Japan and Child Abductions

How Did Japan Become a Haven for Child Abductions?
By Lucy Birmingham / Tokyo



UPDATED: 03/07/2011



Like any loving father, Christopher Savoie just wanted to do the best thing for his two kids. In August 2009, his Japanese ex-wife broke U.S. law and abducted their children from his home in Tennessee, moving them to Japan. But when Savoie went to get them weeks later, he was arrested. It didn't matter that he had legal custody in both countries; that she had violated a U.S. court order or that there was a U.S. warrant issued for her arrest. Nor did the fact that Savoie was a naturalized Japanese citizen and fluent in Japanese make a difference. After 18 days in jail, Savoie returned to the U.S. empty handed and broken hearted. A year and half has now passed, and he is still unable to see his son and daughter, now 10 and 8.

Despite all this, Savoie's ex-wife is beyond the reach of international law. Japan has not signed the Hague Convention on the Prevention of Child Abduction, an international accord adopted by 84 nations and aimed at returning abducted children back to the country from which they were taken. Along with an increasing number of international marriages and divorces, child abductions to Japan - the only G7 nation that has not signed the treaty - have been on the rise. In 2009, the State Department ranked Japan at the top of its list in reported abductions from the U.S. among non-signatory nations. "It is our understanding that no U.S. citizen child abducted to Japan has been returned to the United States," says Paul Fitzgerald, a U.S. Embassy official in Tokyo. The issue could tarnish U.S.-Japan relations; as Assistant Sec. of State Kurt Campbell told reporters during a trip to Tokyo in February, "The situation has to be resolved in order to ensure that the U.S.-Japan relations continue on such a positive course."

Japan's antiquated domestic family law complicates matters. In a Japanese divorce, child custody is awarded to only one parent - typically the mother. Visitation can be negotiated but there is no legal enforcement and agreements are often broken. In Japan, it's not unusual for the non-custodial parent to lose contact with their child, and domestic abductions, when they do occur, are often ignored by the police as a family matter. It's a devastating scenario for a growing number of fathers residing in Japan - both Japanese and foreign - who have few legal rights to see their children. "Clearly, the best legal scenario is for the children is to be here in the U.S. where each parent would be guaranteed visitation," writes Savoie by email.

International pressure for Japan to make a change has been mounting. Over the past year, several ambassadors from embassies in Tokyo have met with high-level government officials to urge Japan to sign the convention. A Japanese government panel was set up in January to study the pros and cons, but opposition remains firm at most levels. Japanese lawmakers are worried the Hague Convention does not properly take into account past cases of domestic abuse in demanding a child's repatriation, or a child's own right to choose where they live. "This is why Switzerland tried to amend the treaty, even though it is a signatory," explains Kensuke Ohnuki, a Tokyo attorney who has represented several women who have abducted children from foreign countries to Japan. "They failed. So instead, they made their own new law which enables the Swiss court to refuse the return of a child when it's against the child's will."

On Feb. 22, the Japan Bar Association issued similar Hague recommendations to the government, including a guarantee in domestic law that children not be returned to their country of residence if they had been subjected to abuse or violence. Left-behind parents, including Christopher Savoie, have said the recommendations are draconian and anti-joint custody, in part because abuse is both difficult to prove and is commonly cited as one of the main reasons for abduction.

One of Ohnuki's clients, who uses the alias Keiko, says she left the U.S. with her child because she discovered her husband was abusing their son. "There were no obvious physical marks so it would have been impossible to prove in court," Keiko explains tearfully. After consulting a therapist and an attorney in the U.S., she feared getting sole custody as a Japanese citizen would be nearly impossible. "When we were in Japan, my son told me he feels safe, far away from his father... I didn't really want to leave the U.S. I had a good job and many friends. But I wanted to do what was best for my son." Keiko is now one of about 50 members of the Safety Network for Guardians and Children, a support group for women who have abducted their children to Japan from various countries.

Finding a internationally recognized legal resolution to cases like Keiko's will not be easy. But in the meantime, Japanese mothers living abroad who have no intention of removing their children from their families are also beginning to be affected by the problem. Jeremy Morley, a U.S. attorney specializing in Japanese child abductions says that foreign courts are "increasingly ordering Japanese mothers living overseas not to take their children to Japan even for a family visit because of Japan's status as a renowned haven for international child abduction."

A winning diplomatic strategy will need teeth to make a difference for everyone involved. "The mantra now is 'Japan sign the Hague', but that's not enough," U.S. Rep. Chris Smith said during a recent trip to Tokyo. The Republican New Jersey congressman, who is also the chairman of a subcommittee overseeing human rights issues, is pushing for a bill that would establish an Office of International Child Abductions within the U.S. State Department to handle cases like these and discuss sanctions against uncooperative nations. "I don't know what the answer is," says Keiko. "But we need to find a solution that's in the best interest of the child."



