So Similar Yet So Different: Check Your Local Jurisdiction with Courtney Shepard
It’s become a bit of a running gag throughout our five seasons that we often tell you to “check your local jurisdiction,” but there’s good reason behind the joke. Every state, or jurisdiction, has its own laws that need to be followed and adhered to.
To help us in this conversation, we’ve invited family law specialist Courtney Shepard from Burch Shepard Family Law Group – all the way from Orange County, California – to join us so we can better understand how laws are similar from jurisdiction to jurisdiction, how they’re different, and how you can better navigate them during your own divorce.
It may be that the divorce happened during the process and decision to move from one jurisdiction to another. Or perhaps the two of you are looking for the best place to get your divorce. Maybe you’re trying to sort out what is best for the kids. Or maybe there’s a prenup involved.
There are many reasons you may need to think about dealing with different jurisdictions during your divorce process, and we touch on them here. so tune in to hear Seth, Pete, and Courtney hash through the murky waters of ‘local jurisdictions.’
Find Courtney at Burch Shepard Family Law Group
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Seth Nelson:
Welcome to How to Split a Toaster, a divorce podcast about saving your relationships on True Story FM. Today, what happens when your toaster leaves the state?
Welcome to this show, everybody. I'm Seth Nelson and as always, I'm here with my good friend, Pete Wright. Today on the show it's time to check your local jurisdiction. That's right. We say the words just about every week, but what does it really mean? Why are jurisdiction so important in the pursuit of your divorce? What happens when your soon to be former spouse lives in a different jurisdiction than you. To help us we've scoured the nation and found two attorneys. Of course, there's me in the great state of Florida and then exactly 2,521 miles between Tampa and Newport Beach, California we found a board certified family law specialist in California law, Courtney Shepard who's a family law attorney at Burch Shepard Family Law Group. Courtney, welcome to The Toaster.
Courtney Shepard :
Thank you for having me, Seth. I'm happy to be here.
Pete Wright:
I'm thrilled to have this conversation today, or more importantly for you two to have this conversation, because we say the words... I should have a bell. I really should have a bell, or at least the show should be some sort of a drinking game where people get just properly soused every time we say the words, "Check your local jurisdiction." We say it all the time and we have never had a conversation that really pulls apart why jurisdictions are important? Shouldn't divorce just be equal?
Seth Nelson:
Oh, Pete, come on out. Out of all the shows we've done Haven't you realized nothing is equal or equitable when it comes to divorce? The only ones that win are the lawyers. That's why we have Courtney here.
Courtney Shepard :
At least that's what the parties think.
Seth Nelson:
Okay.
Pete Wright:
So Seth, this was originally, I think this was your brainstorm. How would you like to set this conversation up in terms of framing the differences between jurisdictions? Where would you like to start here?
Seth Nelson:
Well, the concept that I was thinking about is we always hear a lot about Florida family law because that's where I am licensed to practice law. That's the law I know about. And quite frequently, I get the pleasure of talking to lawyers in other states jurisdictions to see sometimes is it better for our perspective client, because we maybe we're both talking to the same client who there might be allowed to bring the case in Florida. They might be allowed to bring the case in Wisconsin. So I might talk to someone from Wisconsin and say, "Hey, what's better for our client. What's the potential outcomes." It could also be anywhere around the world.
And I've had those conversations as well with lawyers in far, far away places to say, "Is it better in your country or in my country? If my country is Florida, the right state from which to bring the divorce." So I just thought one, is it different? And two, what about the process? Is it ultimately the law is a little different, the concepts are the same, but the process and the feelings and the emotion? Doesn't matter what state line you're in or in what state jurisdiction you're in.
And so I've had the pleasure of speaking with Courtney before about whether a case should be brought some in one jurisdiction or another and how they practiced in California. And she was kind enough to come on the show.
Pete Wright:
Okay then to you. We're talking about states and jurisdictions and you live and practice in a very, very large state. So educate me. What is a jurisdiction? Is a jurisdiction always a state or is there some other gerrymandering going on around court legal jurisdictions? What does that mean?
Courtney Shepard :
So the jurisdiction is the state.
Pete Wright:
Okay.
Courtney Shepard :
And however different counties, although the law is the same throughout the entire state of California, if you go into a courthouse in Riverside or Hemet, not outside of Orange County where I live, sometimes the judges have different interpretations of the California state law. And if it's a jurisdiction like Hemet, they might not want to award a spouse a lot of spousal support if it's a big case, because typically they don't have those big cases in that county. So while the law is the same throughout the entire state, some judges may interpret it differently.
Seth Nelson:
But Pete, you're also asking another question. One is, it is the state. That's what we define as jurisdiction, but you also have to think of it as power. Does the judge have the power to hear the case?
Pete Wright:
Okay.
Seth Nelson:
Does it fall within their jurisdiction?
Courtney Shepard :
Okay. Can you give me an example of that?
Seth Nelson:
Yeah. So in Florida, check your local jurisdiction. We're going to see how it is in California. To file for divorce one of the parties has to be a resident of the great state of Florida for at least six months prior to filing your petition for dissolution of marriage, the divorce paperwork.
Pete Wright:
So that's a residency requirement we're talking about here.
