California Divorce and Family Law

Married Browsers Beware: Top Divorce Lawyers Note Soaring Use of Internet and Spyware Evidence

An overwhelming 79% of the nation's top divorce attorneys reported an increase in the frequency of Internet browser histories being used as evidence in divorce cases during the past five years, according to a recent survey of American Academy of Matrimonial Lawyers (AAML) members.  In addition, 44% of the respondents also cited a noticeable increase in evidence taken from Spyware programs.

"Many spouses will use the Internet in order to act anonymously, but in many ways it's the most public thing someone can do," said James Hennenhoefer, president of the AAML.  "Internet activity can provide valuable glimpses into the kinds of hidden activities that a husband or wife might be trying to conceal and Spyware programs can help to make this kind of monitoring extremely easy to conduct."

While 79% of AAML members who responded said Internet browser histories were a main source of information in divorce cases throughout the past five years, none of the respondents reported a decline in this information being used.  Additionally, 21% saw no change in how often a spouse used these records for evidence during this time period.

Internet tracking through software was also noted as an increasingly popular means of gathering evidence.  In all, 44% of AAML attorneys said that Spyware was used more often than not in divorces over the last five years. Only 2% of AAML members noticed it had been used less frequently than in previous years.

More at The Earth Times.

Divorce, pet style - ‘We Can’t Stay Together for the Dogs’

With Florida having one of the nation’s highest divorce rates, it’s not surprising that pets are part of custody battles all over the place.

Who gets the dog? How do you decide, and what issues should you take into consideration?

A lot of us have known friends going through this situation and sometimes the result has been that the pet loses its home. And that’s not good.

Luckily, if you’re going through that problem now (my heart goes out to you - it’s rotten for everyone), there’s some good advice by someone who’s been there, author Jennifer Keene, writing in “We Can’t Stay Together for the Dogs.”

Just out by TFH books ($22.95), which only publishes books about animals, it’s a well-researched and written book with info on custody issues/arrangements and how to live single again with a dog.

Keene is a Certified Pet Dog Trainer and owns Pup-A-Razzi, a training business in Beaverton, OR. She lives with two dogs and has visitation rights for a third.

“As you decide who your dog will live with, level of commitment to the dog (and his special needs) must factor in significantly,” says Keene in her book.

Think about safe handling, commitment to training (would one of you do that, the other one isn’t interested?) and patience, among other things.

Keene talks about the reaction from family and friends and how to handle it. I don’t think she’s left much out in this book.

It would be a great gift for someone in this touchy situation. And there is good advice for those who think they need to stay together for the dogs. Don’t do that — nobody wins that way — but read this book as you go down that path.

From the Palm Beach Post.

DEAR ABBY: Cheated-on wife’s divorce ring deserved, even if meaning fuzzy

LITTLE ROCK — DEAR ABBY: I am a 45-year old woman with two daughters, ages 20 and 23. I married my high school sweetheart, “Cooper.” I had heard rumors that Cooper had strayed from time to time, but had no evidence to back it up, and, of course, he denied it.

I went by my husband’s office one day to surprise him, and his new secretary informed me that Cooper had just taken his wife to lunch at a local bistro! I went right over there and found them whispering, kissing and feeding each other. I did not make a scene. When Cooper arrived home that evening, I confronted him. He tried to deny it. I called him a liar and he slapped me! (A first.) He moved out that night, and I filed for divorce.

I pawned my wedding band and engagement ring. The clerk asked if I was going to buy a divorce ring. I had never heard of one. I searched online, found a nice one, ordered it and wear it proudly.

Cooper and his parents are livid! They say I am poking fun at him and accuse me of “promoting divorce.” My friends and oldest daughter think it’s cool. Some of my divorced friends have ordered rings, too. The ring is different in design, beautiful, makes me feel good and shows my independence. Should I feel guilty for wearing an identity ring like this?

- Divorcing and Loving it North Carolina

DEAR DIVORCING AND LOVING IT: No, you should not. The next time Cooper and his parents accuse you of “promoting divorce,” remind them that it was Cooper who promoted divorce by openly cheating on you. If the ring brings you pleasure - and comfort - then enjoy it.

