Who Dunnit: Playing the Blame Game in a Divorce

Posted July 30, 2018 in Family Law by Gina Policastri.

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July 30, 2018
Who Dunnit: Playing the Blame Game in a Divorce
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Obtaining a divorce can be time consuming and expensive, especially when one spouse blames the other for the marriage’s end. Will the court take into consideration who behaved badly or caused the divorce? Although courts in England will be concerned with who is at “fault” before granting a divorce, California courts will not take “fault” into consideration.

In California, a couple may obtain a “no-fault” divorce – neither spouse must prove the other is at fault for the marriage’s breakdown. In the 1800s, however, England only allowed divorces where one spouse could prove the other was at “fault.” This rule remains in effect today, in part.

In England, courts will grant a divorce only if the party seeking the divorce can prove the marriage has irretrievably broken down by establishing one of the five following facts: (a) adultery, (b) unreasonable behavior, (c) desertion, (d) two years of separation with consent, or (e) five years of separation with or without consent. While the last two grounds for divorce do not require one spouse to prove that the other spouse was at fault, proving adultery and “unreasonable behavior” often requires spouses to play the blame game.

On July 25, 2018, the Supreme Court of the United Kingdom ruled Tini Owens, an English wife, must remain married to Hugh Owens, her husband of 40 years after she failed to prove her husband was at fault for the breakdown in their marriage. Tini contemplated divorce in 2012 and moved out of the couple’s home in February 2015. Tini argued her husband engaged in “unreasonable behavior” such that she could not reasonably be expected to continue their marriage. Hugh argued if the marriage had broken down, it must have been because Tini had an affair or was “bored.”

While many progressives and lawyers hoped for the court to grant the divorce, the court refused. One Supreme Court judge stated that Parliament had “decreed” that being in a “wretchedly unhappy marriage” was not a ground for divorce. Thus, the Supreme Court rejected the modern trend toward the “no-fault” divorce system in the United Kingdom and United States.

Fortunately, in California, grounds for divorce range from “irreconcilable differences” to “permanent legal incapacity to make decisions,” formerly known as “incurable insanity.” Moreover, evidence of specific acts of misconduct are not admissible in dissolution or separation proceedings, except for history of domestic abuse in cases involving child custody or restraining orders. If you are contemplating divorce, regardless of who is at “fault,” contact the experienced attorneys at Lonich & Patton for a free half-hour consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship

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GAVRON WARNING – BE SELF-SUPPORTING OR RISK LOSING SPOUSAL SUPPORT

Posted June 29, 2018 in Family Law by Alexis Revelo.

Part of the divorce process will require both parties to divide the assets acquired during the marriage, and one spouse is often required to support the other after divorce. How long will the support order last? Will the court allow the supported spouse to remain supported for the rest of his or her life? In cases where support is ordered, the court will likely issue a “Gavron Warning” to the supported party. This warning may have a significant impact on the spousal support order, and the supported spouse may risk having income imputed to him/her.

A Gavron Warning is a notice issued by the court to a spouse receiving support that he or she is expected to become self-supporting. Typically, a Gavron Warning will be issued at the time the spousal support order is made. Under certain circumstances, including marriages of long duration, the court may decide that a Gavron Warning is not necessary. Unless the supported spouse has been warned by the court, he or she cannot be penalized for not becoming self-supporting. Once the court issues a Gavron Warning, the court expects the supported spouse to make all reasonable efforts to become self-supporting within a reasonable period of time.

Courts will aim to issue Gavron Warnings for a reasonable period of time. A reasonable period of time is generally one-half the length of the marriage, except for marriages of long duration (over 10 years). (Fam. Code, § 4320.) However, the Court has discretion to order support for a greater or lesser length of time, based on other factors and the specific circumstances of the case. Spouses who need further education or training to become employable “will usually need more advance warning than spouses who already possess job skills and only need to find suitable work.” (Marriage of Schmir (2005) 134 Cal.App.4th 43, 48.) If the supported spouse does not make reasonable good faith efforts to become self-supporting, the supported spouse risks having income imputed.

If the court issues a Gavron Warning to the supported spouse, and the supported spouse fails to become self-supporting, the court may treat the supported spouse as if he/she is earning an income within his/her earning capacity, or impute income to the supported spouse. Moreover, the court may use this imputed income to justify a modification or termination of spousal support. For example, if a party receives a warning to become self-supporting, and the party’s earning capacity is $60,000 per year, but the party fails to become self-supporting after receiving a warning, the court will treat the party as if he/she is earning $60,000 and no longer needs the existing amount of spousal support. The court may choose to reduce the spousal support order or terminate it altogether.

If the court issues a Gavron Warning, the court can impute income, and reduce or terminate spousal support if the warned party fails to make reasonable good faith efforts to become self-supporting. Spousal support and divorce are complicated processes, and an attorney can help you navigate through both. If you are seeking help with a Gavron Warning, obtaining spousal support, or divorce, contact one of the experienced attorneys at Lonich & Patton – we offer free half-hour consultations.