Seth Nelson:
It is. It's a residency requirement. And so you can't be living somewhere in the U.S. and search all 50 states and figure out what's the best place for me to get divorced financially or for the kids where I'm going to get a leg up and go pick that state, parachute in on day one and file on day two. The state of Florida's like, "Mm-mm (negative). You're not going to use us for our laws. You've got to be a resident for six months."
Pete Wright:
Okay.
Courtney Shepard :
And California has the same jurisdiction requirement. So you have to be a resident for six months prior to filing and live in the county that you want to file for three months.
Pete Wright:
Okay.
Seth Nelson:
Which we don't have that three month rule.
Pete Wright:
Okay. So residency seems like a big one, a big one to be aware of. Can you choose though? I mean, are there states that you're aware of that don't have the parachute clause? Like you could just go... I'm looking at Nevada, right? You can go get married anytime you can. Can't you get divorced every time-
Seth Nelson:
You got to go to Vegas. Right, Pete. You're just thinking a quickie divorce in Vegas.
Pete Wright:
I'm the guy who's helping people plan their next couple of weekends. That's all I'm saying.
Seth Nelson:
I don't know what the law is in Vegas. Courtney, you're closer than I am.
Courtney Shepard :
That's true. But I don't know what the law is in Vegas for filing for a dissolution of marriage, but in California, something that people do if they haven't lived in California for six months prior to them wanting to file for divorce, we have something called a legal separation where there are no jurisdiction requirements. And so you can file for a legal separation and then once they meet the jurisdictional requirements, we amend the petition to a dissolution of marriage.
Pete Wright:
Okay. Legal separation. What does that mean?
Courtney Shepard :
So in California, you can file for a disillusion of marriage where you get divorced in the end of the process.
Seth Nelson:
Official divorce. Yeah.
Courtney Shepard :
And then a legal separation, the parties are still married at the end of the process, even though the process is the same as a divorce. And so a lot of the times I get potential clients who call me and say, "What's the difference between a legal separation and a dissolution of marriage?" And-
Seth Nelson:
I'm that client. What is the difference? So basically it just sounds like once at the end, you're still married and the other one you're not.
Courtney Shepard :
Well. So that is the biggest difference. And the reason people would choose to do a legal separation versus a divorce, there's a few reasons. One is age, the parties are older. They don't really want to get divorced, but they don't like each other anymore. They don't want to live with each other. They want to divide their assets. But maybe for health insurance reasons, they don't want to get divorced because they still need each other's health insurance. So people stay quote, "married" for that, but all of their assets are divided. The other reason, religious reasons. People don't believe in divorce, but they don't like each other. So they want to separate and divide their assets. So they do a legal separation. Those are usually the biggest reasons people would choose a legal separation versus a divorce.
Pete Wright:
Wow. Seth, do you have anything like that?
Seth Nelson:
Nope.
Courtney Shepard :
Oh really?
Seth Nelson:
It's literally that simple. We're in the great state of Florida. I like to say you it's like being pregnant. You're either married or you're not. Now, there's the whole process of going through the divorce when you might be separated. But there's one little spot in the statute that talks about legal separation and I always find it a misnomer, but we can use it for one little minor nuance thing, which I will not bore anyone with. But there's nothing like what Courtney's talking about. You cannot file for a legal separation. You can't divide all your assets. Similarly though, you can file a petition for support alimony or child support, not connected with divorce. And what happens is people are living together. Someone controls the money, they're having problems and they stop. They cut off all the money and the person says to me who the money's been cut off, "I still want to work on the marriage, but I'm not getting any support. What can I do?"
I said, "Well, you got two choices. You can file for divorce, which will lead to you being divorced, not married and we can get support or you can actually file for support while you're married." So it's like a legal operation and 99% of the time, they don't do that. And they say, "Well, why would I do that?" I said, "You do it because you want to stay married." But in my experience, the moment you file for support not connected with divorce, you're going to get sued for divorce. So you're going to end up just wasting attorney's fees.
Courtney Shepard :
Exactly. I see that too. We have a similar action that you can file for support without filing a divorce or a legal separation. You can just file for support as well. But I have the same experience that you do.
Pete Wright:
Okay. So from the perspective of somebody listening to this who's considering a divorce, let's just say someone walks into your office Courtney and says, "Okay, it's not going well. We've lived in California for a long time, but my soon to be former spouse has moved to Phoenix to live with their aging parents," whatever. They're no longer in the same state. What are some considerations that... And lets to say they currently have no plans to be in the same state for a while. What are the considerations that you walk this potential new client through when it comes to formalizing the divorce process?
Courtney Shepard :
Okay. Yeah. I actually have this exact case where my client lives in California and her husband is in Arizona. So-
Pete Wright:
Not just a hat rack, my friends
Seth Nelson:
That's pretty impressive. Usually the hypothetical Pete gives me I'm like, "No, never heard of that before."
Courtney Shepard :
So when she called me and said, "I want to get a divorce, my husband's in Arizona, I'm in California. What would be better?" I tell her the law in California. California is a community property state. I don't know what Florida is. California's community property meaning everything acquired during the marriage is community property and it's to be equally divided at divorce. Now, there are exceptions, but that's the general premise to start with. And so I went through and told her, "This is how your assets would be divided in California." And I said, "We need to consult an Arizona attorney to find out the law in Arizona to see what would be better for you to file in California or to file in Arizona." So that's what we are doing.
