Family, Wills and Estate Planning

Thursday, December 22, 2011

Custody Battle Turns Ugly When Wife “Tricks” Husband into Drunk Driving

BY AARON KASE

A California woman allegedly tricked her estranged husband into a DUI, providing a prime example of how not to behave when engaged in a custody battle.

Man sues wife for using private investigator and police to entrap him in DUI
DUI supposedly to be used as evidence against man in custody case
Could ultimately cost wife custody instead, along with other penalties

Judgement Clouded with Wine

How far is too far when trying to make a spouse look bad during divorce proceedings? Apparently, manufacturing a DUI charge against your husband to gain the upper hand in a child custody case crosses the line, and then some.

According to plaintiff Mitchell Katz, his soon to be ex-wife Alicia Spenger hired a private investigator totrick him into driving drunk. In a civil rights suit against Spenger and others, Katz claims that investigator Christopher Butler got him to drink too much under the guise of discussing a T.V. reality show based on Katz's wine business.

Butler's employee Carl Marino met Katz at a Danville, Ca. wine bar and plied him with women and drinks, according to the suit. Then, when Katz left the bar, he was followed by Contra Costa County Sheriff's Deputy Stephen Tanabe, who soon pulled him over for not using his turn signal and subsequently arrested him for failing a field sobriety test. Deputy Tanabe allegedly told his partner that the stop was a "dirty DUI" and a "set-up."

To continue the ruse, Marino went so far as to tour Katz's Pleasanton winery even after the DUI arrest. Later, his conscience apparently got the better of him and he apologized, writing in an email supplied to the court by Katz:

"'The first thing I want to do is apologize to you for my part of the set up. As you can see, I never wanted to be involved in Butler's shady activities and that is why I put an end to them and also let the DOJ [United States Department of Justice] know what was done to you and others. I hope you can forgive me and understand that ultimately I was the good guy in this.' …"

Katz is seeking damages for a host of civil rights violations from his wife and other parties involved, including the town of Danville and Contra Costa County.

Dirty Tricks Don't Impress the Court

The set-up, if true, could come back to haunt Spenger during the divorce proceedings. "That is completely unethical," says family law attorney Terry Szucsko, a partner at San Francisco firm Lvovich, Volchegursky & Szucsko LLP. While parties normally look into each other's assets and behavior in divorce and custody cases, they can't break the law to gain an advantage over each other.

Some of the factors a judge might look at when deciding custody, according to Szucsko:

"A recent DUI would be a factor. If one parent doesn't have a license, how can that parent transport the children?"
"Domestic violence. Then there's a presumption that it is not in the best interest of the child to be with that parent."
"Willingness of one party to enable frequent and continued contact with the other party."

"The number one factor is what is in best interest of the children," Szucsko says. And while Spenger allegedly tried to portray Katz as a DUI perp, she may have unwittingly given the judge cause to distrust her own parenting. "If one person is advocating all these allegations to keep the child away from the other party, that would be a factor right there," the attorney says.

Can't We All Just Get Along?

There could be more consequences for Spenger as well. "If you could prove that the allegations were made up, or the allegations were only meant in this one-upmanship, or trying to gain an unfair advantage, that is a sanctionable event," Szucsko says—she could be forced to pay monetary damages. "If an attorney was involved, that would be an ethical violation and you could get disbarred."

The lawyer urges feuding parents to put aside their differences and try to come to a custody agreement without resorting to a judge, let alone underhanded tactics and tricks. "What the parents quickly forget is that there's a child involved," he says. "The judge's decision, most of the time neither one of the parties are going to like it. It's far better for them to come to a mutual agreement and work it out. They've got 18 years to go through this and they should try to get along."

Both marriages and divorces have been on the decline since 2000, according to the Center for Disease Control and Prevention. Roughly 49 percent of marriages end in divorce. With examples like this California couple, it's no wonder.

For more information on these matters, please call our office at 305 548 5020.

