Family Law Archives - Page 22 of 36 - Lonich Patton Ehrlich Policastri

Who gets the family pet in a divorce?

October 27, 2014/in Estate Planning, Family Law /by David Patton

If I had to ask you to put a price on your dog, cat or your pet hermit crab, could you? For some, perhaps they could but the vast majority would likely agree that their pets are priceless. However, disputes regarding who gets the family pet in divorce proceedings has become commonplace in family law.

Earlier this year, Melanie Griffith and Antonio Banderas made a statement that they were ending their two-decade marriage but vowed to remain friends and to move forward lovingly. However, shortly after, reports surfaced that a custody battle was flaring up – not over their 17 year old daughter, but over the couple’s three dogs.

Although these days some people treat their pets better than their own children, in the eyes of the law pets are still only considered the property of their owners, much like their furniture is[1]. Legal experts agree that pet owners invest hundreds sometimes thousands of dollars and hours researching proper training, good food choices, and the perfect toys, groomers and veterinarians for their pets. Those same individuals might also take precautions with their estate by writing a prenuptial agreement. But how often do those pet owners think about legal issues associated with pet ownership?

Family law attorneys agree that the best way to handle a situation with a pet is to put it in a prenup. If you came into your relationship with Maxwell, put it in writing that if you are to leave the relationship Maxwell is coming with you. If you and your significant other purchased a pet together during the relationship, but you both agree that one of you should have the pet in the event of a breakup, a post-nuptial agreement would make sure that in the event of a divorce or separation the pet would go with the spouse more bonded with the animal.

Without something in writing, trouble could land you arguing in court. Last year a New York judge granted a divorcing couple the right to engage in oral arguments over pet custody for the first time in the state’s judicial history. The landmark legal showdown was ultimately averted. The couple settled out of court.

In the event of a heated breakup, pets can be protected. If a party feels that he/she and the pet is in danger at the hands of the other party, California law provides for the family pet to be included on a protective order. Since 2008, courts have had the ability to make an order that the restrained person stay away from the pet. Family Code Section 6320 provides that upon a showing of good cause, the court may include in a protective order a grant of the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by the spouse or minor child resident in the residence.

Family Code section 6320 makes strides toward addressing the established connection between animal abuse and family violence commonly referred to as the “Link.”[2] One of the first studies that described this Link found that of a survey of women with pets who had entered a shelter in northern Utah, seventy-one percent reported that their partner had threatened or actually hurt or killed one or more of their pets.[3]Another study of fifty of the largest shelters in the United States found that eighty-five percent of battered women and sixty-three percent of children with pets had experienced incidents of pet abuse.[4] An alarming consequence of these studies is that victims may feel that they cannot leave their abuser because they worry for the safety of their pets.

The Certified Family Law Specialists at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. If you are interested in learning more about prenuptial or post-nuptial agreements, please contact the Certified Family Law Specialists 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.

[1] Kimes v. Grosser (2011) 195 Cal.App.4th 1556

[2] Am. Humane Ass’n, Learn About the Link, http://www.americanhumane.org/site/PageServer?pagename=lk_about (last visited Aug. 4, 2007); see also Senate Judiciary Committee, Committee Analysis of SB 353, at 2-5 (Mar. 27, 2007) (explaining the connection between animal abuse and family violence). There are also several studies that report that children who witness abuse, or are abused themselves, tend to, in turn, abuse animals. See Phil Arkow & Tracy Coppola, Expanding Protective Orders to Include Companion Animals 5 (2007), http://www.americanhumane.org/site/DocServer/PetsinPO2007.pdf? docID=5061 (describing the harmful effects upon children of witnessing domestic violence).

[3] Frank R. Ascione, Battered Women’s Reports of Their Partners’ and Their Children’s Cruelty to Animals, 1 J. Emotional Abuse 119, 125 (1998).

