Monthly Archives: July 2012

I don’t remember if I want a divorce or not (Dementia and dissolution)

The baby boomer population is starting to hit that golden age at which dementia is an increasing concern.  One in eight Americans over 65 has Alzheimer’s or another form of dementia.  Yes, it’s a good idea to have an advanced health directive and a durable power of attorney—but those are really separate issues.  What happens when one spouse starts the dissolution process, then becomes incompetent?  What happens if a spouse wants a divorce after they become incompetent?

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Recently on an online forum this situation was presented: a woman sees an attorney about a divorce, she tells everyone she is going to get a divorce, she and her husband separate, after which she is overcome with dementia.  What should be done?  Can family members complete the dissolution on her behalf?

First, there are provisions in the probate code that can force one spouse to provide for their counterpart.  But what about the marriage?  Can they get a divorce?  Does the legal system respect their wish to be divorced?

Straczynski

In the recent case: In re the Marriage of Straczynski (2010) 116 Cal.App.4th 531, a woman’s conservator and guardian ad litem pursued a dissolution of marriage on her behalf.  She expressed interest in divorcing, then later developed dementia.  Whenever the husband came to visit her in an assisted living facility, she would hold his hand and tell him she loved him—forgetting she wanted a divorce, just months earlier.  The lower court dismissed the action finding that 1) the divorce was not in her best interest, 2) that the judge didn’t “think there’s going to any evidence presented” allowing the court to find irreconcilable differences, and 3) the court “believed” there was case law indicating that no dissolution could be ordered if there was a conservator.  The California Court of Appeal remanded with a heavy hand, finding the dismissal, “Was made without proper notice to the parties and without proper legal or evidentiary basis.” Ouch.  Triple whammy.  No notice, no legal basis, and no evidentiary basis.  But, that’s not too surprising considering the judge pretty much said, I don’t like this and I think there’s some precedent out there somewhere against it—even though I have no idea what it is nor have I bothered to look it up.  The tone the court of appeal takes when discussing the husband’s visits give one the impression that he was attempting to manipulate her feelings and possibly take advantage of her dementia.

The Legal Standard

In Straczynski, the Court of Appeal went on to describe the actual case law that the lower court should have cited, had it done its due diligence.  See In re Marriage of Higgason (1973) 10 Cal.3d 476.  The Higgason court found that a spouse under a conservatorship may bring a dissolution action through a guardian ad litem “provided it is established that the spouse is capable of exercising a judgment, and expressing a wish, that the marriage be dissolved on account of irreconcilable differences and has done so.” Id. at 483.

Why This is All Really Stupid

Under Higgason, a conservatee can get divorced through their guardian ad litem, but they must have enough capacity to state they want a divorce and that there are irreconcilable differences.  The trouble is that in order to need and have a conservator or guardian ad litem in the first place—a physician or mental health practitioner needs to have deemed this person physically or mentally incapable of caring for themselves.  So the court is taking an impractical middle ground.  If you have dementia and a guardian ad litem—that agent can pursue a divorce on your behalf, but only if you retain enough competence to remember that you want a divorce because of irreconcilable differences.  You must be incompetent enough to need an agent, but competent enough to make a decision about your marriage and state why it didn’t work out.

The Higgason court didn’t say one way or the other, but in dicta, the Straczynski  court says that if a conservatee retains this minimum capacity level at the start of proceedings, but loses it during the dissolution process—the court would have to dismiss the case.  It interprets the Higgason court’s capacity requirement as one needed throughout the entire course of dissolution proceedings.

My guess is that with baby boomers aging and the number of Americans with dementia on the rise, this is going to be an issue revisited by the Court of Appeal or the California Supreme Court sometime soon.  It would be better if the State Assembly could pass a new family code or probate code section that addressed this issue before that happens, but I doubt they will.  In the meantime, if you start developing dementia and you want out of your marriage—you better get divorced quick before you forget.

