Ventura Family Law

PREMARITAL AGREEMENTS IN CALIFORNIA

February 20, 2012

Ventura Family Law Family Law, premarital agreements agreement, family, law, premarital, Prenuptial Leave a comment

If you live in California and you’re thinking of getting married and having your new spouse sign a pre marital agreement, you’re going to want to know about Family Code § 1615. For instance, when it comes to voluntary execution, Family Code §1615(c)(2) states that:

unless….

(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 counsel and the time the agreement was signed.

One of the leading California cases dealing with premarital agreements is a 2011 case, entitled Marriage of Cadwell-Faso v. Faso 191 Cal.App.4th945(2011). Cadwell involved two parties to be wed who wanted a premarital agreement. In December 2005, Husband’s attorney prepared a draft of a PMA, sent it to Wife, and suggested that she hire an attorney.

Wife subsequently hired an attorney, and she instructed her attorney to draft an addendum to the PMA. Upon reviewing it, Husband refused the addendum as well as the next three drafts Wife’s attorney sent to him. On May 17, 2006, Wife called off the wedding. Husband then agreed to the addendum.

Wife’s attorney then drafted a 5^th addendum, which was faxed to Husband on May 19^th, 2006. On May 25^th, 2006, the parties met in Husband’s attorney’s office and signed the agreement. The parties then married on May 27^th, 2006. Eighteen months later the parties filed for dissolution. During the proceedings, Husband took the position that, under Family Code § 1615(c)(2), the addendum was unenforceable.

The trial court agreed with Husband and found that the seven (7) day rule meant what it said. (In this case, there were only six (6) days between the presentation of the 5^th addendum and the signing thereof). Both parties had been represented by counsel throughout the entire six months of negotiations.

The Court of Appeal reversed. Although it acknowledged that Family Code § 1615(c)(2) suggested that the seven (7) day waiting period was for the benefit of an unrepresented party, the Court of Appeal held that Family Code §1615(c)(2) does not pertain to a party who was represented in the transaction from the outset.

VALENTINE’S DAY IS FOR FAMILY

February 13, 2012

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Did you know Valentine’s Day is not just for lovers? It’s true. Valentine’s Day has now become a day for us to honor all members of the family. It’s a day to express love and admiration to those we appreciate most. So this Valentine’s Day, we at the Law Offices of Donna Santo encourage you to share your greatest feelings with all the members of your family. Get Valentines for the kids, parents, grandparents and Auntie Betty as well, and bring your family closer together. Express that heartfelt warmth that we usually reserve for that special person in our life. Now more so than ever the family has great importance to our overall well being. It doesn’t take much. Just a little thought form from the heart, and watch the smiles that it will bring. Valentine’s Day is truly a family affair.

Happy Valentine’s Day to one and all!!!

MILITARY HOUSING AND FOOD TO BE CONSIDERED FOR SUPPORT

February 6, 2012

Ventura Family Law Child Support, Family Law, Spousal Support alimony, child, divorce, military, spousal, support Leave a comment

In a case of first impression California’s Fourth District Court of Appeal has held that military housing and food allowances are to be taken into consideration when calculating child and spousal support. In the case, entitled In re Marriage of Stanton 190 Cal.App.4th 547 (4th Dist., Div. 1 Nov. 24, 2010), the court held this to be true even though such allowances are neither taxable nor subject to wage garnishment.

The facts of the case are as follows:

Husband Soloman Stanton had sought to reduce his temporary child support and spousal support orders to his wife, Carol. Upon divorce, the court had ordered Soloman to pay his wife temporary support for both her and their son. Soloman was a member of the United States Navy, and, at the time, the court had calculated the amount of support based in part on Soloman’s military allowances for housing and food.

In his request for a reduction, Soloman had argued that because federal law exempts a military allowance from federal tax and wage garnishment, the court had violated the federal preemption doctrine by including his allowances in its calculation. Under the federal preemption doctrine, Congress can preempt state laws.

However, after the hearing, the San Diego County Superior Court denied Soloman’s request for a reduction. The Court of Appeal affirmed the trial courts decision. It held that the federal preemption doctrine does not prohibit the inclusion of a military allowance when calculating either child support or spousal support. The court opined that the doctrine is inapplicable to family law unless Congress’s intent is clearly contrary to state law.