Photo: Yoshikazu Tsuno / AFP / Getty Images

Postcards from Children of Divorce 3

Have you heard of PostcardsFromSplitsville?

Straight from their website -- OUR MISSION: A website where children can share their divorce-related feelings anonymously and parents can get a new perspective on how this life-changing experience impacts their children’s lives.
Most of these children are between the ages of 10-12.

Nicole Richie Seeks Permanent RO Against Paparazzo

LOS ANGELES ( KTLA) -- Nicole Richie is set to appear in a Los Angeles courtroom Wednesday to request a restraining order extension against a paparazzo who allegedly got too close to her daughter.


Richie claims Fabricio Mariotto frightened her 2-year-old daughter Harlow while trying to take photos of the child at her preschool.


Richie is seeking a permanent restraining order.She is also reportedly expected to testify that other photographers have also crossed the line with Harlow and her 15-month-old son Sparrow.The restraining order is part of a larger campaign Richie is waging against the paparazzi who persistently pursue celebrities' children.Richie has been dating her children's father, Joel Madden, since 2006. The pair are reportedly set to marry later this month.


Richie is best known for co-starring with Paris Hilton in the 2003-2005 reality TV series "The Simple Life." She is the daughter of singer Lionel Richie and has recently become a fashion designer.



There are several types of restraining orders in California:

•Emergency Protective Order (EPO). This type of Restraining Order is issued by law enforcement and is valid for 5 days. It is used by domestic violence victims for their immediate protection and safety.


•Domestic Violence Temporary Restraining Order (TRO or DVRO). A California Temporary Restraining Order is in force for three weeks, but it can be made into a permanent restraining order for 1 to 3 years. This is also useful for domestic violence victims.


•Criminal Protective Order (“No Contact” Order). This type of restraining order is obtained through the District Attorney’s office, and is issued in active domestic violence cases. With this order, your abuser cannot call, write, e-mail or contact you at all except through lawyers.


•Civil Harassment Restraining Order (CHO). This restraining order doesn’t need to qualify as a domestic violence restraining order. It can be used to stop harassment, threats, stalking, etc. by neighbors, roommates and co-workers.

The best way to determine which restraining order you need to to work with an experienced California Restraining Order attorney who will focus on your best interests.

I Love You, You're Perfect, Now Sign Here

Move over, heirs and heiresses: Baby boomers are flocking to sign prenuptial agreements, too..

New Yorkers Laura Jackson and Gary Zaremba met on a dating website in 2005. Two years later, Mr. Zaremba, a 52-year-old real-estate developer, popped the question. Ms. Jackson accepted.

Then he popped another: "Will you sign a prenuptial agreement?"

He had been through a divorce, had a college-age son and several real-estate investments. She, a publicist and also 52, had never married.

"When he first mentioned it," Ms. Jackson, now Ms. Jackson-Zaremba, says, "I thought, 'Oh, my God.' It definitely took a little bit of the romance out."

Baby boomers looking to protect their assets are increasingly turning to prenuptial agreements—legal contracts drawn up before a marriage that dictate what happens to assets in the event a couple should part ways, either by divorce or death.

"They used to be for the rich and famous," says Marlene Eskind Moses, president of the American Academy of Matrimonial Lawyers and a lawyer in Nashville, Tenn. "It's become more commonplace in the market as an estate-planning opportunity for boomers."

Even before the financial crisis hit, prenuptial agreements were on the rise: Some 80% of matrimonial lawyers said they had seen an increase in couples signing them in recent years, according to a 2006 survey sponsored by the matrimonial lawyers group.

The financial crisis—which hit boomers, those born between 1946 and 1964, especially hard—accelerated the trend. Many of them, just on the cusp of retirement, saw their investment portfolios pounded, as the Dow Jones Industrial Average fell 53% from Oct. 9, 2007, to March 6, 2009. Home values, which represented significant chunks of boomer net worth, were down almost 31% as of March 31 from their peak in mid-2006, according to the S&P/Case-Shiller national index.

As a result, boomers have become more anxious to hold on to whatever they have left, says Gabriel Cheong, a divorce attorney with Infinity Law Group LLC in Quincy, Mass. Today, the majority of inquiries come from boomers "concerned about protecting their assets," he says. "Not just with the markets, but with protecting their spouses and children." And they often enter a marriage with substantial assets—and children from an earlier union.

Baby boomers are more likely to get married multiple times than younger or older couples because they also are more likely to have gotten divorced. Almost 40% of boomers who have been married have gone through at least one divorce, according to 2004 Census data, the most recent available, while only about 30% of all people who have been married have been divorced. By their 50th birthday, 27% of boomers have moved on to their second or third marriage.

None of this, of course, makes discussing a prenup with one's betrothed any easier. Ms. Jackson-Zaremba and Mr. Zaremba "put the elephant on the table," he says, and disclosed everything to each other before their lawyers drafted the agreement. Though his net worth was significantly higher than hers, she had retirement savings and an annual salary she wanted to keep separate. He owned a string of properties in several states and several lighthouses he was in the process of restoring that he, too, wanted to keep separate.

