Family Law in the Trump Era

Given the much-publicized intent of newly inaugurated President Trump to repeal the Affordable Care Act (“Obamacare”) and to clamp down on illegal immigration, questions are beginning to arise about how the new Administration in Washington, D.C. will affect family law cases here in California.

California has been at the so-called “bleeding edge” of social issues and movements for decades, many of which run counter to the beliefs of conservatives in the state and across the country.  And for better or for worse (I would argue “both”), the state shows no signs of slowing down that trend.  In family law, those social issues affect family law participants in three distinct ways.  First, with respect to same-sex relationships.  Second, with respect to health insurance issues.  And third, with respect to illegal immigration.

The good news for same-sex couples is that the United States Supreme Court ruled in June of 2015 that same-sex marriage is a fundamental right under the 14th Amendment to the United States Constitution. As a result, there’s not much that the new Administration can do short of trying to pass a Constitutional amendment, and so not much is likely to change in the relatively near future.

On the other hand, the bad news is that the Administration and its allies in Congress can do substantial damage to the healthcare system for those who need and rely on health insurance.  I say “bad news,” because thus far all we’ve really heard out of Washington, D.C. is bluster and hyperbole about “repealing” Obamacare, but not very much about how they intend to replace it.  One of the fundamental difficulties some spouses have after their marriages are terminated is that they no longer are eligible to remain on the other spouse’s health insurance plan through employment. Prior to the Affordable Care Act, couples frequently had to devise creative ways to maintain health insurance for a stay-at-home or an ill spouse, including sometimes not terminating the marriage at all (e.g. legal separation), or reaching agreements where the higher wage earner would subsidize the other spouse for some period of time.  In the wake of the ACA, the need for those creative solutions has mostly gone away because the premium subsidies and the guarantees of coverage for people with pre-existing conditions removed many of the barriers to insurance.  The best I can say about this issue for now, is to stay tuned.

Finally, there are concerns being raised by some in the family law community about whether or not undocumented residents of the state should be afraid to appear in court to litigate custody, visitation or child support for their minor children.  While I am no expert in immigration law, and don’t purport to have the answer to those questions, I tend to believe that those worries are a bit unfounded at this time.  The California family courts have never, in my experience, ruled against a party regardless of that party’s immigration status.  I have witnessed family court judges make the same custody, visitation, child support, alimony and property division orders in cases where one (or both) parties were undocumented as they do in cases where both parties are full-fledged citizens.

California law does not require the family courts to report immigration status to state or federal officials, and so they don’t.  In fact, the federal government can’t force states to comply with federal immigration law at all (although they certainly try and can influence states’ decisions by threatening to withhold federal money).  Until there is some major policy shift in California to require cooperation with federal immigration law, which I don’t see coming anytime in the near or not-so-near future, I don’t expect that the family courts will operate in any other manner than that in which they currently do.  Now, having said that, there is one caveat:  family court proceedings in California are almost always open to the public, which means that any member of the public who attends a hearing in which a party is identified as an undocumented resident could potentially make a report to immigration authorities.  Yet, my sense is that these kinds of tips fall to the very bottom of the pile for immigration authorities who are already overworked, underpaid and overwhelmed with their own caseloads.

For more information about California family law and divorce issues, please contact attorney Gary D. Sparks at (925) 465-2500 or (707) 398-6008.  You may also contact us directly through our website by clicking on the “Contact Us” links and buttons to the right of this article.

Depression and Mental Illness: Lessons from Robin Williams’ Heartbreaking Death

130814-robin1Depression and mental illness are very real, and can have very dangerous consequences if not properly treated or left untreated.  I thought I would take a moment today to discuss these issues while the country — no, make that the world — mourns the apparent suicide yesterday of actor and comedian, Robin Williams, in Tiburon, California.

I will admit that I used to (wrongly) believe that depression, and mental illness as a whole, were a fiction invented by lazy, weak-minded people. Perhaps this was a byproduct of my upbringing in a strict Catholic, half-German, half military family. It was expected that “men were men,” things were black and white with no shades of gray (e.g. right is right and wrong is wrong) and people had to learn to “suck it up,” face their troubles and move forward.

Although this perspective is still held by many people today, nothing could be further from the truth. Fortunately, this target is gradually moving in the right direction.  Depression and other forms of mental illness affect millions of people around the world. You probably know someone right now who suffers from mental illness of some kind, although you may not be aware of it.  These are not all weak-minded people; many of them are quite strong.

It is a given that when our bodies are faced with sickness and illness, we don’t feel well and we don’t function well. But the same holds true when our minds are faced with sickness and illness.  We just don’t see it as easily.  And, because of the societal stigmas associated with mental illness, many people who suffer from it hide it behind closed doors.  As a result, we live in a country where suicide is the 10th leading cause of death and, on average, 105 people commit suicide every single day according to the United States Centers for Disease Control (CDC).

