Archive for February, 2014

California Divorce Blog–Domestic Violence and Child Custody

February 17, 2014

The issue of Domestic Violence often spills over into Divorce or Paternity matters involving child custody.  The reason is because once a Court makes a finding that Domestic Vionence has occurred, there is a reputable presumption that the granting sole or joint custody to the perpetrator of domestic violence is detrimental to the best interest of the child.  See California Family Code Section 3044.  This is a very powerful statute which can be used as a sword or shield depending on what side you are on.  This is all the more reason why anyone involved in a case which includes domestic violence allegations needs to get an attorney in my opinion.  The finding of the existence or absence of domestic violence can significantly change the dynamics of any case.

It is important to remember that the presumption always is rebuttable. In fact, a domestic violence perpetrator may overcome the Family Code Section 3044(a) presumption even if he or she was criminally convicted of domestic violence. [See F.T. v. L.J. (2011) 194 CA4th 1,28, 123 CR3d 120, 141 (rejecting argument that presumption is conclusive in cases involving criminal convictions).

If you are the victim of Domestic Violence and have children with the alleged perpetrator, obtaining an order for a Domestic Violence Restraining Order will give you additional leverage in your child custody litigation.  The presumption is that it is not in the child’s best interest to be with the perpetrator of domestic violence.  I want to caution everyone that this is not a game and domestic violence allegations should only be made when they are truthful and not be used to gain an unfair advantage against an opposing party.

Conversely, if you are the alleged perpetrator, it is crucial that you and your counsel present a zealous defense against the domestic violence allegations.  If the Court grants a Domestic Violence Restraining Order against you, the other party now has a stronger hand for the next round of child custody litigation.

Finally, every Child Custody Order should comply with California Family Code Section 3048 which sets forth the Required Contents for Child Custody Orders.

Attorney Keith F. Simpson is located in Manhattan Beach, California. Please contact Attorney Keith F. Simpson today to discuss your Family Law matter at (310) 297-9090 or http://www.simpsonlaw.net.

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California Divorce Blog–Premarital Agreements

February 14, 2014

I am increasingly requested to meet with clients and prepare Premarital Agreements (also knows as Prenuptual Agreements or ante nuptial agreements, not to be confused with anti nuptial agreements). Premarital Agreements are enforceable in California.  Many people call and ask if I can represent both parties.  The answer is no.  For the Premarital Agreement to be enforceable, both parties must be represented by independent counsel.

California Family Code Section 1610 defines a Premarital Agreement and the term Property for Premarital Agreements.

(a) “Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. (b) “Property” means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.
California Family Code Section 1611 sets forth the requirement that the Premarital Agreement be in writing.  Oral or verbal Premarital Agreements are worthless and therefore unenforceable.
California Family Code Section 1612 sets forth the Subject Matter which may be addressed in Premarital Agreements.  You may contract about the following:
(1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located. (2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property. (3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event. (4) The making of a will, trust, or other arrangement to carry out the provisions of the agreement. (5) The ownership rights in and disposition of the death benefit from a life insurance policy. (6) The choice of law governing the construction of the agreement.
You may not contract about child support but you may contract about spousal support (also known as alimony).
California Family Code Section 1613 establishes that a premarital agreement becomes effective upon marriage.  If you and your fiancé draft a Premarital Agreement and never marry, then the Premarital Agreement will not become effective.
California Family Code Section 1614 sets forth that after marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.
This next section is one of the most important in my opinion.  California Family Code Section 1615 defines what agreements are not enforceable.  The reason you hire two attorneys and spend thousands of dollars is so the agreement will be enforceable. If you do not follow the law, your Premarital Agreement may not be enforceable.
(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:
(A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.
(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:
(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.
(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.
(4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.
(5) Any other factors the court deems relevant.
When parties contest the validity of a Premarital Agreement, the Court will likely look at the facts and Family Code Section 1615.  Was there undue influence?  Did the parties sign the Premarital Agreement voluntarily. Were both parties represented by a lawyer? Did both parties have at least seven days from receipt of the draft Premarital Agreement until signing the agreement?  Did the parties disclose their respective assets and/or debts? Did each party disclose his or her income and expenses?  These are all relevant facts which the Court will need to know to determine whether the Premarital Agreement as signed by the parties is enforceable.
Please contact Attorney Keith F. Simpson today to discuss your Family Law matter at (310) 297-9090.  Attorney Keith F. Simpson is located in Manhattan Beach, California.  http://www.simpsonlaw.net