Saturday, December 22, 2012

Is it necessary for my same-sex domestic partner to adopt our children?

Short answer, Yes.

What is the law?
California law provides that "the rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses."

This means: A child born to a registered domestic partners is considered the legal child of BOTH partners, regardless of their biological connection. 

Lesbians who use artificial insemination = BOTH parents can be listed on the birth certificate.

Note: Gay men who use a surrogate = BOTH partners need a court Judgment before they can be listed on the birth certificate.

Why is domestic partner/ second parent adoption a good idea?
Even though we now have legal protection for children born to registered domestic partners, many of my clients are taking the extra step to obtain a court judgment declaring  BOTH partners legal parents. 

We recommend adoption for the following reasons:

  • Adoption is necessary to ensure that your child's legal relationship to BOTH parents will be respected by other states and the federal government. 
  • Should the parties separate, the non-biological parent may need to litigate the issue of parentage.
  • The law is unsettled - there is no guarantee that parentage will be recognized. 
  • When traveling outside of California, if something happens to the biological parent (e.g. death or incapacity), the non-bio parent may not be permitted to make important decisions about the child -- or even be allowed to take custody of the child. There is just no guarantee!
  • Ensure that you are treated as the legal parent for benefits such as inheritance, worker's compensation benefits, social security benefits, employer-provided health insurance, parental leave, hospital visitation and child support.

Who else may want to consider second parent adoption?
Lesbian or gay male couples in which one partner adopted a child while single. Lesbian or gay male couples whose former spouse or parent of the child will agree to terminate their parental rights. 

When should I start the process of adoption?
The earlier the better (as soon as you have a viable fetus) but you can adopt a child at any age.

Where do I begin?
Consulting with a family law attorney experienced with issues specific to GLBT issues. Certain forms will need to be completed properly, filed with the court and a social worker will "investigate" and prepare a report. The parties and their children will also attend an adoption hearing in the county in which they reside. Levine Law Group has successfully completed these adoptions in Contra Costa, Alameda and Solano Counties. If you prefer to represent yourself, we can guide you through the process and help you to complete all necessary pleadings.


Friday, November 30, 2012

The 'PreNup Primer'

Whether you are in agreement with Premarital Agreements or not -- it's always a hot topic and one that breeds fascination, gossip and emotion. What we do know is that in California, they are legal and the longer I am in practice, the more I am asked to draft them and/or litigate against their enforcement.

A Premarital Agreement(aka Prenup) or Pre-Domestic Partnership Agreement (for registered Domestic Partners) may be legal, but that certainly doesn't mean you can agree to whatever you want. Usually, my clients are interested in contracting with regard to property (keeping their premarital property separate and opting out of community property laws) and spousal support. It's also important to follow all the laws surrounding creation and enforcement. For example: don't wait until your wedding day to sign your Prenup and ensure there is adequate time (7 days min) between presentation of the Prenup and signature. Independent attorney representation is also key!

A Premarital Agreement can cover the following:
  • Rights and obligations with respect to property (pets are included as property);
  • Right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest, encumber, dispose of, or otherwise manage or control property;
  • Spousal Support (but with limitations)
  • The making of a will or trust;
  • The choice of law governing the agreement;and
  • Any other matter, including the spouses' or registered domestic partners' personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
What can't you put in a Premarital Agreement? Below are some examples:
  • Children! You cannot require religious practices or instruction for children or create a term that adversely affects the right to child support. You cannot provide for custody of children.
  • Punishment! Terms requiring or rewarding personal services between the parties are prohibited. What does that mean? Examples: No liquidated damages for cheating on your spouse. (We have a no-fault divorce system). No financial penalty for a spouse's substance abuse recurrence.  
  • Unlawful behavior! Shocker. 
Premarital agreements can be effective tools but beware -- don't try this at home. They are a complicated endeavor that requires experienced legal advice!

Saturday, November 10, 2012

Pre-divorce planning: Do you have an exit strategy?


