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Recent Posts in Mindfulness and Divorce Category
| December 30, 2011 |
| Attorney Michael C. Peterson Speaks About FINANCIAL TRANSPARENCY (Before and Once Divorce Happens) |
| Posted By Michael C. Peterson |
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Advice for Couples in 2012, Including
How to Balance Power in Your Marriage!
One of the most common problems I see arising in (and sometimes leading to) any divorce action is a lack of financial transparency between the spouses or partners. Often, over time, and for various personal, practical and familial and historical reasons, one party has assumed a dominant or exclusive role in the management of community assets, including depository accounts, real estate, investments, and small businesses.That role effectively puts a managing spouse in a position to have vastly superior information about the family finances, and the power to act on such information in the context of divorce to the detriment of the non-managing spouse. This may wind up prejudicing one party if the relationship ends.
It has been my repeated experience that, in anticipation of a divorce action, an unethical or abusive spouse will take strategic steps to hide assets and obfuscate the methods used to hide them. The ramifications to the non-managing spouse can include not only an unfair disbursement of community assets upon resolution of the case, but also manifest into reduced calculations of temporary and permanent spousal support and child support.
California family law attempts to minimize the potential for financial fraud during the life of a divorce action. For example, it creates rules for mandatory disclosures of assets. It creates fiduciary duties for managing spouses. It creates methods for discovery of financial and asset information (but only in the context of a legal action, after the relationship has broken down). It creates pre-judgment and post-judgment penalties for non-disclosure.
In a perfect world such legal tools alone would fully prevent the potential for financial dishonestly between separating spouses. But the reality is that the law routinely fails to protect the financial interests of the non-managing spouse in this regard, and the root cause of that failure occurs because non-managing spouses don't take steps to equalize the playing field when it comes to information about family finances during the course of the marriage. Stated another way, individual non-managing spouses are often unable to utilize the tools that the law provides to ensure they receive a just and equitable share of the fruits of the community's efforts during the course of the marriage because they lack the information necessary to have their lawyer fully protect their interests. Too many non-managing spouses wait until the time of separation to learn about the family finances. By then, non-managing spouses and their attorney are playing catch up, and not always winning. As such, it is of paramount importance that a non-managing spouse be proactive in learning as much information about the family finances as possible, and do so not only on the eve of a divorce, but also during the entire course of the marriage itself. In this day and age, knowledge is the coin of the realm.
Economists recognize that one source of market failure (i.e. inefficient allocation of resources) is caused by a phenomenon called asymmetric information. Asymmetric information affects decisions in transactions where one party has more or better information than the other. In adverse selection models, the ignorant party lacks information while negotiating a contract to the transaction. Common examples of information asymmetry include 'insider' trading in the stock market, or buying a 'lemon' used car. Understanding and combating asymmetric information is crucial to economists because market failure leads to net losses for society as a whole. Understanding and combating asymmetric information should be equally important to the non-managing spouse and his/her attorney because of its strong potential to lead to inequitable settlements or trial results. In the economic sense, asymmetric information between spouses about the family finances is a form of market failure. To be sure, if you are contemplating or undergoing a divorce action, you will (in most cases) effectively be negotiating a transaction that will bind you and impact your financial future.
The best way overall way to combat a managing spouse 's tendency to commit acts of misfeasance or non-disclosure regarding financial interests is to equalize the flow of financial information from the very outset of the marriage, with information parity being a non-managing spouse's goal.
Hand-in-hand with the goal of information parity is a mindset that fosters such parity being present throughout the marriage. That mindset is, simply stated, one of equality and mutual appreciation. Two people will divide labor in a marriage so as to maximize their relative strengths and weaknesses, and in so doing the synergy benefits the martial community as a whole to a greater extent than either person could do individually. Economists refer to this phenomenon as comparative advantage, and recognize that such a situation is optimal in the context of maximizing social utility. So too is comparative advantage optimal for managing a household.
