infidelity. Information that can be obtained can include:

• e-mail and instant messages
• user names and passwords;
• names and addresses of financial institutions
• asset and/or fund transfers;
• debt information and account activity
• Recovering deleted, encrypted, or damaged file information.

What many people don’t realize is that deleted information is never truly deleted. Re-formatting the hard drive of a computer does not erase stored data; it usually just erases the links that point to where the data can be located. And the harsh reality is that in many instances, the most important evidence is proof that there was the attempt to destroy data. The consequences of discovering undisclosed assets or other relevant information in divorce can be profound. The party that fails to disclose the asset during the divorce process may be required to pay attorney's fees turn over the asset to the other party or to the court in a receivership proceeding in addition to calling into question that party's credibility in the proceedings. Actively pursing this avenue of investigation may be the difference between losing out on significant assets or uncovering a plethora of financial information including investments and real estate holdings even if they are held in the name of another person or sheltered as part of a holding company.

For example, in one particular divorce proceeding that I handled, discovery was served to acquire financial records and emails related to one spouse’s income derived from his business. It was later discovered through emails from this spouse to his business partners, that he was funneling significant funds from the business to three different people as well as a dummy corporation in order to get around reporting the income.

In another case, discovery was used to prove infidelity. This is becoming a more common practice in highly contentious custody proceedings because this evidence can be used to prove one spouse’s priorities are with this “personal relationship” rather than with their children. Another use for electronic discovery in custody issues is using a computer’s search history to prove discrepancies in one spouse’s lifestyle including such behaviors as gambling and pornography.

The digital path left by cheating or financially deceitful spouses provide evidence so powerful, it can't be denied. The law is struggling to keep up with new technology. The divorce laws in many states are evolving to accommodate the increase of evidence extracted from computer hard drives, but the legal bounds are arguably still unclear. Family court judges are faced with tough decisions about the legality of such evidence and in the absence of established laws in certain states addressing digital evidence; they are forced to make difficult judgment calls about what constitutes a violation of privacy.

Divorce is very common in today’s legal landscape and electronic discovery continues to play a critical role. High stakes battles over marriage settlements and child custody arrangements make each attorney’s strategy the key to an optimum outcome. 

New California Spousal Support Law Could Increase Payments

A new California Divorce law allows a spouse receiving income from child support to seek an increase in his or her spousal support upon the maturity of the minor child. This law, (Family Code §4326), which is set to terminate on January 1, 2011, considers the loss of child support income incurred by a parent when the child becomes no longer eligible for support, (e.g. reaches the age of 18 or graduates high school) to be a “change in circumstances” substantial enough to justify a request to modify their spousal support.

This new law presents a departure from prior court rulings. In a 1999 case, In re Marriage of Lautsbaugh (1999) 72 Cal.App.4th 1131, 85 Cal.Rptr.2d 688, a California Appeals Court reversed a decision granting a wife a $350 increase in her monthly support payments. The wife claimed such an increase was justified because her daughter had graduated from high school, and was no longer eligible for child support.

In reversing the trial court, the Court of Appeals reasoned that the loss of child support payments upon the daughter’s reaching maturity was contemplated by both parties during the initial divorce proceedings and was therefore an expected change. The court went to state that a change previously accounted for, cannot justify an increase in California spousal support. In the end, the court held that when the daughter graduated, her father’s child support obligations terminated.

While the rationale of the Court of Appeals makes sense, the new law effectively nullifies Lautsbaugh and seemingly broadens the definition of a “material change” to include previously contemplated events. In addition, the provision interrelates the two types of support, which have been historically separate and should remain that way.

Although this current state of the law does not go so far as to require California family courts to now consider modifying a spouse’s support anytime a change in financial status occurs, it definitely eases the burden of proof. Whether the parent will be required to show that their expenses, and not those of the child, justify a change in support, remains to be seen. Whatever the eventual outcome, Family Code §4326 will likely be a source of much debate in the coming years, especially if it remains in effect after January 2011.

Texas proceeds with DNA tests this week to try to determine exactly who parents and siblings are in Polygamist Raids

Originally Posted Apr 22, 2008, 01:28 pm CDT                                          
By Martha Neil 

Updated: As the state of Texas proceeds with DNA tests this week to try to determine exactly who parents and siblings are in a controversial custody case that, at last count, involved 437 children, lawyers for the families—as well as some observers—are expressing concern about possible violations of parents' constitutional rights.

