Family Law Information

Illinois Divorce - Important Factors You Must Consider!

2007-11-06T14:06:00.000-08:00

Are you interested in getting an Illinois divorce? But are you sure you know what you are doing? The fact is that each state in the USA has different requirements when it comes to getting a divorce. More precisely, we are talking about the legal reasons for a marriage separation. So, the question is: which are the grounds for an Illinois divorce? Adultery is one of the most common grounds for the Illinois divorce, just like in many other states all over America. However, infidelity needs to be proven in court and this is quite a difficult task, in case there is no evidence to indicate it.

On top of adultery, there are some other highly common reasons for an Illinois divorce. Firstly, there is abandon (of one year or more), mental or physical abuse and irreconcilable differences. The last ground is one of the most popular causes that lead to a faster and simpler divorce. Basically, it refers to a relationship where the partners can no longer communicate peacefully or where one of them or both desire different things.

Drug abuse and alcoholism are serious problems that can definitely affect one's marriage - and, therefore, they are considered viable grounds for an Illinois divorce. It must be mentioned that the spouse who files for divorce must prove that the abuse problem has been going on for at least two years.

A number of sexuality-related problems can be the base for an Illinois divorce, as well. For starters, there is impotence (which must occur at the time of the marriage and must continue at the time of filling for divorce) and infestation with a venereal disease.

Conviction of a felony or a legal crime are other two reasons that can determine one to file for an Illinois divorce. Any divorce lawyer can advice the spouse that desires to end the marriage regarding the procedures and requirements for such a legal separation.

Besides the above, there are some other unusual grounds for an Illinois divorce and the top one on the list should be bigamy. In addition, bigamy can also be a valid reason to get a marriage annulment in this state.

When talking about the Illinois divorce, it must be said that the people who want to get their marriage separation legalized here can opt for a no-fault divorce, as long as they meet the requirements. In order to qualify for this type of divorce, the spouses must have been separated for at least two years before filling for divorce (not necessarily living in different houses, but living separate and apart) and must have tried to save their marriage and failed, as a result of irreconcilable differences.

As you can see, an Illinois divorce can be based on a number of reasons. Which one suits your case best? For sure, unsolvable differences can imply getting a no-fault divorce and can be the easiest way out. However, make sure that you choose the Illinois divorce ground that describes your case best.

Illinois divorce process is specific for this state, and requires from both husband and wife to fulfill critical conditions for the effective dissolution of their marriage. Sam Butler's website Divorce-Assist.com explains where to begin.

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Types of Law

2007-10-18T13:28:00.000-07:00

Every citizen ought to know the Law of the Land. There is no excuse for not knowing the law. It will not help a person defend him or herself in a legal crisis. Ignorance can never be explained away.

Even when you have not acted against the law, you might need to know the law in order to protect yourself from people who might violate the law. To know ones rights and privileges is not only beneficial, it is absolutely essential. You will never know when the information you have at your disposal might come in handy. Having it ready before any crisis strikes will help you take immensely wiser and more informed decisions which you will not regret later. Just as there are varied disciplines in the field of medicine, there is a wide range of divisions when it comes to law. For instance, everyone knows that you don't visit a general physician for a severe heart ailment. You want to consult a heart specialist in this case. Likewise, for every particular type of law, there are specific attorneys who specialize in that particular field. It really helps to search and identify the suitable attorney for your particular case, instead of heading to the nearest or most familiar attorney for every case.

This article briefly lists the types of law:

Admiralty Law
The Admiralty Law is also known as Maritime Law and governs all U.S. All countries have maritime laws and they are responsible for their vessels regardless of which ocean they are sailing in. Admiralty Law Attorneys represent cases of all matters concerning cargo disputes, oil pollution, fishing regulations, international trade, cargo and injury that takes place on docks and vessels. Admiralty Law Attorneys also offer advice on trade laws, legal matters concerning environmental groups and the protection of endangered species. Admiralty Law also covers freight and passenger liabilities.

Aviation Law
Laws have been instituted by state and federal governments to enhance safety in air traffic. Aviation Laws in the United States govern aircraft operations and the maintenance of aircraft facilities.

Bankruptcy Law
When an individual or a company files for relief of debt, it is termed as Bankruptcy. In the United States, there are specific courts that handle bankruptcy rulings and specialty attorneys who handle these cases. A fundamental goal of the federal bankruptcy laws enacted by Congress is to give debtors a financial "fresh start" from burdensome debts.

Civil Rights
A Civil Rights Attorney has the responsibility of defending the rights and privileges granted to all United States citizens. These include freedom from slavery, freedom to vote, freedom of assembly, freedom of the press, freedom of speech and the right to be treated fairly in public places.