However, please be aware that many people will not understand its significance - and if you wear it on the third finger of your left hand, they may think you are still married and unavailable.

Read it all at Arkansas Online.

Ready for a Divorce? Your House Isn't

The Housing Slump Is a Stumbling Block in More and More Divorces

David and Tipheny DelPrado divorced in 2006. But the legal battle between the two didn't begin to wind down until this month, and the housing slump may be partly to blame.

Under their 2005 separation agreement, Tipheny DelPrado was supposed to assume the mortgage on the couple's three-bedroom Virginia home. For her, that meant either refinancing the mortgage or selling the house.

Tipheny DelPrado argued that the poor housing market was keeping her from making a sale, but that didn't stop a judge from threatening to put her in jail on a charge of contempt of court, said J.B. Thomas, the lawyer for David DelPrado.

The couple reached an agreement earlier this month that kept Tipheny DelPrado out of jail: If she fails to sell or refinance the home by mid-July, she'll have to give it to her ex-husband.

Tipheny DelPrado did not respond to requests for an interview.

"If she really wanted to sell the house, she would have to do anything it took to sell it," Thomas said. "She might not get the price she wants, she may not even get near the price she wanted had she sold it two or three years ago."

The DelPrados may represent an extreme case, but they're far from the only divorcing couple coping with housing woes. Divorce lawyers and real estate agents say that more and more of their clients have found their divorces snarled by the struggles they face in selling their homes.

Last month, median house prices saw their largest annual decline in nearly a decade, while sales for single-family homes nationwide dropped 2 percent, according to the National Association of Realtors. As shrinking home values, slow home sales and the credit crunch take their toll on American homeowners, splitting couples seeking to sell property might find themselves in a tougher spot than most.

"It's always complicated when people own a house, live in a house together and they need to get a divorce," said Lee Borden, a divorce lawyer in Birmingham, Ala. "It's getting more complicated now because they both know going into … a divorce that it's going to be harder to sell the house, in many cases it's going to sell more slowly."

Read it all at ABC News.

Woman's Divorce-By-YouTube Is 'Scary New Step'

Woman Makes Claims About Intimate Life, Family

A New York woman involved in a divorce battle spilled secrets about her husband, his family and their intimate life in a "scary, new step" in user generated content, attorneys said.

Tricia Walsh-Smith can be watched on YouTube lashing out at her husband, Broadway executive Philip Smith, in a teary and furious clip that has been viewed more than 150,000 times.

Local 6 reported that lawyers can't think of another case like Smith's and are calling it a "scary, new step."

During the video, Walsh-Smith goes through their wedding album on camera, accuses her husband of trying to evict her out of their apartment, and even makes embarrassing claims about their intimate life.

Her lawyer said she acted out of passion and is a "victim who is holding her head up," though he wasn't representing her when she made the video.

Her husband's lawyers say they're "kind of appalled."

Other divorce experts said the video will likely come back to haunt her.

They said the clip probably won't help her in front of a judge.

Read more at Local 6.

Handling Debt After a Divorce

My former husband has lived in our old house since our divorce in 2004. Problem is, we never refinanced the house in his name only. Now he is five months behind on the mortgage. Can I get any of this delinquency off my credit report? Our divorce decree gave him full financial responsibility for the house, but it is still affecting me. I want to purchase a house this summer, and I am scared this is going to hurt me. Help!

Everyone I talked with about your question answered with the same two words: "Oh no."

Unfortunately, there's nothing you can do about the harm that was already done to your credit report. A divorce decree is an agreement between the divorcing couple, but "it does nothing to separate their assets, accounts or financial obligations," says Maxine Sweet, vice-president of consumer education for Experian.

Despite the decree, your name is still on the loan, so you're liable for all the payments, and the mortgage company is unlikely to remove the delinquency from your report.

You need to take action immediately, before the situation gets worse. Because your ex is more than 90 days late on the mortgage payments, your credit score has likely taken a major nose dive. If the bank forecloses on the house, you probably won't be able to buy a house for at least a few years, says Emily Davidson, of Credit.com.

