Strategic divorce: “No you stay in the house for now, I insist”

By the time most divorcing couples get to an attorney, most have already decided who gets to stay in the house until the divorce is over.  However, especially in light of the somewhat strange real estate environment, divorcing couples should think strategically upon exit.

The Law

To simplify a little, two landmark cases are used in nearly every divorce case in California.  They are Watts¹ and Epstein².  In Watts, the court determined that a spouse who uses community property after the date of separation owes the other spouse a fee for such use.  So, Watts charges are a fee on the use of marital property; whichever spouse retains the most significant property during their divorce will probably be hit with the most Watts charges.  Meanwhile, in Epstein the court held that a spouse who pays community debts after separation is owed a credit.  So, Epstein credits are a reimbursement charged against one spouse to the benefit of the other who paid a community debt. However, Epstein credits will not apply in certain situations, like if the spouse makes the payments for the debt out a shared bank account.  Interestingly, there was a strange period between Epstein in 1979 and Watts in 1985 when the law of California granted reimbursement for payment of community debt, but not for use of community property.

The Real Estate Environment

The recession has had incredible impacts on the real estate market.  Appraised values have dropped considerably, home sales are down, and renting has increased.  One of the results of the revamped rental market is that mortgage payments and rental fees, which should be somewhat similar, are sometimes quite different.  Traditionally, annual rental cost should equate to around 7% of the appraised value of a property.  So, if you have a $400,000 home, the estimated monthly rent would be around $2,200.  But, as a result of the housing downturn rental values have increased and have especially shot up in higher end homes.  Take for example this high end home in Camarillo with an estimate mortgage of $6,900/month and an estimated rental value of $11,523/month.  Although an extreme example, there can be great variance between rental and mortgage payments, especially on higher-value properties.

The Strategy

Before moving out of the family home, or making agreements about who will stay, make sure to do some research or call a real estate agent to determine what the approximate rental value of the property is.  If there is a great disparity between the numbers, you may want to live under the same roof to avoid Watts charges.  The typical (and stereotypical) pattern is that wives want to stay in the family home and kick the husband out.  This may not be in her best interest.  Even if she pays for the mortgage, if the rental value of the property is more than the mortgage, she will still owe the difference between the rental value of the home after separation and the mortgage payments she made post separation.  To make things even more complicated, separating couples can sign a temporary settlement agreement characterizing either mortgage payments or staying in the home during the divorce proceedings as support.  In this case, no Watts charges or Epstein credits are given since this is support.  If this seems somewhat complicated, that’s because it is; and it’s best to consult an attorney.  Besides getting an attorney, it turns out the best thing to do may be to pack a suitcase and get a hotel room.  It may be cheaper than the Watts charges you could accrue.

1. In re Marriage of Watts (1985) 171 Cal.App.3d 366, 378.
2. In re Marriage of Epstein (1979) 24 Cal.3d 76.

Occupy: police brutality, unconstitutional federal policing, and the suppression of journalism (Your speech is next)

First, I apologize for the sparse postings--however, finals time is upon me.

No matter where your political beliefs lie, no matter what you think of occupy wall street as a movement, the article linked here is eye-opening and shocking.  The ramifications of the Department of Homeland Security giving advice on a conference call with 18 mayors on how to suppress the occupy movement raises constitutional questions (see article here).  I am very skeptical of Occupy, considering the movements lack of uniting goals, the way in which protestors seem akin to 1960's hippies simply bringing forward a counter culture, the way the protestors seem to complain with no solutions all increase this skepticism.  But, no matter who these people are who what they believe in--no unarmed protestors should be beaten, no journalists should be told it is illegal to take pictures on the sidewalk, and no federal agency should be inciting suppression of civil rights.  First amendment rights are at stake here. 

If we all fall asleep at the democratic wheel, it will be our free speech infringed next time, and we will only have ourselves to blame because of our silence.

Void Child Support Agreements (Too bad so sad)

The Facts

A mother lives in California and retains legal custody of her son, who lives in Florida with the father.  The mother and father signed an agreement that was very much similar to this:

“Mother and father retain joint legal custody of minor.  Father promises to provide health insurance for minor.  Father shall not pursue any child support for minor.”

Years pass.  Dad fails to procure health insurance for son.  When son gets sick he fraudulently used mom’s social security number to get health care for the son.  A few weeks ago, days apart, mother is served with an order to show cause for child support; then is served with a lawsuit from a Florida agency demanding payment for health care related to minor. 

Mom says, “no problem, I have a letter right here requiring dad to pay for health care and agreeing not to collect support.”  Oh, boy.

