marital dissolution Archives - Lonich Patton Ehrlich Policastri

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What Parents with a Disability Need to be Aware of in a Divorce

June 1, 2017/in Family Law /by Michael Lonich

Parenting while going through a divorce is hard, but also having a disability adds a new level of complexity that makes it is easy to feel overwhelmed and deflated. This is why it is so important to have a competent lawyer who will advocate for your parentage rights effectively and with care.

The thought of having parentage rights taken away will make any parent’s heart drop. But the chances of a disabled parent facing this nightmare is almost a guarantee. According to the National Council on Disabilities the removal rates of children from disabled parents are dispiriting. For children with psychiatric disabled parents the removal rates were between 70% and 80%; parents with intellectual disabilities were 80%; and parents with physical or sensory disabilities experienced high removal rates and loss of parental rights, as well.

If you are a disabled parent facing divorce or a child custody battle, it is important to find a lawyer who is sympathetic to your situation, who understands your condition, and will be effective in their advocacy for you. This is crucial because there are many unfortunate challenges a disabled parent can face in court.

Disabled parents may experience bias or speculation regarding best interest determinants. When dealing with a child, the court’s main objective is to produce a result that is in the child’s best interest; and a parent’s disability will be considered.

There is also a “no harm” requirement when determining a child’s best interest scenario, where the court factors the mental and physical health of all individuals involved to determine if there is a potential chance for harm to occur to the child. With this requirement, there is no obligation to show that the parent’s disability is actually causing, or will cause, any harm to the child or their environment. This can clearly disfavor any parent dealing with a disability.

If you are a parent who has a disability and is facing a divorce or custody battle, securing knowledgeable and effective counsel is imperative. There are a few key characteristics you should look for your future lawyer.

Of course, a knowledgeable lawyer in family law and child custody is a must, but you also want one who will focus on your parenting abilities and strengths. Your attorney needs to understand the specifics of your diagnosis in order to better advise and understand you. By being knowledgeable on your disability’s characteristics your lawyer will be more equipped to advocate on your parenting strengths and abilities. Finally, you want to find a lawyer who apprehends the benefits and pitfalls of various parental evaluations. Overall, your lawyer should give you assurance that your parental rights are protected and that you are given a fair opportunity to raise your child.

If you are considering a divorce or legal separation and would like more information about child custody and parental disability, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.

Lastly, 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.

Mediation: Taking control of your divorce

October 10, 2016/in Family Law /by David Patton

The underuse of the mediation process seems to be largely attributable to the fact that many people are unaware of what a mediation session is and how beneficial it can actually be. In family disputes, mediation can be extremely rewarding, saving parties time, money and sanity.

The rules of mediation: you create them

In mediation, parties are not bound by many of the rules that govern judges’ decision making. As a result, parties can reach solutions that might not otherwise be available from a court. For example, if there is a dispute over child support or child custody, rather than having a judge decide the amount of support or amount of visitation based on guidelines and factors required by statute, parties are free to negotiate an amount or time deemed reasonable to both.

The outcomes: you decide them

In mediation, you are free to discuss with your spouse what is important to both of you and try to reach a mutually acceptable agreement. It differs from litigation in that parties avoid the uncertainty, time and stress associated with going to trial. Parties are able to hear and understand the other’s point of view and with the guidance of a mediator, this enables parties to reach a middle ground . Because the mediator does not have the authority to make decisions, it is ultimately the parties making their OWN decisions over their OWN lives.

However, a good mediator should have some family law experience and be able to offer practical guidance to the parties. A mediator with family law experience can offer parties insight as to what might and might not be granted in court, ensuring that no request is unreasonable or disadvantageous to the other spouse. This can make the mediation session much more productive.

Progress: in the mediation room and beyond

Lastly, even if you don’t settle all your divorce issues, chances are you did resolve some. Even having resolved one issue is progress. Further, the tenants of mediation promote cooperation and communication. Thus because parties are provided the opportunity to resolve their own case, mediation tends to reduce hostility and preserve ongoing relationships.

