Custody and visitation are fighting words. Divorce lawyers and judges are beginning to use the less confrontational term "parenting schedule" instead. The new term is not just a euphemism. It also signals a different approach to an age-old problem.
Professionals emphasize the needs and interests of the children, not the rights of the parents. According to the most recent research and literature on child development, infants are capable of forming multiple attachments and bonds. That means infants can and should spend time with both Mom and Dad after divorce.
Just a few years ago experts believed an infant was at risk if the child spent more than a few hours away from the primary caretaker - usually the mother. That prevented courts from allowing a father to spend an overnight with an infant, and sometimes even curtailed overnights with a child under the age of five. That was consistent with the best interests of the child, according to the old school of jurisprudence. The father's rights were less important than the child's need for an undisturbed bonding experience with Mom.
Courts are now incorporating the latest research
Wednesday, August 8, 2007
Child Support & Alimony
Mention alimony and most men and women sigh and roll their eyes. Men feel exploited. Women feel ambivalent. On the one hand women want their fair share of family resources, and on the other they want to cut ties to their former spouses. Interestingly, most women never receive any alimony.
Typically alimony is paid in periodic installments (weekly or monthly, for example) for a certain length of time or until the death of one of the spouses or the remarriage of the recipient. Unlike child support, alimony is taxable to the recipient and deductible by the paying spouse under the rules of the Internal Revenue Service. As a result, many high earning spouses are better off paying family support in the form of alimony instead of child support because alimony is paid in pre-tax dollars and child support is paid in after-tax dollars. That means a dollar of alimony may cost the paying spouse 60 cents whereas a dollar of child support costs $1.40, assuming the paying spouse pays 40 percent of income in taxes.
Child support ends on the emancipation of a child. Emancipation, meaning the child coming of age and capable of self-support, is determined under state law. In Massachusetts and Hawaii, for example, that may occur as late as the age of 23, unless a child is incapacitated. Georgia and many of its sister states set the age at 18. Furthermore, each of the 50 states has its own version of the Child Support Guidelines to help calculate an appropriate amount of support in a case.
Alimony might continue beyond the emancipation of the last child, and unlike child support, it is not determined by a set of published Guidelines. Judges have enormous discretion when awarding alimony. That creates uncertainty
Typically alimony is paid in periodic installments (weekly or monthly, for example) for a certain length of time or until the death of one of the spouses or the remarriage of the recipient. Unlike child support, alimony is taxable to the recipient and deductible by the paying spouse under the rules of the Internal Revenue Service. As a result, many high earning spouses are better off paying family support in the form of alimony instead of child support because alimony is paid in pre-tax dollars and child support is paid in after-tax dollars. That means a dollar of alimony may cost the paying spouse 60 cents whereas a dollar of child support costs $1.40, assuming the paying spouse pays 40 percent of income in taxes.
Child support ends on the emancipation of a child. Emancipation, meaning the child coming of age and capable of self-support, is determined under state law. In Massachusetts and Hawaii, for example, that may occur as late as the age of 23, unless a child is incapacitated. Georgia and many of its sister states set the age at 18. Furthermore, each of the 50 states has its own version of the Child Support Guidelines to help calculate an appropriate amount of support in a case.
Alimony might continue beyond the emancipation of the last child, and unlike child support, it is not determined by a set of published Guidelines. Judges have enormous discretion when awarding alimony. That creates uncertainty
Qualcomm Lawyers Taken to the Woodshed Over Discovery Conduct
It may take a while to erase the black mark two San Francisco law firms -- and their client, Qualcomm Inc. -- received Monday courtesy of a San Diego federal judge, but the company and firms have all vowed to fight.
In a strongly worded 54-page ruling, San Diego federal Judge Rudi Brewster accused Qualcomm and its trial counsel of committing "gross litigation misconduct" by withholding crucial evidence in Qualcomm's patent infringement case against Broadcom Corp. Though the judge did not identify the law firms by name, he specifically referred to Qualcomm's representation up until the spring of this year, a time when the company was represented by Heller Ehrman and Day Casebeer Madrid & Batchelder.
