California Family Law Attorney
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December 26, 2010
  MEDIATION Is a BETTER ALTERNATIVE To FAMILY COURT For Some
Posted By Thurman Arnold, CFLS

Family Court May Be The Common Denominator For Many Families When Relationship Conflicts Require Intervention, But It Should Always Be Recognized As The Forum Of Last Resort!

California Family Courts render unique and invaluable services to people locked in end-of-relationship struggles. Family law Judges and Commissioners are extremely dedicated and highly trained professionals who make great personal sacrifices when they agree to take the bench. It is hard to imagine more challenging work. For significant portions of the population, the only place where people can go to achieve physical and emotional safety or win some economic equality is the local courthouse. Children in particular benefit hugely from the protections that the system aspires to provide. Besides judges, our county courts offer child custody recommending counselors, family law facilitators, probation officers and many others including courtroom staff, often at little or no direct cost to the parties beyond filing fees (which are ever-increasing). The commitment and availability of these workers is an example of how local governments can successfully improve the quality of our private lives.

But the family court legal system has significant organic, practical and fiscal limitations. Many people don't recognize, or forget, that it is the remedy of last resort - if it is considered to be the point of beginning, vast opportunities for self-determination are lost. The court experience can take on a life of its own, and so be self-perpetuating.

First and foremost the system is predicated upon an adversary model for answering disputes. The parties express and argue opposing views or stories about themselves and the other within the framework of complex rules of procedure and evidence that are designed in theory to encourage respect, truth-finding, fairness and uniformity within the process. Most judges do an outstanding job in maintaining civility and dignity during the proceedings. Substantive laws according to statutes and appellate decisions then determine who gets what. But whatever the outcome, it is imposed upon the parties from outside the family itself, and it will not have taken into consideration much beyond legalistic interpretations. It is susceptible to being swayed by inflammatory sound-bytes, not to mention fatigue and burn-out. The outcome is likely to be disappointing and what people say and do within the adversarial process may gouge new wounds or keep the old ones from healing.

Second, because a judicial officer sits as the "trier of fact" he or she is always the most important person in the room (and sometimes a ghost in the parties' homes). A judge's job includes making decisions in favor of the party who has met their burden of proof - that is, the person who has established to the court's satisfaction that one position is more likely to be the truer one (by one percent or more). Judges do the best they can to render unbiased and carefully thought out judgments, but they have conscious and unconscious biases like everyone else. The lack of resources, not to mention the often difficult behavior of the parties (and sometimes their attorneys), constricts any luxury for reflection.

Several important consequences flow from these practical realities. Judicial involvement implicitly presumes that peacemaking alternatives to adversary litigation have failed. Sometimes that is true, but more often all that has really happened is that Party One has said "I want it my way" and Party Two has said "No, I want it my way." These two people alone could not save the marriage or domestic partnership, and it is equally unlikely that they can now agree on how to manage the delicate financial and parenting issues without outside assistance. The fact is that when people are ready to seek outside intervention, the first place they look to is adversarial lawyers or the family court, not noticing they've short-circuited alternative dispute resolution options. One or both hires a divorce attorney (few lawyers describe mediation or collaborative options before undertaking cases, although they are ethically required to do so) or files a proceeding on their own; three weeks later the family's lives are dropped like a ball of snakes into a judge's lap for untangling. Unfortunately, while all judges promote settlement and joint decision-making if it is safe for the litigants and for their children, they are not hired on and paid to be mediators. They are decision-makers who are trained to call balls and strikes, and they don't have the time to hold the hands of people who might benefit from a little guidance.

Third, there are policy and fiscal limitations to what county governments, and hence judges, can do. In terms of policy restrictions, few local county courts have developed or make available any kind of mediation programs beyond custody related matters. The budgetary crisis is begining to change that, out of fiscal necessity. Custody mediations generally do not allow for at most more than an hour of a custody counselor's time to read the file, assess the parties, and then report to the court. Possibly those individuals have had 30 minutes to interact with the parties to learn the competing and complicated concerns. No matter how dedicated, smart, and professional they are this is likewise a challenging task within the allotted time-frame.

