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Entries in divorce (14)

Wednesday
Jul132016

Terminated: A Marriage’s End Should Not Lead to Employment’s End

Divorce Attorney
Discrimination Defense Attorney

by Vanessa Soto Nellis
& Nicole Kamm

 

Last month, the New Jersey Supreme Court ruled in Robert Smith v. Millville Rescue Squad (MRS) that an employer cannot terminate an employee for separating or divorcing – the processes of which apparently falls under the protected category of marital status under New Jersey’s Law Against Discrimination (LAD).

 

Operations director and paramedic Robert Smith and his wife both worked for MRS and decided to separate when he began an affair with a squad volunteer. When Smith asked about continued employment, the squad’s CEO, John Redden, said it “All depends on how it shakes down.”

Redden also allegedly told Smith at a later meeting that the CEO would not take the case to the squad’s board if there had been the slightest chance of Smith and his wife reconciling; and that Smith “had eight months to make things right” with his wife. He also warned Smith the divorce would be “ugly”.

The board decided to terminate Smith based on corporate restructuring, poor work performance, and failure to improve work performance.

Smith sued MRS, alleging wrongful discrimination and wrongful discharge under New Jersey’s LAD. Smith testified that he was never subject to formal discipline, received annual raises, and was promoted twice.

The trial court ruled Smith failed to show he was discriminated against. An appellate court reversed, and the New Jersey Supreme Court unanimously upheld the appellate decision, stating the LAD prohibits employers from discriminating against job candidates and employees because they are single, married or “transitioning from one state to another”. The court considered the CEO’s comments to be biased against people seeking divorce.

Marital status is one of the extensive list of protected categories under California’s Fair Employment and Housing Act. Under Government Code §12940(a), employers are prohibited from refusing to hire, employ, or train; discriminate in compensation, employment conditions or privileges; or terminate an individual because that person is married, single, separated or divorced.

These protections for divorcing employees may raise some issues for business owners and management. Consider the following: 

  • Spouses of partners and employees with complex compensation packages may have a financial interest relating to spousal and child support, which means a company may have to undergo a valuation process.

  • A valuation could mean a disruption in operations as employees gather and provide information for forensic accountants who may need to review the books, inventory, etc.

  • A business’s human resources department may be subpoenaed to provide information. 

So unless a business qualifies for a rather narrow ministerial exception, an employer can’t fire an employee for divorcing. 

An Ounce of Prevention: Protecting Business Interests

From a family law perspective though, there are some things a business owner may do to minimize damage from an employee or business partner’s divorce:  

  • Business partners and highly compensated executives should draw up prenuptial or postnuptial agreements, and have a buy-sell agreement in place.

  • Business owners should compensate themselves and their partners with actual salaries, rather than stock or other interests in the business. An ex-spouse may in certain cases, wind up with ownership interests.

  • Partners and major shareholders going through a divorce should consider hiring a joint forensics accountant to represent both parties, to hopefully reduce disruptions to business operations.

  • Get a valuation of the business at the date of marriage.

  • Management should limit exposure of private records like confidentiality agreements and redactions to agreements. Trade secrets, employee files, and private financial records for the business and individuals may be at stake here. An attorney can provide counsel as to what records need to be provided, to whom, and how to keep them all out of the public record.

  • Client information may need to be protected, particularly under the Health Insurance Portability and Accountability Act.  

Employers should also be aware of the various protected categories and take steps not to discriminate, harass or retaliate against an employee on such bases.

 

Vanessa Soto Nellis and Nicole Kamm are Shareholders at our firm.  

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Oct262015

Marriage of Davis: A Shared Roof = Shared (Community) Property

Encino Tarzana Divorce LawyerCertified Family Law Specialist

 

by Vanessa Soto Nellis

818.907.3274

 

 

 

Community Property DivisionDuring the recession, we occasionally heard of couples who were divorcing, but still cohabitating. For economic reasons, neither spouse moved out of the house – they continued to share or divide financial responsibilities as they did before agreeing to end their marriage. Maybe they each agreed to do their own laundry, cook their own meals or vacation without each other.

Sometimes the situation occurs for non-economic reasons, one spouse needing time to find another place to live, for example, or parents living together for their children's sake.

This past summer, the Supreme Court of California issued an opinion In re Marriage of Davis that showed the decision for splitting couples to share an address may not always be wise. The opinion came down to whether or not the parties lived "separate and apart", though they shared the same roof.

Destructive Times Between Deciding to Divorce and Actually Leaving

On the surface it seemed the Davises did live separately:

Sheryl Jones Davis and Keith Xavier Davis discontinued sexual relations in 1999; stopped sharing a bedroom in either 2001 or 2004 (the parties disagreed here), took separate vehicles to their children's activities, and each did his or her own laundry.