Pre-Divorce Planning

If you are considering leaving your Domestic Partner or Spouse, a good plan of action is essential. I am not talking about taking our ex for all you can. What is most important is making smart choices without letting your emotions get the best of you. The more you think about  your next steps (with a clear mind) -- the better your position will be when the divorce is over. 

CHILDREN:
If you are a parent, separation is even more complicated. You'll need to be prepared for how to tell your kids about the divorce - and preferably, with the cooperation of your spouse. You will also want to think about how to help your kids cope and understand how their lives will be impacted. Reach out to your support system and local resources (such as Kids Turn) to alleviate as much of their anxiety as possible.

FINANCES:
While child support and alimony can be helpful, it certainly will not take care of your finances in total. By the same token, if you are the higher earner partner, be prepared to see a large cut in your net income. Damage control is key but leaving your spouse penniless is not an option either. Financial planning is key! You will want to seek legal advise to determine the approximate amount you can expect to receive/ pay in support. Making a budge it important. You will also want to control debt -- when possible keep your credit card expenditures to a minimum. Continue to pay bills to avoid problems in court. That being said, you will have to prioritize your bills to ensure the most important ones are taken care of (rent, mortgage, insurance, essential utilities, credit card minimum payments, loans and income taxes). 

If you don't currently have copies of statements for all of your family accounts, get them now. Consider taking inventory of all personal property including video taping or photographing items in the house. It can be almost impossible to prove their existence when they "disappear" post-separation ("he said, she said") but if you've got evidence, you will likely be in a better place. Gather joint documents too like tax returns. While the law provides that each of you are entitled to access (disclosure) to all financial documents, some spouse's will do their best to 'stone wall' their ex's which can lead to time consuming and expensive litigation.

CAREER: Making your career plans a top priority can help you become self sufficient. If you aren't going to be able to support yourself post-separation start thinking about career counseling, re-training or going back to school -- while you can!

FUTURE: We know that divorce is devastating. Your jointly held goals are now gone and we've all struggled with depression. Create new, attainable goals for your future. I suggest a written list that you can cross off as you accomplish new and different tasks. Having something positive, productive or fun to look forward to can make you feel a whole lot better. 

Don't be afraid to reach out to friends and family. Don't be afraid to make new friends who aren't connected to your spouse. A divorce support group may sound uncomfortable or silly but has helped many of my clients to feel less isolated and more proactive. 

Nothing about divorce is easy but focusing on your emotional and financial wellbeing can not only help you in the NOW -- but will set you up for a more prosperous and satisfying future. It can also make your divorce less messy and give you a sense of empowerment. 



Monday, October 1, 2012

What should I bring to my first appointment with a Divorce Lawyer?



Prior to their first legal consultation, many family law litigants ask my staff what they should bring to their first few meetings to ensure they get the most out of their office appointment. Below is a list of important documentation you should consider bringing. While not essential, it will be helpful for you to locate and copy the documents below:


  • Financial statements,
  • Income tax returns (all years of marriage),
  • Corporate tax returns,
  • Partnership tax returns,
  • Bank statements (business and personal),
  • Check registers,
  • Canceled checks,
  • Brokerage statements, 
  • Retirement statements from date of marriage and separation,
  • Children’s bank account statements,
  • Copies of any premarital or postmarital agreements,
  • Loan balances for all debt,
  • Most recent appraisals for any real estate owned,
  • Documentation regarding pre-marital assets,
  • Current credit card statements,
  • Court pleadings already filed or served (if any), and
  • An estimate of your current and proposed expenses.

Of course, you can bring any other documentation and notes you think might be helpful for a lawyer at Levine Law Group to review!

DYI Divorce - Affordable Fixed Fee Legal Help

You did a good job getting yourself into this mess - Now let us help you do a better job getting out of it.

More and more people are finding divorce lawyers to be an unaffordable option.

Our clients spoke, and we heard.

