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.

Jessica Simpson and Kobe Bryant have been in the news recently, both because of their respective prenups. I thought I would take a moment to reflect on the nature of celebrity marriage contracts, and what this can tell us about the marriages of mere mortals.

To recap in case you’ve missed the news, Kobe Bryant’s wife has just filed for divorce, and there’s no prenup. Kobe’s wealth is estimated to be around $150 Million. Assuming the entire fortune was earned during marriage, it’s all community property, meaning Vanessa is entitled to half of it. Moreover, because Kobe continues to earn an income, and because Vanessa will likely gain custody of the children, Bryant could end up paying spousal and child support on top of losing half his net worth. Not to mention the attorney’s fees he’s going to pay.

Jessica Simpson appears to be on the first chapter of a similar story. Her fiancé has apparently backed away from signing a prenup, citing his belief in true love. Like any celebrity, Jessica’s income streams are fairly complex. She is apparently worth approximately $20 Million, and in addition to earning fees for appearances, she continues to earn royalties from her licensing contract with the Camuto Group who bought her clothing brand in 2005. Absent a prenup, Jessica’s income from all of these sources could very well become community property during a marriage. The same, of course, would hold true for her fiancé’s income, assuming he has any.

When celebrities marry, the process is very much like a corporate merger. All of the various income streams need to be charted. The books need to be balanced. The liabilities disclosed. The expectations for future growth must be set, and an exit strategy mapped. Without this process, a split becomes a financial disaster. This is true of course for all marriages, it’s simply more evident with celebrities.

The procedures necessary to create a valid prenup are time consuming, confronting, and tedious. There’s no way around that fact. Nonetheless, celebrities with complex financial structures would be insane to attempt marriage without a prenup, just as a corporation would breach it’s duties to shareholders by merging without a contract.

More important than those obvious considerations, however, is the opportunity that a prenup presents to lay the groundwork for a strong marriage. This is the point that we miss in the gossip columns, and that most people forget when proposing a prenup to a partner.

Premarital agreements require couples to take a very serious look at their expectations for finances and relationship. These expectations say a lot about the marriage, they say a lot about love, and they say a lot about how the couple works through adversity. Celebrities need prenups – that goes without saying. What isn’t said often enough is that they could also use the process to avoid rather than to foreshadow divorce. And the same goes for the rest of us.

The issue of whether marriage rights should be granted equally to everyone is, inexplicably, an on-going debate around the country.  Complicating the conversation is the fact laws are applied differently from state to state, and that federal and state law conflict at various points.  As of the writing of this post, lesbian and gay couples who are legally married under state laws are nonetheless denied federal benefits because of the so-called “Defense of Marriage Act” (DOMA).

For this reason, it is important to understand which rights marriage traditionally confers, and how these rights differ between state law and federal law.  This knowledge can allow both gay and unmarried heterosexual couples to protect their families.

Many gay and lesbian couples attempt to use premarital agreements and estate planning methodologies to overcome some of the federal inequities.   This can be effective to an extent, but the use of wills, powers of attorney, advanced healthcare directives, and cohabitation agreements simply cannot resolve all of the problems created by DOMA.   For instance, these strategies do nothing for lesbian and gay couples who wish to keep their non-citizen spouse or partner in the U.S. and avoid deportation.  The estate planning alternatives are little comfort to a family torn apart my immigration policy.

The following is a highlight of many of the Rights and Responsibilities afforded to California married couples and California Registered Domestic Partners (RDPs)
1. Joint parental rights of children if born during the marriage or RDP
2. Joint adoption
3. Joint Insurance Plans
4. Status as “next-of-kin” for hospital visits and medical decisions
5. Bereavement or sick leave to care for partner or children
6. Right to make a decision about the disposal of loved ones remains
7. Crime victims recovery benefits
8. Standing to sue for wrongful death or for “loss of consortium”
9. Wrongful death benefits for surviving partner and children
10. Welfare and public assistance
11. Domestic violence protection orders
12. Judicial protections and immunity—testimonial privilege in court proceedings
13. Automatic inheritance in the absence of a will (or in the event that a will is invalidated)
14. Filing of joint state income tax returns
15. Testimonial privilege in state court proceedings
16. Spousal protection from property tax increase upon the death of a co-owner spouse