[4] Frank R. Ascione et al., The Abuse of Animals and Domestic Violence: A National Survey of Shelters for Women Who are Battered, 5 Soc’y & Animals 205, 211-12 tbl.1 (1997), available at http:// www.syeta.org/sa/sa5.3/Ascione.html.

Common-Law Marriage in California

September 19, 2014/in Family Law /by Gina Policastri

A common-law marriage is an informal marriage by agreement, without compliance with the statutory formalities associated with a marriage license. Only a handful of states recognize common-law marriage, and each state has specific requirements. In Texas, for example, the elements of a common law marriage include 1) an agreement presently to be husband and wife, 2) living together as husband and wife, and 3) holding each other out to the public as such. Once a common-law marriage is established, the spouse has the same rights as a married spouse and the marriage can be terminated only by death, divorce, or legal separation.

California abolished common-law marriage in 1895, and a couples’ failure to comply with the statutory marriage requirements will invalidate a marriage. However, non-marital cohabitation is not a barrier to the enforcement of express and implied agreements. California courts recognize Marvin claims, where unmarried individuals can enforce property, support, and other financial agreements arising out of their relationship. Such equitable remedies include: action on an implied contract based on the parties’ conduct (e.g., to share earnings and provide support or for support upon termination of relationship); action for specific performance of personal property with sentimental value (e.g., to return family heirlooms); and action to recover the reasonable value of services rendered, less the reasonable value of support received. Further, if traditional remedies prove inadequate, trial courts may create additional remedies to protect the parties’ reasonable expectations.

In other words, there is no way to form a common-law marriage in California, no matter how long you live with your partner. Under Family Code section 308, California will recognize common-law marriages validly established in other states. This means that a couple who establishes a common-law marriage in Texas will be treated as married if they move to California. Non-marital parents have the same custody and visitation rights as married parents. However, the recognition of a common-law marriage comes with the recognition of a spousal status, and this is significant with regards to tax, property, and inheritance issues.

For example, the Texas couple can use the “married filing joint” status with both the IRS and the California Franchise Tax Board. An employer, even the California government, must provide medical insurance to the spouse. The spouses receive community property rights. Each spouse will be considered a surviving spouse for purposes of the California intestate system and for social security survivorship benefits. Additionally, to end the marriage, the common-law spouse must file for divorce.

Recognizing a common-law marriage in California can quickly become a complicated legal matter and should be discussed with an attorney. If you have any questions about a Marvin claim or common-law marriage, please contact our California Certified Family Law Specialists. Our attorneys have decades of experience handling complex family law and estate planning matters and offer a free consultation.

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.

The Ways to End Your Marriage

August 8, 2014/in Family Law /by Mitchell Ehrlich

In California, a marriage is dissolved by (1) the death of a spouse, (2) a final judgment of divorce, or (3) an annulment. Alternatively, if spouses do not want to completely end their marriage but do want to terminate their marital rights, they can (4) file for legal separation. Here is a look into each one:

(1) Death of a Spouse

When a spouse dies, dissolution occurs automatically, as a matter of law. This can be significant in family law proceedings if the spouse dies after divorce proceedings have begun, but before a final judgment of dissolution. In this scenario, spousal status is not officially terminated and the surviving spouse will still be considered “married” for inheritance purposes. Additionally, any pending dissolution proceeding is rendered moot at the death of a spouse and the court has no power to hear any remaining unresolved issues.

(2) Divorce

Divorce is the proceeding that legally ends the marriage or domestic partnership. Under Family Code section 2310, the grounds for divorce may be either “irreconcilable differences” or “incurable insanity.” Most marriages are dissolved on the ground of “irreconcilable differences.” A dissolution granted on the grounds of “incurable insanity” requires evidence – including competent medical or psychiatric testimony – that your spouse is incurably insane. In fact, this ground is so uncommon that there are no known reported decisions defining “incurable insanity” in the dissolution context. Further, it offers no tactical advantage so even if your spouse is incurably insane, pleading irreconcilable differences is much easier.

