Your Holiday Child Custody Visitation Schedule

Posted December 12, 2014 in Family Law by Lonich and Patton.

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December 12, 2014
Your Holiday Child Custody Visitation Schedule
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December is a holy time of the year, encompassing the celebration of many religious holidays and spiritually significant days. December may also, unfortunately, be the time of year that religious differences arise between ex-spouses, which may not have been present during marriage. When parents have divergent religious beliefs, it may be difficult to come to a visitation agreement during the holidays.

The general rule is that the custodial parent has the authority to make decisions relating to their child’s religious upbringing. For example, a Jewish father who is the custodial parent has the right to raise his child as Jewish and to celebrate any related religious holidays, such as Chanukah, with the child. At divorce, this may raise some concerns if the parents do not agree on what religion to raise their child. Courts will not prohibit the noncustodial parent from discussing religion with the child or from involving the child in his or her religious activities, in the absence of a showing that the child will be harmed.

Further, courts are unwilling to get involved in religious disputes between parents because of the potential for interference with the First Amendment’s guarantee that the government shall not prohibit the free exercise of religion. Thus, courts will never make any ruling based solely on religion. Courts will, however, uphold child custody visitation agreements between the parents that concern religious issues.

If religious differences may become an issue during or after divorce, it is important that you and your ex-spouse discuss the importance of all religious holidays and how they will be incorporated into your visitation schedule. Parents will usually alternate custody between holidays each year, but this is not always the case if one parent values certain holidays more than others, or if parents of different faiths want to celebrate holidays that fall on the same day. Whatever you and your spouse agree on with regards to the custody schedule, it should be determined well in advance and with the child’s best interests in mind. Additionally, any custody agreement should detail exactly what will happen in these situations.

The Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters.  If you have any questions about your child custody visitation schedule, please contact the Certified Family Law Specialists at Lonich & Patton for further information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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Surviving The Holidays During A Divorce

Posted December 3, 2014 in Family Law by Michael Lonich.

The holidays are a time for family, friends, and togetherness. For the recently divorced or those in the process of a divorce, the holidays can be a very sad, confusing, and lonely time; especially for those couples with children. Lonich & Patton, LLP have put together three tips to get you through the holidays this year: plan ahead, socialize, and create new traditions.

Plan Ahead

The first and most important step to ensuring you survive the holidays is planning ahead. This includes planning out where your children will spend their holidays and with whom. Depending on your custody plan, there are inevitably going to be holes in your schedule and during those time, loneliness may be unavoidable. One way to avoid being lonely during these times is to get activities on the calendar.  If your children will be with your former spouse this year, plan activities with friends and family to keep you busy. While keeping yourself busy may be essential to surviving the holidays, it is also essential to leave some time for rest and reflection, so try not to over commit yourself.

Socialize

The more the merrier. It is common knowledge that the more people you surround yourself with, the better your mood will be. Just because your children are with your former spouse, does not mean you have to spend the holidays home alone. This holiday season, be sure to interact with others, whether it be with family or friends. Socializing will help you avoid feelings of sadness, loneliness, and depression. If you used to spend your holidays with your in-laws, find somewhere else to go this year. Do not be afraid to crash a holiday party or two. And remember, it is normal to feel out of place and uncomfortable, but the more you socialize, the better you will feel.

Create New Traditions

                Divorce means letting go. This includes letting go of certain family traditions. Now that you are divorced, your holiday traditions are bound to change. This is your opportunity to keep the traditions you enjoy, get rid of those you do not, and create new and better traditions with your children. Take this time to try something you have always wanted to do, were too scared to do, or something your former would never let you and the children do. Also, if your children are spending this holiday with your former spouse, consider celebrating the same holiday with your children on an alternate day.

These are just some of the many tips available to survive the holidays during your divorce. The Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters.  If you are interested in learning more about scheduling where your children will spend the holidays, please contact Lonich & Patton for further information.  Keep in mind that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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Who gets the family pet in a divorce?

Posted October 27, 2014 in Estate Planning, Family Law by Lonich and Patton.

If I had to ask you to put a price on your dog, cat or your pet hermit crab, could you? For some, perhaps they could but the vast majority would likely agree that their pets are priceless. However, disputes regarding who gets the family pet in divorce proceedings has become commonplace in family law.

Earlier this year, Melanie Griffith and Antonio Banderas made a statement that they were ending their two-decade marriage but vowed to remain friends and to move forward lovingly. However, shortly after, reports surfaced that a custody battle was flaring up – not over their 17 year old daughter, but over the couple’s three dogs.