Levine Law Group is now offering DYI Divorce actions and Fixed Fee Plans for obtaining an affordable, efficient divorce. Since its inception, these plans have become more and more popular with hundreds of people utilizing the service and obtaining a successful Divorce better and faster than ever. 

Some of our most popular plans include:

SUMMARY DISSOLUTION  (For short term, low asset marriages) $500
What it includes:

Preparation, Filing and Service of all court documents;
Preparation of Divorce Judgment and Settlement Agreement;
No court hearing or office meetings necessary!

UNCONTESTED DISSOLUTION (Marriage less than 10 years, no kids) $1,500
What it includes:

Preparation, Filing and Service of all court documents;
Preparation of Divorce Judgment and Settlement Agreement;
No court hearing or office meetings necessary!

UNCONTESTED DISSOLUTION (Long term marriage) $2,500
What it includes:

Preparation, Filing and Service of all court documents;
Preparation of Judgment and Settlement Agreement;
No court hearing or office meetings necessary!

DIVORCE COACHING ("DYI" Divorce) $3,500 - $7,500

What it includes: 

Attorney Document / Drafting / Editing;
Access to all Divorce and Family Law forms;
Goals and Financial analysis review;
Unlimited attorney and paralegal email access; 
Legal consultations by phone and in person;
Separation Agreement Examples;
Reduced hourly rate if negotiations/ full representation becomes necessary. 

DOCUMENT PREPARATION Starting at $500
Pre and Post Martial Agreements;
Transmutation Agreements;
Divorce or Paternity Judgment;
Support calculation;
Child Custody or Support Motions ("Request for Orders").

We also offer FULL REPRESENTATION for complex and contested divorces, Starting at $4,000
What it includes:

Prepare, File and Serve all Court Pleadings (required forms);
Goals and Financial Analysis Review;
Attorney Document Drafting/Editing;
Unlimited attorney and paralegal email access;
Access to software containing court dates, court file, office memos and sample agreements;
Attorney negotiation of child custody, child support, spousal support, attorney fees/costs and property division; 
Mediation collaborative divorce and negotiations; 
Legal consultations by phone and in person;
Preparation for court required child custody mediation;
Experienced court representation.

We will change your life forever. Judgment Guaranteed. 

Take the mystery out of your divorce or other family matter. Contact Levine Law Group for more information or click here to schedule a free consultation!

Sunday, September 16, 2012

Bay Area Divorce; Online Help

If you are divorcing in Northern California, you can find quite a bit of information without ever leaving your comfy couch or hiring a lawyer. Below are some really helpful websites to help you get started:

1. Self Help: Whether you want to file an uncontested or complex divorce, domestic partnership dissolution, guardianship, paternity action or support modification -- the procedure can be very confusing. Follow this link to find California court forms, preparing documents and filing/serving them with the proper court.

2. Divorce Docket: Many counties offer an online service to find basic information about your case such as: Parties and attorney's, next court date, filed documents, hearing locations and the Judge assigned to the case. If you live in Alameda County, click here and then go to "Domain Web." In Contra Costa County,  click here and go to "Tell me about my court case." For Solano County, click here,

3. Deeds and Trusts: If you want to find out ownership and finance information for real property, check your local recorder's office. In Alameda County, you will want to go to County of Alameda Recorder's Office. In Contra Costa County, click on the Contra Costa County Clerk Recorder's Office. Solano County property records can be found here.

4. Finding Lawyers: There are several websites that will help you find reputable divorce and family law attorney's in your neighborhood. Local Bar's tend to have referral services such as the Alameda Legal Referral Service or you can go to the California Attorney Referral Resource. Other websites such as Yelp and Avvo offer client reviews and other information about practice areas, experience and contact information.

5. Free Divorce Information: Nolo demystifies the process and offers key information about divorce. Sometimes individual counties also have websites that assist you with preparing your case. In Alameda, this site tells you how to file a divorce action. Contra Costa County has a virtual self help center.

Wednesday, September 5, 2012

Why is date of separation so important in a California divorce?

