divorce Archives - Page 9 of 11 - Lonich Patton Ehrlich Policastri

Wyoming Supreme Court Grants Same-Sex Divorce

July 18, 2011/1 Comment/in Family Law /by Julia Lemon

Last month, the Wyoming Supreme Court ruled that the state’s courts have jurisdiction to grant the divorce of a same-sex Wyoming couple who legally married in Canada.

This decision slightly enhanced the rights of same-sex couples in Wyoming, but does not address the more controversial issue of whether Wyoming will permit same-sex couples to marry. Wyoming law defines marriage, in part, as a civil contract between a male and a female person. It also provides that all valid, out-of-state marriage contracts are valid in Wyoming. However, this rule is not absolute and is subject to certain recognized exceptions, such as marriages that are deemed contrary to the law of nature, such as polygamous and incestuous marriages, and those which the legislature of the state has declared shall not be allowed any validity because they are contrary to the policy of its laws.

In its opinion, the Wyoming Supreme Court took great care in ensuring the decision was sufficiently narrow, and expressly limited its decision to the issue of divorce in a footnote: “Nothing in this opinion should be taken as applying to the recognition of same-sex marriages legally solemnized in a foreign jurisdiction in any context other than divorce. The question of recognition of such same-sex marriages for any other reason, being not properly before us, is left for another day.” Christiansen v. Christiansen, 2011 WY 90 (2011). Recognizing a valid foreign same-sex marriage for the limited purpose of divorce, however, does not negate the law or policy in Wyoming against allowing the creation of same-sex marriages.

Same-sex marriage was, and continues to be a developing area of family law. New York first considered a similar case in early 2008 when a judge granted a divorce to a same-sex couple married in Canada.

In an effort to simplify the separation process for same-sex couples, the California Legislature recently made significant amendments to the governing law. The State Assembly adopted the Separation Equity Act of 2010 which clarified that same sex couples married outside the state are able to dissolve their marriage in California. Additionally, same-sex couples who married during the brief period in 2008 when it was legal will have the rights and benefits of married couples, including divorce.

If you have a family law matter and are interested in learning more on the law governing same-sex marriage or divorce in California, 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.

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.

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.

Delaying Divorce Due to Financial Circumstances

April 7, 2011/in Family Law /by David Patton

Recent economic pressures have impacted most individuals, including those wishing to file for divorce. As economic conditions improve, a recent MSNBC article suggests that divorce filings are likely to rise as many were stalled due to economic realities. In highlighting this phenomenon, the article focuses on the Wesners, a couple who initially decided to divorce in 2008, but continually held back due to their financial circumstances. At first Beverly Wesner decided that she would like to have a job before filing for divorce. However, shortly after Beverly secured employment, her husband Dave suffered his own employment difficulties. While Beverley considered filing for divorce during this time period, she was afraid of having to pay spousal support to Dave.

In the meantime, Dave and Beverley have had to endure not really being married while definitely not being divorced. During this time, the couple experimented with a living situation, called “bird nesting,” that is becoming more common in the current economic conditions. In this setup, the kids stay at the family home fulltime while the parents alternate between living in the family home and living in a rented apartment. Eventually, Beverly contacted an attorney to move forward with their divorce after Dave found a job. While the Wesners and countless families across the country have struggled with divorce during difficult times, the article suggests that a growing number may soon be filing for divorce.

Locally, Lonich Patton Erlich Policastri has noticed the impact of the difficult economy with many individuals considering divorce holding back due to underwater property values, depressed 401k values and other economic hardships. If you would like to learn more about divorce and the division of assets and debts or would like to discuss your options, please contact the San Jose Divorce Attorneys at Lonich Patton Erlich Policastri, LLP. 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.

New Study Lists States with the Lowest Divorce Rates

April 1, 2011/in Family Law /by David Patton

An interesting article published in the Wall Street Journal named the states with the lowest divorce rates for the year 2008 -2009. The state with the lowest divorce rate (1.8 percent) was Massachusetts. Nevada had the highest divorce rate at 6.6 percent.

