Family Law Archives - Page 27 of 36 - Lonich Patton Ehrlich Policastri

Maximizing Retirement: Where a Divorce Might Benefit You

January 30, 2012/in Estate Planning, Family Law /by Michael Lonich

If you’re elderly and divorced, you might be getting shorted on Social Security payments by collecting lower benefits than you might be eligible for, based on the earnings history of a former spouse. (See Wall Street Journal Article) A person can collect SS benefits based on (1) his or her own earnings, (2) fifty-percent of her spouse or former spouse’s benefit, if it greater than his or her own, or (3) one-hundred-percent if he is deceased. Divorced spouses must have been married ten years or longer and the person seeking a former spouse’s higher benefit must currently be unmarried, unless she remarried after age 60, in order to receive larger monthly benefits.

The Wall Street Journal provided this example:

Let’s say your mother was married in the 1950s or 1960s for at least a decade. Perhaps she was out of the work force raising children and subsequently worked at low-paying jobs, so her benefit might be, say, $800 a month.

By contrast, her former husband—with more years in the work force and higher wages—might be eligible for a monthly benefit of $2,000. (Social Security benefits currently max out at $2,366 a month.)

Your mother might not realize she can collect a total of $1,000 a month if her former spouse is alive, and $2,000 a month if he isn’t. If the Social Security Administration determines she is eligible for higher benefits, she also will receive retroactive amounts going back six months. For the woman in the example above, that would be a lump sum of either $1,200 (six times $200) or $7,200 (six times $1,200).

The fact that the ex-husband might have remarried does not affect what his current spouse will receive nor does it require any involvement with the former spouse. The Social Security Administration should have former spouse earnings history, whether alive or not, and make it determination based on those records.

If you are interested in learning more about divorce or preparing for your retirement, please contact the experienced family law and estate planning 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.

California Case Update: Form of Title Presumption Controls Characterization of Life Insurance Policy

January 24, 2012/in Family Law /by Mitchell Ehrlich

California is a community property state, which means that all property, with certain exceptions, acquired during marriage is considered to be a part of the marital community and not one’s separate property. At common law, there is a rebuttable “form of title” presumption which, absent a contrary state law or proof as to otherwise, deems record title as determinative of the property’s characterization as separate or community. In a 2011 California Appellate Court case, the Second District confirmed that this rule applies when a life insurance policy is in the name of one spouse.

In Marriage of Valli, 195 Cal. App. 4th 776 (2011), Husband purchased a $3.75 million life insurance policy on his life with community property funds and put the policy in Wife’s name. Husband and Wife were married for twenty years with three young children. At the time of purchase, Husband had been experiencing medical problems and wanted to ensure his family was taken care of. Husband put everything in Wife’s name so that she could use it to take care of the children or disburse it as she saw fit. When the couple decided to separate, there was a dispute as to whether the policy was community property or the wife’s separate property.

The trial judge found that the policy was community property because it was acquired during the marriage and the policy’s premiums were paid during marriage. The appellate court reversed the trial court holding that the “form of title” presumption applied and the policy was therefore Wife’s separate property. The court reasoned that the act of taking title to property in the name of one spouse during marriage with the consent of the other spouse effectively removed that property from the general community property presumption. This presumption can only be overcome by clear and convincing evidence that there was an agreement that the title did not reflect the parties’ intent. In Valli, Wife established that the policy was taken in the Wife’s name, and Husband failed to rebut the title presumption with any evidence of an understanding with Wife that, despite the policy being in her name, they did not intend the policy to be Wife’s separate property.

While decisions made during marriage may seem appropriate at the time they are made, it is important that marital partners take the time to consider every scenario that may arise in the future. The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. If you are contemplating divorce, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in-depth analysis of your issues. 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.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Ensuring Your Child’s Safety

January 13, 2012/1 Comment/in Family Law /by Mitchell Ehrlich

George Molho, a kidnapping survivor, has recently shared his experiences from when his father abducted him in 1978 and moved them to Greece from his home in Texas. In sharing his story, Molho (for more information on his new memoir, Scarred, see www.georgemolho.com), a passionate advocate for child kidnapping and abuse victims, is trying to bring awareness to the problem and efforts to develop solutions that protect children.

As a seven-year-old in 1978, Molho was taken from his home in Houston by his father, a man with a bad temper, obsessive need for control, and desire to inflict pain. At the time, no one, not even his mother, believed Molho when he predicted his father’s plan and tried to warn them. When young children express fear or concern about even a close friend or family member, adults tend to chalk it up to shyness, a ploy for attention, or fantasy, Molho said. “Trust your child’s instincts,” he says. “If they act uncomfortable around someone because they can’t verbalize their feelings, or if they tell you they’re uncomfortable, trust them. No matter who it is, if they tell you a person scares them, protect them.”