All divorced couples should take note before they end up in a similar situation. "If you're relying on an ex-spouse to pay a debt that's in your name, you need to do something," says John Ventura, author of Divorce for Dummies and the director of the Texas Consumer Complaint Center at the University of Houston Law School. "It's a ticking timebomb."

You could help him with the mortgage payments until he gets back on track. But it's better to get out of the situation. Tell the lender about the divorce and ask if you can be taken off the mortgage. "Several of my clients have had luck getting this done without refinancing," says Chris Smith, president of Capstone Mortgage, a mortgage broker in Lexington, Mass.

If that doesn't work, try to refinance the house in his name only. But that might be difficult to do because of his late payments. "Most lenders will not lend to anyone with more than one 30-day late mortgage payment on their credit report in the past 12 months," says Smith.

Another option is to go back to court and ask the judge to order your former spouse to sell the property before it goes into foreclosure, says Ventura. Or perhaps your ex-husband would be willing to give the house to you and have you make the payments. You could rent it out until it's sold. "There is no easy solution to this problem," he says.

Divorcing couples should never rely on one spouse to pay a joint debt. Tackle the issue upfront by agreeing, for example, to have one spouse refinance within a certain time period or sell the house.

The answer is by Kimberly Langford in Kiplinger.com.

Strahan divorce lawyer tells appeal court divorce ruling was "absurd"

Giants defensive end Michael Strahan has taken his messy divorce to a new venue.

He's asking a state appeals court to reduce the $14 million that a lower court ordered him to pay his ex-wife.

Michael Strahan's lawyer, Angelo Genova, argued that it was "absurd" for a court to award his ex-wife so much.

A prenuptial agreement called for her to receive half their joint assets and 20 percent of his earnings if they divorced. But Genova says Strahan should not be penalized because he did not set aside that amount.

The judges in Morristown questioned Jean Strahan's lawyers about whether her ex is paying too much.

Strahan was not in court Wednesday's appeal hearing, but his ex was.

More in Newsday.

Ex-millionaire's maneuvers bring poverty: Plan to hide assets from ex-wife unraveled, authorities say

Ronald Miserendino, 72, showed up in divorce court with the visage of a broken man. The former multimillionaire was clad in a jail-issued orange jumpsuit, his wrists and ankles shackled.

He sobbed as he begged his ex-wife for money.

"When I get out of jail, this will leave me at age 72 with no money except my Social Security check, no home to live in and with no clothing except what the jail puts on my back," Miserendino, once worth an estimated $10 million, told Milwaukee County Circuit Judge Michael Guolee last week as he dabbed his eyes with a tissue.

His ex-wife, Cynthia Son, said nothing and did not turn to look at the man she had married in 1979. Her lawyer, Dennis Milbrath, spoke for her.

"Any money she would give him would be subject to government liens," Milbrath said. "We have to decline his request."

Miserendino has been in the Milwaukee County Jail since November 2005, facing 10 counts of bank fraud, mail fraud, wire fraud, tax evasion and money laundering. With two marriages ending in divorce, he now stands accused of trying to hide millions of dollars that otherwise would be part of a divorce settlement.

Miserendino's saga reads as if it were from Hollywood. The elements of love, money and larceny are all there.

The story began in 1979 when Miserendino, then 43, advertised for a housekeeper and cook. Son, 26 at the time, had been a flight attendant looking for a new career. She got the job, and six months later she and Miserendino married. The couple had three daughters in four years.

It was Miserendino's second marriage. He left his first wife and their six children on the East Coast when he came to Milwaukee.

Miserendino said he came to Milwaukee because of a job transfer and he began dabbling in real estate. Over the years that he was married to Cynthia Son, he built up his company, the Trace Corp., a real estate management and development company.

Son filed for divorce in January 2001. Miserendino refused to accept service of the divorce papers and went on the lam. It was then that his problems began.