Seth Nelson:
I'm jumping in here, Pete. I'm going to change your hypothetical a little bit because you're hypothetical, the husband originally lived in California and left and you are obviously pro husband here to take care of their [crosstalk 00:13:21] to take care of their aging parent in Arizona.
Pete Wright:
What you're seeing is I'm pro aging parents, man.
Seth Nelson:
Oh, my mistake, my mistake. Okay.
Pete Wright:
You played yourself. Go ahead.
Seth Nelson:
Okay. So here's the deal. What happens if that husband always lived in Arizona, never came to California. Wife moved to California for a job, was there for six months. Husband never visited, never stepped foot in the state has never, ever had any contact with Arizona. No businesses, no nothing.
Pete Wright:
Okay. So now she has residency in California and he clearly is residency. Look at what you did to my hypothetical. You made it like a story-
Courtney Shepard :
You made it very complicated.
Pete Wright:
Yeah. With the subplot and there are like villagers and it's just a really emotional art. I'm very impressed.
Seth Nelson:
Well, thank you.
Pete Wright:
All right. Now what? We roll the dice.
Seth Nelson:
Courtney, what happens in that situation?
Courtney Shepard :
Now you want me to answer this mess? So it depends. That's everybody's favorite answer and the lawyer's favorite answer. It would depend. We would have to then have an argument over where the case should be heard. Is it proper for it to be in California? Because wife came here for a job and has been here for six months? Did her husband know that she was coming here for a job? Did they agree they were going to stay in California. Did they buy property in California? Was husband intending to come to California? So these are the questions that I would want to answer. And then one of them would have to file a motion to quash the petition to determine which is the proper jurisdiction for the divorce to take place. And so you could argue both sides of it and then the judge would have to decide.
Seth Nelson:
Right. But in Florida, if that happens in Florida, you've got two things of jurisdiction. And we always say, ?Check your local jurisdiction." When we're saying that one, when we talk about power, like what is the law in your state? That's usually, Pete, how you and I refer to it.
Pete Wright:
Sure.
Seth Nelson:
The other one where I was talking about is the power. Does the judge have the power to hear the case? So that's called subject matter jurisdiction. So if you're going to file for divorce in Washington, DC, you cannot file in the United States Supreme Court. You're not going to have your divorce case in the United States Supreme Court as the starting grounds. I know.
Courtney Shepard :
That's correct.
Seth Nelson:
Because they do not have subject matter jurisdiction. They don't have the power as powerful as they are, they don't have the power to listen to your divorce case right out of the gate.
Okay. But does the court have the power, what's called personal jurisdiction, over the person? So I've had cases where one spouse has lived here. The other spouse has had no contact ever with the state and therefore the state of Florida doesn't have power over that person. They can't make them come to the state. They can't make them take depositions in the state. So there's all these things about power to hear the case and then power over the person. These are pretty rare circumstances in family law, because most people, when they're married at some point have some connection to the state where their spouse happens to be. But sometimes not.
Courtney Shepard :
Unless they're leaving to change the jurisdiction. A lot of people want to leave California and go to Texas because their spousal support is much better in Texas than it is in California. I've had that case.
Pete Wright:
Can you just choose any... I mean, we just established there's the residency requirement, but let's just say, somebody feels like, "Hey, I want to go to Texas and do this. We're going to move there just to get jurisdiction for the divorce." Is that a circumstance?
Courtney Shepard :
If both parties moved and went there and established residency with the intent to stay there, sure.
Pete Wright:
Wow.
Seth Nelson:
Or if you sign a prenup.
Courtney Shepard :
Right.
Seth Nelson:
And you say we're going to use the laws of Florida to do our divorce.
Pete Wright:
Wait a minute. Talk more about that. That circumvents a residency requirement?
Seth Nelson:
Well, let's say you're in Florida. You're living in Florida. You file for divorce in Florida, but your prenup was in Wisconsin. And the prenup in Wisconsin that was signed in Wisconsin, said, "We're going to use the laws of Florida to decide our divorce." Okay. You can pick which state you're going to use. You're contracting to use a different state law and you're allowed to do that under Florida law.
Courtney Shepard :
And California.
Pete Wright:
And you don't have to be in the state when the divorce takes place?
Seth Nelson:
Nope, because I've got prenups that have been signed in Florida and then they move to California and they get divorced, but they're going to apply Florida law.
Pete Wright:
This is like filing your corporation papers in Delaware. Isn't it? This is the same thing.
Courtney Shepard :
Exactly.
Seth Nelson:
You got it. Now, [crosstalk 00:18:32] there's always the exception to the rule. The state of Florida will say, "We'll do that as long as that state law isn't against our public policy." There's always the catchall get out of jail free card. So if they're looking at Sharia law, for example, they might not apply that because they might find it against the public policy of the great state of Florida.
Courtney Shepard :
Right.
Pete Wright:
Okay. So Courtney, back to our example, our brilliant-
Courtney Shepard :
Yes.