On the other hand, for the sake of the children, they continued to celebrate birthdays and holidays together. Sometimes they vacationed separately, and other times they vacationed as a family. They maintained a joint bank account for household expenses, though each opened or reactivated a personal account as well. 

When Sheryl petitioned for divorce in December 2008, she listed the date of separation as June 1, 2006 – that marked the day Sheryl told her husband she was done with the marriage, presented him with a ledger of household expenses, removed him from her American Express card and returned his credit account cards to him, and took a job the following month. She told the court she considered Keith to be merely a roommate from that point forward.

Divorce LitigationIn response to the divorce petition, Keith Davis listed the date of separation as January 2, 2009. Sheryl did not move out until July 2011, and Keith filed an amended response changing the date of separation to July 1, 2011.

Both the lower and appellate courts found June 1, 2006 to be the date of separation. The Supreme Court disagreed.

Why Does Date of Separation Matter?

California is a community property state. Family Code § 771(a) regarding community property provides:

"The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse." 

Date of separation, therefore, is important in determining whether or not a particular asset should be classified as community property, or separate property.

In the Davis' case – Keith argued that spouses who share a home cannot be "living separate and apart"; while Sheryl contended that the totality of circumstances, i.e. arriving at the kids' activities in separate cars, individual bank accounts, etc. should determine whether or not spouses are separated.

The Supreme Court considered previous cases and legislation dating back to the 19th century.  In particular, the Court referred to Chapter 161 of the Statutes of California, "An Act to protect the rights of married women in certain cases."   

The 1870 Act did not contain a definition of the phrase ―"living separate and apart" used in section 2. (Stats. 1870, ch. 161, § 2, p. 226.) However, the Legislature‘s understanding that the phrase connoted a threshold requirement of separate residences may be discerned from an additional section of the statute.

The Court also turned to Black's Law Dictionary, which previously defined separation as "residing in different places and having no intention of resuming marital relations," and more recently, as "living away from each other, along with at least one spouse's intent to dissolve the marriage." 

Focused solely on the interpretation of California's community property statute, the Supreme Court reversed the judgment of the Court of Appeal.

Moving Out is Merely the First Step 

Though living in separate residences is a critical part of establishing a date of separation, divorcing couples who need to cohabitate for a while can have an attorney draw up a written agreement to stipulate the official separation date.

On the other hand, couples who live apart immediately may still not be legally separated – moving out is merely one step in establishing a separation date.  Should the parties continue to act married in other ways, establishing separate domiciles may not help in the community vs. separate property issue.

Vanessa Soto Nellis is a Certified Family Law Specialist (State Bar of California Board of Legal Specialization) and a Shareholder at our firm. Contact her via email: vnellis@lewitthackman.com or by phone: 818-907-3274.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
May272015

Family Law: Special Considerations When Representing Professional Athletes

Celebrity Divorce - Athletes

 by Anthony D. Storm

 

While we await news of Tom Brady's Deflate-Gate appeal, the National Basketball Association playoffs coming up fast, and the latest hints that Lamar Odom and Khloe Kardashian may not follow through with their divorce after all, it is apropos to address issues that are germane to the family law representation of a professional athlete. 

Like most professions, a professional athlete is compensated pursuant to his or her employment contract.  However, while that employment contract may be based on skills obtained before or during the marriage, may be negotiated during marriage, and provide a predictable sum of earnings, those earnings are often based on performance after separation. 

So, the question arises, do the payments belong to the community or are they separate property?

Furthermore, athletes may receive additional income from sponsorships and endorsements above what is set forth in their employment contract.  Even though there is no celebrity goodwill in California, this additional income may be income available for support. 

Additionally, depending on the athlete’s income and where the parties live, he or she may be a high-earner.  What may be considered a high-earner in Bakersfield may not be a high-earner in Beverly Hills. 

Finally, custody can be more complicated---how do you work visitation when the athlete is travelling for games? Who pays for the travel?  Does the child travel alone, with a tutor, and where does he or she stay while away? 

There are no simple answers, but awareness of these issues is critical and provides an opportunity for good lawyering. 

Anthony D. Storm is a Divorce Lawyer in our Family Law Practice Group. Contact him via email: astorm@lewitthackman.com, or by phone: 818.907.3248.

 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Jan302015

Hitting the Wall: Facebook and Divorce

Divorce LawyerChild Custody and Support Attorney

by Vanessa Soto Nellis
818.907.3274

 

A new survey sponsored by a group in the UK links Facebook to 33 percent of all divorces, up from a 2009 study that cites the social media site in 20 percent of divorce filings.