According to court records, within a month of the divorce filing, Miserendino secretly set out to liquidate his company's assets and go underground. The divorce court judge, John DiMotto, had ordered that all the company assets be frozen until the divorce was final.

Miserendino enlisted the aid of his son from his first marriage, Mark, whom he had made a vice president of Trace. Son, who had been Trace's secretary, was removed from the company roster.

The effort involved taking out a bank loan for $5 million, a $500,000 advance on the company's line of credit, and cashing in Treasury bonds worth more than $10 million, according to court records. Miserendino gave the $5 million from the bank loan to his son. Mark got smaller cashier's checks and sent them to his father, who was secretly in Hawaii, where Trace owned a house and two lots.

The divorce was granted, and the court awarded Cynthia Son $5 million plus the family home in River Hills. But the money was gone -- much of it to taxes and penalties. But Miserendino also had converted nearly $5 million to cash and had stashed it in safe deposit boxes in Australia and in several states, according to court records.

Milwaukee lawyer Robert Steuer was appointed to sort out Trace's financial mess. That led to the foreclosure sale of Estabrook Homes, a 220-unit apartment complex in Shorewood, and other assets.

Miserendino, still on the lam, was charged in October 2005 by federal authorities. His son, Mark, was charged with income tax evasion.

In November 2005, after living with a girlfriend secretly in Hawaii and failing in an attempt at bankruptcy, Ronald Miserendino moved back to the mainland, where his luck ran out. An Oregon police officer stopped Miserendino for driving with his brights on. The federal warrant for Miserendino's arrested showed up when the officer checked his driver's license.

Miserendino said he has had few visitors while in jail, and none from any of his nine children.

"Their mothers poisoned them against me," he told a reporter.

Miserendino denied the allegations contained in the federal plea agreement in which he admitted to liquidating his company assets and evading taxes. He blames it all on his son, Mark, who is awaiting sentencing on tax evasion charges.

"I tried to send the money back to him so he could do it the right way and pay the taxes," Miserendino said. "I told him to pay her (Cynthia Son) and take care of the bills."

During the interview, he accused his son of hiding money that federal officials believe is still squirreled away somewhere.

Lawyers familiar with the case say the money has been accounted for.

Miserendino was supposed to be sentenced last week, but he refused to agree to the plea agreement just minutes before he was to be sentenced by U.S. District Judge Lynn Adelman. Matthew Jacobs, the assistant U.S. attorney handling the case, was going to recommend a four-year sentence that would mean Miserendino would get out sometime next year.

As part of the agreement, Miserendino was required to give his ex-wife $750,000 from the $2.9 million that he had hidden in Australian safe deposit boxes. In divorce court, he agreed to the payment, thanking her profusely for relinquishing any claim to his $1,236 monthly Social Security check. But he also begged her to give him half of the $750,000 so he "wouldn't have to spend my old age in poverty."

In the divorce court, Miserendino said earlier that he thought he could keep the rest of the $2.9 million. Now he understands that the IRS is bringing a civil action to collect back taxes and penalties, and he would have nothing.

"I owe more than they have already taken from me," Miserendino said.

Miserendino's new sentencing date is April 21.

From Trading Markets.

Breaking up is harder to do

The housing bust's influence on divorce

Back in the days of the housing boom I knew a couple whose marriage went sour, but who continued to live together for years after their divorce went through. Turned out that the holy grail of stability wasn't their affection for one another, but a rent-controlled apartment. They simply couldn't afford to move on.

I wrote then about the way the white-hot real estate market was burning families going through divorces. Ironically, the sharp downturn in the market is taking a similarly painful toll on couples who are breaking up. But now it's not that they can't afford their next home, but that they can't get rid of the old one. A couple of friends are even trying to make splitting up their marital home more fair by taking turns living in their flat.

According to divorce lawyers, the quickly shifting real estate landscape is making breaking up harder to do than ever.

"The housing market is having a major impact on divorce cases," said Stephen Ruben, a certified family law specialist in San Francisco. "If a house doesn't sell, it has a major impact on cash flow for child support, on where people live, on future taxes."