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Wednesday, December 21, 2011

The Prenuptial Agreement: the First and Last Word in Marriage

BY LAWYERS.COM

They say nature abhors a vacuum and I've been watching that principle playing out around me. Within the same four week period one of my friends announced his pending divorce and another one of my friends announced her engagement. Although they are at completely opposite ends of the marriage spectrum, they do have one thing in common: an intense need to look closely at a prenuptial agreement. One friend needs to make one while another one needs to enforce one.

A prenuptial (or premarital) agreement is basically a document explaining the understanding between two people on how they will handle divorce. Issues covered can range from division of assets to agreements about the payment of spousal support. It is essentially a contract, so, generally speaking, as long as the terms are clear and not completely one-sided they have a good chance of being recognized as valid. Not everyone needs or makes one of these agreements prior to marriage, but it never hurts to know all you can about them before deciding whether you want to get one and what you want to include in it.

Here are some things you should think about if getting married:

Amount of Assets and Debt – If you and your intended are just starting out in life and have pretty much nothing in the way of things you own and little or no debt, then a prenuptial agreement isn't as pressing an issue. However, if you're particular about money or just want things set down in stone in case you get divorced, consider a prenuptial agreement.
Age – The older you are, the more you might want to consider getting a prenuptial agreement. Age raises issues beyond death and divorce, including admission to nursing homes and medical costs that should be addressed prior to marriage.
Cost – Getting married is a costly endeavor. Prenuptial agreements are not necessarily cheap. One can run around $1500 and the partners should be represented by separate attorneys. If you have to make a choice between the wedding you want and the prenuptial agreement ask yourself which you would rather have. That leads us to the next point.
Level of Discomfort – This goes way beyond the financial discomfort of a prenuptial agreement to also cover the emotional discomfort. You probably think your marriage will last forever and, hopefully, you're right! With that in mind, don't be afraid to be honest with yourself and your partner (which is a good way to start off a marriage!). If you'd rather have an amazing bash and gamble on not ever needing that prenuptial agreement (roughly a 50-50 chance) then know what you'll be facing down the line if you lose. If you don't want to deal with the discomfort and legal hassle now, fine, but know that you risk greater discomfort and hassle later. Some people are gamblers, some aren't.

What if you're on the other side, preparing for divorce? What should you do with that prenuptial agreement?

Give it to Your Attorney Right Away – I know, a no brainer, but make sure that everyone is aware of what they're dealing with. Also make them aware of anything that may have changed since it was drawn up, like an asset that is mentioned that you no longer own.
Know the Likelihood of Enforcement – Not all terms of your agreement may be honored by the courts. There are many possible reasons for this. Make sure you discuss this with your attorney early on.
Remember, You Agreed to This – You might hate the terms of the prenuptial agreement that you signed. That's fine, hate away. Just remember that this is what you agreed to in advance. Unless you can prove that you were certifiably insane or somehow coerced into the agreement, remember that you can and will be held responsible for what you contracted to do or not do. It's a tough truth, but face up to your responsibilities.

Divorce is an unhappy subject whether it comes at the end of a long, trying marriage or the beginning of a short, blissful engagement. A few intense, honest conversations can help everyone immensely. A prenuptial isn't for everyone, but don't just assume that it's not right for you. Make an informed decision that you can live with regardless of what happens.

For more information on these matters, please call our office at 305 548 5020.

Tuesday, December 20, 2011

Mississippi Court Rules “Other Woman” Owes $88K for Marriage Breakup

BY JENNIFER KING

Melissa Simmons must pay her husband's ex-wife $88,000, a Mississippi appeals court ruled recently. Chrissy Strickland won the award after suing Simmons for her role in ending the marriage between Chrissy and Chuck Strickland.

The End of a Marriage

Chrissy and Chuck Strickland married in 1996 and had a child two years later. In 2007, while on a camping trip, the couple fought. Chrissie cut her trip short and left, taking their son with her. Chuck remained at the campground and while there, met Melissa and her then-husband Lane.

After returning home, Chuck and Melissa continued to communicate with one another. Though there's disagreement over how quickly their relationship turned physical, they were unquestionably engaged in an emotional affair. During one eight-week period, the pair was averaging two or three phone calls daily.

