Family Law Archives - Page 33 of 35 - Lonich Patton Ehrlich Policastri

Family and Other Close Relationships Can Impact Your Child Custody Rights

December 9, 2010/in Family Law /by Mitchell Ehrlich

Just recently, the mother of a one year old boy was stripped of her custody rights after her child was shot in her own home. The boy was accidentally shot by his 19-year old uncle. The child survived and is now on the road to recovery. Meanwhile, the father has been awarded custody and the mother has visitation rights.

In the recent court decision surrounding this case, the court was hesitant to make a final award of custody to the mother due to concerns over whether Escalante is capable of protecting her son against the shooter. She contends she has had no contact with the 19 year old and has changed her phone number. In addition, Escalante has completed court required parenting classes. To see the full article go to MSNBC .

This case is a prime example of how one horrific accident that was not directly caused by a parent, can dramatically impact that parent’s custody rights. If you are in the midst of a disputed custody case, keep in mind that the outcome of the case can be affected by the type of the individuals to whom you choose to expose your children. A court will consider a variety of issues when determining custody, including fitness of each parent and the type of environment the child will experience.

For more information on how to prepare yourself for a custody battle, 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.

Automatic Temporary Restraining Orders

December 2, 2010/in Family Law /by Julia Lemon

Automatic Temporary Restraining Orders

Once a divorce or legal separation is filed, a set of Family Law Automatic Temporary Restraining Orders (ATROs) take effect. There are four standard mutual restraining orders that take effect automatically when the petition for dissolution is filed (as to the petitioner) and when the petition for dissolution is served (as to the respondent). The restraining orders restrain both parties from doing the following:

Removing the parties’ minor child(ren) from the state without the prior written consent of the other spouse or a court order.
Transferring, encumbering, concealing or disposing of any property, real or personal, community or separate, without the written consent of the other party or a court order.
Insurance Coverage – Spouses are prohibited from changing beneficiaries, altering, canceling, borrowing against, cashing, or transferring any insurance including health, automobile, life, and disability insurances. This means that you cannot, for example, cancel your spouse’s health or auto insurance or change the beneficiaries of any life insurance policies during the pendency of a dissolution proceeding.
Creation and Modification of Non Probate Transfers: Both spouses are prohibited in creating non probate transfers or modifying a nonprobate transfer in a manner that affects the disposition of the property subject to transfer, without the written consent of the other party or a court order. A non probate transfer includes revocable trusts, a financial institution pay on death account, Totten trust, and transfers on death registration of personal property. This does not include wills.

Spouses are also required to notify the other spouse of extraordinary expenditures at least five business days in advance and to account for these expenditures to the court. They are, however, allowed to use community, quasi-community, or their own separate property to pay an attorney.

It is important to speak to your attorney to determine what is within your purview to create, modify or change while your divorce or other legal action is pending.

For more information about divorce and restraining orders, please contact the divorce 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.

Who Gets the Dog?! A Recent Case Sheds Light on Pet Custody

December 2, 2010/in Family Law /by Julia Lemon

What do you do if you cannot imagine parting with Fido, Fluffy, or Rover, but you know your soon-to-be ex-spouse feels exactly the same way? A recent Maryland court decision dealing with pet custody addressed this very issue, and in a somewhat controversial move, awarded joint custody of the pet to both spouses. The spouses in this case both wanted custody of their beloved Shih Tzu mix, Lucky. After the judge considered both sides’ arguments, he decided the only fair option would be to award both spouses custody of Lucky for 6 months of the year.

In California, domestic pets, such as dogs and cats, are generally considered property. Thus, the approach taken by the Maryland court, which handled the pet custody issue in a method similar to child custody cases, is quite controversial.

In recent years, California has been more willing to protect pets throughout the divorce process. In fact, the California Family Code allows a court to grant one spouse the exclusive care, possession, or control of a pet. Likewise, a court can also order one spouse to stay away from a pet or refrain from taking, striking, harming or disposing of a beloved animal.

However, one of the main problems is that allowing a court the latitude to make such unique pet-custody rulings will result in further backlog an already congested court system. However, this approach can reach more equitable and satisfying outcomes for ex-spouses. For the full article, click here.

If you live in the Silicon Valley area and are concerned about what will happen to your beloved pet after your divorce, please contact the attorneys at Lonich Patton Erlich Policastri for more 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.

Thanks to Chau Law.

