1. Attend Therapy. Divorce is an emotional time and it is not easy to make important decisions about one’s family and assets while embroiled in emotional pain. Often, clients seek emotional support from their divorce attorney, who bill them at a rate much higher than a therapist would cost. See a therapist to deal with the emotional issues and allow your divorce attorney to counsel you through the important financial and family decisions which will affect the rest of your life.
2. Prioritize. Decide what issues are most important to you and compromise on the rest. Every issue that you cannot agree on with your spouse comes at a cost to resolve.
3. Be Honest. Be honest with your lawyer. If you cannot trust them with the true details of your home and financial life, find a new attorney. Often, the facts you are most concerned with revealing do not end up making or breaking your case. And if it is something that needs to be dealt with, better to face it right away.
4. Keep it short. The longer your divorce continues without resolution the more expensive it will be. Likewise, writing long rambling letters and emails to your attorney regarding every issue you are dealing with and everything you can think of that is wrong with your spouse or significant other is not an efficient way to resolve your case.
5. Be Ready to Change Your Lifestyle. A lot of clients expect to maintain their standard of living even though they are dividing their household into two. Begin to reimagine and reinvent your life considering the realities of your situation. For assistance, see tip #1.
by: Drorit Bick Raiter, Esq.
Monday, May 26, 2014
MODIFICATIONS AND AMENDMENTS TO TRUSTS AND WILLS
As an attorney who has been
practicing in the area of Trusts and Estates for over 35 years, I find that one
of the most commonplace disputes which leads to sometimes unnecessary
litigation and is the source of numerous
issues which cause so many problems is the self-caused act of modifying and amending Wills and Trusts.
Legally, Wills cannot be
technically “amended” or revised. Rather, all changes made to a Will are
accomplished via the preparation of what is customarily referred to as a
“codicil.” Codicils are written for the
express purpose of modifying or making changes to an existing Will.
As is the case with Wills, in
California, Codicils can be entirely handwritten or they may be typed up and
witnessed. Legally, the signing of Wills
requires at least two witnesses. By law,
a typed up Will must be witnessed as well as signed by the testator (the
person of whose Will it is). However,
California Law also provides for Wills to be written (instead of typed)
entirely in the handwriting of the Testator. Such Wills are legally referred to
as “Holographic” Wills.
Holographic Wills do not
require witnesses. In order to be a
valid, a holographic Will must be written on plain paper, it must be dated, it
must be entirely in the handwriting of the Testator and it must be
signed. As written above, holographic
Wills do not require witnesses. In fact, the witnessing of such a will might in
fact act to disqualify such a will as being “holographic.”
The same holds true for a
Holographic Codicil. Like Wills,
Holographic Codicils must satisfy the same standards but should not be
witnessed. On the other hand, if a
Codicil is typed up, then witnesses will once again (as is the case with
Wills), be required.
Problems arise when instead
of preparing and executing a Codicil (Holographic or typed) a Testator attempts
to make changes on their existing Will through cross outs, handwritten
interlineations and so on.
These “changes” to the Will
create problems for numerous reasons.
Often times, the changes (while legible to the person who made them) are
confusing to later readers. There are
also questions as to exactly “who” made those changes and when they were
made. Sometimes, Testators attempt to
“date” the changes or initial them.
Attempting to amend a Will in this manner is obviously very
dangerous. It creates conflicts within
the Will and many times the changes are confusing and cannot be understood or
even read. Most importantly, sometimes
the changes will dramatically affect the original intent of the Testator. Thus, it obviously makes sense to see a
lawyer before attempting to make any changes to a Will or Codicil.
The situation is the same
with respect to Trusts. However, unlike
in the case with Wills, Trusts are changed by “amendment.” There is no such thing as a “Codicil” to a
Trust. Thus, when Trusts are amended,
they are amended through a first, second or third, etc., amendment. As is the case with Wills, amendments to
Trusts can also be handwritten. Unlike
the case with Wills, however, Trusts do not need to be witnessed. However, customarily, Trusts are executed
before a Notary Public in order to ensure that the person who actually executed
the Trust (or any amendment to the Trust) is in fact the person who created the
document in the first place. Persons who
execute amendments to their Trust (or original Trust documents) who do not have
their signing notarized jeopardize the efficacy of the document and open the
document to questioning from a skeptical omitted beneficiary as to whether or
not the amendment was actually signed by the creator of the Trust (commonly
referred to either as a “Trustor” or as a “Settlor”).
When Trusts are amended, the
writer of the amendment usually chooses between creating a simple amendment to
the Trust or “restating” the Trust. An
Amendment format is usually used when there is only a minor change to the
Trust. By way of example, the changing
of the originally named “successor Trustee” from one person to another person
or a minor change in one of the bequests would utilize and require a simple
amendment.
Problems arise, however, when
amendments become too “long” or too many in number. For example, it often becomes quite difficult
to actually read a Trust when there are five or six amendments to it. These amendments will require the reader to
go back to each of the prior versions and try to integrate them all in order to
make sense of what the fifth or sixth amendment actually means.
In those types of cases (when
there are multiple amendments) or, where the amendments are complex, it only
makes sense to “re-state” the Trust by ostensibly creating a new Trust, but not
terminating the entity, thus superseding the earlier versions of the Trust as
well as earlier amendments and consolidating all of them into one document
known as a “First Restatement of Trust”.
In this manner, one need not worry about assets from the original Trust
being taken out of trust by operation of law and then having to affirmatively
change title of all the assets to be in the name of the Trustee of the new
trust. It remains the same trust, as
restated on a new date.
In summary, therefore, when
making amendments to a Trust instead of interlineating those changes or doing
them on a “self-help” basis, it is best to seek an attorney in order to ensure
that the changes that are being made are truly what the writer wishes to
accomplish and in order to ensure that the Trust, Will and or any of its
amendments or codicils will eventually be enforced and followed.
We here at Cooper-Gordon are
available to assist you with any amendments, restatements or codicils that you
would like to make.
By: Avery M. Cooper, Esq.
Thursday, February 27, 2014
Protecting Your Privacy
I was hacked today.
I thought I was smart enough to see the hacker emails, but I was wrong. As soon as I realized they had asked me for my password, I should have known. But I just wasn't thinking and it really seemed like a legitimate email.
Remember to always check the email address out, even though it has the name of someone you know. You will see that it is not right. That's what I forgot to do. Then, I later realized that I had to change my password and luckily I do have different passwords for all of my accounts, which is a pain, but believe me is so worth it.
Of course, keeping track of these passwords in a password protected file is also a big pain. I always thought no one would want to hack into my personal information. Why would they want it? Who are these people? Nevertheless, I have to look with my eyes open and operate as if my privacy is really worth protecting.
I thought I was smart enough to see the hacker emails, but I was wrong. As soon as I realized they had asked me for my password, I should have known. But I just wasn't thinking and it really seemed like a legitimate email.
Remember to always check the email address out, even though it has the name of someone you know. You will see that it is not right. That's what I forgot to do. Then, I later realized that I had to change my password and luckily I do have different passwords for all of my accounts, which is a pain, but believe me is so worth it.