As a simple 'traditional' example, assume Chris and Pat are married. Chris has a greater income earning potential due to holding a doctorate degree and having a good network of people to whom Chris is favorably known in the locale. Pat has greater domestic abilities due to having a bachelors degree in nutrition a work background in home decor. Based on these comparative strengths, Chris and Pat decide that Chris will work full-time and Pat will take care of the home full-time. Pat's excellent meals keep Chris energized and in good health. Pat's superior aesthetic tastes keep Chris in style with cool cloths. Chris's boss comes over for dinner and is impressed by the feng shui of the domicile. Over time Chris gets promoted and raises. Chris uses the additional income to make financial investments, go on vacations with Pat, and purchase a better home. By Chris and Pat each doing what they are relatively strong at, they, both individually and as a whole, are made economically better off. But more to the point, it is their interdependence that necessarily caused the mutual gain. The law recognizes this fundamental principal in the context of divorce by creating the concept of community property; that regardless of whether it was Chris's paycheck that allowed for the growth of assets, Pat's contributions to Chris's earned income are equally important and therefore necessitate equal division should Pat and Chris's relationship end. So as to a non-managing spouse's mindset, I strongly encourage all such people who are contemplating marriage, married, contemplating divorce, or involved in a divorce have one that recognizes their contributions to the community and requires takes a role.
On the practical side of things, here is a list of information parity objectives that I believe healthy marital relationships should achieve:
- Spouses should store copies of written financial documents in a safe place and where the other spouse doesn't have access.
- Spouses should have all depository, investment, retirement, and debt account numbers written down in an asset ledger. Annual inventories of all assets with a value over $500.00 should be maintained and signed off on by spouses and kept in the asset ledger.
- Spouses should keep copies of income information, including payroll stubs and other documents showing income such as rental checks from investment property or brokerage statements from securities dealers.
- Spouses should copy and store all financial account information from banks savings and loans, credit unions, particularly monthly statements. Spouses should also copy and store other banking information such as passbooks, check registers, and deposit slips.
- Spouses should agreed to have all financial information statements should be sent to each spouse individually, directly from the applicable financial institution, and be received only at that spouses primary residential address (and not, for example, at a business). If one spouse insists on receiving their financial information from home or stops receiving financial information mail at the residence, it is often a red flag.
- Spouses should maintain copies of tax documents, including personal tax returns and business tax returns, and attached forms, for the preceding five years.
- Spouses should receive and keep business financial statements, including net worth and income statements, in the case of a small business.
- Spouses should keep copies of all wills and trusts, and attachments thereto (such as a grant deed that has been recorded in favor of a trust for the benefit of the spouses).
- Spouses should keep copies of all life insurance policies.
- Spouses should keep copies of all outstanding debts incurred during the marriage that are in either spouses name.
- Spouses should keep a list of all personal and real property owned prior to the marriage.
- Spouses should keep a list of all safe deposit boxes and their contents.
Other tips you should know about and red flags you should watch out for to protect you from an unscrupulous spouse:
- Don't wait until things are going badly in the relationship to achieve financial information parity. Work towards that goal from the outset.
- Conduct asset searches of your spouse's biographical information by professional third-parties on an annual basis.
- Be aware that there is a statistically higher incidence of spouses hiding money in their second, third, or later marriages.
- Its best to have only a certified public accountant prepare the spouses' tax returns (as opposed to 'bookkeepers' of other unlicensed persons acting as pseudo-accountants), as they are subject to professional conflict of interest rules. Do not sign any document seeking your informed consent to waive any conflict of interest rules with respect to accountants without consulting an attorney.
- Particularly in the case of a small business, become knowledgeable about the business's employees, its normal income, its normal expenses, and how it accounts for them. A small business in particular is breeding grounds for accounting tricks to make it appear less valuable. I have seen this occur by the managing spouse: favor/incentivize cash payments from customers, funnel personal expenses as payments from the business, creating and paying fake employees (including the spouses' own children) and then voiding the uncashed checks after the divorce is final, or delaying new long-term business opportunities (i.e. taking new customer orders, signing new clients, or receiving transfers from escrow-like accounts such as paypal.com). It's important to be familiar with the inner-workings of a small business so you can note when something is amiss. Carefully review and copy customer/client payment agreements and accounts where a small business operates on a largely cash basis.
- Review financial statements on a regular basis. It is easier to access and digest three months of recent transactions than five years of relatively distant transactions. Look out for large or out-of-the ordinary deposits or withdrawals, and try to trace the source/end-point of the transaction to the best of your ability.
