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Posted on Jun 4 on 2014

Often, couples that separate prior to their wedding do not argue about the engagement ring because at that point there might be an entire wedding to cancel. Once the dust settles, though, the issue of what happens to the engagement ring is not ignored.

At the most basic level, an engagement ring is in fact a gift. Usually, one party purchases the ring and gives it to another party, at no cost to the recipient. However, engagement rings are not your typical gift; there is often a condition attached – the anticipation of marriage.

If an engagement is called off, it is quite possible that the receiver of the ring will not want to keep it due to emotions, and in that case, there is no issue. Nevertheless, disputes regarding the ring occur often enough that the California legislature adopted a statute to address it.

California Civil Code § 1590 states:

“Where either party to a contemplated marriage in this State makes a gift of money or property to the other on the basis or assumption that the marriage will take place, in the event that the donee refuses to enter into the marriage as contemplated or that it is given up by mutual consent, the donor may recover such gift or such part of its value as may, under all of the circumstances of the case, be found by a court or jury to be just.”

In other words, California courts will consider fault if an engagement is called off. Of course, the facts surrounding the “called off engagement” are not always black and white. As a general rule, if you call off the engagement, you lose the ring. If the facts are unclear as to why the engagement was called off, a court will evaluate and consider both sides’ arguments.

One suggestion, although not very romantic, is to determine what will happen to the ring in writing. No one wants to think about a called off engagement, but it is wise to make these decisions in the unlikely event that it does become an issue. The ring is a symbol of your commitment and investment in the future so don’t be afraid to ask for it back if the future is starting to look different.

– Sarah Rosenblatt

CATEGORIZED IN:News

Posted on May 13 on 2014

I’d like to share an episode I witnessed in court recently. An experienced attorney sat with his client, waiting for his case to be called. When his case came up, the attorney stood up and told the judge, right in front of his client, “I can’t argue this case without my associate attorney. She’s been handling the case, and she’s in another courtroom.”

I cannot believe that this lawyer was not embarrassed by his clear inability to handle his own case. With his client paying $700 – $1,000 an hour to hire a named partner in the firm, is it unreasonable to expect them to learn the basic details of the suit? Not only did this attorney appear to hand the entire case over to his younger associate, he most likely charged an additional $300 – $400 for the associate’s time, as well.

But the judge let it slide, and the client kept his mouth shut, because unfortunately this practice is not uncommon in family law. I’ve seen associates spoon feed facts to their boss throughout an entire trial, and even watched an opposing attorney completely turn his case over to his younger associate before the entire courtroom.

With the media making so much about the financial burden of divorce, is it too much to ask that attorneys at least give their clients what they paid for? When you hire an experienced veteran in any legal field, you’re paying not just for their name, but also for their expertise, insight, and judgment both inside and outside the courtroom.

Associate attorneys are certainly helpful for research and preparation, and I employ them myself to ensure that they can provide the necessary backup to enable me to represent my client to the best of my ability. But I am still responsible for the case and understand that the client hired me, based on my skills and reputation, not the associate. Apparently, not all of my colleagues would agree.

CATEGORIZED IN:News

Posted on May 13 on 2014

Recently, a friend of mine, who is currently looking to purchase a home, wondered whether his house would automatically become community property if he were to marry. I was surprised at the question; however, I realized that this is something that might actually prevent an individual from purchasing property if he or she is not fully informed. There are so many misconceptions and misunderstandings about how the laws work here. I thought a little refresher on the basics of community property can be beneficial to all.

California is a community property state, where the division of assets may become a large part of divorce proceedings due to the complicated nature of characterizing the assets. Community property is defined as all property and debt that is acquired from the date of marriage until the marital cut-off date.

As I told my friend, property that is owned prior to marriage does not automatically convert from separate property to community property. In fact, assets that either spouse brings to the marriage are presumed to be separate property. Additionally, gifts and inheritances acquired during marriage are the separate property of the spouse who acquires them. The complications arise when property that was separate is combined with property acquired during the marriage or property is transferred between the spouses, changing the legal title in which it is held. If a married couple decides to separate, the law also provides that property the individual spouses acquire after separation, but before the divorce is final, is separate property.

There are many different factors that a court will look at when characterizing property at the time of dissolution. The presumption in California is that marital assets that the parties acquire during marriage are considered community property, and are to be divided 50-50 at the time of dissolution.

The community property scheme is the default arrangement; however, this can be overcome or changed. By entering into a prenuptial or postnuptial agreement, spouses can agree not to have community property, or agree that only certain property will be part of the community. Spouses can also agree to transform or convert (in legalese, “transmute”) the community property into separate property. The manner in which they take title to real estate is one way to evidence an agreement that the property is not community property.

