In this seminar Donald Schweitzer addressed:
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Hosted By: Dan Couvrette, CEO, Divorce Magazine
Guest Speaker: Donald P. Schweitzer, Certified Specialist- Family Law. Donald P. Schweitzer is a Certified Family Law Specialist with over 15 years of trial experience. Prior to going into private practice, Mr. Schweitzer served as a Deputy District Attorney in Orange County for 8 years. Mr. Schweitzer worked in numerous units within the District Attorney's office including, Writs and Appeals, Family Support, Municipal Court, Felony Panel, Gang Target, Felony Filing, and the Sexual Assault Unit. Learn more at www.PasadenaDivorce.com.
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My interest in family law came gradually. I started as a police officer and my first experience with family law matters was responding to domestic violence calls. I remember before the laws changed that we would handle these matters in a completely different way than they are handled now. We'd go over to people's homes, break up the fight, tell the husband to go a hotel and never arrest anybody. Something stuck with me back then about those cases and I took the risk of arresting a few people which was against the policy at the time. As my career progressed and I got into the DA's office I also got involved in child support services and I prosecuted domestic violence cases. I was very passionate about those cases. I don't know why, but it was just natural for me to get into family law after my career in law enforcement. I love protecting people and saw that there was a real need for good family law attorneys to take care of cases like that. My background really helps me because I've seen all sides of the issue. I've been at the scene of domestic violence cases and I've prosecuted those cases. As a police officer I developed extraordinary skills for analyzing evidence and any good trial attorney needs to be able to have proper judgement to be able to look at evidence and know what's going to stick. My trial skills obviously were very honed in the DA's office and that's something that's unique because in family law we have a lot of smart and passionate people who are afraid to go to court because they're not sure of how to try a case. So I think I've got an advantage there too.
I would imagine you've haven't seen the worst that you could possibly see in divorce cases. This helps you that keep a unique perspective on issues and would probably help your clients keep in mind what's really important.
Yes, with my background I'm able to put things in perspective. I've seen murders, I've been there on the street and I've prosecuted these cases. I've seen people in distress and I've been trained to diffuse situations. So when I get a new client, one of the first things I'm trying to gauge is how much emotional trauma they have. I try to see how much are they hurting because I want to help them feel at ease and show them how exercise good judgement in resolving their cases.
Now I know many people who are considering divorce in California are doing it themselves these days. Is there a downside about doing your own divorce?
Not in all cases, there are some where it makes sense. If you don't have custody issues and the property issues are pretty simple, or you have a complete agreement and are willing to live with the consequences of making a minor mistake, that's fine. I have told many people who come into my office to go to the self-help centre and handle their issues because they don't really need an attorney. But there are a lot of cases where I've seen people get hurt in trying to do it themselves. One of the toughest scenarios is when somebody comes in and they've already made a court appearance against an experienced attorney who's taking advantage of their pro per status in court. The opposing attorney may be able to persuade the judge in unfair ways that an attorney on the other side would block, or draft slanted orders. After hearings, orders become law and if they're not carefully scrutinized from all sides they could be very prejudicial. In most cases if it's contested, having an attorney is always better.
Can you give us an example of a case where somebody represented themselves in court and the other spouse had an attorney? What were the negative consequences?
There's so many. One example was a case where my client who was representing herself went into court and there was an issue of getting money for attorney's fees. She wanted the court to order the husband to pay her a certain amount of money and the husband claimed he didn't have any money. His attorney argued the only thing he had left was a Rolls Royce. Now of course you could get a lot of money by selling a Rolls Royce. But he convinced the court the car was only worth $14,000 and he'd be willing to pay her off for that amount. Because she didn't know how to argue or prepare an order after a hearing, the judgement was absolutely ridiculous as far as the fair market value of this asset. The car shouldn't have even been sold because it was prior to the trial and she could have lost a lot of money because the opposing attorney was already asking that the court liquidate or let his client buy her out. And that's just one example. I've seen many people represent themselves and come back with ridiculous support orders.
So there's potential downside if you're not aware of how the system works.
Yes. If it's contested, you're always going to be better off with an attorney.
Now I know there are some cases where people are using attorneys for only part of their divorce. Can you explain how that might work?
Yes, that's called limited scope representation which is a new vehicle here in California. What the law allows attorneys to do now is take cases on a piecemeal basis. There are many people out there who may not be able to afford or need an attorney from beginning to end and the attorney can get in on the case at a lower retainer fee because they're only committed to a certain piece of it. What I frequently see is a scenario where the person wants the attorney to make one court appearance or handle one matter like a contempt of court, which most people wouldn't have a clue how to prosecute or defend against. So the attorney could come in a limited scope basis and just handle that matter. Sometimes attorneys will also ghostwrite judgements or prepare orders and the litigant will go pro per into court and come back to the attorney to draft judgements or orders.
I see. Just so our listeners know, pro per just means that you represent yourself in court, that you don't have a lawyer representing you. Now going back just a little bit Donald to the reasons why people get divorced. Infidelity of course is just one reason, but it can be challenging when trying to have people cooperate and deal with their divorce in a less emotionally. Do you have any recommendations of how people can deal with a highly emotional divorce?
