Family Law Archives - Page 28 of 35 - Lonich Patton Ehrlich Policastri

Economics of Family Law: Alternatives for Attorney’s Fees in Family Law Cases

July 12, 2011/in Family Law /by David Patton

Outside the United States, the term “attorney’s fees” is not often heard (there are analogous terms in other countries). It is largely part of the United States legal system and is used to refer to an attorney’s compensation for legal services. While sometimes daunting, especially in family law cases, there are attorney fees payment options specific to family law that are worth knowing.

First, it is important to note that most states, like California, make accepting a contingency fee for a family law case a violation of rules of professional conduct or canons of ethics. Rule 1.5 of the ABA Model Rules of Professional Conduct provides guidelines on attorney’s fees. As it relates to family law, the rule states that a “lawyer shall not enter into an arrangement for, charge, or collect any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof.” This rule expressly prohibits attorneys from accepting family law cases on a contingency basis; that is, an attorney’s compensation may not depend on the outcome of the case. This could limit the ability of some parties to obtain a lawyer in divorce proceedings.

However, there are other ways of compensating a lawyer for family legal services. Section 2033 of the California Family Code states that either party to a divorce “may encumber his or her interest in community real property to pay reasonable attorney’s fees in order to retain or maintain legal counsel in a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties.” This encumbrance is known as a “family law attorney’s real property lien” (FLARPL) and attaches only to the encumbering party’s interest in the community real property—providing parties to a family law case the opportunity to compensate their attorney following representation. A FLARPL allows a party without liquid assets to access their interest in the home’s equity to compensate a family law attorney in divorce proceedings where they could not otherwise afford it.

While contingency fees are disallowed in the divorce context, parties should seriously consider the option of a FLARPL when obtaining a divorce lawyer. A FLARPL secures attorney’s fees, however, parties may always choose to pay their attorney over time and keep their interest in their home equity instead.

The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed family law 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

Post-Nuptial Agreements and Spousal Support

July 7, 2011/in Family Law /by Mitchell Ehrlich

Spousal 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

June 9, 2011/in Family Law /by Mitchell Ehrlich

Media 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

June 2, 2011/in Family Law /by Mitchell Ehrlich

The 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

May 31, 2011/in Family Law /by Mitchell Ehrlich

A 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

May 6, 2011/1 Comment/in Family Law /by David Patton

The 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.

Private Judging in Marital Dissolution Cases: Not Simply “For the Wealthy”

May 4, 2011/in Family Law /by Mitchell Ehrlich

There is a commonly held perception that hiring a Private Judge to handle a marital dissolution case is something that only the wealthy do. Though there are additional costs incurred in using a Private Judge for Marital Dissolution proceedings, these costs are more than offset by other kinds of cash savings, which can be substantial.

What is a “Private Judge?”

A “Private Judge” is an attorney who meets specific legal qualifications and experience and who is appointed by the parties (by agreement). A Temporary Judge/Private Judge generally has the same responsibilities, authority, and roles as those of the full time Superior Court Judge.

Hiring a Private Judge and Scope of Authority

The appointment of a Private Judge begins by a mutual agreement of the parties which is memorialized in a written Stipulation. The parties will agree on the scope of authority of the private judge, meaning what areas of the case the Private Judge will make decisions upon. A Private Judge can be an all purpose Judge handing all issues, or the parties can agree to limit the scope to particular issues, such as property division, support, child custody etc.

The Role of a Private Judge

A Private Judge’s ultimate role is to be a trial judge or finder of fact over disputed issues. If a matter does proceed to contested trial with a Private Judge, it will proceed in a manner identical to a trial in the Superior Court, with witness and expert testimony, documents, rules of evidence etc. except that the setting may be somewhat less formal (and therefore less intimidating, as they are often done in a conference room at the Private Judge’s office).

However, over and above that, and well prior to trial, a Private Judge can provide neutral, third party input on probable solutions and can be instrumental in settling cases short of trial through the case management and settlement conferences.

Costs and Cost Savings

Typically, Private Judges charge an hourly rate with the costs shared equally by both parties. The ultimate cost depends on how many hours are consumed and how long the case takes to come to a resolution. However, the cost of a Private Judge is more than off-set by the cost-saving and other associated benefits.

Litigating contested cases in the Superior Court can be extremely expensive and very time consuming (which in turns lead to more expense). Because of busy calendars and overrun dockets, a family law trial may actually occur over a series of days or half days spread out over weeks or months and possibly years. Nearly every attorney has experienced a trial that involves one day in May, another day in June and so on. With each interrupted day, additional costs are incurred through duplicative preparation, delays etc.

Even motion issues, which are disputed issues that are typically handled in under 30 minutes, are done more cost efficiently with Private Judges. In the Superior Court a motion involves substantial briefing back and forth in the 30 days prior to the hearing. On the day of the hearing, the parties may wait around for up to 2 hours or more to have their case heard. Often the Court will run out of time and make them come back at a later date, or after 20 minutes of hearing, determine that more time is needed and make the parties come back for a second hearing. Even if the matter is heard that day, a decision may not be rendered for weeks or months given the heavy caseload that California Judges work under.

