North Carolina is the only southern state without a constitutional ban on same-sex marriage, at least potentially until today –  May 8 – when citizens of North Carolina will have the chance to vote on Amendment One.  Amendment One is intended to go beyond the North Carolina state law, Statute §51-1.2, that already prohibits same-sex marriages “whether created by common law, contracted, or performed outside of North Carolina.” Amendment One, if approved, would rewrite the North Carolina constitution to provide that marriage between one man and one woman is the “only domestic legal union that shall be valid or recognized in this State.”

This is an extraordinary step that significantly reduced the civil liberties of same sex couples in North Carolina.  That state is one of many states grappling with ballot measures to ban same-sex marriage. In 2008, California adopted Proposition 8 that amended California’s constitution to define marriage as that between a man and a woman. Proposition 8 was adopted to counteract a 2008 California Supreme Court decision, In re Marriage Cases, granting same-sex couples the right to marry. Proposition 8 was successfully challenged in a 2010 district court decision, Perry v. Schwarzenegger, which declared the amendment unconstitutional. Recently, the Ninth Circuit upheld Perry but the ability of same-sex couples to marry is on hold pending further appeal.

While the future of same-sex marriage in California is as yet undetermined, same-sex domestic partnerships will continue to be recognized in California, thus affording same-sex couples some of the important benefits granted to married couples. The domestic partnership laws in California stand in stark contrast to Amendment One. Indeed, what is unique (and particularly troubling) about Amendment One is that it goes beyond a ban on same-sex marriage and bans same-sex civil unions and domestic partnerships. Some legal analysts have even suggested that the language of the amendment prohibits opposite-sex civil unions and domestic partnerships leaving marriage as the only legally recognizable “union.”

In eliminating domestic partnerships and civil unions, Amendment One poses serious problems for same-sex couples seeking to protect their rights relating to inheritance, child custody, property ownership and health-care decision-making. Although Amendment One seems to allow for private contracting to set forth these rights, certain agreements relating to child custody, health-care directives, death benefits, etc may not be protected unless civil unions or domestic partnerships are legally recognized. Consequently, same-sex couples in California ought to pay attention to the outcome of the May 8 vote on Amendment One, and not only for how it will impact same-sex couples in North Carolina. Amendment One serves as an important, albeit sobering, lesson for same-sex couples everywhere: it is imperative to understand what rights exist for same-sex couples in your jurisdiction and how to protect those rights. For that reason, it is useful to contact an expert in domestic partnerships as various groups continue to attempt to diminish existing protections.

To learn more, contact one of our domestic partnership attorneys.

The Pew Economic Mobility Project has a new fact sheet out that includes a very interesting chart.  It turns out that women are no longer suffering the huge income drop following a divorce that they once did.  This is good news for obvious reasons, and speaks to the increasingly balanced socioeconomic roles between the genders.  We have also noticed this trend in our office – more and more women are coming to us as the primary breadwinners in their families.  As a result more women are seeking prenups and asking us questions about asset protection in the divorce context.

Economic Impact of Divorce on Women

The use of emerging technologies to perpetrate stalking and domestic violence is on the rise. Facebook stalking is now a commonly used term. We’ve all read the news about GPS transmitters being placed on cars by stalkers, and email hacking – as reported by our clients – is now a fairly regular occurrence. Our office has even seen parties placing spyware on one another’s computers to track emails and passwords.

Some of these activities are illegal and can be stopped with restraining orders; others reside in that blurry gray area where enforcement can be a real challenge. Either way, it’s important to be aware of how to protect yourself, and if necessary how to collect the evidence you will need if you want a restraining order.

The following are our tips for how to prevent mishandling of your digital identity.

First and foremost, be sure your computer is not corrupted with malware or spyware. Modern spyware can track every single stroke on your keyboard and easily capture passwords, emails, and credit card information. We regularly advise our clients to open up new email accounts, but if you unwittingly have a key-stroke logger on your computer, it doesn’t matter how many accounts you have – they’re all compromised. There are spyware sweepers available online, but your best bet is to hire an IT professional to conduct the sweep for you.