Consumer Rights
The Attorney General of a particular state houses the division of Consumer protection and its team of consumer fraud attorneys. Complaints about misleading advertising or business practices that are unlawful can be filed and that division investigates and mediates on behalf of the consumer.

Corporate Law
A corporation is a legal entity created through the laws of its state of incorporation. Individual states have the power to disseminate laws relating to the creation, organization and dissolution of corporations. Many states follow the Model Business Corporation Act.

Criminal Law
A "crime" is any act or omission (of an act) in violation of a public law forbidding or commanding it. Though there are some common law crimes, most crimes in the United States are established by local, state, and federal governments. Criminal laws vary significantly from state to state. There is, however, a Model Penal Code which serves as a good starting place to gain an understanding of the basic structure of criminal liability.

Education
Each state is required by its state constitution to provide a school system whereby children may receive an education. State legislatures exercise power over schools in any manner consistent with the state's constitution. Many state legislatures delegate power over the school system to a state board of education.

Elder Law
The three major categories that make up elder law are Estate planning and administration, including tax questions; Medicaid, disability and other long-term care issues; and Guardianship, conservatorship and commitment matters, including fiduciary administration.

Employment Law
Employment law is a broad area encompassing all areas of the employer/employee relationship except the negotiation process covered by labor law and collective bargaining. Employment law consists of thousands of Federal and state statutes, administrative regulations, and judicial decisions.

Entertainment Law
Entertainment attorneys use multiple areas of legal practice to advise and represent their clients. The different types of employment make knowledge of diverse legal practices necessary for the good entertainment lawyer.

Family Law
Family law is an area of the law that deals with family-related issues and domestic relations including, but not limited to the nature of marriage, civil unions, and domestic partnerships; issues arising during marriage, including spousal abuse, legitimacy, adoption, surrogacy, child abuse, and child abduction; the termination of the relationship and ancillary matters including divorce, annulment, property settlements, alimony, and parental responsibility orders.

Immigration Law
Federal immigration law determines whether a person is an alien, and associated legal rights, duties, and obligations of aliens in the United States. It also provides means by which certain aliens can become naturalized citizens with full rights of citizenship.

Intellectual Property
Patents, copyrights, trademarks and related interests are known as intellectual property (IP). It has not been long since patents especially were regarded in U.S. courts, and the Supreme Court in particular, as tools of monopolists, and their owners often fared poorly.

Labor Law
The goal of labor laws is to equalize the bargaining power between employers and employees. The laws primarily deal with the relationship between employers and unions.

Military Law
The Constitution grants to Congress the power to raise and support armies and a navy, to suppress insurrections, and repel invasion among other military-related governmental roles.

Personal Injury Law
Torts are civil wrongs recognized by law as grounds for a lawsuit. These wrongs result in an injury or harm constituting the basis for a claim by the injured party. While some torts are also crimes punishable with imprisonment, the primary aim of tort law is to provide relief for the damages incurred and deter others from committing the same harms. The injured person may sue for an injunction to prevent the continuation of the tortious conduct or for monetary damages.

Product Liability
Products liability refers to the liability of any or all parties along the chain of manufacture of any product for damage caused by that product. This includes the manufacturer of component parts (at the top of the chain), an assembling manufacturer, the wholesaler, and the retail store owner (at the bottom of the chain).

Real Estate
Real estate transactions are governed by a wide body of federal statutes and state statutory and common law. The requirements established by state law often differ significantly from one state to the next.

Taxation
Taxation in the United States is a complex system which may involve payment to at least four different levels of government and many methods of taxation. United States taxation includes local government, possibly including one or more of municipal, township, district and county governments. It also includes regional entities such as school and utility, and transit districts as well as including state and federal government.

For a detailed overview on each type of law and to download Free EBook on Law, please visit the Law website.

Article Source: http://EzineArticles.com/?expert=Daniel_Sudhakar

Rhode Island Divorce Court Conferences - What Happens Behind Closed Doors?

2007-10-16T04:30:00.002-07:00

If you've been in a Rhode Island Family court either for a Rhode Island divorce proceeding or other family law matter and you've been represented by a Rhode Island attorney then you most likely have seen the attorneys go into the judge's chambers on more than a few occasions to discuss your case.

This can, and often is, very frustrating for clients because they want to witness first-hand everything that goes on in their case. To the uninformed client it can appear fairly suspicious and cause considerable nervousness because they don't know what is being said about them, their case, their assets, their responsibilities, etc. . . . . all behind closed doors.

I can certainly understand the concerns of these clients. Here they are sitting in the courtroom, waiting to be heard . . expecting to be heard . . . and waiting as the moments tick by so that they can say something . . . . ANYTHING . . . to make sure their side of the story is heard by the Rhode Island family court judge assigned to their divorce case.