Date of Separation is often a hotly contested issue in California divorce actions. Why?


The reason date of separation is so important is because duration of marriage often profoundly affects two important issues in divorce:


  • Spousal Support
AND

  • Community Property

When does separation occur?
Separation occurs when either party does not intend to resume the marriage and his or her actions bespeak the finality of the break in the marital relationship. The problems in the relationship must be so serious that there is no reasonable possibility of eliminating, correcting or resolving the issues. In other words -- a complete and final breakdown of the marriage. 

Of course, the above definition isn't always easy to determine and therefore many cases are bifurcated to determine the date of separation prior to other issues pertaining to the divorce. Briefly, the court will look to conduct when deciding when a "separation" actually took place. I have litigated cases where one spouse argued that the date of separation was when that spouse moved out of the family residence. Despite this compelling fact, my client prevailed on her claim that the separation date was actually several years later -- by offering evidence that the parties continued to eat dinners together, vacation regularly, file joint tax returns and maintain the same mailing address. In a different case, even though the parties continued to reside together and even slept together 1-2 times post-"separation", the court ruled that they lived "separate and apart" for purposes of date of separation. In that case, the parties had each moved on to serious dating relationships, disentangled their finances (except for the house which they both wanted to keep - but neither could afford on their own), told their families and friends that they were getting a divorce, did not go to any social events together, communicated only by email and slept in separate bedrooms. 

How does date of separation impact spousal support?
Date of separation determines the parties' duration of marriage. The length of marriage is a key factor in determining long term spousal support. California law states that unless there is a written agreement by the parties to the contrary -- the court retains jurisdiction (ability to award) over the issue of spousal support when the marriage is 10 years or more (from the date of marriage to the date of separation). While this doesn't mean support will go on indefinitely, it certainly means that liability will continue for a very long time unless the parties negotiate to terminate jurisdiction and/or the supported spouse remarries or dies. 

Additionally, the duration of the marriage is usually a primary factor considered in addressing the length of the support order and termination date (marriage of "short" duration).

How does date of separation impact division of community property?
With certain exceptions, the majority of property acquired during the marriage and before separation, is presumed to be community property. Community property is considered to be owned equally and is often divided 50/50 or assigned to one spouse while an asset of equal value or an equalization payment is provided to the other spouse. Often, even when property is titled in one spouse's name only -- the court will divide that property equally unless the opposing party can "trace" the acquisition of the property to a separate property source. If a credit card is run up before separation, both spouse's will likely be responsible for it. Likewise, if an employment bonus is earned before separation, it will likely be ordered shared equally by the parties.


If there is a date of separation issue with your case, you will want to investigate which property and debt are at issue and whether the alternate date will likely impact the length of time that you will receive and/or pay spousal support. Contact Erin Levine at erin@eastbaylevinelaw.com and/or (510) 595-4112 for a 30 minute free consultation. 



Tuesday, August 7, 2012

10 Tips for Choosing a Divorce Lawyer



Picking an attorney who will understand your position, advocate for you zealously and ensure cost-effective representation, is not easy. You will be sharing your most intimate emotional and financial details – so it is important to choose someone you feel confident in and comfortable with.


Below are ten tips for choosing a family law attorney:


1. Is your lawyer “too busy” to answer your questions? Choose a lawyer who is easy to talk to and has time to devote to your case.



2. Personal references are usually best. Choosing a lawyer referred to you by a trusted friend or family member is usually much better than determining quality by advertising alone.



3. Lawyer's reputation in the community: Choose a lawyer whose style most represents the type of case you want to present to the judge. A lawyer who rushes to litigate every issue will not only drive up cost but may have a negative reputation with the court and/or have difficulty resolving the matter amicably with other attorneys.



4. Family Law Practice: Your lawyer should specialize in the type of law your matter entails. If you have a specific issue that you think may complicate your divorce, ensure that your attorney has plenty of experience in it. Perhaps you have a child with special needs or you are disabled. Maybe you have an inheritance that you are concerned will be compromised, or your spouse owns a home that you have contributed to. All these are important matters that require an attorney who understands the law (and any recent changes) and how the courts interpret it.



