Welcome to the Spring 2010 edition of our newsletter.
In this issue we have much to celebrate. First, we had to unfortunately say goodbye to Brigit Asilnejad, our office assistant, whose class schedule prevented her from continuing to work for us. We were extremely fortunate to have quickly found Rebecca Boulour, a delightful, smart, conscientious and all-around helpful addition to our firm as office assistant. Congratulations to Rebecca, who just has been accepted at UCLA to complete her undergraduate degree. Rebecca is very interested in the practice of family law and probate and estates. She has been learning quite a lot about our practice while assisting us in document preparation and file maintenance. We are very excited for her and hope, of course, that she will be able to continue to work for us throughout her undergraduate years.
Frieda continues to write for her blog as often as she can and updates frequently appear on Twitter as well. Several new articles are now accessible from our Home Page. Frieda has been busy working with various committees of the California Association of Certified Family Law Specialists commenting to the State Legislature on the proposed revisions to the State Rules of Professional Responsibility and organizing the hugely successful Spring Seminar held this year in Indian Wells, CA at the luxurious Hyatt Grand Champions Resort, where the topic for certified family law specialists throughout the State was Titles, Transfers and Transmutations.
Frieda has also been working on stopping the legislature from pushing through a “trailer bill” which would create an administrative process within the Department of Child Support Services for setting and modifying child support orders. These are for Title IV-D cases only. The claim is that this will make "timely service delivery and enhance customer convenience." There would be fewer judicial officers under this plan, and thus fewer staff attorneys to implement the procedures, so those salaries would likely be the principal savings. The model provides for three levels to be phased in, in two stages. Stage one would apply only to modifications. It would start Jan. 1, 2011. Stage two would be for establishment of all child support orders and would start on Jan. 1, 2012. Level one of the process would be an Office Conference to be held at the Local Child Support Agency. The office conference would be administered by a "Conference Officer.”
According to the definition, this “Conference Officer” would not even be an attorney. The Conference Officer would be an employee of the Local Child Support Agency and would have a Bachelor's Degree or "the equivalent." The Agency issues a Summons and Complaint or a Notice of Motion to Modify, and schedules the office conference about 30 days later. The Parties are served with those papers along with a "proposed order." The Parties then go meet with the Conference Officer, who generates a stipulation, later entered by the Court. If the Parties do not appear or appear and do not agree to the order, then the Conference Officer "generates an interim order. If they do not like the interim order, the Parties have twenty calendar days to request a hearing. Level two provides that if either Party does not like the interim order and requests a hearing, then a hearing will be scheduled in thirty more days. That hearing is before a "Hearing Officer," which means an attorney under the direction of the DCSS with no less than 3 years of experiences as a child support attorney, who has “special training” to conduct a child support hearing. Again, either the Parties agree, or there is another interim order issued, and another twenty calendar days to request a hearing. Level three allows that if the parties do not agree with the Level two interim order, they can request a hearing before a Commissioner or Judge. The child support attorney would appear to represent the agency at that hearing. (Presumably this is not the same one who presided at Level two hearing!). These hearings could be in person, by telephone, by AV (Skype, etc.) and "other electronic means."
AB 2475 is another bill that Frieda has been working with other board members of ACFLS to prepare a letter of opposition to the important legislative committee members. This bill would eliminate judicial immunity as it now exists and allow disgruntled litigants to sue a custody evaluator or any other third party who participated in the legal process. It appears to include any mediator, whether court-related or private. It would certainly cover Parenting Plan Coordinators, marriage and family therapists, even bankruptcy trustees! It could also affect minor’s counsel appointees. It appears to have been amended in the Assembly Judiciary Committee and, at this time, there is no hearing set. Existing law grants immunity from civil suit to judges for acts performed in the exercise of their judicial functions. Under the concept of quasi-judicial immunity, this absolute judicial immunity has been extended to persons other than judges if those persons act in a judicial or quasi-judicial capacity, including neutral third parties engaged in attempts to settle disputes. This bill would provide that the doctrine of judicial immunity or quasi-judicial immunity shall not apply to exonerate any third party who is engaged in mediation, conciliation, evaluation, or similar dispute resolution efforts under any statute or contract from liability for any act performed within that capacity.
Avery Cooper was one of the brilliant speakers who presented at the ACFLS annual Spring Seminar specifically sharing his immense knowledge of cross-over issues between family law and probate law, as it pertains to the rules of transfers, title and transmutation. His particular panel was such a success and the content was of such importance that another provider of continuing legal education asked the judge and two attorneys on this panel to speak at a future all-day seminar on the subject. After the program concluded, Avery and Frieda were able to enjoy a beautiful afternoon of hiking in the awesome and spectacular Indian Canyons located in Palm Springs, California.
This Winter, Avery and Frieda enjoyed a fabulous trip to Costa Rica and Panama, partly on a small ship run by Cruise West. (www.cruisewest.com) They visited several rainforests, national parks, indigenous peoples and the capital of Costa Rica, San Jose. The highlight of the trip was traveling through the Panama Canal. What an amazing adventure. They snorkeled, swam, picnicked and hiked nearly every day, coming back relaxed and ready to re-enter their stress-filled lives. The best part was the lack of internet/cell phone access. It was also great to meet the wonderful crew members, mostly native to the countries they visited, but some were actually from the U.S. and Canada.
