Articles for July 2014

Not All War Wounds are Visible

by Matthew Bromund

Principal Attorney
July 30th, 2014

honoring our fallen warriors

“War is Hell”– General William Tecumseh Sherman

Hell sometimes doesn’t end when the war does.  We have had two centuries of honoring our fallen warriors, those indispensable few who gave all so that this nation, this experiment in liberty, would not end.  We keep cemeteries and holidays and give posthumous medals to recognize their courage and sacrifice.  Their widows and orphans become special to our society and we look out for them (not enough) so that they need not endure deprivation in addition to the grief of loss.  But what about the wounded warriors, the ones who come home but leave something important behind?

Purple Heart on American FlagIf their wounds are visible, they can receive physical therapy, prosthetics, surgeries and, most importantly, accommodation by a society that can see their injuries.  Their lot is not good and their suffering is certainly real but we can all understand what has to be done for them to make their way in the world.  By and large, we do our best to help them along.

For the warrior whose wounds are not visible, however, things are more grim.  The stress and trauma of war (combat, death of friends, loss of innocence and shattered wordviews) linger for many veterans for the rest of their lives.  Those injuries can become wounds far deeper than any visible wound and can impair one’s ability to function in our society.  After all, no one accommodates your combat-caused paranoia because no one can see that you are feeling paranoid.  Even worse, most of our society doesn’t even stop to consider that the mental wounds of war persist and impact EVERY part of someone’s ability to interact with society.  Instead, we just expect that a returning veteran can integrate smoothly back into normal life.

In the field of criminal defense, we know, all too well, that this is not the case.  Many veterans struggle with severe persistent mental illness after returning home from serving their country.  Post-Traumatic Stress Disorder is the most recent high-profile illness, resulting in disorientation, difficulty controlling violent impulses, paranoia and occasionally hallucinations but it is by no means the only illness.  Schizophrenia is another common war wound that causes a person’s entire world view to shift radically, rendering their ability to address everyday life extremely limited.

At the Bromund Law Group, we work very hard to see that these veterans are given the same consideration we would give a veteran with a visible wound.  We believe that mental illness is no different than physical illness in the extent to which it is blameworthy to be ill.  We don’t blame the person with the flu for being unable to work or the blind person for being unable to see and we shouldn’t blame the schizophrenic for being unable to handle our rule-intensive compliance-driven society.  Fortunately, California law agrees.  Through the provisions of Penal Code Section 1170.9, a criminal court is obliged to consider treatment rather than incarceration for veterans whose wounds are mental.  This is a powerful tool for the skilled advocate to shape a resolution that is more just and rehabilitative.

We cannot guarantee that we will be able to avoid jail time for all charged and guilty defendants.  We can, however, report that recently we were able to navigate a case through to resolution that will keep a severely mentally ill combat veteran from the Vietnam war from being further harmed by a sixty-day stay in the county jail.  His schizophrenia rendered him too ill to benefit from the mental health court and too difficult to accept confinement safely.  For the 18 months we worked on his case it appeared as if all the options were bad:  he was guilty, there was more than enough evidence to convict him, he was in extremely poor health and his mental illness caused him to react violently whenever anyone tried to confine him.  Fortunately, we persisted on his behalf and eventually won recognition that the principal embodied in section 1170.9 (treatment for the mentally ill veteran is appropriate instead of confinement) could be vindicated here through an out-patient process by staying his jail time while he was successfully participating in treatment.  In this task, we were gratified to see the District Attorney’s Office of Ventura County recognize that doing justice requires using judgment and discretion to see that maximum punishment is not always what is best for society.

Now, thanks to this hard work, one of our wounded warriors is able to continue the long hard struggle to leave the hell of war behind and return to the bright light of freedom.  His sacrifice allows us to enjoy our freedom; our advocacy allows him to attempt to enjoy his.

serving those who servedIf you or someone you love needs help in seeking a just resolution to charges against a veteran, please do not hesitate to contact the Bromund Law Group.  I am an honorably discharged naval officer with a long family tradition of military service; I care deeply about the welfare of those who defend our freedom every day and in every age.  We never charge for a consultation and we are honored by your trust and confidence in our advocacy.

As always, this blog does not constitute advice for your case or any other specific case.  It is merely provided to offer opinions and insights about ongoing legal issues.  If you require specific advice, please call our office today at 805.650.1100.

Matthew Bromund of Bromund Law Group

Matthew Bromund
Principal Attorney

Only Half of Marriages End In Death, What’s Your Plan If Yours Isn’t One of Them?

by Matthew Bromund

Principal Attorney
July 29th, 2014

Only Half of Marriages End In Death51% of all marriages end in the death of one or both spouses.  The remaining 49% end in divorce.  Married couples buy life insurance, draft wills and engage in estate planning to help prepare each other for the 51% likelihood that death will end their marriage.  No one thinks this is ‘unromantic’ or ‘pessimistic’.  Instead, people see it as an important part of being prudent and caring for each other.