Molho also offers these lesser-known tips for protecting children from kidnappers, whether they’re friends or family:

Teach children how to fib on the phone. If they’re home alone, for instance, and someone calls asking to speak to their mother or father, they might say, “My mother’s busy in the kitchen right now and asked me to answer the phone and take a message.” Put them to the test by having someone they don’t know, one of your friends or co-workers, call.
Make approved lists of people who will deliver any important news to them. If Mom or Dad is in trouble or hurt, only these people will know and will tell the child. Even if Uncle Bob tells them Mom is in the hospital and the child needs to go with Uncle Bob, if he’s not on the approved list, the child should not go. This is a common ploy.
Teach them, train them and give them permission to defend themselves. This is very important and it saves lives. Most children are taught to be polite and respect adults; it’s far safer to risk offending an adult – even if it turns out the adult meant no harm. Screaming, kicking and running away are perfectly acceptable if a stranger grabs your arm – even if the stranger is smiling sweetly.

Family law proceedings can be contentious. Emotions tend to run high for all those involved; sometimes this leads to actions that endanger the safety of the children caught in the middle. George Molho’s tips may help ensure the safety of your children. The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed child custody issues. If you are contemplating divorce, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues. 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.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Loss of Parental Rights = Loss of Standing in Proceedings Concerning the Child

January 4, 2012/in Family Law /by Gina Policastri

Once a parent has acquiesced to a termination of parental rights, he or she has no remaining legal interest in the child’s affairs. This means the parent also does not have standing to appeal orders relating to the child’s placement. A recent California Supreme Case affirmed this rule.

In In re K.C., 52 Cal. 4th 231 (2011), K.C. was one of eight siblings, two of whom were deceased and the other five of whom were placed with grandparents after separate juvenile dependency proceedings resulting in the termination of Mother’s and Father’s parental rights as to the five siblings. While an infant, K.C. was removed from his mother’s custody and placed with a foster family who wished to adopt him. K.C.’s grandparents petitioned for K.C. to be placed with them, however, the child services agency doubted their ability to care for a sixth child and was concerned with the parents’ continued access to the kids. Father did not object to the termination of his parental rights and supported Grandparent’s request. The trial court denied Grandparents’ petition and they failed to timely appeal. Instead, Father appealed the order. However, he did not object to the judgment terminating his parental rights but limited his argument to the issue of K.C.’s placement.

On appeal, the Fifth District Court of Appeal dismissed Father’s appeal and held that Father could not show that the placement decision affected his parental rights and he thus was not aggrieved by the decision. The California Supreme Court affirmed this decision. Only an aggrieved person has standing to appeal, otherwise the party does not have rights or interests injuriously affected by the decision in an immediate and substantial way. Since Father acquiesced to the termination of his parental rights, he relinquished the only interest in K.C. that could render him an aggrieved party.

Throughout child custody or parental termination proceedings, proper objections must be made if a parent does not want to risk losing standing to appeal judgments concerning the child. The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex child custody and divorce issues. If you are contemplating divorce, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues. 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.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Connecticut Judge Orders Divorcing Couple to Exchange Facebook Passwords

December 6, 2011/in Family Law /by David Patton

Evidence from social networking websites is used more and more often in lawsuits and divorces these days. This information is typically obtained by visiting a party’s page or requesting information from the party personally, not from obtaining a party’s password and signing into their account on your own accord. However, judges are beginning to force parties to surrender passwords to their Facebook accounts.

On September 30, 2011, a Superior Court of Connecticut issued an order requiring “[c]ounsel for each party [] exchange the password(s) of their client’s Facebook and dating website passwords. The parties themselves shall not be given the passwords of the other.” Stephen Gallion v. Courtney Gallion, Clarification of Order. Courtney and Stephen are in a custody battle, and Stephen is seeking full custody of the parties’ children. To bolster his position, he sought access to Courtney’s Facebook and online dating accounts because he and his attorney suspected that they would find evidence of how Courtney feels about her children and her ability to care for them. They requested that the court order Courtney to provide her password; the court ordered the attorneys to exchange the parties’ passwords, and also issued an injunction prohibiting Courtney from deleting any information from these websites. (Summary from Forbes).

As social networking becomes a larger part of our lives, it will play a larger role in our lawsuits. Typically, if a party is ordered to provide social networking data, he or she will be required to produce responsive material (e.g. printouts of a party’s profile page), not the passwords, which would allow the other side to gain unfettered access to more content. However, recent cases show a different pattern. Lawyer and tech blogger Venkat Balasubramani has written about several other civil cases 1) where judges have issued similar orders, including a personal injury case, 2) where judges have taken it upon themselves to sign into someone’s Facebook account and look for evidence, 3) as well as cases where judges have rejected lawyers requesting opposing litigants’ passwords, as in an insurance case involving State Farm (Summary from Forbes).