Drorit Raiter, one of our associates, had a wonderful time celebrating her first wedding anniversary in Israel and France over the Winter Holidays and came back with some fabulous recipes from Paris. She and her husband are amazing cooks. She has been volunteering regularly at a domestic violence clinic here in Santa Monica, California and works closely with our clients to prepare all the many documents required of them.
Katherine Su, our senior associate also went on a great holiday this Spring to Florida where she visited with her fiancé and his family discussing their upcoming wedding. We are so excited and happy for them. They just recently selected the date for their wedding to take place in June, 2011. Katherine is also looking into volunteer services, perhaps to assist pro pers with their Guardianship and Conservatorship Petitions in Probate Court.
Our legal assistant Christine Donald is an avid cyclist and recently returned from a cycling festival near Monterey, California. Paralegal Yana Rozovskaya continues to maintain her compassion and charm with an ability to let the stress of our busy practice slide off her back, no doubt due to her devotion to her yoga practice.
The special topic for this newsletter is Estate Planning During Divorces
Prior to initiating the divorce process, it is always prudent to have a professional take a careful look at your present estate plan, whether it consists of a Trust, a Will or, even if there are no present estate planning instruments in place. A review of your Advance Health Care Directive should also be undertaken.
Once the marital dissolution proceedings have commenced, certain automatic temporary restraining orders go into effect. These orders can create hurdles to making changes to your estate plan and, even if the plan is not affected by these orders (AATRO@s), it is quite clear that most individuals (whether they have actually affirmatively decided to initiate the divorce process or are involuntary participants) most likely wish to change their existing plan, in order to avoid having their estranged spouse become the recipient of any portion of their estate should they pass during the course of the marital dissolution proceedings.
Let me first address the Advance Health Care Directive (commonly referred to as an AAHCD@). This is a comprehensive document which serves several purposes. First, it acts as in and place of instruments commonly referred to as APowers of Attorney for Health Care.@ In other words, it designates an Aattorney in fact@ (an Agent) to make medical decisions for you when you are incapacitated and unable to do so on your own. Secondly, it provides for the nomination of a Conservator in the event one is needed and you are unable to express your preferences at that time. Next, it affords you an opportunity to designate burial or cremation instructions. Finally, it also takes the place of the old ALiving Will@ in that it allows you to designate whether, if you are in a persistent and irreversible vegetative state you wish to be kept alive artificially or, alternatively, wish to be kept alive by any reasonable means known to man at the time. The AHCD even allows you the opportunity to select the person to make that decision (usually the aforementioned AAgent@) and the physician who will determine whether or not your condition is, in fact, Airreversible,@ which is a required finding before such a decision is authorized.
Clearly, most participants would be mortified to know that, absent the execution of the proper document, their spouse (even in a divorce situation) will be the person who will be called upon to make these types of decisions. Accordingly, it is clearly in a Partys best interests to change the existing AHCD or, if they do not have one, to immediately create one. Creation or modification of an AHCD during marital dissolution proceedings is not a violation of the ATROs.
Many clients who have only Wills wonder if their Will can be changed during the course of a divorce. The short answer is, “Yes.” Should you do so? Absolutely. Again, ask yourself this question: ADo I want my spouse to inherit my estate should I die during the course of the case?@ If the answer is, “No,” then the remedy is simple: Either change your existing Will or create a new Will.
What about Trusts? Can you change a Trust? Here, the answer is not so simple. In fact, it is rather complex. Lets start with a basic premise. The ATROs specifically authorize changing a Trust. However, they do require that, prior to doing so, notice must be given to opposing counsel (i.e., the other party. In essence, however, this is not the end of the story. Since advance notice of such a contemplated transaction must first be provided to the other side, the other side also has the opportunity to file an objection in Court. Frankly, there have been circumstances (which have been seen by this author) where a Court has precluded modification of the Trust. Other complications include severing joint tenancies on real property, obtaining access to safe deposit boxes, division of burial plots and so on.
Finally, there is also the complication of the divorce process itself. For example, if a spouse dies during the process but before the marital status is terminated, the divorce ends and is over. There is no need for a divorce if one of the parties is dead. Aaah.., but what if the Parties (for whatever reason) decided to terminate the marital status and in fact did so prior to the death of one of the spouses? Well in that case, the opposite is true. In other words, the divorce will go on, even if one of the Parties is not there to testify about agreements the Parties may have had, his/her separate property share of the assets, etc.
Due to these complications, the usual course of action is to terminate the common Afamily trust@ either prior to the commencement of the proceedings or, alternatively, while working with opposing counsel, to arrange for an orderly termination of the Trust during the proceedings. I use the term Aorderly@ because the termination of the trust creates numerous questions to answer such as, “how should title to the family residence be held?” Remember, the division of the community estate has not been determined at that point and, each Party needs to be assured that his/her share of the community estate is protected.
In summary, as you can see, it is important to work out these types of issues as soon as possible during the course of the dissolution of marriage case, if not before the case starts. Since Cooper-Gordons practice areas include Estate Planning, we are well equipped to counsel you in these types of issues.