Are You Divorcing? Here is What Not to Do Online

November 23, 2010/in Family Law /by Mitchell Ehrlich

Divorces are difficult and trying events. Don’t add to the stress of the experience by making some common mistakes with your social networking. Recently, a Time magazine article discussed the implications that social networking can have on a person’s divorce case. The article noted that it is now commonplace for divorce attorneys to use information gathered on social networking websites to bolster their case against their client’s ex-spouse. Information gleaned from social networking sites can be used to catch spouses in lies and improper behavior. This information can affect the outcome of asset distribution, child custody, child support, spousal support, and other important divorce issues. For the full Time article, please click here.

If you are a member of Facebook, MySpace, Twitter, or other social networking websites, you should be very careful about what you post online. Do not post information relating to marital property, spousal support, child custody/care, or other personal information that may be relevant to your divorce case.

For more information about California divorces, please contact the divorce 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.

There are Several Different Avenues for Pursuing a Child Support Order in California

November 23, 2010/in Family Law /by Mitchell Ehrlich

Child support is a certain amount of money that a court instructs one parent of a child to pay the other parent. The court’s instruction is detailed in a document called a child support “order.” The child support money is used to financially support the child. If you are having difficulties supporting your child after a divorce, or if the other parent is not pulling his/her weight, you may want to contact a family law attorney for advice.

First of all, if you have been the victim of domestic violence by the other parent you may ask for child support when you are seeking a domestic violence restraining order. If you are married or in a registered domestic partnership and have a child from that union, you can also seek child support as part of a dissolution of that marriage or domestic partnership. The legal procedures differ slightly depending on whether or not you are married or in a domestic partnership with the other parent of the child. Regardless, the procedures all lead to the same result, a child support order. In order to begin this process, you must file a court case. After you file the case, the court may then decide to grant you the order for child support. In addition, if you do not want to file for divorce or legal separation, you can file a Petition for Custody and Support of Minor Children and Summons. This also allows you to seek child support from your spouse.

If you are not married to, or a domestic partner of, the other parent, you may ask for child support in different instances. First, you may ask for child support if you file a parentage case to determine who the legal parents of the child are. Second, if you have signed a voluntary Declaration of Paternity, you may choose to file a petition for Custody and Support of Minor Children as well.

If you are confused about what is your best option for successfully obtaining child support from your ex-spouse, you may need professional guidance. Please contact us for more 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.

Different Types of California Child Custody Arrangements Explained

November 22, 2010/in Family Law /by David Patton

There are two types of custody: legal and physical. Legal custody is the right and responsibility to make the decisions about your child’s welfare, health, and education. If one parent has sole legal custody of his or her child, he has the exclusive right to make decisions relating to the child’s health, and education and welfare. If the parents share joint legal custody, both parents share the right and responsibility to make these decisions.

Physical custody refers to who the child resides with and is supervised by. If one parent has sole physical custody, the child exclusively resides with and is supervised by that parent, subject to the other parent’s visitation rights. If the parents share joint physical custody, each has significant periods of physical custody, and custody is shared in such a way as to ensure that the child has frequent and continuing contact with both parents. However, the timeshare is not necessarily equal.

For more information about California’s child custody laws, 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.

Legal Separation vs. Annulment vs. Dissolution

June 15, 2010/in Family Law /by Julia Lemon

When spouses wish to terminate or alter their marital status, they have three options for doing so- legal separation, annulment or dissolution. If spouses choose annulment or dissolution, the marriage is terminated and the spouses become single persons. If they opt to obtain a legal separation, the marital status is not terminated and they are unable to remarry unless or until the marriage is terminated by a later judgment of dissolution; however, legal separation does deal with property rights, child/spousal support, and custody and visitation issues.

Dissolutions terminate existing marriages on grounds arising after the marriage (such as irreconcilable differences). In contrast, annulments are based on the theory that no valid marriage ever occurred (i.e., the marriage was void or voidable (incestuous, bigamous, induced by fraud, one party was under the age of consent, etc.). It can be difficult and/or costly to prove these grounds.

Generally speaking, people who choose legal separation rather than dissolution do so for religious or other personal reasons, such as retaining eligibility for medical insurance that would otherwise be lost by a termination of the marriage.

If you are considering terminating your marriage, please contact Lonich & Patton to set up a free 30 minute consultation with an attorney to discuss which option may be right for you.

Do’s & Don’ts of Status Only Dissolution

May 26, 2010/in Family Law /by Gina Policastri

Under California Family Code Section 2337, a party may obtain what is called a “Status Only Judgment,” which is a judgment that terminates the marriage only, leaving all other issues (division of property, support, custody) to be decided at a later time. The most common reason that a party seeks a status only judgment is because that party wants to remarry. In other cases, the reason is psychological: a party feels that obtaining the divorce will help them move on from the relationship. Whatever the reason may be, it is important to understand the serious consequences that stem from a status only judgment.