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Grounds for Modifying a Custody or Visitation Order (what the hell does “substantial change of circumstances” mean anyway?)

So, you have a child custody arrangement and you want it changed.  Child custody arrangements can always subject to the court changing them, even if they say “Final,” and even if the parties signed an agreement saying they wouldn’t change it.  See Family Code § 3022.  What are some reasons that would justify changing a custody or visitation order?

Some Factors Related to Modifications of Custody:

  • —  Facilitation or Frustration of Visitation: Is the other parent denying you rightful contact with your child or failing to follow the court order?
  • —  Employment: Have there been any changes in your employment or the other parent’s employment? Are the children always in daycare or the care of relatives? Are you more available to spend time with the children? Has a change in your employment increased the amount of time you can devote to your children?
  • —  Geographic Distance: Do you now live closer to the children and can see them more often than you previously could?  Would more frequent custodial changes be more feasible because of a geographical change?
  • —  School Performance: How is your child performing in school? Maintain active in any parent/teacher conferences and investigate your child’s performance by interviewing his or her teachers. Is the child’s homework getting done? Do the teachers notice any unusual behavior?  Try and stay objective as best you can.
  • —  Home Environment: What kind of environment is the other parent providing? Are there any problems with child abuse, drugs, smoking, or any other conditions in the home? Does the other parent and his or her new companion behave appropriately when the child is present? Does the other parent’s companion have a history of criminal activity or abuse?  Does your child receive proper supervision?  Does the child have proper sleeping arrangements?  Are other children from a subsequent relationship living in the same household?
  • —  Discipline and Punishment: Is corporal punishment being inflicted upon your child? Is the child being punished by someone other than the parent?
  • —  Fitness of the Ex-spouse as a Parent: Has the other parent committed any crimes? Does the other parent have any substance abuse issues?  Does the other parent have other impairments that would make effective parenting difficult?

 

Substantial Change of Circumstances:

The law has become increasingly murky in this area.  It used to be that in order to modify custody arrangements, the moving party must show that there was a “substantial change of circumstances.”  Now, no one knows exactly what that means, but some substantial changes have been changes in employment (losing a job), moving from one city to another, one parent’s criminal activity, and major changes in the child’s conduct such as grades in school.  Recent changes, most flowing from the case Montenegro v. Diaz (2001) 26 Cal.App.4th 249, have made it unclear exactly when a substantial change is needed and when its not.  A substantial change of circumstances is generally required to modify a “Final” court order for custody.  See Montenegro.  Custody modifications that simply make adjustments in time, modifications of temporary order, and modifications of visitation generally don’t require a showing of a substantial change in circumstances.

 

If you are looking to modify your current custody arrangement, it is best to work with an attorney near you to discuss whether or not there are grounds for a modification and how that modification can be carried out in the court system.

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Support Arrearages and Unenforced Judgments (why you need a lawyer)

Many times even when your rights are vindicated in court and you get a judgment—the trouble is enforcing that judgment and getting paid.  I was recently contacted by a friend who won a small claims case.  When she walked out of court a winner, she felt like Atticus Finch in To Kill a MockingImagebird.  Six months later she still hadn’t collected a dime.  She didn’t know what to do.  She asked the defendant to pay her before the suit, she asked him to pay her doing the suit, and now she was asking him to pay her on the judgment.  What is a girl to do?  She represented herself very well in small claims, but sometimes you need a lawyer (and one who knows what he or she is doing).

Just like my friend with a small claims judgment, many people with family law orders for spousal or child support are owed thousands of dollars and don’t know what to do about it.  Asking nicely doesn’t seem to do the trick.  A writ of execution is just the thing.  A writ of execution is a court order to put in force a judgment obtained in court.  After you get a writ, you get the Sheriff or Marshal (like our Ventura County Sheriff’s Department) to execute on that writ.  Basically you file a bunch of paperwork and the police garnish wages, suck money right out of bank accounts, or confiscate property and auction it off.  Sometimes people are really talented at living “off the grid” and staying judgment-proof.  But, if they can be found and if it can be levied—we’ll get it done.