Pete Wright:
Our brilliant and prescient example that I brought to you earlier, let's just say it's a jump ball, right, and it lands in Arizona. What happens to you then? This person came to you and said, "Hey, I want to work with you." Are you done?
Courtney Shepard :
Yeah, I would help her find an attorney if she wanted me to in Arizona because I'm not licensed to practice law in Arizona.
Pete Wright:
Okay. Is that something that someone could potentially look for? Is that a selling point to you as a lawyer to get licensed in multiple states? Does that happen?
Courtney Shepard :
No.
Pete Wright:
No. Okay. So glad I asked.
Seth Nelson:
Well [inaudible 00:19:43] Literally I think I got sick for a moment, Pete-
Pete Wright:
[crosstalk 00:19:46] I know. That was hardcore.
Seth Nelson:
Guess what you have to do Pete to get licensed in other states?
Pete Wright:
Umm-
Courtney Shepard :
Take the bar.
Pete Wright:
Oh yeah, of course. Yeah.
Seth Nelson:
Yeah.
Pete Wright:
Yeah. No, that's what I'm saying. Isn't that like... Is that a thing? Look at the east coast. There's so many states that touch each other. Can't you... Or go to the four corners?
Courtney Shepard :
Well some people do. Some people are licensed in other states and some states allow attorneys from other states to, what they say wave in, is sometimes there're certain requirements that you can do without taking the bar is my understanding. I don't know for sure because I've never tried. Some states have reciprocity with other states that allow an attorney to practice in their state. California however does not allow any out-of-state attorney. So no other states offer reciprocity to California because we don't offer it to anybody. I don't know if Florida does. I don't know any other states, but I'm not taking another bar exam. That's the end of that. I said after the bar, I was never going to take another bar exam. And then I took the Certified Family Law Specialist Exam, which is another bar exam in the area of family law and after that, I'm not taking another bar exam.
Seth Nelson:
Until her spouse wants to move to Pittsburgh and she's a big Steeler fan and now she's going to take another bar exam. That's how that's going to work.
Pete Wright:
Right. I'm feeling-
Seth Nelson:
So here's the deal, Pete. There is a, this is a great term, I love it, Pro hac vice.
Courtney Shepard :
Yeah. You can do that.
Seth Nelson:
Oh, so pro hac-
Pete Wright:
You just made that up. It's okay.
Seth Nelson:
It is legal term when you're adding a lawyer into a case and a jurisdiction in which the lawyer is not licensed to practice law. So literally as we know, my mom passed away last year, the last case she litigated was in Federal Court in Montana. She was not a member of the Montana bar and they filed a motion with the court asking for pro hoc vice saying, "Look, I am not a member of the Montana bar. I'm being asked to be co-counsel in this case. Will you accept me as a member of your bar for this one case?" So there are ways to do it on an individual basis and there's rules about it, like, "Oh, we'll let you in on two cases, but not more than," then take the bar exam, right?
Courtney Shepard :
Right.
Seth Nelson:
So there's a way to co-counsel. Sometimes you can be asked to come in, you can file a motion. If the court grants it, you're in. But there aren't a lot of lawyers that are licensed in more than one state and if they are, it's usually just a handful. It might be like New York, New Jersey, like you're saying those states where they all touch each other up in the Northeast, but-
Courtney Shepard :
Right.
Pete Wright:
Okay.
According to the national Institute on alcohol abuse and alcoholism, approximately 10% of children live with a parent with an alcohol use disorder.
Seth Nelson:
This is an alarming statistic as a family law professional, who deals with custody cases regularly.
Pete Wright:
Finding the balance between the child safety and helping the child maintain a relationship with both parents is one of the hardest things to navigate. Add in the, he said, she said phenomenon that happens with divorcing couples who often weaponize alcohol use against one other and the situation is even more difficult.
Seth Nelson:
All of this is why Soberlink has been one of the most important tools for my clients dealing with these issues. Soberlink's remote alcohol monitoring tool has helped over 500,000 people prove their sobriety and provide peace of mind regarding the child's safety. Soberlink helps keep the focus on the best interest of the child, which is really the most important part in the divorce case, dealing with children. I've teamed up with Soberlink to create a parenting plan guide, to help people going through divorce that involves alcohol and children.
Pete Wright:
And you can download it today at soberlink.com/toaster. And if you take a look and you think you're ready to order Soberlink, just mention How to Split a Toaster for $50 off their device price.
Seth Nelson:
Our thanks to Soberlink for sponsoring How to Split a Toaster.
Pete Wright:
We've already dropped the terms, community property on the show. We need to talk about community property versus equitable distribution I think, right?
Seth Nelson:
That's impressive, Pete.
Courtney Shepard :
Yes.
Seth Nelson:
It's good. We like what we've been doing, we've never talked about community property and Courtney throws it out and you're like, "Wait a minute." I like it.
Pete Wright:
I know some stuff, some stuff I can do. It's okay.
Seth Nelson:
You do a lot of great stuff, man.
Pete Wright:
So let's do, so... Courtney covered us on community property, our introduction. What is equitable distribution? How would you frame that in context of this conversation, Seth?