The determination of whether “irreconcilable differences” exist is essentially a ministerial function and is rarely a matter of contention. California is a no-fault divorce state, which means that any evidence of specific acts of misconduct (such as cheating, gambling, or heavy drinking) is improper. Courts recognize that ending a marriage is an intensely personal decision and only need to be convinced that the marital differences are substantial. Thus, direct proof of objective reasons supporting the divorce is not required.

(3) Annulment

An annulment declares the marriage was not legally valid – it was never entered into – and like other defenses to contracts, an annulment can occur if one party was not of sound-mind at the time of the marriage or if the marriage was procured by fraud.

A famous example of an annulment due to lack of capacity is Ms. Britney Spears’ 55-hour marriage to her high school friend, Jason Alexander, in Las Vegas. Ms. Spears sought an annulment stating that she “lacked understanding of her actions to the extent that she was incapable of agreeing to the marriage because she and Alexander did not know each other’s likes and dislikes, each other’s desires to have or not have children, and each other’s desires as to State of residency.” In other words, she was drunk and this was a joke that went too far.

Marriages can be annulled for fraud, if the fraud relates to a matter that California deems vital to the marriage relationship and the fraud directly affects the purpose of the party deceived entering the marital contract. Usually, annulments based on fraud involve the sexual and procreative aspects of marriage, such as a secret intention not to live with the other spouse or a concealment of sterility. False representations about earning capacity, wealth, or social status are not the type of fraud that will warrant a nullity. Nor will a failure to fulfill wedding vows or commonly understood spousal obligations, such as being a loving and supporting partner.

(4) Legal Separation

The grounds for legal separation are the same as those for a divorce but it does not end the marriage. Legal separation is an alternative to divorce, where the spouses do not want to completely sever the legal status of the marriage. Otherwise, a legal separation operates similarly to a divorce, separating all finances and property.

Spouses often seek a legal separation for religious or other personal reasons, or to retain eligibility for medical insurance, veteran’s benefits, or social security benefits that would have otherwise been lost by a divorce.

If you have any questions about the proper way to end your marriage, please contact our California Certified Family Law Specialists. Our attorneys have decades of experience handling complex family law proceeds and offer a free consultation.

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.

“No good marriage ever ended in divorce” – Louis C.K.

July 30, 2014/in Family Law /by Gina Policastri

“Divorce is always good news. I know that sounds weird, but it’s true because no good marriage has ever ended in divorce. That would be sad. If two people were married and they just had a great thing … and then they got divorced, that would be really sad. But that has happened zero times.”

-Louis C.K.

This inevitably leads to the question: what is a “good” marriage? Likely, the answer is there are no good or bad marriages. Instead there are a range of risk factors associated with divorce. When two people get married, they usually aren’t thinking that the marriage will end in divorce. But then hard times arise and sometimes they find themselves thinking either casually or seriously about divorce. Is there a way to know if your marriage is statistically likely to end in divorce? Below, we will take a look at some of the most common risk factors in the United States.

Current state of divorce

In the United States, researchers estimate that 40 to 50 percent of all first marriages will end in divorce or permanent separation. The risk of divorce is even higher for second marriages at about 60 percent. Divorce has always been present in American society although it has become more common in the last 50 years. Surprisingly, the highest divorce rates ever recorded were in the 1970’s and 1980’s. Since then the divorce rate has actually decreased a little but still remains at a historically high rate.

Researchers have found that individuals considering divorce make their decision to stay or leave based on the rewards they gain from the marriage, the barriers against leaving the marriage, their perceptions about finding a better relationship, and the amount of investment they have made in their marriage.

Barriers to leaving a marriage, such as concerns about money and the effects of family breakup on their children, can keep marriages together in the short term. However, unless there is improvement in the relationship, eventually the barriers are usually not enough to keep a marriage together in the long run.

What factors are associated with a higher risk for divorce?