Agreements Purporting to Limit Child Support Are Void

Many parents enter into agreements attempting to limit child support.  Courts encourage settlement agreements—even those regarding child support.  However, “such agreements, to the extent that they purport to restrict the court's jurisdiction over child support, are void as against public policy.  In re Marriage of Bereznak & Heminger, (2003) 110 Cal. App. 4th 1062, 1069. 

So does the agreement prevent the mom from having to pay child support?  Nope.  In fact, many parents out there who have valid claims to collect child support for their children falsely believe that formal and informal agreements like the one here stop them from filing an order to show cause for child support.  If a parent is not collecting child support, significant time has passed since the support started, or circumstances have significantly changed in any way—the parent should have an attorney evaluate any claim for increased child support that may exist.

Legal Custody and Healthcare Costs
Under Family Code § 3085, the court may grant joint legal custody and contemporaneously grant sole physical custody.  Generally speaking, parents with legal custody are responsible for the liabilities of their children.  

In this case, since mom has partial legal custody, she is responsible for making major decisions regarding her son—and also responsible for debts incurred by her son.  Even though the dad incurred healthcare costs and committed fraud while doing so, she is liable for the costs.  Mom will most likely have to pay the medical bills and assert a breach of contract claim against the father for the amount she already paid.

How to Avoid This Mess

This mess illustrates why it’s a good idea to get a family law attorney involved even if the parties are amicable.  Even if the parties draft agreements resolving the matter—they may not be enforceable.  In addition, parties may want to include the provision of healthcare in any court order so that it’s enforceable under contempt of court instead of simply under the principles of contract (which aren’t all that helpful).  Just ask this mother.

We Don't Protect Our Children

Almost all 50 states have an exception to assault: “reasonable corporal punishment of children that does not cause lasting bodily harm.”  So, you can treat your child in a way that you can’t treat anyone else.

CNN and other news outlets recently covered a story about Michael Pearl.  Pearl wrote a book To Train Up a Child, which uses old testament verses to support the use of corporal punishment of children.  A number of Pearl’s readers have recently been charged with murder when their children died from abuse.  A transcript of Anderson Cooper interviewing Pearl is available here.  There is a decent article about the interview here.

Last week, the daughter of a Texas judge released a video online (taken in 2004) in which the disabled daughter is beaten by her father and mother repeatedly.  The daughter has cerebral palsy and the beating was the result of her downloading music and playing video games online against her parents’ wishes.  To make things more ironic, the Judge tried cases of child abuse in his courtroom.  Law enforcement is investigating the incident, but it is unclear whether or not he will face charges (due to statute of limitations issues and the corporal punishment of children defense).  Even if he is not charged criminally, the Texas Bar should investigate and pursue professional discipline for a judge acting improperly and reducing faith in the judiciary.  The CNN article is available here.  Another article here.

We may have outlawed slavery and advanced women’s rights (somewhat) but we don’t do enough to protect our children.

Quentin Tarantino Thinks Birds Are a Nuisance (pterodactyl-like screams)

Last May Quentin Tarantino filed a complaint alleging his neighbor’s parrots are too loud—that their squawking keeps him up at night and disrupts him from working.  The parrots owners are Alan Ball (creator of True Blood) and his partner Peter Macdissi. 

Tarantino’s attorneys filed this fantastic complaint. 

Here are some of the highlights:

The Quote:

Normally when lawyers try and quote literature in complaints it comes off contrived and cheesy, but for some reason, I think this quote at the start of a nuisance complaint is brilliant.

“Another writer, Johann Wolfgang on Goethe, once said: ‘He is happiest be he king or peasant, who finds peace in his home.”

The Lead in (ego):

Some clients have tremendous egos that need to be stroked, even by their attorneys.  Some complaints start off describing the parties as “brilliant physicians” or “great artists.”  I’m not sure how this description of Tarantino is at all relevant to the complaint.

“Plaintiff Quentin is an Academy Award winning screenwriter and director, best known for having written and directed such films as Pulp Fiction (for which he won the Academy Award for best original screenplay); Reservoir Dogs, Kill Bill Vol. I, Kill Bill Vol. 2, and Inglourious Basterds, among numerous others.”

The Description of the Birds:

All complaints are subject to a fair degree of hyperbole, but give me a break.  This is what Tarantino has to say of his neighbor’s birds:

“They emit blood-curdling screams at random intervals for seven to eight hours each day.”

“Mr. Tarantino and others in his home are subjected to the Macaws’ obnoxious pterodactyl-like screams.”

