Do’s & Don’ts of Status Only Dissolution

Posted May 26, 2010 in Family Law by Gina Policastri.

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May 26, 2010
Do’s & Don’ts of Status Only Dissolution
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Under California Family Code Section 2337, a party may obtain what is called a “Status Only Judgment,” which is a judgment that terminates the marriage only, leaving all other issues (division of property, support, custody) to be decided at a later time. The most common reason that a party seeks a status only judgment is because that party wants to remarry. In other cases, the reason is psychological: a party feels that obtaining the divorce will help them move on from the relationship. Whatever the reason may be, it is important to understand the serious consequences that stem from a status only judgment.

1.Loss of Health Care Coverage: Once you are divorced, you are no longer eligible for health care benefits as a “spouse” under your spouse’s employer-sponsored health care plan. The cost of COBRA or an individual heath care plan can be astronomical. If you have any pre-existing conditions or current illness, it may be wise to wait for all issues in the case to be resolved to lengthen the time for which you are eligible under your spouse’s plan. If your spouse demands the status only, he or she will have to agree to continue coverage at his or her own cost until the divorce is final.
2.Loss of Surviving Spouse Retirement Benefits: Similarly, once you are divorced, you are no longer considered a “surviving spouse” for purposes of surviving spouse retirement plan benefits. Accordingly, it is critical that you obtain a Qualified Domestic Relations Order preserving your rights in the retirement plan before agreeing to the status only.
3.Application of Probate Rules: Should your spouse die at any point after the status only but before the final judgment that divides the community estate, the probate code, not the family code, will apply. This could mean the loss of your rights in property that is held in the deceased party’s name alone even if it would otherwise be a community property asset by virtue of the date of purchase or other agreement between the spouses.

These are just a few of the possible consequences of a status only judgment. In recognizing these and other significant consequences, the legislature recently modified the statute governing status only judgments to provide more protection for the spouse whose rights are adversely affected. Typically, the party seeking the status only will be required to “indemnify and hold harmless” the other party; this means that should there be any adverse consequences as a result of the status only, the requesting party will be required to pay for any such losses incurred by the other party.

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Proactive Steps to Take if You Are Contemplating Divorce

Posted May 24, 2010 in Family Law by Julia Lemon.

In California, both spouses have fiduciary duties towards one another that require them to act in good faith in their dealings with each other and to disclose all material facts and information regarding community assets and debts. While there are several formal and informal methods of obtaining necessary information from the other party during a divorce, being proactive can cut down on the amount of time and expense needed to evaluate and prepare your case. The Minnesota Divorce and Family Law Blog has a helpful list of documents to gather upon deciding to file for divorce. Specifically, it suggests gathering:
1.Copies of financial statements;
2.Copies of tax returns;
3.Copies of computer hard drives;
4.Copies of insurance policies;
5.Copies of wills and/or trusts;
6.Inventory of safety deposit boxes, with a witness;
7.Copies of deeds and/or titles to real property;
8.Copies of small business ledgers, financial journals, payroll, sales tax returns and expense account records;
9.Copies of appraisals for art, antiques, jewelry and collectibles;
10.Record the contents of each room in your home through video;
11.Copies of retirement account statements; and
12.Copies of your spouse’s pay stubs for the last few months.

http://www.mnfamilylawblog.com/2009/12/articles/contested-divorce/staying-ahead-of-the-curve-12-proactive-steps-to-take-if-you-are-contemplating-divorce/

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North Carolina Woman Awarded $9 Million from Husband’s Mistress

Posted May 7, 2010 in Family Law by Eric Despotes.

Suspecting her husband of 32 years was having an affair, Cynthia Shackelford of North Carolina hired a private investigator who confirmed her fear: her husband was involved in a longstanding liaison with a woman whom he’d met at a local college. Shackelford took legal action, suing her husband’s mistress for “alienation of affection.” She won, and was awarded $ 9 million in damages. Shackelford says the lawsuit wasn’t about the money; it was about sending a message.

The little-known law, which doesn’t exist in California or 42 other states, allows for aggrieved spouses to bring a claim in civil court – separate from family law proceedings – against third parties who knowingly have an affair with a married person. Generally, the plaintiff in such actions must show: 1) the marriage entailed love between the spouses in some degree; 2) the spousal love was alienated and destroyed; and 3) the defendant’s malicious conduct contributed to or caused the loss of affection.

Critics of “alienation of affection” and similar laws consider them to be archaic relics of a bygone era. Jacob Appel of Huffington Post describes them as “vestiges of legal codes that also prohibited divorce and criminalized premarital sex, … a consummate example of the sort of private controversies in which the government has no business meddling.” Likewise, some attorneys feel that such laws unnecessarily escalate family law proceedings and are inconsistent with the policies behind “no fault” divorce, which seek to minimize inquiry into the he-said-she-said interpersonal drama that is often behind the breakdown of marriage. Nevertheless, a handful of states still have “alienation of affection” laws on the books, something to make would-be-marriage-meddlers think twice.

Sources: People Magazine, Huffington Post

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David Patton Secures Primary Custody & Move Away Order in Hotly Contested Child Custody Case

Posted May 5, 2010 in Family Law, Firm News by Michael Lonich.

Following a lengthy trial, the Santa Clara County Family Court ruled in favor of Mr. Patton’s client, awarding full custody of the children to the mother and giving her the right to move to another state with the children.

Father in this case sought 100% custody of the children and wanted to prevent Mother from taking the children to another state.

The court found that using the “best interests” standard followed in California for initial custody determinations, Mother should be awarded full custody and be permitted to move out of state with the children. The custody battle included allegations of domestic violence and inappropriate physical punishment of one of the children. The court took testimony from a court appointed expert, who had completed a custody evaluation involving both parents and the children, as well as testimony from experts hired by Father.

Upon considering all the evidence presented, the court found Mr. Patton’s evidence and arguments to be persuasive and granted Mother the right to move away with the children to another state.

Mr. Patton is a Certified Family Law Specialist as certified by The State Bar of California Board of  Legal Specialization and limits his practice exclusively to family law (divorce, child custody, domestic violence, restraining orders, spousal support, etc.). His certification is provided by the State Bar of California Board of Legal Specialization.

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