California divorce law Archives - Page 3 of 4 - Lonich Patton Ehrlich Policastri

California “Long-Term” Marriages

February 23, 2012/2 Comments/in Family Law /by Mitchell Ehrlich

Recently, L.A. Lakers basketball star Kobe Bryant’s divorce from Vanessa Bryant made national headlines. There has been speculation and discussion regarding the size of Vanessa’s potential divorce settlement, particularly due to the length of their marriage, which was more than ten years. See L.A. Times, Kobe Bryant divorce: Prenup could have ‘saved half of his fortune.’ It has been posited that Vanessa purposefully waited until after their ten-year anniversary to ensure spousal support for a lengthy period. However, while Vanessa will likely receive a significant amount of spousal support (Kobe’s net worth is estimated at $300 million), the focus on her “wisely waiting ten years to divorce” should not necessarily garner the attention it has.

According to California Family Code section 4336, there is a rebuttable presumption that a marriage of ten years or more (from the date of marriage to the date of separation) is a marriage of “long duration” for purposes of retaining spousal jurisdiction which could lead to lengthy support orders or even lifetime support. This does not mean, however, that shorter marriages will not be considered marriages of “long duration.” Courts have discretion to determine a marriage to be of “long duration” after evaluating and weighing underlying facts. So while ten years of marriage may appear to be the magic number, it is not the only way a court will retain spousal support jurisdiction. It is possible that a trial court could determine Kobe and Vanessa’s marriage was lengthy even if they were married for less than ten years.

The court’s ability to retain spousal support jurisdiction effectively creates an indefinite term support order, meaning spousal support could continue for life. But because the court retains jurisdiction, it also has jurisdiction to modify or terminate the order upon a showing of “changed circumstances.” Under Family Code section 4320, a court considers and weighs the various factors (including the duration of the marriage), and a “reasonable period” to become self-supporting, which could be shorter or longer than one-half the length of the marriage. There may be cases where (because of age, health, etc.) self-support may not be a realistic expectation at all. Thus, despite their ten-year marriage, a court retains the power to modify any support order following the divorce.

While Kobe and Vanessa’s divorce will likely not play out in the courts, it is likely that Vanessa will see receive a substantial amount of spousal support for an extended duration. The Certified Family Law Specialists* at Lonich Patton Ehrlich Policastri have decades of experience handling spousal support issues in marriages of both short and long duration. If you are contemplating divorce, please contact the Certified Family Law Specialists* at Lonich Patton Ehrlich 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

Every Marriage Needs a Prenup

February 22, 2012/in Family Law /by David Patton

While a prenuptial agreement may not be the most romantic gesture, every couple can benefit from creating one, even if at the time of marriage there are little assets. Assets may accumulate during the marriage and even young couples just starting their own careers should want to make sure that what they acquire during marriage is not left for a court to divide.

While prenups are often associated with divorce, discussing hypothetical scenarios can help to shed light on relationship expectations and help ensure decisions are made accordingly. Many people also do not realize that post-nuptial agreements are possible. The only catch is that they can be more difficult to procure and enforce as there are additional requirements. Waiting until the last minute to think about a prenuptial agreement can result in unnecessary pressure and force more couples into the more difficult post-nuptial route.

Of the many considerations in discussing a prenuptial agreement, none is more important than the fact that California is a community property state. This means that couples’ assets are typically divided 50/50 despite any special circumstances. Any couple that would prefer anything besides equal division needs a prenup to avoid it. Attorneys have compared prenups to life insurance policies, no one enjoys imagining the worst-case scenario but having a policy or prenup in place can make a significant life event less difficult.

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

*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

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 Ehrlich 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 Ehrlich 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 Ehrlich 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 Ehrlich 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 Ehrlich 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 Ehrlich 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

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 Ehrlich Policastri have decades of experience handling premarital agreements. If you are contemplating marriage, please contact the Certified Family Law Specialists* at Lonich Patton Ehrlich 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

Divorce Today: Navigating through Divorce Lawyers Online

July 25, 2011/in Family Law /by Mitchell Ehrlich

It used to be the case that people would turn to phonebooks to find an attorney. Based on little more than an affinity for the particular lawyer’s ad—from an appealing graphic or clever quote—people would hire a lawyer. Today, in the world of websites, ratings, and reviews, the landscape is much different. With websites like Yelp and Avvo, providing clients with the opportunity to review their experience with an attorney, finding a qualified lawyer is only a few clicks away.

On Yelp, reviewers may review everything from cemeteries to restaurants to baby furniture. Therefore it shouldn’t be surprising to learn that lawyers and law firms are frequently reviewed as well. In an official blog, Yelp recently summarized what percent of reviews in each business category on Yelp were written by people within five year ranges. Not surprisingly, searches and reviews for divorce lawyers are heaviest in the range of 30s all the way up to the mid-50s, an incredibly wide range of clients.

http://officialblog.yelp.com/2011/06/ages-of-yelp.html

When searching for a lawyer online, it is important to not only keep in mind what legal services you need but the source of the information posted. A younger client does not necessarily seek the same attributes in a lawyer as an older client might. Further, our legal system is adversarial and there is almost always a loser. Clients who are upset with the outcome of their case may take it upon themselves to post overly negative reviews even though it is not an accurate reflection of the representation received. Many times, reviews are not even written by an actual client. So while online ratings and reviews may be incredibly helpful, it is important to be aware of who may be writing them.

The Certified Family Law Specialists as certified by The State Bar of California Board of Legal Specialization, at Lonich Patton Ehrlich Policastri have decades of experience handling divorce issues for clients in different stages of life. If you are contemplating divorce or separation, please contact the Certified Family Law Specialists as certified by The State Bar of California Board of Legal Specialization at Lonich Patton Ehrlich 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.

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 Ehrlich 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 Ehrlich 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 Ehrlich 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

Marital Debts: What You Need to Know

February 22, 2011/in Family Law /by David Patton

The community estate (i.e. a married couple’s community property and quasi-community property) is generally liable for either party’s premarital and pre-separation debts. This rule applies regardless of which spouse has management and control of the property, and regardless of whether the debts were incurred to benefit both spouses.

The community may be liable for child support and spousal support obligations arising from one spouse’s prior marriage even though the other spouse did not personally incur the original obligation. The community, however, may be reimbursed when community property is used to pay the other spouse’s child/spousal support if the obligor spouse had separate property income available to use to satisfy the debt. The community estate is generally not liable for debts one spouse incurs while the spouses are living separate and apart from each other.

For more information about California divorces, please contact the Santa Clara divorce attorneys at Lonich Patton Ehrlich 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.

Posts

California “Long-Term” Marriages

Every Marriage Needs a Prenup

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

Ensuring Your Child’s Safety

Connecticut Judge Orders Divorcing Couple to Exchange Facebook Passwords

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

Divorce Today: Navigating through Divorce Lawyers Online

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

Post-Nuptial Agreements and Spousal Support

Marital Debts: What You Need to Know

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