5. Straightforward Advice: Find a lawyer who listens to your questions and answers them directly and honestly. There’s nothing worse than an attorney who “sugar coats” their “advice” or tells you what you want to hear – only to find out that your case is not as strong as you were led to believe.



6. Be Heard!: Expect your lawyer to treat you with respect and give you the opportunity to state your goals and priorities. How your lawyer treats you in your initial consultation is a good indication of how your lawyer will treat you in your case.



7. Reasonable Fees: Ensure that the fees are competitive and affordable. If not, continue to shop around. Fee issues will only increase your stress level during the divorce.



8. Legal Strategy: Ask your lawyer whether she or he will discuss the pros and cons of your decisions and expect her/him to provide you with the information to make constructive decisions.



9. "Home Court" Advantage: Determine whether the lawyer is familiar with the court in which you will file your case. Ensure that he or she has experience appearing before the judges likely to rule in your case and local counsel.



10. Go with your instincts: If you do not like your lawyer, hire a new one. Do not sign a retainer agreement unless it provides that your remaining retainer will be refunded if you decide to part ways.

Wednesday, August 1, 2012

Divorce and Pets -- Who gets Fido?

In California, pets acquired during marriage are presumed to be community property.What does that mean? In a divorce or domestic partnership dissolution, the family court assign the pets similar to the way they divide property such as furniture or vehicles. 

In other words, one spouse gets the pet, and the other does not. 

I have not had any cases where the court ordered a shared custody arrangement of the pet when the parties are in dispute. Rather, the court generally adopts the best interest standard for pets; where will your furry friend be most comfortable? Who was the primary caretaker of the pet during the relationship? Who has moved into a residence that allows animals? Will the pet be mistreated if s/he is in the control of one party? This is a subjective test and therefore litigation is frightening because it is difficult to 
determine who will win. Unlike children, where a custody order can be modified from time to time, when a pet is assigned to one party, the other party generally loses forever. 

Despite the general rule of pets being considered as property, they have gained some 
important legal rights. The victim of domestic violence can obtain a restraining order that 
will award them the sole possession, care and control of their animals. They can also 
obtain an order that the domestic violence perpetrator must stay away from the animal(s)
and/or refrain from taking, selling, concealing, attacking etc. the family pet.

How can you avoid a pet property dispute?

  • Consider a prenup which will dictate who gets the family pet in a divorce or domestic partnership dissolution. 
  • Negotiate a shared "custodial" arrangement with your ex before the divorce is finalized.Many people would rather share a pet than take the risk that the Court will award their little buddy to the other partner. Just because there are no family laws that require the court to order a shared custodial relationship -- doesn't mean you can't agree to be creative with pet custody. Some of my clients have agreed to an alternating week situation with each 'parent' having the pet 50% of the time. They've also agreed to terms whereby they will be given a 'right of first refusal' for pet care. In other words, if one spouse is going out of town, s/he will offer the pet to the other spouse first, before choosing a pet sitter or boarding. Another idea is to negotiate how medical bills will be shared and whether or not one pet parent will need to notify the other prior to obtaining medical treatment and/or a new vet. 

  • Consider giving up a cash asset or taking on more than your fair share of debt in exchange for keeping your dog. If it is of highest importance to you to ensure that the pet stays with you (and/or the children if you have primary custody), it might be worth giving up something that entices your ex to give up the pet. Ask yourself the question, in 5 years will this matter? I assume keeping the pet WILL matter but perhaps taking on an extra credit card will not. 


In any case, pets often have a significant bond with their owners -- the thought of losing a pet in a divorce can sometimes feel extremely emotional and stressful. Ensure that you consult a legal professional if this is an issue that you are concerned about. 




Should you wish to discuss your pet situation in detail, feel free to schedule a free 30 minute consultation with a lawyer at Levine Law Group.