1.Loss of Health Care Coverage: Once you are divorced, you are no longer eligible for health care benefits as a “spouse” under your spouse’s employer-sponsored health care plan. The cost of COBRA or an individual heath care plan can be astronomical. If you have any pre-existing conditions or current illness, it may be wise to wait for all issues in the case to be resolved to lengthen the time for which you are eligible under your spouse’s plan. If your spouse demands the status only, he or she will have to agree to continue coverage at his or her own cost until the divorce is final.
2.Loss of Surviving Spouse Retirement Benefits: Similarly, once you are divorced, you are no longer considered a “surviving spouse” for purposes of surviving spouse retirement plan benefits. Accordingly, it is critical that you obtain a Qualified Domestic Relations Order preserving your rights in the retirement plan before agreeing to the status only.
3.Application of Probate Rules: Should your spouse die at any point after the status only but before the final judgment that divides the community estate, the probate code, not the family code, will apply. This could mean the loss of your rights in property that is held in the deceased party’s name alone even if it would otherwise be a community property asset by virtue of the date of purchase or other agreement between the spouses.

These are just a few of the possible consequences of a status only judgment. In recognizing these and other significant consequences, the legislature recently modified the statute governing status only judgments to provide more protection for the spouse whose rights are adversely affected. Typically, the party seeking the status only will be required to “indemnify and hold harmless” the other party; this means that should there be any adverse consequences as a result of the status only, the requesting party will be required to pay for any such losses incurred by the other party.

Proactive Steps to Take if You Are Contemplating Divorce

May 24, 2010/1 Comment/in Family Law /by Julia Lemon

In California, both spouses have fiduciary duties towards one another that require them to act in good faith in their dealings with each other and to disclose all material facts and information regarding community assets and debts. While there are several formal and informal methods of obtaining necessary information from the other party during a divorce, being proactive can cut down on the amount of time and expense needed to evaluate and prepare your case. The Minnesota Divorce and Family Law Blog has a helpful list of documents to gather upon deciding to file for divorce. Specifically, it suggests gathering:
1.Copies of financial statements;
2.Copies of tax returns;
3.Copies of computer hard drives;
4.Copies of insurance policies;
5.Copies of wills and/or trusts;
6.Inventory of safety deposit boxes, with a witness;
7.Copies of deeds and/or titles to real property;
8.Copies of small business ledgers, financial journals, payroll, sales tax returns and expense account records;
9.Copies of appraisals for art, antiques, jewelry and collectibles;
10.Record the contents of each room in your home through video;
11.Copies of retirement account statements; and
12.Copies of your spouse’s pay stubs for the last few months.

http://www.mnfamilylawblog.com/2009/12/articles/contested-divorce/staying-ahead-of-the-curve-12-proactive-steps-to-take-if-you-are-contemplating-divorce/

North Carolina Woman Awarded $9 Million from Husband’s Mistress

May 7, 2010/in Family Law /by Mitchell Ehrlich

Suspecting her husband of 32 years was having an affair, Cynthia Shackelford of North Carolina hired a private investigator who confirmed her fear: her husband was involved in a longstanding liaison with a woman whom he’d met at a local college. Shackelford took legal action, suing her husband’s mistress for “alienation of affection.” She won, and was awarded $ 9 million in damages. Shackelford says the lawsuit wasn’t about the money; it was about sending a message.

The little-known law, which doesn’t exist in California or 42 other states, allows for aggrieved spouses to bring a claim in civil court – separate from family law proceedings – against third parties who knowingly have an affair with a married person. Generally, the plaintiff in such actions must show: 1) the marriage entailed love between the spouses in some degree; 2) the spousal love was alienated and destroyed; and 3) the defendant’s malicious conduct contributed to or caused the loss of affection.

Critics of “alienation of affection” and similar laws consider them to be archaic relics of a bygone era. Jacob Appel of Huffington Post describes them as “vestiges of legal codes that also prohibited divorce and criminalized premarital sex, … a consummate example of the sort of private controversies in which the government has no business meddling.” Likewise, some attorneys feel that such laws unnecessarily escalate family law proceedings and are inconsistent with the policies behind “no fault” divorce, which seek to minimize inquiry into the he-said-she-said interpersonal drama that is often behind the breakdown of marriage. Nevertheless, a handful of states still have “alienation of affection” laws on the books, something to make would-be-marriage-meddlers think twice.

Sources: People Magazine, Huffington Post