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Posted on Aug 12 on 2014

Divorces don’t usually just pop up unexpectedly.  That’s not to say that there are not situations where someone is overtaken by emotion and just decides to call it “quits”, that does happen.  But more often than not, the divorce process is something that starts, at least in the mind of one of the parties, long before anyone decides to move out of the house or to file papers.  Psychologists talk about “leavers” and “leavees”.  Often times the person left in the marriage is surprised, as the other party hasn’t shared their level  of dissatisfaction, or that they have been thinking of breaking up the marriage for some time.

Often times the person who is “leaving” thinks about the emotional implications of what they are doing, but not necessarily about the practical ones.  More often they are working through the ability to separate emotionally and physically, or focusing on what life will be like once the separation has occurred; “will our kids be okay”,” what will it be like to date?”,” can I be happier on my own?”.  These thoughts can be overwhelming and they cause us not to pay attention to some other things we should be thinking about.

While we always hope that people can work things out when they separate, so as to do it as amicably as possible, oftentimes that does not happen.  When it does not happen, a judge gets involved.  He or she may be called upon to decide upon arrangements that will affect many things including who pays what, who has control over assets, what schedule the children will follow.

What the person thinking about divorce does not realize is that many of these decisions  end up being made based upon what was being done prior to the separation.  So, for example, if the parties were living a lavish lifestyle, once they separate the court is going to consider that lifestyle in fashioning a spousal, and in some instances, child support order.  If someone owns a business, and in the latter part of the marriage she was having the business pay lots of personal expenses, it is going to be difficult for the spouse operating that business to argue that suddenly the business policies have changed and the money will no longer be available in that way.  And, when it comes to arrangements for children, courts often want to know what the parties were doing before they split up.  If both parents were equally involved in the day-to-day caretaking of the children, is much more likely they will have an equally shared custody schedule

If you are the “leaver”, you are at an advantage in this situation which is something that oftentimes people do not see.  If the “leaver” is concerned with what the custody arrangements will be after separation, it would be best to address that before separation. If you want more time with your kids once you split up, you need to spend more time with them before you separate.  If you are concerned that too much money is going to flow out after separation, then you need to address that far ahead of the actual split by curtailing expenses, or addressing how the business pays for things well before the split.

While the concept of planning what happens upon a separation may seem cruel or too calculating to some, its’ a fact of life that those who plan ahead for their long term goals are usually more likely to succeed at them than those who do not.  Divorcing, to some extent, involves business-like  decision-making  at least when it comes to finances.   Most people do not think of it this way and they do not think things like this through.  The point being made here is that to prevail regarding  issues which cannot be settled outside of court, you need to be aware that planning, and implementing a strategy far ahead of separation often results in dramatically different outcomes then if no planning ahead of divorce is undertaken.

CATEGORIZED IN:News

Posted on Aug 12 on 2014

When people learn that I am a family law attorney, the follow-up question is always in reference to the emotions involved and whether I feel more like a therapist than a lawyer.  Very often, clients in the divorce process do come to their lawyer expecting a therapist as well.

My role as an attorney is to be an advocate and legal advisor to the client, which can often mean giving blunt advice that may be difficult to hear.  Although there is a strict line between attorney and therapist/friend/life coach, to be an effective attorney it is still essential to be aware of my client’s concerns, anxieties and priorities. Every client is different and communicating with them about their particular needs and expectations is the only way to have a successful attorney-client relationship.  This can mean telling a client that her shoe collection is not worth fighting over, or explaining that the family residence must be sold, even when there is an emotional attachment.

The key, for both clients and their attorneys, is to remember that your lawyer is not your therapist and not always your friend. In fact, a lawyer should not be assuming those roles for their client; it would be a disservice to them.  The effects of a divorce can be incredibly pervasive – socially, emotionally, and financially and the lawyer needs to be there to hold the course and be the voice of reason when emotions are staring to take their toll.  The heartbreaking affair, for example, although incredibly relevant to my client, is not something a judge will be likely to consider in court.  This is just one example of when, as a lawyer, I must explain to my client that certain issues are better left outside of the courtroom.

I have learned that although I am not a therapist, my role is to make sure that when it comes to the legal aspects of the dissolution I keep the client on track and focused. My responsibility is to give the client the non-emotional point of view, while at the same time recognizing the emotional impact it will have on him/her.

So my response to all the questions as to whether I ever feel like a therapist is yes, I do feel like one, but I know my place is to take care of the legal issues involved and make sure that my client has someone to take care of the emotional issues.

– Sarah Rosenblatt

CATEGORIZED IN:News

Posted on Jul 15 on 2014

We often hear people jokingly refer to the fact that someone in a divorce is supposed to “enjoy the standard of living to which they have become accustomed” after a divorce. Case law in California does support the proposition that what we lawyers refer to as the “Marital Standard of Living” is a factor that courts are to consider when making an order for spousal support.

The law essentially provides that if there are enough earnings generated by one spouse to allow the spouses to enjoy that standard of living after divorce, a court is to consider that. As you can imagine, in many cases there are not enough funds to support two households at the same economic level that they had before the marriage. In those cases, the parties and their children will not be able to live at the same standard they had before.

In either situation, the standard of living remains an important factor to be determined either by the court or as part of a settlement agreement. Often times it is overlooked. In fact, in just this past month two clients who had other counsel in their divorces approached me about modifying their spousal support obligations. In both situations, their judgment did not address the standard of living. When asked why, they both responded that their lawyers told them “it didn’t make any difference, I’m on the hook for life anyway”. In those situations, what their lawyers missed, and what lawyers often do unfortunately miss, is the importance of attributing an amount to the standard of living for the purposes of putting a cap on what the supported spouse might receive, and for the additional purpose of laying the groundwork for a support reduction at some point in the future.

