family law Archives - Page 5 of 7 - Lonich Patton Ehrlich Policastri

Paternity Woes: Timing Matters

February 26, 2014/in Family Law /by Gretchen Boger

In Californian family law, there are a few important presumptions. Most have to do with marital property. However, one presumption is all about paternity. In California, a man is presumed to be the father of a child that is born to his wife during their marriage.* In a recent case, this presumption complicated matters for a man, his ex-girlfriend, and her new husband.

Victor and Mary were “romantically involved” when Mary became pregnant, although they never married. One month before she was due to deliver, however, Mary ended her relationship with Victor. After that, she acted fast. She married another man, Roger, before she had even delivered her baby. Shortly thereafter, her baby boy was born.

Due to the previously mentioned presumption, Roger was considered the baby’s father under California law. Mary and Roger, now married, took the baby into their home, and Roger treated the child as his son. Victor knew the baby was his, but he was not allowed to see his son.

After eight months, Victor filed a paternity suit stating that he was the biological child of Mary’s son. Unfortunately for Victor, Mary fought back, raising the presumption, and the trial court held that Victor did not have standing to claim paternity. His suit was dismissed.

Nevertheless, Victor appealed the trial court’s decision. The appellate court held that the presumption can be rebutted, especially where there is evidence that the child was not conceived during the mother’s current marriage. So, because Mary’s son was conceived well before she was married to Roger, Victor could rightfully file his paternity suit.

Although the trial court’s decision was overturned, Victor is still the boy’s presumed father. However, now Victor will have a chance to prove that he also deserves to be in the boy’s life because of their biological ties. Sadly, more litigation is on the horizon for these parties.

Paternity cases can be dramatic and complicated. If you find yourself in a difficult paternity situation, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization). Our attorneys have decades of experience handling complex family law proceedings and offer a free consultation.

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.

*See California Family Code § 7611.

January, AKA “Divorce Month,” is Over!

February 3, 2014/in Family Law /by Gina Policastri

There’s a month for everything: National Pet Month, National Honey Month, National Grilled Cheese Month. And apparently, in recent years, January earned the less-than-flattering title of “Divorce Month.”

Findlaw.com, along with legal research service Westlaw, recently analyzed divorce filings between 2008 and 2011. Their study showed a spike in divorces in January, followed by a spike in late March. The study also revealed searches for “divorce,” “family law,” and “child custody” increased 50% from December to January – searches that continued to soar through the month of March.

So what exactly is going on during the early months of the year that causes such a rise in divorce? Miles Mason, a Memphis-based divorce attorney, lists a few reasons.

First of all, folks do not want to be perceived by friends and family as cold and heartless right before Christmas. Mason explains that “if somebody is coming to us in January, they made the decision to come see me or a lawyer before the holidays.”
Secondly, finances play a factor. Bonuses typically occur at the end of the year, a portion of which can be claimed as an asset from a spouse. Waiting until January to file for divorce will also not interfere with tax filings for the year before, which most couples file jointly.
Lastly, psychiatrist Mark Banschick explains that the start of the new year usually prompts an “existential moment” where people take a closer look at their lives, realize that it passes by too quickly, and that their current situation is not happy. As a result, “they call attorneys out of pain.”

If you have questions about divorce planning, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization). Our attorneys have decades of experience handling complex family law proceedings and offer a free consultation.

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: http://www.cnn.com/2014/01/17/living/january-divorce-month-matrimony/index.html?sr=fb011714divorcejanuary3p

If You Think a Child Can Have Only Two Parents, Think Again.

January 31, 2014/in Family Law /by David Patton

As of the first of this year, some new and exciting changes have occurred in California family law. Last fall, Governor Brown signed bill SB 274* which allows children to have more than one parent. The court will grant parentage to multiple parents where it is determined that having only two parents will be detrimental to the child.

The law, now part of the California Family Code, directs the family court to consider all relevant factors, including, but not limited to, the harm of removing a child from a stable home with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time. For example, this would allow a child to remain legally connected to both of his natural parents while creating a new legal connection between him and his aunt who has cared for him for a significant amount of time.

With this law, the court can allocate time and custody of the child among all of the legal parents. As always, what is in the best interests of the child is what controls the court’s decisions. This is the same for child support. In the end, Governor Brown acknowledged that in some situations, a child can benefit from having the care and support of three or even four parents. This is a major departure from previous laws which only allowed each child to have two legal parents. Now, there are more people who will have standing in family law proceedings in regards to certain children.

If you are interested in petitioning for parentage of a child, or are dealing with other family law issues, having a knowledgeable, experienced family law attorney by your side can prove to be invaluable. If you have any questions about your divorce or custody issues, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization). Lonich Patton Erlich Policastri’s attorneys have decades of experience handling complex family law proceedings and are happy to offer you a free half-hour consultation.