No doubt, as clients sit in the gallery (a more respectable term than the church type pews that line most of the state court rooms) waiting for their attorneys to come back from the mysterious "chambers" of the judge, they conjure in their minds various images of what may be taking place in the judge's chambers based upon everything from their attorney's demeanor that morning, to the size of the briefcase the other attorney may be carrying in comparison to their own counsel.

So is there a purpose to these "backroom" gatherings that clients worry about? Or, is it merely a way to keep the client's mouth shut and bill a few hours for the attorney?

As a Rhode Island attorney focusing my law practice in the area of Rhode Island Divorce and Family law, I can tell you with certainty that these questions are not merely a creation of my own mind. These are, in fact, questions that are routinely tossed my way by clients, by spectators and by arm chair lawyers that want to second guess their attorneys who may well be in with the judge at the time they choose to try to pick my brain, "free of charge", while they sit and wait to find out what fate may befall them on that particular day.

The long and the short of it, is that conferences between counsel and the judge on Rhode Island Divorce and Family Law Cases are in some instances mandatory, such as Case Management Conferences and Pre-trial Conferences, and are, in other instances, necessary to move the court's docket.

Practicality must be a weighing factor here for all concerned, litigants, attorneys and judges. Every year the state courts are overflowing with divorces, custody cases, domestic abuse matters, etc... There are, in fact, many judges who sacrifice their own personal time and convenience (thanklessly I might add) in order to hear additional matters that wouldn't otherwise be heard if the judges didn't go beyond the scope of what they are simply expected or required to do on a daily basis.

Many Rhode Island Divorce and family court judges deserve a pat on the back or round of applause for what they do for the constituents of Rhode Island and those that become subject to the Rhode Island family court system. It is unfortunate that the public itself rarely sees the things the judiciary do for them from the bench and it is rare, if ever, that good servants of the people go unrewarded and unappreciated.

Though we all have our good and bad days, I believe it is worth noting one particular week in which I observed Magistrate Jeanne Shepard who at the time was sitting in the Providence Family Court hearing nominal proceedings, miscellaneous proceedings and protection from abuse matters. I appeared in the magistrate's courtroom three times in the same particular week. That week and the timing of cases was particularly hectic to my schedule and many other practitioners as the case calendar was very heavy with limited time for each matter. Though Magistrate Shepard's voice was "short" at times with both pro se individuals and counsel alike, she endeavored to hear each person in turn, was attentive as each person presented their case, limited testimony to the extent of the rules of evidence and what was appropriate . . . and most significantly on two of the occasions she required her clerk, her stenographic court assistant and her courtroom sheriff to delay their lunches for nearly an hour on two separate occasions to help accommodate people who had been waiting to be heard that morning and to help attorneys rework their schedules so that not only her docket but other court dockets could move forward. Though not appearing to be an exuberant gesture to to anyone, it was a thoughtful and selfless act that was not within any requirement she had. It was well worth the slight rebuke I received when I endeavored to bring testimony before the court that was only tangentially related to the case matter.

The point is simply this. Conferences are a part of the Rhode Island Divorce and family court process. By and large conferences are much quicker than full hearings requiring movement within the courtroom, swearing in, the formalities of entering exhibits, cross-examination, redirect examination, offers of proof and objections that may go on endlessly if counsel is not particularly adept at asking questions within the boundaries of each and every evidentiary exception. Conferences, generally speaking, can save the client considerable time and money as well since conferences are designed to expedite the process.

There are both pros and cons to conferences that clients should be well aware of. Conferences will rely upon the advocacy skill of your lawyer in an informal setting. Hearings rely upon the advocacy skill of your lawyer in a formalized and possibly highly regimented courtroom proceeding in which a judge may hold your attorney to the letter of the law as to argument, testimony and evidence. Thus, information that your attorney might be able to convey that is favorable to you in the course of a chamber's conference with a judge may not be admissible at all in a formal courtroom hearing. If this were the case, valuable information that YOU consider evidence and want presented at a "hearing" on the record . . . may never be heard or even considered by the judge even though your attorney may make an offer of proof as to that information which the court may consider.

No one can expect nor predict if the results of a chambers agreement would, or even might, mirror the outcome after a hearing. Yet there are significant benefits to chambers conferences for clients and it is best to discuss those benefits with your attorney in determining what stance you would like him or her to take. Practicalities are a concern both with timing, court docket, scheduling, and the monies and time necessary to achieve the result you want in the manner in which you want it.

What goes on behind closed doors? Agreeable resolutions with the candor of individuals who usually know the system, appreciate the practicalities, keep the client's concern's and legal interests foremost in mind and want you to be able to move forward to a better tomorrow.