Under the terms of the prenup, one investment property on Long Island's North Fork that the couple purchased would be owned 75% by Mr. Zaremba and 25% by Ms. Jackson-Zaremba. A second property on Long Island would have the same split, but after five years ownership would change to 50-50. Assets filed on a joint tax return wouldn't be considered joint assets, the agreement states, and Mr. Zaremba's name would be added to the lease on Ms. Jackson-Zaremba's New York apartment. Neither party would take on each other's debts. Ms. Jackson-Zaremba also would receive a life-insurance policy, a provision added in the drafting.

Lawyers usually recommend that couples with substantial assets—or those who expect to inherit such assets later on—consider a prenup. Without one, they are at the mercy of a smorgasbord of state laws in the event of a divorce or death. In "community property" states, such as California, marital assets are typically split 50-50. In "equitable distribution" states, judges generally look at what is "fair," so all marital property is considered before it is divided.

Such uncertainty has helped prenups gain favor as estate-planning tools. Yet they are anything but simple to execute, and prospective couples need to make sure they avoid some common traps.

Bulletproofing a Prenup

The drafting of a prenuptial agreement, and the discussion surrounding it, should begin several months before the wedding date. If the signing terms of a prenup are later deemed rushed or ill-informed, a court can choose not to enforce the contract. Prenups are contracts, after all, and lawyers rely on decades of case law for guidance in drafting them. That has made the documents more complicated.

There still isn't any guarantee that the agreement would be bulletproof from future challenges by a former spouse, says Gary Skoloff, a family lawyer with Skoloff & Wolfe in Livingston, N.J. "A lawyer can no more guarantee that a prenup is enforced than a doctor can guarantee the result of a surgery," he says. Having each party represented by a lawyer generally decreases the likelihood that a judge might deem a prenup unfit, experts say.

Still, there are some general rules that experts say will help the document hold up in court. When drafting a prenup, lawyers generally divide goods into two major pools: assets created before the marriage and assets created during the marriage. In addition to assets, responsibility for paying off debts incurred both before and during the marriage can be divided in a prenup.

Some older prenups cited fixed-dollar amounts. That made it easier to contest them, as inflation eroded the value of many assets or, conversely, as some assets, such as real estate, saw their value sharply increase. Lawyers now prefer to disclose the ownership stake—and, when possible, the value—of all assets for transparency, but also to address how appreciation of assets or new contributions will be divided.

One of the biggest mistakes you can make is trying to hide assets. "The worst thing you can do is play games," Mr. Skoloff says, "because then you've lost credibility with your spouse. And a judge."

Another rule of thumb: A prenup can't contain anything that violates a state's laws or public policy. In Florida, for example, any kind of debt incurred before a marriage—regardless of what a prenup says—is considered a nonmarital debt, so it wouldn't transfer over to a spouse, says Mitchell Karpf, a marital and family lawyer with Young, Berman, Karpf & Gonzalez in North Miami Beach, Fla. Some couples do choose to insert sunset provisions, so that the prenup expires after a certain number of years of marriage.

Doctors, lawyers, members of a family business or others who have a shared practice may suggest their peers draft prenups to ensure a spouse can't take income from the business. Conversely, a spouse who contributes to a business might want to ensure that their work is compensated.

The Next Generation

Tanya Porter, 60, and her husband, Darrell, 72, signed a prenup when they were married 27 years ago for one overriding purpose: to ensure their assets would go to their children from previous marriages in the event of a divorce or death. Today, many things in the agreement are moot, with stocks sold, cars long since traded in and kids all grown up. "It's funny now to reread it," says Ms. Porter, now a full-time wedding planner in Englewood, Colo.

In recent years, as more couples have drafted prenups, the documents have expanded to spell out terms of the marriage itself, addressing issues such as adultery, intimacy or weight gain, Ms. Moses says. Some prenups also determine things like what religion children will be raised as, or where they will attend school. However, child-support and custody agreements typically aren't included in prenups because those are to be determined separately by the courts.

Because prenups are general legal contracts, same-sex couples may be able to draft financial agreements, even if their state doesn't legally recognize the union, she says. "People are free to contract," Ms. Moses says.

Some baby boomers, anxious about how their assets will be passed on, are even requiring their children to consider prenups, says Daniel E. Clement, a divorce lawyer in New York. Typically, younger couples just starting out with equal assets wouldn't need one. But if a spouse has wealth such as a trust or inheritance they either intend to give or receive, a prenup might make sense.

"When they hand that money down, they want to make sure it's not lost on an heir's spouse when they want to give it to the heir," Mr. Clement says. "I think people are more cognizant that money can be there today, gone tomorrow in a flash."