Of course, keeping track of these passwords in a password protected file is also a big pain. I always thought no one would want to hack into my personal information. Why would they want it? Who are these people? Nevertheless, I have to look with my eyes open and operate as if my privacy is really worth protecting.
Monday, November 4, 2013
CG LLP Newsletter Fall 2013
Welcome to the Fall 2013 edition of our newsletter.
Cooper-Gordon LLP is maintaining its robust practice, specializing in the areas of Family Law, Estate Planning, Estate and Trust Administration and Estate and Trust Litigation. So far this year has been filled with a number of interesting family law and estate administration cases, some going to trial, and some settling. In particular, the attorneys at Cooper-Gordon LLP have been involved in some interstate dissolution matters as well as several family law-estate litigation crossover cases in which dissolutions and a Party’s estate become intertwined in often convoluted ways.
Whether your case is complex or simple, at Cooper-Gordon LLP, each client and matter has the benefit of the Partners’ combined sixty years of experience along with the associates’ attention and cost-effectiveness.
In addition to their practice in Southern California, Cooper-Gordon LLP founding partners Avery and Frieda have been operating a satellite office in the Central Coast area. Avery and Frieda welcome new clients from Paso Robles in the North County through all of San Luis Obispo County, in addition to their clients from Santa Barbara County as well as all points south to the Mexican Border. If you wish to set up an appointment in San Luis Obispo County, please contact them at 1-800-561-6322 to set up an initial consultation.
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Christine Donald, our trusted and longest serving employee, continues to interface with new clients, assist the attorneys with their litigation and transactional practices and generally keeps the office running smoothly and efficiently. In addition to her busy work life, Christine has had an exciting year, peppered with bicycle races all over the state, wine tasting along the central coast, and she plans to take a trip to Michigan this season to see friends and family. We are thankful for her continuous hard work and dedication to the practice.
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Yana Rozovskaya, our paralegal who works primarily for Frieda, continues to be a substantial asset to the firm, as she is the first contact with clients and potential clients, sets all of the appointments and prepares much of the forms, transmittals and other documents for the attorneys who handle Frieda’s case load as well as for their own case loads. Recently, Yana traveled with her son to Montreal, Canada, for a wedding. When not busy assisting the attorneys at Cooper-Gordon, Yana enjoys taking her dogs, Tyson and Daisy to a local park near her house.
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Avery, has been busy with various matters including estate planning, estate and trust administration and family law matters. Avery was also recently nominated to serve on the board of the Family Law Section of the Los Angeles County Bar Association. Despite Avery’s substantial caseload and additional commitments, he consistently assures that his clients’ needs are met. Communication is key and Avery strives to keep his clients informed regarding the status of their cases. In his spare time, Avery enjoys spending time with his yellow Labrador, Mickey, playing basketball, bicycle riding and collecting and consuming fine wines. He has also been busy with his book club and co-chairing a wine club. Additionally, he travels back and forth to his Central Coast home and office and this year, after a hiatus of several years, was able to go back to Europe for a wonderful vacation in Germany and the Czech Republic.
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Frieda has been busy managing the firm as well as her own her case load. The attorneys here keep long hours, but also find the time to meet their personal needs, including spending time with family and maintaining active lifestyles. This balance gives the attorneys an opportunity to recharge and be at their best when it comes to taking care of their clients. When it comes to work-life balance, Managing and Founding Party, Frieda, is no exception. In her spare time, Frieda shares most of Avery’s extracurricular pursuits. In addition, she enjoys playing with her 5 year old granddaughter, caring for her 89 year old mother and spending time with her two lovely and talented daughters. Frieda also enjoys gardening, yoga, knitting, studying languages and photography and playing and listening to classical music. Most of all, she enjoys hiking along the Central Coast of California with her dog Mickey.
Avery and Frieda recently took a trip to Berlin and Cologne, Germany and Prague and Czeny Krimlov (pictured below) in the Czech Republic. While there, they had many remarkable experiences, including visiting many museums which provided them with a great deal of historical education, eating in some of the great restaurants of the world, drinking excellent wines and beers, meeting the lovely people of the region and walking all over the cities they visited. Frieda has authored an article on some important advice when preparing, updating and safeguarding Advance Health Care Directives, which is set forth in a separate blog.
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In her spare time, our Senior Associate, Katherine Su O’Connor, spends time with her French Bulldogs, Sarge and Lola. She has also been busy moving into and decorating a new home and spending time with family. Over the summer, she traveled to Massachusetts and Upstate New York for a long overdue visit with her in-laws and visited with other extended family in Utah. She has tried to stay active as well, running her tenth half-marathon in April, finishing ninth in her division, and hiking the Subway and Angels Landing trails in Utah’s Zion National Park. She and her husband Brian are expecting their first child in early December. Katherine has been busy assisting with the preparation of a number of estate plans, starting new divorce matters and handling several complicated Probate litigation cases. She has written an article which is set forth below.
The Marriage of Green: Are Funds Used to Purchase Premarital Retirement Credits and the Benefit from that Purchase Community Property?
Some fortunate employees are given the option of purchasing additional retirement credits for years of service rendered to another employer. The added retirement benefits for exercising such options are oftentimes far more substantial than the cost of purchasing the additional credits, and thus, is a very appealing offer for many employees.
However, when people divorce, they may be surprised as to what their rights are when they or their spouses have exercised this valuable right. The Marriage of Green case which dealt with this issue was decided this year. The Marriage of Green provides that retirement credits attributable to employment by a spouse prior to marriage are that spouse’s separate property, and remain that spouse’s separate property even if community funds are used to purchase those additional years of service. In such case, the community may be entitled to reimbursement only for the funds used to purchase the retirement credits and the community is not entitled to any interest in the actual added benefit of the purchase. In Marriage of Green, Husband served in the military prior to his marriage. At the time he married Wife, Husband was employed as a firefighter and participated in the California Public Employees’ Retirement System (CalPERS) Plan. Husband was given the option of purchasing an additional four years’ retirement credits in his CalPERS Plan for his years of military service rendered prior to marriage. After Husband married Wife, Husband chose to exercise his option of purchasing four years’ of additional retirement credits for his premarital military service, choosing to pay for the purchase of the credits via an installment plan, under which twice monthly payroll deductions were made from Husband’s paycheck. At the time the Parties separated, $11,462.56 of community funds had been used to pay for the purchase of the premarital retirement credits. The added value to Husband’s CalPERS Plan of the additional retirement credits far outweighed the cost of purchasing the credit. At trial, the court held that the purchased service credit was Husband’s separate property, found that the community was entitled only to reimbursement for its payments towards the acquisition of the service credits, and ordered Husband to pay Wife one-half of the community funds used for the purchase, plus 6% interest. The community was not otherwise given any interest in the four years of additional service purchased by Husband. Wife successfully appealed and the Court of Appeal concluded that “because the military service credit was purchased with community funds during the parties’ marriage, it was community property.”
Thus, it determined that Wife was entitled to one-half of the increased benefit resulting from the purchase of the four years of additional retirement credit. Thereafter, Husband appealed and the California Supreme Court ultimately agreed with Husband and the trial court and reversed the Court of Appeal.
