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Entries in child custody and visitation (9)

Monday
Oct262015

Marriage of Davis: A Shared Roof = Shared (Community) Property

Encino Tarzana Divorce LawyerCertified Family Law Specialist

 

by Vanessa Soto Nellis

818.907.3274

 

 

 

Community Property DivisionDuring the recession, we occasionally heard of couples who were divorcing, but still cohabitating. For economic reasons, neither spouse moved out of the house – they continued to share or divide financial responsibilities as they did before agreeing to end their marriage. Maybe they each agreed to do their own laundry, cook their own meals or vacation without each other.

Sometimes the situation occurs for non-economic reasons, one spouse needing time to find another place to live, for example, or parents living together for their children's sake.

This past summer, the Supreme Court of California issued an opinion In re Marriage of Davis that showed the decision for splitting couples to share an address may not always be wise. The opinion came down to whether or not the parties lived "separate and apart", though they shared the same roof.

Destructive Times Between Deciding to Divorce and Actually Leaving

On the surface it seemed the Davises did live separately:

Sheryl Jones Davis and Keith Xavier Davis discontinued sexual relations in 1999; stopped sharing a bedroom in either 2001 or 2004 (the parties disagreed here), took separate vehicles to their children's activities, and each did his or her own laundry.

On the other hand, for the sake of the children, they continued to celebrate birthdays and holidays together. Sometimes they vacationed separately, and other times they vacationed as a family. They maintained a joint bank account for household expenses, though each opened or reactivated a personal account as well. 

When Sheryl petitioned for divorce in December 2008, she listed the date of separation as June 1, 2006 – that marked the day Sheryl told her husband she was done with the marriage, presented him with a ledger of household expenses, removed him from her American Express card and returned his credit account cards to him, and took a job the following month. She told the court she considered Keith to be merely a roommate from that point forward.

Divorce LitigationIn response to the divorce petition, Keith Davis listed the date of separation as January 2, 2009. Sheryl did not move out until July 2011, and Keith filed an amended response changing the date of separation to July 1, 2011.

Both the lower and appellate courts found June 1, 2006 to be the date of separation. The Supreme Court disagreed.

Why Does Date of Separation Matter?

California is a community property state. Family Code § 771(a) regarding community property provides:

"The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse." 

Date of separation, therefore, is important in determining whether or not a particular asset should be classified as community property, or separate property.

In the Davis' case – Keith argued that spouses who share a home cannot be "living separate and apart"; while Sheryl contended that the totality of circumstances, i.e. arriving at the kids' activities in separate cars, individual bank accounts, etc. should determine whether or not spouses are separated.

The Supreme Court considered previous cases and legislation dating back to the 19th century.  In particular, the Court referred to Chapter 161 of the Statutes of California, "An Act to protect the rights of married women in certain cases."   

The 1870 Act did not contain a definition of the phrase ―"living separate and apart" used in section 2. (Stats. 1870, ch. 161, § 2, p. 226.) However, the Legislature‘s understanding that the phrase connoted a threshold requirement of separate residences may be discerned from an additional section of the statute.

The Court also turned to Black's Law Dictionary, which previously defined separation as "residing in different places and having no intention of resuming marital relations," and more recently, as "living away from each other, along with at least one spouse's intent to dissolve the marriage." 

Focused solely on the interpretation of California's community property statute, the Supreme Court reversed the judgment of the Court of Appeal.

Moving Out is Merely the First Step 

Though living in separate residences is a critical part of establishing a date of separation, divorcing couples who need to cohabitate for a while can have an attorney draw up a written agreement to stipulate the official separation date.

On the other hand, couples who live apart immediately may still not be legally separated – moving out is merely one step in establishing a separation date.  Should the parties continue to act married in other ways, establishing separate domiciles may not help in the community vs. separate property issue.

Vanessa Soto Nellis is a Certified Family Law Specialist (State Bar of California Board of Legal Specialization) and a Shareholder at our firm. Contact her via email: vnellis@lewitthackman.com or by phone: 818-907-3274.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Aug292014

Breaking Up is Hard to Do: Cohabitation Agreements Make it Easier

Cohabitation Agreements

by Lovette T. Mioni

 

According to a U.S. Department of Health and Human Services report, more and more couples are choosing to live together – either in a premarital cohabitation arrangement, or in lieu of marriage altogether.  

The report showed that 48 percent of women aged 15-44 interviewed between 2006 and 2010 lived with a partner without marrying. Only 34 percent of women in the same age group did so in 1995.

Many couples getting ready to officially tie the knot will consider a prenup – a smart choice for anyone with assets to protect, whether they be business interests, family heirlooms, or growing financial expectations. The growing number of couples who choose not to marry, or to delay marriage, should protect themselves too.