“Their birds issue blood-curdling, pre-historic sounding screams…”

“…Macaw’s daily cacophony…”

“…Macaws, a large variety of wild parrot known for its intolerably loud screech and for behaving poorly in captivity.”

 There is no record of how this case was resolved, but I think Tarantino had a pretty fair chance of winning on the merits here.  This complaint goes to show how important a well written complaint is--and how ego permeates everything in Hollywood; even the law.

Grandma in The Devil’s Den (assumption of risk/happy halloween)

What happens when an 84 year-old goes through a haunted house with her family members and gets hurt?  A lawsuit happens.  I would love to have been the judge writing this opinion and I think the judge who did write it enjoyed himself a bit.  The attorneys all argue about the following:

1) Did the haunted house operator provided enough supervision?

2) Was the victim was pushed by other scared patrons?

3) Did the victim fall down because she was scared?                   

Assumption of Risk

The judge says all of this is unimportant.  He says she assumed the risk when she entered the haunted house and assumption of risk bars any recovery.  In California, this type of “assumption of risk” is termed “primary assumption of risk”, in which the defendant owes no duty to protect the plaintiff from a particular risk of harm, and the lack of duty operates as a complete bar to recovery.  The case law regarding primary assumption of risk is rather developed in some areas (like competitive sports) and remains undeveloped and unclear in other areas, leading to unpredictability.  Whether or not primary assumption of risk operates as a bar to recovery depends on the context and the defendant's role in, or relationship to, that context. 

The judge in this particular Louisiana case analogizes walking through a haunted house to walking through a crowd at a horse race, and finds assumption of risk applies.  So why does he talk about the haunted house in some detail?  Because it’s fun.

Taken from the case:

The facts are that two vacant houses in the City of New Orleans were made to take on an appearance of a haunted house. The rooms of both houses were decorated with ghosts, goblins, coffins and various other Halloween paraphernalia, so designed to frighten or startle the patrons. There were also accompanying sound effects which one would except at such a carnival. An admission charge was made for each who entered. Patrons entered the first of the two houses and made their way in single or double file from room to room, while viewing the various exhibits as they proceeded. They exited the first house, proceeded through a cemetery area provided by a yard separating the two houses and into the second house. The final room which the patrons visited was known as the ‘Devil's Den.’ It was in this room that plaintiff was injured. As is to be expected, the light inside the room was dim. While everyone gazed toward the make-believe devil's den, a person disguised as the devil was mechanically projected approximately six to ten feet into the room on an overhead track. Plaintiff was either jostled (plaintiff's version) to the floor by the estimated 25 patrons in the room, or she fell (defendant's version) in trying to get away from the area when the ‘devil’ was projected into the room.

Plaintiff claims that the failure to provide employees in the ‘Haunted House’ to supervise and to police the movement of the patrons constituted negligence. We find no merit to this contention. The trial judge, in written reasons, made the following conclusions of fact:

'There were at least three members of the sponsoring group stationed at the entrance to the ‘Devil's Den’ to limit the number of people who went in. There was also a special policeman on duty inside to control the movement of guests in and out. The room was of spacious dimensions, and no more than approximately 20 people were allowed in the room at any given time.'

The record supports these factual determinations. Nevertheless, it is clear in the instant case that plaintiff's assumption of the risk in going through this attraction bars her recovery. Particularly is this true since there is no claim or suggestion that the defective condition of the premises or unforeseen event caused the accident, other than the jostling by the young patrons.

Whether Mrs. Bonanno fell as a result of being jostled by the crowd or in a frightened attempt to get away from the ‘devil’ is unimportant. She obviously had knowledge that she could anticipate being confronted by exhibits designed to startle and instill fear. She had to realize that the very nature of the attraction was to cause patrons to react in bizarre, frightened and unpredictable ways . It would be inconsistent in this case for this court to allow plaintiff to recover for damages which resulted from her being frightened, precisely the effect that the ‘Haunted House’ was calculated to produce.

Bonanno v. Cont'l Cas. Co., (La. Ct. App. 1973)285 So. 2d 591, 591-92.

(Sidenote:  The actual event took place in 1968, the same year Halloween that Michael Myers supposedly first killed in the movie Halloween.)

Don't Be Gullible (please!)

Much of the time that attorneys and law students read cases, they focus on gleaning the law.  Sometimes the facts are so absurd—they stand on their own.  When I first read this case

1)      I couldn’t believe “Dr. Stevens” was so brazen;

2)      I couldn’t believe the victim was so gullible;

3)      I couldn’t believe there were previous victims;

4)      I couldn’t believe there were subsequent victims of this same scheme;

5)      I couldn’t believe this wasn’t rape (at the time).