Visit http://www.ChristopherPearsall.com to learn about Attorney Pearsall's Divorce focused practice

Visit Pearsall Law Associates for a different look at Attorney Pearsall's practice

PLUS . . . get detailed Rhode island Divorce Information at Rhode Island Divorce Tips Blog

Contact Attorney Pearsall at (401) 354-2369 for your low-cost consultation and even find out why FREE consultations are worth exactly what you pay for them!

This article is for informational purposes only and is not legal advice. You should not take legal action without legal advice from a licensed practitioner who has been fully informed about your specific circumstances.

The Rhode Island Supreme Court licenses all attorneys in the general practice of law and has no procedure for recognition of specialties.

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Mediation In A Florida Divorce - What Is It Good For?

2007-10-16T04:30:00.001-07:00

Whether you have considered filing for divorce, or are in the middle of one now, you have heard of mediation. In a Florida divorce, sooner or later you will go to a mediation, either before you file the case; or during the case because Florida judges refer the case to mediation prior to setting a date for trial. The question, then, what is mediation; and what good will it do in your divorce?

Mediation is one of the alternatives to litigation; in other words, an alternative to a trial, and has several important advantages for you. You will use a mediator, who will facilitate communication between you and your spouse. Mediators are not judges; they cannot make you agree, they can simply help you to agree. This is very important in litigated cases, where each party (and sometimes their attorneys) become rigid in holding their positions in a case, and may not consider certain weaknesses of their case because they are so close to the issues.

In Florida family mediators are certified by the Florida Supreme Court, although anyone may mediate your case if you and your spouse agree. A Florida certified family mediator has taken the required training in mediation, including a 45-hour course, as well as satisfied other requirements. Most family law attorneys prefer a certified family mediator because usually he or she is also a family law attorney, and is familiar with family law. However, in Florida, mental health professional and certified public accountants may also become certified in family mediation if they comply with those requirements.

Negotiations in mediation are confidential unless the law requires the mediator to make disclosure. This means you cannot tell your judge what was discussed in mediation. However, the law requires a mediator to disclose certain things, such as child abuse. In any case, the confidentiality is important because it lets the parties discuss the issues and potential agreements fully, without fear of being held to a less favorable position in court if the mediation does not result in a marital settlement agreement.

Mediation has several advantages. The most important advantage is probably the fact that each party keeps control of what the outcome will be. No one is going to be affected by the ultimate outcome like you will be. So why put the resolution of your case in the hands of a third party---a judge--who does not know you, and has hundreds of cases similar to yours?

Also, while your attorneys are an invaluable source of information and advice, they do not work for free. We all know what good legal advice can cost per hour so there is no point in discussing that here. But saving on attorney's fees is also a great advantage in mediation because there is no need to continue litigating once you have reached an agreement--the more money you save in attorney's fees the more you can keep for you and your children.

In addition, studies show that parties to a divorce are more likely to comply with the terms of an agreement they participated in reaching then with the terms of a final judgment imposed by a judge. So, once your divorce is final, you are less likely to go back into court to enforce the terms of an agreement than you are those of a final judgment.

Lastly, there is the advantage of cutting your case short. Anyone who has made their way through the court system is aware of the pressure and stress involved. In a divorce, where many times there are children involved, the last thing a family needs is the pressure and stress of the process or the lingering ill-feeling after the divorce decree is final.

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What To Do Before the Divorce

2007-10-16T04:28:00.000-07:00

When it looks like a divorce action may be approaching your marriage, a proactive approach of taking preparatory steps can significantly reduce the overall financial and emotional cost. To get ready before divorce proceedings begin, what follows is a practical guide to organizing your personal business and life in order to help such proceedings go more smoothly.

1) Outline the family financial situation: make a list of what you own, a list of what you owe, what the family income is and from whence it comes, and the family’s monthly bills/living expenses. Specify who is the named owner or owners on each asset and for each debt (home, cars, credit cards, etc.).

2) Make copies of statements for all accounts your family has, such as bank account, stocks or other investments, pension funds, life insurance and so forth, as well as for income tax returns and any other family financial records.

3) Do an inventory and list all the personal property or assets which belong to you and/or which you would wish to keep if a division of family property occurs.

4) Keep. It. Friendly. If you can keep relations with your partner civil and amicable through the split-up, everyone will win at least a little. Vindictiveness is a poison that will hurt everyone, especially children. And if at all possible, unless you or your children are in danger, don’t move out of your home, not even if your partner asks you to and no matter how much you may want to. If there are children involved, and they remain in the family home, the parent who has physical custody and is living with them day-by-day has a much better chance of getting custody of the children than does a parent who has moved out and just visits. Additionally, moving out could compromise your share in the property. Your partner could undermine attempts to get it sold, so you have to keep paying the mortgage; or the cost of paying for two residences – the family home and your new one – could become so difficult that you forfeit your interest in the home to get out from under the debt.