Heller partner Stanley Young and Day Casebeer partner James Batchelder were among the outside counsel representing Qualcomm.
Brewster criticized "Qualcomm's constant stonewalling, concealment and repeated misrepresentations" during discovery, scolded the company's "presentation of numerous witnesses who steadfastly testified falsely" and condemned its counsel, which "adamantly denied the obvious, and then, when the truth was discovered and exposed by the document production, sequentially contended denial of relevance, justification, mistake, and finally non-awareness."
Brewster ordered Qualcomm to pay all Broadcom's litigation fees, which David Rosmann, vice president of intellectual property litigation for Broadcom, said could be around $10 million. The judge also disqualified two of Qualcomm's patents.
He is expected to issue a ruling in the next couple of weeks on possible sanctions against Qualcomm and its attorneys.
Wilmer Cutler Pickering Hale and Dorr represented Broadcom in the litigation.
Broadcom is seeking an evidentiary hearing to find out how the evidence came to be concealed, Rosmann said. The company is also asking for a discovery master to monitor Qualcomm's conduct in other litigation. "I think they've proven they really can't be trusted," Rosmann said.
After Qualcomm was found to be infringing on a Broadcom patent in a separate case, the International Trade Commission issued a ban in June on the importation of cell phones using Qualcomm chips that infringe on the patent. On Monday, the Bush administration declined to reverse that ban.
In a statement on Brewster's ruling, Qualcomm said it "respectfully disagrees with the court's findings" and intends to appeal them.
"Qualcomm acknowledges the seriousness of the court's findings and reiterates its previous apology to the court for the errors made during discovery and for the inaccurate testimony of certain of its witnesses," the statement read.
Qualcomm originally accused rival chip maker Broadcom of infringing on several of its patents that dealt with transmission of video data. Broadcom prevailed in a January trial, yet sought additional relief when it was revealed during trial that Qualcomm engineers had participated in industrywide meetings to set a common standard for video transmission.
If Qualcomm participated in such standards-setting, then its patents could be voided.
Before and throughout most of the trial, Qualcomm denied that its engineers had consulted with the standards body during the relevant years and resisted turning over more information about its involvement.
"Qualcomm counsel produced none of the over two hundred thousand pages of emails and electronic documents ... which were clearly within the scope of the requests and that were finally produced four months post-trial," Brewster wrote. Those e-mails detailed Qualcomm's involvement with the standards-setting group.
The judge rejected an apparent contention that Qualcomm had misled its lawyers about what evidence was available.
"Qualcomm counsel's indefensible discovery conduct belie counsel's later implied protestation of having been 'kept in the dark' by their client," the judge wrote.
Day Casebeer's Batchelder and Qualcomm's general counsel, Louis Lupin, sent letters of apology to the court in April, saying they failed to do a detailed enough keyword search of Qualcomm e-mails.
Batchelder was out of town Tuesday and was not available to comment. His colleague Craig Casebeer declined to comment Tuesday and referred to Qualcomm's released statement.
Although Brewster didn't name him, the judge accused Heller's Young of first telling the court that the relevant e-mails did not exist. But Young then changed his stance, Brewster wrote, saying he was somehow "not cognizant" of the e-mails -- even though Young admitted "there was fleeting mention" of e-mails in his presence.
Young released a statement on behalf of his firm denying any allegations that it knowingly misled the court.
"The arguments that Heller Ehrman made during the course of the Qualcomm litigation were based on the facts as Heller Ehrman understood them," the statement read. Young also said the firm was not in charge of responding to requests for evidence about Qualcomm's consulting in the standard-setting body.
According to State Bar of California rules, judges are required to notify the Bar of sanctions against an attorney -- but not if those sanctions are imposed only because of failure to comply with discovery orders.