Although these days some people treat their pets better than their own children, in the eyes of the law pets are still only considered the property of their owners, much like their furniture is[1]. Legal experts agree that pet owners invest hundreds sometimes thousands of dollars and hours researching proper training, good food choices, and the perfect toys, groomers and veterinarians for their pets. Those same individuals might also take precautions with their estate by writing a prenuptial agreement. But how often do those pet owners think about legal issues associated with pet ownership?

Family law attorneys agree that the best way to handle a situation with a pet is to put it in a prenup. If you came into your relationship with Maxwell, put it in writing that if you are to leave the relationship Maxwell is coming with you. If you and your significant other purchased a pet together during the relationship, but you both agree that one of you should have the pet in the event of a breakup, a post-nuptial agreement would make sure that in the event of a divorce or separation the pet would go with the spouse more bonded with the animal.

Without something in writing, trouble could land you arguing in court. Last year a New York judge granted a divorcing couple the right to engage in oral arguments over pet custody for the first time in the state’s judicial history. The landmark legal showdown was ultimately averted. The couple settled out of court.

In the event of a heated breakup, pets can be protected.  If a party feels that he/she and the pet is in danger at the hands of the other party, California law provides for the family pet to be included on a protective order. Since 2008, courts have had the ability to make an order that the restrained person stay away from the pet. Family Code Section 6320 provides that upon a showing of good cause, the court may include in a protective order a grant of the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by the spouse or minor child resident in the residence.

Family Code section 6320 makes strides toward addressing the established connection between animal abuse and family violence commonly referred to as the “Link.”[2] One of the first studies that described this Link found that of a survey of women with pets who had entered a shelter in northern Utah, seventy-one percent reported that their partner had threatened or actually hurt or killed one or more of their pets.[3]Another study of fifty of the largest shelters in the United States found that eighty-five percent of battered women and sixty-three percent of children with pets had experienced incidents of pet abuse.[4] An alarming consequence of these studies is that victims may feel that they cannot leave their abuser because they worry for the safety of their pets.

The Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters.  If you are interested in learning more about prenuptial or post-nuptial agreements, please contact the Certified Family Law Specialists at Lonich & Patton for further information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.


[1] Kimes v. Grosser (2011) 195 Cal.App.4th 1556

[2] Am. Humane Ass’n, Learn About the Link, http://www.americanhumane.org/site/PageServer?pagename=lk_about (last visited Aug. 4, 2007); see also Senate Judiciary Committee, Committee Analysis of SB 353, at 2-5 (Mar. 27, 2007) (explaining the connection between animal abuse and family violence). There are also several studies that report that children who witness abuse, or are abused themselves, tend to, in turn, abuse animals. See Phil Arkow & Tracy Coppola, Expanding Protective Orders to Include Companion Animals 5 (2007), http://www.americanhumane.org/site/DocServer/PetsinPO2007.pdf? docID=5061 (describing the harmful effects upon children of witnessing domestic violence).

[3] Frank R. Ascione, Battered Women’s Reports of Their Partners’ and Their Children’s Cruelty to Animals, 1 J. Emotional Abuse 119, 125 (1998).

[4] Frank R. Ascione et al., The Abuse of Animals and Domestic Violence: A National Survey of Shelters for Women Who are Battered, 5 Soc’y & Animals 205, 211-12 tbl.1 (1997), available at http:// www.syeta.org/sa/sa5.3/Ascione.html.

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Common-Law Marriage in California

Posted September 19, 2014 in Family Law by Lonich and Patton.

A common-law marriage is an informal marriage by agreement, without compliance with the statutory formalities associated with a marriage license. Only a handful of states recognize common-law marriage, and each state has specific requirements. In Texas, for example, the elements of a common law marriage include 1) an agreement presently to be husband and wife, 2) living together as husband and wife, and 3) holding each other out to the public as such. Once a common-law marriage is established, the spouse has the same rights as a married spouse and the marriage can be terminated only by death, divorce, or legal separation.

California abolished common-law marriage in 1895, and a couples’ failure to comply with the statutory marriage requirements will invalidate a marriage. However, non-marital cohabitation is not a barrier to the enforcement of express and implied agreements. California courts recognize Marvin claims, where unmarried individuals can enforce property, support, and other financial agreements arising out of their relationship. Such equitable remedies include: action on an implied contract based on the parties’ conduct (e.g., to share earnings and provide support or for support upon termination of relationship); action for specific performance of personal property with sentimental value (e.g., to return family heirlooms); and action to recover the reasonable value of services rendered, less the reasonable value of support received. Further, if traditional remedies prove inadequate, trial courts may create additional remedies to protect the parties’ reasonable expectations.