Needless to say, the issues of community and separate property may be complicated, and it is always prudent to seek advice when questions arise whether it is prior to marriage, during marriage or pending dissolution.

– Sarah Rosenblatt

CATEGORIZED IN:News

Posted on Apr 22 on 2014

If you’ve turned on the news this month, odds are you’ve heard about Gwyneth Paltrow’s separation from her husband, Chris Martin. They appear to be going about it quite amicably, and for that we should applaud them. However, Ms. Paltrow has taken it a step further by labeling her divorce a “Conscious Uncoupling,” and recruiting a couple of experts — Dr. Habib Sadeghi, a physician specializing in combining Eastern and Western medicine, and Dr. Sherri Sami, a dentist — to discuss this alternative style of divorce.

They concede that divorce can be a messy situation, but posit that our nation’s high divorce rate “might actually be a calling to learn a new way of being in relationships.”

The problem is that the “science” Sadeghi and Sami use as the foundation for their theory is extremely shaky. They go to great lengths to explain that the average human lifespan has “skyrocketed” from 33 in the Paleolithic period, to 76 and 78 for men and women today. They conclude that since our ancestors didn’t live that long, they weren’t in relationships with the same person for 25 to 50 years. Since we’re living two to three lifetimes compared to early humans, maybe society’s expectations of lifelong mating is unrealistic.

The problem is their theory is based on a convenient misunderstanding of the facts. These oft-quoted statistics are heavily skewed by childhood deaths and infant mortality rates. When a great deal of children die in their first few years, the “average age” at which people die is brought down significantly.

Sorry, doctors, but our turn-of-the-century ancestors weren’t dropping dead en-masse in their mid forties. In fact, the maximum human lifespan for those that make it to adulthood has remained more or less constant for thousands of years.

While the foundation of the theory is misguided, the conclusion they draw is downright disturbing. They state that, “The idea of being married to one person for life is too much pressure for anyone. In fact, it would be interesting to see how much easier couples might commit to each other by thinking of their relationship in terms of daily renewal instead of a lifetime investment.”

I’m worried that the theories presented here may give the reader a license to interpret the smallest irritation as a sign to “uncouple.” Irritations are a realistic part of every relationship, not a side effect of mankind’s difficulty with lifelong bonds in the face of our increasing lifespan. Part of entering into a partnership is agreeing to work through those challenges.

I’m no expert in the evolution of human relationships, but I know a thing or two about divorce. At its worst, divorce is an ugly, difficult affair with lasting emotional and financial ramifications. I’m happy for Ms. Paltrow and Mr. Martin, as well as any couple that can agree to end a marriage partnership in an agreeable way. I only wish they would think a little harder about their responsibility as public figures before releasing potentially damaging relationship advice.

CATEGORIZED IN:News

Posted on Apr 22 on 2014

Many states including California have determined that texting while driving is not safe. It could be argued that these same rules should apply while you are going through any legal proceedings, especially in family court.

In today’s world, everyone is texting and emailing. Immediate responses to emails and text messages have become the norm and when you do not respond right away, there is likely a follow-up message asking for you to answer the initial text or email. All of this instant communication has many positives and has made our lives easier in many ways. However, there are certain drawbacks and in the context of a divorce or custody dispute it might be a good idea to take a step back from always clicking on reply without any delay.

Computer stored documents, social network communications, emails and text messages are all being used, at an increasing rate, as forms of electronic evidence (e-evidence.) These forms of communications have revolutionized how we engage with others, but it is also altering the types of evidence available to be presented in court.

As long as the evidence can be authenticated and is relevant, it should be admissible. All of those seemingly frivolous text messages, emails and Twitter or Facebook posts can all of a sudden become evidence in a legal proceeding. Because all of this information has the possibility of being presented in court, it is critical that during the course of a legal proceeding, and really at all times, you are thoughtful about what you are sending. Just because you have deleted that last text message you sent, does not mean that the person receiving it did not save it. In fact, with the memory of cell phones today and the multiple applications and programs available, it is easy to retrieve years of text messages and emails sent and received.

We divorce attorneys have seen a rise in the number of cases using evidence from smartphones. The most common form of evidence consists of text messages, then emails, phone numbers, call histories, GPS and Internet search histories.

A couple of questions to ask yourself before you hit send:

1. Am I okay with a judge reading this?
2. Am I okay with my children reading this?
3. Am I writing this out of anger and frustration or does it serve a legitimate purpose?

– Sarah Rosenblatt

CATEGORIZED IN:News