5) Look for an experienced family law attorney and start the search by asking friends or associates for referrals. Before your first meeting with an attorney, write down all the questions and problems about which you want to ask. As when you go to the doctor, a written list will help you remember important topics during what could be an upsetting discussion. It will help focus the meeting so it takes less time, which saves fees, and it will give the attorney a written document of your priorities that can be kept in your file for future reference. Bring your financial records to your initial meeting for the same reasons – it’s much less expensive for the attorney to get information from you than from financial institutions or from your partner’s attorney.

6) The more negotiating and agreement you work through on your own with your partner, before the divorce proceedings are initiated, the less negotiating your attorney will have to do on your behalf, and again, the more money you will save in fees. When agreement can’t be reached, clearly your attorney will need to step in, but you may be able to resolve some day-to-day matters, for example who pays for car insurance or school fees, or how household goods and furnishings will be divided.

7) Don’t make big-ticket purchases or take on new debt. These items will make your finances harder to sort out if the time comes to divide things, and they could add to the debt load you have to assume at a point when your spending money is decreasing.

8) Make the most educated estimation possible of what it will cost you to live after the divorce, so you know what goals you want to meet in the financial negotiations and the divorce settlement.

9) If you don’t have any credit in your own name, you will need it when you are single again. Start getting a good credit rating by taking out a credit card, department store card or gas card. Use it only to the extent you can pay off in full every month.

10) In working with your family law attorney, if you can send a letter or e-mail when you want to communicate, rather than calling the attorney on the phone, it will help your attorney to work more efficiently, saving time and money. If the attorney has issues or questions given to her or him in writing, it takes less time to learn about the issue than if it is described over the telephone, it gives time for the attorney to think about and research a response, and thus makes the response more effective. Long, “story-telling” telephone conversations can raise billing hours unnecessarily. Use your attorney for legal counsel, and go to family and friends when you need to vent or get emotional reinforcements.

This general guide to putting your house in order before a possible divorce will not apply to every situation, nor be right for everyone, but it can help make a good start. Your family law attorney can assess what actions are best for you to take, and the more organized information you give the attorney, the better that assessment will be. Divorce is not something any of us choose to experience, but when it is unavoidable, do it smart and cooperatively and the pain will be proportionately minimized.

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Divorce And Family Law

2007-10-16T04:25:00.000-07:00

Divorce is one aspect of family law. Family law deals with all the family related issues such as adoption, prenuptial agreements, marriage, divorce, separation, legal separation, annulment, division of the property accumulated during the marriage, alimony, negotiation, domestic violence, adjudication, child custody and support, child abduction, kidnapping or child seizure, emancipation, abuse in the marriage, parental rights, paternity, juvenile, felonies etc., and many such cases related to family. Other than this they also deal with regular cases relating to criminal laws, property related laws, probation law, trusts etc. However, majority of the cases that come to family lawyers are the divorce, separation, abuse or child custody cases. In simpler words, all the domestic litigation cases are filed under the family law.

Divorce is one aspect of family law and so is to be filed in the family law court. Many legal companies specialize in providing advice for family related issues, most common being separation, divorce and child custody and support. Approaching these companies would be advantageous in messy divorce cases. They would be able to handle with expertise all the aspects of divorce and afterward.

Lawyers and attorneys practicing family law are the best with more experience than qualifications. It is amazing how much documentation and negotiation is expected when taking care of a family related case. Along with this the lawyers must be able to support the party professionally, emotionally and morally all the while helping in separating the client from the spouse and in some instances from the children. Also, the lawyers dealing with the family law cases must be aware of the laws in that particular state as family law differs in each state. An experienced and qualified lawyer would be able to make a divorce case less painful and a lot quicker. Lawyers who are experienced in family law and handle all the necessary documentation for the same are also well versed in the divorce proceedings related documentation.

Family law attorneys charge the fee depending on the type of case. In case of divorce, the price can range depending on whether the parties have still some issues pending between them such as property division, child custody, support etc., Most attorney charge either an hourly fee or a flat rate after the case is filed and the court accepts the divorce. However, the best kind of attorneys charge by the hour as there would be less scope of getting fleeced later on after getting a big settlement or alimony from the spouse. These hourly rates can vary depending on the area or state where the case is to be held. Of course, a lawyer in New York, Beverly Hills or Los Angeles would be expected to charge a lot more than a lawyer from a small place in Iowa! Also, it is a usual practice for the attorneys to charge a retainer, as is the case with regular lawyers practicing in other fields of law. If unable to bear the retainer charges, the court can make the spouse bear the retainer charges when the court is requested for counsel fee pedente lite. Pedente lite is a court order for taking financial care of a low income spouse while court proceedings are ongoing.