The California Supreme Court reiterated the principal that whether pension and retirement benefits are characterized as separate property or community property is determined in accordance with the employee spouse’s marital status at the time the services are rendered. Thus, despite the fact that the four years’ worth of additional service were purchased partly with community funds and were purchased during the marriage, the Court found that the four years’ worth of purchased retirement credit for Husband’s premarital military service was entirely Husband’s separate property. The Court then went on to find that the trial court had properly exercised its discretion in limiting the community to reimbursement only for its contributions towards the purchase of the retirement credit, plus interest. The community (and Wife) were not entitled to any of the increased benefits attributable to the four years of additional service credit purchased with community funds.
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When not working on dissolution of marriage or probate cases, associate Drorit Bick Raiter has been spending time with her husband, Shay, their toddler, Naveh and their dog, Boston (a.k.a. Bobo). This summer, they enjoyed hiking in Solstice Canyon and Runyon Canyon, spending time with relatives visiting from Israel (many of whom were meeting Naveh for the first time), and traveling to Henderson, California, to visit with cousins. Drorit has been drawing on her experience volunteering at the domestic violence clinic in the Santa Monica courthouse in several new cases brought to the firm which, sadly, involve domestic violence allegations. Drorit writes:
It is clear that there are cases of real domestic violence and abuse that require protective orders. However, unfortunately, protective orders are sometimes being used for litigation purposes, rather than real protection. It is an economic strain on the Courts and law enforcement officials, both entities which are already suffering from economic cut-backs, to be forced to issue and enforce restraining orders that have been sought under false pretenses and for less than honest purposes. In more and more cases, Parties to a dissolution of marriage action abuse the restraining order process in order to try to obtain some sort of leverage in their divorce. Although the bar for granting Temporary Restraining Orders is often quite low, a low bar makes good public policy sense: the Court has not had a full Hearing on the matter and the alleged abuser is ostensibly “only” losing his right to be free from restraining orders for a period of 21 days, at the most. However, upon a full Hearing on this matter, the Petitioner must be held to a higher standard of proof. Specifically, the Petitioner must show that there exists reasonable proof of a past act or acts of abuse, with corroborating evidence.
Additionally, Drorit has recently authored an article about the level of mental capacity needed to obtain a dissolution of the marriage. Her article is set forth below.
The Capacity To Divorce: How “With It” Do You Need to Be to Get Divorced?
This past summer, in the case of In re Marriage of Greenway (2013) 217 Cal.App.4th 628, the California Court of Appeal affirmed the Trial Court’s decision which held that the level of capacity required to end one's marriage is, much like the capacity required to start one’s marriage, subject to a relatively low bar. In Greenway, Joann Greenway appealed the Trial Court’s ruling which found that her husband, Lyle Greenway, was mentally capable of filing for divorce. The Parties had been married for 48 years and Lyle was 76 at the time, and in poor health.
Nevertheless, Lyle filed legal separation from Joann based on irreconcilable differences. Joann objected to ending the marriage or dividing the marital estate valued at several million dollars. She argued that Lyle was not mentally competent to maintain a dissolution of marriage action. After reviewing written arguments and hearing testimony from the Parties, their three adult children, and four healthcare professionals who had evaluated Lyle’s mental state, the Trial Court concluded that Lyle was mentally capable of making a reasoned decision to end his marriage and granted his request for status-only dissolution.
In her appeal, Joann argued, inter alia, that the evidence of Lyle’s capacity to enter into a dissolution of marriage was insufficient to support the Trial Court’s ruling. In making its decision, the Court of Appeal pointed out, “The experts all agree that Lyle...has [at least some level of] dementia. The question is, however, not whether Lyle has dementia, but whether his impairment is such that he no longer has the capability of making a reasoned decision to end his marriage.”
The Court of Appeals observed that the determination of a person’s mental capacity is fact specific and must be measured on a sliding scale depending on the issue at hand. On the high end of the scale is the mental capacity required to enter contracts, followed by testamentary capacity, and, at the low end of the scale, marital capacity. Id at 637. The Court of Appeals noted that there is a “...large body of case authority reflecting an extremely low level of mental capacity needed before making the decision to marry or execute a will.”
Although marriage arises out of a civil contract, case law has recognized that marriage is, “...a special kind of contract that does not require the same level of mental capacity of the parties as other kinds of contracts…” Id at 640. Further, the Court of Appeal points out that, “...even a person under a conservatorship, who is generally without contractual power, may be deemed to have marital capacity.” Id at 640 (citing Prob. Code § 1900). Likewise, the Court of Appeals also pointed at that Probate Code § 810 provides that there is a, “...rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions."
Thus, the burden of proof required to determine that a person lacks the capacity to marry or dissolve their marriage, is quite high. Greenway has taken the holding in Andersen v. Hunt, 196 Cal. App. 4th 722 (2011) one step further. In Anderson, the Court held that the standard of capacity to marry cannot simply be a set of facts that are plugged into a route equation, and that in evaluating mental capacity to marry, a Court should evaluate the person's ability to "appreciate the consequences of the particular act he or she wishes to take." The Greenway case takes this reasoning and applies it to the standard of capacity required to dissolve ones marriage, as well.
Greenway is an important case because it highlights the fact that the right to marry is an important fundamental right which the Courts aim to protect. This case underscores the concept that the capacity required to make the decision to divorce must be, like the capacity required to make the decision to marry, held to a very low standard. The Courts and the legislature have again and again upheld the notion that proving incapacity to marry, and now incapacity to divorce, must be explicitly proven.
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Our associate, Erin Louria Zivic found time to travel last summer with her husband and sister-in-law to Costa Rica to volunteer with Globe Aware, an organization that serves various factions of local communities throughout the world. While in the Orosi Valley of Costa Rica, Erin and her family helped revitalize a local elementary school by planting a butterfly garden and medicinal plant garden, worked with a local ecological society to build worm boxes for composting, and harvested produce on a women-run organic farm. Erin was nominated as Globe Aware’s Volunteer of the Month in August.
Erin has also been busy with her Family Law, Estate Planning and Administration caseload. She has been working on a number of interesting Estate Litigation and Family Law matters.
Specifically, Erin has been involved in a Post-Judgment family law matter in which one Party has accused the other of breaching a fiduciary duty and is thus seeking to be compensated for same. While that case was pending, the Court of Appeal issued an opinion in the recent case, Leslie v. Georgiou, which dealt precisely with the issue of fiduciary duties following a Judgment of dissolution. Erin has written a brief article on that case which is set forth below.
The Marriage of Georgiou v. Leslie: A Review of the Applicability of Family Code § 1101 (Breach of Fiduciary Duty) to post-Judgment Dissolution Proceedings
In the recent case of The Marriage of Georgiou v. Leslie, Leslie appealed the Family Court’s granting of summary judgment in favor of Georgiou and determination that, once a judgment in a dissolution of marriage has already been entered, a party could not later bring an action against the other party under Family Code § 1101 for breach of a fiduciary duty when the parties litigated the particular issue in question and the judgment fully adjudicated the asset.
On appeal the Court of Appeal, Fourth Appellate District, found that Family Code § 1101 for breach of a fiduciary duty did not authorize Leslie’s action because the issue which she was litigating had already been fully litigated and adjudicated. The Court further found that Leslie could have sought relief under a different statute, but that statute of limitations passed and thus any such action would be untimely.