What then makes preparing for the other possibility, divorce, so wrong?

In my opinion, preparing for the other possible outcome is rejected irrationally by most couples based upon the social expectation of a traditional Christian marriage.  I do not contend that this is based upon most couples actually being traditionally Christian in their religious views (we live in a VERY diverse society) nor do I contend that most couples actually intend to engage in what is now called a ‘covenant marriage‘; rather I believe our attitudes about marriage are so shaped by movies, magazines and hyper-romanticization that we don’t truly focus on the realities of our relationships until long after the wedding vows are made.

This tends to make marriages more difficult and divorces more expensive.  A pre-nuptial agreement can help make a marriage easier to manage and less painful to end.

First, how can it make a marriage easier to manage?  Understand that in California, all you are obligating yourself to when you marry someone is to give them mutual respect, fidelity and support.   Actual marriage tends to revolve around agreements on work, residence, sex, children, lifestyle and values.  California’s law has moved from offering a one-size-fits-all set of obligations based on strict Christian religious obligations to a one-size-fits-all set of amorphous and unenforceable obligations.  The practice of ‘mutual respect, fidelity and support’ has no touchstones of performance, no specific proof of acceptability and is absolutely unenforceable.  That’s ok, since ending the marriage merely requires the expression of another amorphous idea, ‘irreconcilable differences’.  These two sets of legal nonsense boil down to one reality:  marriage is the state of consenting to be identified as married and that state ends when either party no longer wishes to so consent.

Most likely, no couple ever existing has had that as the only obligation intended when they marry.  Instead, most every couple has a long list of obligations they intend to see performed through the marriage.  The most common of those relate to working, child-rearing, communication, and resource-pooling.  Oftentimes couples share a set of values and religious practices and they would like to see those values and practices reflected in their marriage.  California law takes no part in making those a part of your marriage.  Through a prenuptial agreement though, you can make it a part of your marriage.

(Sidenote:  I am not contending that California will ENFORCE those agreements or penalize a spouse who doesn’t perform.  It won’t.  Instead, I am contending that if you discuss it with your spouse before you marry, write it down and promise each other that you will live according to those commitments, your odds of having those commitments honored during your marriage improve substantially.) 

California Law permits a prenuptial agreement to cover the following topics:

CA FAM Code Sec. 1612.  (a) Parties to a premarital agreement may contract with respect to all of the following:

  1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.
  2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
  3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
  4. The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
  5. The ownership rights in and disposition of the death benefit from a life insurance policy.
  6. The choice of law governing the construction of the agreement.
  7. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

You will notice that the only topic invoked by divorce is the ‘disposition of property upon marital dissolution’.  Otherwise, the provisions of a prenuptial agreement are focused on providing a couple a framework for their marriage DURING the marriage.

Besides providing yourself a clearer understanding with your spouse on what your marriage means, why would you want to do a prenuptial agreement?  Quite simply, because it will work to inhibit the growth of irreconcilable differences.  After fifty years of ‘no fault’ divorce, the facts are clear about what causes divorce today.

Top Two Causes of Divorce in the First Five Years of Marriage: 

1. Lack of Understanding at the Outset about Expectations and Resources.

2. Disagreement over Finances or Stress Due to Financial Misunderstanding.

 

 Doing a prenuptial agreement eliminates the #1 cause of divorce in the first five years of marriage by  insuring the couple has a shared understanding of what their marriage will be about.  It also acts as a pretty good cure for the #2 cause since the couple will discuss, in detail, their finances and financial values in preparing a prenuptial agreement.  In my fifteen years of doing divorce work, I have seen these two causes provide the overwhelming majority of reasons for divorce in the first five years of marriage.  (Not adultery, domestic violence or addiction; those three cause substantial marital stress but tend not to result in a dissolution, at least not initially.)  For marriages that end after the first five years, we realize the more commonly understood benefit of a prenuptial agreement:  reduced legal costs and conflict.

When you have a dissolution proceeding, California WILL act to see the terms of a prenuptial agreement enforced if the agreement is fundamentally fair and provides guidance as to how the parties wanted to have their marital estate divided when they married.  This is the conventional wisdom on prenuptial agreements and it is pretty accurate.  Most of the cases I have seen involving a dissolution with a prenuptial agreement cost 80% less than an equivalent dissolution and are resolved within the mandatory six-month pendency period 98% of the time (versus about 65% of the time in non-pre-nuptial agreement dissolutions of marriages lasting more than five years).

Finally, I want to offer some guidance as to how to make a prenuptial agreement work for you in your marriage and, if you are one of the unlucky 49% whose marriage doesn’t end in death, after.