The statistics which show that almost half of all marriages end in divorce might make it seem like staying married has the same odds as roulette – namely 50/50. However, research has identified various factors that are associated with a higher risk for divorce. Some couples may have a low risk and others might have a higher risk of divorcing. Understanding these factors may not directly help improve your marriage or make a decision about getting divorced, but they may help couples understand why they’re facing challenges. Researchers have identified the most common factors as:

Young Age. Marrying at a young age increases your likelihood of divorce, especially in the early years of marriage. People who married in their teens are at dramatically higher risk for divorce than those who married as early as age 21 or 22.
Less education. Researchers estimate that individuals who have some college education as opposed to not finishing high school have a lower chance of divorce. Investing in an education is a good way to build a foundation for a better marriage, not just a better job.
Less income. Tied to education is income. Research has estimated that individuals with incomes exceeding $50,000 have a lower chance of divorce. Finances can be stressful and having at least a modest income can help couples avoid stresses that can lead to divorce. If you argue with your spouse about finances once a week, your marriage is 30 percent more likely to end in divorce than if you argue less frequently about finances.
Premarital childbearing and pregnancy. In America, more than one-third (37%) of children are born to parents who are not married, and few of these parents eventually marry. Most of those parents will separate before the child begins school, some will never really get together.
If you have a daughter, you’re 5% more likely to divorce. This figure multiplies with the number of daughters. Researchers believe that this happens because fathers are more invested in family life when they have boys.
If you or your partner have had a previous marriage. Data shows that second (or third or fourth) marriages should be more successful than first marriages. However, this statistic is skewed by serial marriages and researchers have been unable to take the Elizabeth Taylors out of the equation.
Parents’ divorce. Of course, some risk factors for divorce you can’t control. If you experienced the divorce of your parents, unfortunately, that doubles your risk for divorce. If your spouse witnessed their parents’ divorce, then your risk more than triples. This does not doom your marriage to failure but rather suggests that individuals who experienced the divorce of their parents need to work harder to make good marriage choices and to keep their marriage strong and happy.
Same-sex marriages are more likely to end in divorce. Although the LGBT community is just starting to have legally recognized marriages in the United States, a research team led by Stockholm University on legal partnerships in Norway and Sweden found that male same-sex marriages are 50 percent more likely to end in divorce than a heterosexual marriage. If you’re a female in a same-sex marriage, this figure soars to 167 percent.

These are only a few risk factors that researchers have identified and none of them represent automatic doom for a marriage. However, if a number of these and other risk factors are present, seeking pre-marital or other counseling may be recommended, even if nothing seems wrong at the moment. Much like roulette, one can increase the odds in their favor by learning more about marriage, themselves and their partners.

If divorce seems inevitable, it is also recommended that couples take time to try to fix the relationship through counseling or some other professional service before making the decision to call it quits. However, we understand that sometimes there are no alternatives besides divorce.

If you are considering divorce or have questions about divorce planning, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization). Our attorneys have decades of experience handling complex family law proceedings and offer a free consultation.

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 detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

How Much Does Divorce Cost?

July 22, 2014/in Family Law /by Gretchen Boger

Divorce can be really expensive. For example, the 2007 Connecticut divorce between travel entrepreneur, Peter Tauck, and his ex-wife racked up around $13 million in legal fees. The bill reflected two years of highly-contested litigation costs, including nearly 700 filings and an 86-day trial. It is common for such strikingly high-cost divorces to reach news headlines, but how much does getting a divorce really cost?

Plenty of websites have popped up that promise an “easy and affordable divorce” ranging from $99 to $300. These cheap alternatives may be enticing, and could be useful for couples who have few assets and agree on every aspect of child custody and visitation – they just need lawyers to fill out the required forms.

However, most spouses disagree about at least a few things in connection with their divorce. One of the most hotly contested issues is often child custody and visitation. California courts require divorcing parents to attend mediation to see if custody issues can be resolved without a trial, and they often can be. However, in some cases it is necessary to have a child custody evaluation, which can be either broad or specific in scope. This involves retaining a child custody evaluator, who is an expert, usually a forensic therapist or psychologist. The evaluator meets with both parties, the children, and sometimes collateral contacts, and then prepares a report to assist the court in making custody and visitation orders. Evaluations range substantially in cost, which is usually divided equally between the parties.