Settlement and mediation programs are non-existent in some middle sized and most smaller counties. When I originally wrote this Blog, the Indio Branch of the Riverside County Superior Court had no non-custody family law mediation program in place. This was odd since Riverside is possibly the largest county in California. Because of financial restrictions, throughout southern California when mediation programs exist they often rely entirely upon the generosity of retired bench officers or volunteer attorneys. One resulting irony is that the family court dockets become overcrowded with many cases that are otherwise amenable to settlement, and this further taxes the system and makes less money available for mediation or other needs. Similarly, there is no option for high-conflict families other than to force them to litigate at great cost to all, especially since they tend to re-litigate endlessly, taking up a disproportionate share of court resources and pressuring the time available for other families. With the leadership of Judge L. Jackson Lucky in downtown Riverside, this has shifted a bit since I first wrote this. Following Judge Lucky's lead, and with the support of Indio Superior Judge Dale Wells, we now have a simple mediation program in place in Riverside and Indio. Much more is needed.

The failure of cooperation between the judiciary and non-public lawyers has several causes that are each difficult to overcome. First, court administrative decision-makers seem distrustful of sharing these tasks outside the system. Second, when it is solicited lawyers are not reimbursed for their contributions of time. Their involvement is an unappreciated public service without economic benefit to them, and indeed such service takes time away from their existing caseloads (read: anxious paying litigation clients). Third, while we sincerely proclaim that settlement is in every way preferable, and acknowledge that it de-congests clogged courtrooms and frees up public resources, some governmental officials still seem to consider it as if it were a luxury item. This tracks the views of larger society, which hasn't recognized that mediation is a core asset rather than a stop gap, and this is true of both public and private mediation. Consequently, private mediators are not asked to mediate for the public and receive no systemic support. Lacking support or encouragement many potential mediators don't take developing mediation skills seriously, especially if they cannot also develop a private mediation practice that justifies the investment of time and money that accumulating mediation skills quite assuredly requires.

Despite all the obvious benefits to individuals, families, fiscal conservatives and society in general when mediation works (written about extensively in this site but also at Desert Family Mediation Services), judicial officers and court administrators continue to resist it. This is understandable given that mediation is a latecomer to the litigation party, but otherwise it makes no sense. Yet there are many reasons why mediation in any form is usually a superior alternative to government sponsored outcomes.

Today it is only the sophisticated legal consumers that recognize its potential value for themselves, largely because they are dissatisfied with their earlier litigation experiences or hope to avoid the experiences of others that they've observed. Some of the very ones who have the money to fund battles between lawyers, in and out of court, see that mediation is a much cheaper alternative or at least come to the recognition after some great expense. This is a secret that most litigating family lawyers know well - once the adversarial experience grinds people down sufficiently, they are ready to begin to think about settlement. That is a good time to bring in the mediators.

By the way, one of the powers of the Internet includes making limited demographic information accessible to web owners regarding their visitors. While I cannot discern who visits my Blogs (and we don't use cookies or any individual tracking techniques), Google provides metrics that do tell me what word combinations people are 'goggling' and something about their gender, age, if they have children and their years of education. People seeking information about mediation are uniformly over 45, more than half are male, and most have attended graduate school.

I need to be clear that I am not blaming the courts or the lawyers as being in some form of conspiracy to increase the costs of divorce. Government always reflects the values of the constituency, sooner or later. Dissolution lawyers don't so much market a product as they provide a service to consumers who already have an expectation of what their needs are, even if it is skewed in the sense that it comes from a place of emotional reactivity and fear over losing money, property and kids. Until people who require the services of lawyers become aware of non-court alternatives, they will continue to expect the norm.

We seem to be stuck, but the good news is there is movement occurring. My fantasies include the one about how simply having this chat will help in a small way to shift our thinking. I hope to take mediation directly to those whose lives are the essence of what drives the family court system. My aim is to bypass outdated and bureaucratic thinking, and to popularize mediation as a preferred method of dispute resolution that potential litigants know to investigate at the outset to test whether it might be appropriate for their situation. One way to do this is to give you an experienced lawyer's inside view of the shortcomings of our legal system as it intersects with relationship transitions. Another is to remind lawyers that standards of practice and ethics require them to describe the possible benefits of mediation before they are retained, because some do not. And another is to encourage government decision-makers to increasingly embrace mediation within the court related processes.

These changes are coming anyway, and for very good reasons.

drive your divorce yourself
Drive Your Own Divorce!