While divorce mediation works in many situations, it is not always appropriate. Litigation is often the best option in situations where there is domestic violence, one party refuses to cooperate in making required disclosures, or communication between the parties is impossible. If you have any questions about divorce mediation and would like to speak to an attorney, please contact Lonich Patton Erlich Policastri for further information. Keep in mind 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.

Alternative Dispute Resolution in Marital Cases

October 27, 2015/in Family Law /by Gina Policastri

No one marries with the intent that they will divorce someday. However, there may be a point in a relationship when it is clear that marital dissolution (i.e., a divorce) is inevitable. How the parties proceed after this point can make the difference between an amicable, peaceful conscious uncoupling and a nasty, drawn-out battle.

Even though a trial, complete with a judge and court-room setting is glorified on television, most cases do not make it to trial and are more commonly resolved with a settlement. Contrary to what some believe, a divorce does not have to go to court. Parties looking to divorce may resolve their dispute through informal negotiations by using out-of-court alternative dispute resolution (commonly referred to as ADR). These proceedings between you and your spouse along with your attorneys promote voluntary settlement though they can also include traditional court proceedings.

Several ADR processes that family law attorneys use are mediation and arbitration in lieu of proceeding to trial. These forms of dispute resolution are gaining in popularity and are shifting the role divorce attorneys play from representing their clients in a legal battle to acting as divorce mediators who help their clients achieve their goals. In order to determine which approach might be right for you, it’s helpful to understand the process each one entails.

Mediation

The goal of mediation is for a neutral third party to help disputants come to a consensus on their own. In mediation, a professional mediator works with the conflicting sides to explore the interests underlying their positions. Parties in mediation find it effective at allowing them to vent their feelings and to fully explore their grievances.

Mediation sometimes requires the parties to sit in a room together, while other times the parties are in separate rooms and the mediator goes back and forth. This is typically referred to as Kissinger style shuttle diplomacy after it was used to describe the efforts of the United States Secretary of State, Henry Kissinger.

Mediation may be particularly helpful when parties have a relationship they want to preserve (e.g., family members, neighbors or business partners have a dispute) or when emotions are getting in the way of finding a resolution. An effective mediator can hear the parties out and help them discuss issues with each other in an effective and nondestructive manner.

Arbitration

Another form of alternative dispute resolution in family law cases is arbitration where a neutral third party serves as a judge who is responsible for resolving the dispute. The arbitrator listens as each side argues their case and presents relevant evidence, and then renders a binding or non-binding decision, depending on the type of arbitration entered into. Arbitration is less formal than a trial, and the rules of evidence are often relaxed.

Although used more often in civil litigation, arbitration is less often used in divorce cases. In marital dissolution cases, an arbitrator’s decision is not necessarily final, and the parties may still be able to resolve key issues before a court at a later date. It is important to keep in mind that most out-of-court alternatives for resolving a divorce will still require some level of court approval.

Litigation

Perhaps the most recognizable form of dispute resolution, litigation involves two parties facing off before a judge or judge and jury (Currently, Texas and Georgia are the only states that offer spouses the opportunity to litigate their divorce before a jury). During the trial of a divorce case, the attorney’s for each party present evidence on contested issues while the judge (or jury) is responsible for weighing that evidence and making a ruling.

Typical issues that arise in litigation are the determination of the separate property of a party, how to divide community property and liabilities as well as determination of the validity of a pre- or post-nuptial agreement. If children are present the custody arrangement, child and spousal support as well as the time sharing schedule of the children are often areas prone to increased litigation.

It is important to keep in mind that all of the alternative dispute resolution processes are available in settling any ongoing dispute such as property division, child custody or support. However, the effectiveness of these alternatives in contrast to a full trial depend on factors such as how willing the parties are to work on resolving these issues and the general degree of animosity between them.