Aside from custody disputes, divorces mostly concern money and can require complicated financial calculations to determine and equitably divide the community’s interest in your marital estate. Such calculations may include the percentage you contributed to your 401(k) during marriage, or the amount of post-separation mortgage payments on the family home. Sometimes these issues are complicated enough to require hiring a CPA or a forensic accountant. In addition, many people receive stock options, or RSU’s as part of their employment compensation packages, and it can be necessary to retain an expert for division. Further, sometimes it is necessary to obtain real property appraisals or fair rental surveys, which range in cost depending on the size of the property.

If you and your spouse have acquired a substantial estate, the work to determine the community’s interest and agree on an equitable division can really add up. Even in what seems like a simple case, the cost can be high depending on many factors. Hourly rates for attorneys can range anywhere from $150, at the very low end, up to $1,000. Spouses can definitely expect to pay attorney fees and court costs, and there may be additional costs for parent education classes, co-parent counseling, private mediation, or retaining various experts.

The good news is that most of the cost is a function of how quickly you and your spouse can reach an agreement – it is in part under your control. If agreement cannot be reached, it may be necessary to file motions, which can cost between $3,000 and $10,000 for preparation and appearance at a hearing. The need for depositions and trial will also increase the cost of your divorce. If you have no assets and no children, it is possible to walk away only spending the filing fees. If you are able to reach a global or partial settlement agreement then the cost of dissolving your marriage will be greatly reduced. However, if you cannot be in the same room as each other without becoming outraged, your divorce could easily cost more than your wedding.

However, if your spouse makes more money than you, or has a greater “access to income,” you may be able to obtain an order for “need-based” attorney’s fees, payable by your spouse. In addition, if your spouse or their attorney is being really unreasonable, you may have the right to obtain sanctions in the form of attorney fees and costs from your spouse. These sanctions can be ordered when conduct frustrates the policy of the law to promote settlement.

On July 13, 2014, a Nebraska man, Michael Peterson, plead no contest to the first degree murder of his divorce attorney. After an unsuccessful malpractice suit seeking reimbursement for over $57,000 in attorney fees, Peterson shot his divorce attorney in the back with a high-velocity rifle. In order to avoid murderous rage upon receiving your bill, it is important to have an open and honest conversation about fees and costs, and ask for an estimated budget before going to trial.

Please be aware, however, that it is simply impossible to accurately estimate the cost of your divorce – there are too many possible factors for anyone to promise a certain outcome for a certain amount. If you have questions or are worried about the cost of your upcoming divorce, please contact our California Certified Family Law Specialists. Our attorneys have decades of experience handling complex family law matters and offer a free consultation.

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.

Halle Berry Owes $16,000 a Month in Child Support: How Much is Too Much?

July 10, 2014/in Family Law /by Mitchell Ehrlich

Halle Berry’s last breakup came with a price tag: $16,000 a month for the next 13 years.

On May 30, a Los Angeles court ordered that the Academy Award-winning actress must pay $16,000 a month in child support to her ex-boyfriend, Gabriel Aubry, to support their 6-year-old daughter, Nahla, until she turns 19 or graduates from high school. This amounts to $192,000 a year and almost $2.5 million of nontaxable income over Nahla’s childhood (not including another $115,000 Halle must pay retroactively, plus $300,000 to cover Aubry’s legal fees).

The pricey child support settlement raises the question: Does a 6-year-old really require $16,000 a month?

In California, child support is calculated using a uniform statewide guideline formula that considers both parents’ income, if one parent makes more money than the other, the amount of time each parent spends with the child, and a variety of other related factors. The guideline formula is presumed to be correct and courts should only depart from the guideline in rare circumstances. Under Family Code section 4057(b)(3), one of these circumstances is when “the parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children.”