Post-marital cohabitation

Indeed, the mortgage crisis and moribund market have made for some strange bedfellows.

"There is a whole new aspect of divorce that most couples never had to face," explained Janell Weinstein, a partner in the law firm of Federbusch & Weinstein in New Jersey. "Many couples are forced to live under the same roof because they can't afford to move on until their home gets sold. This can go on for months or even years as the real estate market across the United States slows down tremendously. Homes that used to sell in weeks are now not moving at all."

This month Weinstein  wrote about the growing phenomenon of cohabitation after divorce for the Web site Firstwivesworld.com.

She told me that for most couples, living with your ex is a choice of last resort. "If you have a substantial amount of assets, then one person moves out. Some people are moving in with family members," she said. "But for some people, all their savings are in their homes and with the house not selling, they have no other choice."

The clients she's seen most affected by this trend are mostly seniors on fixed incomes who no longer have family living in the area. But other lawyers I spoke to suggested it also was affecting families with young children. "Kids add to the cost of everything," said San Francisco divorce lawyer Tilden Moschetti. "One person may feel like they can't just move into a studio because it's too small to house their kids."

Whatever the life stage of the couple, Weinstein said living together after divorce presents some difficult, potentially dangerous situations: "What if there's domestic violence going on? It can be very hard. We try to come up with creative solutions, but the fact is that it's not an easy issue for most couples."

Upside down

Moschetti has seen an equally challenging conundrum created by the meltdown: owners who owe more on their homes than they're worth.

"The biggest problem is that a lot of my clients have houses that are upside down," he said. "It's really challenging. Do you do a deed in lieu of foreclosure? Do you try a short sale? What if one person wants to keep living in the house? Who eats the cost?"

In places such as Contra Costa County, where homes are just sitting on the market, it's especially difficult. "It becomes so untenable," said Moschetti. "Something needs to change — someone needs to find a way to live in a studio, to make a change." But Moschetti imagines that his clientele are hardly among the hardest hit: "I'm seeing people who can afford to pay me. For others the situation is much more strained."

New face of divorce

Although selling the house has always been a central part of the divorce process, the new housing decline has changed the face of divorce. "A few years ago it took only a couple of weeks to sell the house, but now we have to write agreements carefully because we just don't know," Weinstein explained. "I've been practicing law since 1991 and this is the first time I've seen a situation like this."

Moschetti echoes Weinstein's frustration. "In the past, the hardest thing was picking a Realtor," he said. "There was always an argument about that — but other than that it was straightforward."

Some have noticed a trend away from selling the marital home and toward one person buying the other out. But what if neither person can afford that? Then a common conflict arises: One person wants to sell at all cost and the other wants to hold the house until the real estate market rebounds. Such arguments have put judges in the bizarre position of acting like real estate analysts.

"Courts are not ordering properties for sale because of the market," explained Ruben, who said that judges now routinely bring in real estate experts and analyze housing forecasts to decide whether to side with the spouse who wants to sell now, or the one who wants to wait for the market to improve. "We're seeing judges decide to wait, based on the assumption that the market will improve in the summer or fall. It's having a major impact on resolution of these cases."

Indeed, all the attorneys I spoke to bemoan the complexity that the new housing market has brought to new divorces.

In economic terms, divorces are a dividing of the couples' jointly held assets. Now, many divorces are finalized before the couple sell their home. That triggers a host of other potential points of contention: Who gets to live there in the meantime? Who pays the mortgage? Does paying the mortgage increase the payer's equity? Who gets the mortgage interest deduction? Who is responsible for a major repair that comes up in the meantime?

In the long run, judges seem to be assuming that the market will rebound. But what if it doesn't? For all the divorced couples who have put their lives on hold, continuing to share real estate based on predictions that just don't pan out, the phrase "a house divided" may assume a new meaning.

This prospect has left some lawyers wondering how much more complicated, stressful and time-consuming divorces will become. "It's going to be very interesting" said Weinstein. "I don't know what's going to happen."

From San Francisco Chronicle.