Another concern for many couples: how inheritances are spent. A spouse's inheritance may belong only to that spouse, but if it is spent toward a home that both live in, it could be considered joint property. Couples can use a prenup to clearly spell out ownership stakes.

Melissa Brides and her husband Aaron Ockman of Santa Monica, Calif., decided that a prenup wasn't in order, even after his parents suggested one. Although taken aback, Ms. Brides—herself a child of divorce—says she "understood why they were asking." The two 34-year-olds have roughly the same net worth, but Mr. Ockman co-owns an apartment building with his parents.

Even though the couple finally decided against getting a prenup, having the discussion was beneficial. Mr. Ockman's parents drafted a separate agreement among the three family members stipulating what share of the property Mr. Ockman owns in the event the building is sold.

As for the Jackson-Zarembas, their prenuptial agreement was written to sunset after 15 years. It was signed on July 11, 2008. The couple was wed the next day and have been happily married ever since.

"Sometimes," Mr. Zaremba says, "the best contracts are the ones you don't have to use."

I Do's and I Dont's
Some pointers on what and what not to do when considering a prenuptial agreement:

Do
- Have each party represented by a lawyer
- Start talking about and drafting the agreement several months before the wedding
- Consider enlisting the help of a marriage counselor, financial planner or accountant.
- Research whether an additional waiver is needed for a workplace retirement plan.

Don't
- Hide any assets from a future spouse.
- Forget to assign responsibility for joint and separate debts, if applicable.
- Include things that could violate state laws, such as child-support payments.
- Use a prenup as a substitute for a will or estate plan.

"The prenup changed me," she says. "I became more assertive." Most of all, she finds it much easier, both professionally and personally, to discuss money.

Write to Mary Pilon at mary.pilon@wsj.com

For more information on prenups, please visit our websites here and here.

Should You Say "I Do" To Divorce Insurance?

SHOULD YOU SAY "I DO" TO DIVORCE INSURANCE?

BY STACY JOHNSON

First there was wedding insurance: we’ve explained it several times in the past, most recently a couple of months ago. That’s insurance that’s supposed to protect your wedding day – money you’d receive to reimburse you for lost deposits and other expenses in the event your wedding is canceled due to a death in the family, dangerous weather, military service or other unforeseen circumstances.

Now, apparently for the first time, there’s divorce insurance.

A North Carolina insurance startup called SafeGuard Guaranty Corporation has begun selling policies under the name WedLock (shouldn’t that be wed-unlock?). It charges $16 a month for a single “unit” of coverage, which equals $1,250. You can buy additional units for $16 a month – and keep going right up to 200 units, or $250,000 of coverage. The company adds $250 of coverage every year per unit.

What do you get for that? A cash benefit that will ease the financial burden of your divorce. According to divorce360, attorney’s fees alone can run as high as $45,000 for contentious divorces in urban areas like Los Angeles. With the divorce rate between 40 and 50 percent, SafeGuard might feel like a safe bet.

Cashing in your policy is as simple as mailing your divorce documents to SafeGuard. But lest you think you can quickly take out a policy as your marriage is hitting the rocks, note this huge caveat: Policies don’t mature until 48 months after their effective date. (If you want to include a rider for what they call an accelerated maturity, you can reduce that time period to 36 months – but that will hike your monthly premium from $16 to $30 per unit)

The policies aren’t backed by any state insurance or other government fund – only by the company that’s actually doing the underwriting the policies for Safeguard, Prime Insurance. If Prime goes down the tubes, your premiums go with them.

Wedding insurance vs. divorce insurance

While wedding insurance may be overkill in terms of cost vs. benefit, depending on the parties involved, it could be justified. It only costs a couple of hundred bucks and protects what could add up to thousands in lost deposits. And it only applies to one special day.

I’m less sanguine regarding divorce insurance. This type of insurance seems fundamentally flawed both financially and emotionally.

Financially, you’re paying $192 every year for $1,250 of benefit – and you have to pay four year’s worth, or $768, before you’re even eligible to collect. Would investing that money be more rewarding? Let’s do a comparison.

According to this financial calculator, if you invest $192 every year for five years and earn 10 percent compounded monthly, you’ll end up with – surprise! – about $1,250. That’s the same amount WedLock promises as your starting benefit. Granted, earning 10 percent is no simple feat. But it’s certainly possible. Witness our online stock portfolio.

Now let’s consider a Wedlock policy. If you pay WedLock the same $192 every year for five years, upon divorce you’ll get $2,250 ($1,250 plus 4 years of the extra $250). That’s a lot more than the $1,250 you’d get saving on your own. But you have to get divorced to get it.
If you’re saving on your own, you can stop whenever you want. If you’re paying for a WedLock policy, best you keep the premiums up, or your policy will lapse and you’ll end up with nothing.
Speaking of ending up with nothing, what if you get divorced in, say, two years? According to company CEO John Logan, you can purchase a “return of premium rider” for an extra $2 per unit that will refund any premiums you’ve paid in – less the state tax paid by the underwriter – if you get divorced in less than four years.

