Articles: Litigation Articles

One of the most important things to do after your divorce is to organize and keep copies of all your divorce papers, especially your divorce judgment, in a safe place. That is something you should have been doing throughout the entire divorce process. Why keep documents of unpleasant memories? Because to paraphrase baseball legend Yogi Berra, “a divorce ain’t over ’til it’s over.”

Divorce cases can be “deja vu all over again,” as Yogi would say. Many divorce cases involving children don’t end just because a final judgment has been entered by the court. Parties often seek to modify custody, visitation and support orders months, even years after their divorce is final. I must cynically tell my clients who have minor children that their divorce case won’t really be over until their youngest child turns 18 years old. Therefore, keeping detailed records of what happened in your case can make the difference between a favorable or unfavorable outcome in a post-divorce matter.

I recall one case that went back to court over a pension issue 31 years after the divorce was final. Don’t assume that your former attorney has kept your file in a safe and secure place. Attorneys, like all people, retire, move and die. You could end up digging through the Court archives downtown, which is not a very pleasant way to spend the day.

So, if you are going through a divorce right now or just divorced, head out to your local office supply store and buy a folder, preferably with sub-files. You need to begin orgainizing your past to protect your future.

A big change to the California Family Code takes took effect in 2006. An amendment to the Family Code states that no person shall be granted physical or legal custody of, or unsupervised visitation with, a child if anyone residing in ther person’s home is required, as a result of a felony conviction in which the victim was a minor, to register as a sex offender under Penal Code section 290, unless the court finds there is no significant risk to the child and states its reasons in writing or on the record. That won’t be an easy hurdle to clear.

Title this case under the headline: Marry for love, not for money. In Marriage of Meagher and Maleki the California Court of Appeal recently held that you cannot get an annulment just because your spouse lied to you about his or her financial status. In that case, the wife was an affluent psychiatrist when she married her husband. The wife thought that her husband was a millionaire investor. After a few years of marriage, she began to suspect that he just married her for her money. Of course we all know the reverse is never true. In any case, the wife understandably wanted an annulment.

An annulment would benefit the wife because if the marriage didn’t exist, she could not be ordered to pay her husband spousal support, i.e. alimony. But the Court of Appeal said that you cannot get an annulment based on fraud if your prospective spouse lied regarding his or her financial status. In other words, if it turns out that your wedding ring is really “cubic” and not a diamond, too bad. So, the wife has no choice but to proceed with her divorce and therefore could end up paying her husband, who apparently was not a millionaire investor after all, spousal support. The Court of Appeal stated that if you want to get an annulment based on fraud it must involve one party’s intentions or abilities with respect to the sexual or procreative aspect of the marriage. Best to talk to an attorney about what that means.

Should you consider a vocational evaluation of your spouse or ex-spouse?  Here’s an example:  The parties are going through a divorce or it is post-divorce and the husband says to me:

“Why do I have to pay so much spousal support?  She won’t work.  She needs to earn money.  I want the Court to order my wife or my ex-wife to go to work.”

I explain that the Court cannot FORCE someone to work because that would be involuntary servitude and that violates the 13^th Amendment to the U.S. Constitution—the one that outlawed slavery.  So, what can the supporting spouse do?  Here in California you can ask for a vocational evaluation of the supported spouse.  In this example, the husband or ex-husband (but it could just as easily be the wife or ex-wife) is trying to prove that the supported spouse has earning ability and has the opportunity to earn income.  The vocational evaluation is used to impute earnings to the supported spouse whether or not they go to work.  If the Court agrees that earnings should be imputed, then the amount of spousal support paid will decrease.  If you are stuck paying a high level of long term spousal support, the cost of a vocational evaluation is probably worth it over time.

A vocational evaluation may also be effective if your spouse or ex-spouse is underemployed.  For example, a situation where the supported party has an advanced degree, such as a Master’s Degree, but has chosen to work in a minimum wage or low paying job.

Do vocational evaluations always work?  No, but if you don’t have one, then what evidence can you present to the court that your spouse or ex-spouse has earning ability and the opportunity to work?  Probably none, and you may be stuck paying the same level of spousal support until your ex spouse dies or remarries.

Should you always do a vocational evaluation?  No.  For example, if you had a long term marriage and your spouse or ex-spouse was a stay at home parent who never worked and only received a high school diploma 20 plus years ago, a vocational evaluation may not get you much more than imputation of minimum wage, which you should be able to get without one.   Finally, can you get a vocational evaluation to reduce your payment of child support?  That will be the topic of a soon to be added article.