INCURRING DEBT MANDATORY WITH BREACH OF FIDUCIARY DUTY

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An important California family law decision was handed down earlier this year dealing with breach of fiduciary duty in a dissolution.  In the case, a California appellate court has ruled that the trial court erred by refusing to award attorney’s fees to husband under Family Code §1101(g) for wife’s violation of her fiduciary duty, because such an award is mandatory under that statute.

In re Marriage of Fossum, 192 Cal.App.4th 336 (2011) the facts indicate wife had incurred a $24,000 credit card debt prior to separation without the knowledge or consent of husband.  This was a no-no because the law clearly states that in California dissolution actions, debts incurred without the consent of the other spouse may be assigned to the party incurring the debt.

DEADBEAT DADS SHOULD NOT BE JAILED WITHOUT LEGAL REPRESENTATION

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Imagine you’re a dad and you have a child to support, but you have no job, and you can’t pay your bills, let alone, your child support payments.  Unlike other debt collectors, states like South Carolina, New Hampshire, Florida, Maine and Ohio will come after you, big time, and put you in jail, until you can figure out a way to support your offspring.  According to The New York Times, it is just this issue that faces the United States Supreme Court.

It that case, a South Carolina father has been jailed repeatedly for not making child supportpayments of $50 per month.  Michael Turner, the father, claims he has no money, and that poor people who are facing time behind bars for missing payments have a constitutional right to an attorney at taxpayer expense.  And he’s right.

The five states that practice locking up delinquent parents without providing them with a lawyer jail hundreds of people every year – an act that penalizes both parent and child.  It separates families, and alienates children.  And it affects the poor and the sick, because they are generally the ones who cannot afford a lawyer, and they are the ones who most of the time are not even aware of their legal rights until it’s too late.

Of course there are proponents of the law who believe it’s okay to lock up deadbeat dads, rich or poor.  They site the heavy costs that come with providing lawyers for the poor.  Proponents of the laws also say that lawyers would clog up an already cumbersome legal process and that deadbeats already control their own destinies.  But do they really?

Does a father who can’t hold down a job or who is developmentally disabled really control his own destiny when it comes to supporting himself or his offspring?  Do we still put him in prison?  And what are the costs to society then?

ALL SPOUSES SUBJECT TO FIDUCIARY DUTIES

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When dealing with property division in California family law cases, it is important to remember that all transactions between spouses are subject to the general rules that govern fiduciary relationships.  As cited in Irmo Haines (1995) 33 Cal.App.4th 277, a “duty of the highest good faith and fair dealings” applies to each party to the transaction and neither shall take any unfair advantage of the other. FC § 721(b).

Thus, when an interspousal transaction unfairly advantages one spouse, a presumption arises that the transaction was the result of undue influence.  Undue influence exists in “the use of confidence or authority to obtain an unfair advantage.”

JAMIE MCCOURT GOES FOR HOMERUN WITH DODGERS DIVORCE

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Interesting piece came out yesterday in the Los Angeles Times regarding the never-ending saga of the Boston carpetbaggers turned Major League baseball owners, Frank and Jamie McCourt.  They’re the ones who leveraged the Los Angeles Dodgers away from local ownership and fans – with the help of some big friends in high places – and used all the profits to buy personal houses rather than field a competitive team that fans might care about.

The trial has already taken place, and while we await, with baited-breath, Los Angeles Superior Court Judge Scott Gordon’s decision on who does or does not maintain an ownership interest in the Dodgers, a mediator has offered both sides a settlement solution.  Since Frank jumped on the mediator’s proposal, and Jamie did not, it would appear that the mediator’s proposal would have landed Frank the Dodgers, while Jamie got the million dollar homes in Beverly Hills, Malibu, Boston, and wherever.

It was probably a pretty reasonable settlement proposal, offered by a retired judge, but if one were on the losing end of the Dodger ownership issue, as Jamie apparently was, then a check swing would be the only logical solution.  It would seem that in rejecting said proposal, Jamie’s lawyers must have felt that the law and facts were in her favor, and that Judge Gordon will do what they consider the right thing, and order that both Jamie and Frank are owners of the Dodgers.

This could be the biggest blessing for anyone interested in Los Angeles Dodgers’ baseball, because joint ownership would probably require the parties to sell, since neither one could afford to buy the other out, which could mean a new ownership group coming in that really cares about the LA community, and demands a winner be placed on the field.  Please, save us all Judge Gordon.

E MAILS CAN KILL YOUR FAMILY LAW CASE

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There are few ways that can kill a family law case quicker than hanging one’s emotions on a series of badly intentioned e mails.  What happens often is a client will come into the office with a certain position regarding their case.  The family law attorney will take what the client says at face value, and prepare their case strategy as such.  The client will deny that any improper communications have been made, and proffer that there is no proof to the contrary.

Often the opposite will be discovered during the discovery stage, where the other side will produce a slew of e mails showing that what the client says, and what the facts are, are in direct conflict with each other.  Sometimes, the family law attorney never gets a chance to discover the problem before going to court.

Most commonly, this happens when the other side files a request for a TRO (Temporary Restraining Order), where the other party will attach e mails to support their allegations of harassment or threats of domestic violence.  This happens all the time.

E mails constitute documentary evidence and are admissible in court.  They tend to speak for themselves, but may also be attacked for other reasons.  So it is important to remember that every time you have a bad day, and your (former) partner pushes your proverbial buttons, that long established mental-emotional reaction pattern that has for so long been a part of your life and your relationship, could come back and haunt you in the worst possible way, when the very life of your family is at stake.

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