The Court of Appeal further determined that Congress had not intended for a military allowance to be excluded from child support or spousal support. In conclusion, the court stated that “the nontaxable status of military allowances does not suggest Congress had any preemptive intent with regard to either child or spousal support.”

DETERMINING LONG TERM SPOUSAL SUPPORT: STANDARD OF LIVING

January 30, 2012

Ventura Family Law Family Law, Spousal Support Long term, spousal, standard of living, support Leave a comment

When it comes to long-term spousal support, Family Code § 4320 is the guiding light. This is the section that lists the mandatory factors family law courts must consider when determining long-term spousal support.

Family law judges do not simply determine spousal support by reference to one factor or another. They must weigh and apply all of the factors stated in Family Code § 4320. Any spousal support order not reflecting a weighing of these statutory factors is subject to reversal for abuse of discretion.

Family Code § 4320(d), which considers: “The needs of each party based on the standard of living established during the marriage,” is probably the most indeterminate statutory factor the family law judges must weigh and apply in each case.

The case of Marriage of Smith (1990) 225 Cal.App.3d 469 supplies the generally accepted guidelines for marital standard of living. It held the marital standard of living to mean:

“…the general station in life enjoyed by the parties during their marriage. The Legislature did not intend it to be a precise mathematical calculation, but rather a general reference point for the trial court in deciding this issue.”

There are two general approaches to quantifying the marital standard of living. They are:

Expenditure based, and
Income based.

The expenditure based approach considers all spending records (cash and credit) for the last few years of marriage and categorically summarizes the spending.

The income based approach requires relatively few documents and both its strengths and weaknesses are attributable to simplicity. The income base approach summarizes historical tax returns and assumes that all after-tax dollars are subsequently consumed. In other words, all available dollars are either spent, saved, or invested.

Based on the case of Marriage of Weinstein (1991) 4 Cal.App.4th 555, this approach is the preferred method when the parties lived beyond their means. Or, in other words, when the marital standard of living was subsidized by credit.

OVA DONATING PARTNER HELD TO SAME “MOTHER” STATUS AS BIRTHING PARTNER

January 23, 2012

Ventura Family Law Child Support, Family Law family, in vitro fertilization, law, mother, same-sex Leave a comment

In 2005 the California Supreme Court handed down a decision where a woman who donated ova to her same sex partner for in vitro fertilization, but waived rights to offspring, would actually be considered a mother to the resulting children as well. The facts of the case, entitled K.M. v. E.G. (2005) 37 Cal.4th 130, 33 Cal.Rptr.3d 61, 117 P.3d 673, are as follows:

The two women began living together in a committed relationship in 1994. They registered as domestic partners in San Francisco that same year. One of the partners, E.G, who had been trying to become a single parent for many years, learned that she didn’t have sufficient ova to make in vitro fertilization possible. When E.G.’s doctor suggested that her partner donate her ova, E.G. balked because their relationship was still relatively new.

Later, E.G. asked her partner to donate her ova, but only if the partner would “really be a donor,” meaning that E.G. would be the “mother of any child.” Her partner agreed, and K.M. signed a consent form supplied by the fertility clinic.

The consent form stated that K.M. would waive any rights and relinquish any claim to the ova or any resulting offspring, which the recipient could regard as her own. The form also specifically stated that the donor disclaimed and waived any rights in or to any child conceived with her eggs, along with the right to a relationship with, or inheritance from any such child.

Upon making the donation, the resulting embryos were implanted in E.G. in 1995. E.G. subsequently became pregnant with twins, who were born later that year. Over the next five years, the women and children lived together as a family. Both K.M. and E.G. shared parental roles. When their relationship ended in 2001, K.M. filed a petition to establish a parental relationship with the twins.

Upon hearing the petition, the trial court found K.M. had relinquished any claim to parentage by signing the donor consent form, and that the two women had an oral agreement that E.G. would be the twins’ sole parent. The court determined K.M. lacked standing to petition for parentage, and her petition was denied. On appeal, the First District affirmed, reasoning that K.M.’s status was similar to that of a sperm donor.

The California Supreme Court reversed. The majority held that:

Family Code § 7613(b), which states that a donor who provides semen to licensed physician or sperm bank for artificial insemination/in vitro fertilization of woman other than his wife is not treated in law as natural father of resulting child, does not apply where a woman donates ova to her same-sex partner in order to produce a child that will be raised in their joint home; and

Both women are to be considered mothers of the twins by reason of K.M.’s donated ova and by reason of E.G having given birth.