In other words, there is no way to form a common-law marriage in California, no matter how long you live with your partner. Under Family Code section 308, California will recognize common-law marriages validly established in other states. This means that a couple who establishes a common-law marriage in Texas will be treated as married if they move to California. Non-marital parents have the same custody and visitation rights as married parents. However, the recognition of a common-law marriage comes with the recognition of a spousal status, and this is significant with regards to tax, property, and inheritance issues.

For example, the Texas couple can use the “married filing joint” status with both the IRS and the California Franchise Tax Board. An employer, even the California government, must provide medical insurance to the spouse. The spouses receive community property rights. Each spouse will be considered a surviving spouse for purposes of the California intestate system and for social security survivorship benefits. Additionally, to end the marriage, the common-law spouse must file for divorce.

Recognizing a common-law marriage in California can quickly become a complicated legal matter and should be discussed with an attorney. If you have any questions about a Marvin claim or common-law marriage, please contact our California Certified Family Law Specialists. Our attorneys have decades of experience handling complex family law and estate planning matters and offer a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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The Ways to End Your Marriage

Posted August 8, 2014 in Family Law by Lonich and Patton.

In California, a marriage is dissolved by (1) the death of a spouse, (2) a final judgment of divorce, or (3) an annulment. Alternatively, if spouses do not want to completely end their marriage but do want to terminate their marital rights, they can (4) file for legal separation. Here is a look into each one:

(1) Death of a Spouse

When a spouse dies, dissolution occurs automatically, as a matter of law. This can be significant in family law proceedings if the spouse dies after divorce proceedings have begun, but before a final judgment of dissolution. In this scenario, spousal status is not officially terminated and the surviving spouse will still be considered “married” for inheritance purposes. Additionally, any pending dissolution proceeding is rendered moot at the death of a spouse and the court has no power to hear any remaining unresolved issues.

(2) Divorce

Divorce is the proceeding that legally ends the marriage or domestic partnership. Under Family Code section 2310, the grounds for divorce may be either “irreconcilable differences” or “incurable insanity.” Most marriages are dissolved on the ground of “irreconcilable differences.” A dissolution granted on the grounds of “incurable insanity” requires evidence – including competent medical or psychiatric testimony – that your spouse is incurably insane. In fact, this ground is so uncommon that there are no known reported decisions defining “incurable insanity” in the dissolution context. Further, it offers no tactical advantage so even if your spouse is incurably insane, pleading irreconcilable differences is much easier.

The determination of whether “irreconcilable differences” exist is essentially a ministerial function and is rarely a matter of contention. California is a no-fault divorce state, which means that any evidence of specific acts of misconduct (such as cheating, gambling, or heavy drinking) is improper. Courts recognize that ending a marriage is an intensely personal decision and only need to be convinced that the marital differences are substantial. Thus, direct proof of objective reasons supporting the divorce is not required.

(3) Annulment

An annulment declares the marriage was not legally valid – it was never entered into – and like other defenses to contracts, an annulment can occur if one party was not of sound-mind at the time of the marriage or if the marriage was procured by fraud.

A famous example of an annulment due to lack of capacity is Ms. Britney Spears’ 55-hour marriage to her high school friend, Jason Alexander, in Las Vegas. Ms. Spears sought an annulment stating that she “lacked understanding of her actions to the extent that she was incapable of agreeing to the marriage because she and Alexander did not know each other’s likes and dislikes, each other’s desires to have or not have children, and each other’s desires as to State of residency.” In other words, she was drunk and this was a joke that went too far.

Marriages can be annulled for fraud, if the fraud relates to a matter that California deems vital to the marriage relationship and the fraud directly affects the purpose of the party deceived entering the marital contract. Usually, annulments based on fraud involve the sexual and procreative aspects of marriage, such as a secret intention not to live with the other spouse or a concealment of sterility. False representations about earning capacity, wealth, or social status are not the type of fraud that will warrant a nullity. Nor will a failure to fulfill wedding vows or commonly understood spousal obligations, such as being a loving and supporting partner.

(4) Legal Separation

The grounds for legal separation are the same as those for a divorce but it does not end the marriage. Legal separation is an alternative to divorce, where the spouses do not want to completely sever the legal status of the marriage. Otherwise, a legal separation operates similarly to a divorce, separating all finances and property.

Spouses often seek a legal separation for religious or other personal reasons, or to retain eligibility for medical insurance, veteran’s benefits, or social security benefits that would have otherwise been lost by a divorce.

If you have any questions about the proper way to end your marriage, please contact our California Certified Family Law Specialists. Our attorneys have decades of experience handling complex family law proceeds and offer a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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