Each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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THE EFFECTS OF A LITIGANT’S DEATH DURING A DIVORCE PROCEEDING

Posted June 22, 2018 in Family Law by Michael Lonich.

Life is unpredictable and sometimes one of the parties dies before the final judgment is made in a divorce case. Naturally, the salient question is: “How will property be divided when one spouse dies during the divorce?”

Assuming the death of the spouse was not criminally expedited by the other, the answer to that question hinges on whether the parties obtained a bifurcation of marital status. A party seeking bifurcation of marital status is essentially asking the court to separate or “bifurcate” the issue of marital status from the rest of the other issues such as property division, custody, and spousal/child support. Because a typical divorce can take over a year and a half to finalize, a bifurcation might be desirable when one party wants to terminate their marital status early and be pronounced single again.

The termination of marital status can affect the division of property in two ways. On one hand, if a party dies after their marital status is terminated, then the family court maintains jurisdiction over the property and the decedent’s personal representative continues to represent the estate’s interests.  The community property presumption applies so that property held in joint tenancy will be divided between the surviving spouse and the estate of the deceased spouse. The surviving spouse will have no right of survivorship. In the other scenario, if a party dies before the marital status is dissolved, then the family court loses jurisdiction of the property division and the case is moved to the probate court for further adjudication. Unlike the first scenario, the community property presumption does not apply meaning that property held in joint tenancy will pass, by right of survivorship, to the surviving spouse. (Estate of Mitchell (1999) 76 Cal.App.4th 1378,1386.) These two vast differences illustrate why dissolving marital status and severing joint tenancies can be critical in protecting a litigant’s property interest.

A distinctive feature of joint tenancy, as opposed to other interests in land, is the right of survivorship. This means that when one joint tenant dies, their interests vests automatically to the surviving joint tenant. When a party severs the joint tenancy, the parties will no longer hold title as joint tenants, but rather as tenants in common thereby extinguishing the right of survivorship. This alternative form of property ownership means that each party has a distinct, separate ownership share in the property thus allowing for a party to bequeath (transfer via will) his or her property interest to another person other than the surviving spouse if he or she so chooses. A joint tenant may sever a joint tenancy in real property unilaterally by: (1) executing and delivering a deed to a third person, (2) executing a deed to him or herself, (3) executing a written declaration of severance, or (4) executing any other written instrument evidencing an intent to sever. (Civ. Code, § 683.2, subd. (a); Mitchell, supra, 76 Cal.App.4th at p. 1385.) The simplest of the options is executing a written declaration of severance and recording it. These written instruments must be recorded before the party dies for it to become effective.

Another important consideration to protect one’s property interest in the event of an untimely death is to create a new will. Although the California Family Law Summons contains automatic restraining orders (“ATROS”), the ATROS do not prevent either party from creating a new will. The new will enables a party to decide an alternate inheritance plan excluding a former spouse. It is likewise important to destroy the old will.

If you are seeking information or counsel regarding estate planning or protecting your property during divorce, please contact one of the experienced attorneys at Lonich & Patton – we offer free half-hour consultations. We also offer free simple wills to all our family law clients during the process of their divorce.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

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MENTAL HEALTH AND COMPETENCY ISSUES IN FAMILY LAW

Posted June 18, 2018 in Family Law by Riley Pennington.

The competency of a party in a family law proceeding can significantly affect how a case will be litigated in California.  While California is a no-fault divorce state, meaning that the parties may divorce due to “irreconcilable differences”, the law requires that a person must have the capacity to understand the basic legal and financial consequences of entering into a divorce. Under California Probate Code Section 4609, “capacity” means a person’s ability to understand the nature and consequences of a decision and to make and communicate a decision. In the case of proposed health care, capacity is defined as the ability to understand its significant benefits, risks, and alternatives. To ensure that parties with mental health and competency issues are represented fairly in divorce proceedings, the California legislature gave the judiciary the express authority to appoint a guardian ad litem or a conservator to represent the incompetent person’s best interests.

A guardian ad litem or conservator work alongside the protected person’s attorney and will make a wide range of legal decisions for the person ranging from spousal support, property division, custody, and visitation. California Family Code section 2332 (b), provides in pertinent part, that a guardian ad litem may be appointed “to defend and protect the interest of the spouse who lacks legal capacity to make decisions.”

If the spouse is already protected by a conservator, then the court will presume that a guardian ad litem is necessary and will appoint one without a competency hearing. A guardian ad litem differs from a conservator because a guardian ad litem only serves up until the conclusion of the court proceeding in question. The Latin term “ad litem” means “for the suit.” Thus, a guardian ad litem is a temporary guardian. In contrast, a conservator may persist beyond the final adjudication of a single case.

