Common wisdom would have you believe that infants and toddlers should spend nights with their mothers, but a new study shows that might just be an old wives’ tale. While studies generally show breastfeeding to be beneficial to a child’s long-term health, a new article published in Psychology, Public Policy and Law implies that bonding with both parents is even more important than breastfeeding.
The study shows that frequent overnight visits with Dad is beneficial for the child’s relationship with Dad, but in a twist, is also beneficial for the child’s relationship with Mom. You would think that an infant spending a night away from Mom would be detrimental, but it actually has a positive effect when that night is spent with Dad. So, when considering co-parenting plans for young children, it could be wise to include overnight visitation with both parents, as it will benefit your children in the long run. In particular, this information can provide a useful tool for dads going through a divorce with young children. Since studies are available to show that the benefits of overnight visits for young children outweigh the positive effects of breastfeeding, courts might be more inclined to grant frequent overnight visitation for infants. More importantly, such an order would likely be in the best interests of the children and their relationships with both parents.
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Atlas Fire and Other Natural Disasters can have massive effects on children and family structure10/10/2017 During a natural disaster, the first thing people often think about is how to rebuild their lives from the devastation nature brought to their door. One thing that is often overlooked is the effect that natural disasters can have on families and children. In the aftermath of natural disasters, normal family routines change. Families lose income, homes, and other valuable assets. Parents need to find new jobs, and non-working parents are often forced to return to work. Families move to new cities and children are sometimes sent to live with relatives.
These changes to a family’s daily structure, coupled with the trauma and loss that individuals go through in the wake of a natural disaster, create an environment that can have extreme long-term effects on families. These effects include parental disorganization, increased drug and alcohol consumption, increased conflict or violent behavior between family members, relocation, and decreased physical and emotional availability of parents. This can often lead to divorce and other changes in family structures that would not have been contemplated before the disaster. In order to help best avoid these long-term effects, it is important for parents to work on coping with their stress and improve their communication skills. Some techniques include having family meetings, accepting the opinions and feelings of all family members, making sure everyone feels understood, and learning stress signals. While there are likely more pressing needs to focus on in the immediate aftermath of a natural disaster, it is important to keep in mind the health of your family and do your best to create a sense of “normal” moving forward. For more information about how you can help your family or another family reduce these effects, check out the full PowerPoint presentation by New Mexico State University’s Diana DelCampo, Ph.D.: http://aces.nmsu.edu/ces/families/Families%20and%20Disasters.pdf A dispute between celebrity ex-couple Sofia Vergara and Nick Loeb has turned into quite an interesting legal discussion. The Modern Family star and her ex-fiance created frozen embryos while they were a couple, and contractually agreed to only bring the embryos to full-term if they both consented. Now Vergara has moved on and is married to True Blood star Joe Manganiello, but Loeb wants to implant the embryos into a surrogate and raise them as his own children.
In California, embryos do not have standing, meaning that they are not people who can sue others to enforce their rights. However, in Louisiana, a person can bring a lawsuit on behalf of the embryos themselves, as opposed to claiming property rights over the embryos. In this case, Loeb filed suit on behalf of the embryos in Louisiana, but the court ruled that the embryos lacked standing to sue in Louisiana as they were citizens of California – where they were conceived. This case tackles some complicated, broad questions about who gets to “own” and “control” what is done with embryos. Or even yet – do those embryos have their own rights? And for now, the answer in California at least – is no. In this ever-changing world, technological advances continue to redefine the impact of the legal system on families. Early decisions on issues like this are extremely important, as they will set the standards for years to come. In the age of social media, email, and cell phones, spying on a current or former spouse can be tempting especially in the face of high conflict litigation, such as divorce or custody proceedings. Don’t let it be.
