Why Hire a Lawyer and Not a Legal Document Preparer?

This is a question a number of clients have asked me over the past few years, especially as the economy continues to slumber along here in California. And it seems tempting, of course, to find ways to pinch pennies until things improve. However, I have also been hired by many clients who have tried to handle family law or divorce cases on their own, and found out that they have actually made matters worse for themselves.

It is important to understand that attorneys have experience in the courtroom and know what Judges want to see and hear. They can anticipate opposing arguments and games the other side may play. Attorneys know and can argue the laws regarding custody, support, property division, etc. that the Judges decide by.

Attorneys can also represent you in court and can speak on your behalf with the court and the opposing party. Attorneys can give you legal advice and guidance, even if you only hire a consulting attorney part-time on the side on an as-needed basis. At the very least, I firmly believe that every party to a family law matter should have a consulting attorney who can answer questions and review documents to ensure that his/her rights are being protected and that he/she is not being taken advantage of by the other side.

Sure, many of these so-called divorce services and document preparers can fill out court forms, but they are not permitted to tell you “how” to fill them out or “why” to fill them out a certain way. They are prohibited from giving you legal advice, interpreting documents, or warning you of the pitfalls or consequences of your choices. They cannot tell you what information to insert in your documents; in fact, they are not supposed to even select the documents you want them to prepare for you. They cannot appear in court, explain to the Judge why you did or didn’t do something. And they are not trained in the law nor in court procedures, and are not licensed to practice law in California. And most importantly, if you are given bad advice and decide to follow that advice, you have to live with the outcome with little or no recourse.

Several years ago, independent paralegals in California actually lost the ability to call themselves “paralegals” in part because of concerns about how many of them crossed the line between document preparation and legal advice. As a result, these independent operators now must call themselves “legal document preparers.”

Would you allow your child to ride in a car with a driver who had never driven before, or fly on an airplane with a non-pilot at the controls? Then why risk custody, support or property, or worse, by not hiring an attorney? Family law cases affect more aspects of clients’ lives than any other area of law. In a typical family law case, the court is making orders about your children, your income, your home, your bank accounts, your pets, your personal property, your retirement accounts, your business, your credit cards… and the list goes on. These are all important issues.

You may decide to hire a legal document preparer to assist you with your court papers because you have no other financial option. I can certainly understand that. We are living in unprecedented economic times, and the downturn has affected almost all of us, myself included. However, it would be in your best interest — and I strongly recommend — that you find a way to make arrangements with a family law attorney to spend even just an hour or two with you to make sure you are doing everything possible to protect yourself, your children and your family moving forward.

Census Report Shows Marriage Works Better in Pennsylvania than in California

According to a report by the U.S. Census Bureau and reported on in the Pittsburgh Post-Gazette, Pennsylvanians are both marrying and divorcing at a lower rate than the rest of the country (including California), a quality they share with many men and women of the Northeast.

That may be because more people in the Northeast delay their marriages until their education is complete. Delayed, or later, marriages have traditionally been viewed as more likely to last longer. That’s a link making itself known more favorably in states like Pennsylvania, New Jersey and New York than in places like Arkansas, Georgia and West Virginia, where divorce rates are well above the norm, according to the data released today from the 2009 American Community Survey.

Sociologists have found that factors such as age, income, religion and education can all play key roles in timing and success of marriage. Diana Elliott, a Census Bureau family demographer, said the relatively high percentage of people who pursue degrees in the Northeast is presumably a primary reason for lower marriage and divorce rates. “In the Northeast, first marriages tend to be delayed and the marriage rates are lower, meaning there are also fewer divorces,” she said.

At the same time that marriages have been postponed, there has been a surge in cohabitation among unmarried couples across the United States. The new census report does not address those relationships and their outcomes.