A conservator is appointed to make the day-to-day financial decisions for the protected party.  A conservatorship is governed by California Probate Code 1801(b) which provides that a conservator shall be appointed by court upon showing that a person is “substantially unable to manage his or her own financial resources or resist fraud or undue influence.” To qualify for a conservatorship, the party must submit a brief statement of facts addressing the following five factors:  (1) The inability of the proposed conservatee to properly provide for his or her needs for physical health, food, clothing, and shelter; (2) The location of the proposed conservatee’s residence and the ability of the proposed conservatee to live in the residence while under conservatorship; (3) alternatives to conservatorship considered by the petitioner or proposed conservator and reasons why those alternatives are not available; (4) health or social services provided to the proposed conservatee during the year preceding the filing of the petition, when the petitioner or proposed conservator has information as to those services; and (5) the inability of the proposed conservatee to substantially manage his or her own financial resources, or to resist fraud or undue influence. (Prob. Code § 1821.)

Competency of a party may also be an issue in proceedings to obtain an annulment. Pursuant to Family Code section 2210(c), a marriage is voidable if either party is of “unsound mind” while entering the marriage. Accordingly, a marriage can later be annulled where there is a showing that at least one of the parties was incompetent.  Just as a third-party may move for a court to order a guardian ad litem or conservator, certain third parties can also bring annulments. Some children for example may choose to bring a nullity action after their parent has died, when the new marriage results in that child being cut off from the inheritance.

If you are seeking information or counsel regarding competency issues during divorce, please contact one of the experienced attorneys at Lonich & Patton – we offer free half-hour consultations. We also offer free wills to all of our family law clients during the process of their divorce.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

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GIFTING REAL ESTATE TO FAMILY MEMBER CARETAKER: RED FLAGS

Posted June 8, 2018 in Estate Planning by Michael Lonich.

Giving gifts to loved ones late in life is a meaningful way to make family and friends feel cherished. Gifts of real estate to family and friends may show appreciation, but a gift of real estate made late in life to a family member or caretaker can raise several red flags. Is the donor susceptible to fraud or undue influence by the recipient of the gift? Does the donor have sufficient mental capacity to make the gift? To address these red flags, courts require certain documentation or evidence if a gift is contested.

One of the court’s primary concerns regarding gifts from adults late in life is whether the gift was influenced by fraud or undue influence, especially when gifts are given to people who have close relationships with the adult. Therefore, California law requires courts to apply a legal presumption – an assumption that any gift from a dependent adult (person over 65 who is unable to provide for his or her personal needs) to a “care custodian” was the product of fraud or undue influence. (Cal. Prob. Code, § 21380.)

A “care custodian” is a person who provides health or social services to a dependent adult. A “care custodian” is not someone who provided services to a dependent adult if the custodian had a personal relationship with the dependent adult at least 90 days before providing health or social services, at least 6 months before the dependent adult’s death, and before the dependent adult was admitted to hospice care if he/she was admitted.  (Cal. Prob. Code, § 21362.)  The person in favor of the gift can rebut, or oppose, the presumption of fraud or undue influence with evidence that the gift was not the product of fraud or undue influence.  (Cal. Prob. Code, § 21380.)

Courts will not assume the gift is a product of fraud or undue influence if a “certificate of independent review” is executed with the transfer. A certificate of independent review shows the court that an independent attorney consulted with the person making the gift about the nature and consequences of the gift and attempted to determine if the intended gift was the result of fraud or undue influence. This consultation must occur out of the presence of the any heirs or proposed recipients. The certificate is signed and given to the person making the gift.

The court will not assume the donor’s family members and cohabitants received gifts from a dependent adult by fraud or influence. (Cal. Prob. Code , § 21382.)  However, gifts to family members and cohabitants will be invalid if the family member or cohabitant drafted the transfer document themselves. Family members and cohabitants are also subject to claims that the donor’s gift was subject to fraud or undue influence. (Cal. Prob. Code, § 6104.) They may also be subject to a claim that the donor did not have sufficient mental capacity to make the gift.

To prove undue influence, one must show the donor acted under excessive persuasion that overcame his/her free will. In California, the court will assume undue influence occurred if the party contesting the gift can prove three elements: (1) the existence of a confidential or fiduciary relationship between the donor and the person allegedly asserting undue influence over the donor, (2) active participation by the alleged influencer in the creation of the transfer document, and (3) an undue benefit on the alleged influencer (typically the receipt of the gift).

A gift may also be contested on the basis of the donor’s lack of mental capacity at the time the gift was made. The court can consider testimony and documentation showing the donor may or may not have been mentally competent to make the gift while alive.

Gift of real estate to family members and caretakers can be complicated and raise red flags that the donor, recipient, or other family members did not intend to face. If you are contemplating giving a gift to a family member or caretaker, receiving a gift from a family member, or contesting a gift to a donor’s family member or caretaker, please contact one of the experienced attorneys at Lonich & Patton. We offer a free half-hour consultations.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

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