Accordingly, the Court of Appeal affirmed the Family Court Order. Byron Georgiou and Maria Leslie married in 1985 and separated in 2003 and Byron filed for dissolution that same year. Byron is an attorney and in 2000, prior to the parties’ separation, he became “of counsel” at a law firm. In that position, in 2002, Byron secured a client for the firm and became entitled to a 10 percent referral fee in a class action litigation lawsuit. In a contingency fee agreement between the firm and the lead plaintiff, the agreement provided that attorneys’ fees would be between 8-10 percent of the recovery.
In 2005, the marital status was terminated in a bifurcated Judgment. In 2007, two years after the marital status was terminated, Byron and Maria entered a marital settlement agreement (“MSA”). Maria knew about Byron’s contingency fee agreement with his firm and the lead plaintiff. Maria also knew that the firm recovered approximately $7.2 billion in settlement and she had received a copy of the fee agreement from Byron. Maria had deposed a partner at Byron’s firm regarding the contingency fee agreement. She also learned through Byron’s settlement conference brief that Byron’s referral fee could be between $9 million and $33 million. She was also aware that the firm intended to seek fees in excess of $330 million and that Byron intended to “vigorously argue” that he was entitled to a 10 percent fee. The MSA divided the referral fee unevenly, with Maria receiving 10% of the fee, in exchange for $7 million in other assets including the family home, among other assets, which was Byron’s separate property. Byron received 90% of the fee, life insurance policies, loan receivables, business interests and significant debt.
The MSA was incorporated in a judgment of dissolution which was entered on December 12, 2007. In 2008, the federal district court granted Byron’s firm’s fee request, awarding the firm $688 million in fees. That same month, Byron negotiated a 9 percent referral fee with his firm and paid Marie $4 million for her 10 percent share of the fee. Maria realized that Byron was entitled to a fee larger than she originally anticipated, i.e. over $33 million dollars. She later learned that she was entitled to an additional $1.56 million based upon her award of 10 percent of Byron’s actual recovery, which was approximately $62 million. Three years following the MSA, on December 13, 2010, Maria filed an action under Family Code § 1101 for Byron’s breach of his fiduciary duty of disclosure. She alleged that Byron led her to believe he would receive between $9 million and $33 million, that he did not provide her with a copy of the fee agreement with the firm’s client and that he fabricated or exaggerated a dispute he had with the firm regarding the fee. She argued that if she knew the terms of the fee arrangement, she would have been able to calculate the fee. Maria sought either one-half or 100 percent of Byron’s referral fee based on his alleged breach. In response, Byron moved for summary adjudication, arguing that Maria’s action was not timely. On its own accord, the Court found that Maria could not seek relief for breach of a fiduciary duty under Family Code § 1101 because such relief “is not legally available in a post-marital dissolution judgment action.”
Instead, the Court found that relief could be sought under Family Code § 1101 either, “(1) during an intact marriage; (2) in conjunction with a dissolution proceeding; or (3) after the death of a spouse.” The Court reasoned that spouses have a fiduciary duty to each other during the marriage. As stated in Family Code § 721, “in transactions between themselves, a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.” Additionally, Family Code § 1100 provides, “ Each spouse shall act with respect to the other spouse in the management and control of the community assets and liabilities in accordance with the general rules governing fiduciary relationships . . .” This duty extends throughout the dissolution of marriage up to and including the distribution of the community and quasi-community property. Each Party’s duty extends through preparing and serving of a Final Declaration of Disclosure which contains “all material facts and information regarding the valuation of all assets that are contended to be community property.” (Family Code § 2105, subd. (b)(2).)
Each spouse’s fiduciary duty includes updating and supplementing that disclosure if there have been any material changes. Because Maria filed a post-Judgment action in this case, there was no longer (1) an intact marriage, (2) a current dissolution proceeding between the Parties, and (3) no spouse passed away. Therefore, Maria could not file for relief under Family Code § 1101. Maria could have sought relief under Code of Civil Procedure § 473 to set aside the Judgment based on mistake, inadvertence, surprise, or excusable neglect.
Additionally, Family Code § 2122 provides relief under limited circumstances, including actual fraud, perjury, duress, mental incapacity, mistake (in stipulated or uncontested judgments), and failure to comply with the disclosure requirements. In the instant case, although Maria may have sought relief based on the failure to comply with disclosure requirements, she did not timely bring her action. The statute of limitations is one year from the Party’s date of actual or implied discovery of the failure to comply. In September of 2008, Maria discovered the amount of Byron’s referral fee, yet she did not file her action until December of 2010.
The purpose of having Statutes of Limitation is to promote California’s strong public policy of assuring finality of Judgments within a reasonable time. The Court of Appeal found that in the instant case, Byron disclosed the asset, it was a substantial issue in the negotiations for the MSA and the Judgment fully adjudicated the issue. The Court further found that it was not required to determine whether section 1101 never authorizes a post judgment action for breach of fiduciary duty. Instead, it found that it did not apply in this case where the issue was fully litigated and determined.
The Court further stated that Maria “cannot take the benefits of the judgment and also obtain 50 percent or 100 percent of the referral fee.” To do so would ignore the policy in favor of protecting the finality of Judgments. Since Maria’s only remedy was under Family Code § 2122 and she did not timely file an action, the Court lacked jurisdiction over the matter and summary adjudication was proper.
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We thank all of you for your generous referrals throughout the past year.
If you have questions or comments about any of the news provided here or about anything related to family law and/or probate and estates, please send us an email, call or blog us and we will respond right back.
As always, it is a pleasure to serve our community.
Cooper-Gordon LLP is maintaining its robust practice, specializing in the areas of Family Law, Estate Planning, Estate and Trust Administration and Estate and Trust Litigation. So far this year has been filled with a number of interesting family law and estate administration cases, some going to trial, and some settling. In particular, the attorneys at Cooper-Gordon LLP have been involved in some interstate dissolution matters as well as several family law-estate litigation crossover cases in which dissolutions and a Party’s estate become intertwined in often convoluted ways.
Whether your case is complex or simple, at Cooper-Gordon LLP, each client and matter has the benefit of the Partners’ combined sixty years of experience along with the associates’ attention and cost-effectiveness.
In addition to their practice in Southern California, Cooper-Gordon LLP founding partners Avery and Frieda have been operating a satellite office in the Central Coast area. Avery and Frieda welcome new clients from Paso Robles in the North County through all of San Luis Obispo County, in addition to their clients from Santa Barbara County as well as all points south to the Mexican Border. If you wish to set up an appointment in San Luis Obispo County, please contact them at 1-800-561-6322 to set up an initial consultation.
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Christine Donald, our trusted and longest serving employee, continues to interface with new clients, assist the attorneys with their litigation and transactional practices and generally keeps the office running smoothly and efficiently. In addition to her busy work life, Christine has had an exciting year, peppered with bicycle races all over the state, wine tasting along the central coast, and she plans to take a trip to Michigan this season to see friends and family. We are thankful for her continuous hard work and dedication to the practice.