With a Private Judge, a time slot is reserved for your case. The matter is briefed in an agreed upon fashion and the briefs are fully reviewed. Often brief are shorter and less fact oriented as the Private Judge is typically very familiar with both the law and the facts. The hearing will take place at the scheduled time with little or no waiting around. Private Judges can also engage in a teleconferences or informal hearings that often negate the need for formal hearings.

Time Savings and Other Benefits

Family Law Private Judges are typically former Family Law attorneys who are experts in the field of Family Law and are able to evaluate the facts of a case quickly and either resolve the dispute or craft out an equitable resolution. That is not always the case with Superior Court Judges, who often move from department to department every few years (i.e. Criminal to Civil to Family).

While Superior Court Judges have extremely large case loads such that litigants often find their Judge does not remember all the details or history of their case (and may need to be repeatedly reminded of what happened previously), due to smaller case loads and more frequent case management, a Private Judge is almost always very familiar with the parties, the facts and the history and can get through the case quickly and can render decisions much sooner.

Many litigants who have been in both Superior Court and Private Judging also prefer the privacy and what some have called “more dignified” benefits in Private Judging. For example, few of the pleadings or letters ever find their way in the Superior Court file which is accessible to the public. In Superior Court cases almost everything ends up in the court file. It can also be less stressful and more calming and ultimately more “private” to have their case handled in a Private Judge’s office conference room rather than in Superior Court courtroom in from the entire courtroom staff, and tens if not hundreds of other litigants and spectators in the courtroom whom they don’t know.

If you have a family law matter and are interested in learning how using a Private Judge can assist you in resolving your issues, 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.

What is Income for Purposes of Support?

May 3, 2011/in Family Law /by Gina Policastri

In a case of first impression, the Fourth District Court of Appeals affirmed a trial court’s ruling that two benefits received by a member of the Navy – “basic allowing for housing” (BAH) and “basic allowance for subsistence” (BAS) – can be considered income for purposes of child and spousal support. Father argued that inclusion of these benefits was improper because under federal law they are not taxable income and the court violated the federal preemption doctrine by holding that they were income for purposes of support. The trial court disagreed, stating that “(i)f it looks like income, it is income no matter how it’s paid to you.” In affirming the trial court, the panel cited and quoted from sister state cases on this issue, which have held that “(t)he nontaxable status of military allowances does not suggest Congress had any preemptive intent with regard to either child or spousal support” and “the protection of certain military allowances from wage garnishment for support arrearages does not indicate Congress intended to preempt state family support law.” It concluded that “the doctrine is inapplicable, as under United State Supreme Court authority family law support matters are within the province of state law unless ‘Congress has positively required by direct enactment’ that state law be pre-empted.’ We join in courts across the nation in holding that such allowances of are included in a party’s gross income for purpose of support when state law encompasses them.”

For more information about California support issues, please contact us. 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.

Grandparent Visitation Rights

April 19, 2011/in Family Law /by David Patton

A grandparent may seek visitation rights even if there is no parental custody case pending in court. A court’s jurisdiction over this issue may be invoked in a separate action brought on the grandparent’s behalf. In order for grandparents to seek visitation privileges, they must first meet a two-part test.

First, the grandparent must have a preexisting relationship with the grandchild so that visitation would be in the child’s best interest. Second, the court must balance the child’s interest in grandparent visitation with the parents’ rights to exercise parental authority.

For more information about grandparent rights, please contact us. 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.

Courts Must Consider the Child’s Best Interest When Making Custody & Visitation Decisions

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

When a Santa Clara County Family Court Judge makes a decision regarding custody and/or visitation of a child, the court is required to make a determination based on that child’s best interest. When making the “best interest” determination, the court can consider a wide variety of relevant factors. The court must, however, consider the child’s health, safety, welfare, any history of physical abuse, history of parental drug or alcohol abuse, stability and continuity of the child’s environment, as well as other factors.

When a court considers allegations of abuse in order to determine appropriate custody/visitation orders, the court will look at a parent’s history of domestic violence against the child or another person. “Abuse,” in this context, is defined by the California Family Code as “intentionally or recklessly causing or attempting to cause bodily injury or sexual assault, or placing another in reasonable apprehension of imminent serious bodily injury to himself, herself or another.”

A significant component of the “best interests” analysis includes the goal of protecting a stable custody schedule. When examining this factor, the court will look at any harm that may be caused by disrupting established patterns of care and emotional bonds with the primary caretaker.

Before a court considers allegations of drug or alcohol abuse by a parent in a child custody/visitation determination, the court may require independent corroboration. Independent corroboration may include reports from law enforcement agencies, courts, or other organizations. In addition, after following strict legal guidelines, a court may order a parent to undergo testing for illegal drugs or alcohol abuse.

For more information about all of the factors that a court will consider in determining what is in a child’s best interest in a child custody case, please contact our San Jose child custody attorneys 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.