Tuesday, November 29, 2011
Monday, October 17, 2011
If the McCourt's Can Settle Their Divorce Issues, So Can You!
The McCourt's have reached a divorce settlement that gives him control of the Los Angeles Dodgers and her about $130 million, making it one of California's costliest divorces, according to a report published Monday, Oct. 17, 2011. The McCourt's have plenty of money to spend fignting about money. Most people do not. We are very conscious of the price clients pay, both economically as well as emotionally when they believe they need to prove they are right or ensure that justice is done. Unfortunately, it is often not until the dust settles that they come to realize that being able to forgive is essential to moving on and, until that time, the bills and the headaches will keep piling on.
Wednesday, September 21, 2011
relaxing After a Hard Day
Times are tough for many people. So many peple without assets still.fighting over things that next year they will laugh over. Real problems such as elder abuse very scary. More people need to come forward to deal with this peevasive issue.
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Monday, September 19, 2011
Managing Money Post-Separation: An Analysis of Marriage of Margulis
Oftentimes, the decision to get a divorce is a slow and painful process for couples. Even more arduous and painstaking is the procedure of separating once-intertwined lives. This process involves time-consuming but necessary tasks such as getting separate bank accounts, separate credit cards, moving into separate homes, etc. While these chores may seem inane and pointless at a very emotionally difficult time, taking care of them expeditiously can save time, money, and emotional headaches for divorcing couples. Failing to heed this warning will result in a financial catastrophe similar to that found in the recent case, Marriage of Margulis (August 11, 2011) which can be found by clicking the link: http://www.courtinfo.ca.gov/opinions/documents/G041948.PDF
In Margulis, the Parties failed to properly separate and account for their finances after their separation, which turned out to be a big mistake. Leading up to and during trial, the two disagreed over the extent of their shared community assets. Although the Court of Appeal ultimately ruled in favor of the wife, both Parties had to pay for this mistake by needlessly spending time and amassing extensive attorney’s fees arguing over the issue.
Elaine and Alan Margulis separated in 1996 after a marriage of over thirty-three years. Following their separation, Alan moved out of the family residence. However, Alan continued to manage the family's money in the same manner that he did during the Parties' marriage. He continued to pay all of the Parties' bills, receive bank statements and managed the Parties' stock investments among other things. In 2002, six years after the Parties separated, Elaine filed for divorce. After another five years, Alan filed his response. Despite separating twelve years before, Alan continued during this entire period to manage the Parties' assets in the same manner he always had.
When it came time for the Parties to try their case, it became apparent that they had very different understandings of the extent of the community assets. Elaine valued assets higher than Alan did and included certain investment accounts which Alan never mentioned. Alan said that the depletion of some of the assets were due to the fact that he had to pay all the community expenses, as well as pay Elaines expenses. Also, there were losses in the stock market which negatively affected their assets.
Alan produced no documentation regarding the investment accounts. Nor did he provide an accounting of how the community funds were spent. Furthermore, he made no attempt to trace the community's income and expenses. He simply claimed that the losses were due to the downturn in the stock market and his payment of community expenses. He also denied having access to the investment account statements, once he moved out of the family residence. Elaine alleged otherwise: that Alan had complete control of the investment accounts as well as all of the family assets and that he ignored all requests to provide a record of the accounting history.
At trial, Elaine introduced a financial statement of the Parties' assets prepared by Alan in 1999. Elaine requested that Alan be charged with the depletion of the assets since that date unless Alan could prove that he did not misappropriate the money. Although the Judge admitted the 1999 financial statement into evidence, the judge said that it was not enough to prove that the accounts listed on the financial statement actually existed or that the values on the list were accurate.
Ultimately, among other decisions made by the judge (which are neither discussed herein, nor relevant to the topic of this article), Alan was not charged with the missing funds. Instead, the judge ordered Elaine to reimburse Alan for paying her separate property expenses following the date of separation. The judge found that, although the financial statement was insufficient to substantiate the Parties' assets and Elaine's claims regarding what happened to them, Alan had breached his fiduciary duty to maintain records for the community assets he controlled and ordered him to pay $20,000 in sanctions and a portion of Elaine's attorney fees. Both arties appealed these orders.
The Court of Appeal ruled in Elaine's favor, stating that, once a nonmanaging spouse makes a prima facie showing concerning the existence and value of community assets in the control of the other spouse post separation, the burden of proof shifts to the managing spouse to rebut the showing or prove the proper disposition or lesser value of these assets. If the managing spouse fails to meet this burden, the court should charge the managing spouse with the assets according to the prima facie showing.