Second, don’t give your stalker any information to feed upon. Don’t post your personal information online – it never goes away. Be absolutely sure your social networking privacy settings (meaning Facebook, etc.) are set to the most strict and preclusive available. If you believe you are at risk of stalking, never allow social networking services to track your location. Remember that many stalkers will pose as your friends and then have access to your friends-only information. You may need to delete your social networking services entirely if you believe you are at risk.

Third, never, ever, interact with your stalker. This only fuels the problem and clouds the question of whether you are the victim. Instead, document and report. Screen-capture anything that happens online. Save your emails. Tell your friends immediately when something happens so that you have a witness. Videotape. Record. Keep text messages and voicemails. And especially if you are in danger, call the police immediately every time you are stalked or harassed.

Once you have a body of evidence that shows a pattern of behavior, contact an experienced attorney and the police to report what has occurred. An effective lawyer can give you this and more advice, and can help you to obtain a restraining order. We handle quite a few of these cases in our office, so feel free to give us a call if you need any help.

This is a fun article we just read from Reuters about preparing for divorce like a superhero. Here’s an excerpt:

No, I don’t mean be born to billionaire parents. Although that would be awesome (money and fighting crime are cool). What I mean is that the best way to protect your business in a divorce is preparation for the worst case scenario.

Batman is the most dangerous man in the DC universe because he’s smarter and more prepared than everyone else around him. That means before you even think about tying the knot, you should . . .

Read original article here.

Maryland’s highest court is considering whether same sex married couples can be divorced in the State. Maryland currently does not allow same sex couples to marry – that’s clear. The question is whether the State can then extend that prohibition to keep same sex couples from divorcing as well.

As some background, often times gay couples living in aState where same sex marriage is not allowed will visit another more progressive State in order to get married. This creates certain tax and financial complexities for the couple, but they’re willing to live with it for the sake of love. The real problems manifest if the couple later needs to divorce. In a State such as Maryland where the rules are inconsistent, one judge may grant the divorce while another may not. If the couple is not allowed to divorce, they’re stuck in a very painful limbo. They can either stay married – which means they can’t marry anyone else, and are still financially responsible for one another; or they can move to a State that does allow same-sex divorce for long enough to get jurisdiction in that State – which usually takes six months. Those are expensive propositions. Not everyone can afford to uproot their lives and move to another State.

California and the District of Columbia have recently enacted laws to alleviate this problem at least for couples married in their jurisdictions. California enacted the Domestic Partnership Equality Act in January 2012, which allows same-sex couples married in California but living elsewhere to get divorced in California without having to move there. DC passed a bill which does much the same in March of 2012. But those laws only solve part of the problem, as not all same sex couples were married in California and DC.

States that do not recognize same sex marriage should at least allow those couples to divorce in their States. The negative consequences are too great otherwise.

Besides, doesn’t it seem just a little too ironic that a state which says it doesn’t believe in same sex marriage is forcing same sex couples to stay married?

Today’s post comes from our intrepid paralegal, Karin Buckley. Karin has an immense amount of experience working with teens, having taught high school for many years prior to becoming a paralegal. I hope you enjoy reading her quirky yet insightful advice as much as we did.

Perhaps you and your co-parent divorced years ago, or perhaps the break is more recent; regardless, if your children are teens, it’s time for you and the other parent to reevaluate your co-parenting style. What worked when your children were younger may no longer be realistic or even wise now that they’re older. That’s the problem with children, they grow up; the child who once worshipped you as a minor deity is now completely exasperated with your every move. Worse, they become wilier as they get older and if they haven’t yet discovered the benefits of having parents who are separated or divorced, they’ll soon get the gist of how to manipulate the situation to their advantages.

So what’s a parent to do? Here’s a quick primer on how to ensure your teenager doesn’t get the better of you or their other parent.

1) Safety in Numbers – If you don’t already, you need to start using your co-parent as a team member. You’re going to be a team of two, an underdog team, but if you stick together, you can prevail against the acne-faced monster you’ve collectively created. Make sure your teenager knows that neither parent is going to give a “Yea” or “Nay” without first consulting with the other parent. This consultation needs to happen outside of the teenager’s presence. Do not allow your teenager to enter negotiations with you individually. Set up a conference call if necessary, but don’t allow your teen to force you into giving an off-the-cuff answer to his or her request.