Seth Nelson:
So Courtney will cover community property, like she said. In Florida, we're not a community property state. So we deal with what's called equitable distribution. It is the division of assets and liabilities in a divorce and the rule is not everything that comes into the marriage is marital. It depends on what comes in, how it comes in, do you co-mingle it? So by way of example, if you are given a gift, Pete, during your marriage and you live in Florida, it's your birthday and your parents give you a gift. Your kids give you a gift, your friends give you gifts. That is yours. It's not half your spouses. It was a gift to you. The main way that usually shows up in our cases is inheritance. That's a gift. You've received a gift. So if you take that gift and you put it in a separate bank account, assuming it was cash and you don't put your spouse's name on it, it maintains the gift principles and properties and therefore it's not part of the marital estate.
It is equitably divided outside of our little sheet that we use. It is your separate property. If you take that same gift and you put it into a joint account with your spouse, you've taken a gift and you've made it marital.
Pete Wright:
Okay.
Seth Nelson:
Okay. So you can co-mingle it. You put it in a bank account that's only your name on it, but that's where your marital money from your earnings have been going. You've co-mingled it. And I get a lot of calls, like, "Oh my God, I didn't... I thought it was just my name. It was fine." And I'm like, "Nope, you've co-mingled it.
Pete Wright:
Okay. Because you put it in a joint account. Now this counts for stuff like... So been working real, real hard and you get a great bonus. You get 40 grand at the end of the year, but it's made out to you. You did the work. You put it in your family checking account. That becomes community but could you put that in a separate account and make it-
Seth Nelson:
Nope, because that's marital labor.
Pete Wright:
Marital labor-
Seth Nelson:
That's not a gift. Yeah.
Pete Wright:
So is marital labor marital property?
Seth Nelson:
Yeah. Marital labor is marital property.
Courtney Shepard :
Well, that's like California. We just call it community property that your efforts, skills and labor are community property during the marriage.
Pete Wright:
Okay. So Seth's example of the gift, how does that play out in California?
Courtney Shepard :
It's the same.
Pete Wright:
Oh, okay. So re we just using the same words or different words for the same thing effectively?
Seth Nelson:
Well, the problem right, Courtney, is that there's always the exceptions. So you really got to dig into the exceptions and a lot of these concepts line up Pete.
Pete Wright:
Yeah.
Seth Nelson:
But the nuances are different. That's why I'm always saying, and you're always ringing that bell, "Check your local jurisdiction." And also to Courtney's point, don't just check your local jurisdiction as far as the state law, but what judge are you in front of? How do they interpret that law, right. And the problem with the law is it's made up of language and language can be unclear. And the more we try to define something, sometimes we create more confusion and here's a simple example of that. There's children and then there's adults. And then you have a gray area of these kids that are they really children or are they really adults? And I'm not saying, "Oh, at 18," that's the hard line, right. But just generally speaking. So then we talk about adolescence. So now we've taken care of that middle group. They're in their adolescence, right? Or young adults, right.
Well now there's more gray lines. Where's the gray line between a child and an adolescent? There's a gray line between adolescent and young adult. There's a gray line between young adult and adult. So the more we define things, the more gray can get on the edges and you get clever board certified lawyers like Courtney who's going to expose those issues when you're talking about language?
Courtney Shepard :
That's right. It's never a black and white in the law, kind of gray.
Pete Wright:
Well, and that was actually my next question. What considerations... Are there any broad strokes considerations, jurisdiction to jurisdiction that people might expect with specific handling of kids, child custody. Do you run into that or kids are kids?
Seth Nelson:
Courtney, what do you think? Best interest of the child is that fairly?
Courtney Shepard :
I think all courts would look at best interest of the child. I think that's pretty common.
Pete Wright:
Okay.
Seth Nelson:
But what does that mean? Right?
Courtney Shepard :
Right
Pete Wright:
Now we're fighting about something.
Courtney Shepard :
Right.
Seth Nelson:
Exactly.
Pete Wright:
Best interest of the child is always and here for here t, into the future, to live in my basement.
Seth Nelson:
Exactly. And we don't have those in Florida.
Pete Wright:
To serve me in all my whims.
Courtney Shepard :
In Florida do you allow the children to express their preference for where they want to live at a certain age?
Seth Nelson:
It's not a hard fast rule. You have to file a motion with the court and it depends on the judge. It depends on the age. They have to be of sufficient age and maturity to give a preference.
Pete Wright:
What does that mean?
Seth Nelson:
Well, see, that's why we get paid, right?
Courtney Shepard :
That's right.
Seth Nelson:
So I had a case where there was a 16 year old and everybody testified. His child was smart, doing well in school, was very mature and the judge says, "Okay, I've heard enough. I'll listen to the kid." And then they say, "But no one's going to get to cross examine that child. I'm going to just talk to him. You can submit questions. I'll decide whether to ask them or not."
Pete Wright:
Hmm.
Courtney Shepard :
That happens in California too but we have a age. The family code actually provides an age 14 where the court shall listen.
Seth Nelson:
Whoa. We don't have that.
Courtney Shepard :
Yeah. The court shall allow... Make a way for the child to express their preference, either through testimony, chambers conference with the court, just like you said, where the attorneys can submit questions or we have something called a minors interview through our family court services or appoint an attorney for the child.
