Posted March 31, 2010 in Family Law by Julia Lemon.
As Opening Day approaches, much of the buzz about the LA Dodgers focuses on the owners’ high profile divorce case. There are numerous legal issues in the case, as well as millions of dollars at stake.
While Frank and Jamie McCourt are currently litigating the issue of temporary spousal support (with Jamie requesting nearly $1,000,000 per month), the bigger issue in the case is whether the Dodgers are community property. The team was purchased during marriage, raising the presumption that it is a community property asset. However, Frank McCourt asserts that a post-marital agreement signed in 2004 transferred title of the parties’ residential properties to Jamie and made him the sole owner of the team. Jamie is seeking to invalidate the post-marital agreement. It will be interesting to see how it unfolds.
Posted March 29, 2010 in Family Law by Gina Policastri.
Many people give their spouse a Durable Power of Attorney to handle their financial affairs. In the divorce context, Durable Powers of Attorney are loaded guns. An estranged spouse can use a Durable Power of Attorney to transfer their spouse’s assets to them, take out loans in the name of their spouse, and engage in other financial transactions without that spouse’s knowledge. If you have given your spouse a Durable Power of Attorney, you should consider revoking it immediately so that it cannot be used in an unintended fashion. Check with a qualified estate planning attorney to make sure you know the rules for revoking a power of attorney. Generally, banks and other third parties can rely upon a power of attorney unless they have notice that it has been revoked. If you are concerned that your spouse may attempt to use the power of attorney without your permission, you should consider notifying all your financial institutions that the power of attorney has been revoked.
Posted March 24, 2010 in Family Law by Julia Lemon.
Recently, a Chicago father has been in the news for violating a custody order by taking his daughter to a Catholic mass. Specifically, Father converted to Judaism after marrying Mother, and allegedly agreed to raise their daughter Jewish. However, they soon separated, and Father began practicing Catholicism again and even had their daughter baptized Catholic. Thereafter, in the midst of a bitter custody battle, the court issued an order that Father could not expose his daughter to any religion other than Judaism. Father allegedly violated that order by taking his daughter to a Catholic mass and Mother filed a contempt motion; the issue is still pending.
In California, when adjudicating custody, courts cannot base a custody or visitation decision on one parent’s religious practices without a clear showing that the religious practices are detrimental to the child. Generally speaking, each parent is entitled to religious freedom with regard to his or her child and may decide what he or she believes is in the child’s best interests. In fact, addressing religious issues during a custody/visitation dispute raises serious First Amendment concerns regarding the freedom of religion, so most courts attempt to steer clear of these issues. Courts will only intervene when the parent seeking to limit the other from exposing or practicing another religion demonstrates that the belief or practice actually presents a substantial threat of harm to the child.
Posted March 10, 2010 in Firm News by Michael Lonich.
Posted March 10, 2010 in Family Law by Michael Lonich.
Husband and Wife entered into a Marital Settlement Agreement predicated upon their ultimate judgments of divorce. If the couple were to enter into a divorce, the provisions of the agreement would be fully incorporated into the final divorce judgment.
The agreement included two provisions regarding their respective rights upon death of the other party with respect to the property of the other. This included an interest in past, present and future spousal support obligations accepting any obligations set forth in the agreement itself.
The agreement provided that it was binding and shall inure to the benefit of the parties and their heirs except as specifically excluded by the agreement. Any terms not met would be an obligation of the decedent spouse’s estate.
The agreement obligated the husband to provide a sizeable sum in escrow to his wife upon the entry of a divorce judgment. This amount would be used to purchase a condominium for her prior to the divorce; the unused balance of the escrow account was to be paid to the wife after the divorce was final. The agreement also obligated the husband to pay the condominium fees prior to the final divorce judgment.
The agreement also required the husband to pay the wife’s attorney’s fees up to a set amount.
The husband paid as mandated by the agreement and attempted to deduct it as spousal support. The IRS disallowed the deduction and found that the Marital Settlement Agreement which had been fully incorporated at that point into the final divorce judgment did not support his claim that it was spousal support giving him the benefit of the deduction for those sums paid. The IRS further found that the agreement, by its terms, caused the escrow account to be an obligation account that would not cease upon the death of the wife and as such was disallowed. Spousal support cannot continue after the death of either spouse as a matter of law.