legal separation Archives - Page 2 of 3 - Lonich Patton Ehrlich Policastri

Fiduciary Duties Between Spouses: Respect Thy Spouse

June 19, 2012/1 Comment/in Family Law /by Gina Policastri

Husband uses wife’s private shopper and bank account to purchase $1.4 million worth of luxury goods from Neiman Marcus. Wife is bedridden the entire time recovering from a traffic accident. Private shopper is having sexual relations with husband, and earns a commission off of the sales. Neiman Marcus is reportedly refusing to return the goods. (See http://abcn.ws/KsRBy8.) Does wife have any legal recourse for the purchases she did not participate in? This true story is one extreme example of how spouses can breach the fiduciary duties they owe to each other.

Under the California Family Code, spouses are treated much like business partners and must deal fairly and in good faith with each other. The fiduciary duties require an “accurate and complete” disclosure of all transactions and provide that spouses share equal management and control of their community property. These duties are subject to few exceptions and the consequences for breaching them can be severe. If you find yourself on either side of a breach of fiduciary duty claim, the experienced attorneys at Lonich Patton Ehrlich Policastri can assist you in determining your rights, obligations and exposure.

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 about your fiduciary rights and obligations, 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 detail general 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

D.C. Provides Same-Sex Couples with Divorce

February 1, 2012/in Family Law /by Mitchell Ehrlich

This summer, the Wyoming Supreme Court ruled that the state’s courts had jurisdiction to grant the divorce of a same-sex Wyoming couple who legally married in Canada. (See Blog). Now, Washington D.C. is set to provide same-sex couples who got married in the District of Columbia with a way to get divorced. (See Article)

D.C. began allowing same-sex marriage in 2010; however, those marriages are not recognized in most jurisdictions, which means that divorce proceedings cannot be started since the marriages are not recognized in the first place. After hearing reports that same-sex couples who wed in D.C. were being denied divorces after moving to jurisdictions that do not recognize same-sex marriage, a D.C. councilman proposed legislation to help give these couples more options. The bill removes a six-month waiting period during which someone seeking a divorce must reside in the district, as long as the marriage took place in D.C.

Same-sex marriage and divorce continues to be a developing area of family law. New York considered a same-sex divorce case in early 2008 when a judge granted a divorce to a same-sex couple married in Canada. An Oklahoma court granted a divorce to a same-sex couple who married in Canada and filed using just their first initials and last names, only to revoke it upon discovering both parties were women on the grounds they were never legally married. As noted in the Wyoming blog post, the California Legislature recently made significant amendments to the law governing same-sex divorces in California. 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 same sex marriage was legal 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 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.

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

Tennessee Supreme Court Prohibits Lifetime Alimony for Ex-Spouse

November 30, 2011/in Family Law /by Mitchell Ehrlich

On September 16, 2011, the Supreme Court of Tennessee held that a woman who earned $72,000 a year was not entitled to lifetime alimony (permanent alimony) from her higher-earning ex-husband.

In Gonsewski v. Gonsewski, 2011 WL 4116654 (Tenn. Sept. 16, 2011), Johanna and Craig were married for twenty-one years with two adult daughters. Johanna earned $72,000 a year in an IT position and Craig earned more than $137,000 a year as an accountant. At the trial level, the court declined to award spousal support of any type to either party. The Court of Appeals reversed the trial court’s judgment and ordered the husband to pay the wife lifetime alimony in the amount of $1,250 per month until her death or remarriage. The court reasoned that, although there was no need for economic rehabilitation given that Johanna was a college graduate and had a steady career, alimony in futuro was ‘necessary to mitigate the harsh economic realities of divorce’ due to the disparity in the parties’ incomes. Craig appealed.

The issue before the Tennessee Supreme Court was whether permanent alimony should be awarded to a spouse who has a college degree, good health, a stable work history in a relatively high paying job, and a lack of demonstrated need for such long-term alimony. The court reversed the appellate court decision, noting that it is unlikely that both parties will be able to maintain their pre-divorce lifestyle given two persons living separately incur more expenses than two persons living together and there was no abuse of discretion by the trial court. Thus, Johanna should not be awarded permanent spousal support.

