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Posted on May 8 on 2017

Perhaps the concept has lost its luster, perhaps the legal system has made it too complicated, but it is clear that for many reasons, people in relationships are not getting married at the same rates as they used to.

For quite some time now there has been an ongoing trend of younger and middle-aged people, those who have never been married, entering into long-term relationships, starting families, buying homes and doing all the things that married people would typically do, except they have no intention of ever getting married.   Now it seems, that same trend has spread to the older generation.  While there is no doubt that in the past five years the number of “grey divorces” has increased dramatically, so have the number of cohabitation arrangements between people in this same age category.  Just this week, in fact, the New York Times reported that “The number of people over 50 who cohabit with an unmarried partner jumped 75 percent from 2007 to 2016 … – the highest increase in any age group.” (“More Older Couples Are Shacking Up”, May 8, 2017 – found at https://www.nytimes.com/2017/05/08/health/older-americans-unmarried-couples.html).   The main reason people decide not to get married, is that they don’t think they need to. Oftentimes they have had children, they have their own estates, and they believe that marriage causes an unnecessary entanglement.  In some instances they could be right. The real question is whether cohabitating creates any legal responsibility to the person you are cohabiting with (or vice-versa).

While in some states cohabiting consistently for a number of years brings with it the obligations of a married spouse (so-called “common law marriage”, California is a state which does not provide such a right. In California, there are no legal obligations to an unmarried cohabitant – with one exception: “palimony”.  And Palimony is a cause of action in numerous states besides California.

“Palimony” is the colloquial name given to describe the situation that arose in the case of the late actor Lee Marvin, who was sued by his cohabitant Michelle Triola in the late 1970s, claiming that they had an agreement to share in what was accumulated during the course of their long-term cohabitation relationship, and that she had given up other pursuits to be in this cohabitation relationship.  The case stands for the proposition that where a party can prove the existence of an oral contract along the terms alleged by Ms. Triola, there is liability to the other party to the contract.  

While it is true that proving such a contract may be difficult, the question is whether someone in a cohabitation relationship wants to risk the unpleasantness of a lawsuit, even an unsuccessful one, if things don’t work out.  Cohabitation agreements – a written document describing each person’s rights and obligations to the other, or confirming that there are no such rights and obligations, can be a useful tool not only to protect against such lawsuits, but also in clarifying what each person’s financial responsibilities in the relationship are. While these agreements may not be for everyone, from a lawyer’s perspective where affairs of the heart are involved, certainty is always better than uncertainty. There is the age old adage that with grey hair comes wisdom.  Using that wisdom to protect oneself should be one of the benefits of older age.

CATEGORIZED IN:News

Posted on Apr 12 on 2017

You may recall the highly-publicized case of Jason Patric and his quest to become the legal father of his son Gus, in which we obtained a landmark Court of Appeal decision in 2014 declaring that Jason, and any other man who provided sperm to a physician to inseminate a woman other than his wife, could make a claim of parentage based on his relationship with the child.  That decision, known as Jason P. v. Danielle S. 226 Cal. App. 4th 167 held that a man who would otherwise have been legally defined as a sperm donor and precluded from seeking parentage, should be treated in law as any other man who might hold a child out as his own, and receive the child into his home.  The court held that if a man met those requirements and had a “familial relationship” with the child, he could establish parentage.  