- Be aware that municipal bonds and certain savings bonds, because they are tax-free, are not reported to the IRS and therefore can be a vehicle for asset hiding because they do not need to be disclosed on tax returns. Look out for large investments in these assets.
- Non-managing spouses should be careful about signing joint tax returns that claim large deductions for various expenses, particularly in the case where a small business is involved. Although it might mean a larger tax burden in a particular year, in the context of a divorce it often results in lower spousal support and a lower business valuation, with attestation proof presented to a judge in the form of your signature.
- Big changes to the administration of finances can be a red flag: applying for large new loans, the closing of a bank account or change to an investment portfolio, particularly without the input of the non-managing spouse, might give opportunity to hide money.
- Know your spouse's boss well, and make sure they like you. I have experienced collusion between employers and employee so as to show short-run decreases (bonus or raise deferral) to income agreed on increases after the divorce is complete. If you separate from your spouse, let your spouse's boss know that event has occurred in writing.
- Do not sign deeds or other papers concerning real estate papers without consulting an attorney.
- Watch out for bank accounts opened in the name of spouse's children, as they do not get listed on that spouse's tax statements they can be a method of hiding community assets.
- Also watch out for overpayments on taxes. A managing spouse may try to receive a tax return later after the divorce is final by overpayment now, or alternatively filing amended taxes.
- Avoid 'loans' to friends or family.
- Be a Missourian, i.e. don't take your spouse's word. Have the managing spouse show you with the documents that corroborate what they tell you about the family finances.
- Don't allow fear of ruining the relationship, cultural values, or laziness prevent your pro-activity in becoming astute in the family finances. Defensive responses to your inquiries and requirements for financial information parity by the managing spouse may indicate diversion of community assets.
- Always remember that the burden of proof rests on the accuser, not the accused, to prove diverted assets to a court. Take all actions to protect your interests with this rule in mind.
These are my thoughts at the end of 2011 - I wish each of you, and each of us, a Happy New Year in 2012, and I hope that we all strive to be transparent and ethical during the coming year!
Michael C. Peterson, Esq. - Indio and Coachella Valley Divorce Attorney |
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| April 30, 2011 |
| 271 SANCTIONS Ordered Against PRO PER ATTORNEY - Lawyers Are Some of the Most Conflicted Parties to Matrimonial Litigation |
| Posted By Thurman Arnold, C.F.L.S. |
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I have recently been reflecting on the fact that in my experience, lawyers who are parties to family law litigation behave far worse than most people suffering through the emotional ravages of relationship breakup. There is something about being a lawyer that threatens, and for some tends, to transform us into bullies and petty tyrants.
Lawyers should be even more mindful than the average litigant about taking bad faith positions. Courts hold attorneys to a higher standard, as they should. Not only are they more likely to be monetarily sanctioned for abusive behaviors, attorneys may also find themselves the focus of a State Bar investigation that ends with discipline including suspension or disbarment - an accountability unique to being a member of the legal profession. Hence, attorney pro se litigants have a lot more to lose than the average disputant. Aside from their ethical obligation to be act better than the rest as "officers of the court," there are practical reasons why they should exercise restraint.
There is a trend among our California appellate courts to fix boundaries and impose consequences for all divorce litigants who engage in uncooperative and dishonest behavior in marital and partnership dissolutions. This is a good thing: As I urge in my Blogs, the family law system for resolving disputes isn't working because the participants often approach them with so much blind rage and reactivity that their conduct overburdens the courts' resources and are too often manifested in attempts to beat the other person into the ground by increasing costs unnecessarily, by misrepresenting information, and by playing "hide the ball." We teach our children to self-regulate their behaviors, but sometimes we can't seem to get a grip on our own. We don't want judges to act as through they were our parents, but people often force them to.
Marriage of Greenberg (April 28, 2011) 194 Cal.App.4th 1095
As if to emphasize this phenomena, the Second Appellate District out of Santa Barbara issued its decision in Marriage of Greenberg on April 28, 2011. Self-represented Attorney Robert Greenberg was sanctioned in the amount of $2,800 in attorney fees to be paid to his former spouse by a Ventura County trial court when he took a meritless position to justify his stubborn refusal to pay a court ordered equalization payment to her. The trial court found that he was not only not credible in identifying his income in opposing a spousal support request, but declared that he'd engaged in perjury about his earnings and expenses. Moreover, the argument he urged to avoid paying the equalization payment was one that "should not have been an issue in the first place."