This decision affirmed Tennessee’s traditional analysis of considering both ability and need in making permanent alimony determinations. While Craig may have had the ability to pay lifetime alimony, Johanna did not have the need. In California, courts consider need and ability to pay when setting temporary spousal support, which may be ordered after separation pending trial. However, when setting permanent spousal support, the court must consider approximately fourteen statutory factors, including need and ability to pay, when determining permanent spousal support. As such, it is likely that the Gonsewski case would have been similarly decided in California grounds given the higher standard provided by the fourteen factors set forth in section 4320.

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

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

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.

Is a Legal Separation the Best Option for You?

February 16, 2011/in Family Law /by Julia Lemon

If you do not want to proceed with a divorce but are interested in separating from your spouse, a legal separation might be an appropriate remedy. A legal separation may be appropriate for couples who have religious or other personal reasons for not wanting to proceed with a divorce. For example, some couples may not want to proceed with a divorce at the present time because a divorce may make them ineligible for medical insurance.

A legal separation is not a legal end to your marriage. In fact, if you are legally separated and decide to remarry, you must first obtain a judgment of dissolution for your first marriage. However, a legal separation does allow you to live apart from your spouse while making separate financial, parenting, and property decisions.

To find out more about legal separations, please contact 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.

Is a Divorce Right for You?

February 15, 2011/in Family Law /by David Patton

If you are currently living in northern California and are contemplating ending your marriage through a divorce, here is some basic information on what a divorce entails. A “divorce,” or “dissolution of marriage,” legally terminates your marriage or domestic partnership. After you are legally divorced, you are considered “single” and are free to remarry or enter into a new domestic partnership. However, a divorce is not right for every couple.

If you want to end your financial and personal life with your partner, but do not want a legal divorce, there are other alternatives for you. Some people may choose to pursue a “legal separation” instead. This is often done for religious reasons. A legal separation does not end a marriage or domestic partnership. Rather, it allows you to live apart and make independent decisions on finances, property, and child care issues.

Another alternative to a divorce is an annulment. However, this option is very rare. An annulment occurs when a court finds that your marriage or domestic partnership was never valid in the first place. Marriages may be void because the marriage was incestuous, bigamous, fraudulent, or one of the spouses lacked capacity to enter into the marriage.

For more information about divorce, legal separation, and annulment, please contact our 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.

What Happens to Out-of-State Real Property Upon a Divorce in California?

January 11, 2011/in Family Law /by Mitchell Ehrlich

Upon a divorce, it is often a complicated and challenging process to divide real property existing in another state. The correct treatment of an out of state home or piece of land depends on how the property is characterized under California community property law. Generally, most property acquired during marriage is considered community property. At divorce, community property is divided equally between spouses. However, property acquired during marriage while living in a non-community property state is not community property. To find out what happens to this out of state real property, it is best to look at an example.

Let’s assume you and your spouse meet, marry, and reside in non-community property state. While married, you purchase a home with the savings you both earned during your marriage. Now, let’s assume, your spouse gets a job in California and you relocated without selling your home. Years later, you file for divorce. Under California law, this property is not community property as it was not acquired in a community property state. Instead, this property is characterized as “quasi-community property.”

Quasi-community property is property (wherever located) that would have been community property if the spouses had acquired it while domiciled in California. In a California divorce proceeding, quasi-community property will be treated the same as community property. Thus, in the above example, the out of state home would be divided the same way as if it were located in California. If located in California, the home would have been considered community property as it was acquired during marriage with martial earnings. It is important to remember that California community property law is complex, and it is filled with numerous exceptions.

For more information on how your property would be characterized under California law, 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.

Posts

Fiduciary Duties Between Spouses: Respect Thy Spouse

D.C. Provides Same-Sex Couples with Divorce

Connecticut Judge Orders Divorcing Couple to Exchange Facebook Passwords

Tennessee Supreme Court Prohibits Lifetime Alimony for Ex-Spouse

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

Post-Nuptial Agreements and Spousal Support

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

Is a Legal Separation the Best Option for You?

Is a Divorce Right for You?

What Happens to Out-of-State Real Property Upon a Divorce in California?

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