While these numbers are interesting, a state with a “low” divorce rate does not necessarily mean that the married couples living in that state are happier than married couples living in states with “higher” rates of divorce. Many couples in states with “low” divorce rates could be choosing to stay in unsatisfying marriages or simply deciding not to marry in the first place.

While the divorce statistics for California were unavailable, the Center for Disease Control estimates the overall U.S. divorce rate to be around 3.4 divorces for every 1,000 individuals. The U.S. marriage rate is 6.8 per 1,000 individuals. In California, a divorce is also known as a “dissolution of marriage.” When a California divorce is finalized, the couple’s marriage is terminated. At this point, the ex-spouses are considered single and are free to remarry.

For more information on the California divorce process, please contact the San Jose divorce 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.

Source:

Wall Street Journal

Center For Disease Control & Prevention

Is Summary Dissolution Right for You?

March 1, 2011/in Family Law /by David Patton

If you are looking for a simplified divorce process, you may be interested in learning more about summary dissolution. Summary dissolution involves less paperwork and you do not have to appear in court. However, you must meet certain conditions before you qualify for a summary dissolution.

First, you and your spouse must have agreed in writing to a division of your assets and debts. In addition, you must have been married for five years or less, and have no children from the relationship. Neither party may own a home or real estate, the value of the community property must be less than $25,000, and combined debts must not exceed $6,000. Both partners must also waive spousal support.

If you meet the requirements, a summary dissolution may be appropriate for your situation. Both spouses must agree to all of the terms of a summary dissolution. In addition, either spouse may cancel the summary dissolution for any reason before the dissolution is final.

For more information on summary dissolution, please contact our Bay Area 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.

Is Property Acquired After the Date of Separation Still Community Property?

February 25, 2011/in Family Law /by Julia Lemon

In California, the legal date of separation occurs when (1) at least one spouse has the subjective intent to end the marriage and (2) there is objective evidence of conduct that reflects that intent.

California is a community property state. This means that under California law, most property acquired by married persons during their marriage while living in California is presumed to be community property. Property that is acquired prior to marriage, or during marriage by gift, bequest, or devise, or as income from property owed prior to marriage is presumed to be separate property of the receiving spouse. After the date of separation, the earnings and assets acquried by one spouse are generally considered that spouse’s separate property.

For more information on legal separation (property division?), 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.

What is Summary Dissolution?

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

Summary dissolution is a California divorce procedure that allows couples meeting certain qualifications to divorce quickly and simply. Some of the qualifications for a summary dissolution are discussed below.

In order to qualify for summary dissolution, the couple must have been married for no more than five years. Prior to filing for summary dissolution, at least one of the spouses must have been a resident of California for at least 6 months and a resident in the county where the dissolution was filed for at least 3 months.

In addition, “irreconcilable differences” must have caused the breakdown in the marriage. The couple must have no minor children. This means that no child of the relationship was born before or during their marriage. Also, the wife (to the best of her knowledge) must not be pregnant, and the couple must not have adopted any children during their marriage. However, the couple may have adult children.

In order to qualify, the couple also must not have any real property interests other than short term leases. Therefore, couples who own homes are not eligible for summary dissolution. The couple may only have a maximum of $6,000 in unpaid debts incurred by either or both parties during the marriage. This number, however, does not include the balance left on a debt from an automobile purchase.

If a couple qualifies for summary dissolution, they can proceed with a divorce without having to appear in court. However, because there is no trial or hearing in a summary dissolution, couples do not have the right to appeal the case or to ask for a new trial (since there was no trial). For couples who do not qualify for summary dissolution, they may proceed to obtain a divorce through the regular dissolution process. Under the regular dissolution process, couples may ask for a court hearing or a trial. If either party is unsatisfied with the judge’s final decision at trial, he or she may appeal the decision to a higher court.

For more information about California divorce or to find out about all of the summary dissolution requirements, please contact our San Jose 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.

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