If you need help collecting on your support arrearage or unpaid civil judgment, feel free to contact us.

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Commercial Lease Tips for the Business Owner (the unrequited lease)

Here is an overview of some common issues that arise when a small (or any) business owner negotiates with a landlord over a lease agreement.  Routinely, landlords write leases and tenants sign them without negotiating, changing language, or having their attorneys read over them.  Having an attorney spend a half hour reading a lease can save you tens of thousands of dollars in losses down the road.  Keep in mind as you read that this is a negotiation and some landlords may not be willing to budge on some of these issues.  The idea is not to have the upper hand, but for things to be fair between the parties.  Most leases are written by landlords and are pretty slanted in their favor.  Here are some common commercial lease snafus and how to deal with them.

  1. Exclusivity
Almost every commercial lease has an exclusivity clause.  However, these clauses are rarely, if ever, mutual.  You move into a retail shopping center.  You operate a smoothie business.  There is a CVS drug store in the center.  You sign a covenant “Not to compete with, sell, display, or sublease to any business selling or displaying health, beauty, vitamins, dietary supplements, prescription drugs, or over the counter drugs.”  Sounds fair, right?  The problem is that most exclusivity clauses protect the “Anchor” tenant, but fail to give you protection. 
An acquaintance recently ran into this problem.  He agreed not to compete with any retail business currently in place at the date of his lease agreement.  However, the covenant was not mutual.  The landlord never promised not to lease space to another tenant competing with him.  A competing smoothie business moved in two doors down from him.  Did he have any recourse?  Probably not.  He may have a breach of good faith and fair dealing claim, but that’s tenuous as best.
Make the feeling mutual.  Something like:
“Tenant, and any successor, assignee, or sublessor covenants not to compete with any other business occupying the premises, while Landlord covenants not to allow the operation of any business that would compete with tenant, successor, assignee or sublessor operating a _______ business.”
  1. Commencement Date
So many leases set commencement upon, “Substantial completion of tenant improvements.”  What does that mean?  What are substantial?  Which tenant improvements?  Avoid ambiguous language.  Set guide-posts that are concrete and in yourcontrol.  Lease commences upon grant of certificate of occupancy?  Lease commences upon clearance with Department of Health?  Lease commences upon completion of flooring, signage, and certificate of occupancy?  Give the commencement date clause something to hang a hat on.  Make sure that you don’t pay rent until improvements are complete—or that rent is reduced at a calculable rate.
  1. Operating Expenses
Most commercial leases require tenants to pay a percentage of operating expenses.  Many times this is called “Additional Rent.”  Review the expenses that the landlord will pass on and make sure that they are reasonable and directly related to the building’s operations.  Certain costs should not be passed on to the tenant.  Determine whether the allocation of expenses is based upon a fully occupied building or, if not, that they are properly adjusted.  You may want to negotiate a cap on “Additional Rent/Operating Expenses.”
  1. Common Area Maintenance Charges
Yes, there is rent, additional rent, and now common area maintenance fees.  Sure you want to be a tenant?  Common area maintenance charges (CAM) are similar to “Additional Rent” except it commonly covers items such as security costs, painting, maintenance of common areas, etc.  You need to review records to determine what CAM charges are been historically and whether or not they are based on full occupation or adjusted.  If a number of tenants move out, you don’t want to be stuck with the whole CAM bill.  Similar to operating expenses, it’s advisable to negotiate a cap on CAM charges.
  1. Attorney Fees
Almost any lease contract is going to mention attorney fees.  Don’t get too hung up on it.  California Civil Code 1717 ensures that any contract provision about attorney fees has to be reciprocal even if it doesn’t say so.  That’s great.  However, lawyers have become savvy and write clauses like, “Any attorney fees or costs incurred in collecting rent or commissions are payable by the losing party.”  Uh oh.  Even if § 1717 demands reciprocal fees, the clause only applies to actions regarding the collection of rent or commissions.  Tenants are not going to be collecting rent or commissions, landlords are.  So, although § 1717 demands that if a tenant sues the landlord in an action regarding commissions, they can also get attorneys fees—the chances are they would sue about something other than the collection of commissions or rent.  Make sure that any attorney fee provision is as broad or narrow as you want it to be.  Like, “Any costs or attorney fees that arise from this contractor its enforcement are payable by the losing party.”