I work in family law, perhaps the most stressful area of law known to man. I routinely work with clients who are experiencing the worst times of their lives. Whether you are facing a broken marriage, child custody dispute, or division of money, retirement and assets, family law is extremely personal and can leave a life-long scar that may take many years to heal, if ever. I should know; I have regrettably been divorced two times, and still suffer from the scars of each marital break up. I’ve fought the custody and financial battles, and still struggle to remain relevant in my eldest son’s life. Additionally, I have also experienced a close family member’s struggle with depression and witnessed her accompanying battle with internal demons.

But this article is not about me.  It’s about the clients I see, on an almost daily basis, who struggle with the issues raised by their divorce or family law case. One client, who is also a good friend of mine now, was nearly paralyzed by stress for the first three months as his marriage was ending.  Other clients sit in my office and have complete breakdowns resulting from the stressors and legal problems that they face.

robin-williams-dead-obit-2As we learn more about Robin Williams’ death, details begin to surface.  Williams had previously been divorced twice and faced substantial financial difficulties afterwards, grappling with how to manage his money (or lack thereof) and to downsize his lifestyle.  He purportedly returned to doing a television show because he needed the paycheck, and it has been reported in the mainstream media today that the recent cancellation of that show put him into a tailspin.  Williams also had a very public history of battles with alcoholism, substance abuse and mental illness.  People who know him have described him as having a very “dark side,” although he himself did everything possible to ensure that we, the public, always saw the side of him that was “on” — spontaneous, witty, crazy, creative or even manic.  Williams was not the only person fighting those battles or trying to hide them, but he’s definitely the most visible right now.

There are many resources available today to help people who are struggling with stress, pressure, depression, or other mental illness.  Sometimes it’s as simple as calling your doctor or a local therapist.  Whenever I speak with clients who appear to be struggling, I encourage and push them to meet with a counselor as soon as possible so they can begin the process of getting help, relief, medical treatment or just an outlet for venting (divorce lawyers are too expensive for venting!).  I generally even suggest this to clients who don’t outwardly or visibly show signs of needing help.  There is nothing wrong with asking for help, but there is plenty wrong and at risk with not asking for it.

I have been asked by several people to post a link on my site to the National Suicide Prevention Lifeline (http://www.suicidepreventionlifeline.org), and I am happy to do so.  The National Suicide Prevention Lifeline is a 24-hour, toll-free, confidential suicide prevention hotline available to anyone in suicidal crisis or emotional distress. By dialing 1-800-273-TALK (8255), the call is routed to the nearest crisis center in their national network of more than 150 crisis centers. The Lifeline’s national network of local crisis centers provide crisis counseling and mental health referrals 24/7, day and night.

The world has lost an amazing talent, and his family has lost an amazing man, father and husband.  I hope that we can all learn from his heartbreaking death how dangerous depression and mental illness can be, and that in the aftermath of this tragedy we become more compassionate, supportive and encouraging to those who are suffering, and more aware of those who are suffering quietly.  If the publicity surrounding Williams’ death brings some light to those in need, and if we are able, somehow, to slow the pace of suicide among those with mental illnesses, then perhaps something good will have come out of something so terribly bad.

For more information about California family law and divorce issues, please contact attorney Gary D. Sparks at (925) 465-2500 or (707) 398-6008.  You may also contact us directly through our website by clicking on the “Contact Us” links and buttons to the right of this article.

Images courtesy of Reuters and Variety.

 

 

 

 

Beware the Urban Legends of California Divorce

Those of us who practice divorce and family law in California for a living frequently hear our clients complain that their spouses have made one sort of threat or another… anything from “you’ll never see the kids again” to “I’ll make sure this divorce bankrupts you,” and so on.

Thanks to San Diego family law attorney Paul Staley for his take on these threats, which he calls “urban legends” because they are frequently believed but mostly not true. I thought I’d share them here with readers of my blog because it is important to understand that these threats are, well… just threats. Keep in mind that there is a big difference between what your spouse says and what the Judge says. And guess which one is more important?

Here are the common urban legends per Attorney Staley:

1. “I’ll quit my job before I pay you that much support.” Not likely. This is usually an attempt to bluff you into a lower support amount. Ask your attorney whether you should “call” this bluff. Document the statement right away. Write down the date, circumstances and exact words used. Better yet, if the spouse sends this to you by e-mail or, in a letter, save it for use as evidence.
Judges do not tolerate this kind of bullying and they can find interesting and painful ways to send that spouse the message.

argument2. “It doesn’t make sense for us to be paying two lawyers; it’s just a waste of money that we could otherwise keep. Let’s just both use mine.” Aside from the obvious conflict of interest here, the spouse making this plea wants to control you and the process by controlling how much advice and information you get. Don’t fall for this. Good legal advice and representation may not be inexpensive, but often its value is priceless.