In a strongly worded 54-page ruling, San Diego federal Judge Rudi Brewster accused Qualcomm and its trial counsel of committing "gross litigation misconduct" by withholding crucial evidence in Qualcomm's patent infringement case against Broadcom Corp. Though the judge did not identify the law firms by name, he specifically referred to Qualcomm's representation up until the spring of this year, a time when the company was represented by Heller Ehrman and Day Casebeer Madrid & Batchelder.
Heller partner Stanley Young and Day Casebeer partner James Batchelder were among the outside counsel representing Qualcomm.
Brewster criticized "Qualcomm's constant stonewalling, concealment and repeated misrepresentations" during discovery, scolded the company's "presentation of numerous witnesses who steadfastly testified falsely" and condemned its counsel, which "adamantly denied the obvious, and then, when the truth was discovered and exposed by the document production, sequentially contended denial of relevance, justification, mistake, and finally non-awareness."
Brewster ordered Qualcomm to pay all Broadcom's litigation fees, which David Rosmann, vice president of intellectual property litigation for Broadcom, said could be around $10 million. The judge also disqualified two of Qualcomm's patents.
He is expected to issue a ruling in the next couple of weeks on possible sanctions against Qualcomm and its attorneys.
Wilmer Cutler Pickering Hale and Dorr represented Broadcom in the litigation.
Broadcom is seeking an evidentiary hearing to find out how the evidence came to be concealed, Rosmann said. The company is also asking for a discovery master to monitor Qualcomm's conduct in other litigation. "I think they've proven they really can't be trusted," Rosmann said.
After Qualcomm was found to be infringing on a Broadcom patent in a separate case, the International Trade Commission issued a ban in June on the importation of cell phones using Qualcomm chips that infringe on the patent. On Monday, the Bush administration declined to reverse that ban.
In a statement on Brewster's ruling, Qualcomm said it "respectfully disagrees with the court's findings" and intends to appeal them.
"Qualcomm acknowledges the seriousness of the court's findings and reiterates its previous apology to the court for the errors made during discovery and for the inaccurate testimony of certain of its witnesses," the statement read.
Qualcomm originally accused rival chip maker Broadcom of infringing on several of its patents that dealt with transmission of video data. Broadcom prevailed in a January trial, yet sought additional relief when it was revealed during trial that Qualcomm engineers had participated in industrywide meetings to set a common standard for video transmission.
If Qualcomm participated in such standards-setting, then its patents could be voided.
Before and throughout most of the trial, Qualcomm denied that its engineers had consulted with the standards body during the relevant years and resisted turning over more information about its involvement.
"Qualcomm counsel produced none of the over two hundred thousand pages of emails and electronic documents ... which were clearly within the scope of the requests and that were finally produced four months post-trial," Brewster wrote. Those e-mails detailed Qualcomm's involvement with the standards-setting group.
The judge rejected an apparent contention that Qualcomm had misled its lawyers about what evidence was available.
"Qualcomm counsel's indefensible discovery conduct belie counsel's later implied protestation of having been 'kept in the dark' by their client," the judge wrote.
Day Casebeer's Batchelder and Qualcomm's general counsel, Louis Lupin, sent letters of apology to the court in April, saying they failed to do a detailed enough keyword search of Qualcomm e-mails.
Batchelder was out of town Tuesday and was not available to comment. His colleague Craig Casebeer declined to comment Tuesday and referred to Qualcomm's released statement.
Although Brewster didn't name him, the judge accused Heller's Young of first telling the court that the relevant e-mails did not exist. But Young then changed his stance, Brewster wrote, saying he was somehow "not cognizant" of the e-mails -- even though Young admitted "there was fleeting mention" of e-mails in his presence.
Young released a statement on behalf of his firm denying any allegations that it knowingly misled the court.
"The arguments that Heller Ehrman made during the course of the Qualcomm litigation were based on the facts as Heller Ehrman understood them," the statement read. Young also said the firm was not in charge of responding to requests for evidence about Qualcomm's consulting in the standard-setting body.
According to State Bar of California rules, judges are required to notify the Bar of sanctions against an attorney -- but not if those sanctions are imposed only because of failure to comply with discovery orders.
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