Family Law with a Heart

Accessing Your Ex-Spouse's E-mail May Have Serious Consequences

2011-10-12T10:25:00.000-07:00

Is it ok to access your spouse’s e-mail account? In the world of smartphones, tablets, and other devices, e-mail is always at our fingertips, and in many families it is considered perfectly acceptable for spouses to have joint access to an e-mail account, or to know each other’s e-mail passwords. However, if the relationship later goes sour, one spouse may think that he or she can get a strategic advantage by accessing the other person’s e-mail.

According to a recent case, decided by the California Court of Appeal, such conduct is not only inappropriate, it may even constitute grounds for a Domestic Violence Restraining Order.

In the case of Marriage of Nadkarni (2009) 173 Cal.App.4^th 1483, Mr. and Mrs. Nadkarni decided to set up an e-mail account shortly after their separation in 2001 or 2002, so that Mrs. Nadkarni could use the account to communicate with her ex-husband about their pending divorce and the custody of their two children. According to Mr. Nadkarni he was the one who created the account and initially selected the password. According to his ex-wife, she set up the account herself, and never authorized Mr. Nadkarni to use it.

In 2007, as the parties’ custody battle continued, Mr. Nadkarni filed a motion with the Court, to which he attached several e-mails between Mrs. Nadkarni and third parties, including Mrs. Nadkarni’s attorney and the parties’ children. Mr. Nadkarni claimed that he accessed his ex-wife’s e-mail account because he was not able to reach her otherwise, and felt that his “kids’ safety was at stake.” He further stated in a court declaration that he “had procured more evidence from the above mentioned email accounts, which could be considered inflammatory and sensitive to certain others.”

When Mrs. Nadkarni requested a restraining order against her former husband based on this conduct, the trial court granted an emergency temporary order, but later denied her request for a permanent order, siding with Mr. Nadkarni, who argued that the abuse Mrs. Nadkarni has alleged is not sufficient for issuance of a restraining order. Mrs. Nadkarni appealed the decision.

In California, domestic violence restraining orders are governed by the Domestic Violence Protection Act (“DVPA”). For the purposes of the DVPA, “abuse” is defined as intentional or reckless bodily injury, sexual assault, placing a person in reasonable apprehension of serious imminent bodily harm to that person or another, or engaging in any behavior that has been or could be enjoined pursuant to Section 6320 of the California Family Code. This behavior includes “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, disturbing the peace of the other party.”

In the Nadkarni case, the Court of Appeal considered the plain meaning of the phrase “disturbing the peace”, and held that this may include “a former husband's alleged conduct in destroying the mental or emotional calm of his former wife by accessing, reading and publicly disclosing her confidential e-mails.”

It has been our experience that family law litigants often resort to actions that they would not find acceptable under different circumstances, such as accessing other people’s e-mail. However, our advice is: resist the urge. No matter what “smoking gun” you think you will find, the potential backlash is just not worth the risk. And, to make sure that your ex-spouse does not succumb to the urge of accessing your e-mail, if you are going through a separation or divorce, please change your password.

Marina Ayzenstein, Esq.

Marina Ayzenstein is an attorney with Richard Ross Associates, a Family Law firm, serving clients in both Ventura and Los Angeles Counties. Marina is a member of the Los Angeles County Bar Association Family Law Section, Ventura County Bar Association, and the Ventura County Inns of Court.
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The contents of this blog are provided to clients, prospective clients, internet users and the general community for informational and entertainment purposes only, and does not constitute legal advice. Further, the use of this blog and the transmission or receipt of the information provided in this blog will not establish an attorney-client relationship between you and Richard Ross Associates unless and until an attorney at Richard Ross Associates agrees that the Firm will undertake an attorney-client relationship with you. Do not transmit any confidential or sensitive information to Richard Ross Associates until a formal attorney-client relationship has been established.

The information contained within this blog should not be considered as a solicitation or an offer for an attorney-client relationship. Materials contained in this blog are of a general nature and should not be substituted for legal advice. You should seek the advice of a licensed attorney before acting or relying upon any information contained within this blog. Richard Ross Associates is providing this blog, the information and listings contained herein only as a convenience to you.