Article Source: http://EzineArticles.com/?expert=Steve_Valentino

Family Law

2007-10-16T04:23:00.000-07:00

Attorneys and lawyers practicing family law take up cases relating to all kinds of family related issues. These can be adoption, prenuptial agreements, marriage, divorce, separation, legal separation, annulment, alimony, division of the property accumulated during the marriage, domestic violence, negotiation, adjudication, child custody and support, child abduction, kidnapping or child seizure, emancipation, abuse in the marriage, parental rights, paternity, juvenile, felonies etc., and many such cases related to family. Other than this they also deal with regular cases relating to criminal laws, property related laws, probation law, trusts etc. However, the majority of the cases that come to family lawyers are the divorce, separation, abuse or child custody cases. A number of details need to be considered when it comes to these cases and family lawyers are specialized in all the legalities involved in such cases.

A number of questions tend to arise when a couple is getting separated legally or getting divorced. One is the process of getting divorced with a minimum fuss, as getting separated or divorced can in itself be a traumatic experience on both the parties. Add to this a contesting from either party and the whole thing becomes quite messy to handle without a lawyer to offer sufficient moral and professional support.

One other important issue that must not be neglected is the child custody and child support if any children exist as a result of the marriage. Even though the court finally approves all the aspects regarding the custody and support for the children, both the parties must be able to reach to a decision even before filing the papers. Attorneys and lawyers practicing family law will be able to provide immense assistance in such cases.

Family lawyers will be able to assist with all the usual questions that might arise in such cases. Child support laws vary in each state as the law is governed by each state individually without any input from the federal level. However, certain issues such as deciding the parent who is liable to receive the custody and the parent who is supposed to pay for the support, calculation of the amount of child support to be borne, etc., are the questions a lawyer from a particular state would be familiar with.

Family lawyers can also be of a big help if the supporting parent is missing or if the payment is not on time, or even in some cases when the individual does not care enough for the court orders to cough up sufficient amount for the child support. Deciding on other criteria such as visitation rights, receipt of money if both the parents are in different states, or when the child supporter is unable to make payments duly on time due to pecuniary problems.

Family problems can be very upsetting and distressing and the best way to handle them is with the help of a lawyer practicing family law. An exhaustive list of lawyers that are qualified, experienced can be found either from the yellow pages or on the Internet with some effort. A word of advice, it is the best option to always go for a new lawyer chosen on basis of qualifications and experience instead of the ones recommended by friends or acquaintances or relatives to avoid any problems or explanations later on.

Article Source: http://EzineArticles.com/?expert=Steve_Valentino

Wrongful Adoption: Fraud by Adoption Agencies

2007-09-28T16:00:00.000-07:00

ntroduction

This past year marked the first known substantial recovery in California against a county adoption agency for its failure to disclose to adopting parents their adopted child's medical and psychological history. Forter v. San Mateo County is the first known successful adoption fraud case in the United States, but it is not unique. There are many equally tragic cases that await the discovery of mental health professionals and the efforts of trial lawyers to help these families obtain the funding necessary for lifetime psychiatric care.

The Adoption Agency's Duty to Disclose

The essence of an adoption fraud case is contained in Michael J. v. L.A. City Department of Adoptions (1988) 201 C. A. 3d 859, 876, which in recognizing an action for misrepresentation and fraudulent concealment of an adopted child's pre-adoption history, held that in an adoption "there must be a good faith full disclosure of material facts concerning existing or past conditions of the child's health." [Emphasis added.]

Full disclosure is important because adopting parents are opening their homes, their financial resources and their hearts to a child and as a matter of basic fairness are entitled to full disclosure. More importantly, full disclosure by the adoption agency ensures that a child needing prompt intervention and treatment will receive it and that untreated conditions which could be aggravated can and will be resolved.

Adoptions occurring between January 1, 1979 and January 1, 1981 are governed by California Civil Code Section 224s, amended Statutes 1978, Chapter 429, page 1339, which provides in part:

No agency shall place a child for adoption unless the agency has submitted a written medical report on the child's medical background, if available, and, so far as ascertainable, the medical background of the child's natural parents, conforming to requirements which shall be specified by the State Department of Social Services, to the prospective adopting parents and such prospective adopting parents have acknowledged in writing the receipt of such a report.