The Court of Appeal reversed the trial court that had barred Jason from seeking parentage of his son, and the matter was sent back to the trial court for a trial on whether Jason could meet the legal requirements.  We prevailed on behalf of Jason in the trial court and he was declared to be the legal father of Gus.  Unfortunately, however, that did not put an end to his multi-years long legal battle.  Gus’ mother appealed the trial court’s ruling on both parentage and custody.  Fortunately for Jason, and for Gus, last month the Second District Court of Appeal issued yet another published decision upholding the trial court’s finding that Jason is his son’s legal father.  In Jason P. v. Danielle S. (Jason P. II), 9 Cal. App. 5th 1000, the Court of Appeal rejected mother’s multiple arguments as to why Jason should not be permitted to maintain legal fatherhood. This included the assertion that the trial court determined parentage based on Jason’s biological connection to Gus, a claim that there was insufficient evidence of Jason having received Gus into his home because he did so in his New York apartment and not his Santa Monica residence, that Jason did not hold Gus out as his son in a sufficient basis, and that his initial rejection of a parental relationship prevented him from seeking parentage later as it unduly infringed on Danielle’s right to be a single parent.  Each of these arguments was rejected by the Court of Appeal, as was Danielle’s argument that the trial court improperly considered Danielle’s conduct encouraging the relationship between Jason and Gus.  

Hopefully, with the Court of Appeal decision, the ongoing litigation over Jason’s parental status will now draw to a close.  While the time has not yet run for Danielle to petition the California Supreme Court to reverse the decision, we certainly hope that she will finally allow this matter to come to a close and that the parties can finally jointly parent their child.  Congratulations again to Jason for his tenacity and standing up for his right to parent his son.  

CATEGORIZED IN:News

Posted on Mar 14 on 2017

Divorces are hard, and among the challenges are having honest conversations about potentially contentious topics. As court proceedings often take many months, issues that were not considered at the onset may arise and cause discomfort, at best, and, at worst, ugly clashes. Some hot button topics can include finances, relationships with mutual friends and associates, and dating other people. If children are involved, that can be grounds for a myriad of other possible conflicts. Having these discussions early on can not only avoid having heat of the moment conversations when conflicts do surface, but can make future talks that much easier and more cordial.

Take, for example, dating other people after filing for divorce. It is possible that while one party thinks one is free to do so once the two have filed for divorce the other believes that one should wait until the divorce is finalized to do so. There may not be a correct answer but it would behoove both parties to discuss matters which might be affected by this decision: should children and other family members meet new romantic interests? How soon? What about overnights? Few would enjoy having such awkward conversations, and it may seem unnecessary and even callous to some, but most would likely benefit from having them early on, and revisiting them from time to time, to safeguard against potential misunderstandings based on unspoken expectations.

Deciding on a platform to communicate during the separation and continuing after the divorce is important. Face-to-face conversations are not always possible and sometimes not desirable. Phone, text, and email conversations each have benefits and downfalls – telephonic conversations are usually not archived, while it’s possible to misread tone in written communication.

In this day of technology, many tools have been developed to help, especially for the challenging task of co-parenting. Some focus on simply sharing calendars to keep track of custody time and visitation or sharing of educational and medical information and expenses. Others are more comprehensive and include features that allow correspondence to be monitored by the court or other outside parties, in addition to authorized guest users. The aim is to help divorced families co-parent with transparency and less friction while keeping records of correspondence if they need to be referenced later. Each party can enter information to share with the other and the tool, whether it is an app or a website, will take care of the notification. Some, like the popular OurFamilyWizard®, even has a ToneMeter™ tool that, as its name suggests, gauges the tone of message and flags emotionally-charged languages, giving the author pause and reducing the chance of sending a message that one might regret later.

All this may seem a bit extreme for two people who have come to agree to end a marriage without much conflict, but anyone who has been through a divorce will say, there will be surprises along the way, and it’s better to expect the unexpected.

CATEGORIZED IN:News

Posted on Feb 14 on 2017

You are going to get married. You have substantial net worth. You have a business that you have built up over the years and it is now doing well. You are excited about your upcoming marriage and you don’t want to do anything that might take the excitement out of the process. Since you already own the business and you already have accumulated your worth, there seems to be nothing to worry about. After all, community property, as you understand it, encompasses that which you acquire during the course of your marriage. You already have the business and the assets going in, so in the off-chance it does not work out you will be okay financially.