On September 17, 2007, both couples separated. Their divorces were finalized the following year, and Melissa and Chuck married one another.

Alienation of Affection & Emotional Distress

When someone files for divorce, they are essentially suing their spouse to end the marriage. Depending on the state in which you reside, you may be able to file for a no-fault or a fault-based divorce.

A no-fault divorce means that both parties want to end the marriage and neither is being blamed for the breakup.
A fault-based divorce means the actions of one spouse were responsible for the end of the marriage. Reasons commonly cited in a fault-based divorce include abandonment, adultery andincompatibility.

Mississippi, where the Stricklands lived, allows for both fault-based and no-fault divorces, though it isn't known which option Chrissy and Chuck pursued. What is known is this: In 2008, Chrissy Strickland sued Melissa Simmons for alienation of affection and intentional infliction of emotional distress for Simmons' role in the Strickland's breakup.

Emotional distress describes the onset of anxiety or depression as a result of a sudden and sad event.
Alienation of affection means that Chrissy was accusing Melissa of depriving her of her husband's love and affection. In other words, if Melissa hadn't come around, Chuck would have still loved her and they would have remained married. Only Illinois, Mississippi, North Carolina, New Mexico, South Dakota and Utah permit a spurned spouse to sue for alienation of affection.

"Mississippi is one of the few states that still recognizes alienation of affection suits as a civil action for damages," says Jackson, Miss., lawyer Lindsey A. Boyd of the Lindsey A. Boyd Law Firm, PLLC. "Mississippi courts are greatly familiar with alienation of affection suits, which are commonly filed by a spouse against an alleged paramour in an adulterous relationship. Alienation of affection claims are feasible for a client whose husband or wife has abandoned the marriage due a third party's malicious, intentional acts which alienated the love and affection of the husband or wife away from the client."

If someone sues for alienation of affection and/or intentional infliction of emotional distress and wins the lawsuit, the plaintiff can collect two types of monetary awards: Compensatory damages and punitive damages.

Compensatory damages are meant to pay the victim for their loss. In the case of alienation of affection: How much was Chuck's love and companionship worth? And did Chrissy's standard of living change as a result of the divorce?
Punitive damages are designed to punish someone for their wrongdoing, and are only awarded if the behavior is willful and malicious.

In Chrissy Strickland's case, the trial court ordered Melissa Simmons to pay her $87,500 in compensatory damages and $500 in punitive damages. The case was appealed to a higher court, which agreed with the trial court's decision.

In his decision, Appeals Court Judge Kenneth Griffis wrote:

"The cell phone records show that Melissa called Chuck more than twice as much as he called her. A few months later, Chuck abandoned the marriage, saying that he was in love with Melissa…Based on these facts, there was sufficient evidence for the jury to infer that, but for Melissa's active interference, the marriage of Chuck and Chrissy probably would not have ended."

For more information on these matters, please call our office at 305 548 5020.

Monday, December 19, 2011

The Manimony Trend: Men Getting Alimony from Their Ex-Wives

The man of the house used to unilaterally earn more money than the woman, but that is not necessarily so in the 21st century. Women continue to narrow the income gap, which has resulted in some unforeseen consequences, particularly when it comes to divorce.

"Interestingly enough, part of the ramifications of women getting better jobs, getting higher pay and receiving equal rights are certain penalties, such as orders of spousal support in divorce proceedings," says Kenneth Altshuler, president of the American Academy of Matrimony Lawyers (AAML), a professional organization for family law attorneys.

As women begin to earn more, more men seek alimony.
Lawyers accuse the family law system of inherent gender bias.
Attorneys advocating for fathers' rights may actually hurt your case.

The Increasing Prevalence of "Manimony"

There are no hard statistics on how many more men receive alimony now than in the past. But there are some related statistics and plenty of anecdotes that point to a definite rise.

"I would call it a mini trend," says Ned Holstein, the founder of Fathers and Families, an advocacy group that pushes for family

court reform. "Gender roles in our society have largely converged, and the public strongly supports gender neutrality in matters of family court."

