US Parents in International Abduction Cases to Receive More Assistance from the Feds!

August 26th, 2014

US parents who are fighting for the return of their children to the United States received some legal help with the passage of the Sean and David Goldman International Child Abduction Prevention and Return Act of 2014.

The law, signed by President Obama on August 8, 2014, was named for and written in response to a New Jersey’s father custody dispute when his child was wrongfully kept in Brazil.  He argued in US and Brazilian courts for many years before his son was returned to the US.  According to this article, the bill will “help the State Department put increasing pressure on foreign governments to send home American children who were abducted overseas.”

Congress found that “more than 1,000 outgoing international child abductions are reported every year.”  The bill provides the assistance of the United States government to US based parents in international custody disputes by requiring “better reporting and support from the State Department so that left-behind parents are not on their own in overseas battles to win the return of their abducted children.”

Whether your custody dispute is domestic or international, be sure to speak to an experienced family law attorney who can advise you as to your rights as to the proper forum to adjudicate custody and visitation issues.

Sanctions – disobey orders at your own risk!

August 18th, 2014

When a judge makes an order, it is not optional.   A party can certainly appeal a decision, but an order is an order – even if the judge orders you (or your attorney) to meet and confer to discuss an issue.  Failure to talk to opposing counsel may result in sanctions as it did in this case.

The link provides a summary of the family law litigation (re child support arrears).  In addition to the general rule to comply with a court’s order, the story also provides a reminder that many (though admittedly not all) issues can be resolved between the parties (or their attorneys) without court intervention, if the parties are reasonable and wish to avoid unnecessary litigation.

The Petition – Part 6(c) – Void marriages

August 18th, 2014

Certain marriages are void at the start; it’s as if they never happened.  Incestuous and bigamous marriages are void at the outset.  Family Code §§ 2200, 2201.

But just because the marriage “never happened”, it’s still possible that the parties may have acquired the rights of a putative spouse and property acquired during the relationship (what would have been community property if the marriage wasn’t void) can be subject to equal division as quasi-community property.

If you think your marriage is void, be sure to speak to an experienced family law attorney to discuss what rights you (or your putative spouse) may or may not have as it comes to quasi-community property.

The Petition – Part 6(a), (b) – dissolution v. legal separation

July 1st, 2014

You’ve married.  And now you want to get divorced.  Or maybe legally separated.  What’s the difference?

A judgment of dissolution (aka divorce) means the parties are back to being unmarried and can re-marry if they so choose.  Fam. Code § 2300.  If the parties choose to be “legally separated” they cannot re-marry, but they can later enter a judgment of dissolution if they want.  Fam. Code § 2347.

Both a judgment for dissolution or legal separation can address paternity, custody and visitation, child support, spousal support, property division, and attorney’s fees.  The main difference is that in the latter, the parties are still married.  Some people choose that route for religious reasons or to maintain insurance or other financial benefits.

It’s All Your Fault!

You want to get divorced and share a few choice words about your soon to be ex-spouse.  However, the Court only cares about “irreconcilable differences” or “incurable insanity”.  Fam. Code § 2310.  California is a “no-fault” state which means the reasons behind the break-up are less important than the the fact you are breaking up.  However, bad acts are not ignored and will likely implicate the outcome of custody/visitation, support, and property division decisions.  (Each area to be discussed in a subsequent post.)

“Irreconcilable differences” is defined at Family Code Section 2311. Those differences can range from people growing apart all the way to adultery.  One party need testify that the marriage cannot be made right again.

“Incurable insanity” is defined at Family Code Section 2312.  A party needs to show “competent medical or psychiatric testimony” to obtain a dissolution/legal separation on these grounds.

If you want to learn more about the differences between legal separation v. dissolution, be sure to speak to a qualified family law attorney.

Judges Are People Too

June 3rd, 2014

California judges are required to abide by the Code of Judicial Ethics.  If Florida has a similar code, the criminal law judge shown in this video may have some explaining to do.

A California judge acting like the one in Florida could be removed for cause.

However, the law provides that a family law litigant can also move to have a judge or commissioner removed if the officer “is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.” Code Civ. Proc. § 170.6.  That does not mean a  party cannot simply ask to remove the judge or commissioner because she doesn’t like or agree with the judge’s ruling.  There are time limits as to when a 170.6 Motion can be filed.  A party does not then get to pick the next judge to hear your case.