These choices can make the decision to divorce a complex field. If you are considering filing for divorce, the Certified Family Law Specialists at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. Please contact the Certified Family Law Specialists at Lonich Patton Erlich Policastri for further information. Also, 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.pon.harvard.edu/daily/dispute-resolution/what-are-the-three-basic-types-of-dispute-resolution-what-to-know-about-mediation-arbitration-and-litigation/?mqsc=W3814478&utm_source=WhatCountsEmail&utm_medium=PON%20Harvard+Neg%20Insider%20(Tuesday/Thursday)%20Standard%20Rule+Neg%20Insider%20(Tuesday/Thursday)%20Standard%20Rule&utm_campaign=Neg_WIR_10242015

Domestic Violence and The Rebuttable Presumption

June 17, 2015/1 Comment/in Family Law /by Gretchen Boger

Acts of domestic violence so often occur behind closed doors. Domestic violence has now been recognized as a “public policy issue with major implications for the health and safety of women and children.” Many surveys have projected domestic violence as the number one cause of injury to women in the United States. Unfortunately, the nature of the criminal justice system makes domestic violence cases harder to prosecute and history has shown that there has been little communication between the prosecutors, police, victim advocates, and the courts. Because of this lack of communication, “the chances are good that some of these problematic cases will slip between the cracks and that battering will continue, sometimes with tragic result.” For this reason, it is not surprising that many victims feel hopeless and decline to report incidents of domestic violence.

Given the faults of the criminal justice system, many victims find themselves without anywhere to turn. Unfortunately, the domestic violence continues and those with children may also suffer. Victims of domestic violence develop post-traumatic stress disorder, anxiety, traumatization, or suffer from some other psychological/physiological effect resulting from the abuse. These negative effects of abuse can cause the victim to experience a variety of symptoms that have a direct bearing on the capacity of her parenting. For example, victims may experience emotional numbness or withdrawal from their children, leaving the children to feel even more isolated in an already distressing situation. Children may feel as though the victim parent does not care about them, when this may be far from the truth. Consequently, these negative effects of abuse compromises the victim’s parenting.

The question then becomes, what happens in child custody cases? The standard used by all family court judges, is the “best interest” of the child rule. However, deciding what is in the “best interest” of the child is often difficult depending on the particular set of circumstances. In a domestic violence situation, where the mother’s parenting was compromised due to years of abuse, but the father has shown that he is still a capable parent- who should be awarded custody? What is in the child’s best interest when an abusive father and an emotionally distant mother seek custody? “Taking custody away from an abused mother seems to penalize her for being the victim of domestic violence, and it discourages other mothers from seeking help or reporting domestic violence for fear of losing custody of their children.” Apart from the effect on the victims, awarding custody to the abusers also teaches children harmful lessons.

The California Legislature has recognized the potential problem that domestic violence can create in the family courts. To address this issue, the California Legislature drafted California Family Code § 3044. For traditional child custody cases, the court is to determine what is in the child’s “best interest” by considering several factors, such as the health, safety and welfare of the child, and the amount of contact that the child has with both parents. In domestic violence cases, the court must also consider any history of spousal abuse. Although the court is given discretion in how much weight they accord each factor, the factors are crucial in helping to guide judges on issues that they should consider in assessing a child’s best interest.

In addition to the factors, the California Legislature did specifically state that domestic violence is detrimental to the well-being of a child. This was codified in California Family Code § 3044. According to this section, if domestic violence is found to have occurred within the previous five years of the custody evaluation, then there is a rebuttable presumption that awarding custody to the abuser is detrimental to the “best interest” of that child. The court must also consider seven factors in determining whether the presumption has been overcome. These factors include, but are not limited to, whether the abuser is restrained by a protective order and has complied with its terms and conditions, whether the abuser has completed a program of alcohol or drug abuse counseling, and whether the abuser has committed any additional acts of domestic violence since the start of the custody case.

Additionally, under this section, a person is found to have perpetrated domestic violence when he or she either “intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another. . . .” It also includes behavior including, but not limited to, “threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to § 6320 to protect the other party seeking custody of the child or to protect the child and the child’s siblings.”

With the rebuttable presumption, the hope is that victims will triumph in seeking custody of their children as they seek to regain control of their lives.

If you have any questions about this rebuttable presumption or any other issue, the Certified Family Law Specialists at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. Please contact the Certified Family Law Specialists 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.

Source: MICHELE C. BLACK ET AL., THE NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY: 2010 SUMMARY REPORT 54 (2011), http://www.cdc.gov/violenceprevention/pdf/nisvs_report2010-a.pdf.