2) No Means No – Consistency is key. If you tell your child no, you need your co-parent to back you up. Your child knows the divide-and-conquer strategy. Get the upper hand – once you and your co-parent have issued your executive decision, the discussion is over. This is not to say that your teen won’t keep trying, but you no longer have to respond; the verdict has already been recorded.

3) Hate is Just Another Four-Letter Word – Your teenager hates you? Congratulations! That probably means you’re doing a wonderful job. There is nothing more dangerous than the parent who believes that he or she needs to be their children’s friends. Think about it – do your friends treat you like a walking ATM? Borrow your car and bring it home with an empty tank? Ignore you at the dinner table? If you need another friend, join a book club.

4) Bad Cop/Bad Cop – When telling your child “No,” don’t give into temptation and throw your co-parent under the bus. Blaming the other parent is never a good idea. Remember, you are working as a team to raise a responsible adult who has limits. See Item 1.

5) Pretend Your Child has a Choice – Practice issuing decisions such as: “Your mother and I have decided that we can’t let you go to the Girls Gone Wild Spring Break in Cancun. However, we did see that the Sisters of Perpetual Sorrow are sponsoring a Spring Break Habitat for Humanity trip in Arkansas, so we’ve signed your up for that instead; of course, you could still go with your father/mother on that camping trip to Yosemite.”

There’s no “I” in parent, so work together with your co-parent. If you do, you can create an adult with whom other people enjoying spending time, and not someone who is going to appear on Cops.

If you find yourself in a difficult co-parenting situation, please feel free to contact our offices at your convenience. As child custody lawyers, much of our work deals with creating realistic co-parenting solutions. We’re happy to help.

Today I’m pleased to present a guest post from Lisa Trustin, a truly fantastic vocational evaluator here in San Francisco. Vocational evaluations are frequently used in divorce cases on the issue of spousal support. Lisa and her partner present the gold standard of vocational evaluations in the city, so it’s a real pleasure to hear from her on this topic.

A vocational evaluation is the process used to assess a person’s current or future employability and wage earning capacity for the court. The evaluation is a neutral process that describes the person’s relationship to the work world. Often a career plan is one result of the evaluation, worked out in cooperation with the person who is being evaluated.

The vocational evaluation usually involves two to three meetings (more, if needed) with an evaluator who has master’s level training and who is qualified as an expert with the American Board of Vocational Experts (ABVE). Research about the labor market and earnings are performed and the results are included in a report that is distributed usually to the attorney(s).

The first meeting is a question and answer interview to gather information about a person’s employability. This may include information about education, work and volunteer experience, health, age, length of absence from the work force, career goals, motivation and current family responsibilities.

The next meeting may include vocational testing. There are a wide variety of vocational testing methods used. These instruments cannot be passed or failed but are used to develop a profile that includes abilities and aptitudes, skills, interests, personality, decision making style and work values. You will be able to discuss the results of the assessments with the counselor to understand your profile which is helpful in several ways. It can guide someone who is uncertain focus on a career direction, uncover interests and abilities that were hidden or forgotten, and provide positive feedback on a person’s strengths or indicate where more resources may be needed.

In between appointments, you and the counselor may research career or work options to gather information about job outlook, earnings, qualifications and training requirements for different job titles within an appropriate geographical area. All resources, such as information about organizations, industries, trade associations, job openings, training and education that we know of or discover are shared with you.

In the next meeting, all of the information gained in the evaluation process including client interviews, counselor observation, medical/ psychological reports, if needed, and test data are integrated and discussed with you. Your feedback is always an important part of this process.

Next steps are recommended based on both immediate and long term job or career objectives and goals, which may include several options. These steps are based on your expressed interests as well as your ability to be employed, whether or not you want to return to a previously held job or career, and the conditions of the labor market. You have the right to a fair and impartial vocational evaluation and the opportunity to review the test results and the information contained in the report.

If you have any questions about evaluations, please feel free to contact us, or reach out to Lisa directly.

There is a rumor that embattled former senator and presidential contender John Edwards is going to marry his one-time mistress, Rielle Hunter.  Edwards is accused of conspiring to violate campaign finance laws by using approximately $1 million from campaign donors to cover up his affair and the child he fathered with Rielle Hunter.  If Edwards does marry Hunter, she would not be required to testify against him at the trial if she did not want to, and some theorists believe this is the only reason he wants to marry Ms. Hunter.  This is due to the testimonial privilege between spouses.  If this matter were a divorce, however, the privilege against spouses testifying against each other would not apply.

