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Posted on Nov 12 on 2015

Cindy and Robert are unmarried but live together.  They wanted children for some time but they are unable to conceive.  They go to a fertility clinic recommended by a friend and learn that Cindy is not producing enough eggs for fertilization.  They are told that if Cindy undergoes an egg retrieval procedure and if they use in-vitro fertilization (IVF), they have significantly greater chances of conceiving a child.

Cindy and Robert go ahead with the procedure.  They sign forms giving consent to the various procedures they are undergoing. The doctor treating them tells them that may want to consult a lawyer to ensure that everything is appropriately documented in terms of parentage.  Cindy and Robert are euphoric over the idea that after all of these years they may achieve their dream of becoming parents.  Fertility treatments are expensive and neither of them is then interested in spending even more money with attorneys.  Cindy’s eggs are retrieved, Robert provides his sperm to the fertility clinic and success is achieved.  Cindy becomes pregnant.  During the pregnancy she starts to feel unsettled about her relationship with Robert.  By the time she delivers their daughter, Cindy has decided that she is going to break up with Robert.

When it is time to leave the hospital, Cindy tells Robert she wants to stay with her mother while she adjusts to the new baby.  Robert is surprised by this, but decides to go along with it considering what Cindy has just gone through and not wanting to create stress for the baby.  A few days after arrival at her mother’s house, Cindy tells Robert she is not coming home and she is going to be a single parent.  Robert, devastated by this news, now consults a lawyer.  The lawyer tells him that he legally does not have rights to his child.  He gave his sperm to a physician to inseminate a woman who was not his wife.  The child was never in his home as Cindy took the child directly to her mother’s house and Robert has never had the baby with him at the home that he shared with Cindy.

This hypothetical demonstrates what can happen when parties don’t do what they need to do in terms of appropriately documenting their parentage arrangement before beginning the fertility process. There are significant risks that can result from the failure to agree, in writing and ahead of time, what each party’s rights and responsibilities are with regard to children that are being conceived through fertility by unmarried couples. It does not matter whether the couples are gay or straight, romantically connected or just friends. The failure to properly document the agreement to co-parent children prior to creating them can result in all sorts of problems for unmarried prospective parents.  The Wall Street Journal reports that just over one-fourth of births to women of child-bearing age (15-44) were to cohabiting couples, the highest percentage on record and double that ten years earlier. (WSJ March 15, 2015).  This trend is expected to continue and when examined along with the trend of increasing use of fertility and deferral of child bearing until later in life, more and more people will be exposing themselves to the risk of losing their children unless they take steps to address the issue before creating embryos.  Physicians are practitioners of medicine.  They can perform miracles in the field of reproductive medicine and help to create families in situations that in the past would have been considered hopeless. They are, however, appropriately concerned about the health of their patients and the medical aspects of the procedures being used.  Any unmarried person contemplating the use of these procedures with another unmarried person must consult a lawyer prior to commencing fertility procedures if they want to protect their rights to, and the rights of, their future children to a parent-child relationship.


Posted on Oct 6 on 2015

Is spousal support really supposed to last forever? Does every order that states support is to be paid “until death, remarriage or further order of court” mean that there will never be a reduction or even a termination in support?  Case law tells us that the answer to that is no.

While it is true that this is an area where the court has fairly wide discretion, a number of appellate court cases stand for a rather vague, but still applicable, legal principle: “enough is enough.”  Simply put, at a certain point in time, the paying spouse may obtain an order to reduce or stop paying simply because a balancing of the equities finds that payment has gone on long enough.

These cases do not cite to some hard and fast rule, other than there needs to be a showing of “changed circumstances” since the time of the original support order.  By the same token, these cases seem to hold that the passage of time alone can be a “changed circumstance.”  Even in cases where a marriage has gone beyond the ten-year mark, a termination of spousal support has been affirmed. The cases that stand for the proposition that support can be modified have varying fact patterns.  A supported spouse may not have heeded the standard warning that has appeared in divorce judgments for more than twenty years to take steps to become self-supporting; the supported spouse may have taken on work, but what the supported spouse did was not work sufficient to make a real attempt at becoming self-supporting; a supported spouse may not have managed what he or she received at the time of the divorce prudently, thereby creating an ongoing need for support that would otherwise not be present; or enough time has passed that it is no longer equitable to require the paying spouse to continue paying.

These cases run the gamut from situations where the supported spouse is healthy but not taking steps to become self-supporting, to allowing a modification of support even for a spouse who may have mental and physical health problems that might have affected his or her ability to work.

People who are the recipients of long term orders to pay support may want to review the circumstances that have occurred since the order was made to determine if there is a basis to obtain a reduction or an end date. The phrase “death, remarriage, or further order of court” means just that. There may be the possibility of that further order that leads to relief from what otherwise would appear to be a lifetime support obligation.


Posted on Sep 8 on 2015

When we buy a house, the deed is recorded with the County Recorder. There is a public record of who the owner of the property is.  If someone is injured on the property, it is relatively easy to find out who the responsible party is.  If a judgment is obtained against someone, the judgment is part of a public court record. To put others on notice that the judgment exists, and to create a lien against an asset so that the judgment can be enforced, an “Abstract of Judgment” is often recorded with the County Recorder. This document acts as a lien and puts other creditors on notice that the judgment exists and has priority in payment when the property is sold as against other liens or judgments that may have been created afterward. In addition, potential creditors are made aware of the existence of the judgment just as they are made aware of any existing mortgages.  If a creditor decides to extend credit, that creditor knows that they won’t get paid until after the liens previously recorded are paid off.

