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LONICH PATTON EHRLICH POLICASTRI
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Phone: (408) 553-0801 | Fax: (408) 553-0807 | Email: contact@lpeplaw.com
LONICH PATTON EHRLICH POLICASTRI
Phone: (408) 553-0801
Fax: (408) 553-0807
Email: contact@lpeplaw.com
1871 The Alameda, Suite 400
San Jose, CA 95126
Located in San Jose, Lonich Patton Ehrlich Policastri handles matters for clients in northern California, specifically San Jose and Silicon Valley. Our services are available to anyone within the following counties: Santa Clara, San Mateo, Contra Costa, Santa Cruz, Monterey, San Benito, and San Francisco. For a full listing of areas where we practice, please click here.
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Post-Nuptial Agreements and Spousal Support
/in Family Law /by Mitchell EhrlichSpousal support and prenuptial agreements often make headlines in high profile divorces; however, the lesser known separation agreement (a type of post-nuptial agreement) can also pose difficult issues for divorced couples. In North Carolina, for example, NASCAR Chairman Brian France is fighting to rescind a separation agreement that calls for him to pay more than $40,000 a month in spousal and child support. [NASCAR Divorce Case Gets Messier]. These types of agreements involving spousal support are valid under California law.
Separation agreements—also referred to as property settlement agreements or marital settlement agreements— are often executed by spouses when their marriage breaks down. The parties are free to agree to a division of property rights and/or rights and duties of spousal and child support, and then have a court approve the agreement. There are, however, statutory limitations on agreements regarding spousal support that must be taken into consideration.
One of the primary obligations imposed by statute on married persons is the obligation of support. Spousal support provides one’s spouse with the necessities of life, measured by the lifestyle of the particular parties. This obligation of support has long been regarded as unalterable during marriage. California Family Code section 1620 explicitly states, “Except as otherwise provided by law, a husband and wife cannot, by a contract with each other, alter their legal relations, except as to property.” Therefore, spouses in an ongoing marriage may not enter into post-nuptial agreements waiving or limiting the right of either spouse to support the other in the event of separation.
Section 3580 of the California Family Code, however, creates an exception to this prohibition. A husband and wife may agree, in writing, to an immediate separation and may provide in the agreement for the support of either of them and of their children during the separation or upon the dissolution of their marriage. The important distinction is that this agreement can only be made when a couple is ready for an immediate separation. Absent an immediate intent to separate, a court will not uphold a post-nuptial agreement altering spousal support.
If you have a post-nuptial agreement in place, if you are contemplating having one put together, or if you have been asked to sign a post-nuptial agreement and you are concerned about how it may affect your rights, the Certified Family Law Specialists* at Lonich Patton Erlich Policastri have substantial experience in handling post-nuptial agreements. Please call our office to schedule a free 1/2 hour consultation.
*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization
Kelsey Grammer wants to split siblings in divorce- Not entirely unprecedented
/in Family Law /by Mitchell EhrlichMedia outlets reported that actor Kelsey Grammer, who is embroiled in a contentious divorce with his third wife Camille Grammer, put together a proposal in which the parties would live in separate parts of the country (he in Chicago, Camille in California) and they would each have primary custody of one of their two children; splitting up the siblings.
While not entirely unprecedented, it would be difficult for Mr. Grammer to convince a judge or custody evaluator that it would serve the children’s best interests to split up their two children and have each live thousands of miles apart.
In fact, based on the appellate court decision in Marriage of Williams (2001) 88 Cal. App. 4th 808, Mr. Grammer is unlikely to prevail. In Williams, the court held that California policy affords strong protection to sibling relationships and that—absent compelling circumstances, such as extraordinary emotional, medical or educational needs—an order separating siblings between custodial households ordinarily will be reversed as detrimental to the children’s best interest.
While Mr. Grammer’s arguments in favor of splitting up the siblings are not known, he would face a difficult challenge in this instance.
The Certified Family Law Specialists at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed custody issues. If you are in the midst of a custody dispute involving multiple children or if one might arise soon and you are concerned about the possibility of your children being separated from his or her siblings, please contact the Certified Family Law Specialists at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues.
Spousal Support Waivers in Pre-Nuptial Agreements Given Further Protection
/in Family Law /by Mitchell EhrlichThe California Appellate Court recently upheld a spousal support waiver in a pre-nuptial agreement despite the fact that, under current California Law, the provision should be struck down as invalid.
In the May 24th, 2011 appellate court decision of In re Marriage of Howell, the California Court of Appeal for the Fourth District enforced a future spousal support waiver of a pre-nuptial agreement signed in 1999; despite the fact that under California Family Code section 1612, the provision should have been invalidated. Family Code section 1612, which is part of the Uniform Pre-Marital Agreement Act, provides in subsection (c) that:
Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement.
Mrs. Howell signed the pre-nuptial agreement, containing a waiver of future alimony, at her husband’s request. At the time, she could not afford to hire an attorney to review the agreement and her husband (then, fiancé) did not offer to pay the cost for her to consult with an attorney.
At the trial court level, the court invalidated the spousal support waiver finding that Family Code section 1612, enacted in 2002, did in fact apply retroactively to the agreement, fully executed in 2002. On appeal, the appellate court did a full analysis of whether the statute should be applied retroactively to a 1999 agreement. Finding that it constituted a “material change in the law” and that it was not intended to apply retroactively, the appellate court ruled that the trial court erred in retroactively applying the statute and upheld the validity of the spousal support waiver.