Thurman W. Arnold III, CFLS
HAPPY NEW YEAR!

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December 18, 2010
  Ontario, Canada Trial Court Finds PARENTAL ALIENATION - An Example of How Not To Behave!
Posted By Thurman Arnold

A Cautionary Tale:

How Not to Run Your Separation and Custody Battle

Los Angeles Family Law Mediator Forrest S. Mosten recently shared this newsworthy trial court opinion with me, and it is making the rounds among listservs for Collaborative Lawyers who have an abiding desire to help others avoid exactly the sorts of behavior that certain high-conflict families generate, as are illustrated here to such a degree that a father has lost all contact with his daughter. I find that Christmas for some folks becomes a battling holiday, and I urge you to undertake a different path beginning today for your sake and those who depend upon you. This is a wonderful example of what to avoid at all costs.

On November 29, 2010, Judge J.W. Quinn issued a thoughtful and stinging rebuke of two parents behaving abominably in their dissolution and custody battle. This unfortunate family's case is entitled McQuat vs. McQuat. The court's ruling begins:

"Paging Dr. Freud. Paging Dr. Freud.

* * * This is yet another case that reveals the ineffectiveness of Family Court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention. Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment....

... [I]t is not surprising that Larry and Catherine are having problems, serious problems, regarding the custody of, and access to, their children. The source of the difficulties is hatred: a hardened, harmful, high-octane hatred. Larry and Catherine hate each other, as do Larry and Sam. This hatred has raged unabated since the date of separation. Consequently, the likelihood of an amicable resolution is laughable (hatred devours reason); and, a satisfactory legal solution is impossible (hatred has no legal remedy)."

The decision details allegations of multiple death threats between the parents, between the parents' relatives and the other parent, between the new spouses and the other parent, changed locks on the residence, assault by Van, interferences with visitation, interrogation of children about the other parent, threats of jail, and a stream of abusive texts and phone calls, arguments that the children should be separated and divided between the parents, alienating behaviors even after court mandated counseling sessions, and more.

The court found the mother's behavior to be the more problematic of the two - "Had [mother] fulfilled her dual parental duty to foster and encourage access between [dad] and [the child] and not to speak disparagingly of him in the presence of [the child], I am confident that this case would have unfolded differently." By the time of the trial the 13 year old daughter was so alienated from her father that the Court felt helpless to devise any remedy to repair the damage. It made the following findings:

"(1) The alienation was not present before Larry and Catherine separated; (2) This is not a case where Taylor [13 year old daughter] has weighed the good and bad attributes of her father and found him, on balance, to be parentally deficient: she sees Larry as all bad - there is no ambivalence to her feelings; she is not disguising her true feelings; (3) Larry, although well-intentioned, is an inept father, who has not taken steps to identify, and fix, his shortcomings as a parent; nevertheless, the utter rejection of him by Taylor is disproportionate, unfair and unwarranted; (4) . . . Taylor has aligned herself with Catherine whose hate for Larry is palpable; the battle lines are clearly drawn and Taylor knows the side that she wants to be on; (5) I am unable to think of anything that Larry can do to quickly repair the damage in his relationship with Taylor; and, if I could, I have doubts that he has the skill-sets to pull it off; (6) I did not hear evidence of a single instance of Taylor, since separation, expressing love or affection for Larry; (7) Although children are often required by their parents to do things that they do not want to do, obligating Taylor to visit her father or to engage in counseling is considerably more complicated than insisting that she do her homework or go to the dentist; (8) The history of the parties is such that there is no reason to think they would meaningfully take part in, or benefit from, therapy or counseling; (9) While it is Catherine's duty to encourage and support a relationship between Taylor and Larry, that duty has been breached too severely to be remedied by the court; (10) It is not realistic to expect that the parties have the incentive and finances to engage in the extensive therapy and counseling that are needed; (11) Depriving Catherine of custody (sometimes an appropriate way of dealing with an alienating parent) would not benefit Taylor at this point.

It is my view, sadly, that the alienation here is so severe that it is in the best interests of Taylor not to order or enforce access by Larry. If access happens, fine.