Prenuptial Agreements Are Not Just For Hollywood Celebrities

Prenuptial agreements are often associated with the rich and famous (Barry Bonds, anyone?)… but, the reality is that many couples in California can benefit from a carefully constructed premarital agreement to identify separate assets and define the rules of their marriage. For example, prenuptial agreements are frequently considered by parties who have been previously married and divorced (or widowed), or by older, established individuals with significant property and/or children whom they want to protect. A recent article published on Bankrate.com discusses this very topic.

Prenuptial agreements, as unromantic as they may sound, can eliminate disputes at the time of divorce if the marriage ultimately fails. The agreement can serve as a snapshot inventory of assets and debts owned or incurred by each spouse prior to marriage. It can convey interest in property between the parties, or dictate that neither spouse will acquire interest in each other’s property.

In community property states like California, the prenuptial agreement can even permit parties to opt out of the community property system, allowing each spouse to earn income and obtain assets independently of the other during marriage and requiring express and definitive steps for the parties to obtain property jointly. The agreement can also limit or eliminate spousal support (alimony) for one or both spouses.

Of course, prenuptial agreements can potentially be unfair to one spouse or the other, which is why states like California have overhauled their domestic relations statutes in recent years. In California, for example, the party receiving a proposed premarital agreement must be given at least seven days to read, review and contemplate the agreement prior to signature. The law also requires that each party have their own, independent counsel (with only a very strict, limited exception), and that the parties provide each other with “full and fair” disclosure of their financial circumstances.

Despite all of the things a couple can do with a prenuptial agreement, there are limits. For example, the agreement cannot limit or restrict a parent’s rights to custody, visitation or child support. Additionally, although an agreement can limit or eliminate a party’s right to spousal support, the agreement itself is subject to scrutiny by the Courts and examined to ensure it is not “unconscionable,” or unreasonably unfair to one party. If a Court decides that the agreement rises to the level of being unconscionable, it may redline the provision(s) it finds excessively unfair. In other words, depending on the circumstances of the couple, the Court may nevertheless award some property interest or spousal support to a party who waived his/her rights to that property or support in the prenuptial agreement.

A couple contemplating a premarital agreement should have a frank discussion about such an agreement at least six months in advance of the anticipated wedding. Not only will this allow plenty of time for the agreement itself to be drafted, reviewed and revised (in and of itself a process that will take several months), but it will allow the parties to put the business of the agreement behind them and then focus on what should presumably be one of the happiest days of their lives.

Just Confirmed: Gary Sparks to Appear as Special Guest on the Ronn Owens Program

We are pleased to announce that Gary Sparks will be appearing as a special guest on the top-rated Ronn Owens Program on KGO-AM 810 radio in San Francisco on September 8, 2011. Gary will be discussing California divorce and family law issues with Ronn and with callers to the program, and is eager to reach out to listeners throughout the greater Bay Area and Northern California.

From KGO: Ronn Owens has had the top rated program with KGO Newstalk 810 for over 35 years. In that time he has had thousands of guests in the hot seat, including President Barack Obama, Nancy Pelosi, Steve Martin, Condoleezza Rice, Benjamin Netanyahu, John McCain, Eliot Spitzer, Joe Montana, Tony Bennett, Jimmy Carter, Willie Mays, Secretaries of State, CIA Directors and community leaders. ronn-thumb

As a versatile talk host and author, Ronn covers everything from politics to pop culture, and his show has been called the “ultimate town hall meeting.” Similar to KGO’s listenership, Ronn is unpredictable and has long been the voice of reason in the Bay Area, balancing issues so that listeners can make up their own minds. As Ronn says, “I’m just like everybody else – I look at the world around me and comment on it.”

Over the years, Ronn has won numerous awards and was inducted into the Bay Area Radio Hall of Fame in December 2007. The National Association of Broadcasters presented him with the prestigious Marconi Award for Major Market Personality of the Year Award in 2003 and again in 2010. Talkers Magazine named Ronn one of the Top 25 Greatest Radio Talk Show Hosts of All Time, ranking him 13th and the top local personality in the country. His first book, “Voice of Reason: Why the Left and Right are Wrong,” was published in 2004.