Bill addresses controversy in custody cases

A state bill that would set guidelines for child custody cases has highlighted a nearly 20-year-old dispute over a theory used by psychological evaluators.

Assembly Bill 612, which failed to pass into law in 2007, targeted the controversial theory, called Parental Alienation Syndrome. The syndrome describes behavior in which one parent turns a child against the other, convincing the child the parent has treated him or her badly, even when they have not.

Dr. Philip Stahl, a California evaluator and member of the state's Association of Family and Conciliation Courts, says evaluators are split in their beliefs about whether children can be alienated.

"You have evaluators who really don't understand alienation, and people who want to apply it in every case," Stahl said.    

Evaluators are not the only one with differing views on the issue: There are stalwart advocates who believe that hundreds of people have suffered because of parental alienation, and those who believe just as many have suffered from false charges of the syndrome.

Women's advocates say the theory has been used by courts to place children with abusive fathers.    

"It's junk science used to target women and take their custody rights away," said Karen Anderson, a spokesperson for the California Protective Parents Association. "It's a problem in courts all over the country."

Julia Cotton, a mother from Los Angeles County, said that a custody evaluation in her divorce case accused her of alienation and led to her young daughter being placed with her husband full-time.    

"Her recommendation led to me only getting my daughter for supervised visits," Cotton said. "When I saw her she acted traumatized, and seemed totally out of it."

Cotton said she suspected that her ex-husband was abusing her daughter in some way but didn't know what to do about it.    

"I knew that the more I tried to do something about it, the more I would be accused of alienation."    

While women's groups tout Cotton's story as a typical one throughout California, father's- rights groups have the opposite view of custody courts and alienation.

"Ninety-eight percent of the time that you see abuse charges that have not been verified by police, those allegations are coached," said J. Michael Kelly, a lawyer and a member of the United Fathers of California law group.

One father in the middle of a custody battle who asked to be called Norm said his two teenage daughters say they don't want to have anything to do with him, and he can't figure out why.

"They call me a violent man, they say I am aggravating," said Norm. "I had a bad custody evaluator, and now I barely see them."    

Norm said he believes his wife is genuinely convinced that he does not treat their children well.    

"I don't think she is trying to be vindictive," he said. "I just think in her mind there is some deeper mental problem that is convincing her I'd be bad for the kids."

The text of the 2007 version of A.B. 612 was drafted by the CPPA and explicitly banned the use of Parental Alienation Syndrome, or just the term alienation from use in evaluations. It also aimed to minimize the use of custody evaluations.

The family law section of the State Bar and the several psychologists groups banded together to oppose the bill.     

The 2008 version of the bill is much vaguer than its predecessor, stating evaluators will be forced to conform to "standards generally accepted by the medical, psychiatric, legal, and psychological communities." The bill does not specifically mention Parental Alienation Syndrome.

"The thinking was that if you mentioned specific syndromes or disorders, people who would use them in evaluations would just start calling them by a different name," said Ira Ruskin, D-Redwood City, who introduced the bill.

But Karen Anderson, who helped draft the original bill, said the new version, A.B. 2587, is not strong enough.    

"It's not an unusual process for a bill," said Anderson. "It starts out strong, and then it gets watered down, and a lot of the great stuff gets thrown out."

Stahl said that although the bill provides more guidelines for judges in what to expect from evaluators, the judges themselves still bring their own expectations about alienation into the courtroom.

"Courts are ruling in favor of people unfairly accused of alienation, and they are ruling against people who have been alienated," Stahl said. "Problems described by advocates on both sides on the issue are happening."

An additional problem, evaluators say, is that even with the right training, it is not always possible for them to tell when talking to a child, whether the abuse the child describes is really happening.

"There are real cases of abuse and false allegations," said Dr. Mitch Eisen, a Cal State Los Angeles psychologist and professional evaluator. "Both happen, and it is often impossible to differentiate between the two."

Stahl says that in some cases, the children themselves aren't even sure if what they are saying is true.    

"You've got kids who don't know what to believe," said Stahl. "It's hard to tell what is and isn't real."

From the San Bernardino Sun.