Pete Wright:
Wow. That seems like to really like you upset. Was it the word shall?
Seth Nelson:
Yep. It was the word shall.
Courtney Shepard :
Yeah.
Seth Nelson:
Because I'll have judges here that will be like, "I shall not." Exactly. Don't even file the motion. Now, it would be my guess that there're judges in California that don't like being told what to do by the great legislature. And when they put in word, "shall" they get offended. Okay. And so they'll do the shall in any manner that Courtney just laid out for us, but they're not really going to pay attention to what that kid's saying. Right?
Courtney Shepard :
With some of the judges you are correct.
Pete Wright:
Ding, ding, ding, ding. They just put a couple pieces of gum in their mouths and you see them put big headphones on while the kids starts talking. Power move, courtroom power move. I want to transition. I shall transition because we've talked a lot about the divorce process. How does mediation work when you're talking across state lines? Are there different considerations or is it still pretty much no jurisdiction, good luck.
Courtney Shepard :
So mediation is confidential and nothing that you say can be used in the courtroom later, if you don't settle. So it's all confidential and privilege. Attorneys do mediation. There's people who are not attorneys that do mediation, which is a huge problem. And I just met with a lady who went to mediation and I felt so bad for her. She just got totally screwed and taken advantage of by her husband, because I really feel that people who engage in mediation need to have a very high level of trust with each other. Both parties need to know what the finances are and one spouse cannot be the person who's in control. The power position. If there's an unequal power position in the relationship, one party always gets screwed and it's horrible. And then I have to fix it, if I can.
Seth Nelson:
All that sounds very familiar. It's confidential in Florida. There are mediators who are not lawyers. They're mediators that are lawyers. People can go to mediation without lawyers pro se. They can go with lawyers. But the process is I think the same. So Courtney, you show up, you either sit... In Florida locally here, we don't ever put the parties in the same room. Very, very rarely, but you're always in, what's called caucus. You're in separate rooms and the mediator goes back and forth and they're neutral and they try to solve the problem and end up with a parenting plan or a marital settlement agreement and everyone signs at the end. Does that sound familiar?
Courtney Shepard :
Yeah, we do put the parties in the same room. I guess we like drama here in California.
Seth Nelson:
The movies.
Courtney Shepard :
I've had to ask someone to leave the room before and stand up and walk out because people start screaming at each other. So really, it just depends on the parties and whether or not they can be in the same room. Otherwise we do the exact same thing. Everybody's in their own room. The mediator goes back and forth.
Pete Wright:
But in terms of the across state lines a bit, because everything's privileged and confidential you can help somebody whose former spouse is in another state, or do you all just go up to Salt Lake and meet there and have a ski and-
Seth Nelson:
Let's say that Courtney's representing someone in California and I'm representing the spouse who is now living in Florida.
Pete Wright:
Yeah. We're going to meet in Denver. It'll be great.
Seth Nelson:
Great. No, we'll probably do it by Zoom.
Courtney Shepard :
Yeah. Zoom.
Pete Wright:
Okay. But it can be done.
Seth Nelson:
Yep.
Pete Wright:
Okay.
Courtney Shepard :
Yeah. If the divorce is in California and they don't have children or one spouse decided to move and the divorce is still going on in California, yes. We can mediate anywhere, especially now because of Zoom.
Pete Wright:
I guess the part that I was... There are specific processes and regulations for the divorce, just because you're not going to court. Whose rules do you abide by?
Seth Nelson:
You would abide by the California rules if it's a California case.
Pete Wright:
Okay.
Courtney Shepard :
Whatever it's filed.
Pete Wright:
But so the divorce is filed, whatever state that's in, then those are the rules but you can be anywhere for a mediation, right.
Seth Nelson:
And ultimately the judge will make the decision. So for example, I know of a case that there was going to be a mediation and one of the lawyers got COVID and everyone thought, "Oh, we're not going to go for it. He's got COVID, but we're under a court order so you can't just show up." Not you can't ignore the order and not go to mediation so they filed a joint stipulation. "Your honor, they got COVID. We want to postpone mediation and reschedule it." The judge got it said, "Nope, everybody's going in person except the guy with COVID. He can appear by Zoom.
Pete Wright:
And they stick an iPad on a robot broom handle and just make him wheel around.
Seth Nelson:
Yeah, exactly. So judges have a lot of power, a lot of discretion, especially when they're handling the case and moving it through their own system, their own courtroom.
Courtney Shepard :
Exactly.
Pete Wright:
Okay. Now, the divorce is finalized. People are living apart. They've moved to different states. How do you handle post divorce issues? Right? People get upset about kids traveling back and forth or whatever. Is there a special process or any special considerations for folks who are dealing with this, living in different states?
Seth Nelson:
Oh Pete. You're just like singing... You're just like teeing them up today. Now we get to talk about the UCC JEA, the Uniform Child Trustee Jurisdiction and Enforcement Act.
Pete Wright:
I was just thinking of that. But specifically [crosstalk 00:37:27] that's why I led the question. That's what I did.