Every competent family law attorney recognizes their client is going through an emotional experience. People who haven't gone through a divorce can't imagine how hard it can be. When infidelity is involved it drives up emotions. The advice I give people who come to my office is number one, don't let your anger or emotion hurt you in this case. A lot of times feelings of hate, anger, or revenge, will cause people to act in ways that is not in their best interest in court. And if you're really trying to resolve the matter in a cost effective way, or to the best interests of your children, you've got to somehow control those emotions. People are going to feel them no matter what, but there's ways of dealing with stresses like surrounding yourself with family members, going to counselling, doing things that are going to be emotionally healthy for you. I tell my clients that in any divorce you go through you're likely to make a mistake. You may on occasion say something in the presence of the children that you shouldn't. You may write a letter to the other side you regret. Those things happen. But what you want to do is make as few mistakes as possible. You want to wear the white hat and in the event you go to court, you want the court to like you and be sympathetic. If you get so angry about the infidelity and you start acting out it really is going to work against you. So it's about looking at the problem, identifying that it's a legitimate hurt but at the same time understanding that there's consequences to bad behaviour and managing it.
And to a certain extent that is the role of the family lawyer as well. We've touched on this before about helping the client keep a perspective on things, right?
Yes, a family law attorney – probably more than any other type – is truly an attorney and counsellor at law. When people come into my office I don't just see the legal problem, I see the entire situation. My hope is that the client who's hurting particularly from infidelity will eventually get to what I call the finish line. That is that you'll get your legal matter done, you'll start recovering emotionally and some day that I bump into you on the street you look and sound again like a healthy person, somebody that can function and is moving on with their life.
So let's move from emotions to money. People often feel like they may not get their fair share, particularly if one spouse has not had much to do with the finances. In this case, how can the spouse who's not been involved with the finances really make sure and feel comfortable that they're getting their fair share in the divorce case? Are there strategies they can employ?
There is. First, people have to understand that it's not always possible to find every single dollar. There are a lot of cases where people are self employed and they receive a lot of cash. So what you're doing is the best case possible of demonstrating income available for support or the amount of assets that are out there. But when concessions should be made you have to make them, you shouldn't be chasing after a Holy Grail. Sometimes people come to my office and we know the opposing party's got more assets or more income than what they're revealing. At a certain point you don't want to pursue that to the cost of thousands and thousands of dollars if you know it's going to be a wild goose chase. But I would say start off by demanding to see documents, engaging in discovery, and definitely hiring a forensic accountant to help you or any other expert that's out there that can help you decipher the complex financial documents. A good family law attorney is going to be part investigator as they track down records through subpoenas, conduct depositions and consult with experts like a forensic accountant to take a close look at the general ledgers or bank statements. If you have a complex case where there's a family business or if there's stock options, not having an expert is pretty futile because most attorneys can't be both the attorney and the expert in court. You have to realize that retaining these people is necessary. Fortunately, a lot of times we can get the court to not only order the other party to cooperate with these experts, but to also pay for their fees.
I see. It sounds like there's also an element of negotiation. Do you often work with the other side's attorney to negotiate settlements for your client?
It should happen, but it depends on who the attorney is on the other side. My ethical duty towards a family law client should be to resolve the matter as early and often as possible. Sometimes you get into that first voluntary settlement conference and the other side may not be divulging everything or to settle a case it may take several meetings. But our duty is really to help our clients get to the finish line in one piece. And to get them what they need to protect themselves. The negotiations should start pretty much as soon as the preliminary declarations of disclosures are done, which is showing your financial documents like assets, debts and income. Once the basic work up is done negotiations ought to start and they should continue all the way up until the end of the case. Even if you're walking through the courtroom door headed for trial, there should be attempts to settle the case.
What about in the case where the divorce was completed a few months ago, but somebody isn't satisfied with the custody arrangement that they previously negotiated? Is there anything that can be done regarding custody arrangements after the divorce is final?
The short answer is yes but understanding that each case is different. Normally if somebody comes into my office and they had just gotten a custody order two months ago and they want to radically change it, I'm going to be a little bit sceptical about whether it's immediately possible. Custody orders are always modifiable. The law allows for the modification but if you go into court just a month after or two months after a custody order was made, the judge is going to be asking if you gave it enough time to work. How do you know that this is going to be a long term problem that can't be fixed with an additional order or something like that. So when people come in and they say 'I just got this order, I was bamboozled, I don't like it, I had an attorney that wasn't really advocating for me', usually I say let's give it a few more months. Let's get to the four months, six months, let's give it a try so that the other side can build a case, or you can build a case of the other side not fulfilling their responsibilities. You've got to develop some evidence and I usually say come back and let's work this up maybe about six months later.
Donald, I have a real sense in talking with you that you're not the type of attorney who flames the fire, you keep on looking for, you know, what's the solution here, how can we make this work, let's not spend all of your money chasing after things that could work themselves out. You make a lot of sense in terms of how you approach -- so that's just a compliment there's no question involved there.