Determining what exceeds a child’s needs is subjective, can be tricky, and involves somewhat circular reasoning. The ability of support must be suitable to the child’s circumstances and can depend on whether the parent is merely wealthy, such as a senior engineer at Google making $300,000 per year, or extremely wealthy, such as Halle Berry, who has a net worth of $70 million and earns approximately $16 million per year. For example, in Marriage of Chandler, based on the Husband’s monthly income of $117,000, the trial court reduced the guideline amount of $9,000 to $3,000 to reflect the child’s reasonable needs. The appellate court then reversed, finding that reducing support to one-third of the guideline was erroneous, and that $3,000 would not come close to providing the child with the lifestyle she was used to.

In Marriage of Bonds, which involved the baseball player Barry Bonds, the trial court awarded his ex-wife $20,000 per month in child support. Bond’s pre-tax salary was $8 million per year and the guideline child support would have been $67,000 per month. His ex-wife appealed, claiming that $20,000 only covered “bare necessities.” The appellate court dismissed ex-wife’s argument, stating that the trial court has discretion to order whatever amount it decides will meet the reasonable needs of the children, consistent with the basic principles behind child support.

The court in Marriage of Catalano noted that a child is an innocent victim of a divorce, with no choice in the breakup, but with reason to expect that both parents will continue to provide for him or her in whatever manner they can. Indeed, the Legislature has expressly provided that children should share the same standard of living as both parents, and child support may be used “appropriately” to improve the standard of living in the custodial household to “improve the lives of the children.” Thus, the parent receiving child support from a high-income earner may derive some personal benefit from the extra cash. With Halle forking out $16,000 a month, Nahla will likely continue to live a comfortable life while Gabriel benefits personally from some extra cash, as well.

If you are a high-income earner and are concerned about making excessive child support payments, please contact our California Certified Family Law Specialists. Our attorneys have decades of experience handling complex family law matters and offer a free consultation.

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.

How Facebook Can Affect Your Divorce

July 2, 2014/in Family Law, In the Community /by Gretchen Boger

Last February 2013, a New York Father was awarded sole custody after a Mother utilized Facebook to “insult and demean” her ten year old child. The Court found that Father was “more able to provide a stable and nurturing environment” for the children, citing Mother’s “inappropriate use of the Internet and lack of remorse or insight into the appropriateness of such behavior.”

Social media can play a dangerous role during divorce proceedings. Facebook, which now has more than 800 million active users, has become an important and undeniable presence in today’s culture. Your profile shares and records everything from your personal information, to your new profile picture, and your mood. Your posts may be valuable evidence to your ex-spouse’s divorce attorney.

In recent years there has been an increase, especially in family law cases, of the amount of evidence collected from social media sites. Photographs, updates, and conversations you post online may be admitted into evidence. Further, it might not be a good idea to post about your divorce proceedings. If you do, choose your words carefully and express yourself diplomatically – on the same level as you would present yourself to your judge. This rule of thumb extends to iMessages, emails, Twitter, dating websites, your blog, etc.

Remember that anything online is extremely accessible. If you post anything that contradicts what you have stated in your pleadings, it can impeach your credibility and given the discretionary nature of family law cases, may negatively impact your case. For example, the following Facebook activity often makes its way into the family courtroom:

Posting pictures of an extravagant vacation – you at a resort indulging in the day spa can provide evidence of financial misconduct with regards to spousal support or child support.
Updating your status while inebriated – constant updates with slurred-speech or checking-in to five happy hours each week can suggest you have drug or alcohol dependency problems and sway the judge in awarding custody.
Bad mouthing your divorce proceedings – complaining about your judge or your ex-spouse’s nasty opposing counsel can appear as if you do not take the process seriously.

Even if you have de-friended people who know your ex and made your privacy settings air-tight, your ex may still be able to access your updates. Recently, Facebook was put in the spotlight over a controversial social experiment it conducted to determine whether emotions are contagious (conclusion: they are). Without first getting consent, Facebook manipulated 689,003 user’s News Feeds to display either positive or negative posts and then monitored the users’ reactions. People have had various reactions towards this experiment. Some feel violated for being used as a lab rat. This study is a reminder that regardless of your consent, you never know who has access to or has saved what you posted.