The majority justices also concluded that K.M. could not waive her parental rights or her responsibility to support her children by signing the consent form or making an oral agreement. This ruling is consistent with California family law courts that seek to shape the law around finding parents who are legally responsible for supporting their children, thereby removing this burden from the public.

CASE FOR BIOLOGICAL MOTHER BODES WELL FOR SAME-SEX COUPLES

January 16, 2012

Ventura Family Law Family Law child, custody, Gay, rights, same, sex, visitation Leave a comment

An important gay rights case has come down in Florida. It involves a lesbian couple that lived together for eleven years, shared bank accounts and income, and raised a child, who is now eight. A case based on some similar facts has already been decided in California.

The biological mother, who goes by the name of Tina, had her egg fertilized with donor sperm that was implanted into her partner’s womb. But then their romance fell apart when the child was two. And the Florida courts had to decide who would be the legal parent: the biological mother or the birth mother who carried the unrelated child for nine months in her womb.

Initially, citing Florida law, the trial court summarily decided with Tina’s ex partner. But on December 23^rd of last year, a state appeals court rejected the law as antiquated and recognized both women as legal parents. Citing the case as “unique,” the 5^th District Court of Appeal ruled that both the U.S. and Florida constitutions trumped Florida’s law.

As it stands, the birth mother has asked for a stay of biological mom’s rights, and the case will most assuredly proceed to the Florida Supreme Court, and, quite possibly the U.S. Supreme Court.

The plight of both women and their young daughter highlights the murky laws that surround same-sex families, especially in states, such as Florida, that do not recognize gay marriage. Although they acted to the world as a committed couple, one thing that might have helped Tina avoid giving rights to the non-biological mother was if she had first gone to a lawyer to get surrogacy paperwork.

In reaching its decision, the appellate court considered this to be a moral, ethical, and legal issue, and it recognized the intent of the parties to deliberately bring a child into the world and to raise her together. The court ruled that the problem with the Florida law was that it provided no distinction between biological and birth mother and it had not caught up with science or the state of same-sex marriages.

A CHILD’S RIGHT TO PRIVACY

January 9, 2012

Ventura Family Law Family Law care, children, decisions, family, health, law, privacy, private, teen, treatment Leave a comment

Parents who have custody of their child have the right to make many important decisions regarding their child’s life and life plans. But did you know that according to the California Family Code, there are many instances in which children have the legal authority to make important personal decisions without their parents’ consent? Some of these circumstances include:

When a child is 12 or older and seeks medical treatment related to a drug or alcohol problem FC §6929b)

When a child is 12 or older and seeks medical treatment for rape. A medical care professional, however, shall attempt to contact the minor’s parents or guardian, unless he or she reasonably believes the minor’s parents or guardian committed the sexual assault on the minor. (FC §§ 6927, 6928)

When a child is 12 or older and seeks medical treatment related to an infectious, contagious, or sexually transmitted disease. (FC § 6926)

When a child is seeking medical care related to the care and prevention of pregnancy. This includes birth control information and devices, and (if the child is deemed sufficiently mature) abortion or any other care, short of sterilization.

Family Code § 6922 makes it easier for youngsters 15 years of age or older to obtain medical care when they show that they are living separate and apart from their parents and managing their own financial affairs. And of course there’s Family Code § 7002 which dictates that married minors, or minors who have joined the military or have received a formal court decree acknowledging their emancipation, need not confer with their parents regarding any decisions whatsoever.

So if you have questions about your parental or child’s rights, don’t hesitate to contact an experienced family law attorney, one who can help you deal with the law and important decisions involving your family’s well being.

NEW BEGINNINGS FOR FAMILY: 2012

January 2, 2012

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It’s a new year during an amazing time. Change is happening very rapidly, without and within, and if you’re not on board already, it’s now time. There is no better time than right now, our most powerful moment, at all times. Do what ever it is you can do to bring all good things to those you love most, and those you don’t even know, and do it all the time. But most importantly, fill the stocking of family with all the brilliance the universe can and will provide. Just put your thoughts, feelings, words, and actions behind it. We at the Law Offices of Donna Santo wish you and your family a fantastic new year filled with Love, Peace, Joy and Blessings.

HAPPY NEW YEAR! Happy 2012!!!