In addition, a study put out by the AAML in 2010 showed that 52 percent of divorce attorneys cited an increase in women initiating the request for aprenuptial agreement. This number indicates that women may be increasingly more concerned about protecting their assets in the event of a divorce.

But there's more than income that has prevented men from receiving spousal support from their wives. Experts cite the inherent gender bias in the family court system as a significant barrier to men receiving alimony, or manimony as some call it.

"Family courts are the last big bastions where gender bias is going forward unquestioned," Holstein says. "It occurs in all major issues, including spousal and child support. It's an archaic notion that is holding out, but it won't hold out forever."

Altshuler cites the fact that family court judges usually have a lot of discretion when it comes to making awards of spousal support. This, he says, can result in inherent gender bias.

"You can never take away the human factor," Altshuler says. "Most judges are male, and I'd say most male judges have a visceral rejection of the concept of women paying alimony to men because it is not traditionally what we in our society do. If you have a man making $300,000 and a woman making $50,000 versus the other way around, I would almost guaranty that the order for spousal support would be different 95 percent of the time."

Seeking Alimony as a Man

One of the other significant factors that affects why women receive alimony more often than men is that men simply don't seek spousal support.

"There is a substantial portion of men that don't want to ask for alimony from women because they don't see it as being very manly," Holstein says. "And they are entitled to that opinion."

But as gender roles within the office and in the home become less defined, the need for men to seek spousal is increasing as well.

Although each state has its own means when making determinations of alimony, the courts usually first look at the disparity of income. As women take on the role of breadwinner more frequently, a higher number of husbands will have incomes that are significantly lower than their wives.

Additionally, some courts also consider contributions as a homemaker. This goes back to when women were generally the prime caregiver within the relationship and would often sacrifice working for childrearing. Now, as more men assume the role of homemaker, there is a greater need for them to be fairly compensated at the end of a marriage.

If you are a man who is seeking a divorce and plan on requesting spousal support, there are some things you should consider when selecting a lawyer.

Holstein recommends seeking out an attorney who is familiar with the legal landscape in your jurisdiction.

"You are always best off choosing an attorney who knows the judges," Holstein says. "If you can find a way to ascertain which attorneys know the judges and what those judges believe, you are best off."

Altshuler says to seek out a family law attorneywho has ample experience advocating a position at trial.

"I would prefer a seasoned trial attorney over a lawyer that focuses primarily on mediation," Altshuler says. "The issue with mediation is that you are trying to reach an agreement, so it does not necessarily entail advocating a position."

As for lawyers that advertise themselves specifically as fathers' rights attorneys, both Holstein and Altshuler agree that it's merely a marketing gimmick. In fact, Altshuler believes that an attorney who represents himself as a fathers' rights lawyer can actually hurt your case.

"When you portray yourself that way, you lose credibility with the judge because the judge knows you are not advocating for your client but for a philosophy," Altshuler says. "Credibility is everything in family law."

By Keith Ecker

For more information on these matters, please call our office at 305 548 5020.

Saturday, December 17, 2011

Divorced Fathers Less Likely To Receive Child Support, Census Shows

New information about child support payment from the census bureau shows that when it comes to custody cases, fathers are still getting the short end of the stick.

Mothers more likely to get custody, child support
Fatherless homes lead to troubled children
Men need to be proactive to protect rights in custody cases

It Pays To Be Mom

The latest census information reveals that of the 13.7 custodial parents in the country, only one in six are fathers. The report, which uses 2009 data, notes that while 55 percent of custodial mothers are entitled to child support, only 30.4 percent of fathers are awarded money from an ex-spouse.

The figure is a sharp drop from 2007 numbers, when support was awarded to 40.4 percent of fathers.

"When mom is awarded custody, it is almost twice as likely that she will be awarded child support than if dad is awarded custody," says St. Louis family law attorney Joseph Cordell, principle partner of Cordell and Cordell, P.C. "As a law firm that focuses on representing men in family law cases, these numbers are unfortunately not surprising."