Cohabitation Agreements:
Why Do You Need One?

Unmarried couples living together for several years (or any amount of years) do not have a common law marriage in California and community property laws do not apply to unmarried couples.

However, one party could allege there was an agreement between the parties that Party “A” would provide for Party “B”, creating an interest in Party “A” assets that otherwise wouldn’t arise absent an agreement. Courts have held that express or implied contracts between unmarried cohabitors are enforceable. 

For example, in the case Marvin v. Marvin, the Court commented, “[A]dults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights.”   

Individuals may unintentionally acquire/relinquish certain rights because of their relationships with their partners. A Cohabitation Agreement is a written contract between two people that are not married. It sets forth the mutual rights and obligations regarding  property, financial support, and estate planning.  We recommend implementing a Cohabitation Agreement to provide each party with financial expectations and general obligations for the relationship.

Consider drawing up a Cohabitation or Living Together Agreement to determine:

  1. Financial responsibilities.  

  2. Ownership for joint purchases, i.e. vehicles, furniture, home, etc.

  3. Residential financial obligations, i.e. rent or mortgage, utilities, insurance, etc.

It's not just the breakup that can be hard on cohabitants. The death of a partner can also create unforeseen hardships for the survivor. A cohabitation agreement may be used to determine if a surviving partner has the right or obligation to retain any property acquired after the couple started living together.

All in all, it's best to be prepared for any eventuality, whether a couple cohabitates until death do they part, or not. Each party in a cohabitation relationship should have his or her own legal counsel ensure their individual interests are determined in a Cohabitation Agreement.

Contact our Family Law Practice Group for more information. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
May202014

Victory for Sperm Donors: Appeals Court Rules in Favor of Jason Patric

 

by Lovette T. Mioni

 

 

Jason Patric, perhaps best known for his role in the movies Lost Boys or Speed 2, scored a landmark victory in a California Appeals Court last week, regarding paternity rights for his son Gus. Gus was born via artificial insemination and Patric was the sperm donor for Gus's mother, Danielle Schreiber.

When the couple split in 2012, Schreiber cut off all contact between Gus and Patric. Schreiber claimed Patric was the donor of sperm only, and cites a 2008 letter in which Patric said he was not ready to be a father.

California Family Code Section 7613(b) says a sperm donor is not a presumed parent, unless otherwise agreed to in writing by both parents. In reliance of this statute and previous court rulings, a Los Angeles trial court granted full custody to Schreiber, and denied Patric access to Gus.

A California Court of Appeals reversed on May 14th, directing the trial court to now determine whether or not Patric can be deemed a presumed parent under Family Code Section 7611. The battle isn't over, but the reversal gives Patric an opportunity to seek legal rights as Gus's parent.

Conditions of Presumptive Parenthood - What Do They Mean For Sperm Donors?

Both Family Code Sections 7613 and 7611 fall under the Uniform Parentage Act, which determines a parent-child relationship.

Once the relationship is officially decided, a parent can apply for child support, custody, visitation, and more, on behalf of the child. The California legislature did not specifically address the rights of sperm donors in the UPA. However, several conditions may determine when someone can be considered a presumed parent if:

Paternity Law California1. A presumed parent and mother are or were married, or a child was born within 300 days after a marriage ended;

2. The parties attempted to marry before the child was born but the marriage was invalid;

3. The presumed parent and mother married or attempted to marry after the birth of the child, and the presumed parent is named on the birth certificate or obligated to provide support under a written agreement or court order

4. A presumed parent receives the child into his/her home and openly hold the child out to be his or her natural child

5. The child is conceived after the death of the presumptive parent, under certain conditions

Citing previous case law and the conditions for presumptive parenthood, the Appeals Court in the Patric case said:

a sperm donor who has established a familial relationship with the child, and has demonstrated a commitment to the child and the child's welfare, can be found to be a presumed parent even though he could not establish paternity based upon his biological connection to the child.

Further, the court ruled that Patric did not have the opportunity to show the trial court – per condition #4 above – that he received Gus into his home and openly showed that Gus was his natural child.

Based on the Appeal's Court remanding the matter back to the trial court, Patric now has a fighting chance. It's possible that this landmark reversal could spur a change to California Family Law Code as well, giving sperm donors more parental rights in the future.

Contact our Family Law Practice Group Attorneys for more information.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Jan032014

Why Get a Prenup? Marriage Is a Financial Partnership Too

Marriage and Money: Prenups

by Lovette T. Mioni

 

Most people wouldn't go into business without insurance. So why do so many couples get married without a prenup? 