If you have questions about appearing before your family law judge or commissioner, be sure to speak to an experienced family law attorney.

Shhhh…. what you share with your attorney is private

May 19th, 2014

Generally speaking, information you share with your attorney is protected by the attorney-client privilege.  Evidence Code § 954.  However, an exception applies if the client wants help committing crime or fraud.  Evidence Code § 956.  In those cases, the information is not protected.  The 956 exception does not cover information shared about past crimes or fraud (i.e. a client talking to his criminal defense attorney).

But what if your lawyer doesn’t know everything?  Lawyers like to ask other lawyers questions.  And some lawyers can (and do) so long as they protect their client’s information.  A new website is up and running for lawyers to ask questions – confidentially.  Click here for a link on the site.

Ford Family Law APC attorneys take their responsibility to their clients seriously.  They protect their client’s information and do not reveal confidential information to unauthorized third parties.  A client should feel comfortable sharing private information with their attorneys.  We respect our clients and believe that enforcing the attorney-client privilege encourages open communication between attorney and client.  This allows us to learn more about you and your case – making us best able to represent you.

The Petition – Part 5 – Community Property

May 8th, 2014

At Part 5 of the Petition, the Petitioner can identify his or her separate property.  Community property is:

Community property is subject to equal division by the Court.  Family Code Section 2550.

If you are unsure about the characterization of certain property, be sure to talk to an experienced family law attorney.

The Petition – Part 4 – Separate Property

May 2nd, 2014

At Part 4 of the Petition, the Petitioner can identify his or her separate property.  Separate property is:

  1. All property owned by the person before marriage.
  2. All property acquired by the person after marriage by gift, bequest, devise, or descent.
  3. The rents, issues, and profits of the property described in this section.  Family Code Section 770(a);  and
  4. 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. Family Code Section 771(a).

You can ask the Court to confirm your separate property to you (and the Respondent’s separate property to him/her).  Separate property is not subject to equal division as is community property (see next post).  However, your separate property will be considered if long-term spousal support is an issue.  Family Code Section 4320(e).

If you are unsure about the characterization of certain property, be sure to talk to an experienced family law attorney.

Lottery and Divorce

April 28th, 2014

An Indiana lottery winner was ordered to share some (but not half) of his lottery winnings with his spouse.  The parties had been living separate and apart for several years, but neither had filed for a legal separation or divorce.  Click here for the complete article.

This blog previously discussed what it means to live “separate and apart”.  According to the Indiana Court, during six years of separation, the Indiana couple “spoke only two or three times, never commingled assets, had separate bank accounts, and generally lived as single individuals.”  Had the parties lived in California, the lottery winner would have likely had a better chance of keeping the lottery winnings to himself (though he could have been ordered to pay support (depending on a number of other factors)).

In another lottery and divorce case from 2001, a California wife tried to hide the fact she won the lottery from her then husband.  He learned of the winnings after the divorce was finalized.  Needless to say, he returned to Court.  Because Wife intentionally withheld information regarding her winnings (in violation of her fiduciary duties owed to Husband), the Court ordered that ALL winnings be turned over to Husband.  In re Marriage of Rossi (2001) 90 Cal. App. 4th 34.

If you have a question about filing for divorce or disclosing assets, be sure to consult with an experienced family law attorney.

More on Adult Child Support

April 22nd, 2014

On March 5, this blog referenced a New Jersery adult child support case and a California parent’s responsibility (or lack thereof) to pay for a child’s college education.

As previously noted, parents are not responsible for their non-minor children unless the child is “incapacitated from earning a living and without sufficient means” (Fam. Code § 3910) or the parents otherwise agree (Fam. Code § 3587).

In a recent case (Drescher v. Gross, (4/11/14) 2 Civ B246494, Div 3), the Court ruled on what happens when parents agree to provide for their non-minor children (i.e. pay for college) but when college comes – one parent cannot (or will not) pay and asks the Court to modify their order.

With minor children, child support is modifiable – and the parties cannot contract out of this provision.  However, according to Drescher, if the parties agree to provide support (including paying for college) for their adult children, the parties MAY contractually agree to limit the court’s ability to modify support.  And the Court cannot then modify that adult child support order.

Thus, if you are considering an adult child support provision in your Marital Settlement Agreement, and you want that provision to be non-modifiable, be sure you speak to an experienced family law attorney to ensure your wishes are memorialized in your MSA.