The bottom line: think before updating your Facebook status, especially during divorce proceedings. Online statements are similar to face-to-face conversations but they are much easier to document. Further, the court may consider your posts in your divorce proceedings.

If you have any questions or concerns about your or your spouse’s online presence and how it may affect your divorce, feel free to contact our California Certified Family Law Specialists. Our attorneys have decades of experience handling complex family law proceedings and offer a free consultation.

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.

A sperm donor who signs a document waiving his parental rights doesn’t have to pay child support, right?

June 30, 2014/in Family Law /by Gretchen Boger

The answer is: not necessarily. Early in 2014, a Kansas man who donated sperm to a lesbian couple while also signing documents waiving his parental rights may have to pay child support anyhow. “I donated sperm and that was it for me,” he told CNN.

A judge ruled otherwise, saying that he must pay child support. This was because the lesbian couple conceived the child through an artificial insemination procedure that was carried out at home, which fails to conform to Kansas law. In Kansas, a licensed physician must be involved in an artificial insemination process.

After following up on an ad on Craigslist in March of 2009, sperm was donated and documents were signed waiving parental rights. Now that the child is four years old, Kansas law says he is the father and has to pay up.

The issue has come up in California as well. In 2012, a California appellate court held that the renowned bodybuilder Ronnie Coleman was not required to pay child support for triplets (one of whom tragically died) he fathered through artificial insemination after a court ordered him to pay over $4,000 per month.

In 2006, Coleman agreed to donate sperm at a California Sperm bank for a friend. He admitted having no interest in having parental duties but was willing to donate his sperm to a woman who allegedly had an on-again off-again sexual relationship with the bodybuilder in his past. Four years later he was slapped with a paternity suit forcing him to pay child support. After dutifully paying the child support for several years, an appellate court overturned the verdict.

California Family Code section 7613 says that the donor of semen provided to a licensed physician or licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman, other than the donor’s wife, is treated in law as if he were not the natural father of a child thereby conceived. The court found that because the facts of Coleman’s case fell squarely within the parameters of 7613, any agreements between them as to parenthood were void.

The language of Code section 7613 can also help women who want to withhold parental rights from men who have donated sperm. A previous California case, Steven S. v. Deborah D., is a prime example. There, a man attempted to establish paternity for a child he fathered through artificial insemination with a woman he was intimately involved with but to whom he was not married. The woman argued against paternity and the court agreed that 7613 guaranteed the right of women to bear children without fear of paternity claims.

Paternity cases can be dramatic and complicated. If you find yourself in a difficult child custody situation, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization). Our attorneys have decades of experience handling complex family law proceedings and offer a free consultation.

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.

See California Family Code § 7613.

Source: http://www.cnn.com/2014/01/23/justice/kansas-sperm-donation/

http://www.sandiegodivorcelawyerblog.com/2012/06/a-california-appellate-court-held.html

Sometimes Diamonds are Not Forever

June 23, 2014/in Family Law /by Julia Lemon

California is a community property state, which means that all property acquired during marriage by either spouse is presumed to be community property. Conversely, any property acquired by a spouse before marriage, by gift or inheritance during marriage, or after separation is presumed to be the acquiring spouse’s separate property. However, it is possible for a spouse to change the character of an asset by transmuting a community property asset into one spouse’s separate property, or vice versa.

Generally speaking, to qualify as a valid transmutation, there must be an express written declaration made, consented to, or joined in by the spouse whose interest in the property is adversely affected. These strict requirements were enacted to avoid “he said/she said” situations where one spouse was presenting “pillow talk” evidence.

For example, a couple buys a car during marriage with community funds for the wife to drive. When the couple later divorces, the wife claims the car is her separate property because she was the only one who drove it. Unless there is a written agreement signed by her husband stating that the car is her separate property, her argument will fail because there was not a valid transmutation.