Civil Code Section 224s was amended effective January 1, 1981, Statutes 1980, Chapter 1229, page 4153, as follows:

No agency shall place a child for adoption unless a written report on the child's background, if available, and, so far as ascertainable, the medical background of the child's birth parents, has been submitted to the prospective adopting parents and the prospective adopting parents have acknowledged in writing the receipt of such report. The written report on the child's background shall contain all diagnostic information which is known, including current medical reports on the child, psychological evaluation, and scholastic information, as well as all known information regarding the child's developmental history and family life.

Both statutory duties are for the benefit of prospective adoptive parents and children and focus on the time of placement, not adoption. Placement occurs once the child is deemed by the courts to be fully relinquished by the natural parents and can be lawfully placed by the local agency.

While vigorous advocacy for the victims of adoption fraud can provide valuable remedies, these cases are extremely challenging from both a legal and factual perspective. Here are some of the pitfalls to be avoided.

Timely File a Claim

As soon as the child's parent suspects fraud by a public adoption agency, a claim must be filed within six months to preserve the parents' claims for damages for lifetime support and within one year to preserve the child's cause of action.

The time for filing a claim against the public agency begins to run as soon as a reasonable person should have been on notice of governmental misconduct. This defense is not summarily avoided because the issue is factual and each new fact uncovered concerning the child's history becomes a further piece of defense ammunition to be advanced against the plaintiff in light of all the surrounding facts.

The pitfall to be avoided is inadvertently proving the defense in efforts to establish the parents' and child's claim for damages for emotional harm. While it may be true that the parents and child have suffered over the years as a result of the agency's misconduct, proving the parents' damage case by emphasizing the bizarre conduct of the child and the length of time it continued also helps to establish the defense that "anybody would have suspected" pre-natal injury, pre-adoption abuse, and the like. In short, because hindsight is perfect there is a natural tendency to assume that the adopting parents should have concluded that they have been defrauded long before they learned the truth. So keep in mind that while proving damages these same facts will be argued by the defense in support of its statute of limitations defense.

In Forter the County repeatedly raised its limitations defense throughout discovery hoping to be able to develop enough facts to prove at trial that the parents should have suspected something was awry when their son's conduct began to become unacceptable, which was long before they filed their claim. It is reasonable to expect that this will occur in every case. Since hindsight is perfect, as the child's history of acting out comes forward it is important to keep it in perspective and within the context of the challenges of helping an adopted child adjust, often a lifetime process. Parents of adopted children must always struggle with making adjustments, and childhood conduct by itself without the benefit of knowing the child's history, medical background, and parental health care history does not lead to any meaningful action by parents. In addition, even with early referral to a child psychologist, without an accurate history the professional efforts of the therapist are dramatically less effective. Nonetheless, once the concealed history is revealed the etiology becomes so clear and compelling that it is easy for a lay person to mistakenly conclude that Mom and Dad should have suspected pre-adoption abuse, pre-natal alcohol or drug abuse by the natural mother, or the birth parents history of mental illness, and thereby provide the adoption agency with a good defense. An early claim disposes of this hazard.

As soon as a parent suspects fraud by the placing agency, a claim should be filed immediately. As a practical matter, the real basis of the action will not be provable until counsel examines in deal the voluminous records created in every public adoption. These documents are only available with a court order once an action is filed, so do not delay in filing a claim at the very earliest moment because it is only after suit that plaintiffs' counsel will be able to verify the facts initially reported by the adopting parents.

Plan for Substantial Case Costs

Preparing an adoption fraud case, like any case involving damages in excess of a million dollars, is expensive because of the need for expert witness testimony. Knowing what resources you will need will help you prepare and assure a complete investigation before unnecessarily committing funds to a case where a recovery is problematic.

Forter v. County of San Mateo required the testimony of the original treating psychologist who first saw the plaintiff when he was age three, the current child psychiatrist to testify concerning his current condition, prognosis, and the impact of the concealment of his psychiatric history and delayed treatment, a professor of social work on the failure to meet the standard of care in the original placement of the child, the treating pediatrician who had not been provided with the child's psychiatric records, a pediatric neurologist concerning the importance of a complete history in diagnosing childhood disorders, an adult psychiatrist concerning the plaintiff's prognosis in the absence of immediate special care, a psychologist/educational specialist who prepared a treatment lifeplan and presented the cost of services for the balance of this teenager's life expectancy, and an economist. There were several thousand pages of records to read from psychologists, several mental hospitals, Child Protective Services, AFDC files, adoption files and criminal records on the natural mother and total discovery came to twenty lengthy depositions. Pre-trial case costs advanced in Forter, exclusive of attorney's time, totaled $47,000. But for accepting the responsibility to pay these expenses and the anticipation that contingency fee would be approved by the court, this child's future psychiatric needs would remain unpaid.