Seth Nelson:
Yeah. A little leading quest... This is the nicest bedtime story. Kai, when he was little, he would be up at night and say, "Daddy, more. Can I read one more, one more statute please."
Pete Wright:
Yeah, that's right.
Seth Nelson:
So there's two things here. One let's assume it's not dealing with kids. So we don't deal with the UCC JEA. Whatever state you are in that's going to be the state that controls. And you can take that order and let's say they've both now lived... They were in California. Courtney got a great deal for her client. Her client's now living in Florida. So is the ex-husband and they don't want to go back to California to litigate. I can take that California order, bring it to Florida and make it a Florida order because now we get to talk about the constitution.
Courtney Shepard :
That's right.
Seth Nelson:
Yep. Courtney's excited. [crosstalk 00:38:30] well excited about this stuff-
Pete Wright:
I watched her eyes get really wild-
Seth Nelson:
I know.
Pete Wright:
... saucers.
Seth Nelson:
We have full [crosstalk 00:38:38] full faith in credit clause. One law, one order, and one jurisdiction is enforceable in the other jurisdiction, but there's always the carve out unless it's against public policy. And that is why the gay marriages ended up going to the Supreme Court because some states were saying, "Hey, this is our law. You can get married." Those couples would go to another state. And that state says, "We're not recognizing Massachusetts law in Texas. We're not going to do the full faith in credit because it violates our public policy. And ultimately the United States Supreme Court resolved that issue.
Pete Wright:
Okay.
Courtney Shepard :
That's right. I agree.
Seth Nelson:
How often does that happen? Lawyers agree. But no, it's a good question. If you're in different states and you're dealing with a contract and a court order, how does it happen? What's the process?
Pete Wright:
Yeah. These people get upset with each other because former spouses sometimes get upset with each other and they want to get their lawyer involved. But now they live 2,000 miles away. Who do they call? Not their lawyer unless they really want to go back to California and be there. No. Right?
Seth Nelson:
Which you can. It depends. I mean, in Florida, the court reserves jurisdiction, holds onto the power to enforce it, right. So that's what happens a lot. So you can go back to Florida, but it's just might not be convenient, right?
Pete Wright:
Okay.
Courtney Shepard :
Right. It's same in California but usually if the judge realizes that none of the parties live in California, the judge wants to get rid of the case because they have too many and they will say, "Go to one of those other states."
Pete Wright:
Oh, man. Okay. All right. Well, and that led to my bit of clarification around the difference between a court having jurisdiction over one of the spouses, but not the divorce or having jurisdiction over the divorce, but not one of the spouses. That was some confusing legal jumble for me.
Seth Nelson:
Yeah. It's because it is confusing.
Pete Wright:
Oh good.
Seth Nelson:
And here's the other reason why it's confusing is it's so fact intensive. So by way of example, remember the Florida rule. You have to be a resident for six months prior to filing. So let's say you have a couple that's married here. They're living here. They've been here for six months, but one of them moves out of state. The other party follows them and three weeks later comes back to Florida. And then the one that came back files for divorce. The question on whether Florida has jurisdiction, the first party that moved out was like, "No, got a job. I intended to move. I was never coming back to Florida." The second one said, "I went with my spouse. Three weeks later, I came back." The question for the court is when that spouse left the state, were they going to be with their spouse who got the job permanently they were not intending to come back or did they always intend to come back?
Pete Wright:
So now you're looking at what kind of plans did they make before they went to Georgia? But did they sell their house? Did they start closing bank accounts?
Seth Nelson:
Did they change their driver's license? Did they change their voter registration card? Did they get a storage unit? What did they do to come back? What stuff did they take with them? Anything you can do to figure out their state of mind at the time and they're saying, "I never intended to stay with my spouse who got the job." Let's just call the spouse the husband. The wife's like, "Nope, he got the job. I moved up there with him, always knowing that I was coming back to Florida. I just hadn't told him I wanted a divorce yet."
Courtney Shepard :
Right.
Pete Wright:
Did they find that picture on Facebook with them holding a sign that says, "Who's a proud Georgian?" with an arrow pointing to their face?
Seth Nelson:
Exactly. Exactly. So that's why it's complicated. You literally... Did they post something to your point, Pete, did they post something on Facebook saying, "Check out our new home."
Courtney Shepard :
Right.
Pete Wright:
Check out our new forever home.
Seth Nelson:
Right. Exactly.
Pete Wright:
I feel like we need another bell that is, "Please people, stop posting on social media when you're considering a divorce."
Courtney Shepard :
[crosstalk 00:43:29] tell my clients.
Pete Wright:
See, even in California, they tell you this and California's where all these people, all the social media companies live. This is illuminating. Let's just say, next Monday, eight o'clock, day one, you're considering a divorce and you're separated across state lines. What's the first bit of advice you're going to give this potential party?
Seth Nelson:
Stay married
Pete Wright:
And upset Courtney.
Courtney Shepard :
Well, I won't say that.
Pete Wright:
Yeah, that's taken.
Courtney Shepard :
If they have the chance to think about it, figure out which state is better for them financially or for the kids before they file. Talk to a lawyer in both states would be my advice.