Pennsylvania Father’s “Psycho Ex-Wife” Blog Ordered Shut Down by Court

A Pennsylvania judge has created a First Amendment uproar by ordering a father to take down his “Psycho Ex-Wife” blog in which he railed against and blasted his former spouse, and sometimes speaks unflatteringly about his children.

Appearing on the Today show, Anthony Morelli said that although he took down the blog as ordered, he is appealing the order on the grounds that it violates his First Amendment rights. Judge Diane Gibbons ordered the blog to be taken down, citing the emotional damage it was capable of inflicting on the parties’ children. Morelli claims that the blog is therapeutic in nature, and that the children can be protected by the content provided that the parents exercise control of the children’s computer viewing habits. The question facing the appellate court is whether Morelli’s right to free speech outweighs the potential harmful effect of his inflammatory comments on the children.

I happen to be a big defender of First Amendment rights, and of free speech in particular. For the most part, provided that the speech does not incite violence, I will almost always stand up for the rights of individuals to say and express what is on their minds. And although I am torn by a case like this, I still ultimately come down on Morelli’s right to say and express his feelings, regardless of how distasteful they may be. However, I clearly am not the appellate court in this matter.

At the same time, and although I would defend Morelli’s free speech rights, I would also advocate that the family court judge who adjudicates custody in the case should consider Morelli’s actions in determining what is in the best interests of his children. Although it may be legal (or should be) for him to post the comments, I believe the family court would be well-within its discretion to determine he is not exercising sound judgment and make the corresponding custodial orders.

I’m not aware of a case in California (yet) involving any such court order. In fact, in my experience, family court judges frequently refuse to grant restrictions on speech in divorce cases. At the same time, we frequently see orders whereby the parties are compelled not to make disparaging remarks about the other parent within the children’s earshot, or prohibitions on discussing the adult litigation matters with the children other than in a cursory, age-appropriate manner (and without the gory details). Whether such an order would eventually include the censorship of an inflammatory blog has yet to be determined.

We’ve Moved!

We are pleased to announce our move our Walnut Creek main office into new office space! Our new space is located at:

THE LAW OFFICES OF GARY D. SPARKS
2890 North Main Street, Suite 205
Walnut Creek, CA 94597

Our Solano County office is still at the same location and available by appointment:

THE LAW OFFICES OF GARY D. SPARKS
918 Merchant Street, Suite C
Vacaville, CA 95688

We’ve only moved across the freeway, but the new space is larger and more efficient. We’re still in semi-move-in mode, but should be completely finished within the next two weeks or so. After that, be sure to stop in for a visit!

Thanks to all our clients for their patience and support over the past two years, and we look forward to continuing to provide outstanding legal services for many years as we keep growing and building our practice.

GARY SPARKS
Attorney at Law

AMY MILLER
Attorney at Law

ANNE WOLF
Paralegal

JANA LONG
Administrative Assistant

Can California Divorce Court Force Sale of L.A. Dodgers Despite Federal Bankruptcy Court’s Control of the Team?

Jamie McCourt, the highly controversial co-owner of the Los Angeles Dodgers baseball team, is considering asking the family law divorce court to order all of her husband Frank’s business assets sold, including the team, according to a report in the LA Times.

This, of course, brings up the conflict we run into in family law cases — the authority of the California family court to make orders with respect to marital property, versus the power of the Federal court to control assets contained in a bankruptcy petition. In virtually every case, when the Federal court receives a petition for bankruptcy, an automatic “stay” (or “time out”) is placed on the ability of the California state court to make any orders with respect to property and/or debt contained within the petition. This same stay is the same order that stops the creditors’ calls to debtors.

