NEW BEGINNINGS FOR FAMILY: 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!!!

CALIFORNIA MARITAL PRESUMPTIONS

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When it comes to the California Family Code, there are two different marital presumptions parents should be aware of.  Family Code §7540 addresses the conclusive marital presumption, which provides that a husband is conclusively presumed to be the father of a child born to his wife, as long as the husband and wife were cohabiting at the time of conception and the husband is neither impotent nor sterile.

The result of this presumption is to codify the principle that if a husband could be the father, and the husband wants to be the father, the husband will legally be the father regardless of actual paternity.  Generally, a man other than the husband does not have standing to request an order for genetic testing.  Family Code §7541

Family Code §7511, subdivision (a), addresses the rebuttable marital presumption.  Yet, be aware the California Supreme Court has made it clear that California will defend marital families from outside interference to the extent the husband is functioning as the child’s parent.

KEEP YOUR DIVORCE OUT OF THE MEDIA (LIKE JENNIFER AND MARK DID)

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So you know the family is falling apart, and the only reasonable solution to peace of minds is a divorce.  But you know you want to keep things quiet, keep the family insulated from scrutiny or criticism from friends or family members.  And if you’re Jennifer Lopez and Mark Anthony, you also want to keep the details away from the media.

Although news reports have been rather thin, it appears after seven years the glam couple is divorcing.  Yet, where is the media when you need all the gory details in fine print?  Sure, they’ve begun the spin and rumors have begun to spread.  But where’s all the juicy details?  They’re simply not out there.  And for that, credit has to be extended to the couple for attempting to handle the matter outside the eyes of the public by reaching an out-of-court settlement before making their divorce public.

Celebrities have finally come to understand how damaging an ugly divorce can be to their images and their reputations.  That’s why they are encouraged to handle their cases quickly, and to settle their personal issues outside of court, rather than in it.  By doing so, these cases can often cost much less than the legal fees in normal family law cases.

In California, divorces are open to the public.  Family law courts cannot seal records but for rare situations.  Detailed financial information, personal matters and allegations are made public for all to see when the court system is used to resolve matrimonial differences.  So if you want to keep your private life out of the minds of ordinary citizens, and keep the expenditure of dollars and cents to a minimum, it is suggested to seek a strong divorce attorney first, one that can help conclude your case privately before it begins.

TEMPORARY SPOUSAL SUPPORT: NEED VERSUS ABILITY TO PAY

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One of the most common issues regarding a family law order to show cause is temporary spousal support.  Any motion involving temporary spousal support would begin with Family Code §3600.  This section provides that the court may order a party to “pay any amount that is necessary for the support of the wife or husband.”  This has been interpreted by the courts to be the maintaining of the status quo, subject to the general criterion of “Need” and “Ability to Pay.”  In re Marriage of Schulze (1997) 60 Cal.App.4th519, 70 C.Rptr.2d 488.

The reality is that in family law, “Need” and “Ability to Pay” are at opposite ends of the same spectrum.  “Ability to Pay” applies to the income of the high earner in the relationship, while “Need” is the income of the low earner.

CHANGED CIRCUMSTANCE MAY OR MAY NOT APPLY TO YOUR CHILD’S CUSTODY

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In cases involving the custody of minor children, the changed-circumstance rule might apply.  The changed-circumstance rule is a judicially created doctrine rooted in the concept of res judicata (ie “a matter already judged”).  The rule is intended to supplement the statutorily mandated “best interest of the child” standard by recognizing a minor child’s right to stability and continuity in his or her living arrangements.

A major reason for implementing the rule is to recognize the finality of judgments and to protect the parties and the child from harmful and needless relitigation of the issues of custody and visitation.  The supreme court has acknowledged that in some cases to change an existing judgment the moving party generally needs to show a change of circumstances affecting the welfare of the minor children.  However, other cases have held the changed-circumstance rule not to be “absolutely ironclad.”

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