While it is true that in California assets that are acquired prior to marriage, or that are acquired through a gift or inheritance are separate property – they don’t always remain so. If the business you are operating continues to grow through the marriage, the appreciation in the value of that business becomes community property. As a community property state, the law provides that accumulations made through the efforts of a spouse while married are community property. As a result, that growth that your business has experienced becomes community property as well. It does not mean that the entire business becomes community property, but some portion of it is jointly owned by you and your new spouse which means that if things do not work out – your new spouse is going to have his or her share of that business coming to them. This can create significant problems when it comes time to divide up the marital estate. It may be that most of your assets are tied up in that business and it may then become difficult to buy your new spouse out of it.

A similar problem can arise with separate property money. If it is passively invested, then in theory there is no issue-you put no effort into causing it to increase in value after marriage, and provided that you never put it into a jointly-titled account, or transferred it to an account opened after marriage it will be safe. The problem is that in real life things don’t usually work this way. Inevitably, some effort may go into managing it or at some point money will be moved from one account to another. And in the course of a marriage that lasts many years, things may come up that require the use of funds for a joint purpose that came from a separate property source and now require extensive accounting to trace back to that source.

There is one way to avoid these problems. As unpleasant as the discussion may be, by addressing these issues in a premarital agreement one can ensure that what is intended to remain separate does so. In addition, there are benefits to creating such an agreement prior to marriage: it forces the couple to discuss what they are going to do with their finances. It educates both parties about the other’s financial situation. It causes them to reflect upon what it arrangements they need to make to ensure that everyone’s needs and expectations are taken care of. As unpleasant as the subject matter may be, in truth there are reasons to bring the subject up that may make the relationship going more smoothly, and offer the asset protection that either or both spouses are looking for.

CATEGORIZED IN:News

Posted on Dec 11 on 2016

This week’s events in the matter involving the frozen pre-embryos of Nick Loeb and Sofia Vergara (http://fsfamilylaw.com/articles.php) highlight the common problem that arises when people seek out fertility to start a family, especially people who are unmarried.

Despite the success in forcing Loeb to dismiss his case against Vergara, his latest maneuver of causing another lawsuit in another state and alleging that the forms signed in the clinic were deficient, highlights the conundrum people face when they go to the fertility clinic.  No one is thinking of the legal implications that face them when they are considering using IVF procedures.  Whether it is storing material for future use, or intending to immediately start forming a family, most people are more worried about the medical procedures involved, the cost of same, and whether they will be successful than whether they are about to create a situation of legal uncertainty for themselves.  And while the last thing that people want to do in that situation is incur even more time and expense with counsel, one has to remember that doctors are not lawyers, and consent forms can always be modified.

As the age-old adage goes, “the road to hell is paved with good intentions”.  Certainly, wanting to start a family, or preserve one’s fertility for future use is most always well-intentioned.  More than ever it seems people are in relationships that are unconventional and while that is not a bad thing in and of itself, it can often complicate what happens down the road if things don’t work out.  

When you go to the fertility clinic, you deal with medical personnel.  They know what they are doing and they are qualified to help you.  Unlike other areas of medicine, however, this particular area has significant legal consequences that are long-term in nature.  Patients need to appreciate that.  Doctors need to make it clear that patients are aware of this and that they have done what they need to do to ensure that their intentions are carried out.  And while most of the time there is at least fine print on the consent forms saying that the patient was advised of the right to have a lawyer review the forms, in the excitement of getting the process started this fact is often overlooked, or the patient is afraid of rocking the boat or irritating the doctor by wanting to read or modify the forms.  Just as people about to get married often think they are on the same page when it comes to how their relationship will work only to find out differently once the marriage takes place, the same thing happens in the area of family formation.  While it is no doubt less exciting to be dealing with counsel than waiting to hear if you were able to successfully create embryos, or if your IVF transfer took, the best thing you can do before starting these procedures if you are part of an unmarried couple or intending to be a single parent is to have things documented properly at the outset, and the consent forms reviewed and modified if necessary, to save yourself from possible heartache down the line.  

 

CATEGORIZED IN:News