The Letter of The Law: May 2013

FAMILY LAW: How to Help Your Children Get Through Divorce

CONSTRUCTION: Indemnity

How to Help Your Children Get Through Divorce

By: Hoang-Anh Zapien

Divorce is a time of turmoil for the entire family. Typically, parents have had time to prepare for and come to terms with the fact that the family unit will be dissolved. However, this news is always startling to children, no matter how inevitable divorce may have seemed. Children often perceive their parents as "superheroes," so they innocently expect that their parents will work through and solve any issue. When this is not the case, children are often left feeling confused and scared. Divorce ultimately shatters the basic sense of safety and stability that a child finds with Mom and Dad in a united family unit.

What to Tell Your Children During the Divorce:

  • Tell them they are not responsible for the divorce!
  • Tell them both parents love them although one parent will no longer live in the home.
  • Be prepared with an age appropriate answer when your child asks, "Why are you getting divorced?"
  • Explain to them in as much detail as possible all the changes that might take place due to the divorce. Give your child as much time as possible to assimilate to the idea of their entire world changing. If possible, do not make huge changes overnight!
  • Tell your child to come to you with any questions, concerns or fears they may have. Be a source of security for your child during this time.

What You Should Never Do During the Divorce:

  • Never allow your emotions to get in the way of doing and saying what is in your child's best interest.
  • Never speak unkindly of, or degrade the other parent in front of the child. Allow your child to maintain a high level of respect for the other parent so they never feel as though they are stuck in the middle.
  • Do not allow your issues with your ex-spouse to interfere with your relationship with your children. Your child deserves you to be the best parent possible, regardless of what issues you are going through with the other parent.

Parents owe it to their children to minimize the long lasting effects that divorce can have on a child. Divorcing parents need to commit to establishing a solid co-parenting relationship with one another, where every decision is centered on what is in the best interest of the child. Although the parents are not together as a couple, a child will ultimately benefit from seeing their parents remain unified in raising and making decisions for their life. This will allow the child to regain stability and security in knowing that their parents remain committed to their parental roles, even if the family unit has dissolved.

Indemnity

Indemnity is a concept that causes most lawyers and judges to cringe, and causes some clients to cry. Why? Because it is a concept that has almost nothing to do with whether you did something wrong. Instead it usually has everything to do with whether you signed a contract or other legal document where an indemnity provision was lurking. "Lurking" means "to lie in wait in a place of concealment, especially for an evil purpose."

Indemnity provisions are a common component of construction contracts and they can wreak havoc on the profitability of a project. Therefore, you must know what your potential for havoc is before you sign any contract that includes an indemnity provision.

In California, if you sign a document, you are presumed to have read and understood it. Everyone knows that people sign documents without necessarily reading or understanding them. If you read every document while closing escrow, you would be reading for days. So there must be a certain level of trust when you deal with others. That trust can end up costing you a lot of money if there is an indemnity provision and you do not know what it means.

For example, on most projects where a subcontractor has bid through a general contractor, the subcontractor is asked to sign a standard pre-printed contract. They usually include (lurking somewhere) an indemnity provision that says you agree to indemnify, defend and hold harmless the general contractor for every related bit of property damage, personal injury or even death. The exact language used in that indemnity provision can make all the difference in the world. Depending on the wording, it may be void and unenforceable. On the other hand, a subcontractor may be held liable for all liability, including litigation costs and legal fees, due to the negligence of the general contractor, despite the complete innocence of the subcontractor.

Another example involves the owner of a property where construction is being performed who needs to obtain an additional loan, but the title insurer wants the contractor to indemnify them for any liens on the property. The contractor may agree due to the fact that the contractor feels he has control over any potential lien. However, what if the contractor is fired shortly after the loan documents are signed? The indemnity may include the duty to defend for every conceivable liability and expense. If it can be conceived, it will likely happen at some point in time, and you do not want to be on the hook when it happens.

However, all is not lost. There are many defenses to indemnity claims, and there is hope that the justice system will actually result in justice. That is where lawyers can be a valuable asset.

The BEST advice is to know what dangers lurk within the contract BEFORE you sign on the dotted line. At least then you will possess the knowledge to negotiate or refuse to sign documents that include a provision with an unfair purpose. That knowledge may make all the difference for your project.

Registration is now open for the Kring & Chung Newport Beach Triathlon

Registration is now open for the Kring & Chung Newport Beach Triathlon, which will take place on October 20, 2013 in the Back Bay of Newport Beach, California. The course includes a 1/2 mile swim, 15 mile cycle, and a three mile run.

Visit www.newportbeachtriathlon.com for more information and to register.