Whenever federal law conflicts with California law regarding the same issue, the outcome is generally always the same — the federal law supersedes California law. This comes from the Supremacy Clause of the United States Constitution. However, Ms. McCourt’s attorneys are considering asking the family court to order the sale of the parent company that owns/controls the Dodgers, and apparently believe that if a potential buyer comes along who wants to buy the parent company, that the bankruptcy court might just permit the transaction.

The McCourt divorce has given us many juicy stories over the past year, including the takeover of the Dodgers baseball franchise by Major League Baseball. Stay tuned for how this latest development proceeds.

UK Couple Sues for Right to Civil Union Instead of Marriage

Here’s a new twist on the heated debate we have here in California regarding civil unions vs. marriage. The ABA Journal reports that a straight couple in the UK are suing for the right to tie the knot in a civil union rather than in marriage.

Over the past few years here in California, the state has gone from expanding the Family Code to permit same-sex couples to register as domestic partners with the same rights and privileges as spouses, to the Supreme Court determining that marriage for same-sex couples was a constitutional right, to Proposition 8 which amended the state constitution to prohibit same-sex marriage. And the story is still unfolding in the courts. Currently, Proposition 8 has been found to violate the federal constitution on multiple grounds, and an appeal is working its way through the appellate courts.

Gay couples across the country, and around the world, have long argued that they should be entitled to marry, just as straight couples have the right to marry, instead of being forced to settle for civil unions or domestic partnerships. Opponents, led by religious groups such as the Mormon church, strongly oppose this argument and argue that marriage has “always been” between a man and a woman, and that permitting same-sex couples the right to marry would impose rules on churches that violate their dogma. They insist that same-sex couples are offered the same rights and benefits as opposite-sex couples through civil unions, just under a different name. (Note: although at the federal level, same-sex civil partners are not offered the same marital tax benefits as opposite-sex spouses.)

In this new twist, a straight couple have been denied a civil union in the UK because they are not a same-sex couple. “In our day-to-day life we feel like civil partners—we don’t feel like husband and wife, and we want the government to recognize that,” says Katherine Doyle. She and her partner, Tom Freeman, argue that a civil partnership under British law is more in keeping with their personal style, even though marriage and civil unions provide the same benefits.

Gay rights activists believe that a win in this case would likely help encourage the right of same-sex couples to wed. Regardless of which side of the argument you support, this will be a fascinating story to watch unfold in the coming months.

Impending California Divorce Does Not Lead to Automatic Kick-Out of Spouse

I find it fascinating when celebrities in the Southland discover that California’s community property rules apply to them, too.

Pop diva Christina Aguilera is divorcing her husband, Jordan Bratman. However, she apparently finds herself living in a luxury hotel in Los Angeles nowadays, according to the Daily News. It’s not that she doesn’t have a house of her own. Far from it. The problem is that her soon-to-be ex-husband still lives there.

Under California community property law, a home acquired during marriage is presumed to be community property. Even if the home was acquired in one spouse’s name, both spouses have an equal right to possession and occupancy of the home during the divorce proceedings. Only when a divorce becomes final, and the property disposed of, does the obligation to move out apply.

There are exceptions, of course. One spouse might successfully convince the Court to make a pre-trial determination that a house is separate property and not community, in which case an early kick-out order may apply. Or, there might be domestic violence or other harassment which could lead to an order for a spouse to vacate the home (along with a restraining order).

However, there is no law in California that permits one spouse to simply just order or demand that the other spouse vacate the house just because the parties are divorcing, no matter how bad the situation might be.

Seasoned California family law attorneys know that this is the case; however, I have been bombarded in the past two years with motions from opposing parties and their attorneys requesting exclusive use and occupancy of a home without any kind of a showing that there is any violence, harassment or threat of such. Perhaps the stress of our current economic conditions is leading to more of these requests, in that the parties simply cannot tolerate being in the same home together. However, even in poor economic times, there is no authority for the proposition that one spouse has superior rights to possession and/or occupancy of a community home absent extenuating factors.