Without professional help, Larry is incapable of addressing the breakdown in his relationship with Taylor. Although, as I have said, well-intentioned, he is an ineffective parent and, without counseling and other assistance, he will remain ineffective. While Catherine, aided and abetted by Sam, initiated the alienation of father and daughter, Larry has not improved the situation. But, I emphasize the fundamental fact that Catherine's conduct is the sine qua non of the alienation.

Absent counseling, matters will worsen, not improve. No practical purpose would be served if the court were to decree a schedule of counseling for the parties and the children. The hate and psychological damage that now prevail would require years of comprehensive counseling to undo. The legal system does not have the resources to monitor a schedule of counseling (nor should it do so). The function of Family Court is not to change people, but to dispose of their disputes at a given point in time. I preside over a court, not a church.

Larry might consider some common-sense steps, such as cards, letters or gifts, to show that he is receptive to a relationship with Taylor should she have a change of heart. However, he would be wise to have those steps independently vetted by a responsible person (preferably, a professional in the child-psychology or family-counseling field)."



I often write about divorce insanity, and how reactivity and anger when relationships end sometimes disintegrates into a form of mutual trance that is humiliating to the parties and harmful to their children. It takes on a life of its own, and at its worse seems impossible to stop until it collides with the minimal standards that courts and governments impose upon families; even then that collision at best results in a court imposed outcome where much decision-making is stripped from the parents, and of course government cannot follow the parties home once they leave the courthouse. The conflict becomes a matter of public record, visible for all to see including strangers like us.

This case is a strong argument in favor of mediation or collaborative divorce, although the McQuats evidently were not likely candidates for such processes (ironically, they had a settlement agreement that called for mediation and yet both chose to ignore that promise).

I say "evidently" because I wonder whether their journey might have been redirected had they or someone intervened early on - their mediation provision offered that opportunity (although the husband challenged the entire agreement and the Court was first required to decide whether to set it aside before addressing whether mediation was enforceable). Judge Quinn pointedly found that "[t]he alienation was not present before Larry and Catherine separated." I see this is a clear statement that the parties' circumstances by the time of trial was a consequence of the post-separation and litigation experience, and not something that was otherwise inevitable had anyone considered de-escalating early on.

Their case is on the far end of the spectrum of dysfunction. Possibly you will read something here that will help you dial back similar conduct or impulses that the hurt part of you is considering, and to ring a bell for you that might cause you to consider an alternate route before your divorce begins to escalate. Perhaps you know someone in acute divorce crisis, and this cautionary tale will help motivate you to support them by encouraging them to behave differently than what their emotional upset drives them to do. Sadly for the McQuats, it appears their family members only served as boosters for their bad behavior. This family looks to be irretrievably broken, and while it is never too late there is a mountain to climb that was once merely a hill.



Thurman Arnold, CFLS
December 18, 2010

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May 26, 2010
  Announcing the Opening of DESERT FAMILY MEDIATION SERVICES!
Posted By Thurman Arnold

To our honored visitors:

We are excited to give you advance notice that the first family law mediation center in the Coachella Valley is opening its offices in Palm Springs on June 15, 2010. Our hope and expectation is that we will be providing much needed peacemaking and reconciliation services to couples involved in relationship difficulties who live within the inland desert cities' empire, including all of Riverside and San Bernardino counties. We invite diversity in our clientèle in all sizes, shapes, colors, and combinations!

Desert Family Mediation Services is the joint passion of the Honorable Gretchen W. Taylor, Retired Family Court Judge and Thurman W. Arnold, Attorney.

Former Judge Taylor was admitted to the Bar in California in 1979. She has practiced family law almost exclusively in the 31 years since. She is a Certified Family Law Specialist. Her practice was devoted to divorce and families in Beverly Hills until she became a Commissioner of the Indio Superior Court in Indio, California, in 1997. While in Indio she was one of two family court judges for the eastern Riverside County communities (excluding Blythe).

In 2003 Judge Taylor's assignment changed to the downtown Los Angeles Superior Court. She served as a family court commissioner in Los Angeles until 2009, when she retired and so left the bench. She has developed a particular expertise with high-conflict, high-asset dissolutions, domestic partnership breakups, but she cares deeply about all manner of relationship difficulties, small and large.

Since retiring in 2009 she has served privately as a family court referee, special master, private judge, and mediator for families residing in Los Angeles County, Orange County, Riverside County, and neighboring cities. She resides primarily in the Coachella Valley.