3. “You have no right to take what’s mine away from me.” Usually refers to a pension earned by the complaining spouse. The error is that it’s not just his/hers: earned during the marriage, it belongs to both of you. Your request for half of that is fair and the law entitles you to it.

4. “I’m taking the children to North Carolina (or Texas, or some other place) and filing the case there.” If the other parent makes this threat, and actually does move without your permission, it’s time to get into Court quickly because they might actually get away with this, at least in part, if you wait too long to do something. There are different rules for which “jurisdictions” can do what, with regard to: children, property, and marital status.

5. “You’ll never see the children again.” Usually an attempt to get you to stay in the relationship. California law presumes frequent and continuing contact with both parents is a good thing, so this is seldom a legitimate threat.

6. “Your attorney is just running up your bill with all these documents he’s demanding that I provide. Call him off.” Any family law attorney is going to need to see documents which relate to your and your spouse’s financial situation. Otherwise, the attorney can’t advise you on what you should expect or demand. Trust your lawyer on this.

7. “You didn’t work a day during our marriage, just stayed home and took care of the kids. Hell will freeze over before you get a dime of my retirement.”Usually it’s a husband who makes this threat, since stay-at-home moms still outnumber stay-at-home dads (about 4-1). A spouse making this threat has no power to make good on it, since the court can and will just order the employer directly to pay the stay-at-home parent.

8. “I’ll go to jail before I pay support to you.” Jail time is among several tools the judge has available to enforce a support order, but it’s seldom necessary. This is a common bluff. For anyone with a paycheck, it’s easy enough to extract support involuntarily, but most people just pay it.

9. “I’ll only pay support if I know the money is going to the children. I want receipts for everything you spend that child support check on.” California law does not require the supported parent/spouse to account to the other for how the money is spent. Period.

10. “If the court finds out how you’ve behaved, you’ll never see the children.”i.e., back off or the mud slinging begins. Family court judges aren’t outraged by a lot of things your spouse thinks are outrageous: your promiscuity as a teenager, a several-years-past drug habit, infidelity, moderate drinking, etc. These are things which the judge realizes don’t reflect poorly on your parenting qualifications, so he/she doesn’t take them seriously.

11. “We’ll do this like I say, or else…?” This legend is usually capped off with a threat of withholding money in the form of support and, sometimes, less frequently, a veiled or a direct threat of harm. The law exists to ensure justice and fairness as between adversaries of unequal strength, funding and sophistication. Attorneys work diligently to see that the law is applied to their clients’ best advantage. This process works. Let it work for you.

12. “I’ll litigate you into bankruptcy. I’d rather pay my lawyer than yours so don’t expect me to compromise on anything.” It is true, many spouses threaten this hoping you will give up and run. While this is unfortunate that people use such tactics, there are legal techniques to stop the spouse from going forward with this threat. A good attorney can push a case forward to trial. The court can sanction a delaying spouse employing these tactics, making them pay your attorneys fees.

For more information about California family law and divorce issues, please contact attorney Gary D. Sparks at (925) 465-2500 or (707) 398-6008. Or, send a contact request directly from the californiadivorcelawyerblog.com page you are currently viewing.

Henry VIII Divorce Petition Unveiled

It took nearly 480 years, but Henry VIII’s petition to the Vatican for a divorce from Catherine of Aragon has finally been made public. (Compare that to a typical California divorce case where the documents are available to the public almost instantly.) After languishing in a drawer in the Vatican’s Secret Archives until the 1920’s, an Italian firm has been painstakingly reproducing the letter and now plans to produce 200 of them at a rate of three per month.
henry8However, at a cost of nearly $83,000 (£50,000) per copy, the price of a replica of the ancient parchment remains out of the reach of most ordinary people and be limited to museums and collectors. The parchment contains 81 wax seals and weighs in at 5-1/2 pounds (2.5 kg).

In 1530, members of England’s House of Lords sent a parchment to Pope Clement VII in support of his desire for a divorce. At the time, the monarch was obsessed with producing a male heir to the British throne with Anne Boleyn, as he had been unable to do so with his wife. Boleyn was not satisfied with merely being the king’s mistress and thus, one of the most famous stories about “the other woman” was born.

In the wake of the Vatican’s refusal to grant Henry VIII a divorce, the English king broke with Rome and subsequently installed himself as the leader of the Church of England. To many historians, this is the most defining and important event in English history.

“This is the moment at which England ceases to be a normal European Catholic country and goes off on this strange path that leads it to the Atlantic, to the new world, to Protestantism, to Euro-skepticism,” said David Starkey, a British historian and expert in the Tudor family in a recent interview with AP Television News. The story appears in the Associated Press.

For more information about California family law issues, please contactattorney Gary D. Sparks.