Accordingly, per Family Code section 271 sanctions were upheld as entirely appropriate and within the trial court's discretion. But that is not what is striking about the court's decision - and indeed $2,800 for uncooperative and dishonest behavior in family litigation is a very light slap.
Mr. Greenberg was not satisfied to accept his lumps and move on; instead, he filed a frivolous appeal from that order. Because Wife had not filed any brief in opposition to Husband's appeal Husband dodged a second monetary sanctions' award - but he did not dodge the bullet. BTW, Husband may have believed that because Wife could not afford to hire an appellate lawyer, given that it makes little sense to pay $10,000 to defend a $2,800 judgment, he would win in effect by default - he was sorely mistaken, however, since appellate courts don't accept arguments as valid simply because they are unopposed.
The Court concludes its opinion with the following:
"The record on appeal does not show that the trial court reported husband to the State Bar. We order the clerk of this court to send a copy of this opinion affirming the trial court's order to the State Bar. Whether husband should be disciplined is addressed to the judgment of the State Bar and we express no opinion thereon."
I suspect the author of that final sentence was smiling when they wrote it. Given the citations to Mr. Greenberg's tactics in the appellate record, it is hard to imagine that he will not be sanctioned by the Bar in the near future. Ironically, if the trial court's perjury findings have not previously been brought to the attention of the State Bar, Mr. Greenberg's insistence on pursuing a frivolous appeal guarantees they now will be. This is a wonderful example of an obsessed divorce litigant completely 'blowing themselves up.'
Justice Yegan, J. for the Second Appellate District begins this strongly worded opinion with the sentences: "Abraham Lincoln once said, 'He who represents himself has a fool for a client.' Here, the client is an attorney who represented himself in the trial court. He now represents himself on appeal. He is unschooled in the basics of appellate law, suggesting that Lincoln's observation applies on appeal. We understand that emotions run high in family law litigation and that this may cloud the judgment of a party. But that does not excuse the filing of a 'creative' (i.e., misleading or incomplete or inaccurate) income and expense declaration; or perjury,..., or the filing of a frivolous appeal." [Italics added].
The decision ends with this dry and understated observation: "Husband, a pro per attorney, suffers from a lack of objectivity." This fact, universal in differing degrees for those who are ending relationships, is at the core of why family litigation is so distressing and expensive for everyone involved, and in need of a major retrofit. But in the meantime, trial courts are repeatedly being given the green light to reign in parties who act like errant children so long as their due process rights are duly protected. Along with Marriage of Tharp,
Marriage of Fong, and Marriage of Duris & Urbany,
Marriage of Greenberg constitutes a warning to all family law litigants that abusive conduct will not be countenanced.
Also, Greenberg is important as good authority for the proposition that unfounded legal positions at the trial court level are sanctionable under FC §271. It should be cited to any judge where you encounter difficulties with the other side that sound familiar here, including advocating meritless claims.
Divorce trance is strong stuff. It causes most people to lose their minds for a time, before they can regain some balance and equanimity. Some high conflict litigants seem to never regain their poise (if they ever had it), and lawyers as parties to matrimonial matters seem to personify some of the coarsest aspects of our lower natures. One of the benefits of hiring a seasoned attorney, even if you think you can otherwise represent yourself, is that they can guide you to act in ways that are less destructive than what your impulses demand. Good lawyers don't just perform the mechanics of divorce, they help to set the tone. Conversely, seeking out "aggressive" lawyers whose advice mirrors or panders to your inner tension assures that your experience of the divorce and of the courts will be all the more unpleasant and unsatisfactory - oh, and expensive too.
Do yourself a favor - don't imagine that family court is your stage for expressing your upset and rage. Throw tantrums and the consequences may be more painful than a "time-out."
Or consider a different tact, if you wish and if your limbic "lizard" brain will allow it. Fortunately, we have other areas that we can access with just a smidgeon of mindfulness.