Now let’s consider the emotional angle of this type of insurance. When I talked to John Logan, here’s what he said about his new invention:

“We know we can’t build a dam and stop divorce from happening. But we’d at least like to put our finger in the dike to stop the crack in the foundation of marriage from getting bigger.”
Mixed metaphors aside, this seems exceedingly odd language coming from a company selling a product whose only value springs from divorce. Imagine you buy 10 units, pay premiums of $1,920/year, year after year, creating a larger and larger potential benefit. But the only way to access it is get divorced.

You may not be willing to kill your spouse for a $100,000 life insurance benefit, but how much of a benefit would it take for you to divorce your spouse? $50,000? $100,000? $200,000? Every couple would have their price. After all, you could always collect the dough and get remarried.
So if everyone gets divorce insurance, then ultimately wouldn’t everyone – except perhaps the super-rich – get divorced just to get their money?

Of course, most people probably won’t get that close. Could you approach your spouse with, “Say, sweetheart, take a look at this website, doesn’t this look like a good idea?” Nobody suggesting divorce insurance to their spouse is going to be married for four more years. Nor is anyone who keeps that kind of financial secret from their spouse.

I asked John if he’s ever been divorced. He has – once. He added, however, that he’s currently engaged and looking forward to his second time out. Is he buying divorce insurance? Nope. As it happens, in North Carolina, where both John and WedLock reside, state insurance regulations make his product prohibitively expensive.

Like this article? Subscribe to our free email updates and we’ll send you a downloadable copy of Stacy Johnson’s ’205 Ways to Save Money’ as our gift. Click here to subscribe now!

Divorce, No-Fault Style

By Stephanie Coontz

FORTY years after the first true no-fault divorce law went into effect in California, New York appears to be on the verge of finally joining the other 49 states in allowing people to end a marriage without having to establish that their spouse was at fault. Supporters argue that no-fault will reduce litigation and conflict between divorcing couples. Opponents claim it will raise New York’s divorce rate and hurt women financially.
So who’s right? The history of no-fault divorce may provide some answers as the New York State Assembly takes up its versions of the divorce legislation passed by the Senate on Tuesday. Before no-fault, most states required one spouse to provide evidence of the other spouse’s wrongdoing (like adultery or cruelty) for a divorce to be granted, even if both partners wanted out. Legal precedent held that the party seeking divorce had to be free from any “suspicion that he has contributed to the injury of which he complains” — a pretty high bar for any marital dispute.

In 1935, for example, reviewing the divorce suit of Louise and Louis Maurer, the Oregon State Supreme Court acknowledged that the husband was so domineering that his wife and children lived in fear. But, the court noted, the wife had also engaged in bad behavior (she was described as quarrelsome). Therefore, because neither party came to the court “with clean hands,” neither deserved to be released from the marriage.

As the Maurer case suggests, such stringent standards of fault often made it easier for couples who got along relatively well to divorce than for people in mutually destructive relationships. Cooperating couples would routinely fabricate grounds for their divorce, picking one party as the wrongdoer.

This strategy was so common in the 1950s that divorce cases seemingly gave the lie to Tolstoy’s famous observation that every unhappy family is unhappy in its own way. “Victim” after “victim” testified that the offending spouse had slapped him or her with exactly the same force and in exactly the same places that the wording of the law required. A primary motivation for introducing no-fault divorce was, in fact, to reduce perjury in the legal system.

Initially, some states limited no-fault divorce to cases in which both partners wanted to dissolve the marriage. In theory, limiting no-fault to mutual consent seemed fairer to spouses who wanted to save their marriages, but in practice it perpetuated the abuses of fault-based divorce, allowing one partner to stonewall or demand financial concessions in return for agreement, and encouraging the other to hire private investigators to uncover or fabricate grounds for the court. Expensive litigation strained court resources, while the couple remained vulnerable to subjective rulings based on a judge’s particular opinion about what a spouse should put up with in a marriage.

Eventually every state except New York moved to what is in effect unilateral no-fault, wherein if one party insisted that his or her commitment to the marriage had irretrievably ended, that person could end the union (albeit with different waiting periods). New York has been the holdout in insisting that a couple could get a no-fault divorce only if both partners agreed to secure a separation decree and then lived apart for one year. Otherwise, the party who wanted the divorce had to prove that the other was legally at fault.

In every state that adopted no-fault divorce, whether unilateral or by mutual consent, divorce rates increased for the next five years or so. But once the pent-up demand for divorces was met, divorce rates stabilized. Indeed, in the years since no-fault divorce became well-nigh universal, the national divorce rate has fallen, from about 23 divorces per 1,000 married couples in 1979 to under 17 per 1,000 in 2005.