Here is a list of some of the most important Federal Rights & Responsibilities of Marriage, which are denied to same-sex couples because of DOMA.
1. Immigration and residency for spouses from other countries
2. Crime victims recovery benefits
3. Judicial protections and immunity in federal court
4. Joint filing of bankruptcy petitions
5. Spousal veterans benefits
6. Social Security benefits
7. Medicare benefits
8. Joint filing of federal tax returns
9. Income tax deductions, credits, rates exemption and estimates
10. Deferred Compensation for pension and IRAs
11. Estate and gift tax benefits  (there are substantial estate tax benefits to marriage)
12. Medical care for survivors and dependents of certain veterans

Our office regularly advises clients on how to protect themselves and their families, whether or not they decide to marry.  If you have any questions about your rights in the light of DOMA or other federal statues, you should contact a qualified family attorney.  We’re happy to help.

What do you do when your marriage is falling apart but the concept of divorce is unacceptable? The answer might be “legal separation.” Divorce isn’t for everyone; sometimes for religious or other personal reasons, a couple will prefer a legal separation as an alternative to a divorce. A legal separation is very similar to a divorce: parties divide assets and address financial issues as in a divorce; the parties structure child custody and child support as in a divorce, and most parties live apart as in a divorce. The difference is in the name- the result is a “legal separation,” and not an actual “divorce.”

Because the parties in a legal separation technically remain “married,” they may not enter into a new marriage unless the first marriage ends either by death or an actual divorce.

Medical insurance is one practical reason that some couples choose to file for legal separation. If one party has a chronic illness that prevents him or her from obtaining adequate health insurance, a legal separation may allow the parties to continue to be covered by the same plan even though they are living apart. Some insurance carriers do not allow legal separation to qualify a couple for continued coverage, so you should check with an experienced California Family Lawyer before proceeding on these grounds.

Unlike divorce, a judgment for legal separation requires the consent of both parties. If one party wants a legal separation, and the other party wants a divorce, the divorce will prevail.

A legal separation is obtained similarly to a divorce. One party must file with a California Family Court for legal separation, all the proper paperwork and financial disclosures must be exchanged, and the Judgment must be granted by the Court. This requires nearly all the same legal proceedings and due process as a full blown divorce.

The drawback of a legal separation is that, because it requires the consent of both parties, either party may proceed with an actual divorce at anytime, and this may cause the workload to double.

If you would like to obtain a legal separation, or if you would like to learn more about California Legal Separation, you should contact a California family lawyer for a consultation to learn about your rights and responsibilities.

Many people fear that drafting a prenup means that they are admitting their marriage will end before it has even begun. The fact is (and please forgive my being a trifle morbid here) that all marriages end – if not in divorce, then in death. For this reason, the California state legislature (and every other state in the Union for that matter) has helpfully crafted a default (read “generic”) plan for you in case you die without an estate plan, or divorce without a prenup. So the question you should really be asking yourself, is not whether a prenup means your marriage will end, but whether the government’s generic plan is the right plan for you.

A prenup, like an estate plan, is nothing more than a document allowing you to take control over your property. Most people believe they are better suited to decide how their property should pass at death than the government, and the same logic often applies to divorce. Many couples also find that defining their expectations before marriage helps minimize conflict later.

If you have a prenup or are planning to have one, then you have already determined that the cookie-cutter government plan is not right for you and your family. Chances are that the government plan for how your property should be divided at death will not meet your standards either.

So with those preliminary points out of the way, let’s turn to the meat of this posting: the intersection of the two documents.

It is important for married couples and registered domestic partners to make sure that their estate plans and their premarital agreements are not in conflict. It is not uncommon for estate planning attorneys who do not have experience with family law to narrowly focus on issues such as minimizing “death taxes” at the exclusion of other previous intentions of their clients. A common mistake is for an estate planning attorney to re-title property for the sake of the estate plan, but in contravention of the premarital agreement. This can have the unfortunate effect of negating the premarital agreement entirely, and you can imagine the negative impact that might have.

Another example is that many clients on a second marriage want to ensure that their property will pass to their children from the first marriage, and not to the new spouse’s family. This is possible, but the estate plan and the prenup need to work in conjunction with one another to be effective. One document cannot do the job if the other is not in agreement.

For these reasons, it is extremely important that your attorney have an understanding of both estate planning and family law. The law around property varies greatly depending on the context and circumstances. Failure to have an attorney review your unique situation from a global perspective can have serious unintended and very expensive consequences.