Source: Patrick F. Fagan, Anna Dorminey, & Emily Hering, The Effects of Family Structure on Child Abuse, in CHILD ABUSE, FAMILY RIGHTS, AND THE CHILD PROTECTIVE SYSTEM: A CRITICAL ANALYSIS FROM LAW, ETHICS, AND CATHOLIC SOCIAL TEACHING 155, 171 (Stephen M. Krason ed., 2013).

Source: Alytia A. Levendosky & Sandra A. Graham-Bermann, Behavioral Observations of Parenting in Battered Women, 14 J. FAM. PSYCHOL. 80, 81 (2000).

Source: Cal. Fam. Code § 3020 (West 2000).

Source: Megan Shipley, Note, Reviled Mothers: Custody Modification Cases Involving Domestic Violence, 86 Ind. L. J. 1587, 1589 (2011).

Source: Symposium, Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions, 11 Am. U. J. Gender Soc. Pol’y & L. 657 (2003).

Source: Cal. Fam. Code § 3011 (West 2013).

Source: Cal. Fam. Code § 3044 (West)

Source: Amy B. Levin, Comment, Child Witnesses of Domestic Violence: How Should Judges Apply the Best Interest of the Child Standard in Custody and Visitation Cases Involving Domestic Violence?, 47 UCLA L. Rev. 813, 826 (2000).

Mom and Dad Have Something to Tell You: Talking to Kids about Divorce

June 8, 2015/in Family Law /by Mitchell Ehrlich

With forty to fifty percent of married couples proceeding in marriage dissolution, thousands of children experience the stress of divorce each year. While the adults are navigating their own emotions, children are also struggling with their own feelings. Many of these children get lost in the process as their parents often find it difficult to talk to them about divorce.

When parents decide to break the news to their children, it is important to leave any feelings of anger or blame out. Practicing the conversation may be helpful as to release any feelings of anger before talking with them. If possible, parents should also break the news together to avoid confusion. Telling children together also helps to preserve the child’s sense of trust in both parents.

The conversation should also be age appropriate. In other words, “[t]he discussion should fit the child’s age, maturity, and temperament.” It should also always include the following message: “What happened is between mom and dad and is not the child’s fault.” It is imperative to include this message as most children will feel that they are to blame for the separation, when this may be far from reality.

It is also vital to be prepared to handle children’s reactions to the news. For the children who become upset, parents can let them know that they care about these feelings and reassure them that their feelings are understandable. Some children may not react immediately. For these children, parents can let them know that this is also okay and that they will be there for them when they are ready to talk.

While there is no easy way for parents to break the news to their children, there are important things that both parents can do to help guide their children through this challenging time. The following is a list of helpful tips:

· Be truthful and discuss changes with your children.

· For younger children, have a simple and to-the-point conversation.

· Remember to keep legal talk, heated discussions, and visible conflict away from the children.

· It is important to keep each parent involved in the children’s lives.

· Try to minimize any disruptions in their daily routines.

· Restrict negative talk to private therapy sessions or conversations with friends outside of the home.

· Encourage children to share their feelings.

· Remind your children how much you love them.

· Most importantly, support your child as he or she is navigating through the process.

The Certified Family Law Specialists at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. If you have any questions about helping your children through this process, please contact the Certified Family Law Specialists 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.

Source: http://kidshealth.org/parent/positive/talk/help_child_divorce.html

Source: http://www.redlandsdailyfacts.com/social-affairs/20150530/the-ins-and-outs-of-talking-to-kids-about-divorce

Source: http://www.babycenter.com/0_how-to-tell-your-child-youre-getting-divorced_3657051.bc

“No good marriage ever ended in divorce” – Louis C.K.

July 30, 2014/in Family Law /by Gina Policastri

“Divorce is always good news. I know that sounds weird, but it’s true because no good marriage has ever ended in divorce. That would be sad. If two people were married and they just had a great thing … and then they got divorced, that would be really sad. But that has happened zero times.”

-Louis C.K.