The Appellate Court explained that Athe rationale for shifting the evidentiary burden concerning missing assets to the managing spouse arises from the simple fact that an accounting of all community property is required so the Court may divide it equally. Alan argued that the burden-shifting approach improperly presumed the managing spouse breached a fiduciary duty. He claimed that a managing spouse should not be charged with missing assets unless there is evidence of mismanagement or misappropriation. The Appellate Court disagreed. It found that Alan's approach increases the risk of an unfair property division because a nonmanaging spouse who lacks personal knowledge and records of the disposition of missing community assets would find it extremely difficult to make the initial showing of mismanagement or fraud to shift the burden of proof. No sound policy reason supports the adoption of Alan's proposed rule; indeed, the rule would contradict a managing spouse's obligation to provide the full disclosure and accounting owed to a managing spouse. The Court thus ordered a retrial regarding the community property issues.
This case is a strong reminder that the best practice regarding finances for separating couples is to separate finances as soon as possible following separation. Doing so will save time and money once the parties are ready to divide their assets (and debts). At the very least, following separation, the managing spouse should maintain records of the Parties' accounts and provide the nonmanaging spouse regular accountings. The managing spouse has a fiduciary duty to account for the management of community assets under his or her control. A managing spouse can be charged with the misappropriation or mismanagement of community assets and can be liable for attorney's fees if they neither separate assets between the spouses nor account for the comingling and dissipation of same. Conversely, without taking responsibility for separating certain assets and liabilities at the beginning of the divorce process, the non-managing spouse will spend large amounts of time and money to determine and prove the existence and value of the assets at the time of separation in order to shift the burden to the managing spouse.
Making the decision to separate or divorce is a difficult one, as is navigating the entire process. Failure to understand the nature and extent of one=s assets and liabilities can have significant financial and emotional consequences. Upon consideration of a divorce or separation, consulting an experienced family law attorney right away is essential to protect a party's rights (and peace of mind) during the course of separation or divorce.
In Margulis, the Parties failed to properly separate and account for their finances after their separation, which turned out to be a big mistake. Leading up to and during trial, the two disagreed over the extent of their shared community assets. Although the Court of Appeal ultimately ruled in favor of the wife, both Parties had to pay for this mistake by needlessly spending time and amassing extensive attorney’s fees arguing over the issue.
Elaine and Alan Margulis separated in 1996 after a marriage of over thirty-three years. Following their separation, Alan moved out of the family residence. However, Alan continued to manage the family's money in the same manner that he did during the Parties' marriage. He continued to pay all of the Parties' bills, receive bank statements and managed the Parties' stock investments among other things. In 2002, six years after the Parties separated, Elaine filed for divorce. After another five years, Alan filed his response. Despite separating twelve years before, Alan continued during this entire period to manage the Parties' assets in the same manner he always had.
When it came time for the Parties to try their case, it became apparent that they had very different understandings of the extent of the community assets. Elaine valued assets higher than Alan did and included certain investment accounts which Alan never mentioned. Alan said that the depletion of some of the assets were due to the fact that he had to pay all the community expenses, as well as pay Elaines expenses. Also, there were losses in the stock market which negatively affected their assets.
Alan produced no documentation regarding the investment accounts. Nor did he provide an accounting of how the community funds were spent. Furthermore, he made no attempt to trace the community's income and expenses. He simply claimed that the losses were due to the downturn in the stock market and his payment of community expenses. He also denied having access to the investment account statements, once he moved out of the family residence. Elaine alleged otherwise: that Alan had complete control of the investment accounts as well as all of the family assets and that he ignored all requests to provide a record of the accounting history.
At trial, Elaine introduced a financial statement of the Parties' assets prepared by Alan in 1999. Elaine requested that Alan be charged with the depletion of the assets since that date unless Alan could prove that he did not misappropriate the money. Although the Judge admitted the 1999 financial statement into evidence, the judge said that it was not enough to prove that the accounts listed on the financial statement actually existed or that the values on the list were accurate.
Ultimately, among other decisions made by the judge (which are neither discussed herein, nor relevant to the topic of this article), Alan was not charged with the missing funds. Instead, the judge ordered Elaine to reimburse Alan for paying her separate property expenses following the date of separation. The judge found that, although the financial statement was insufficient to substantiate the Parties' assets and Elaine's claims regarding what happened to them, Alan had breached his fiduciary duty to maintain records for the community assets he controlled and ordered him to pay $20,000 in sanctions and a portion of Elaine's attorney fees. Both arties appealed these orders.