Electronic surveillance, recording telephone conversations, or hacking into a spouse’s email or social media account, for numerous reasons, not the least of which is the potential illegality of the act, is never a good idea. Not only is this often in violation of state and federal law, but it is often fruitless and only increases the tension and hostility in a case. Federal law, along with many state laws, prohibit wiretapping, making it illegal to listen in or record someone’s conversation without his or her prior consent. In California, wiretapping is a criminal offense punishable as either a misdemeanor or felony and may lead to civil monetary damages.[1] Eavesdropping, similar to wiretapping, is also illegal.[2] California also has laws against hacking into emails.[3] Furthermore, electronic surveillance and tracking can also be part of the pattern of control and terror used by perpetrators of domestic violence. Such behavior can lead to domestic violence or stalking charges, or at the very least a restraining order. For example, in a California custody case, In Re Marriage of Nadkarni, an ex-Husband hacked into his ex-Wife’s email in order to gain leverage in a custody dispute.[4] Once he attempted to use the emails in the custody proceeding, the ex-Wife sought and eventually obtained a Domestic Violence Restraining Order. On appeal, the appellate court held that the ex-husband’s actions destroyed the “mental or emotional calm” of his former spouse by accessing, reading, and publicly disclosing her private emails. Is recording conversations ever allowed? Yes. There are times when it may be prudent to record the harassing or threatening calls of an ex- or current spouse or partner. In such a case, a Court can make an order allowing for one or both parties to record the conversation of another. The key is that these are court sanctioned recordings and the recordings may be admitted as evidence in a legal proceeding. Similarly, law enforcement may seek a warrant to authorizing their own electronic monitoring. If you do have suspicions about a spouse or co-parent’s financial activities or parenting practices, speak with a qualified attorney. An attorney can speak to you about legal means of obtaining the same information without losing credibility in court or compromising your case. If you do engage in illegal electronic snooping, you risk criminal and civil charges and losing credibility in Court…and the evidence will be inadmissible. [1] Pen. Code 631(wiretapping); Pen. Code 637.2(authorizing civil damages). [2] Pen. Code 632. [3] Pen. Code 502. [4] In Re: Marriage of Nadkarni (2009) 173 Cal.App.4th 1483. I have seen an increasing number of my clients express concern about the family pets and who will get them. I recently had one case that involved four horses and six purebred dogs. The issue of who would get the animals consumed a large portion of the negotiations (and legal costs) before we reached final settlement. While there have been some strides regarding animal welfare and animal rights (restraining orders now call for protection of the family pets), there has not been much attention placed on the role of family pets in the family structure and how to distribute them when it comes to divorce. The following articles help identify the problem, possible solutions, and the law coming out of the California Court of Appeals by which we can start to craft some creative solutions that address the issue of what happens to the family pet when there is a dissolution.
aldf.org/press-room/press-releases/california-court-of-appeals-says-pets-are-more-than-inanimate-property/ healthypets.mercola.com/sites/healthypets/archive/2013/10/04/pet-custody-during-divorce.aspx www.animallaw.info/intro/custody-pets-divorce The San Francisco Bar Association recently published an article that may have suprised some. While many people have the understanding that the date of separation is the magic date that clearly separates what is characterized as ones community property (property acquired during marriage that is is divided equally with their ex) and what is ones separate property (property acquired after date of separation that is solely theirs) many do not realize that even after-date-of-separation monies may be considered community property under some circumstances.