Pete Wright:
Talk to a lawyer in both states. Okay. And now as we wrap up, how often is it that laws within your jurisdiction change, like statutes change. Does it happen all the time?
Seth Nelson:
Oh, so yeah. So here you've planned for your divorce. You've talked to a lawyer, you've checked out the law, the statute, the case law, everything and you say, you know what? I'm moving to Florida because I think alimony is going to be better for me in Florida.
Pete Wright:
Oh, that's a nice answer, Seth.
Seth Nelson:
And then you move, right. And then right when you parachute in, you stay your six months, you're ready to file. The Florida legislature passes a new alimony reform bill and changes the law and it's sitting on the governor's desk and it might or might not get signed. And how does that impact ultimately what your decision was to move across the country to get a more favorable alimony law? That could be a problem. So statutes changing do not happen often. There might be little tweaks to a statute fixing a scrivener's error as they call them or something like that. Or what happens more often is, when a case gets appealed, it gets interpreted differently and then that might change how the law is applied and that happens daily.
Courtney Shepard :
That happens all the time. Yeah. And also like especially for prenuptial agreements in California, I feel like the law is always changing with regards to prenuptial agreements and how they interpret prenuptial agreements and whether they're going to be enforceable. And that's, I think very hard when people want a prenuptial agreement and they come to you and they say, "Is this going to be enforceable if I get divorced?" And I'm like, "I don't know, because they could change the law," and sometimes those prenuptial changes are applied retroactively, which is a little scary.
Pete Wright:
How do we do anything just as humans? How do we do anything? Am I right. So I mean, come on. That's crazy talking. I have this legal contract and it may be good for you in 25 years.
Seth Nelson:
It's ridiculous.
Courtney Shepard :
Shrug.
Pete Wright:
Right, right.
Seth Nelson:
Exactly. That little emoji.
Courtney Shepard :
Yeah. Right.
Pete Wright:
I have only two emoji that I use. It's shrug or man facepalming. And I think both of them could apply here.
Courtney Shepard :
Yes they do.
Pete Wright:
This actually has been enormously illuminating for me and I feel like I've belabored the point only because I am in constant state of shock about how the law works and especially now how the law works between states.
Seth Nelson:
But before we go, I want to ask this question. Courtney, do you think the emotion, the stress, all the... Would I say, part of the attorney and counselor at law, when you're being the counselor at law to get them through the process, do you think that's the same no matter what state you're in?
Courtney Shepard :
I think a hundred percent it's the same. I tell people every day that I feel like I'm a therapist, half of my job, listening to people, trying to calm them down, make them stop crying. I try to tell my clients, "Look, I know this is hard. We got to put the emotions aside because this is a business decision." And I try to frame it that way so they can think of it more in business to try to get some of that emotion out. But yes, I think the stress, the handling of the client, the emotion is all the same, no matter what state you are in.
Pete Wright:
Thank you, Courtney so much for being here, being with us. So for our California listeners, where would you like to send them to learn more about the work that you do?
Courtney Shepard :
Oh, thank you. I am in Orange County, California, Newport Beach, specifically. The name of my firm is Burch Shepard Family Law Group and our website is OCdivorce.net
Pete Wright:
And a proud Steelers fan?
Courtney Shepard :
And a proud Steelers fan in California.
Pete Wright:
In California. That's fighting words as they say-
Seth Nelson:
Like how many people are members of that club?
Pete Wright:
Really?
Courtney Shepard :
[crosstalk 00:48:52] Do you think. More than [crosstalk 00:48:53] you think.
Pete Wright:
I'll bet that's true.
Seth Nelson:
Yeah. I know because I was thinking like you and your husband going to a table and being like, "The Steeler club is here." So yeah. It must be.
Courtney Shepard :
No, I meet new Steeler fans almost every day.
Pete Wright:
Every day, Seth.
Courtney Shepard :
Every day.
Seth Nelson:
I don't even meet new people every day. I don't even know how that-
Courtney Shepard :
Then you should get out more.
Seth Nelson:
Yeah.
Pete Wright:
Yeah. Have you tried introducing yourself to some Steeler fans? They're very chatty.
Seth Nelson:
I understand that, but Pete's like, get your work done so we can do the podcast. That's all I'm allowed to do.
Pete Wright:
Yeah. [crosstalk 00:49:29] we sure appreciate you being here. Courtney, this has been fantastic. Thanks for representing the west coast and joining us for this fair show. Seth, thank you as always for your expertise on behalf of Courtney Shepard and America's favorite divorce attorney on the east coast, Seth Nelson, I'm Pete Wright with-
Seth Nelson:
On the east coast.
Pete Wright:
Yeah. Do you see what I did there?
Seth Nelson:
Yeah, Courtney's the favorite now. I got it.
Courtney Shepard :
On the west coast.
Pete Wright:
That's right. There you go. We will see you next week right here on How to Split a Toaster, a divorce podcast about saving your relationships.
Speaker 5:
Seth Nelson is an attorney with Nelson Koster Family Law and Mediation with offices in Tampa, Florida. While we may be discussing family law topics, How to Split a Toaster is not intended to nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction. Pete Wright is not an attorney or employee of Nelson Koster. Seth Nelson is licensed to practice law in Florida.