Most people, upon completing a prenuptial agreement or a post-nuptial agreement, keep that document private. There are good reasons for doing so, especially since any valid document of this nature has lots of information included in it about assets and liabilities, and most of the time people wish to keep this information private.  These agreements often dictate the responsibility for certain obligations as between the spouses providing that one spouse will “hold the other harmless and indemnify the other” from a liabilities. Take for example, the speculative real estate developer or gambler who wants to be able to pursue their interest, while the other spouse does not want to be responsible for any debts or judgments resulting from those activities.

These provisions, however, do not necessarily keep the “protected spouse” safe.  The problem is that California law presumes that liabilities incurred by someone during marriage are community property and either spouse can be held liable.  A creditor who does not know about a prenuptial agreement can pursue either spouse.  It is then up to the spouse who was not responsible for the debt to pursue the other spouse for indemnification.

The only way to avoid this situation is to record the prenuptial agreement so that a potential creditor is put on notice that the debt is the responsibility of only one spouse.   By making it public record that there is no community property, or that there will be no community debts, it is not reasonable for a creditor to rely on community property rules.   Anyone contemplating a prenuptial or postnuptial agreement should discuss this issue with counsel.


Posted on Aug 11 on 2015

When one thinks of domestic violence, one often think of the “battered wife,” the woman who never knows what is going to happen when her husband or partner comes home, the one who lives in fear and yet cannot find a way to get out. And while there are, unfortunately, thousands of these kinds of victims of domestic violence each year, the law holds that even those who are not actually being physically abused can be victims of domestic violence.

Domestic violence under California law is not limited to actual physical abuse. The California Family Code states that “abuse is not limited to the actual infliction of physical injury or assault.”  In situations where people have been intimate partners, have a child together, or have been married, the law provides that it can take other forms. Making threatening statements, making annoying or harassing phone calls, and making unwanted contact directly or indirectly may all qualify as domestic violence. Conduct that disturbs the peace of the other party, or places them in a situation of feeling apprehensive, can result in a court restraining order.

In family law disputes, people are often not on their best behavior.  Emotions are charged and often one party feels they are being wronged by the other. Oftentimes, people send emails or leave telephonic messages that the other party finds disturbing. The party placing the call or making the contact feels as though they need to “get through” to the other person and get them to “become reasonable” or see their point of view.  When that doesn’t work, people sometimes resort to contacting a friend or acquaintance of the other party and asking them to convey a message. These types of contacts are defined as domestic violence in family court. While they might not have been “violent” in the way we normally think of the word, they can give rise to a restraining order. Once that occurs, there are all sorts of often unintended consequences. These include the order being registered with law enforcement, parties being stopped and questioned when returning to an airport from abroad, and, most significantly, restrictions on custody arrangements that may be ordered by the court, even when the conduct was not directed toward, nor did it involve, the children of the parties in question.

People need to be educated that domestic violence is far broader than physical violence. People involved in contentious family law proceedings need to proceed cautiously and keep their emotions in check. Those that do not think before acting can find themselves saddled with significant long-term consequences as a result of restraining orders which can last for five years and are subject to renewal at the request of the protected party.


Posted on Jul 15 on 2015

There is no doubt that modern medical advances are used today in ways that were never dreamed possible not that long ago.  This is no doubt the case in the area of Assisted Reproductive Technology.  Fertility treatments are becoming commonplace and the business of helping people who could not otherwise have children do so is an industry unto itself.  The Society for Assisted Reproductive Technology reports that in 2012 over 165,000 fertility procedures were performed in the United States alone.  In addition to helping people who only years ago would be considered infertile due to medical conditions conceive, the medical industry is also enabling people to have their own children well beyond their normal biological reproductive years.

However, there is fallout from these procedures that the medical industry seems not to have contemplated, and one which the law has not yet caught up to addressing: what happens when there is a dispute between the parties who used fertility to create a child? What happens to the embryos that are cryogenically preserved when the parties have a dispute as to whether they can be implanted, or the prospective parents separate? In the past few years, these questions seem to be increasingly ending up in our courts.  Just this week, another highly-publicized case involving the question of who has the right to use embryos in a dispute between a divorcing couple  began trial in San Francisco.  Only a few weeks ago, the Illinois Court of Appeal upheld the right of a woman to implant embryos created with a former partner who wished to prevent her from using them. With each of these cases, the potential for new law to be created exists.  Our firm has been at the forefront of this developing law, having obtained a change in the law through litigation allowing unwed fathers who used fertility to treatments to establish parentage based on their relationship with their children and now using that change in the law to represent other fathers who have been involuntarily cut out of their children’s lives.  We are also handling the most watched embryo case in the country.  Stay tuned as we continue to expand our work in this cutting-edge area of the law and report to our readers the ongoing developments that will determine what constitutes a family and who has the right to create a family using these technologies in the future.