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Entries from March 2016

Posted on Mar 15 on 2016

We have all heard the story of the couple that thought that by having a baby, their otherwise doomed-marriage would be saved.  It almost never ends up that way.  Mother carries the baby to term, the couple is caught up in the emotions of having a newborn child, but eventually the same issues resurface that were always there.  That child ends up in the joint custody of both parents who are now living in two households.

In that classic and somewhat trite story, hopefully the child still ends up with both parents.  While the split household arrangement may or may not be ideal, certainly a relationship with, and the support of both parents, is for the child’s benefit.  It seems, however, that when the child is what I call a “techno-baby”, one conceived by the use of fertility treatments, a different standard applies, at least in the mind of the parents who invoked the use of fertility procedures.  In the past few years we have seen, and continue to see, these dramas play out in our courts and in the media.  Somehow it seems that because people entered into contracts to attempt to create, or to actually create a new life, they can behave differently than had they conceived the “good old fashioned way”.  For the sake of children, there has to be an end to this double-standard.

The most recent case in point is that of former co-host of “The View”, Sherri Shepherd.  Last week Ms. Shepherd lost her bid to have the Pennsylvania Supreme Court grant review of her appeal whereby she is literally attempting to have herself declared not to be the mother of the child she caused to be conceived by way of in-vitro fertilization using a donor egg and the sperm of her now former husband.  Contending that she only went along with the process because she was afraid that her marriage would end otherwise, and that her ex-husband “tricked her” into signing the surrogacy contract so that he could ultimately get child support from her, she now believes that she should be able to set that contract aside, effectively leaving her child without a mother.  A child who, accordingly to press reports, she has never seen. Is anyone thinking about the poor child that now has a legal mother who does not want him?

And Ms. Shepherd is not the only person who seems to believe that because this is a “techno-baby”, the standard for determining who is the child’s parent should be different.  Not all that long ago, my client Jason Patric, was faced with having his child taken away from him for 18 months until a California Court of Appeal allowed him the right to a new trial to have him declared the legal father of the child that he conceived with a former girlfriend, also through the use of fertility treatments. In that case, the child’s mother wished to cut Mr. Patric out of the child’s life on the theory that because he provided his sperm to a physician for insemination of her egg, she had the right to decide that he was not the child’s father even though the child knew him to be the father.

These disputes are tragic enough when they involve children that have already been born; children who are caught in the middle of these battles and either know now, or ultimately will know, that at one point or another one parent didn’t want them, or one parent tried to sever the right of the child to have the other parent.  And while it may seem that these cases are few and far-between, there are actually many of them out there, but the public is not aware of them because they don’t involve celebrities.

The problem can even arise when there is nothing more in existence than embryos. There have been several cases in front of courts in various parts of the country over the last year addressing the issue of whether one party to a fertility procedure can take control over embryos and use them over the objections of the other party.

These cases only arise because medical technology was used to commence the fertility process, and the law has allowed intended parents who use these processes to distinguish themselves from parents who do not.  This distinction is dangerous for children in several regards: Should a person be forced into parenthood against their wishes either by allowing one party to control embryos they created jointly? Should a parent be permitted to disavow his or her child because fertility treatments were used to conceive that child? Should one parent be able to cut the other parent out for that same reason? The effects upon the child psychologically in these situations can be devastating.

The solution to the problem is relatively simple: In the case of embryos that are not yet implanted we need to implement statutes that mandate that what the parties agree to in terms of the conditions upon which the embryos will be implanted prior to their creation is what governs.  You don’t get to change your mind after the fact.  Similarly, if you have carried a techno-baby to term, whether it was carried by the biological mother or an unrelated woman, that is the child of the parents who intended its creation, and it matters not that a doctor injected the sperm into the egg.   These guidelines would require people to clearly define their roles before creating the pregnancy, and it would protect children from having to know at some point that have a parent who does not really want them, or that they lost a parent who really did.


Posted on Mar 15 on 2016

You often hear people in the real estate industry say, location is everything when buying real estate. In a divorce, timing is everything. There are three preliminary questions that every lawyer must ask their clients in order to evaluate a client’s real property interests in the marital estate:

1. When was the house acquired? (Before marriage/ during marriage/ after separation)

Any property acquired before marriage or after separation is considered separate property. Anything acquired during marriage is assumed to be community. This is important because it creates an assumption of community or separate property and shifts the burden on the other party to show that they have an interest in the property.

2. What was the source of the funds used to make payments?

Even though you acquired the house before marriage, if payments were made toward the principal amount of the mortgage during the marriage, the community has an interest in the property (both in the amount contributed and the appreciation during marriage) and must be reimbursed accordingly.  If the property was purchased during the marriage with separate property funds then it is assumed to be community, and the party claiming a separate property interest will need to be able to trace the source of the funds back to their separate property. The two key cases regarding community and separate property interests in real property are explained by In re Marriage of Moore (1980), 28 Cal.3d 366, and In re Marriage of Marsden (1982) 130 Cal.App.3d 426, which will be discussed in a later post.

3. Is there something in writing that changes the ownership of the real property?

If you change title from your name alone, to both you and your spouse, this may be sufficient to transfer the interest in the property and shifts the assumption created by the date of acquisition. However, when this happens, the value of the property on the date of the transfer will be critical in determining your reimbursement claim for your separate property contribution to the property. On the other hand, if the community transfers title to one spouse, this may be considered a gift from the community to the spouse on title, unless there is proof otherwise.

Real property owners need to be meticulous in determining what how their property was acquired, what funds were used to make payments, and any changes to the property. An experienced family law attorney will be able to help you understand what documents are needed in order to evaluate your interests and help you navigate these concepts to reach your best case scenario.

-Myle Nguyen