The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed divorce and support issues. If you are contemplating divorce, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues. 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.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Tennessee Supreme Court Prohibits Lifetime Alimony for Ex-Spouse

November 30, 2011/in Family Law /by Mitchell Ehrlich

On September 16, 2011, the Supreme Court of Tennessee held that a woman who earned $72,000 a year was not entitled to lifetime alimony (permanent alimony) from her higher-earning ex-husband.

In Gonsewski v. Gonsewski, 2011 WL 4116654 (Tenn. Sept. 16, 2011), Johanna and Craig were married for twenty-one years with two adult daughters. Johanna earned $72,000 a year in an IT position and Craig earned more than $137,000 a year as an accountant. At the trial level, the court declined to award spousal support of any type to either party. The Court of Appeals reversed the trial court’s judgment and ordered the husband to pay the wife lifetime alimony in the amount of $1,250 per month until her death or remarriage. The court reasoned that, although there was no need for economic rehabilitation given that Johanna was a college graduate and had a steady career, alimony in futuro was ‘necessary to mitigate the harsh economic realities of divorce’ due to the disparity in the parties’ incomes. Craig appealed.

The issue before the Tennessee Supreme Court was whether permanent alimony should be awarded to a spouse who has a college degree, good health, a stable work history in a relatively high paying job, and a lack of demonstrated need for such long-term alimony. The court reversed the appellate court decision, noting that it is unlikely that both parties will be able to maintain their pre-divorce lifestyle given two persons living separately incur more expenses than two persons living together and there was no abuse of discretion by the trial court. Thus, Johanna should not be awarded permanent spousal support.

This decision affirmed Tennessee’s traditional analysis of considering both ability and need in making permanent alimony determinations. While Craig may have had the ability to pay lifetime alimony, Johanna did not have the need. In California, courts consider need and ability to pay when setting temporary spousal support, which may be ordered after separation pending trial. However, when setting permanent spousal support, the court must consider approximately fourteen statutory factors, including need and ability to pay, when determining permanent spousal support. As such, it is likely that the Gonsewski case would have been similarly decided in California grounds given the higher standard provided by the fourteen factors set forth in section 4320.

The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed divorce and support issues. If you are contemplating divorce, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues. 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.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

California Enforcement of Out-of-State Support Orders

October 19, 2011/1 Comment/in Family Law /by David Patton

If a child support order is obtained in another state and the custodial parent and child move to California, there are a few steps that need to be taken to enforce the out-of-state order.

All fifty states have adopted the Uniform Interstate Family Support Act (UIFSA). The UIFSA governs when more than one state is involved in cases establishing, enforcing, or modifying child or spousal support orders. The UIFSA helps to determine the jurisdiction and power of the courts in different states and establishes which state’s laws will be applied in the proceedings.

California’s version is codified in California Family Code section 4900 et al., which outlines the general procedures for enforcing support orders or income-withholding orders issued by another state. Specified documents must be submitted to the California tribunal to register the order. Then, the registered order is enforceable in the same manner and subject to the same procedure as an order issued by California. It becomes a California judgment for any arrearages and subject to the same defenses as any other judgment. Although California lacks jurisdiction to reduce or modify the support arrearages, it has the discretion to determine the manner in which the judgment will be enforced.

The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed interstate child and spousal support enforcement issues. If you have a child or spousal support enforcement issue, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis regarding your case. 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.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Court of Appeal Clarifies Seven-Day Waiting Period for Premarital Agreements

October 14, 2011/in Family Law /by Mitchell Ehrlich

California Family Code §1615 outlines the factors a court will consider when deciding whether to enforce a premarital agreement. If the court finds that, among other reasons, the agreement was not executed voluntarily or if the agreement was unconscionable (a fancy word for unreasonable), it will void a premarital agreement.

Section 1615(c) states that a premarital agreement will not be deemed voluntary unless the court makes three findings; one of them being that the party against whom enforcement is sought had not less than seven calendar days between the time the party was first presented with the agreement and advised to obtain a lawyer and the time the agreement was signed. The question most recently before the First Appellate Court was whether section 1615(c)(2) applied to a party who was represented by an attorney from the outset.