Even during the initial period when divorce rates were increasing, several positive trends accompanied the transition to no-fault. The economists Betsey Stevenson and Justin Wolfers of the University of Pennsylvania report that states that adopted no-fault divorce experienced a decrease of 8 to 16 percent in wives’ suicide rates and a 30 percent decline in domestic violence.
Social changes always involve trade-offs. Unilateral divorce increases the risk that a partner who invests in her (or more rarely, his) marriage rather than in her own earning power, and does not engage in “bad behavior,” may suffer financially as well as emotionally if the other partner unilaterally ends the marriage. When courts have not taken this sacrifice into account in dividing property, homemakers have been especially disadvantaged.

Fairer division of marital assets can reduce the severity of this problem. And fault can certainly be taken into account in determining spousal support if domestic violence or other serious marital misbehavior has reduced the other party’s earning power.

Still, the ability of one partner to get a divorce over the objections of the other may create an atmosphere in which people think twice before making sacrifices that will be costly if the marriage ends. Professor Stevenson found that in states that allow unilateral divorce, individuals tend to be slightly less likely to invest in marriage-related capital, like putting the partner through school, and more likely to focus on building individual, portable capital, like pursuing their own education or job experience.

Unilateral divorce has decreased the bargaining power of the person who wants the marriage to last and has not engaged in behavior that meets the legal definition of fault. On the other hand, it has increased the bargaining power of the person who is willing to leave. So while some marriages end more quickly than they otherwise would, other couples enter marital counseling because one partner’s threat of divorce convinces the other that it is time to work seriously on the relationship.

Contrary to conventional wisdom, it is more often the wife than the husband who is ready to leave. Approximately two-thirds of divorces — including those that come late in life — are initiated by wives. Paula England, a senior fellow at the Council on Contemporary Families, found that surveys that separately ask divorced wives and husbands which one wanted the divorce confirm that more often it was the woman who wanted out of the marriage. This jibes with research showing that women are physiologically and emotionally more sensitive to unsatisfactory relationships.

It’s true that unilateral divorce leaves the spouse who thinks the other’s desire to divorce is premature with little leverage to slow down the process or to pressure the other partner into accepting counseling. It allows some individuals to rupture relationships for reasons many would consider shallow and short-sighted.

But once you permit the courts to determine when a person’s desire to leave is legitimate, you open the way to arbitrary decisions about what is or should be tolerable in a relationship, made by people who have no stake in the actual lives being lived. After all, there is growing evidence that marital counseling can repair some marriages even after infidelity, which New York has long accepted as a fault sufficient to end a marriage. But that does not mean New York should reduce its existing grounds for divorce even further.

A far better tack is to encourage couples to mediate their parting rather than litigate it, especially if children are involved. In a 12-year study of divorcing couples randomly assigned to either mediation or litigation, the psychologist Robert Emery of the University of Virginia and his colleagues found that as little as five to six hours of mediation had powerful and long-term effects in reducing the kinds of parental conflict that produce the worst outcomes for children. Parents who took part in mediation settled their disputes in half the time of parents who used litigation; they were also much more likely to consult with each other after the divorce about children’s discipline, moral training, school performance and vacation plans.

Paradoxically, people who went through mediation were also more likely to express regret over the divorce in the ensuing years than those who litigated. But New York legislators should face the hard truth that there are always trade-offs in the imperfect world of intimate relationships. To my mind it is better to have regrets about the good aspects of your former marriage because you were able to work past some of your accumulated resentments than to have no regrets because you had to ratchet up the hostility to get out in the first place.

Stephanie Coontz, a professor of history at Evergreen State College, is the author of “Marriage, a History: How Love Conquered Marriage” and the forthcoming history “A Strange Stirring: The Feminine Mystique and American Women at the Dawn of the 1960s.”

Facebook a "Treasure Trove" for Divorce Lawyers

By Larry Hartstein


The Atlanta Journal-Constitution

As if divorce lawyers needed more ammunition.

In a new survey, 81 percent say they've seen an increase in the use of Facebook and other social networking sites for evidence in divorce cases. Notes to lovers, compromising photos -- Facebook provides a wealth of incriminating information.

"Every client I've seen in the last six months had a Facebook page," said Ken Altshuler, a longtime divorce lawyer from Portland, Maine, who is first vice president of the American Academy of Matrimonial Lawyers. "And the first piece of advice I give them is to terminate their page immediately."

Sixty-six percent of the attorneys surveyed by the AAML called Facebook the unrivaled leader for online divorce evidence, followed by MySpace (15 percent) and Twitter (5 percent).

"Going through a divorce always results in heightened levels of personal scrutiny," said Marlene Eskind Moses of Nashville, the group's president. "If you publicly post any contradictions to previously made statements and promises, an estranged spouse will certainly be one of the first people to notice and make use of that evidence."

Altshuler cited a couple cases in which Facebook proved key:

A woman was getting divorced from her alcoholic husband and seeking custody of their kids. The husband told the judge he had found God and hadn't had a drink in months, but Altshuler found a recent Facebook photo showing him "holding a beer in each hand with a joint in his mouth," the lawyer said.