Thurman W. Arnold, III, CFLS
A disclaimer:
Very few humans can behave impeccably every time, and I don't want to create an impression that I claim to be freed from all personal reactivity. My discussion is aimed at reminding you and I that we have two primary choices: 1) Get lost in the trance of resentment and within our busy minds, and so be persistently and stubbornly deprived of any real decision-making ability or 2) to increasingly gently and firmly restore and ground ourselves, and exercise the choice to suffer less rather than more by resisting the impulse to jump and scream when we feel threatened or angry. This latter possibility exists apart from all proclaimed external "causes" to our misery - and requires that we not respond in kind to the perceived insults and injustices that others may seek to inflict upon us.
Every day we enjoy a fresh chance to re-evaluate our direction and so to reset our conditioned negative momentums. Might succeeding one time in ten be better than the alternative?
When I am distressed but lucky, the mantra "stop..., clear..., reset" sometimes comes to my mind. And sometimes, hopefully more often than not, this works for me. Find your own mantra and save yourself from needless pain.
The opportunity for freedom resides within us, not without! Conversely stated, victims tend to choose to be.
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| October 20, 2010 |
| JAKE ARNOLD Turns SIX! |
| Posted By Thurman Arnold |
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The Lost and the Found
[One Attorney's Path to Redemption]
__________
Unconditional love is something we humans yearn for,
but just endlessly.
The difficulties of relationship break up prove this to be true,
but only every time.
Animals, friends and family are not
merely a sanctuary
when we are all working well -
but a ready invitation for redemption
when we are not,
every, every day.
In this way
devotion
to special creatures,
like children,
animals
our inner child,
and you ...
teaches that not only can we carry on
- but how to.
Happy Birthday to Puppy Dog Jake
and to all the beings whom you hold dear....
and now Merry Christmas!
~T.W. Arnold~
Happy Holidays!
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| January 20, 2010 |
| How does one begin to become MINDFUL during DIVORCE? |
| Posted By Thurman Arnold |
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Q. What does being mindful require?
A. Mindfulness requires nothing because it exists outside the realm of achievement. It is based within the present moment, and the present moment exists without concern for past or future.
The present moment doesn't care about striving to change anything. It is not in argument with "what is." In the present moment, nothing matters other than the present moment. Here is the present moment as an existing fact, here and now - can we say the same about some remembrance of what happened yesterday, or what we hope or fear will happen tomorrow? Those are "dead things"; they are 'history.'
Yes, we are forced to come to peace with the past, and to come to terms with the future. As timeframes, these concepts remain highly relevant. It is not enough to say "this too will pass" or "in the present moment you cannot be harmed" because not only is this incomprehensible at times, but mindfulness without perspective risks failing to protect the person from destructive harm. We will not disappear in a cloud of bliss.
So what is to be done?
Mindfulness allows
perspective based upon the Truth of our experience, not some trance-talking story about it all.
For purposes of divorce,
mindfulness begins by recognizing what is mindlessness and the forms of thinking and behavior that mindlessness takes.
It is often easier to see the insanity of everything than how things are connected. Sensitivity does not begin by changing anything - the impulse to change things is just more trance (ever notice how so many creatures take on the shapes or colors of other creatures in order to hide or protect?)
Recognition is all that is required, - the rest takes care of itself. How simple is that! But without attempting to see what is not a zombie-like reactivity, there is little space left for desire and intention to sprout and take root. Mindfulness allows for a constant re-dialing back to the simple presence, without demand and even without plan.
But, beware, the mind ('ego') moves nimbly and so quickly. As soon as these words form, are expressed on paper or read, they tend to coalesce into a plan of action - into "a doing" - an activity. And so mindlessness begins again.
This is filled with paradoxes because ultimately the mind cannot grasp it all. Instead, the mind can point to illustrations that cause a felt sense of recognition which usually cannot be explained. Have you ever awakened to the fact that you've been unconscious until that moment? Doesn't this happen every day, all the time? For instance, suddenly you are at the bathroom mirror with a toothbrush in your mouth and you have no idea nor remembrance how you got there? Someone has been talking and that you've not been listening and have no idea what they just said. You've clicked to this page or away from it, and don't recall the clicks in between or the content of what you observed. That you have been distracted by some story of your mind while driving, and now arrive at your destination uncertain who was steering or what route they took? Where did the present go?