In Marriage of Cadwell-Faso & Faso, 191 Cal. App. 4th 945 (2011), husband (H) and wife (W) married in 2006. H was a wealthy, retired businessperson and W owned and operated her own business. Prior to their marriage, H’s attorney drafted a premarital agreement and presented it to W and advised her to seek independent counsel. W was unhappy with the agreement and her attorney subsequently drafted four separate addenda to which H disagreed. W faxed a goodbye letter to H following their inability to come to an agreement. Following further discussion, W’s attorney drafted a fifth addendum and faxed it to H. Six days later, H and W signed the agreement and were married

Eighteen months later, H and W sought dissolution of marriage. H asked the court to void the fifth addendum because he did not have seven days between the time of representation and execution and the agreement was thus involuntary per §1615(c)(2). The trial court ruled in H’s favor, finding that the requirements of §1615(c) were mandatory and the addendum was thus invalid. W appealed and the appellate court reversed. In its decision, the court could not determine from the text of the statute alone whether the seven-day rule was confined to unrepresented parties. Therefore, the court looked to the legislative history of §1615 and found that the legislature was concerned with situations where one party was not represented by counsel, not where counsel has been present from the start. The appellate court thus held that both the premarital agreement and the addendum were enforceable against H where he was represented by counsel throughout the premarital agreement process.

The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling premarital agreements. If you are contemplating marriage, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues. 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.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Relocation and Child Custody

September 14, 2011/in Family Law /by Mitchell Ehrlich

When parents share joint custody of their children, one party’s desire or need to relocate can require reevaluation of existing custody orders and can be an extremely complicated issue.

Recently, the California Court of Appeal for the Third District addressed a “move-away” issue in a case involving an unmarried couple and their minor daughter. After the parties’ relationship ended in December 2007, the mother moved to Washington with the child, then later returned to California. Upon her return, the father petitioned for custody of their daughter; in response, the mother filed a motion requesting permission to move back to Washington with their daughter. The trial court granted the parents joint legal and physical custody and denied mother’s request to move with the child. Thereafter, mother requested to move to Washington with the child several more times. At trial, she testified that she was moving to Washington because she had a job prospect and family support there. However, the court apparently did not believe that she would move without her daughter, and denied mother’s request to move with the child because it thought it would be disruptive to the child to leave her father and friends. Therefore, the prior joint custody order remained in place. It was impossible for mother to comply with the joint physical custody order if she moved to Washington, and therefore, the court’s decision effectively prohibited her from moving even without her daughter. The mother appealed and the appellate court found that the trial court order amounted to a coercive attempt to get the mother to change her plans to move. The court does not have the ability to prohibit a parent from moving, only to determine where the child should live as a result of the parent’s decision to move. They reversed and remanded the decision for reconsideration.

The appellate court noted that in joint custody cases, when a parent is considering a move that makes the existing custody plan unworkable, the court must consider the child’s best interests de novo and make a determination of what physical custody arrangement would be in the child’s best interests- either relocating with the moving parent or remaining with the non-moving parent and having visits with the moving parent. Then, the court must fashion an appropriate parenting plan that takes into account the fact that the parents live in separate states.

Jacob A. v. C.H., 196 Cal. App. 4th 1591 (2011).

The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed custody issues like this one. If you are contemplating moving and have joint custody of your child, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in-depth analysis of your issues. 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.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Actor Jon Cryer Ordered to Continue Child Support Payments Despite Having Primary Custody

September 12, 2011/in Family Law /by Gina Policastri

“Two and a Half Men” television show actor Jon Cryer pays his former wife a hefty $8,000 per month in child support, even though he has close to full custody of their son. Cryer has 96% of the parenting time while Sarah Trigger Cryer only has 4%.

The two married in 2000 and divorced four years later. Sarah, also an actor, has not had a job since 2005 and is not inclined to look for work. Jon and Sarah each remarried and Sarah had a second child. Following a divorce from her second Husband, Sarah had custody of both her children when, in 2009, the two boys were removed from her after she was accused of being an unfit parent by Jon for leaving their son unsupervised, admonished by the court for negligent parenting, and allowed her second child to be injured while under her care. Jon was awarded physical custody of their son.

Thereafter, Jon requested a reduction of his child support payments from $10,000 per month to zero, as he was now the sole custodial parent. However, the trial court simply lowered the payments to $8,000 per month. On appeal, the court determined that despite Jon’s increased timeshare, any further reduction would be against the best interests of their child and have a detrimental effect, pointing to the fact that Sarah was in the process of reunifying with their son, and that a reduction in support would not allow her to maintain the home that their son would eventually return to once they were fully reunified.

Child support and child custody issues are difficult and complicated. The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed child support issues. If you are involved in a contested child support case, contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri. 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.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization.

California Case Update: Form of Title Presumption Controls Characterization of Life Insurance Policy

Ensuring Your Child’s Safety

Loss of Parental Rights = Loss of Standing in Proceedings Concerning the Child

Connecticut Judge Orders Divorcing Couple to Exchange Facebook Passwords

Tennessee Supreme Court Prohibits Lifetime Alimony for Ex-Spouse

California Enforcement of Out-of-State Support Orders

Court of Appeal Clarifies Seven-Day Waiting Period for Premarital Agreements

Relocation and Child Custody

Actor Jon Cryer Ordered to Continue Child Support Payments Despite Having Primary Custody

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