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Yana Rozovskaya, our paralegal who works primarily for Frieda, continues to be a substantial asset to the firm, as she is the first contact with clients and potential clients, sets all of the appointments and prepares much of the forms, transmittals and other documents for the attorneys who handle Frieda’s case load as well as for their own case loads. Recently, Yana traveled with her son to Montreal, Canada, for a wedding. When not busy assisting the attorneys at Cooper-Gordon, Yana enjoys taking her dogs, Tyson and Daisy to a local park near her house.
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Avery, has been busy with various matters including estate planning, estate and trust administration and family law matters. Avery was also recently nominated to serve on the board of the Family Law Section of the Los Angeles County Bar Association. Despite Avery’s substantial caseload and additional commitments, he consistently assures that his clients’ needs are met. Communication is key and Avery strives to keep his clients informed regarding the status of their cases. In his spare time, Avery enjoys spending time with his yellow Labrador, Mickey, playing basketball, bicycle riding and collecting and consuming fine wines. He has also been busy with his book club and co-chairing a wine club. Additionally, he travels back and forth to his Central Coast home and office and this year, after a hiatus of several years, was able to go back to Europe for a wonderful vacation in Germany and the Czech Republic.
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Frieda has been busy managing the firm as well as her own her case load. The attorneys here keep long hours, but also find the time to meet their personal needs, including spending time with family and maintaining active lifestyles. This balance gives the attorneys an opportunity to recharge and be at their best when it comes to taking care of their clients. When it comes to work-life balance, Managing and Founding Party, Frieda, is no exception. In her spare time, Frieda shares most of Avery’s extracurricular pursuits. In addition, she enjoys playing with her 5 year old granddaughter, caring for her 89 year old mother and spending time with her two lovely and talented daughters. Frieda also enjoys gardening, yoga, knitting, studying languages and photography and playing and listening to classical music. Most of all, she enjoys hiking along the Central Coast of California with her dog Mickey.
Avery and Frieda recently took a trip to Berlin and Cologne, Germany and Prague and Czeny Krimlov (pictured below) in the Czech Republic. While there, they had many remarkable experiences, including visiting many museums which provided them with a great deal of historical education, eating in some of the great restaurants of the world, drinking excellent wines and beers, meeting the lovely people of the region and walking all over the cities they visited. Frieda has authored an article on some important advice when preparing, updating and safeguarding Advance Health Care Directives, which is set forth in a separate blog.
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In her spare time, our Senior Associate, Katherine Su O’Connor, spends time with her French Bulldogs, Sarge and Lola. She has also been busy moving into and decorating a new home and spending time with family. Over the summer, she traveled to Massachusetts and Upstate New York for a long overdue visit with her in-laws and visited with other extended family in Utah. She has tried to stay active as well, running her tenth half-marathon in April, finishing ninth in her division, and hiking the Subway and Angels Landing trails in Utah’s Zion National Park. She and her husband Brian are expecting their first child in early December. Katherine has been busy assisting with the preparation of a number of estate plans, starting new divorce matters and handling several complicated Probate litigation cases. She has written an article which is set forth below.
The Marriage of Green: Are Funds Used to Purchase Premarital Retirement Credits and the Benefit from that Purchase Community Property?
Some fortunate employees are given the option of purchasing additional retirement credits for years of service rendered to another employer. The added retirement benefits for exercising such options are oftentimes far more substantial than the cost of purchasing the additional credits, and thus, is a very appealing offer for many employees.
However, when people divorce, they may be surprised as to what their rights are when they or their spouses have exercised this valuable right. The Marriage of Green case which dealt with this issue was decided this year. The Marriage of Green provides that retirement credits attributable to employment by a spouse prior to marriage are that spouse’s separate property, and remain that spouse’s separate property even if community funds are used to purchase those additional years of service. In such case, the community may be entitled to reimbursement only for the funds used to purchase the retirement credits and the community is not entitled to any interest in the actual added benefit of the purchase. In Marriage of Green, Husband served in the military prior to his marriage. At the time he married Wife, Husband was employed as a firefighter and participated in the California Public Employees’ Retirement System (CalPERS) Plan. Husband was given the option of purchasing an additional four years’ retirement credits in his CalPERS Plan for his years of military service rendered prior to marriage. After Husband married Wife, Husband chose to exercise his option of purchasing four years’ of additional retirement credits for his premarital military service, choosing to pay for the purchase of the credits via an installment plan, under which twice monthly payroll deductions were made from Husband’s paycheck. At the time the Parties separated, $11,462.56 of community funds had been used to pay for the purchase of the premarital retirement credits. The added value to Husband’s CalPERS Plan of the additional retirement credits far outweighed the cost of purchasing the credit. At trial, the court held that the purchased service credit was Husband’s separate property, found that the community was entitled only to reimbursement for its payments towards the acquisition of the service credits, and ordered Husband to pay Wife one-half of the community funds used for the purchase, plus 6% interest. The community was not otherwise given any interest in the four years of additional service purchased by Husband. Wife successfully appealed and the Court of Appeal concluded that “because the military service credit was purchased with community funds during the parties’ marriage, it was community property.”
Thus, it determined that Wife was entitled to one-half of the increased benefit resulting from the purchase of the four years of additional retirement credit. Thereafter, Husband appealed and the California Supreme Court ultimately agreed with Husband and the trial court and reversed the Court of Appeal.
The California Supreme Court reiterated the principal that whether pension and retirement benefits are characterized as separate property or community property is determined in accordance with the employee spouse’s marital status at the time the services are rendered. Thus, despite the fact that the four years’ worth of additional service were purchased partly with community funds and were purchased during the marriage, the Court found that the four years’ worth of purchased retirement credit for Husband’s premarital military service was entirely Husband’s separate property. The Court then went on to find that the trial court had properly exercised its discretion in limiting the community to reimbursement only for its contributions towards the purchase of the retirement credit, plus interest. The community (and Wife) were not entitled to any of the increased benefits attributable to the four years of additional service credit purchased with community funds.
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When not working on dissolution of marriage or probate cases, associate Drorit Bick Raiter has been spending time with her husband, Shay, their toddler, Naveh and their dog, Boston (a.k.a. Bobo). This summer, they enjoyed hiking in Solstice Canyon and Runyon Canyon, spending time with relatives visiting from Israel (many of whom were meeting Naveh for the first time), and traveling to Henderson, California, to visit with cousins. Drorit has been drawing on her experience volunteering at the domestic violence clinic in the Santa Monica courthouse in several new cases brought to the firm which, sadly, involve domestic violence allegations. Drorit writes:
It is clear that there are cases of real domestic violence and abuse that require protective orders. However, unfortunately, protective orders are sometimes being used for litigation purposes, rather than real protection. It is an economic strain on the Courts and law enforcement officials, both entities which are already suffering from economic cut-backs, to be forced to issue and enforce restraining orders that have been sought under false pretenses and for less than honest purposes. In more and more cases, Parties to a dissolution of marriage action abuse the restraining order process in order to try to obtain some sort of leverage in their divorce. Although the bar for granting Temporary Restraining Orders is often quite low, a low bar makes good public policy sense: the Court has not had a full Hearing on the matter and the alleged abuser is ostensibly “only” losing his right to be free from restraining orders for a period of 21 days, at the most. However, upon a full Hearing on this matter, the Petitioner must be held to a higher standard of proof. Specifically, the Petitioner must show that there exists reasonable proof of a past act or acts of abuse, with corroborating evidence.
