July 2011 Archives

Premarital Agreements in California

July 30, 2011, by

To most couples planning to marry, marriage is a loving commitment between two people who want to share the rest of their lives. Under the law, however, marriage is a contract between two people ... not a contract about love, but a contract about the legal and financial rights and obligations of marriage.

It isn't easy to discuss marriage as if it were a business, but when considering a premarital (or prenuptial) agreement, that is precisely the right approach. A premarital agreement isn't a predetermined exit plan and neither does it reflect a lack of faith in the relationship. It simply protects against unfortunate future circumstances that can, and frequently do, happen and is a most worthwhile effort to address the legal and financial issues of the marital contract.

The following suggestions may help you and your future spouse have a constructive conversation about what kind of premarital agreement would be right for your marriage and your relationship, as well as the role of money in your lives together, and if done right such a conversation can ultimately be more helpful in securing a strong foundation for the marriage than it's actual, intended use.

Discuss the Issue Early
It is very important that you don't wait until four weeks before the wedding to discuss these issues. The earlier these topics are explored, the better.

Ask, Don't Assume
People have all kinds of ideas about premarital agreements, and often they are biased biased or incorrect or based on publicity involving contentious, high-conflict celebrity divorces. You and your spouse may have very different ideas about this issue and it is important not to assume you share the same ideas - ask.

Focus on Practical and Logical Matters, not Emotions
It's difficult to talk about your relationship as if it were a commercial transaction, so it is helpful if you can both agree to be logical rather than emotional in discussing these issues.

Ask A Third Party
It is most always helpful and advisable to consult with a legal professional, and perhaps a financial professional, to explore the benefits and to understand the legal issues. The better informed you both are, the easier it will be to reach a mutual and positive agreement.

Social Media, Facebook & Divorce

July 26, 2011, by

As social media becomes increasingly more prevalent and dominant in our lives, not surprisingly it is increasingly involved in that time honored life passage known as Divorce. First, Facebook may actually help facilitate the divorce. A 2010 survey by the American Academy of Matrimonial Lawyers (an odd name for an organization devoted to the opposite of marital bliss) found that four out of five lawyers reported an increasing number of divorce cases citing evidence from social networking sites, primarily Facebook.

To begin with, Facebook can facilitate divorce in any number of ways. It is easy to rekindle old flames and to start new ones online; flirtatious comments can lead to more and/or can inflame jealousy that undermines the marriage. Or Facebook addiction, like any addiction, can lead to marital breakdown.

Once the divorce process starts, Facebook increasingly plays a role in custody and other battles as spouses use the site to spy on each other and find incriminating evidence such as drug or alcohol use or other misdeeds to paint the other as an unfit parent.
Words of Advice: Don't say anything you wouldn't say directly to your ex or to a court. You might be discreet but pay attention to friends' Facebook pages and posts - they may include photos or comments involving you. No matter what your privacy settings are, you cannot control your friends' settings.

LGBT Adoption and Marriage Equality in California

July 19, 2011, by

Representative Pete Stark (D-Calif), U.S. House member from California on Tuesday introduced legislation that would bar discrimination against lesbian, gay, bisexual and transgender (LGBT) people in adoption cases.

The Every Child Deserves a Family Act, HR 3827, which has 33 original co-sponsors, would restrict federal funds for states that allow discrimination in adoption or foster care placement based on the sexual orientation, marital status or gender identity of potential parents -- as well as LGBT children seeking homes.

Some states recently have taken steps to inhibit potential LGBT parents from adopting. Last month, Arizona Gov. Jan Brewer (R) signed legislation that would give primary consideration in adoptive placement to opposite-sex married couples. Additionally, Virginia's State Board of Social Services recently rejected adding protections against discrimination in adoption cases on the basis of sexual orientation as well as other statuses.

There is strong consensus in the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents, based the research supporting this. Based on the evidence and research, the Third District Court of Appeal State of Florida was satisfied in 2010 that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption. Although California is ahead of many states in that it allows LGBT adoption, Stark's bill HR 3827 prohibits the all too common discrimination that persists despite the fact the LGBT adoption is legal in California.

Representative Stark has billed the legislation as a way to ensure that children in the foster care system have access to a greater number of adoptive families -- including households with single parents or same-sex parents.
"What's in the child's best interest is what the bill is trying to promote," Stark said. "There is no information that shows that children raised by a single parent or gay or lesbian parent households have any more or less problems than all other children."

According to Stark's office, the U.S. government spends more than $7 billion each year on a foster care system against potential single and LGBT parents and allows around 25,000 children age out annually. More than 500,000 children are in foster care and 120,000 of them available for adoption.