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.

http://articles.latimes.com/2013/oct/04/local/la-me-brown-bills-parents-20131005

*SB 274 is now operative as of 1/1/14.

Olympic Skier Reaches Custody Agreement

January 23, 2014/in Family Law /by Gina Policastri

As the world gears up to watch the Winter Olympics, the 10-month-old little boy caught in the middle of the divorce between Olympic skier Bode Miller and ex-girlfriend Sara McKenna will finally have some peace in his short, young life — for the time being, at least. Miller and his former flame have agreed to share custody with their infant son for the next few months, calming a custody battle over him as Miller prepares to head for the Winter Olympics in Sochi, Russia.

Last year, Miller and McKenna had a brief relationship in Southern California, where Miller still resides. Miller filed California court papers claiming paternity of the baby in November 2012, when McKenna was still pregnant. The following month, McKenna moved to New York to attend Columbia University to complete her bachelor’s degree. Then, in February 2013, she gave birth to the little boy – and conveniently filed for custody in New York. Miller accused McKenna of moving while seven months pregnant to relocate to a state with laws that favor mothers. McKenna argues that she moved to Manhattan because she did not want to give up her dream of attending the Ivy League university.

Though lauded by women’s rights activists who believe McKenna had been penalized by the New York judge’s decision, McKenna was criticized by a New York City family court referee for leaving California before co-parenting details could be worked out. The Court Attorney Referee called McKenna’s move “irresponsible” and “reprehensible,” and sent the case back to California, where a judge gave Miller and his new wife custody of the baby boy. McKenna’s attorneys appealed the decision, claiming McKenna’s rights had been violated and that jurisdiction belongs in New York because the baby, having been born in New York, was a resident of the state. As such, the case was kicked back to the same New York courtroom, where Miller and McKenna were able to agree to temporary shared custody.

Though the arrangement reached between Miller and McKenna is only temporary, attorneys for both sides are hopeful the dispute will be resolved. The arrangement will also allow Miller to take his son to the February Olympics in Sochi. For his part, Miller is “psyched about the cooperative plan” and for hers, McKenna “think[s] we’re on the right road.”*

If you’re considering a cross-country move during a custody dispute, be sure to first consult an experienced family law attorney. Having a knowledgeable, experienced family law attorney by your side can prove to be invaluable. If you have any questions about your divorce or custody issues, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization). Lonich Patton Erlich Policastri’s attorneys have decades of experience handling complex family law proceedings and are happy to offer you a free half-hour consultation.

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.

*http://www.cbsnews.com/news/bode-miller-ex-girlfriend-reach-custody-agreement-on-son/

Could Your Email Settings Land You In Jail?

January 15, 2014/in Family Law /by Mitchell Ehrlich

In Thomas Gagnon’s case, it sure can – and did. Unbeknownst to him, Mr. Gagnon’s ex-girlfriend received an email from him inviting her to join Google+. Unfortunately, Mr. Gagnon’s ex-girlfriend had a restraining order against him at the time. When she received the email, she complained to the authorities that Mr. Gagnon had violated his restraining order. Authorities agreed and arrested Mr. Gagnon, who was jailed before being released on bail.

However, Mr. Gagnon insists he never sent the email – he never authorized the email invitation, never consented to the invitation, and quite frankly, “has no idea how the invitation got sent.”*

According to Internet expert Bradley Shear of Bethesda, Md., Mr. Gagnon could very well be telling the truth. Google+ allows users to aggregate their contacts into various groups, and moving between groups can trigger Gmail to send automatic invitations to contacts to join Google+. Although Google could face serious liability for sending invitations without a user’s permission, the consequences can be very real (and immediate, like in Mr. Gagnon’s case) for the uneducated user.

Moral of the story: Consistently check your Internet settings and learn how certain invitations can be triggered. In this day and age, you can never be too careful with your privacy settings – especially when you’re in the middle of a domestic dispute or divorce.

If you are involved in a domestic dispute or divorce, having a knowledgeable, experienced divorce attorney by your side can prove to be invaluable. If you have any questions about your divorce or related issues, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization). Lonich Patton Erlich Policastri’s attorneys have decades of experience handling complex Family Law proceedings and are happy to offer you a free half-hour consultation.

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.

*http://gma.yahoo.com/man-jailed-gmail-invite-ex-girlfriend-111716107–abc-news-topstories.html

Fighting For Your Rights

December 9, 2013/in Family Law /by Gretchen Boger

Few non-lawyers realize that divorce proceedings can make the parties involved vulnerable to criminal punishment. Each time that a judge makes an order about child custody, spousal support, child support, or anything else, the parties are required to comply. If a party does not comply with one of the orders, the opposing party can file a motion to bring this to the court’s attention. If it is found that one party disobeyed an order, such as an order to pay child support or provide evidence, that party may receive a citation and be held in contempt of court. This is a quasi-criminal offense that could result in fines or jail time for the offender.