The spousal testimonial privilege can be a very powerful bar to testimony.  The privilege has two parts.  There is a privilege not to testify against one’s spouse and a privilege not to be called as a witness against one’s spouse.  A married person has a privilege not to testify against his or her spouse in any proceeding.  Additionally, a married person whose spouse is a party to the case has a privilege not to be called as a witness by an adverse party without the prior express consent of the spouse having the privilege.

The spousal testimonial privilege does not apply in divorce cases.  Spouses are often at odds regarding the way child custody and visitation should be decided or how assets
should be divided.  Anything a spouse says can be used against them in Court when disputing these issues.  One spouse admitting to hiding assets in a Swiss bank account, for example, cannot claim a privilege against having his wife testify against him when she wants to be compensated for losing access to the money.  People are wise not to say anything around their spouses that could later open the door to an unfavorable court action.

There are multiple ways that a spouse can communicate with their other half – in person, on the phone, email, text messages, etc.  During the family law litigation process, all
of these forms of communication and more can be discovered and used as evidence at trial.  Either spouse can get on the stand and state word for word what her spouse told her through any form of communication.  The other spouse is powerless to keep her quiet.

It is incredibly important to have excellent legal counsel to manage not only the formal process of a divorce, but also the communication between the parties.  In the Bay Area, a person is wise to engage the best San Francisco divorce lawyer available to help navigate these dangerous waters.

Social media accounts like Twitter and Facebook are beginning to take their place in the pantheon of highly contested properties for divorcing couples in California. As we all know, couples dissolving their marriages divide a wide range of assets already – everything from cars and homes to stock options, businesses and artwork. The unavoidable fact is that social media accounts are property, and as the value of such property increases, so too will the litigation surrounding them.

In California, absent a prenup, any asset acquired during marriage is considered community property and must be divided evenly between divorcing spouses. Any property acquired before marriage, after the date of separation, or through gift or bequest (meaning inheritance) is considered separate property and immune from division. There are of course exceptions to these rules, but that’s a good overview.

By this definition, social media accounts created during marriage will almost certainly be characterized as community property. Accounts created prior to marriage may also be defined as community property in part, depending on whether the value increased during the marriage, and whether the personal effort of either spouse contributed to that increase (which of course it would have).

The terms of service of the various social media companies also play a role in defining whether an account is considered property and subject to division. Twitter, for example, defines the content which users create as the property of the user. Twitter sees the content as separate from the account services themselves which Twitter provides. Arguably, the right to access the account and manipulate the content is a kind of property as well.

The content within the accounts, and the right to access the accounts both increasingly have economic value, and couples understandably want to add all value to the marital asset division calculus.

The big hurdle, of course, is valuing the accounts. Valuation has always been more of an art than a science. This is even more the case when it comes to untested intellectual property assets like social media accounts. Some parties are looking to the actual business flowing from the accounts as a benchmark for determining value. Others are more inclined to take a multiple of earnings – the challenge being that earnings are just beginning to manifest for these assets.

This area of property division is new, but it’s heating up. Asset division provides many challenges to divorcing couples. Careful attention needs to be paid to properly value and divide IP, particularly this distinctly tricky type of IP. A person seeking to divide a social media account, just like any asset, is well advised to seek the counsel of an experienced California family law attorney.

Our office practices family law in San Francisco and the Bay Area. As a result, we work on the forefront of many of these issues. If you have questions, feel free to give us a call.

I read this morning that Maria Shriver is having second thoughts about divorcing Arnold Schwarzenegger. TMZ reports that her religious views do not allow divorce.

The good news for Maria, and for anyone else having second thoughts about divorce, is that dismissing a pending divorce case is fairly simple for the party who filed it. In California, the party who filed for divorce only needs to fill out one form: the CIV-110 Request for Dismissal. Once that has been filed and served on the other party, the case is done. Only the party who filed the divorce can dismiss it.

The drawback is that if you decided to continue with the divorce, you’ll have to start all over again and pay the filing fees anew. This is a process that most parties can handle on their own. It’s typically best to allow your attorney to handle the dismissal, however, if you’re already represented.