Then there was the custody case in which his client's ex-wife claimed to be engaged. She was trying to show she'd provide a stable household for the kids.

But the same woman had posted on Facebook that she'd broken up with her abusive boyfriend and "if anybody had a rich friend to let her know," Altshuler said.

The ex-husband's friend gave him the posting; he was still Facebook friends with the ex-wife.

"People don't think about who has access to their Facebook page," Altshuler said. "A good attorney can have a field day with this information."

"Facebook is a wealth of information," said Kenneth Altshuler, the first vice president of the AAML who has been a divorce lawyer for 25 years. "My first advice to clients is: ‘Shut down your Facebook page."

Divorce Law 101 with Ms. Kelly Chang Rickert

Divorce Law 101 with Ms. Kelly Chang Rickert from Avvo on Vimeo.

California to Ban Divorce?!

Movement under way in California to ban divorce

By JUDY LIN, Associated Press Writer

Tuesday, December 1, 2009







In a movement that seems ripped from the pages of Comedy Channel writers, John Marcotte wants to put a measure on the ballot next year to ban divorce in California.



The effort is meant to be a satirical statement after California voters outlawed gay marriage in 2008, largely on the argument that a ban is needed to protect the sanctity of traditional marriage. If that's the case, then Marcotte reasons voters should have no problem banning divorce.



"Since California has decided to protect traditional marriage, I think it would be hypocritical of us not to sacrifice some of our own rights to protect traditional marriage even more," the 38-year-old married father of two said.



Marcotte said he has collected dozens of signatures, including one from his wife of seven years. The initiative's Facebook fans have swelled to more than 11,000. Volunteers that include gay activists and members of a local comedy troupe have signed on to help.



Marcotte is looking into whether he can gather signatures online, as proponents are doing for another proposed 2010 initiative to repeal the gay marriage ban. But the odds are stacked against a campaign funded primarily by the sale of $12 T-shirts featuring bride and groom stick figures chained at the wrists.



Marcotte needs 694,354 valid signatures by March 22, a high hurdle in a state where the typical petition drive costs millions of dollars. Even if his proposed constitutional amendment made next year's ballot, it's not clear how voters would react.



Nationwide, about half of all marriages end in divorce.



Not surprisingly, Marcotte's campaign to make divorce in California illegal has divided those involved in last year's campaign for and against Proposition 8.



As much as everyone would like to see fewer divorces, making it illegal would be "impractical," said Ron Prentice, the executive director of the California Family Council who led a coalition of religious and conservative groups to qualify Proposition 8.



No other state bans divorce, and only a few countries, including the Philippines and Malta, do. The Roman Catholic Church also prohibits divorce but allows annulments. The California proposal would amend the state constitution to eliminate the ability of married couples to get divorced while allowing married couples to seek an annulment.



Prentice said proponents of traditional marriage only seek to strengthen the one man-one woman union.



"That's where our intention begins and ends," he said.



Jeffrey Taylor, a spokesman for Restore Equality 2010, a coalition of same-sex marriage activists seeking to repeal Proposition 8, said the coalition supports Marcotte's message but has no plans to join forces with him.



"We find it quite hilarious," Taylor said of the initiative.



Marcotte, who runs the comedy site BadMouth.net in his spare time, said he has received support from across the political spectrum. In addition to encouragement from gay marriage advocates, he has been interviewed by American Family Association, a Mississippi-based organization that contributed to last year's Yes on 8 campaign.



He was mentioned by Keith Olbermann on MSNBC's "Countdown" during his "World's Best Persons" segment for giving supporters of Proposition 8 their "comeuppance in California."

Marcotte, who is Catholic and voted against Proposition 8, views himself as an accidental activist. A registered Democrat, he led a "ban divorce" rally recently at the state Capitol in Sacramento to launch his effort and was pleasantly surprised at the turnout. About 50 people showed up, some holding signs that read, "You too can vote to take away civil rights from someone."

Marcotte stopped dozens of people during another signature drive in downtown Sacramento. Among them was Ryan Platt, 32, who said he signed the petition in support of his lesbian sister, even though he thinks it would be overturned if voters approved it.



"Even if by some miracle this did pass, it would never stand up to the federal government," Platt said. "And if it did, there's something really wrong with America."



Other petition signers said they were motivated by a sincere interest to preserve marriages. One was Ervin Hulton, a 47-year-old dishwasher who said he believes in making it harder for couples to separate.



"The way I feel, why go out and spend all these tons of money for marriage, the photography and all that? And along down the line, it's going to shatter," said Hulton, who is single.

The U.S. divorce rate is 47.9 percent, according to data provided by the National Center for Health Statistics reports. That figure, however, does not include California, Georgia, Hawaii, Indiana, Louisiana and Minnesota because those six states no longer report their divorce rates to the center.