This is where it pays to have a great lawyer. A great lawyer will know how to protect you while your contempt proceeding is underway; he or she will ensure that you are “innocent until proven guilty.” For instance, if you send a document or make a statement that further incriminates yourself, your chance of a fair trial in the future will be jeopardized. Fortunately, if your spouse is requesting you to share information that could harm you in the contempt proceeding, your attorney can invoke your Fifth Amendment constitutional right against self-incrimination. Essentially, you have an absolute right not to make any statements or testify in a non-criminal matter while the contempt action is ongoing so that you don’t harm your chance of success beyond repair.

Importantly, however, this right is not guaranteed unless you claim the right with the court. Great attorneys will identify this opportunity and will take the necessary steps to protect you. Recently, one of our attorneys at Lonich Patton Erlich Policastri filed a motion to invoke our client’s Fifth Amendment rights in a contempt proceeding. If you are involved in a messy divorce or contempt proceeding, having a knowledgeable, experienced divorce attorney by your side can prove to be invaluable. If you have any questions about your divorce or custody issues, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization). Lonich Patton Erlich Policastri’s attorneys have decades of experience handling complex Family Law proceedings and are happy to offer you a free half-hour consultation.

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.

Grandparents Have Visitation Rights, Too!

November 14, 2013/in Family Law /by Gretchen Boger

Popular television personality Bethenny Frankel is waging a full-blown (and very public) divorce and contentious custody battle with her soon-to-be-ex-husband – and her newest attack on Mr. Hoppy is not regarding him, but his parents: she wants to limit the grandparents’ time with her three-year-old daughter, Bryn. So does this mean that Bryn, who reportedly has a very strong bond with her grandparents, will be unable to see them in the future without Bethenny’s consent?

In California, grandparents have no absolute right to visitation with their grandchildren. In some cases, however, grandparents may have the right to visit their grandchildren even over the objection of the children’s parents – but the courts will begin with the assumption that the rights of the parents supersede those of grandparents. This is because parents have a fundamental right to the care, custody, and control of their children. However, there are a number of situations where the courts may grant grandparents visitation rights:

One parent has died and the remaining parent refuses to let the grandparents visit.
The parents are divorced.
The child does not live with either parent.
Visitation is deemed by the court to be in the best interest of the child. Visitation is deemed by the court to be in the best interest of the child.

Furthermore, grandparents generally cannot file for visitation rights while the grandchild’s parents are married. However, there are a number of exceptions, including:

The parents are living separately;
A parent’s whereabouts are unknown (and have been for at least a month);
One of the parents joins the grandparent’s petition for visitation;
The child does not live with either of his or her parents; or
The grandchild has been adopted by a stepparent.

Grandparent visitation issues are complex. At Lonich Patton Erlich Policastri, we are committed to working with grandparents to help them maintain access to their grandchildren. Our attorneys typically handle two types of grandparents’ rights cases: those involving the custody of grandchildren and those involving grandparents seeking visitation rights. If you have any questions about grandparents’ rights, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization). Our attorneys have decades of experience handling complex Family Law proceedings and are happy to offer you a free consultation.

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.

Forgot a Pre-Nup? Create a Post-Nup

September 9, 2013/in Family Law /by Mitchell Ehrlich

In June, billionaire media mogul Rupert Murdoch surprised his third wife, Wendi, with divorce papers. Mr. Murdoch, the founder, Chairman, and CEO of the world’s second-largest media conglomerate, has been married with the current Mrs. Murdoch for 14 years, has two young daughters with her, and has four other children from previous marriages. In other words – plenty is at stake. However, the Murdoch divorce may not play out as disastrously as one would imagine because the couple signed not only a prenuptial agreement but two postnuptial agreements – one after each of their daughters was born.

Nowadays, postnuptial agreements are becoming increasingly common. Unlike prenuptial agreements, postnuptial agreements are entered into after the marriage rather than before. They cover many of the same issues commonly covered in prenuptial agreements, such as asset protection, debt division, and spousal support.

Oftentimes, however, many people are hesitant to enter into a postnuptial agreement because they believe that they adversely impact one spouse while benefiting the other. In actuality though, postnuptial agreements can protect assets as well as shield spouses from debts. Some scenarios where postnuptial agreements are a good idea include:

One spouse wants to borrow a significant amount of money to start up a business. The other spouse does not want to share in the debt that is created should the business fail. A postnuptial agreement can be drafted to shield one spouse from the debt burden in the event of a divorce.
One spouse receives a large inheritance and wants to invest it in an existing family business, but he or she wants to ensure that if there is a divorce the value of the inheritance will be protected. A postnuptial agreement can be drafted to protect the value of the investment in the business.
A postnuptial agreement can also be drafted so that real estate and community property is divided equitably rather than equally (a 50-50 split), as prescribed by California community property law.