The Court of Appeal ruled in Elaine's favor, stating that, once a nonmanaging spouse makes a prima facie showing concerning the existence and value of community assets in the control of the other spouse post separation, the burden of proof shifts to the managing spouse to rebut the showing or prove the proper disposition or lesser value of these assets. If the managing spouse fails to meet this burden, the court should charge the managing spouse with the assets according to the prima facie showing.
The Appellate Court explained that Athe rationale for shifting the evidentiary burden concerning missing assets to the managing spouse arises from the simple fact that an accounting of all community property is required so the Court may divide it equally. Alan argued that the burden-shifting approach improperly presumed the managing spouse breached a fiduciary duty. He claimed that a managing spouse should not be charged with missing assets unless there is evidence of mismanagement or misappropriation. The Appellate Court disagreed. It found that Alan's approach increases the risk of an unfair property division because a nonmanaging spouse who lacks personal knowledge and records of the disposition of missing community assets would find it extremely difficult to make the initial showing of mismanagement or fraud to shift the burden of proof. No sound policy reason supports the adoption of Alan's proposed rule; indeed, the rule would contradict a managing spouse's obligation to provide the full disclosure and accounting owed to a managing spouse. The Court thus ordered a retrial regarding the community property issues.
This case is a strong reminder that the best practice regarding finances for separating couples is to separate finances as soon as possible following separation. Doing so will save time and money once the parties are ready to divide their assets (and debts). At the very least, following separation, the managing spouse should maintain records of the Parties' accounts and provide the nonmanaging spouse regular accountings. The managing spouse has a fiduciary duty to account for the management of community assets under his or her control. A managing spouse can be charged with the misappropriation or mismanagement of community assets and can be liable for attorney's fees if they neither separate assets between the spouses nor account for the comingling and dissipation of same. Conversely, without taking responsibility for separating certain assets and liabilities at the beginning of the divorce process, the non-managing spouse will spend large amounts of time and money to determine and prove the existence and value of the assets at the time of separation in order to shift the burden to the managing spouse.
Making the decision to separate or divorce is a difficult one, as is navigating the entire process. Failure to understand the nature and extent of one=s assets and liabilities can have significant financial and emotional consequences. Upon consideration of a divorce or separation, consulting an experienced family law attorney right away is essential to protect a party's rights (and peace of mind) during the course of separation or divorce.
Friday, August 5, 2011
summer Book List
I am Just in the middle of the Rembrandt Affair by Daniel Silva. Another great story/mystory about the in defatigable Israeli spy Gabriel Allon this time avenging those victims of the Nazis who stole their art collections.
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Saturday, June 25, 2011
Point well taken. Can I improve the silence?
Tuesday, June 21, 2011
Women's right to sue as a class limited. Is that the good news or the bad?
The U.S. Supreme Court ruled yesterday that a super-large group of women attempting to sue Wal-Mart failed to establish a commonality of purpose in the filing of a class action lawsuit. The decision was split numerous ways. Justice Scalia delivered the opinion of the Court. Chief Justice Roberts and Justices Kennedy and Alito joined in the opinion. Justices Ginsburg, Breyer, Sotomayor and Kagan joined as to Parts I and III and Justice Ginsburg filed an opinion which concurred in part and dissented in part as to Part II, in which Breyer, Sotomayor and Kagan joined. While the "majority" obviously leaned way towards the conservative side of the Court, the issues of gender discrimination and the right to sue as a group got mixed up with the issue of what constitutes a group for purposes of certification as a class. Many view this decision as a "win" for "big business" and a loss for the "liberals." However, if you look beneath the surface of the actual holding, the suit remains viable as to 3 of the 7 named plaintiffs and across the country other potential plaintiffs are coming forward and corporate policies will be scrutinized on a more localized level. That is not all bad, although the loss for certain of the plaintiffs seems unreasonably unfair, considering the technical nature of the decision. Anything that clarifies the certification process such that more victories for the discriminated upon may be forthcoming in the long run cannot be all bad.