It is not uncommon that after a divorce, the income level of the spouse who is paying support may rise or fall. If it rises, it is important that the standard of living cost be identified, and that it be broken down into components attributable to each of the parties. The reason for this is that the standard of living is usually considered by the court to be the limit on the amount of support that should be provided. So, in the case of someone paying support who starts to earn more income after divorce, the standard of living can be used to prevent an increase in support being paid to the other spouse, who contends that he or she does not have sufficient funds on which to live.

And, in the situation where the paying spouse wishes to reduce the amount being paid, the standard of living also becomes relevant. Without a clear definition in the judgment, it leaves open the argument by the spouse receiving support that his or her needs were never met, and that therefore, there is no basis for reduction.

It is often hard to determine the standard of living years after divorce when the modification issue arises. It is also costly to then have to reconstruct the records, and perform the analysis. The issues can be raised in a proceeding to modify support—but the better practice is to insure that the issue is appropriately addressed before the case is settled or goes to trial – especially for the spouse who is ordered to make the payments and wants to keep the door open to reduce or terminate them.

CATEGORIZED IN:News

Posted on Jul 15 on 2014

A couple becomes married by common law when there is no official ceremony, no marriage license and the couple never fulfills the state’s statutory marriage laws, but the two people consider themselves to be married and fit other specific conditions. Common law marriage, however, does not exist in California. There are an abundance of myths surrounding common law marriages; I will try to tackle a few:

Every state recognizes common law marriage.

Not true. Most states, including California, do not recognize common law marriage. The states that do recognize common law marriage are: Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Utah and Texas and the District of Columbia. Utah only recognizes common law marriages if the marriage has been validated by a court order. New Hampshire only recognizes common law marriage for the purposes of probate.

If you live together for a certain number of years you are considered married.

Not true. It does not matter how long you live together, 7, 10 or 20 years, etc., unless you meet other very specific conditions. Even then, you will only be considered married by common law if you reside in one of the states referenced above and meet the statutory requirements of that state.

California will not recognize a common law marriage.

Yes and no, it depends on where you were “married”. If you have lived as a married couple, by common law, in state that recognizes common law marriages and then you move to California, pursuant to Family Code Section 308 “marriages contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state.”

If the couple was never married, a California court will not order support or property division.

When a couple splits, after having lived together for an extended period of time there might be a right to support and a right to certain property acquired during the relationship. This is commonly referred to as palimony, as well as a Marvin Claim, after the 1976 California Supreme Court decision Marvin v. Marvin.

The basis of a Marvin Claim is dependent upon an expressed or implied contract. Such a claim is brought as a civil action, unless the claim is brought in addition to a dissolution proceeding. Cohabitation agreements are one way that a couple can create a “non marital agreement” that will essentially cover the issues that might arise if they do end their relationship in the future. This agreement can be a way for a couple to avoid the complicated issues of property ownership, commingling of bank accounts and other issues that may arise. Some individuals might be reluctant to sign an agreement as they believe it is a sign of distrust. To the contrary, this is a good way to discuss all of these topics with your partner and know where each stands on the issues.

– Sarah Rosenblatt

CATEGORIZED IN:News

Posted on Jun 4 on 2014

Chances are you already heard the news in the media, or you have been following this hotly contested parentage case. This case has struck at the heart strings of parents all across the country and asks the question of who is a father? The case, of course, is the parentage dispute between my client, Jason Patric and his former girlfriend, Danielle Schreiber – a matter which has previously been discussed on this blog.

Asserting that Jason was legally barred from obtaining a court decree that he is the father of his son because he provided his semen to a licensed physician for the purpose of inseminating Danielle, who was not his wife, Danielle moved to dismiss Jason’s claim at trial asserting that the law does not allow a man who provides his sperm to a physician for such a purpose to be the child’s legal father. This statute, first implemented in the 1970s was intended to protect a true sperm donor, and married couples who needed donor sperm to have children. It was never contemplated that at some point unmarried people would use modern technology to conceive, in fact, such technology did not then exist. While it is true that the law did traditionally bar true “sperm donors” from becoming parents, the law also provides that a man could become the legal parent of a fatherless child if he held the child out as his own and received the child into his home. In this particular case, the evidence demonstrated that the child born of this procedure knows Jason as his father and that both Jason and Danielle held Jason out as the father. At trial, Jason contended he had the right to demonstrate he was the father, but the trial judge ruled he did not despite the fact that the court had previously given Jason visitation with his son five days per week while the case proceeded to trial.

Knowing that this outcome was legally wrong, we took the matter up on appeal. In a first-of-its kind, published decision issued on May 14, the Court of Appeal upheld our position and reversed the judgment of the trial court. You can read the entire opinion by clicking on this link: http://www.courts.ca.gov/opinions/documents/B248629.PDF

The case has significant implications for unmarried people using fertility treatments to start families. As such it garnered significant media attention. In fact, on the day the opinion was published, ABC News flew Jason and I to New York to appear on Good Morning America to discuss the case the following morning. We also appeared on CNN and Fox News. If you are interested in the videos, they are accessible from this page on the website: http://fsfamilylaw.com/articles.php.

Jason will now have the opportunity to prove in court that he is the legal father of his son. And many other parents who provided genetic material to form a family outside of wedlock will also be able to establish their rights in court.

CATEGORIZED IN:News