  1. Use Restrictions (and subleases)
Use restrictions are common and are another means of creating exclusivity.  That’s well and good, but they may be extremely restrictive and prevent subleasing.  Common use restrictions sound like, “the premises may be used for the operation of a retail shoe store and for no other purpose without the prior written consent of the landlord.”  You may want to negotiate a broader clause like, “the premises may only be used for operations of any lawful retail business,” or “any lawful professional business practice.”  The less restrictive, the greater chance you will have of subleasing if you have to in the future.
  1. Recapture/Relocation
Most tenants have trouble understanding recapture.  That’s because its economically ludicrous.  Here you have promised to pay rent, completed improvements on the lease space, for some reason you inquire about assignment or subleasing and the landlord comes and pulls the rug out from underneath you, kicking you out.  Permitted?  Yes, if there is a recapture provision.  Common recapture provisions sound like:
“Landlord retains the right of termination and recapture upon tenant’s inquiry into assignment or sublease or any other event that gives Landlord reason to believe that due performance will be impaired.”
The point is that they don’t want you subleasing for a rate lower than the lease amount.  Having a below-par tenant brings down the value of the property or makes the anchor-tenant nervous.  That makes sense.  That’s why there is probably a clause that requires any sublease to be commercially reasonable.  But, holy cow.  Under the language above, if you simply ask whether or not you can assign the lease to an affiliate– they can terminate the lease.  Make sure there is no recapture provision.
  1. Exit Strategies: Vacancies, Retail Mix, and More
Have an exit strategy.  What happens when operating expenses and/or common area maintenance charges exceed what is reasonable for your bottom line?  What happens with the anchor-tenant leaves and you are leasing space in a dead retail shopping center?  We have all seen those shopping centers where there is one lonely video rental store and ten empty units with weeds growing in the parking lot.  Have a clause that allows termination electable by tenant upon certain events.  It can sound something like the following:
“Landlord agrees that tenant and any successors in interest may terminate this lease without penalty if any one of the following events occur:
                                 i.            Retail occupancy falls below 65%;
                               ii.            The Anchor-tenant Ralphs Supermarket terminates or otherwise fails to occupy retail space within the complex;
                              iii.            Combined monthly Common Area Maintenance fees and monthly Additional Rent equate more that 33% of monthly lease rental payments;
                             iv.            Landlord fails to accept a commercially reasonable assignment or sublease;
                               v.            Landlord leases space to another business who competes with tenant named on this lease or any successor in interest in a similar line of business.
                             vi.            The Retail Mix of the complex is significantly altered from the Mix at the commencement of the lease.  Significant alteration is defined as a change of more than 25% in any given business category.  At the date of this agreement, the Retail Mix of the complex is 50% professional, 40% consumer retail, 10% industrial.”

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Quotes

Divorce is a declaration of independence with only two signers.


Gerald F. Lieberman

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Sanctions, Sanctions, Sanctions! (Family code 271)

All too often in family law parties stonewall one another.  They make frivolous requests.  They inundate the other side with faxes, emails, messages, letters, useless interrogatories, and more.  They refuse to accept a very reasonable settlement offer. 
What can a poor spouse do, but go to trial or cave and take a low-ball settlement offer?  Family Code § 271 is here to help.  Basically, § 271 says that if the other side doesn’t play ball or doesn’t play nice the court can make them pay the other side’s attorney fees.  Awesome.  It applies even if the paying spouse doesn’t have a lawyer themselves.  Here is the text of § 271:
(a)    Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperationbetween the parties and attorneys.
So, remember to play nice, or else you be paying for your ex’s legal fees.