How Thomas Rossi Won The Lottery Without Ever Buying A Lottery Ticket

2011-06-13T17:10:00.000-07:00

What is the first thing you would do if you won the lottery? Would you buy a house? Book an exotic vacation? Buy gifts for friends and family? How about file for divorce?

While this is not the first thing most people would think of, this is exactly what a wife did in the 2001 case In re Marriage of Rossi, 90 Cal.App.4th 34.

When Denise Rossi unexpectedly filed for divorce in January 1997, she told Thomas, her husband of over 25 years, that their marriage was over. What she didn’t tell him, however, was that, just 11 days earlier, she won $1,336,000 in a lottery pool at work.

To ensure fairness in divorce proceedings, the California Family Code requires divorcing parties to provide to one another a full disclosure of all assets and liabilities in which one or both parties have or may have an interest in the early stages of a proceeding for dissolution of marriage or legal separation. Moreover, the law provides that the parties have a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes. California Family Code, Section 2100(c).

Mrs. Rossi filled out the required disclosure forms, but failed to mention her lottery winnings. The parties’ divorce became final in April of 1997.

Two years later, in May 1999, Thomas Rossi opened his mailbox to find a letter, asking whether Denise was interested in a lump-sum buy-out of her lottery winnings. After confirming that Denise was, in fact, a lottery winner, Thomas hired an attorney and brought this new fact to the attention of the Court. During the ensuing hearing, Thomas was able to show the Court that Denise went to great lengths to avoid notifying him of her lottery winnings, such as consulting the Lottery Commission personnel about ways in which she could avoid sharing the jackpot with her husband, and using her mother's address for all communications with the Lottery Commission.

Section 721 of the California Family Code provides that the relationship between husband and wife is a confidential relationship, which imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners. The Court found that Mrs. Rossi intentionally violated her fiduciary duty to her husband, and that her conduct met the definition of fraud, as defined under California civil law.

Pursuant to Section 1101(h) of the California Family Code, the remedy for such an egregious breach of fiduciary by one spouse may include an award of 100% of the undisclosed asset to the other spouse. In this case, the trial court did just that, and awarded Thomas 100% of Denise’s lottery winnings. The California Court of Appeal later affirmed this ruling.

Had Mrs. Rossi complied with the requirements of the law, she and her ex-husband would share the winnings 50/50, each walking away with a substantial amount of money. Instead, because of her greed, she walked away with nothing but thousands of dollars in attorney’s fees.

If you are considering a divorce, remember: full financial disclosure is absolutely mandatory. An experienced family law attorney can guide you through the complex process of these legal requirements.

Marina Ayzenstein
Family Law Attorney

Marina Ayzenstein is a Family Law attorney in California who is a member of the Family Law Bar Associations in both Ventura and Los Angeles Counties.
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The contents of this blog are provided to clients, prospective clients, internet users and the general community for informational and entertainment purposes only, and does not constitute legal advice. Further, the use of this blog and the transmission or receipt of the information provided in this blog will not establish an attorney-client relationship between you and Richard Ross Associates unless and until an attorney at Richard Ross Associates agrees that the Firm will undertake an attorney-client relationship with you. Do not transmit any confidential or sensitive information to Richard Ross Associates until a formal attorney-client relationship has been established.

The information contained within this blog should not be considered as a solicitation or an offer for an attorney-client relationship. Materials contained in this blog are of a general nature and should not be substituted for legal advice. You should seek the advice of a licensed attorney before acting or relying upon any information contained within this blog. Richard Ross Associates is providing this blog, the information and listings contained herein only as a convenience to you.

Are FLRPLs dischargeable in Bankruptcy?

2011-05-23T13:00:00.000-07:00

A Family Law Real Property Lien, commonly referred to as a FLRPL, may be given by a family law client to his or her own attorney to secure an existing fee bill or to secure future ongoing attorney fees in a family law case.

Sometimes, where a client does not have enough money to pay his attorney for continued legal services, but has sufficient equity in the family residence, the granting of a lien against the family residence could be the only way for a client to be able to retain legal counsel in his or her case. Otherwise, the client might have to become unrepresented, if there are no other options available for payment for ongoing services. The attorney and client could agree that the client would grant to the attorney a lien on the family residence in an agreed specified amount. The FLRPL is then recorded against the family residence. The lien granted by the client only affects the client's community interest in the family residence. It does not affect the other spouse community interest in it.