Saturday, June 18, 2011
Exciting Changes Happening With Association of Certified Family Law Specialists
At the latest board meeting of ACFLS, we learned that as of August 18, 2011 our brand new website will go live. This website will allow Facebook-like control over comments, blogs, forums, messaging, profiles, calendaring and the like. As I was involved from the very beginning in designing and creating content for the ACFLS website, I feel particularly proud as to how far we have come in this techno-savvy world. Generally, lawyers are so busy, it has proven difficult to move the more seasoned lawyers into the virtual world. Clearly, that world has now met our world and it is an amazing one that I cannot believe we ever lived without!
Also, our Newsletter has received a major facelift in terms of name and presentation and we are inaugurating a monthly news blast to go out to all of our members starting this July!
Also, our Newsletter has received a major facelift in terms of name and presentation and we are inaugurating a monthly news blast to go out to all of our members starting this July!
Saturday, June 4, 2011
Flurry of Estate Planning Activity
Seems like everyone has stopped to think about the realities of life (and death) and planning for the expected and unexpected future. I am encouraged that more and more frequently, my friends, relatives and clients are calling me about updating their estate plan or developing one for the very first time. And calls come in every day about creating or amending a trust. Not only that, it is that time of year for inquiries about a prenuptial agreement. Often, the couple has not provided themselves with enough time to prepare, review and sign a prenup at least 7 days before the wedding. More often than not, they are left with the only option of drafting a community property (post-nuptial) agreement which sometimes they never get around to doing after the wedding. But at least they are learning of the necessity and objective good practice of putting down in writing how they want to handle their financial lives in the present - and in the future.
Friday, April 15, 2011
Much Going On For Family Law Specialists
This weekend, commencing Friday April 17, 2011, family law specialists from up and down the State of California have descended upon Indian Wells, CA at the Hyatt Grand Champions Hotel to hear from some of the finest minds in the field, including a number of judges, on topics of great interest to us as well as the family law litigant. It is always to refreshing and inspiring to hear from other practitioners as to how their business is doing in these difficult times and how they spend their insufficient leisure time to destress and renew their interest in the specialty. I may have been tired, stress and enormously distracted by other familial obligations, but as soon as I connected with my good friends and colleagues, I became tremendously rejuvenated. Looking forward to my own presentation going well and concluding, so I can relax and enjoy the balance of the program and the lovely weather here in the desert.
Sunday, March 27, 2011
Getting in Shape for Work
The practice of law gets harder and harder and I have to think it is not just because I have been doing it for nearly 30 years, but rather because life in general is more complicated. With every technological advance comes benefits but also additional stress, expense and other difficulties. All the blessings bestowed on us can also drag us down. My clients live more insecurely now than in the past. This makes my job harder and makes it less gratifying because there are fewer opportunities to actually make a difference. I blame this phenomenon in large part on the multi-levels of communication that implode in our brains and leave imprints like permanent black markers on our souls. Getting the job done, whether as a family law attorney, probate attorney or estate planning attorney, takes longer and costs more than just a few years ago. This makes my clients unhappy and, in turn, makes me unhappy when they either cannot or will not pay their bill.
To counteract this anxiety-ridden profession, I try to take care of myself. I do not always succeed, because I spend way too many hours responding to emails and working on managing my law firm, in addition to taking care of my clients. But every once in awhile I find - and take - the opportunity to take care of myself. This was one of those weekends. Exercise, yoga, relaxing with friends, playing with my new puppy, reading a good book, thinking about what is important to me, repairing relationships and facing up to my frailties all packed into a weekend over far too soon. I am stronger now, heading into a new work week and hope I remember to take time to do it all again soon.
To counteract this anxiety-ridden profession, I try to take care of myself. I do not always succeed, because I spend way too many hours responding to emails and working on managing my law firm, in addition to taking care of my clients. But every once in awhile I find - and take - the opportunity to take care of myself. This was one of those weekends. Exercise, yoga, relaxing with friends, playing with my new puppy, reading a good book, thinking about what is important to me, repairing relationships and facing up to my frailties all packed into a weekend over far too soon. I am stronger now, heading into a new work week and hope I remember to take time to do it all again soon.
Wednesday, January 5, 2011
Happy and Healthy New Year
Having refreshed myself over the holidays, I am looking forward to a good year surrounded by good people and looking forward to helping those that choose that choose to hire our firm. The new laws, both state and federal, should also help everyone rise up from the dolldrums of the recession and find a comfort level not felt in quite some time. Look for a review of the important laws affecting family law estates on our website as well as a new article on Special Needs Trusts. To all our good wishes for a peaceful and joyous new year.
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