Marriage, like it or not, is a financial partnership – whether or not the couple decides to keep their finances separate or comingle them. If they're smart, they'll talk about their expectations and responsibilities before they tie the knot, whether they have a few grand tucked away in a savings account, or millions of dollars invested in complicated portfolios.

The financial conversation is necessary to every couple. The prenup conversation though, will particularly benefit anyone who:

  • Owns a home, real property, or valuable collections/heirlooms

  • Owns a business

  • Has a stock or retirement fund

  • Expects, or already has an inheritance

  • Has a child or children from a previous marriage

  • Has loved ones that need special care/elder care

  • Is pursuing a degree or license in a potentially lucrative profession

  • Expects dramatically increased earnings in the future

A legally enforceable prenup is fair to both parties, and is not signed under duress.

It should define and protect community and separate property, support an estate plan, save time and money by reducing conflicts in the event of a divorce, and lay down some ground rules for deciding future problems.

Since California is a no fault state, the parties can't write in financial penalties for bad behavior or making lifestyle decisions, such as cheating, refusing to have children, or taking up gambling.  

They can however, protect themselves from debts one of the parties incurs should s/he make some of these choices. That's why prenups are like insurance.

When Should You Ask for a Prenup?

Some people find it easier to mention their preferences for a prenup very early in a relationship, as part of a general conversation regarding marriage, for example. This way the boyfriend or girlfriend will know what to expect further down the road, should the relationship progress more seriously.

Others ensure they talk about prenuptial agreements before the engagement; while some others wait until the 11th hour, fearing hurt feelings and the potential end of what was once a good relationship.

Generally speaking, the earlier you bring up the idea, the better.

Whenever you decide to pop the question – the prenup question, that is – know that California law requires there be seven days between presentation and execution of the prenuptial agreement, Family Code §1615(c)(2). This gives time for the person receiving the prenup to seek legal counsel to protect his/her own assets.

Contact one of our Prenuptial Agreement Attorneys for more information.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Oct292013

Presumptive Parents - It May Take Two or More in California

Encino Tarzana Divorce LawyerChild Custody and Support Attorney Los Angeles

by Vanessa Soto Nellis
818.907.3274

San Fernando Valley Custody Lawyer Los Angeles

Remember Hillary Clinton's 1996 book, "It Takes a Village"?

It seems California Family Law Courts will now play by that theme, when circumstances warrant such consideration. Governor Jerry Brown signed Senate Bill 274 recently, which allows the state to legally recognize more than two parents for a child.

This will only happen in certain situations, specifically, when recognizing only two parents is in some way detrimental for the child – family law courts will take into account health, welfare and safety to determine whether or not a child is best left in custody with Parent A, Parent B, Parent C or D, or placed in foster care.

Child Support Attorney

Necessity of Recognizing Multiple Parents

 

The senate bill was written largely in response to a rather bizarre 2011 Dependency Action in which a child, known as M.C., was conceived by Melissa and Jesus in 2008, but was born when Melissa was married to her partner Irene in 2009.

The two women have a volatile history of substance and physical abuse – Melissa previously sought dissolution of her domestic partnership to Irene and a temporary restraining order, months before they married. Melissa also suffers from bipolar disorder and depression.

Jesus acknowledged and demonstrated responsibilities for M.C. before she was born, but did not assert parental rights or responsibilities after her birth in 2009. Melissa married Irene in 2008. Several weeks after the birth of M.C., Melissa moved out again, taking the baby with her.

Irene filed a request for child custody and visitation, and joint legal and physical custody of M.C. Melissa obtained another restraining order against Irene, and then approached Jesus for financial help, which Jesus gave, along with requests that M.C. visit his family regularly.

In September of 2009, Melissa's new boyfriend Jose attacked Irene with a knife, critically injuring her. Melissa was charged as an accessory to attempted murder and M.C. was placed in foster care, despite Jesus' attempts to obtain custody.

This situation prompted SB 274, so that more than one parent can be recognized to prevent detriment to a child. Given the evolving definition of family, the new law makes sense in protecting the best interests of children.

 

Child Support, Custody & Paternity in California – Where Do We Stand Now?

 

Senate Bill 274 does not change the requirements for establishing parentage under the Uniform Parentage Act of 1973 - it merely gives Courts the option of recognizing more than two parents when necessary. The best interest of the child is the focus here, to include physical, emotional and financial considerations.

Under this new bill, child support obligations can be divided among all of the parents, based on their individual incomes. Visitation rights may also be divided to include a third parent. Joint custody between two parents will be the preferred option, but a third individual can now be factored into the equation.

The bill will give Family Law Courts a bit more flexibility in doing what's best for the child.

 

Vanessa Soto Nellis is a Child Support and Custody lawyer in our Family Law Practice Group. Contact her via email: vnellis@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
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