Facebook and DivorceFacebook can serve as a conduit for people reuniting with old flames or meeting new partners. Spouses get concerned when they realize their significant others are spending more time online, getting texts in the middle of the night, or are suddenly very possessive of their phones, tablets and computers.

But whether or not Facebook is actually a cause of divorce remains to be seen – it could be that people who are unhappy in their relationships log in to social media sites more often as a means of escape, or to seek advice or emotional support.

Social Media & Grounds For Divorce

Since California is a no fault divorce state, spending more time online or engaging in virtual or actual affairs is not necessarily relevant in the eyes of a Family Law Court.

What many divorce lawyers can use however, is evidence from Facebook, Twitter and other social media platforms that show a soon-to-be ex-spouse is not fully disclosing financial assets, which could affect the equitable distribution of property or financial liability.

Social media posts can also show when someone is engaging in behavior that could affect custody proceedings. Photos can help prove a case for bad parenting, or instability at home.  They can also show when an individual is being dishonest about a need to change visitation schedules, i.e. if a parent claims a need to work late when s/he is really out at a concert, or checking in to a club or restaurant.

"Unfriending" or blocking an ex doesn't necessarily give a Facebook user more privacy, as married couples tend to have many mutual friends online and offline. In most breakups, some of those friends will choose sides when a couple divorces – and are perfectly willing to provide information regarding the activities and posts to one party or the other.

Additionally, they may put photos and relate activities on their own walls and feeds, unwittingly providing a wealth of information for the opposing party and their attorneys.

These are examples of the information that can be found online by just about anyone. But what about data that seems to be hidden, or deleted?

Digital Discovery through Cyber Forensics

Divorce Cyber Forensics

Every now and then a spouse makes a more serious attempt to hide information critical to divorce proceedings and settlements. In that case, divorce attorneys may hire a digital forensics expert.

Through forensics, digital discovery can reveal time stamps of activity and: 

  • Call logs and SIM card data

  • Text messages and emails

  • Calendar entries

  • Photos and videos

  • Visits to pornography sites

  • Usernames and passwords

  • Financial transfers, purchases and other monetary transactions

  • Encrypted,  damaged or temporary file information

Remember that even if someone tries to destroy their electronic devices, some data can still be retrieved through cyber forensics. Moreover, an attempt to destroy evidence can be used to bolster the opposing party's case.

Vanessa Soto Nellis is a Certified Specialist in Family Law, designated by the State Bar of California Board of Legal Specialization. Contact her via email: vnellis@lewitthackman.com or by phone: 818.907.3274. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Jan172014

"Divorce Corp.": What's Missing From This Picture?

Encino Tarzana Divorce LawyerFamily Law and Mediation Attorney Los Angeles

 

 

by Vanessa Soto Nellis
818.907.3274

San Fernando Valley Custody Lawyer Los Angeles

 

Let's face the facts: For most people, divorce is ugly. But let's not make it uglier than it has to be.

Case in point, Divorce Corp., a film currently in theaters, whose creators are calling it a documentary, depicts the worst possible case scenarios of family law. One of the movie's trailers begins with a voiceover that states, "Death is easier than divorce." That sounds more like melodrama than a documentary.

Another trailer talks about false claims of domestic violence and other crimes, so false accusers can gain financially, or have their spouse thrown out of the house.

The problem with this film is that it only depicts the negative aspects of family law court. There was not one example of a family law litigant who was helped by the family law system. Such examples exist. I recently attended a volunteer appreciation lunch hosted by the Van Nuys Judicial Officers, which recognized the many programs implemented by volunteer attorneys and the countless hours they spend helping people through the legal system.

A Variety reviewer, Justin Chang, says Divorce Corp. is:

…a vigorous but clumsily argued expose of the corrupt family-court practices that have turned one of life’s more painful experiences into a $50 billion-a-year industry. Chock-full of slick graphics, smart talking heads, one-sided emotional appeals and flailing accusations of judicial misconduct…

Yes, divorce is expensive, and maybe it is a $50 billion industry when you consider that half of all marriages in the nation end up in divorce.

This film however, fails to take into account certain facts, and that many couples are able to settle their divorce through mediation. Or that most spouses don't resort to framing their partners for crimes they didn't commit. Yes, there are hurt feelings and some people are vengeful. Not many people wind up in jail or lose their children, just because their marriage went awry.

The one lesson we all can take from this film is this:

Stay reasonable and be willing to compromise. If you can stay reasonable, you can participate in divorce mediation proceedings, eliminating the need to fight over custody or money.

 

Vanessa Soto Nellis is a Shareholder in our Family Law Practice Group. Contact her via email: vnellis@lewitthackman.com. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
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