The Big Three For a Prenuptial Agreement that Works:

  1. Fundamental Fairness—No unconscionable terms, at least a seven day waiting period between the date the agreement was offered and the date it was signed, full disclosure of all the terms and their impact and the opportunity to have independent counsel for each party.
  2. Complete Identification of What Is and Is Not Separate Property both Now and Later.
  3. Limit, don’t eliminate, the obligation to pay spousal support; the California courts look much more favorably on limitations rather than waivers.

 

Let the Prenuptial Agreement show that you agree what is fair while you both love each other and see this process as a way of taking care of each other. The Bromund Law Group is happy to offer free prenuptial consultations and will prepare a prenuptial agreement for a flat fee of $250. 

As always, this blog post does not constitute specific legal advice for any case and it does not form an attorney-client relationship between the Bromund Law Group, its attorneys or associates, and any person.  Please contact us at 805.650.1100 for your free consultation (in either English or Spanish) and we will see if we can help you.  We are always happy to receive your referrals or comments.

In California, You Now Have a Spouse, Not a Husband or a Wife

by Matthew Bromund

Principal Attorney
July 26th, 2014

Marriage Equality

After years of litigation and voting, California’s three branches of government have united to rule that the California Constitution is wrong.  By signing SB 1306, Governor Jerry Brown ratified the actions of the State Assembly to enact the ruling of the California Supreme Court:  Marriage is now between two single people who consent to be married.  The Family Code will no longer reference “husbands” and “wives” but rather spouses.

This is a historic step that opens the door for couples of every sexual combination to be legally married.  Since the US Supreme Court’s ruling in June 2013 declaring that the trial verdict against the constitutional amendment stating that marriage was between one woman and one man could not remain a part of California’s constitution would stand, California has effectively been a state permitting same-sex marriage.  Today, however, the California Family Code formally recognizes that fact.  In bringing into alignment all three branches of government, this new law makes clear that two people can marry regardless of their sex.

It will be interesting to see if the availability of same-sex marriage produces a decline in civil unions (the mechanism created to permit same-sex couples the same benefits as a marriage without using the title ‘marriage’).  It will also be interesting to see if the predictions of Proposition 8′s supporters comes true and other groups, currently denied the state of marriage, petition to have their relationships recognized as marriages as well.

For now, it is a remarkable moment in history, when the Christian conception of marriage (one man/one woman/for life) is formally and finally divorced from the law in California.  I predict religious organizations of all types to now promote their definition of marriage as being one binding on the faithful while the law continues to move towards a more pragmatic recognition of family, however constituted, as being valid so long as it is based upon the consent of the adults involved.  In that way, I suspect the First Amendment’s guarantee of the free exercise of religion for all citizens to be more forcefully asserted by those whose own marriage traditions have long been treated as illegitimate in a Christian-dominated legislative arena.

As family law attorneys, what does this mean?

First and foremost, it means advising clients to do ever more work to insure that their expectations in a marriage are reflected in a prenuptial agreement.  Since California’s Family Code now has only three obligations provided for, by law, in the marriage:  mutual respect, fidelity and support (CA FAM Code Sec. 720) and a marriage can be dissolved on the basis of irreconcilable differences, a couple desiring any other vows or requirements should do so in a prenuptial agreement.  Many spiritual practices and religions have additional obligations, obligations that can only be legally enforced if the parties participate in a prenuptial agreement.

Second, it means that conventional dissolutions will soon be occurring for same sex couples.  In the past, these relationships have been spared the usual process of dissolution with all its standardized forms and formal processes, because the civil union body of law was not as cumbersome as the dissolution body of law.  I personally hope that more couples plan ahead and are prepared for the possibility of a dissolution when they first contract a marriage but that hope remains as intense for same sex couples as it is for opposite sex couples.

Third and finally, it means that we can all celebrate the resolution of a long-standing dispute in our society.  While the courts have been given the power, through practice, of telling us what our laws are and should be, there is something important for our democratic republic in seeing that the law is generated by our legislatures and enacted by the consent of our executives.  As long as the elected branches of government are not engaged in the process of drafting the laws and leaving it only to the courts to address, we lose an important part of our sovereignty.  Whether a specific citizen of California hails or hates this new provision of law, we can all now say that this IS the law, enacted by our government.

As always, if you or someone you love has need of assistance and guidance in family law matters in California, the Bromund Law Group is here to help.  We offer no cost consultations and provide comprehensive family law services in English and Spanish.  This blog is not intended to provide specific guidance in your case and is rather offered for general educational purposes.  Please do not rely on this blog for your case nor should you consider this entry to constitute the formation of an attorney-client relationship with the Bromund Law Group.  If you have questions, please call us at 805.650.1100.