Contest the $250 Limit on Recoveries for Post-1983 Placements

Placements after January 1, 1984 are subject to a peculiar limitation on recovery of $250 under The Adoption Information Act of 1983, codified in Civil Code Section 204t(14). Placements that occur before December 31, 1983 are not subject to this limitation, although the adoption agency will argue the contrary. In Forter this defense was raised by summary judgment and again at the time of trial.

Since the damage caused by failing to disclose a child's history can have a devastating impact in appropriate cases occurring after 1984 this statute must be challenged.

Many conduct disorders do not blossom until early puberty and are not fully appreciated until teenage years. As a practical matter, parents who report an incorrigible 13 or 14 year old, born in 1979 or 1980 most probably were placed before 1984 and can bring suit unimpeded by the necessity to challenge Section 204t(14).

If placement occurred after January 1, 1984, before challenging the legitimacy of the limitations on damages, carefully scrutinize the underlying facts to determine if this is the optimum case before delving into the legislative history behind Section t(14). There is no current case law on this statute.

The legislative history behind the statutory scheme requiring full disclosure was intended to also allow for an adopted child to be able to find out about his/her natural parents. In order to avoid potential damages as a result of this disclosure process the Legislature limited damages under the new statute to $250. Obviously, there was no intention to limit the lifetime damages of a child who has been irreparably injured by the willful misconduct of a social workers or other actions of employees of a Department of Social Services that have caused a child's life to be permanently warped.

Defendants will argue that The Adoption Information Act of 1983, specifically Section 14 of chapter 1162 of the Statutes of 1983, limits their liability exposure to $250.00 in all cases, even adoptions occurring before its effective date, January 1, 1984.

For the argument to prevail, with regard to children placed prior to December 31, 1983, a court would have to retroactively apply The Adoption Information Act. Courts routinely do not take such action.

Retroactive laws are generally disfavored because the parties affected have no notice of the new law affecting past conduct... (citation omitted). Consequently, new enacted statutes are presumed to apply prospectively only unless a clear intent to the contrary is expressed by the Legislature. Russell v. Superior Court (1986) 185 CA3d 810, 814.

There is absolutely no indication of any intent, let alone a clear intent, by the Legislature to apply The Adoption Information Act of 1983 retroactively. In fact, the only specific references to when The Adoption Information Act of 1983 would apply, other than the presumed normal prospective application, is the delayed prospective application referenced in Section 10 which states: "Sections 2, 4, 5, 6, and 7 of this act shall be operative January 1, 1986."

Other cases have refused to apply new damage provisions retroactively in the absence of clear legislative intent, on the ground that the new statutes reduced the amount of available damages and thus worked a "modification of liability," changing the legal effect of past transactions, rights and obligations. Russell, supra, at 816.

Even if there were a clear legislative intent to apply the 1983 statute retroactively, which there is not,such retroactive application would not effect a plaintiff's independent common law tort causes of action for fraud, intentional misrepresentation and concealment, negligent misrepresentation and concealment, intentional infliction of emotional distress, and negligent infliction of emotional distress. These common law tort causes of action exist independently from any statutory violation of Civil Code Section 224s.

Lastly, and conclusively, in Michael J., footnote 9, the Court stated:

The limitation of liability . . . "with regard to the programs authorized by this act" to two hundred and fifty ($250.00) for each such act or omission (citation omitted) would not apply to misrepresentations in the adoptive process outside of these particular programs. [Emphasis added.]

These "particular programs" enacted in 1983 did not exist beforehand and making liability for any act or omission with regard to programs authorized by this act an impossibility prior to December 31, 1983.

A plaintiff's delayed discovery of the adoption agency's fraud, which tolled the commencement of the statute of limitations, has no bearing on a defendant's attempt to accomplish a logical impossibility. While a plaintiff's causes of action will have accrued following delayed discovery prior to the filing of the claim and complaint, the law which effectively applies to a defendant are those which were in effect at the time of defendant's misrepresentations and concealment.

The Legislature's intent in passing The Adoption Information Act of 1983 was to facilitate efforts by adopted children to find their natural parents. In order to promote that goal and anticipating complaints by both children and natural parents of poor record keeping or wrongful disclosure, the Legislature adopted a $250 limit on damage claims against adoption agencies. The unfortunate outcome is that the Act now can be used by both negligent and willful wrongdoers to seek to shield themselves from responsibility for failure to disclose a child's medical history and the devastating damage caused by such concealment. This resulting injustice must be corrected by our Courts or Legislature.

Inquiries at the Initial Client Meeting

First determine if the the initial placement or the adoption occurred before January 1, 1984, for the reasons explained above. Once that hurdle is crossed, plan to devote several hours to working with your client to review all records and to begin writing a cogent history of every contact between the adoption agency and the family before and after placement. