So long, farewell, auf wiedersehen, good night…
Back in early April of 2016, we had an Article in this space, where we asked, “How Many Degrees to a Date of Separation?” It observed the fact that (and up to and including that time), there was really no law in the State of California that actually defined what would constitute a “Date of Separation” in this State. Continue reading Hey, We Finally Got a Date of Separation!
FLASH!! The worm turns again; only this time, it’s a Grandpa Worm!
Have I got your attention? A number of times in this series of articles, it has been mentioned that something can happen in our legal system and Laws, that simply changes everything. It could be something the Legislature passes; or it could be a new interpretation of a prevailing law by a Supreme Court, or one of any number of our Federal and State Appellate Courts. Think of the “Emancipation Proclamation” and the “Civil Rights Act.” How about “Miranda vs. Arizona” or “Roe vs. Wade”. Continue reading There’s More To Grandparents’ Rights Than Meets The Eye
The Date of Separation is something that has to be decided before there can be any Judgment that finally dissolves a Marriage in the State of California.
It’s so important, that if you were to win the Lottery on the day before you separated from your spouse, the winnings would still be the jointly owned Community Property of the both of you; but, if you were to win the Lottery just 5 minutes after you successfully separated, the proceeds would be your Separate Property. Continue reading How Many Degrees To a Date Of Separation?
The Importance Of a “Parenting Plan”
If a Court should encounter a Dissolution of Marriage Petition involving Minor Children, the Law would prefer that the Parties could be willing and
able to fashion and agree upon a “Parenting Plan” that would enable a sharing of the custody and care of the kids, and on an equal and cooperative basis. However, it is often seen that such an arrangement will not be easily achieved, unless the parents would otherwise be willing to work together to an extraordinary degree, in order to facilitate such a committed arrangement. What is ironic, is that if the parents would be willing and able to so easily “get along,” they probably wouldn’t be splitting up in the first place. It is also generally seen, that the chances that a successful Parenting Plan will endure, will be the greatest, as long as the separated couple is living in the same general area, and where the kids have the same social routine and are going to the same schools, and where they can otherwise be exchanged with relative ease.
On the other hand, what if one of the parents wants to move away?
Continue reading This One’s For The Children
Whose Stuff Is It, Anyway?
With a couple of notable exceptions, California Law will presume that any property acquired by either of the spouses in a valid Marriage, during that Marriage, will be owned one half by each of those married persons. That means they will already own it, on a 50/50 basis, and from the time it is acquired. It doesn’t have to wait to be awarded to either of them; it will already equally belong to each of them. Such property is officially known as “Community Property” in California.
Notable exceptions would be items of property that are acquired by either of the spouses by way of gift or inheritance, even during a Marriage. Such property would be and remain the “Separate Property” of the acquiring spouse. On the other hand, property that has been acquired by either of the spouses before the Marriage; or acquired by either of them after the date that either of the spouses might separate out of the marriage from the other, would also be the Separate Property of the acquiring spouse. Even during the Marriage, property that is bought with the Separate Property of either of the spouses, will remain the Separate Property of the acquiring spouse. Generally, all property acquired by either of the spouses by way of the labor of either of them during the Marriage, will always be the Community Property of the Marriage, and therefore owned equally by both of the spouses. Continue reading What You Need To Know About Prenuptial Agreements
The Best Interests Of The Children
In these days, when our courts and legislatures seem to be taking the view that the Dissolution of a Marital Relationship in California should be no
more than “just a business deal,” things will be found to be quite different when it comes to children of a failed relationship. This change of attitude will pertain regardless of whether there has been a valid marriage, an adoption, or whatever other circumstances would find minor children to be under the care, custody and control of persons, who will be separating from each other, after having lived in a relationship with the children.
The difference in attitude can be summarized by the fact that the Law will require the courts to always act first and foremost in the “best interests” of minor children, when making orders regarding their health, safety and welfare. Where the attitudes, when it comes to division of assets and liabilities, will appear at times to be without care or sympathy, that will all change when a court will decide in detail where and with whom a child will be at any given time of the day and night; as well as how and by whom such a child will be kept healthy, monetarily supported and educated. Continue reading King Solomon Said ‘Cut ’em in Half!’ The Court Says Otherwise
Can’t Wait. I have bills to pay and no way to pay them!
A circumstance that would be of particular concern for a Family Law Court, would be one where one party in a domestic relationship simply abandons the other. That circumstance would be of even greater concern, if there would be minor children at home, and under the full time care of the abandoned party of the relationship.
One would also expect, in the light of these circumstances, that the abandoned party (most often the mother of the children), as well as the children in her full time care, would be without sufficient support to maintain their health, safety and welfare. In the light of all of these circumstances, a Court should be expected to be amenable to an immediate and emergency approach, to secure adequate support for food, clothing, shelter, transportation and any medical care that should be needed to meet the needs of the children. Continue reading He Left Without Saying Goodbye! Now What Do I Do?
Working Your Way Around The Red Tape of Probate
Could it be possible to avoid probate altogether, including; all the Probate Court filings and appearances; the fees of Probate Attorneys and Court Appointed Administrators; the costs of property evaluations, court appearances and court orders to sell items of Estate Property? The answer could be “yes;” if there could be a “Living Trust” to take the place of all of those things.
A Living Trust is a particular kind of trust that was only made possible by a relatively recent change in what had previously been almost ancient law. The effect of that change has simply revolutionized estate planning. A Living Trust can be created by and for an individual person; or one can be created for and in order to benefit a married couple.
Imagine that instead of each item of property in one’s estate being publicly forced to pass through the Government’s courts and employees upon the demise of the owner of the property, the entire estate, and all of its property, could be put in a special place, where it could continue to grow and be cared for by the owner, or someone the owner might appoint to take care of the property once the owner would be gone, or simply decide not to personally do it anymore?
If such an arrangement would be correctly described in a written document, where the author would instruct just how his or her property should be handled, that would be a Trust. If done so for use during the lifetime of the author, it would be a Living Trust. If done by a husband and wife, each creating their own separate Living Trust, with each spouse initially assuming the role of first Trustee, but each appointing the other spouse as the first Successor Trustee, the arrangement would be a Marital Trust.
There would be no estate taxes or costs of probate, because there would be no estate to pass; it would all just stay where it began, constantly being cared for by the instructions fo the person who created the trust.
What will you do with your “stuff” once you’re gone?
The law presumes that everyone must stand in their own shoes in order to manage and control their own affairs and property. A fundamental principal of our law is that everything must, at all times, be owned and controlled by some person or entity. Ownership and control must never be allowed to just “hang in the air” without the management and control by some responsible human enterprise. If there would be no individual human enterprise to do it, the government will step in and do it. Now, if everyone is in a position to tend to his or her own garden, then everything will be found to be in that world, and all things will continue to be that way. But, if that dream should be disturbed, something radical must then occur.
Who gets what? A practice that goes back centuries.
We’ve been doing this since Medieval times, at least in the Western part of the world. One should be expected to write down exactly and to whom one would leave their property and other belongings when one would pass on or otherwise become too incapacitated to do it themselves. Of course, such a writing is still commonly known as a “Last Will and Testament.” In those older days, a Will would be for the disposition of real property, and the “Testament” part, to be for other types of belongings; but, that distinction doesn’t seem to be that important anymore. Continue reading Why Even Have An Estate Plan In The First Place?
Parental responsibility may extend way beyond the test tube for donors.
I got a frantic call the other day, from a person who was told by a friend, that he could be liable for child support, if he were to donate his sperm to a childless couple. Now, I get some real interesting questions in my line of work; but that one just sounds strange; because a Kansas Court has just recently ruled, that a guy who answered a solicitation posted on Craigslist, by a lesbian couple, for a sperm donation, so the couple could start a family, has now been ordered to pay child support.
This case was just decided in the Trial Court, so it will probably be appealed for some time; it is just a ruling by one State Court; but it makes sense, if you think about it. The Court ruled that the sperm donor, and even though he had a contract with the couple that his connection and responsibility would end when his sperm was given for an artificial insemination, was nevertheless the actual biological parent of the child, in that the child received 50 percent of its genetic make-up from the donor.
The facts included, that the couple that solicited the donation, had split-up; and when the birth mother sought welfare from the State of Kansas, the State sought reimbursement from the biological parents; and a subsequent investigation revealed the Craigslist donor. It’s ironic, that the other member of the gay relationship, who was not the biological mother, who gave birth to the child, was cut-out of the deal, as not being legally related. She’s also appealing; as well as the donor, who would like to be off-the-hook. The court’s decision would concentrate on the best interest of the child in a case like this, and not those of the the gay couple —- or the donor, for that matter.
What about here in California?
It would be interesting to see what would be California’s attitude to such a set of facts. I’ll have to look into that one; but California has recently decided that a child can have three responsible parents —– but that’s another article.