Additionally, Drorit has recently authored an article about the level of mental capacity needed to obtain a dissolution of the marriage. Her article is set forth below.
The Capacity To Divorce: How “With It” Do You Need to Be to Get Divorced?
This past summer, in the case of In re Marriage of Greenway (2013) 217 Cal.App.4th 628, the California Court of Appeal affirmed the Trial Court’s decision which held that the level of capacity required to end one's marriage is, much like the capacity required to start one’s marriage, subject to a relatively low bar. In Greenway, Joann Greenway appealed the Trial Court’s ruling which found that her husband, Lyle Greenway, was mentally capable of filing for divorce. The Parties had been married for 48 years and Lyle was 76 at the time, and in poor health.
Nevertheless, Lyle filed legal separation from Joann based on irreconcilable differences. Joann objected to ending the marriage or dividing the marital estate valued at several million dollars. She argued that Lyle was not mentally competent to maintain a dissolution of marriage action. After reviewing written arguments and hearing testimony from the Parties, their three adult children, and four healthcare professionals who had evaluated Lyle’s mental state, the Trial Court concluded that Lyle was mentally capable of making a reasoned decision to end his marriage and granted his request for status-only dissolution.
In her appeal, Joann argued, inter alia, that the evidence of Lyle’s capacity to enter into a dissolution of marriage was insufficient to support the Trial Court’s ruling. In making its decision, the Court of Appeal pointed out, “The experts all agree that Lyle...has [at least some level of] dementia. The question is, however, not whether Lyle has dementia, but whether his impairment is such that he no longer has the capability of making a reasoned decision to end his marriage.”
The Court of Appeals observed that the determination of a person’s mental capacity is fact specific and must be measured on a sliding scale depending on the issue at hand. On the high end of the scale is the mental capacity required to enter contracts, followed by testamentary capacity, and, at the low end of the scale, marital capacity. Id at 637. The Court of Appeals noted that there is a “...large body of case authority reflecting an extremely low level of mental capacity needed before making the decision to marry or execute a will.”
Although marriage arises out of a civil contract, case law has recognized that marriage is, “...a special kind of contract that does not require the same level of mental capacity of the parties as other kinds of contracts…” Id at 640. Further, the Court of Appeal points out that, “...even a person under a conservatorship, who is generally without contractual power, may be deemed to have marital capacity.” Id at 640 (citing Prob. Code § 1900). Likewise, the Court of Appeals also pointed at that Probate Code § 810 provides that there is a, “...rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions."
Thus, the burden of proof required to determine that a person lacks the capacity to marry or dissolve their marriage, is quite high. Greenway has taken the holding in Andersen v. Hunt, 196 Cal. App. 4th 722 (2011) one step further. In Anderson, the Court held that the standard of capacity to marry cannot simply be a set of facts that are plugged into a route equation, and that in evaluating mental capacity to marry, a Court should evaluate the person's ability to "appreciate the consequences of the particular act he or she wishes to take." The Greenway case takes this reasoning and applies it to the standard of capacity required to dissolve ones marriage, as well.
Greenway is an important case because it highlights the fact that the right to marry is an important fundamental right which the Courts aim to protect. This case underscores the concept that the capacity required to make the decision to divorce must be, like the capacity required to make the decision to marry, held to a very low standard. The Courts and the legislature have again and again upheld the notion that proving incapacity to marry, and now incapacity to divorce, must be explicitly proven.
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Our associate, Erin Louria Zivic found time to travel last summer with her husband and sister-in-law to Costa Rica to volunteer with Globe Aware, an organization that serves various factions of local communities throughout the world. While in the Orosi Valley of Costa Rica, Erin and her family helped revitalize a local elementary school by planting a butterfly garden and medicinal plant garden, worked with a local ecological society to build worm boxes for composting, and harvested produce on a women-run organic farm. Erin was nominated as Globe Aware’s Volunteer of the Month in August.
Erin has also been busy with her Family Law, Estate Planning and Administration caseload. She has been working on a number of interesting Estate Litigation and Family Law matters.
Specifically, Erin has been involved in a Post-Judgment family law matter in which one Party has accused the other of breaching a fiduciary duty and is thus seeking to be compensated for same. While that case was pending, the Court of Appeal issued an opinion in the recent case, Leslie v. Georgiou, which dealt precisely with the issue of fiduciary duties following a Judgment of dissolution. Erin has written a brief article on that case which is set forth below.
The Marriage of Georgiou v. Leslie: A Review of the Applicability of Family Code § 1101 (Breach of Fiduciary Duty) to post-Judgment Dissolution Proceedings
In the recent case of The Marriage of Georgiou v. Leslie, Leslie appealed the Family Court’s granting of summary judgment in favor of Georgiou and determination that, once a judgment in a dissolution of marriage has already been entered, a party could not later bring an action against the other party under Family Code § 1101 for breach of a fiduciary duty when the parties litigated the particular issue in question and the judgment fully adjudicated the asset.
On appeal the Court of Appeal, Fourth Appellate District, found that Family Code § 1101 for breach of a fiduciary duty did not authorize Leslie’s action because the issue which she was litigating had already been fully litigated and adjudicated. The Court further found that Leslie could have sought relief under a different statute, but that statute of limitations passed and thus any such action would be untimely.
Accordingly, the Court of Appeal affirmed the Family Court Order. Byron Georgiou and Maria Leslie married in 1985 and separated in 2003 and Byron filed for dissolution that same year. Byron is an attorney and in 2000, prior to the parties’ separation, he became “of counsel” at a law firm. In that position, in 2002, Byron secured a client for the firm and became entitled to a 10 percent referral fee in a class action litigation lawsuit. In a contingency fee agreement between the firm and the lead plaintiff, the agreement provided that attorneys’ fees would be between 8-10 percent of the recovery.
In 2005, the marital status was terminated in a bifurcated Judgment. In 2007, two years after the marital status was terminated, Byron and Maria entered a marital settlement agreement (“MSA”). Maria knew about Byron’s contingency fee agreement with his firm and the lead plaintiff. Maria also knew that the firm recovered approximately $7.2 billion in settlement and she had received a copy of the fee agreement from Byron. Maria had deposed a partner at Byron’s firm regarding the contingency fee agreement. She also learned through Byron’s settlement conference brief that Byron’s referral fee could be between $9 million and $33 million. She was also aware that the firm intended to seek fees in excess of $330 million and that Byron intended to “vigorously argue” that he was entitled to a 10 percent fee. The MSA divided the referral fee unevenly, with Maria receiving 10% of the fee, in exchange for $7 million in other assets including the family home, among other assets, which was Byron’s separate property. Byron received 90% of the fee, life insurance policies, loan receivables, business interests and significant debt.