This rule makes sense for expensive items, like a car. However, spouses give gifts to each other all the time, and requiring a written agreement for every birthday gift or anniversary gift would be impractical and somewhat annoying. Imagine, “Dear Wife, Happy Anniversary! I love you so much. Here is a necklace that I am gifting you as your separate property.” Fortunately, the Family Code does not require an express written declaration for gifts such as clothing, jewelry, or other tangible items of a personal nature used solely or principally by the spouse receiving the gift unless the gift is “substantial in value taking into account the circumstances of the marriage.” In other words, an expensive gift to one spouse may be considered community property absent a transmutation.

In Marriage of Steinberger, 91 Cal. App. 4th 1449 (2001), the husband purchased a diamond ring and gave it to his wife on their fifth wedding anniversary with a card congratulating her on her recent promotion. The ring was worth at least $14,000. At divorce, the wife argued that the ring was her separate property because her husband gifted it to her on their anniversary. The husband, however, argued that he purchased the ring as an investment for them both to enjoy, and that it was not his intent to give her the ring as her separate property. He testified that the most expensive gift he had given her during the marriage was a Christmas gift card that cost a couple hundred dollars. The trial court found that the ring was a gift to the wife since it was tangible personal property.

However, the California Court of Appeal reversed the trial court’s finding. The appellate court reasoned that the ring was of substantial value considering the circumstances of the marriage, so the exception to the written declaration requirement did not apply. Since there was no express written declaration, there had not been a valid transmutation, and the ring was a community asset that should have been divided equally upon divorce. When it comes to substantial gifts in California, formality takes precedence over informality.

If you have any questions about how your personal property or your last anniversary gift may be classified, feel free to contact our experienced family law attorneys at Lonich Patton Erlich Policastri for further information.

Remember that each individual situation is unique. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Judge Grants Restraining Order against School-Aged Boy

April 8, 2014/in Family Law /by Gina Policastri

In a potentially precedent-setting move, a father from San Francisco has asked a judge for a restraining order – against an alleged nine-year-old bully. Generally, restraining orders are routinely issued against adult abusers, stalkers, significant others, and the like. However, as most parents presumably would, Stephen Feudner wanted answers after learning his 9-year-old son told him he’d been bullied, pushed, and punched at Rolling Hills Elementary School. When the public school claimed its hands were tied and refused to help, Feudner turned to the law.

Feudner’s temporary restraining order (TRO) from a Solano County judge stipulates that the alleged bully must remain 2 yards away from his son at all times and have no contact with him whatsoever. Daryl Snedeker of the Solano County Sheriff’s Department says he’s never heard of a restraining order against a grade-school student. However, the boy’s mother points out that there is no law against filing a restraining order against a child – and she’s right.

There are different kinds of restraining orders available through the court system, and each order has different eligibility requirements. For a restraining order against a child similar to the Feudners’ situation, a Civil Harassment Restraining Order would likely be the most appropriate. Civil Harassment Restraining Orders can be filed in Santa Clara County if the filing party and the other party do not have a familial or dating relationship (married, divorced, separated, dating or used to date, live together or used to live together) or are not related (parent, child, brother, sister, grandmother, grandfather, in-laws).

As for the Feudners, there’s a small but possibly determinative glitch in their case: the Solano County Sheriff’s Office officials had to serve the TRO within five days for it to go into effect. However, in order to serve the TRO, officials needed the alleged bully’s first and last name and full address. As of now, the school district still remains unwilling to release the information.

Although the Feudners’ restraining order against a school-aged child is unique, temporary restraining orders are very common, particularly in domestic violence situations. If you have any questions about restraining orders or are contemplating filing one, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri. Our attorneys have decades of experience handling complex family law proceedings and offer a free half-hour consultation.

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.

Source: http://abcnews.go.com/US/father-files-restraining-order-year-allegedly-bullying-son/story?id=23040537

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