Of course, in this present economy, the ability to convey a FLRPL to one's attorney is less and less likely since many homes have lost considerable value in the last two to three years. Some are now upside down. Certainly, the granting of a FLRPL was more prevalent before 2008.

With more bankruptcy filings in the past two years, the question arose whether a former client could file bankruptcy and discharge the FLRPL in the bankruptcy. In a 2009 case, the United Stated Bankruptcy Court ruled that a FLRPL is a statutory lien and is NOT dischargeable in bankruptcy. So, while a FLRPL does serve a legitimate purpose in the proper situation, it cannot be avoided in bankruptcy.

Co-Parenting Your Children during and after a Divorce

2011-05-09T16:50:00.000-07:00

Divorce means ending a relationship with a spouse. The relationship with your children continues. How do you share time with the children with the person you are divorcing? It is important to develop a working relationship with the co-parent that is in the best interest of the child. It may be easier to divide and dispose of material possessions than to make joint decisions about the children. The quality of communication with your co-parent deeply affects your children's present and future adjustment. Co-parenting means respectful, deferential, flexible and cooperative decision making regarding one's children.

Children Learn What They Live - by Dorothy Law Nolte

If children live with criticism, they learn to condemn.
If children live with hostility, they learn to fight.
If children live with fear, they learn to be apprehensive.
If children live with pity, they learn to feel sorry for themselves.
If children live with encouragement, they learn confidence.

If children live with tolerance, they learn patience.

If children live with praise, they learn appreciation.
If children live with acceptance, they learn to love.

Loan Applications Can Come Back To Haunt

2011-03-14T09:43:00.000-07:00

Many cases have been won or lost in both the child and spousal support arenas due to clever lawyers and their clients finding and introducing into evidence for the Court’s consideration recent loan applications where the adverse party claimed inflated income to secure approval of a loan application to a lender.

Now, that same person is in family court telling the judge, usually under penalty of perjury, that he or she has limited income for purposes of paying child or spousal support.

Income stated on loan application is substantial evidence at trial supporting a court finding that it is the party's income. A 2005 appellate court decision ruled that a trial court may properly rely on income stated on a loan application that was wildly different from that stated on tax returns.

Although case law permits a trial court to rely on income stated on a loan application, the trial court is not obligated to do so. The trial court still has wide discretion to believe or not believe the statement of income on a loan application. In fact, in a 2009 appellate case, In re Marriage of Berger, Mr. Berger had applied for a 1.8 million dollar construction loan. The loan application listed his income at $65,000 per month. The trial court did not adopt this figure as Mr. Berger’s income in the family law case. This case went up on appeal. The appellate court ruled that, like any other evidence, it is within the discretion of the trial court that hears and considers the evidence contained in the loan application to be persuaded or not be persuaded by the loan application evidence put before the court for review.

Nevertheless, loan applications and associated financial statements are one of the most fertile areas for discovery in support litigation. With the prevalence of refinancing, it is always a good idea to see if the other party has refinanced and, if so, to subpoena the loan records.

Richard Ross
Certified Family Law Specialist

Richard Ross is a certified family law specialist in California who is a member of the Collaborative Family Law Professionals in both Ventura and Los Angeles Counties.

Collaborative AKA No-Court Divorce - A Better Way?

2011-03-11T09:32:00.000-08:00

Collaborative divorce is a family law procedure by which the two parties agree that they will not go to court, or threaten to do so. The parties strive to reach a fair settlement through a series of four-way meetings between the two parties and their lawyers. This is a relatively new approach to conflict resolution. It is based on the realization that traditional litigation is not always helpful to families, and often is damaging. Its popularity is increasing dramatically.

Collaborative law differs from mediation. In mediation the mediator is a neutral third party who doesn't represent either side, though each party usually has a lawyer available to consult with throughout the mediation process.

The Collaborative process involves treating each other respectfully and satisfying the interests of all family members rather than trying to gain individual advantage. The Collaborative process sets a positive tone so that the husband and wife can work to satisfy both of their interests. The process can reduce unnecessary and destructive conflict and avoid litigation.

The key document in a collaborative case is the Participation Agreement. It is a contract signed by the participants, which sets forth the rules for the process. The Participation Agreement includes a Court Disqualification Clause, which states that if the parties do not resolve the matter in the Collaborative process, neither attorney will represent the parties in any contested litigation between them.