5 GREAT NEW YEARS RESOLUTIONS FOR FAMILY AND THE PLANET

December 26, 2011

Ventura Family Law Transformation change, family, Gandhi, Mahatma, New, resolutions, years Leave a comment

All right so it’s New Years and we’re all contemplating major changes within our lives. The world and the universe are moving very fast, and so are we as individuals and family members. And there’s no better time than now to move forward with those major changes we’ve been planning since, well, since last New Years.

We at the Law Offices of Donna Santo believe that the best changes actually come from within, and not only help the individual move forward in their personal evolution, but as each individual moves higher, we take everyone with us. So why not make this New Years full of resolutions that make the family, as a unit, stronger, tighter, and more love filled.

1) Touch with Love – Love is the highest vibration the universe has to offer. So why not put it into everything we touch. Our energy and our consciousness, which includes our thoughts, feelings, words, actions, and desires, create the reality that surrounds us. Fill everything we do with the love that we so desperately seek. Every time we touch something with our thoughts or words, fill them with the pure vibration of the heart, and see what this brings to us. Place patience and respect into everything we touch. See how our family responds, and let’s bring the world a little bit closer through our thoughts and our actions.

2) Get Back to the Principle of Building Family First – We have all been conditioned to pursue that almighty dollar. To improve our status in the neighborhood and the community that surrounds us. But what would happen if we recondition ourselves to making our family our highest priority. What if we make sure our family needs are met, that our kids leave each day feeling good about themselves and the world they live in. We don’t need to have a lot of money to do this. We just need to take the time to help balance each of our family members’ emotional, mental, physical, and spiritual bodies. It will all come back to us by making our personal existences stronger and more pleasant.

3) Place the Highest Intent in all We Do – No matter what we do, place the highest intent behind it. Again, our reality is created through the energy and consciousness we pour into our thoughts, feelings, words and actions. So make every moment count. Whether it’s the mundane tasks like driving our kids to school or taking out the trash, why not fill it with our highest vibration. At that moment, it’s all we have, so why not give it our best shot. We don’t need to bury it with thoughts of past problems or future concerns. Why ruin the moment? Those are just situations of life, that deserve their own time to mend. When we work on those issues, then we put our best energies into solving those problems at that time, and we make better, higher vibrating results for ourselves and those around us.

4) Become the Change We Want to see Around us – Mahatma Gandhi once said, “We must become the change we want to see.” It is true. We don’t need to tell our spouse or children that they must become this or that. Because, if we don’t live it, then we become the hypocrite. Only by becoming that change, will those around us begin to learn and appreciate what we have to say. It gives us credibility and builds respect from those we want to admire us most.

5) Pray, Visualize, and Meditate to Perfection – Our intent and consciousness creates our reality. So take the time to pray for perfection in our surroundings. If we want to see beauty in our lives, we can begin to create it by visualizing what it is that we want to see. By practicing meditation, we can begin to release all the negative thoughts that inundate us, and fill our consciousness with the Divine intent from the heart processes, rather than the egoic negativity we have been conditioned into. These practices can create beauty for us as individuals and our family we hold so dear to us.

We wish you and your family a happy and healthy New Year!!!

LET THE HEART REIGN

December 19, 2011

Ventura Family Law Transformation attraction, blessings, cause, effect, law, love Leave a comment

There is an old saying that goes something like this: If everybody gives everything to all at all times then all things will have all they ever need and no living creature will ever go without. There is much truth to the wisdom behind this. And even though it is true that we cannot control what others do, the one thing we do have control over is what we do.

Now is the time for us to open up our hearts, to give to all others, without expectations. Because when we give, the universal flow will continue to provide. It’s just the way it is. Some call it the Law of Attraction. Others call it Cause and Effect. Whatever one wants to call it, it is the Law we all operate under. And as soon as we all get it, and we all open up, and just give, then the flow of the universe provides for each and every one of us.

Right now, we all can begin by giving, without any expectations. Just dig into the heart that connects each one of us, especially at this special time of the year, and share that most powerful source of God energy that we all seek. It’s called Love. And with it comes no attachments. By giving it all, all the time, we are guaranteeing that we shall continue to receive all the sustenance the universe provides.

We at the Law Offices of Donna Santo send out to each and every one of you the free flow of health, warmth, love, and sustenance that each one of us so very much deserve.

Many blessings, and Happy Holidays to all!!!