The Facts (directly from the case):

Ms. R., the rape victim, was employed as a clerk at the Holiday Inn in South San Francisco when, on March 30, 1984, at about 8:45 a.m., she received a telephone call from a person who identified himself as “Dr. Stevens” and said that he worked at Peninsula Hospital.

“Dr. Stevens” told Ms. R. that he had the results of her blood test and that she had contracted a dangerous, highly infectious and perhaps fatal disease; that she could be sued as a result; that the disease came from using public toilets; and that she would have to tell him the identity of all her friends who would then have to be contacted in the interest of controlling the spread of the disease.

“Dr. Stevens” further explained that there were only two ways to treat the disease. The first was a painful surgical procedure—graphically described—costing $9,000, and requiring her uninsured hospitalization for six weeks. A second alternative, “Dr. Stevens” explained, was to have sexual intercourse with an anonymous donor who had been injected with a serum which would cure the disease. The latter, non-surgical procedure would only cost $4,500. When the victim replied that she lacked sufficient funds the “doctor” suggested that $1,000 would suffice as a down payment. The victim thereupon agreed to the non-surgical alternative and consented to intercourse with the mysterious donor, believing “it was the only choice I had.”

After discussing her intentions with her work supervisor, the victim proceeded to the Hyatt Hotel in Burlingame as instructed, and contacted “Dr. Stevens” by telephone. The latter became furious when he learned Ms. R. had informed her employer of the plan, and threatened to terminate his treatment, finally instructing her to inform her employer she had decided not to go through with the treatment. Ms. R. did so, then went to her bank, withdrew $1,000 and, as instructed, checked into another hotel and called “Dr. Stevens” to give him her room number.

About a half hour later the defendant “donor” arrived at her room. When Ms. R. had undressed, the “donor,” petitioner, after urging her to relax, had sexual intercourse with her.

Boro v. Superior Court, (1985) 163 Cal. App. 3d 1224

  

The Result

At the time “Dr. Stevens” committed these acts, it technically wasn’t rape under the California penal code at the time.  Within months of this case, the state legislature amended the California rape statute to include “fraud in the inducement.”  Sad for this victim.  Sad for the previous and subsequent victims.  Sad there are people like this out there.

Black and White (race and marriage)

Each person’s view of marriage is different.  It’s informed by one’s own familial experience (i.e. “I don’t want to get married because my parents divorced”).  It’s informed by culture, religion, and politics.  However, increasing evidence indicates that race has a dramatic impact on marriage.  First, how drastic is the racial disparity in marriage?  Second, how can we explain that disparity?  Third, what can we do about it?

Racial Disparity

In a recently published book, Is Marriage for White People?  How African American Marriage Decline Affects Everyone, Author Ralph Richard Banks describes the way race affects marriage rates.  A review of Banks’ book is available here.  Previous reports regarding comparatively low marriage rates amongst blacks focused on low rates amongst the black lower class.  Banks finds that the low marriage rate is consistent for blacks across all socioeconomic strata.

An article last year in the Economist (found here) cites a study which found a drastic difference in marriage between blacks and whites, differences in prolonged marriage, divorce rates, and birth to single mothers.  In addition, the study found that differences in marriage were also associated with differences in economic mobility.

Explaining the Disparity

Chalandra Bryant published a study, Understanding the intersection of race and marriage: Does one model fit all?  Bryant’s study includes a conceptual framework to help illustrate why there is a racial marriage disparity.  An abstract of her article including a look at this conceptual frame is available here.  Bryant explains racial differences in marriage as resulting from stressors that both interact and multiply—and are unique to the African American experience.


Banks explains the racial disparity in marriage rates as a result of black women's inability to find a committed partner in their lives--essentially blaming black men.  In addition, the fact that Banks notes res reduced marriage rates for blacks across socioeconomic strata discounts financial strain as a cause of the disparity.  Meanwhile, Bryant includes financial strain in her model.

Plan of Action (what can be done?)

Banks states (controversially) that black women should marry outside their race to increase their marriage prospects.  Bryant views individual perceptions of community disorder as affecting their behavior within relationships.  So, if community disorder is quelled, hostility within black relationships will be reduced, and as a result marriage will increase in value. 

Banks’ solution seems white-centered and…even racist.  

Bryant’s framework seems like a legitimate illustration of how stressors—unique to the black experience influence marriage and divorce within the community.  However, her solution of reducing community disorder seems to be a proxy for making black communities more white.  

There is a problem, we might understand what is causing it, but no one really has a solution.