The MSA was incorporated in a judgment of dissolution which was entered on December 12, 2007. In 2008, the federal district court granted Byron’s firm’s fee request, awarding the firm $688 million in fees. That same month, Byron negotiated a 9 percent referral fee with his firm and paid Marie $4 million for her 10 percent share of the fee. Maria realized that Byron was entitled to a fee larger than she originally anticipated, i.e. over $33 million dollars. She later learned that she was entitled to an additional $1.56 million based upon her award of 10 percent of Byron’s actual recovery, which was approximately $62 million. Three years following the MSA, on December 13, 2010, Maria filed an action under Family Code § 1101 for Byron’s breach of his fiduciary duty of disclosure. She alleged that Byron led her to believe he would receive between $9 million and $33 million, that he did not provide her with a copy of the fee agreement with the firm’s client and that he fabricated or exaggerated a dispute he had with the firm regarding the fee. She argued that if she knew the terms of the fee arrangement, she would have been able to calculate the fee. Maria sought either one-half or 100 percent of Byron’s referral fee based on his alleged breach. In response, Byron moved for summary adjudication, arguing that Maria’s action was not timely. On its own accord, the Court found that Maria could not seek relief for breach of a fiduciary duty under Family Code § 1101 because such relief “is not legally available in a post-marital dissolution judgment action.”
Instead, the Court found that relief could be sought under Family Code § 1101 either, “(1) during an intact marriage; (2) in conjunction with a dissolution proceeding; or (3) after the death of a spouse.” The Court reasoned that spouses have a fiduciary duty to each other during the marriage. As stated in Family Code § 721, “in transactions between themselves, a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.” Additionally, Family Code § 1100 provides, “ Each spouse shall act with respect to the other spouse in the management and control of the community assets and liabilities in accordance with the general rules governing fiduciary relationships . . .” This duty extends throughout the dissolution of marriage up to and including the distribution of the community and quasi-community property. Each Party’s duty extends through preparing and serving of a Final Declaration of Disclosure which contains “all material facts and information regarding the valuation of all assets that are contended to be community property.” (Family Code § 2105, subd. (b)(2).)
Each spouse’s fiduciary duty includes updating and supplementing that disclosure if there have been any material changes. Because Maria filed a post-Judgment action in this case, there was no longer (1) an intact marriage, (2) a current dissolution proceeding between the Parties, and (3) no spouse passed away. Therefore, Maria could not file for relief under Family Code § 1101. Maria could have sought relief under Code of Civil Procedure § 473 to set aside the Judgment based on mistake, inadvertence, surprise, or excusable neglect.
Additionally, Family Code § 2122 provides relief under limited circumstances, including actual fraud, perjury, duress, mental incapacity, mistake (in stipulated or uncontested judgments), and failure to comply with the disclosure requirements. In the instant case, although Maria may have sought relief based on the failure to comply with disclosure requirements, she did not timely bring her action. The statute of limitations is one year from the Party’s date of actual or implied discovery of the failure to comply. In September of 2008, Maria discovered the amount of Byron’s referral fee, yet she did not file her action until December of 2010.
The purpose of having Statutes of Limitation is to promote California’s strong public policy of assuring finality of Judgments within a reasonable time. The Court of Appeal found that in the instant case, Byron disclosed the asset, it was a substantial issue in the negotiations for the MSA and the Judgment fully adjudicated the issue. The Court further found that it was not required to determine whether section 1101 never authorizes a post judgment action for breach of fiduciary duty. Instead, it found that it did not apply in this case where the issue was fully litigated and determined.
The Court further stated that Maria “cannot take the benefits of the judgment and also obtain 50 percent or 100 percent of the referral fee.” To do so would ignore the policy in favor of protecting the finality of Judgments. Since Maria’s only remedy was under Family Code § 2122 and she did not timely file an action, the Court lacked jurisdiction over the matter and summary adjudication was proper.
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We thank all of you for your generous referrals throughout the past year.
If you have questions or comments about any of the news provided here or about anything related to family law and/or probate and estates, please send us an email, call or blog us and we will respond right back.
As always, it is a pleasure to serve our community.
Wednesday, October 30, 2013
ADVANCE HEALTH CARE DIRECTIVES: HOW TO CHOOSE YOUR MEDICAL DECISION MAKERS; THE IMPORTANCE OF PREPARING AND REGULARLY UPDATING IT; KEEPING IT HANDY!
Quite often we represent someone who
does not have close family or friends to make medical decisions on their behalf
if they cannot speak for themselves. We see clients who have neither siblings
nor children who, once informed about the possibility of such, may wish to hire
a professional fiduciary to take on this daunting but crucial responsibility.
This is, in fact, what we arrange for these clients to do. We have very caring and competent
professional fiduciaries prepared to assist in such situations, if and when the
time comes. Usually they also are
appointed conservator and trustee to be able to handle the estate smoothly and
seamlessly.
Clients would much rather pay a
professional, with whom they get to know, to make these types of decisions. That
way the client has an objective decision-maker working for him or her, based upon
the priorities previously discussed prior to any incapacitation.
Sometimes a friend will agree to be the
decision-maker, but they are often about the same age. If the client dies within
five years or so, that may be alright. But after that, what will happen? With
people living longer and families having fewer children, this may become a
growing issue.
A 2006 study reported that 16
percent of people in intensive care units have no designated decision-maker and
no identifiable family who could fill that role. [New York Times, October 24, 2013, Paula Span, “Hiring an
End-of-Life Enforcer.”] Some geriatric social workers are proposing a new type
of professional, the healthcare fiduciary. Drawn primarily from retired social
workers or nurses, clergy, or paralegals, they would be trained and certified to
navigate the health care system. Fiduciaries are often associated with law
firms which specialize in estate planning and/or elder law. They would charge perhaps
close to $100 an hour, much less than an attorney or even most geriatric care
managers would charge.
Fiduciaries are often a desirable
option even for people who have relatives close by. Maybe they do not want to
burden their close friends or family members. Maybe they worry about how to
pick one child over another to make such important decisions. Maybe they are estranged from their relatives.
Maybe they worry that in a crisis, relatives will not be able or willing to
honor their instructions. Maybe it is just too hard to deal with the whole
subject. After all, sadly, despite being told over and over again to prepare
for the future and create advance health care directives, most people still do not.
On another point relative to this
issue, I have read that health care professionals very often encounter the
frustration of a patient declaring that, yes, he or she does have a signed
AHCD, but, no, the patient does not have it with him or her and cannot remember
where the copy is. Sometimes the
original is locked up in the safe deposit box along with the will. [New
York Times, October 17, 2013, Paula Span, “Where’s That Advance Health Care
Directive?”] What if the patient arrives at the ER unconscious or incoherent?
By the time family members are contacted and able to locate and produce the
document, it may very well be too late. I read a funny/sad story about a
67-year-old man who came in to the emergency room with pneumonia. He, too, had
an advance directive, which was stored at his attorney’s office. The Patient Ombudsman at the hospital tried to
get in touch with his lawyer. However the
firm could not fax a copy of the directive, because the man’s lawyer carried it
around with him in a briefcase in his car and he was out taking a deposition. Hours
passed before the lawyer could return the call, and even then he was on the
road and not near a fax machine. I cannot presume to know what possessed that
lawyer to keep originals of anything belonging to a client in his briefcase; but
I do know that would never happen at Cooper-Gordon.