This inevitably leads to the question: what is a “good” marriage? Likely, the answer is there are no good or bad marriages. Instead there are a range of risk factors associated with divorce. When two people get married, they usually aren’t thinking that the marriage will end in divorce. But then hard times arise and sometimes they find themselves thinking either casually or seriously about divorce. Is there a way to know if your marriage is statistically likely to end in divorce? Below, we will take a look at some of the most common risk factors in the United States.

Current state of divorce

In the United States, researchers estimate that 40 to 50 percent of all first marriages will end in divorce or permanent separation. The risk of divorce is even higher for second marriages at about 60 percent. Divorce has always been present in American society although it has become more common in the last 50 years. Surprisingly, the highest divorce rates ever recorded were in the 1970’s and 1980’s. Since then the divorce rate has actually decreased a little but still remains at a historically high rate.

Researchers have found that individuals considering divorce make their decision to stay or leave based on the rewards they gain from the marriage, the barriers against leaving the marriage, their perceptions about finding a better relationship, and the amount of investment they have made in their marriage.

Barriers to leaving a marriage, such as concerns about money and the effects of family breakup on their children, can keep marriages together in the short term. However, unless there is improvement in the relationship, eventually the barriers are usually not enough to keep a marriage together in the long run.

What factors are associated with a higher risk for divorce?

The statistics which show that almost half of all marriages end in divorce might make it seem like staying married has the same odds as roulette – namely 50/50. However, research has identified various factors that are associated with a higher risk for divorce. Some couples may have a low risk and others might have a higher risk of divorcing. Understanding these factors may not directly help improve your marriage or make a decision about getting divorced, but they may help couples understand why they’re facing challenges. Researchers have identified the most common factors as:

Young Age. Marrying at a young age increases your likelihood of divorce, especially in the early years of marriage. People who married in their teens are at dramatically higher risk for divorce than those who married as early as age 21 or 22.
Less education. Researchers estimate that individuals who have some college education as opposed to not finishing high school have a lower chance of divorce. Investing in an education is a good way to build a foundation for a better marriage, not just a better job.
Less income. Tied to education is income. Research has estimated that individuals with incomes exceeding $50,000 have a lower chance of divorce. Finances can be stressful and having at least a modest income can help couples avoid stresses that can lead to divorce. If you argue with your spouse about finances once a week, your marriage is 30 percent more likely to end in divorce than if you argue less frequently about finances.
Premarital childbearing and pregnancy. In America, more than one-third (37%) of children are born to parents who are not married, and few of these parents eventually marry. Most of those parents will separate before the child begins school, some will never really get together.
If you have a daughter, you’re 5% more likely to divorce. This figure multiplies with the number of daughters. Researchers believe that this happens because fathers are more invested in family life when they have boys.
If you or your partner have had a previous marriage. Data shows that second (or third or fourth) marriages should be more successful than first marriages. However, this statistic is skewed by serial marriages and researchers have been unable to take the Elizabeth Taylors out of the equation.
Parents’ divorce. Of course, some risk factors for divorce you can’t control. If you experienced the divorce of your parents, unfortunately, that doubles your risk for divorce. If your spouse witnessed their parents’ divorce, then your risk more than triples. This does not doom your marriage to failure but rather suggests that individuals who experienced the divorce of their parents need to work harder to make good marriage choices and to keep their marriage strong and happy.
Same-sex marriages are more likely to end in divorce. Although the LGBT community is just starting to have legally recognized marriages in the United States, a research team led by Stockholm University on legal partnerships in Norway and Sweden found that male same-sex marriages are 50 percent more likely to end in divorce than a heterosexual marriage. If you’re a female in a same-sex marriage, this figure soars to 167 percent.

These are only a few risk factors that researchers have identified and none of them represent automatic doom for a marriage. However, if a number of these and other risk factors are present, seeking pre-marital or other counseling may be recommended, even if nothing seems wrong at the moment. Much like roulette, one can increase the odds in their favor by learning more about marriage, themselves and their partners.

If divorce seems inevitable, it is also recommended that couples take time to try to fix the relationship through counseling or some other professional service before making the decision to call it quits. However, we understand that sometimes there are no alternatives besides divorce.