California stopped because of budget problems, said Ralph Montano, a spokesman for the California Department of Public Health.



While most people would not support banning divorce, it does make sense for couples to be educated about the financial and emotional commitments of marriage, said Dan Couvrette, chief executive and publisher of Toronto-based Divorce Magazine. The publication has a circulation of 140,000, including a regional edition in Southern California.



"It's a worthwhile conversation to have," said Couvrette, who started the magazine in 1996 after going through his own divorce. "I don't think it's just a frivolous thought."

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On the Net:

2010 California Marriage Protection Act: http://www.rescuemarriage.org

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2009/11/30/national/a111733S84.DTL#ixzz0ZsEYifJzRead more: http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2009/11/30/national/a111733S84.DTL#ixzz0ZsEYifJz

Adoptions in California

Adoptions in California are approved by the Superior Court located in the County where the parties reside. The adopting parents can begin the process by filing a Petition with the Superior Court. Notice of the action needs to be given to all interested parties such as biological parents, legal guardians (if any), adoption agency if one is involved, the child to be adopted if 12 years of age or older.
The process can be lengthy if the child needs to be freed for adoption. If a parent has not signed a consent form then it is possible that a petition to terminate parental rights needs to be filed in order that the child can be freed to be adopted.
Once all of these steps have been taken the adopting parents will attend a hearing. If the child is twelve (12) years of age or older the child needs to attend the hearing as well.
Pertinent Family Code Sections:
In California:
Family Code § 8600—to be to be adopted a person must be unmarried and under 18 years of age in; unless, the person is an adult who has consented to be legally adopted by another adult.
Family Code §§ 8600; 8601—an adult generally must be at least 10 years older than the child that he or she wishes to adopt.
Family Code §§ 8801.5; 8704— provides that only an underage child's biological parent or parents, a licensed adoption agency, and the California Department of Social Services are allowed to legally authorize an adoption.
The Law Office of Bettina Yanez can assist you in preparing all necessary documents and will guide you through the process.

EXECUTIVE DIVORCE ISSUES

High earners, for example CEO’s, partners and their spouses, face unique challenges in a divorce. Often, income and other compensation/assets are acquired in the form of non-liquid partnership interests, vested and non-vested stock options, intellectual property, etc.,

You can be confident that The Law Firm of Bettina Yanez will assist you in obtaining a fair and equitable distribution. We will explore your options and guide you in obtaining your desired outcome. We can assist in choosing a forensic accountant that will evaluate the value of a business and/or the monthly income of a spouse. We will obtain tax returns and assist you in complying with the required financial disclosures.

Our experienced attorneys are ready to assist you in obtaining a respectful divorce while keeping your children’s best interest in mind.

WHO CAN BE A LEGAL GUARDIAN?

• Relatives

• Family friends

• Any other trusted Adult

A Guardianship is a legal action in which a party files a Petition for Guardianship with the Probate court in the County of residence where the person/minor is found.

This Petition comes before the court and the Judge can approve the Petition so that
An Adult (other than the Parent) is given the authority to physically care or handle the property/assets of a minor, once the proper notice to relatives has been given. The court may not approve your Petition if you have been convicted of a felony, you can’t manage money or you are charged with abusing or neglecting a minor.

A Guardian shall serve in the capacity of a Guardian until released by the Court. This can occur when the minor reaches the age of 18 or earlier if the Guardianship is terminated by the Court.

In California, the means by which you can obtain a Guardianship is through the appointment of a person by a Judge. Informally signing an agreement/or naming someone in your will giving a third party guardianship does not automatically make that person your child’s guardian.

There are two types of Guardianships or powers your Petition can request.

• Guardianship of the Person (Custody)

• Guardianship of the Estate (Property)

A Guardianship of the Person gives an adult the authority to take custody/care of the child such as enrolling is school or obtaining medical care.

A Guardianship of the Estate maybe necessary in order for an Adult/third party to manage a minor’s money/property/other assets that are in the sum of over $5,000.00, obtained through inheritance, insurance proceeds or if the minor will receive benefits from an agency that requires a guardianship of the Estate before dispensing any benefits due the child.

A court will consider the proposed Guardian carefully before appointing that person. An investigation of the proposed Guardian will take place and a report will be provided to the court. Judges have discretion when deciding who to appoint as a Guardian and are given guidelines provided by the Family Code such as sections 3040 and 3041.


The Order of Preference for appointing a Guardian of the Person is:

1. To Parents, if available.
   
   
2. Person with whom the minor has been living in a wholesome, steady and secure environment.
   
   
3. Other adult who can provide care and guidance to the minor pursuant to California Probate Code Section 1514.
   

Once you are appointed you must keep accurate records of any and all money and property you have managed for the minor and you will need to provide an accounting to the court. You can be removed as a Guardian if you fail to file your accounting as required. The required format is found in the probate code.