Thus, the Collaborative process can increase the motivation of all parties and attorneys to reach a settlement. If negotiations break down and either husband or wife decides to proceed with a litigated court divorce, both parties need to hire new attorneys and the collaborative attorneys are out of a job. As a result, everyone in the Collaborative process focuses exclusively on reaching agreement. All parties and attorneys focus on negotiation from the very beginning of the process. Collaborative attorneys work to negotiate constructively and avoid attacking the other side. What is said in the settlement meetings remains confidential.

The Collaborative process typically involves a team of Collaborative professionals who have specialized training in collaborative divorce skills. Using a team approach helps the couple make fully-informed, carefully considered settlement decisions, using professionals with different skills. The team is assembled based on the individual needs of the case. For example, separate divorce coaches, who are mental health professionals, can help one or both of the parties to deal with emotional, relationship, and parenting issues. Child development specialists, financial and real estate professionals may be hired jointly to provide unbiased information and advice. These specialists are neutral, which saves each party time and money hiring his or her own experts.

Collaborative professionals usually have had special training to help promote constructive settlements. By investing the time and money for professional training, Collaborative professionals demonstrate a commitment to constructive negotiation.

Richard Ross
Certified Family Law Specialist

Richard Ross is a certified family law specialist in California who is a member of the Collaborative Family Law Professionals in both Ventura and Los Angeles Counties.

Family Law Goes to the Dogs

2011-03-02T09:44:00.000-08:00

We marvel at how crazy our dogs become when we arrive home from the grocery store, even though we may have been gone for only 10 minutes. It's like we have been gone for weeks. They jump around and go nuts. No wonder that we love our animals. Wouldn't it be great if our kids were as excited to see us when we came home from work? So, when dissolution of marriage occurs in California, who gets the family pet?

Unfortunately, dogs and cats are usually treated as personal property items and are not treated as children. Judges usually award the dog to either the husband or wife at the time of trial, but a shared visitation award regarding the family pet is not likely. A local judge recently told me a story about a case before him regarding the family dog.

The wife had moved out of the family residence in California and relocated to Seattle Washington. Both husband and wife wanted the judge to award the dog to him or her. The judge decided to award the dog to the husband on condition that the husband gives the wife $1000 to purchase a new dog in Seattle. The judge sent the attorneys out to speak with their respective clients, to tell each the news about the judges intended decision, and to write up the judge's order. When they returned to the judge's chambers, the judge was surprised that the order provided for the wife, rather than the husband, to be awarded the dog. The attorneys explained that upon being told of the judges intended decision, the wife broke down in the courthouse hallway crying uncontrollably. After regaining control, she offered to pay husband $2500 for the family dog. The husband refused. The wife then raised her offer to $5000. The husband rejected the $5000 offer, whereupon, the wife offered the husband $7500, which he accepted.

It took 2 additional court hearing, each brought on an emergency basis, at great cost to each party, to work out the logistics of transporting the family dog from California to Seattle, Washington. Finally, the dog arrived in Seattle, only to be hit by a car and killed a week later.

A divorcing couple could sign a written agreement, called a stipulation, providing for a shared custody arrangement of a family pet, which a Court would likely honor. However, if presented with such an issue at the time of trial, without the agreement of both parties, a family law judge would not order such a shared arrangement of the family dog or cat, but would likely award the animal to either the Husband or Wife. This is a true story with a terrible ending. Unfortunately sad tales like this are too common in Family Court in California.

Richard Ross
Certified Family Law Specialist

Are Monetary Gifts Considered Income in Child Support Calculations?

2011-02-27T20:35:00.001-08:00

Until 2009, it was uncertain whether monetary gifts received by a mother or father of a minor child could be considered by a court in a divorce or paternity case in calculating child support. That year, a California Appellate Court agreed to decide that issue. It is very common for parents to give their married children cash gifts to help them pay expenses, particularly when the married couple is young and just getting started. Likewise, parents often help their adult single mother child or single father child with their bills. In this 2009 case, In re Marriage of Alter, the husband’s mother had been gifting him $3,000 per month for years. After dissolution was filed, the husband moved in and lived with his mother. The mother then bought a house for her son to live in. She increased her son’s “allowance” to $6,000 per month. Of that amount, $3,000 was for him to use for his expenses, and the other $3,000 was for him to give back to his mother as rent for the house that she purchased for him to live in.