Thurman W. Arnold is a Palm Springs' native and was admitted to the practice of law in 1982. He has been practicing law from his offices in Palm Springs since that time, and exclusively handles family law and related matters. He recently passed the California State Bar Certification Examination and so is eligible to become a Certified Family Law Specialist this year. He frequently serves as a Judge Pro Tem of the Riverside County Superior Court in Indio.

Retired Judge Taylor and Attorney Arnold are committed to serving couples - and their children - and to managing the resolution of your disputes sensibly and with dignity. Mediation is a far better alternative to adversary court dispute litigation, and we as seasoned professionals know this fact first hand.

Judge Taylor is not a member of the Law Firm of Thurman W. Arnold - Desert Family Mediation Services is an enterprise completely separate from Mr. Arnold's law practice. Indeed, former Judge Taylor is not available to represent individual parties in dissolution cases or in any other family law proceedings.

We are overjoyed to share our expertise in helping couples resolve their breakups neutrally, economically and safely. In addition to mediations, we will be available to conduct private settlement conferences and to assist with parenting plans and parenting coordination. Please watch for us!

We and other passionate mediators are available for free initial consults.

The website for DFMS launches on June 15, 2010, If you find the information contained in this website useful, you might share our excitement concerning what is about to become available to all those who find it!

Our heartfelt desire is to share the wisdom accumulated over many years in order to spare you and your family from unnecessary suffering.

Desert Family Mediation Services offers a peacemaking alternative to family court.

Thurman W. Arnold III
Hon. Gretchen W. Taylor (Retired)

May 26, 2010

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May 21, 2010
  What is HEAD OF HOUSEHOLD status for IRS purposes?
Posted By Thurman Arnold

Q. What is the effect of claiming "head of household" status in a tax return?


A. Head of household does not apply to joint tax returns. If you are divorced, or if you are married filing separately, you may be entitled to claim HH status. This is also often referred to as HH/MLA (married living apart). There are important tax advantages to filing HH/MLA. It is not an exemption, but a filing status just like filing "married," "married filing separately," and "single."

To qualify you must be separated from your spouse during the last 6 months of the calendar year and have at least one child living with you for more than 50% of the time. You may well pay less taxes to the IRS if you can claim it.

There is an extremely important piece of knowledge here that many attorneys and most family law judges seem to forget or ignore: In situations where each parent has exactly 50% custody of the children, neither can file HH/MLA. 50-50 custody is a common shorthand way to characterize true joint physical custody arrangements. But to be eligible for this filing status, the custody cannot be exactly the same for each parent; if you presently share custody per a equal custody order, you would do well to modify the order (and even alter slightly your actual custodial timeshare). All you need do to avoid this problem is give one parent 50.1% custody and the other 49.9%, particularly in any orders that are drafted and filed with the Court. Squabbling over these percentages is a waste of time and money - it will not hurt you to be the 49.9% parent.

If there is more than one child, then parents can modify the parenting schedule so that each can claim one in order to maximize each party's tax savings and the support dollars.

Your filing status is important to your spousal and child support rights and obligations. Family Code § 4059(a) requires that child support orders be based upon accurate tax filing assumptions, and the support programs (the Dissomaster, Xspouse) similarly require a status to be selected before a support number can be rendered.

For a payor spouse, the child support will be less if the filing status is Single than it will be if the status is HH/MLA, but if you truly file Single the costs paid to the government will likely exceed any perceived savings on child support. This is because a person has more net disposable income after taxes when they are HH/MLA or even MFS than when they are Single. In the same way, the child support may be less for a parent claiming HH/MLA depending upon their income but if they have little income the HH/MLA may have little or relatively little economic value to them.

This is a good example of how Mediation and/or Collaborative Divorce can be used to benefit separating spouses. Money can be saved for both parties where they structure their dissolution to maximize tax benefits and minimize tax consequences to each - which nobody typically considers or does in the midst of a hostile, contested divorce. The IRS benefits when couples are at war! In a mediated or collaborative dissolution, neutral tax experts can be consulted and used to design agreements that save the higher earning parent money while increasing the cash available to the supported spouse and for children. Would you not rather give money to your kids than to Uncle Sam?

Thurman W. Arnold III


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