"These statistics reinforce the antiquated notion that mom should take care of the kids and dad should serve as an ATM," Cordell says. "On the rare occurrence when a father is deemed the primary custodial parent, these stats prove he should consider himself lucky and he does not need child support like a custodial mother would be awarded."

Know Your State's Law

"You'll be hard pressed to find a child custody law that is more favorable to fathers than mothers," Cordell says. "Many states' child custody laws specifically say the child is entitled to maintaining a relationship with both parents, but those same laws do not outline the quantity of time each parent has to establish and foster that relationship."

Divorce laws vary by state. California, for example, is a "no-fault" state, where couples do not need to state a reason for wanting a divorce. Illinois, on the other hand, requires that parties file for one of various reasons, including abuse, drunkenness, and impotence. All the tangled issues that come up in divorce proceedings can become part of thecustody ruling.

In general, judges make decisions in tricky issues like custody and child support when couples cannot come to an agreement on their own. As the statistics show, rulings do not come out favorably to men. "More than any other area of the law, family law judges have a huge amount of discretion, allowing ample opportunity for biases," Cordell notes. "Historically, these leanings have not worked in the favor of men."

Won't Somebody Think of the Children?

"It's important to remember that men and fathers are not the only victims when they are discriminated against and forced out of their children's lives by a biased family law system," Cordell says. "The children who do not have a father playing a significant role in their lives are also victims."

The attorney maintains a site on men's rights that details the consequences of children raised in fatherless homes, citing government statistics showing they make up:

63% of youth suicides
71% of pregnant teenagers
90% of all homeless and runaway children
70% of juveniles in state-operated institutions
85% of all children that exhibit behavioral disorders
80% of rapists motivated with displaced anger
71% of all high school dropouts
75% of all adolescent patients in chemical abuse centers
85% of all youths sitting in prisons

Real Men Protect Their Rights

"The best advice anyone could give a dad preparing for a child custody battle is to become as active as possible in the lives of his children and to document everything," Cordell states. "Almost every state determines custody and visitation issues based on the best interests of the child standard so it's important to show the judge that retaining an active role in your children's life is in their best interests."

He cautions men to not let their behavior in court prejudice a judge against them. "Irrational and aggressive behavior may have a profoundly detrimental effect on your case, so be mindful of your actions throughout the proceedings," the lawyer says.

Cordell maintains two websites with more resources and information for fathers looking to protect their rights:

Some other sites provide information for divorced men and men's rights in general:

By Aaron Kase is a news reporter for Lawyers.com.

For more information on these matters, please call our office at 305 548 5020.

A Comparative Study on the Relationship of Mother-in-law and Daughter-in Law in the Background of Changing Family Structure

posted by:

Cancer Research

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Of all the factors which influence marital happiness and family harmony in the modern home, the bad relationship between mother-in-law and daughter-in -law has the bad impact on the couple-law relationship which become the "second killer" second only to the extramarital affairs. It has been dubbed the impact of marital quality, "cancer." So we can say treatment-law relationship is the key to dealing with other relationships. As the accelerating process of the nuclear family structure, the growing manifestations of relationship between mother-in-law and daughter-in -law is also increasingly become one of the issues of concern.Semi-structured interviews and participant observation is used as main methods in this study on the basis of reading a lot of literature materials and observations. Purposeful sampling method is also used. The firsthand materials are obtained from 20 couples of mother-in law and daughter-in-law from Foshouwan,Rizhao City,Shandong Pronvince who are interviewed and observed by the investigator. The study is gone on the changing family structure on the background of the process of urbanization. Interviews are focused on four factors,such as the social factor, village factor, family factor and personal point .The daughter-in-law who are interviewed are born in from 1950 to1980s. On this basis, the role expectations theory are used to obtain first-hand material collations and analysis of qualitative data .Starting from the structure of the family,combined with the characteristics of the village, the relationship between mother-in-law and daughter-in-law is concluded,which are classified into many types,such as repression-subject type, exclusion-patient type, no problem at all type, indifference type,distance-based type, pay-return type,effort-not to please type and so on.By comparison, relationship between mother-in-law and daughter-in-law is found quite different under the three family structures which are stem families, nuclear families and ,and subtle changes occurred in a different way: the dissolution of mother-in-law groups and the rise of daughter-in-law groups, from single-labor-pay to both- emotional-pay, the way to deal with the internal contradictions is trended to internalization After the types of relationship are studied,the factors which affected the relationship are studied also,which conclude the social factor, village factor, family factor and personal point.Based one this,several methods are proposed:the mother-in-law and the duaghter-in-law should have a correct orientation,and should give full play to the role of intermediary and so on. At the end of the study, the conclusion about the relationship between mother-in-law and daughter-in-law is summarized by the investigator:the conflict between mother-in-law and daughter-in-law had become hidden from dominant, led by the mother-in-law to the balance of power;impact on the relationship began more diverse and complex;the rights and obligations between mother-in-law and daughter-in-law the is more obvious unequal.The root causes of conflict in mother-in-law and daughter-in-law, the understanding about"home"and the"filial piety"are all explored by investigator lastly. Maybe researchers will find more research goals later which inspired by the Research.