Mindfulness is being present at any given moment, in a conscious way. Ultimately it is a practice and a commitment borne of desire, love and patience.
Jon Kabat-Zinn has described mindfulness as "paying attention, in a particular way: on purpose, in the present moment, and nonjudgmentally. Mindfulness is not about thinking, it is about experiencing. It is a form of meditation, and is available in every moment."
This has the power to transform our experience, and rewire our brains.
In the midst of divorce, mindfulness is the only alternative for not unconsciously responding to this, or to that, based upon hurts and fear. What an opportunity for our children! What an opportunity for ourselves that we can set our supposed burdens down, and what promise that maybe in our next relationship will be a more awaken to the seductions of the mind. It is a grand way to start divorce healing. TWA - 10/09
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| January 20, 2010 |
| What should I do before selecting a divorce attorney? |
| Posted By Thurman Arnold |
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Q. What should I ask a family law attorney to see if we are a good fit?
A. Before you step into a lawyers office, you should know something about them. Today this is easy. Go to the California State Bar website. Search the attorney's name. You will learn where they attended undergraduate school and law school; when they were admitted to the Bar, whether they belong to any Bar Sections and stay current with the law, and how long they've been practicing. Not all law schools are created equally.
You will learn whether they have been disciplined. Lawyers can be disciplined for a number of reasons; some go to the essence of that attorney's character and affect their reputation in the community, including with Judges before whom they appear.
Second, ask for a referral. Be sure the reporting person is reliable themselves, not over-conflicted, and that they have a basis for their opinion.
Referrals from long practising mental health professionals are an excellent recommendation.
Referrals from other lawyers is a very good way to choose a lawyer, and if you know an attorney run the names you are considering by him or her. Martindale.comrates lawyers in terms of client satisfaction.
Web sites, like this one, are also a good place to start. They may tell you something about the attitude of the attorney and the style of their practice, or they may be a misleading billboard. Most attorney websites are put together by advertising firms and don't reflect the real personality of the lawyers. Many lawyers pay ghost writers to put up blogs or "articles" on their sites. They subscribe to "newsletters" that they appear to have, but have not, written.
Thurman Arnold has researched and written every word on this site (truly). We don't believe there is another family law website in the country that matches our commitment in making dissolution related information available to people for nothing.
Many lawyers will not charge for an initial consult. The Law Firm of Thurman Arnold III does not charge for initial consults, over the phone or in person, and we usually spend a half hour to an hour with clients when we first meet them. We want to know about you, and it is important that you get to know us.
Remember that lawyers are busy professionals, and time is their stock in trade. It isn't ethical for you to interview lawyers to gather free information or just to validate your opinions.
Asking the attorney their opinion on issues important to you at the initial meeting is not inappropriate or off limits in the slightest.
You are trying to determine several bits of information:
1) Is this attorney actually experienced in ways that are helpful to you?
Family law is complicated because it is not just the lawyer's experience with the law that is important, but it is also their familiarity with professional and life situations similar to your own.
2) What is the attorney's attitude about how divorces should be handled? Does she know how to listen?
Is that attitude consistent with your own goals? For instance, if you intend to lie to your spouse, hide assets, and if you care only about the outcome from your own perspective, you would need to hire a lawyer who tends to practice in a way that accomplishes that goal. If that is who you think you are, you want a divorce gunslinger.
But, beware, these lawyers will treat you the same way as you treat others.
If instead you are like most persons involved in the trauma of divorce, rational one day but distressed and confused and even nasty and reactive the next, you need someone compassionate and ethical to guide you. If you think that being ethical means being soft, examine what it is in your thinking that concludes that.
Conflict resolution is not the same as conflict avoidance. You do need to make sure that your lawyer has the background, ability, experience, and interest in you to manage your case. The best attorneys have some educational background in the family sciences or family studies, and regularly undertake family law continuing education. Such training reflects an unusual commitment to the craft that may distinguish them from the pack. The Law Firm of Thurman Arnold III actually lists our experience, training, and continuing education on this site to evaluate - we challenge other attorneys to do likewise.
3) You need to feel that you and the lawyer you hire are a good fit. If it reliably seems that the two of you can act as an empathetic team, and that you value the same things, you are on the right track.
T.W. Arnold
1/20/2010
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