Since the legal relationship between people changes once they are married, it is vital to have an experienced attorney draft any postnuptial agreement. Courts carefully scrutinize postnuptial agreements to ensure that they were entered into voluntarily, without coercion, duress, or undue influence. Likewise, the Murdoch postnuptials (and prenuptial) will be highly scrutinized by both parties for these loopholes.

At Lonich Patton Erlich Policastri, our attorneys are prepared to help clients create targeted, legally binding postnuptial agreements. We always recommend that clients have legal counsel review their agreements to make it more difficult for either spouse to challenge the issues later on. If you have any questions about postnuptial agreements, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization). Our attorneys have decades of experience handling complex Family Law proceedings and are happy to offer you a free consultation.

DIY Divorce Success: The Exception, Not The Rule

September 5, 2013/in Family Law /by Gretchen Boger

Recently the Huffington Post took a look at the risks of the new “Do-It-Yourself Divorce” trend, and we agree with their findings. Of course, anyone can get a divorce without an attorney, but it is not for everyone. This is especially true because many individuals underestimate what it will really take to dismantle their marriage, split up their property, and determine appropriate living arrangements for their children.

There are some couples who are in agreement on most issues, making divorce a cinch with or without a lawyer. So when is pursuing a DIY divorce a good idea? According to DivorceNet.com, a lawyer-free divorce is a good idea when:

Both parties agree on all issues, including child custody, property division, and support (child and spousal);
Both parties are certain that they have a comprehensive understanding of their family’s relatively simple financial situation, including assets and debts; and
Both parties are content with the custody and support arrangements for their children and are readily prepared to co-parent.

Essentially, if your situation is not too complicated and you feel that every aspect of your separation is fairly settled, you might be a good candidate for an attorney-free divorce. Nevertheless, for every easy case there are ten more that are painfully complex. Many divorces may take years to work through because of the level of difficulty involved, especially when it comes to financial matters like pensions and stock options. When a divorce litigant is on his or her own when complications arise, efficiency tends to go out the window and a great deal of time and even money can be spent getting on the right track.

What is especially unfortunate for DIY-ers is the moment when they realize that they are in over their heads. This may occur when their ex shows up at a hearing with an attorney and they are all alone. Or, they may come to realize that their ex was withholding financial information, or their rights are being trampled in some other way.

To be sure, retaining a divorce attorney is an investment, but your attorney is also your ally. Your attorney will ensure that your rights are protected and that you will be in the best possible financial position after the divorce. Experienced family attorneys have the foresight to avoid problems before they arise and can help you reach a marital settlement that you and your family can be happy with for many years to come.

Whether you decide to retain an attorney or not, it is best to consult with one before you embark on your divorce journey. Contact the certified Family Law Specialists (as certified by The State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri to learn more about the divorce process. Our attorneys have decades of experience handling complex family law matters and we offer both full-service and consulting options. Make an appointment today for a free half-hour consultation with one of our attorneys.

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.

Tax Ruling: Joint Federal Tax Returns For Everyone!

August 30, 2013/in Family Law /by Gina Policastri

For many married couples across the country, filing your federal taxes just got a lot less complicated. As of last Tuesday, if you are a part of a legal same sex marriage, you will be treated just like heterosexual married couples under federal tax laws. The Treasury Departments and the IRS just announced that all married couples will receive identical benefits for filing jointly regardless of where the couple lives.

“Today’s ruling provides certainty and clear, coherent tax filing guidance for all legally married same-sex couples nationwide. It provides access to benefits, responsibilities and protections under federal tax law that all Americans deserve,” Treasury Secretary Jacob Lew said in a written statement*

The tax ruling, however, will not apply to persons in civil unions or domestic partnerships. Nevertheless, the ruling is another huge milestone for same-sex couples. Moving forward, everyone will receive the same treatment across the board.

If you have any questions regarding your marriage or are interested in creating a prenuptial agreement, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri. Our attorneys have decades of experience handling a wide array of family law cases and are more than happy to meet with you for a free consultation.

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.

*Via Fox News, “IRS Extends Tax Benefits to Married Gay Couples.” Find the full text here: http://www.foxnews.com/politics/2013/08/29/irs-issues-tax-rules-for-married-gay-couples/#ixzz2dTc44G5n

Posts

Paternity Woes: Timing Matters

January, AKA “Divorce Month,” is Over!

If You Think a Child Can Have Only Two Parents, Think Again.

Olympic Skier Reaches Custody Agreement

Could Your Email Settings Land You In Jail?

Fighting For Your Rights

Grandparents Have Visitation Rights, Too!

Forgot a Pre-Nup? Create a Post-Nup

DIY Divorce Success: The Exception, Not The Rule

Tax Ruling: Joint Federal Tax Returns For Everyone!

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