We’re happy to invite our good friend Jim Argo to post this week about credit scores. Jim is a truly talented mortgage broker, and also a hell of a jazz musician. Here’s what Jim has to tell us:

When a marriage or domestic partnership ends in divorce or separation, the lives of those involved are changed forever. During this time of upheaval, one thing that shouldn’t have to change is the credit status you’ve worked so hard to achieve.

Unfortunately, for many, the experience is the exact opposite. Unfulfilled promises to pay bills, the maxing out of credit cards, and a total breakdown in communication frequently lead to the annihilation of at least one person’s credit. Depending upon how finances are structured, it can sometimes have a negative impact on both parties.

The good news is it doesn’t have to be this way. By taking a proactive approach and creating a specific plan to maintain one’s credit status, anyone can ensure that “starting over” doesn’t have to mean rebuilding credit.

The first step for anyone going through a divorce or separation is to obtain copies of your credit report from the 3 major agencies.  Once you have this information at your fingertips, it’s time to make a plan.

There are two types of credit accounts: The first type is a secured account, meaning it’s attached to an asset. The most common secured accounts are car loans and home mortgages. The second type is an unsecured account.

In the case of a mortgage, enlisting the aid of a qualified mortgage professional is extremely important.  A mortgage professional can help you review your existing home loan along with the equity you’ve built up and then help you to determine the best course of action.

When it comes to unsecured accounts, you will need to act quickly. It’s important to know which person (if not both) is vested.  If you are merely a signer on the account, first check with your attorney, and if there are not legal problems with doing so, then have your name removed immediately.  If you are the vested party and your spouse or partner is a signer, also check with your attorney, but consider having their name removed.  Any joint accounts (both parties vested) that do not carry a balance should be closed immediately if both parties agree.

Ensuring on-time payment of debt which carries your name is paramount when it comes to preserving credit. Keep in mind that one 30-day late payment can drop your credit score as much as 75 points.  So, regardless of which person is ordered by the judge to pay the account, any late payments affect the credit score of both parties.  The message here is to not only eliminate all joint accounts, but to do it quickly.

Divorce and separation are difficult for everyone involved. But by taking these steps, you can ensure that your credit remains intact.

James Argo

www.JamesArgo.com

Does it matter that he was cheating with his secretary for half the marriage?  What about the fact that she was never home for dinner and spent all her time at the office?  Guess what… In a California divorce, the answer is no.

California is a no-fault divorce state.  That means the court has no interest in who you think is to blame for the downfall of the marriage.  California courts do not want to hear about the lying, the cheating, the fact that he never listened, or that she was constantly nagging.  On the Petition for Dissolution of Marriage (one of the forms you file to get a divorce or “dissolution” started in California), there are only two optional grounds for a dissolution: Irreconcilable Differences, or Incurable Insanity.   That’s it.  Irreconcilable differences means that blame doesn’t apply.  Incurable Insanity means that you can prove by competent medical testimony that your spouse was incurably insane while you were married.

A related concern amongst parties is whether a judge will view one spouse in a better light because he or she filed first.  The reality is that judges do not care who files for dissolution first.  There may be other strategic effects to filing at different times, and you should discuss these with your California Divorce Lawyer.

One great advantage of a no-fault divorce system is that you don’t waste time and money proving blame, or cruelty, or infidelity, as in some states.   This is not the case everywhere.  Take, for example, supermodel Christie Brinkley’s recent divorce in New York State.  Through the course of that trial, the court allowed Ms. Brinkley to expose publicly husband Peter Cook’s tawdry affair with his 18 year-old assistant, as well as his addiction to pornography.  This kind of dirty laundry usually has no place in a California divorce.  Instead, you and your California divorce lawyer can focus on the legal issues: property division, support, and child custody if there are children involved.

One important exception to the no-fault divorce rule is a situation involving domestic violence.  The topic of domestic violence is outside the scope of this blog posting, but suffice it to say that California courts take domestic violence very seriously.  If you are in immediate danger, you should contact the police immediately and make sure you are safe.  If you have been a victim of domestic violence in the past, you should contact a competent California family lawyer to discuss your options.

A no-fault divorce means it’s not about who did or said what to whom during the marriage.  It’s about getting the divorce completed by applying community property, custody, and support laws, so you can leave the skeletons in the closet and out of the courtroom.