We are now in family court and the Wife is asking the Court to consider her Husband’s receipt of gifts from his mother over the years as income to him for the purposes of calculating child support. The Husband responded that the money he received from his mother were gifts and not income. What is the result?

Existing California case law provided little guidance on the point. The Appellate Court agreed it is settled that the principal amount of a one-time, lump sum gift or inheritance is not income but the rents, interest, or dividends generated by the gift are income. However, no cases specifically addressed a pattern of recurring gifts. The Court looked at other states and found that they went in different directions, with some considering gifts as income and some not. It agreed with the treatment described in the Illinois case of In re Marriage of Rogers (2004), wherein the father received gifts and loans from his family which amounted to a steady source of dependable annual income he had received each year over the course of his adult life. He had never repaid any portion of those sums, nor paid tax on them. Rogers held that these gifts fell within the definition of income contained in the Illinois statute, which defined net income as “‘the total of all income from all sources.’”

The Alter Court concluded that “nothing in the law prohibits considering gifts to be income for purposes of child support so long as the gifts bear a reasonable relationship to the traditional meaning of income as a recurrent monetary benefit.” So, the rule is that One-Time Gifts are NOT INCOME. However, Recurring Gifts are INCOME so long as they “bear a reasonable relationship to the traditional meaning of income as a recurrent monetary benefit.” The Trial Court HAS DISCRETION to consider whether to include these recurring gifts as income. Yet, the Court is NOT REQUIRED to do so. “While regular gifts of cash may fairly represent income, that might not always be so.”

Winning The Lotto Can Be Bad News If You're Not Divorced Yet

2011-02-15T17:37:00.000-08:00

When Holly Lahti of Rathdrum, Idaho learned that she won $190 million in the Mega Millions Lottery in January 2011, it should have been the happiest day of her life. Under normal circumstances, TV viewers all over the country could expect to see Lahti, smiling and posing with a giant check. Instead, Ms. Lahti’s joyous win is plagued by a looming court battle with her long-estranged husband. Although separated for a number of years, the couple is not divorced, and, under Idaho law, Lahti’s husband may be entitled to a portion of her winnings.

In California, income (including lottery winnings)a earned by a person after the date of separation is his or her separate property. But how does one determine what that date is? California Courts define separation as “that condition when spouses have come to a parting of the ways with no present intention of resuming marital relations. The fact that husband and wife live in separate residences is not determinative, althought it is usually considered an important factor. The question is whether the parties' conduct evidences a complete and final break in the marital relationship”.

Determining what constitutes a complete and final break is often a complicated task. Since intentions are, by definition, subjective, courts examine whether the parties' conduct, objectively, reflects that the marriage is over.

For instance, imagine that a spouse moves out of the family home, and lives with a new significant other for the next four years. Many of us would consider this to be a complete and final break-up of the marriage. Not so, said the California Court of Appeal in In re Marriage of Baragry (1977) 73 Cal.App.3d 444.

From 1971 to 1975, Mr. Baragry thought he had the best of both worlds. He lived with his 28-year-old girlfriend, but continued to have dinner at his former home (with his children and his wife of 20 years) several times a week. He took his wife to social and professional events, and gave her Christmas, birthday, and anniversary cards. In 1975, Mr. Baragry filed for divorce and claimed that the substantial sum of money he earned after 1971 was his separate property. The Court disagreed, and ruled that the marriage remained intact until 1975. The Court may have been persuaded by the fact that Mr. Baragry continued to bring his laundry for his wife to wash and iron twice a month during the entire 4-year period that he claimed they were “separated”.

The moral of this story is that establishing the legal date of separation can be a complicated factual determination, and one may or may not be considered “separated”, regardless of one’s living arrangements. If Holly Lahti lived in California, this may have made the difference between enjoying a $190 million prize and engaging in a protracted legal battle with an estranged husband.

Check out our blog next month for another fascinating lottery story, and find out why a certain Mrs. Rossi had to give up not half, but all of her lottery winnings!

Marina Ayzenstein
Marina is an Associate Attorney with Richard Ross Associates.