If you have a Pre-Nuptial Agreement in place, if you are contemplating having one put together, or if you have been asked to sign a pre-nuptial agreement and you are concerned about how the Howell decision and Family Code Section 1612 may affect your rights, the Certified Family Law Specialists at Lonich Patton Erlich Policastri have substantial experience in handling pre-nuptial agreements. Please call our office to schedule a free half hour consultation.
Mother’s Cancer Prognosis Results in Difficult Decision in North Carolina Custody Case
/in Family Law /by Mitchell EhrlichA judge’s difficult decision in a North Carolina custody case is garnering national attention and criticism and raising questions of what it means to be an unfit parent. Durham County Judge Nancy Gordan ruled that because Alaina Giorano has Stage IV breast cancer and her prognosis is uncertain, her children, 11 year old Sofia and 5 year old Bud, must move from Durham to Chicago to live with their father. She wrote: “The course of her disease is unknown. Children who have a parent with cancer need more contact with the non-ill parent.” The judge also noted that she ruled in favor of the father because he is employed in Chicago and is the family’s sole breadwinner. Theoretically, Ms. Giordano could also move to Chicago to live closer to the children since she is unemployed, but she is undergoing treatment at Duke University and is not inclined to look for a new treatment team since her health is currently stable.
Ms. Giordano is appealing the ruling, and is gathering support from many across the country. Over 7,000 people have signed an online petition urging North Carolina Governor Bev Perdue to overturn the decision. Ms. Giordano has also appeared on the Today Show, where she told Matt Lauer,”I think it is a dangerous ruling for me and my children and how it will affect us, but also for people all over the world with cancer. This is a bad precedent.”
This ruling is sparking a heated debate between commenters on online articles about the case. Many feel that it is unfair to use a cancer patient’s diagnosis against her to deny custody of her children and feel that the children will be traumatized when taken away from their mother during her time of need. Others believe that the ruling is in the children’s best interests, so that they are shielded from the difficulty of their mother’s illness.
Although the above case was decided in North Carolina and of questionable wisdom, the issue of a parent’s physical health and disabilities can be a factor in custody cases and has been addressed by California courts as well. The most prominent Supreme Court case on this issue, In re Marriage of Carney (l979) 24 Cal. 3d 725, 598 P.2d 472, provides that a parent’s disability cannot be the sole basis upon which custody is denied.
However, Carney has been repeatedly cited by non-disabled parents who continue to argue that the court can still consider the health or disability of a parent as one of the many factors in considering whether a child should be in the custody of disabled parent.
To bolster the rights of disabled parents, in late August 2010 California Governor Arnold Schwarzenegger signed SB 1188 into law (effective January 1, 2011 and now California Family Code Section 3049). This law shifts the burden of proof onto the parent who raises the disability. It is hoped that Family Code section 3049 will afford disabled parents greater protection in California family law cases by making it more difficult to use their disability to alter custody or visitation orders.
If you have questions about child custody or visitation and would like to speak with an experienced Family Law Attorney, please contact Lonich Patton Erlich Policastri for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
There’s No “Hiding the Ball” in Family Law Cases: The Importance of Understanding your Fiduciary Obligations to your Spouse or Domestic Partner
/1 Comment/in Family Law /by David PattonThe California Family Code incorporates the rules of civil discovery that are generally applicable in all civil cases. Discovery is the process by which the parties to a legal dispute obtain information about the other side’s case so that the parties can engage in informed settlement negotiations and prepare their case for trial. Discovery devices include interrogatories (written questions to the other party requiring written responses under oath), depositions (taking oral testimony under oath from the other party), and inspection demands (requiring the other party to produce documents and/or tangible things for inspection).
In an ordinary “arm’s length” civil case (a contract dispute, for example), it is crucial to utilize these procedures effectively, as they are often the only means available to obtain information about the other side’s case. Parties in “arm’s length” civil disputes ordinarily have no independent duty to give the other side any information outside of the discovery process.
While discovery sometimes has its purpose in family law cases, there is an important distinction that makes family law cases unique. Under the Family Code, spouses owe one another fiduciary obligations both during the marriage and after separation. In other words, spouses must act “with the highest fairness and honor” in their dealings with one another. This is the highest duty known to the law. It is akin to the duty an attorney owes to his or her client and the duty owed to a business partner.
Why is this significant? It is significant because it means spouses have an independent obligation to disclose all material facts and information regarding the existence, characterization, and valuation of assets and debts, and all information about income and expenses, without request. This duty applies both during marriage and after separation until the date the asset or liability in question is actually distributed and, as to support and professional fees, until a binding resolution is reached on these issues. A spouse need not conduct formal discovery to enforce these obligations.
The consequences for violating one’s fiduciary duty can be devastating. Emblematic of this is the landmark California Court of Appeals decision in In re Marriage of Feldman, in which the court upheld an order levying $390,000 in sanctions against the husband for the husband’s failure to disclose financial information. The Feldman decision, issued in 2007, has generated much discussion in the legal community and is a significant articulation of the importance of this issue.
Other significant consequences can result from failure to adhere to spousal fiduciary obligations beyond monetary sanctions. It is therefore essential that parties initiating dissolution proceedings are aware of their rights and obligations from the outset, and that they carefully abide by the rules governing fiduciary obligations to avoid adverse consequences down the road.
If you have questions regarding your fiduciary obligations or those of your spouse, please contact the experienced Family Law attorneys at Lonich Patton Erlich Policastri for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.