No one seems inclined to argue that the state exceeded its authority by removing teenage girls from a situation in which at least 20 of their counterparts living on a ranch run by a polygamous sect reportedly had become pregnant by age 16, or even earlier.

But more troubling is the planned separation from their parents of all other children who had been living at the Yearning for Zion ranch, including infants still being nursed by their mothers, even though there doesn't appear to be clear-cut evidence that at least many of them were neglected or physically abused, according to the Dallas Morning News and other media reports. A total of 77 of the 437 children removed from the ranch earlier this month by state Child Protective Services workers are children age two and younger.

Judge Barbara Walther so far has rebuffed pleas by nursing mothers that they be allowed to continue to care for their babies after DNA testing is completed, reports the Salt Lake Tribune. (However, since this post was originally written, authorities have apparently relented, as far as the babies are concerned. And, meanwhile, a state appellate court has agreed to hear an emergency appeal of the removal of all of the children, as discussed in a subsequent ABAJournal.com post.)

Authorities say they need to separate children from their parents while they investigate, because this will help them to determine what actually happened and proceed with their case without parental interference. However, parents point to minimal or nonexistent evidence of abuse concerning many of the children. And even a state expert admitted in his testimony last week that many of the children apparently have not been physically abused, although he considered the authoritarian role of their church to be "abusive," at least as far as teenage girls reportedly being pressured into "spiritual" marriages with much older men already married to other women are concerned.

The massive two-day hearing last week after which Walther upheld the state's custody of all of the children has been criticized as lacking requisite due process protections mandated under both the Constitution and state law. And Kevin Dietz, an attorney with Texas RioGrande Legal Aid who represents 45 mothers from the Fundamentalist Church of Jesus Christ of Latter Day Saints, said some of his clients did not even receive notice of the legal proceedings, let alone have a chance to tell their side of the story.

"They had no meaningful way to participate, and no evidence was presented against them," he says.

"I think it is an incredible and astounding exercise of police power," James Harrington, a civil rights attorney, tells the Dallas newspaper. "You can't take away a kid from their parents by saying, ‘Hey, maybe later on there might be some abuse.' It's a way of flipping the Constitution around so that they now have to prove they're innocent instead of the state having to prove they're guilty."

However, Jack Sampson, a family law professor at the University of Texas, says the law sets a low legal threshold for temporarily taking custody of children, in an effort to protect them, as the state has done here. "You don't have to prove abuse at that first stage," he says.

Even with the help of DNA tests, figuring out who's who, among the parents and children, won't be easy because of the group's long-standing interrelationships, predicts the New York Times. And the central question of how old many of the teen mothers were when they gave birth, the newspaper says, will, by necessity, focus not on DNA tests but "spotty and ambiguous" community records.

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My Thoughts:

To treat all of these children and families as one big case, as opposed to looking at each child on a case by case basis is a gross miscarriage of justice and an abuse of due process.While the state has an interest in protecting children and preventing child abuse, the parents have a right to have their day in court on an individual basis, and have the state prove on a case by case basis that each individual child is in fact a victim of child abuse and should be removed from their parents.Taking a child away from their parents is a drastic remedy, its a last resort. This case smacks of religious discrimination -- here the state is alleging that all 400+ children have been mistreated by all of their parents without making specific allegations on a case by case basis. This is a tragedy for these families and the children. Many of the children likely have very good family environments. These parents and children are deeply religious and believe in the life they have been living. They should be free to continue to live their lives free from government interference unless the government can prove in a particular instance that a particular parent perpetrated child abuse against a particular child. These children will be scarred for life, they will be removed en mass from their parents and from a deeply religious and insulated world that they are familiar and in many cases happy with and exposed to a secular world, placed in group homes or foster care with people who are secular and do not care about them. This case reeks from  of religious persecution-- this country was founded on the basis of freedom of religion and personal liberty.  The pilgrims came to this country because they were persecuted for their religious beliefs in Europe and could freely practice their faiths in America. The State of Texas and the courts should respect the right of each citizen of this country to determine what religious views they wish to hold, and their right to raise their children and family as they see fit without government interference. You have a right to raise your children as you see fit, and the government should not be able to interfere with your family unless they can prove with a significant degree of certainty, that you are mistreating or abusing your children. To allow otherwise is opening the door to having the government and courts run our families-- it is not far fetched to imagine that in certain states the government could remove your children because you are gay, because you decide to home school your children instead of sending them to public school, because you are opposed to vaccinating your children, because you are a medical marijuana patient, the list goes on.