We at Cooper-Gordon LLP do not keep
original documents in our office. They go home in a nice notebook with the
clients. We scan all original documents and provide our clients and any
professional fiduciaries with the scanned copies. We tell the clients to
forward the scanned documents to all named agents, trustees, executors and
conservators. It is always essential
that all primary health care providers, including doctors (cardiologists,
neurologists), hospitals, clinics, medical labs and imaging centers, have
copies of the AHCD. It seems evident that the time
has come to also encourage everyone to carry a thumb drive with these important
documents on them. Even those with little computer knowledge can ask someone
(including the lawyer who has prepared all the documents) to copy the documents
onto the flash drive.
Most of the time, patients who have
advance directives somewhere and do not bring them to the hospital have simply
left them at home. But lawyers’ offices and safe deposit boxes are also popular
locations. All of which are useless if a person cannot direct his own care, or
if family members are at odds, or they are spending time the patient usually
does not have rummaging through drawers and files looking for the paperwork
while the ER staff stands by.
The more copies there are in
circulation, the better the odds that one will materialize at the hospital when
you need it.
Thursday, June 13, 2013
FUNDS RESTORED TO L.A. COUNTY'S BUDGET TOO LATE TO AFFECT OUR COURT SYSTEM'S DRASTIC MEASURES TO CUT SERVICES
Although the news that Los Angeles County will be eliminating more than 500 jobs tomorrow, June 14, 2013 should come as no shock to anyone who has been keeping up with the news about the budget cuts to the court systems across the State of California, the fact that over 900 jobs have been lost, cut back to part-time or reassigned just in L.A. County over the past year is just outrageous.
Branson-Potts' article in the L.A. Times this week gives the problem focus. In particular, family law and probate litigants will be finding the already difficult scene of trying to get a critical matter heard, resolve a crisis, take care of our children, find money to pay the bills, etc., simply appalling. For the attorneys, this ongoing problem merely underlines the difficulties and unpleasantness that colors our already dismal practice of family law and probate in Los Angeles County. What ever lies ahead will be for the new generation of lawyers to implement and make their own. I hope they will come up with a way to bear the burden that does not burn them out and create unnecessary stress in their lives. For people like me, in practice over 30 years, we are in a holding pattern trying to survive the storm, help our clients find alternatives to litigation, assist the judicial officers in their overwhelming position of impossibility by helping them to steer a straighter course for the benefit of the humanity that comes before them every day.
The Los Angeles County Superior Court plans to eliminate
more than 500 jobs by the end of the week in a sweeping cost-cutting plan to
close a projected $85-million budget shortfall for the next fiscal year.
On Friday, layoff notices will be hand-delivered to
employees as 511 court positions are eliminated. While some positions will
simply go unfilled, 177 people will lose their jobs, court officials announced
Tuesday.
An additional 139 people will receive demotions and pay
cuts, and 223 people will be transferred to new work locations, officials said.
Including this round of cuts, the court has lost nearly
900 employees since 2008, according to Mary Hearn, a court spokeswoman.
The courts are funded by the state, which has slashed
funding in recent years, leading to court closures, higher court fees and
longer waits for cases to be heard.
The governor agreed this week, as part of a deal with legislators,
to restore $63 million to the courts in the budget that will take effect July
1.
But the additional funds -- of which L.A. County should
receive about a third -- will not stop the cuts in L.A. County Superior Court,
said David Wesley, the presiding judge.
"We are glad that restoration of trial court funding
has begun," Wesley said in a statement. "But it is a shame that it is
too little, too late, to stop the awful reductions in access to justice that
state funding cuts have brought."
For years, the Los Angeles County court system prided
itself on providing full-service "neighborhood courts" across the
county, Wesley said. But, he said, the budget cuts mean the system simply does
not have the resources to continue to provide the same level of services.
Copyright © 2013, Los Angeles Times
Tuesday, April 2, 2013
How to Survive Family Law and Probate After the Budget Plague
Come summertime, 2013, all I can say is woe to the poor litigant trying to get something accomplished either in family law or probate court. And woe to the poor attorney who will be trying to get paid for time spent sitting around the courthouse, waiting months to get heard, having to redo, revise and relearn what was previously readied for court and set aside for yet another continuance. Woe to the family, especially the little ones, having to live in a dysfunctional environment months, if not years, after the issues should have been resolved. Woe to the widow or children of the deceased trying to move on and learn to live without their loved one. Woe to the people who have too much in income or assets to qualify for any type of assistance and not enough money to warrant handling their case as it deserves to be handled, by competent, professional and decent attorneys who charge commensurate with their expertise.
By the end of June, the courts will have 350 fewer employees and 56 fewer courtrooms, which officials said will slow down the resolution of criminal, civil, family court and juvenile delinquency cases. The courts will also stop providing court reporters for civil trials and pare back their use in motions hearings, officials said, meaning litigants will have to hire their own transcribers if they want to record testimony. Never before has a budget crisis dealt so crippling a blow to our court.
By the end of June, the courts will have 350 fewer employees and 56 fewer courtrooms, which officials said will slow down the resolution of criminal, civil, family court and juvenile delinquency cases. The courts will also stop providing court reporters for civil trials and pare back their use in motions hearings, officials said, meaning litigants will have to hire their own transcribers if they want to record testimony. Never before has a budget crisis dealt so crippling a blow to our court.
The Los Angeles County Superior Court says it will
have to eliminate at least 511 jobs by late June as part of a sweeping effort to
cut its budget by $85 million. With those cuts, the nation's largest trial court
system will have lost 24 percent of its employees over the last four
years. Officials say state funding cuts over the last several years has forced the court to reduce its annual spending by $110 million. The court has also closed
eight regional courthouses and eliminated its alternative dispute
center, which provides arbitration, mediation and settlement conference
as an option to litigation. These cuts will result in
long lines and travel distances that will no doubt deter people from seeking and
getting the justice they deserve. Many of the elderly and infirm will be unable to travel. This has spawned a lawsuit filed on behalf of court
patrons seeks to prevent the cuts, saying they will negatively affect
disable people who need court services. Those who have to travel
prohibitively far distances are part of this lawsuit.
As of this writing, the Probate Department, which handles conservatorships, guardianships, will contests, trust contests as well as run of the mill will probates, does not quite have a handle on what it is going to do come June 1st. The probate departments of all of the 8 branch courts handling probate matters will be closed. Those judges will be reassigned and in their place will be 3 other commissioners and/or less experienced judges from the branch courts, none of whom have had any experience with probate matters, who will be herded downtown to rotate use of one courtroom and one set of staff.
The Family Law Department has already lost the majority of its seasoned judicial officers, who have been replaced with judges totally lacking in ANY experience, much less expertise, in the very complicated, difficult and emotionally taxing mine field that is family law. Furthermore, these judicial officers, like many before them, really have no basic interest or patience in helping family law litigants through the most difficult time of their lives.
Luckily, the Probate Department is filled with the former stars of the Family Law Department who survived not only still liking what they did, but went on to create excellent templates in their probate courtroom for the newbie judges to model their own courtrooms after.
Litigants as well as their attorneys are beginning to realize that the court closures and budget cuts will be a windfall for the private judges who can attend handily to the needs of the well-healed and well-situated clients. Private judging is not right for everyone and, clearly, with this disastrous financial crisis, the two-tiered system of justice has made itself indispensable for some and a nightmare for everyone else.
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