If a party's earnings after separation are due to, or arise from, efforts during the marriage, than those monies may be characterized as community property. The law essentially is recongnizing that ones efforts during marriage may have an affect of deferred compensation to which the other party is entitled. Although not all of us are Hollywood rising stars like Pablo Schreiber, in the article below, this caveat in the law may still have an affect on those who earn bonuses or stocks, for example. Below is the article by Ariel Sosna and Sarah Van Voorhis: Pablo Schreiber, the newly-recognizable former star of “Orange is the New Black” due to his distinctive mustache that earned him the nickname “Pornstache,” has learned that the timing of his new-found success will also benefit his ex-wife, despite the end of their six year marriage. Currently starring in the new HBO series “The Brink,” Schreiber previously was best known for being the brother of Liev Schreiber and a character actor in shows like “The Wire.” His career took off when he landed the role of sadistic Officer Mendez in “Orange is the New Black,” for which he was nominated for an Emmy Award. Pursuant to their divorce decree, his ex-wife Jessica was granted one-half of his earnings and residuals from that hit show as well as the hit shows “Weeds” and “Law and Order: SVU.” Despite the fact that Schreiber will not be receiving all of the earnings and residuals from these shows until after the parties’ date of separation (at which time earnings are presumed separate property pursuant to Family Code §771), earnings from an artistic work are characterized based on the underlying work itself. If the artistic work is a product of the creator’s efforts during the marriage, the earnings from that work are community property. See Marriage of Worth (1987) 195 CA3d 768. In Worth, one-half of Husband’s copyrights related to trivia books that he wrote during marriage were confirmed to Wife in the divorce. When two years later, Husband sued “Trivial Pursuit” for copyright infringement and obtained a judgment, Wife claimed she was entitled to half. The Court of Appeal agreed, holding that the copyrights were obtained during the marriage and therefore the judgment from the copyright infringement was also community property. Similarly in Marriage of Zaentz (1990) 218 CA3d 154, movie producer Saul Zaentz (producer of “One Flew Over the Cuckoo’s Nest,” “Amadeus” and “The English Patient”), argued that because “Amadeus” was not completed when he and his wife separated, it was not community property. The Court of Appeal held “[w]hether or not the movie was completed and receiving income at the time of separation, the time and artistic energies expended occurred in some appreciable degree during the marriage. Husband devoted the better part of two years during the marriage working only on the production of ‘Amadeus’. Thus, the community would be entitled to at least an equitable portion of the income generated as a result thereof.” Id. at p. 164. Schreiber is obviously a talented actor who will likely have continued success. His ex-wife may have had something to do with his jump to stardom (if not his mustache), and for this, she will benefit. Read More at blog.sfbar.org/2015/09/25/orange-might-be-the-new-green-for-actors-soon-to-be-ex-wife/ © Legal by the Bay Headlines announcing celebrity divorces cover the gossip magazines. And this has been a popular year for divorce in Hollywood – Ben and Jennifer, Blake and Miranda, Gwen and Gavin, and Halle and Olivier, to name just a few. While such news may only be fit for mindless gossip magazines, celebrity divorces surprisingly offer some insight into divorce legal proceedings, even for those without celebrity status. For example, Barry Bonds divorce in 1994 led to a change in law on governing pre-nuptual agreements.
The divorce of Brian Austin Green, of 90210 fame, from Megan Fox brings to light a not uncommon question we grapple with in our cases. Who gets the proceeds from a personal injury award? Green and Fox were in car accident in 2014, while still married. Green now claims that he suffers from vertigo as a result of the accident and is now unable to work. This, in part, accounts for the couple’s large disparity in income, prompting Green’s request for temporary spousal support. The question arises, if Green is awarded a personal injury award as a result of the accident, who retains the proceeds? Typically, under Family Code section 2603(b), the Party who suffered the injury retains the proceeds. However, in the interest of justice, the Court may award the non-injured Party up to one-half of the award. What merits “in the interest of justice” is decided on a case by case basis. To discuss the details of your case, speak with a qualified family law attorney at the Law offices of Maria E. Crabtree. For the full article by Ms. Sosna and Ms. Van Voohries, see http://blog.sfbar.org/2015/11/06/divorce-is-the-peach-pits-for-former-beverly-hills-90210-actor/ The Bar Association of San Francisco recently published a very interesting article which nicely sums up summary dissolution, including how to qualify and what the process entails:
Michael Welch is probably best known for his role as the high school student with a crush on lead character, Bella, in the “Twilight” series franchise. Recently, Welch made news for choosing Valentine’s Day as the day to file for divorce. However, the divorce is interesting for another reason. TMZ reported that Welch and his wife, Marissa Lefton, “jointly filed” for divorce. A joint filing means that Welch and Lefton made use of the summary dissolution option in California. This option allows couples without children, married for a short time, with few assets and few debts to simplify the divorce process. Welch’s filing will probably be the only celebrity summary dissolution this column will ever get to present because few celebrities will qualify to use the process. The requirements for a summary dissolution are laid out right on the Judicial Council forms making the process that much simpler to do without an attorney. In order to qualify for a summary dissolution, the parties must have been married for less than five years with no children of the marriage; neither person may own any real property; neither the community property nor separate property worth cannot exceed $38,000; and the total community debt cannot be more than $6,000. Vehicles are excluded from these calculations. Finally, both parties must be willing to waive their rights to spousal support. If the parties meet the requirements for a summary dissolution, they must jointly complete and submit the petition and judgment forms all at the same time. The court holds on to the judgment forms for the requisite six month waiting period and then returns the filed, signed forms and the parties are divorced. There is a catch. During the six month waiting period, either party just has to file one form requesting to end the summary dissolution process and the process ends putting the parties back at square one. Welch and Lefton married in 2008 and claim they separated in 2011, for a total length of marriage of around three years. They have no children. According to TMZ, they marked the box indicating that they have no community property (which is difficult to imagine given a three year marriage and three “Twilight” movies during that time). Since the two have submitted their forms, all they have to do is wait out the six months and hope that neither one changes his or her mind during the interim. While summary dissolution is rare, it can be a great option for couples who fall within the guidelines laid out on Judicial Council Form FL-800. For those who do not, I recommend divorcing couples contact a divorce attorney to assess how they may be able to assist in making the dissolution process as amicable and quick as possible. There are several options available to those who do not qualify for summary dissolution, including mediating agreements or proceeding by default with written agreement. For the full article by Ms. Sosna and Ms. Van Voohries, see: http://www.sfbar.org/basf-bulletin/2013/april2013/family-law-corner-apr2013.aspx What is the date of separation?
It is common for parties to the dissolution to proffer different dates of separation, depending on the facts of their specific matter. The Court stated in In Re Marriage Hardin, 38 Cal.App.4th 448 (1995), “The question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final. The best evidence of this is their words and actions.” The Court in saying, in essence, that the parties need to have a subjective understanding that their marriage is over, manifested by outward actions. These actions can include living in two separate residences (In Re Marriage of Norviel, 102 Cal.App.4th 1152 (2002)), or not applying for joint credit (In re Marriage of von der Nuell, 23 Cal.App.4th 730 (1994)). Why does the date of separation matter? In dissolution proceedings, the date of separation can be a hotly contested issue, as seen through the very public divorce of Nicole Kidman and Tom Cruise, who battled over the exact date of separation at length. Some may wonder if the date of separation is irrelevant to them, or why it matters. There are two main reasons why the date of separation matters in dissolution: community property and spousal support. Community Property: Property acquired before the date of separation is considered community property, and property acquired after the date of separation is considered separate property. Community property is defined in the California Family Code section 770 as “all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property." Separate property, on the other hand, is defined as “[t]he earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse." Applying California law to a marriage situation, it is easy to see that while the parties are married, all the property acquired by the married person (with some exceptions stated elsewhere in the code) is community property and that the community property rights stop accruing once the parties have separated. Community property is considered owned equally by both parties and it is generally divided 50/50 in a divorce, while separate property is awarded 100% to the party who owns/earns it. Spousal Support: Under Family Code §4336, “the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage…where the marriage is of long duration” and a marriage of long duration is defined as “a marriage of 10 years or more.” In contrast, for a marriage of less than ten years duration, Family Code §4320(l) states that support “generally shall be one-half the length of the marriage.” The distinction between marriages of short or long duration provides incentive for divorcing couples to pay close attention to the exact length of marriage if it is near the ten year mark. It is important to remember, however, that the Court will take factors other than the length of marriage into account when awarding spousal support, including ability to work, age, and the general ability of the spouse to support his or her self. See In re Marriage of Ackerman (2006) 146 Cal.App.4th 191. The Los Angeles Times reported in November 1999 about the perils of not truthfully disclosing financial information in dissolution proceedings. The article highlights the story of a woman who hid her lottery winnings from her husband and got away with it until a misdirected letter gave her secret away. The article states:
‘ During his 25 years of marriage, Thomas Rossi never saw a marriage counselor, never strayed and never doubted a relationship so close that he shared an electric toothbrush with his wife, he said. Then Denise Rossi shocked him by demanding a divorce. And she wanted it in a hurry. Now he knows why: On Dec. 28, 1996--just 11 days before she filed for divorce--Denise Rossi won $1.3 million in the California Lottery. She told no one in her divorce case, and Monday her secret caught up with her. A Los Angeles family court judge ruled that she had violated state asset disclosure laws and awarded her lottery winnings to her ex-husband. Every penny. Superior Court Judge Richard Denner determined that she acted out of fraud or malice. He based his decision on a deposition in which Denise Rossi admitted that she concealed her winnings because she didn't want her ex-husband "getting his hands on" them. "Moral of story: It pays to be honest from the beginning," said Marc Lerner, attorney for the 65-year-old jilted husband. Lerner said tears rolled from his client's eyes when Denner announced his ruling in court. For her part, Denise Rossi, 49, said she was stunned and is contemplating her next legal move. "Yes, there will be an appeal," said her attorney, Connolly K. Oyler of Santa Monica. He called the judge's ruling "very punitive." But Thomas Rossi's lawyers say they are hearing it described another way: karma. "Maybe people will think twice about hiding assets during a dissolution," said Lerner, of Brentwood. Thomas Rossi could not be reached for comment Tuesday, but he weaves a compelling tale in his court papers. Before their divorce--and the fateful Lotto windfall--the Rossis were "a couple of homebodies" from the Westside who did everything together, he said. "We shared the same bathroom, and we even shared the same electric toothbrush," he said in court papers. Denise, however, tells a different story in her filings and an interview Tuesday. She said she had been unhappy for many years and was looking for a way out. He was always broke, and she was always working, she said. Her chance came when she and five co-workers in a now-defunct clothing design firm pooled resources to play the lottery and hit the jackpot, sharing $6.6 million, she said. "I'd wanted to get out of this relationship for years," she said in a telephone interview. She credits luck for her lottery windfall and blames her ignorance of the law for her failure to disclose the winnings. She had her husband served with divorce papers at the little West Hollywood shop where he developed film and shot portraits of aspiring actors. His business folded, and he declared bankruptcy in 1998. He went to work part time at a chain photo store. Then fate struck. More than two years after the divorce, a misdirected piece of mail landed in Thomas Rossi's mailbox. It was a solicitation addressed to his ex-wife from a company that pays lump sums for lottery winnings and big legal awards. The May 7 letter from Statewide Funding said, in part, that the company had "helped hundreds of lottery winners like you around the country receive a lump sum payment for the present value of their future annual lottery payments." What lottery payments? "I think he scratched his head for a while, saying: 'What? This can't be,' " attorney Lerner said. The California State Lottery Commission confirmed in July that Rossi's ex-wife had won $1,336,000--payable in 20 annual installments of $66,800. Thomas Rossi learned that Denise went so far as to have the lottery checks sent to her mother's address in Pleasant Hill in Northern California. He obtained a court injunction a few days later. He said his shaky finances in the aftermath of the divorce made his former wife's secret "even more despicable." Had she disclosed the winnings, he would have received half under California's community property laws. Fighting to hold on to her winnings, Denise Rossi told the court that the lottery ticket had been a gift from a co-worker. The judge didn't buy it. Oyler, her attorney, said he might have had a chance during the divorce to help her keep the winnings--if she had only told him about them at the time. "I could have argued successfully that it was her separate property," he said. "Or we could have argued and we would have reached some adjustment. But the judge got mad and gave it all to him." ‘ This particular tale is over a decade old, but its lesson still rings true today. California Family Code Section 2100(c) provides, in part, that parties to dissolution must provide “full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest … regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties.” If parties do not disclose their assets, and their dishonesty is uncovered, judges may award the entire asset or winnings to the innocent spouse. This form of punishment is not reserved for litigated dissolutions, and may be exercised in legal separations and even in mediation cases. In the case of the Rossi’s, Denise’s desire to keep her winnings led to a jackpot for her ex-husband and a vivid lesson to other divorcing couples to disclose their assets truthfully and thoroughly to avoid harsh punishment from the courts. As attorney Marc Lerner stated, it pays to be honest from the beginning. |
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