If you are considering divorce or 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 detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Annulment: Cleaning the Marital Slate

February 15, 2013/in Family Law /by Gina Policastri

Whether or not we care to admit it, Kim Kardashian remains in the spotlight. Consequently, so do her legal troubles. Kardashian and Kris Humphries were famously married in August 2011. Their nuptials allegedly cost $11 million and the wedding itself was televised as a special on the E! Television network. After 72 days of marital bliss, Kardashian filed for divorce in October 2011.

Although the couple split almost two years ago, Kardashian and Humphries remain legally married. Their divorce has never been finalized because Humphries is seeking an annulment. Humphries believes that Kardashian fraudulently lured him into marriage for financial gain as Kardashian reportedly made $1 million from the wedding. Humphries claims she had planned to take the money and run. Kardashian, of course, claims that she married for love.

In the eyes of the law, a successful annulment makes a marriage disappear as if it never happened.* There is a fundamental difference between a judgment of dissolution and a judgment of nullity. While a judgment of dissolution terminates a valid marriage, a judgment of nullity declares that the marriage was invalid from the start. In California, a marriage built upon a fraudulent foundation is not a marriage at all. An annulment is, however, much more difficult to attain than a divorce.

According to California Family Code Section 2210, a marriage that is voidable may be declared a “nullity” only in the event at least one of six specific conditions existed at the time of marriage:

Infancy
Bigamy
Unsound Mental State
Fraud
Force
Physical Incapability

The certified Family Law Specialists as certified by The State Bar of California Board of Legal Specialization at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. If you find yourself on either side of an annulment, contact Lonich Patton Erlich Policastri for further information.

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 Erlich Policastri can assist you in determining your rights, obligations and exposure.

The Certified Family Law Specialists* at Lonich Patton Erlich 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 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 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

From Bonds to Zuckerberg: The Importance of a Prenup in the Silicon Valley

May 29, 2012/in Family Law /by Mitchell Ehrlich

Will Mark Zuckerberg join the list of billionaires who tied the knot without prenuptial agreements?

Mark Zuckerberg is making national headlines for his marriage that took place on May 19, 2012, just one day after the initial public offering of Facebook. The mystery remains: do Zuckerberg and Priscilla Chan have a prenup? All are in agreement that Zuckerberg would be better off with a prenup. Chan reportedly asked Zuckerberg to sign a relationship agreement before she moved to California several years ago to be with him, which outlined, for example, how much time they should spend together. It would not be surprising if she brought up the subject of a prenup first. However, celebrities such as Paul McCartney, Katy Perry and Mel Gibson chose to forgo a prenup. It’s easy to get caught up in the romance of a marriage, but it’s important to mix in a little realism.

California is a community property state, meaning that assets are typically divided 50-50 upon divorce. If Zuckerberg and Chan signed a prenuptial agreement, they would have agreed exactly how to split assets, including his Facebook stock, if their marriage dissolved in the future. The resounding principle behind prenuptial agreements is spouses themselves can determine how their property will be classified; they can agree that what would generally be classified as community will be separate property of one or the other, and conversely, they can change separate property to community property.

The current trends toward delayed marriage, cohabitation, rising divorce and remarriage rates have combined to create a new awareness of the seriousness of the marital contract and the far-reaching consequences that contract, once made, can have on individual lives. Lonich Patton Erlich Policastri can assist you in understanding your legal rights, and help you protect your family.

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

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

Posts

What Parents with a Disability Need to be Aware of in a Divorce

Mediation: Taking control of your divorce

Alternative Dispute Resolution in Marital Cases

Domestic Violence and The Rebuttable Presumption

Mom and Dad Have Something to Tell You: Talking to Kids about Divorce

“No good marriage ever ended in divorce” – Louis C.K.

Annulment: Cleaning the Marital Slate

Fiduciary Duties Between Spouses: Respect Thy Spouse

From Bonds to Zuckerberg: The Importance of a Prenup in the Silicon Valley

Post-Nuptial Agreements and Spousal Support

Free 30-Minute Family Law or Estate Planning Consultation

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