Okay. An ethical family law attorney ought to put the client first at all times. You're there to help those people, not promote an agenda. You're trying to take these people's lives and help them. And, you know, that's where the counsellor comes in for me.
Give them good judgement, good common sense. If the client comes in and they're not ready for divorce, you don't tell them to file anyways cause it's in their best interest financially. You must listen to the client and understand what they want.
Right. So in a case where one of the spouses is stay at home spouse, is the other divorcing spouse obligated to pay alimony to that person who had been at home if they hadn't been employed? How does that work in California?
Well, there's no cookie cutter answer to that question. People who do stay at home and have husbands or wives that were the breadwinners are probably going to be entitled to what we call spousal support over a period of time if there's a significant disparity of income. But there are cases where the court's not going to order it. For example if the person that is at home is a perpetrator of domestic violence, there's some presumptions within the law that that person cannot receive spousal support. There's also some circumstances where if that person has an earning capacity that is such that they could easily fall into an employment situation where there wouldn't be need for spousal support then the court does have the discretion to do that. But all things being equal, if you've got a case of a husband that's earning $100,000 and he's been taking advantage of his wife staying at home to better his career while she is at home tending to the kids and has really been out of the marketplace, that's a classic example where that wife could go into court at any time and get a temporary order for spousal support. Like I said, there's no cookie cutter answer. But all things being equal, the person probably could go in and get spousal support.
Now let's say the man is paying spousal support and child support to the woman and she marries somebody who's very wealthy and presumably doesn't need the money. Is her former husband still obligated to pay that support?
Yes and no. Yes in child support obviously because a parent's duty to support their children is an ongoing obligation and the marital status of the ex-partner or ex-husband or wife doesn't really matter. Now spousal support in California is something different. It's within the law that if the other side marries then spousal support terminates. Unless, of course there is an agreement which is a very, very rare thing that I would never advocate that either side. But for child support the fact that the other side is now married to a billionaire, you know, that's in most cases still not going to matter because it's the income of the two parents. However, there are some exceptions. One new exception in the family code is the court can take into consideration a spouse's income but that's where there's extraordinary hardships. And a lot of times the income of the paying party, if it's higher it actually lowers the support. And I won't go into too much detail with that but it lowers the tax base, expands the net income available for support. So it could be a win situation when you divulge that you're living with or married to somebody that's got a pretty high income.
I see. What happens in a case where let's say the woman's parents of the couple who are married and are divorcing has gifted a down payment for a home. They gave her $100,000 to put towards the down payment of the home that the couple now owns. When divorcing, is that gift considered an asset of the couple or is it considered an asset of the daughter?
Well, with that scenario it sounds like it would be to the daughter. Just understand that in California a person gets a right dollar for dollar reimbursement for any kind of money that's attributed to the community asset that comes from your separate money. When people receive money by gift or inheritance, it is your separate property under California law, at least there's a presumption of that. The tricky part comes as to whether or not that gift was really towards them or to just the wife. And sometimes there's litigation as to what the intent was of the parent who made it. So, again it's one of those cases where you cannot say for certain that all times that somebody gets a payment from a parent that it's a separate property gift. But under your scenario that certainly would be. Because under 2640 of the family code that wife would be entitled to dollar for dollar reimbursement for her separate property money towards that house.
I see. We often hear from people at Divorce Magazine about the other spouse saying terrible things about them to their children. Do you have any advice for divorcing people who are caught in that situation?
I would say first of all understand that there are certain provisions and orders that are difficult to enforce. Not impossible, but difficult to enforce. One of which is the making derogatory statements to the children or in the presence of the children. And quite frankly a lot of parents do it. They catch themselves. Like I said, nobody's perfect but if somebody's repeatedly doing that, there could be a request for a modification of visitation. I've seen that before where the child is being traumatized and is really not functioning well because the parent is speaking so badly about the other parent. There's also the possibility of contempt but remember the burden of proof is beyond a reasonable doubt. And you're going to have to try to prove that case as to what was said behind closed doors and the court's probably not going to want you to call that child in to prosecute the parent. So it's a very difficult situation, but the attorney representing the parent who's being spoken about ought to be very vigilant in writing letters, addressing it and then going to court for modification hearings, things of that nature.
Right. So it doesn't get more out of hand and people know that there's a consequence to their actions.
I'm going to finish off with my last question, which has to do with if a couple is not married, but have children and they separate. Is there any obligation to pay child support in this situation?
Yes, child support is not based upon marital status. Child support is based on the public policy that children have the absolute right to be supported by both parents and to be supported in accordance with the parents' lifestyle and ability to pay. In California it's as simple as this. There's a guideline formula within the family code and it's as simple as putting numbers into a computer calculation and whatever comes out is pretty much gospel. But it has nothing to do with marital status. And in paternity cases usually there's only two issues: custody and child support. Child support is often the reason why people fight over the custody because a lot of times the greater time share the spouse has the less support they have to pay. And that's an unfortunate consequence. This battle does take place in paternity cases as well as divorce.