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Domestic Partnership Summary Termination (Cheaper than divorce with a 6 month rescission period)

California changed domestic partnership law drastically in 2005.  Many code sections related to domestic partnership were revised, including the one regarding terminating domestic partnerships.  Post-2005 there are two tracks that domestic partners can take when they want to “divorce” one another.  If they qualify and want to, they can participate in summary termination procedures.  Track One: Summary termination procedures are free to file, there are no hearings, and it’s relatively easy (yes people—you are getting jealous).  Track Two:  Full judicial dissolution of the domestic partnership in a process that mirrors dissolution of marriage in almost every way (more complicated, more expensive, more time consuming).
Do I Qualify For Summary Termination?
Under Family Code § 299, there is a list of requirements to summarily terminate a domestic partnership.  They are incredibly similar to Family Code § 2400, which covers summary dissolution of marriage.  Here are the qualifications set out in § 299:
1.       Both Parties Agree;
2.       Neither Party Wants Spousal Support (yes you can get spousal support as domestic partners);
3.       The Length of the Partnership Was Under 5 years;
4.       Neither Party Owns Real Property or a Lease On Property Greater Than 1 year;
5.       The Community as a Whole Doesn’t have more than $4,000 in debt (not counting automobiles);
6.       The Community Doesn’t have more than $25,000 in assets(not counting automobiles);
7.       The Parties have signed a community property settlement agreement;
8.       Neither party is pregnant;
9.       Neither party had a child during the partnership; AND
10.   Neither party adopted a child during the partnership.
What Next?
If you qualify and have a written agreement, then you file a simple form with the Secretary of State’s Office.  However, and this is a big however: either party can cancel within 6 months before the summary termination is effective (it’s like a 6-month rescission period).  That’s right.  Five months and 29 days later one of the parties can file a Revocation of Termination with the Secretary of State.  Then it’s off to court to have the partnership dissolved just like a marriage.
What’s The Big Deal?
The big deal is that California is making domestic partnership more and more similar to marriage.  Now, Federal law hasn’t quite caught up yet, so the tax and medical benefits aren’t necessarily there yet.  So now domestic partners get the protections offered by the California Family Code (like custody and support provisions), but at the end of the relationship– a pair of partners might be looking at a divorce process very similar to a married couple.

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Fatty liver, discrete trial training, salvaged cars, and tattoos (New state laws starting July 1, 2012)

California state laws always start in January or July.  This year’s laws going into effect the other day on July 1 are a strange mix.  If you ever wondered what your state assemblymen were talking about in the green carpeted hall (that really is some ugly carpeting) in Sacramento—its foie gras, autism, tattoos, and bullying.  Of the new laws, I think the bullying law is my favorite, in that it expands the definition of bullying to include online behavior.  I think there is probably more bullying on facebook than on the school bus these days.
  • SB1520 bans the sale of foie gras, duck or goose liver that has been fattened by force feeding the animals with tubes shoved down their gullets (I don’t care how gourmet it is or how depressed your resident gastronome is, foie gras is cruel and wrong);
  • AB1215 requires used car dealers to put bright red stickers labeling salvaged or junked cars;
  • AB300 requires tattoo artists to be vaccinated against Hepatitis B, get basic first aid training, and follow statewide standards on sanitation (about time!);
  • AB1156 provides training for school employees on bullying prevention and expands the definition of bullying to include posting material on social media websites; and
  • SB946 requires health insurance carriers to cover behavioral therapy for those with autism, such as discrete trial training, which can be very costly when paid out-of-pocket.

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