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Divorce Law and Family Law – What Issues You Should Talk to Your Family Attorney About?

By, Free New York Blog

While the issues contained in any family law case will depend on the specific facts of the case, there are a few general categories into which each of those issues can be placed. Make sure that you seek advice from your family law attorney about the following subjects:

1) Grounds for Divorce.

Most states have various grounds for divorce, not all of them created equal and not all of them very easy to prove. Separation grounds are most common, meaning that the parties have been separated for the statutory period required to obtain a divorce (usually one or two years). Additionally, many states have grounds for divorce based on adultery, cruelty or other domestic violence, desertion, and incarceration of one spouse for a specified period of time.

2) Child Custody.

Child custody and visitation issues are often times the most emotional. Many parents do not realize how much separation and, more specifically, their actions during and after separation affects the child or children. Instead of "our child," it becomes "my child," and instead of "the child's time with me," it becomes "my time with the child." These types of selfish thoughts run contrary to the standard in most states for determining child custody and visitation arrangements – the best interest of the child. Factors that the court uses to determine the best interest of the child vary wildly from state to state, but the most important factor is how to give the particular child the best chance of thriving in the future.

3) Support of Children.

Child support is determined pursuant to child support guidelines statutes. The guidelines maintain a presumption of correctness in terms of the amount of support, but this presumption is usually rebuttable. Practically speaking, most child support cases are determined per the guidelines, but the factors that the court takes into account when computing the guidelines also varies. Child support, despite the guidelines, is often at issue as people skew their incomes and various other important numbers.

4) Division of Property.

Property division systems, and the ideas behind them, are perhaps the most variable statutes depending on jurisdiction. A small number of states are community property states, usually meaning that each piece of property (except those acquired by gift or inheritance) is owned 50/50 by each spouse regardless of who actually bought or has title to the property. Non-community property states typically look at property according to title. In both types of systems, property is usually divided equally or equitably. It is important to note that equitable division does not necessarily mean equal division.

5) Spousal Support.

Alimony, or spousal support as it is often called, refers to funds paid from one spouse to the other for the purpose of providing support for living expenses. Spousal support can generally be awarded on a temporary basis through the expiration of the litigation, on a rehabilitative or definite basis through the expiration of some period of time in the future, or on a permanent basis.

6) Fees, Costs, and Suit Money.

Fees associated with even the simplest family law cases can be quite high, and increase exponentially as the case becomes more contested. Attorney fees, court costs, and suit money for expert fees, subpoenas, etc. are many times a hot topic throughout the litigation. More specifically, the question becomes who is going to pay for those fees. Many jurisdictions take the approach that whoever is at fault for the litigation should take at least some responsibility for the payment of fees. Others award fees when one party takes an unreasonable stance in the case. Still others rarely award fees and costs to anyone.

These six issues are the general subjects decided during by a typical family law case, if there is such a thing. Of course, the number of these issues that need to be decided vary depending on the specific facts of the case. Additionally, when and for how long these issues will be decided depend on the jurisdiction and the facts of the case.

Fofr more information on these matters, please call our office at 305 548 5020.