Disqualifying LGBT parents from adoption because of sexual orientation is wrong, especially when so many children are in foster care waiting to be adopted. The current patchwork of unfair state laws and policies denies many children the safety, stability and love they would have with adoptive parents. And I know personally many LGBT families who are loving and devoted parents and who have adopted and are giving children who would otherwise be in the dismal foster care system, a wonderful home and childhood. To not pass this legislation would be a huge disservice to these children who need loving homes.

Perhaps small steps like this will help lead the way to full marriage and family equality for all.

Child Custody & California AB 1050

July 13, 2011, by

Prior to the passage of Senate Bill AB 1050 recently approved by the California legislature, the children of parents in custody battles have rarely been able to testify in court. Court's typically obtain information from the child through third parties, commonly court appointed mediators who are often marriage and family therapists. Senate Bill AB 1050 which goes into effect January 1, 2012 amends California Family Code ยง 3042 and gives children a greater voice regarding their custodial preferences.

Existing law prior to AB 1050 required family courts "if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, to consider and give due weight to the wishes of the children" in making custody orders.
AB 1050, however, states that "If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation."

Pursuant to this law, there will be new procedures that require a court to allow a child to testify directly to the court regarding his or her preferences, if a child is 14 or older, unless the court determines this would not be in the child's best interests. The court must state on the record why such testimony would not be in the child's best interest. The law does not prevent courts from allowing children under 14 from testifying but there is no requirement that it do so.

Hopefully, this will be positive and will provide an opportunity for greater clarity and understanding and will be beneficial for children. However, as with most well intentioned laws, this could well be misused and create more conflict and parental alienation.

Cohabitation Agreements

July 12, 2011, by

California does not recognize community property rights between cohabiting couples and does not recognize "common law marriage", and therefore does not protect those who opt out of traditional marriage or registered domestic partnerships. There are no automatic property rights or support rights under the California Family Code for unmarried cohabitants. Though there may be judicial recognition and enforcement of express or implied agreements between unwed cohabitants, such as breach of contract, partnership theories, constructive trust, declaratory relief, specific performance, quantum meruit and other equitable remedies, the legal process to obtain such recognition is likely to be emotionally torturous and very costly in the absence of a clear, written agreement.

Therefore, it is important for unmarried couples living together to discuss and reach agreements on financial and property rights if the relationship ends. These agreements should be reflected in a cohabitation agreement and testamentary documents such as wills or trusts.

Palimony is a combination of the words pal and alimony coined by celebrity divorce attorney Marvin Mitchelson in 1977 when his client Michelle Marvin (Marvin v. Marvin, 8 Cal. 3d 660 (Cal. 1976) filed an unsuccessful suit against the actor Lee Marvin. Palimony is a popular term, not a legal term, and is often used to describe the division of financial assets and real property when parties end an unmarried domestic relationship. Unlike alimony or spousal support, which is often provided for by law, palimony is not guaranteed to unmarried partners. There must be a clear agreement, written or oral, by both partners stipulating the extent of financial sharing and/or support in order for palimony to be granted. Palimony cases are determined in civil court as a contract matter, rather than in family court, as in cases of divorce.

In 1971, Michelle Marvin claimed that Lee Marvin, who was still married to someone else at the time they began living together, promised to support her for the rest of her life. In the end, in Marvin v. Marvin, the California Supreme Court ruled that Michelle Marvin had not proven the existence of a contract between herself and Mr. Marvin that gave her an interest in his property. Thus, the common law rule applied and she was only entitled to the property that she brought to the relationship.

The Court explained that while the state abolished common law marriage in 1896, California law recognizes non-marital relationship contracts. These contracts may be express or implied, oral or written--but either way, they must be provable. Michelle Marvin did not meet her burden of proof. The contract may also provide for a sexual relationship as long as it is not a contract for sexual services. Eventually, the California Court of Appeal ruled that since Michelle and Lee Marvin never had a contract, she was not entitled to any money.

Consequently, cohabitation agreements are important and are particularly important if one or both has significant assets or debts, owns a property or business, or has children from a previous relationship. In addition, a cohabitation agreement can provide clarification and understanding on issues such as how income and expenses are handled and provide clarity on division of property and support if the relationship ends. This is especially important if there is an income disparity or if one person is sacrificing income to raise children.

For example, one partner stays at home to raise children while the other earns a substantial income and acquires significant assets during the relationship which ends. A married partner in California has the community property law of equitable distribution to protect her interest in half of the assets earned and the right to spousal support. The unmarried partner has nothing except for the ability to obtain child support if the children are still minors.

In addition to the legal protection provided by unmarried partners setting forth their rights and obligations in a cohabitation agreement; the process of creating the agreement provides an opportunity for couples to discuss the role of money in their lives gain clarity and understanding that benefits the relationship.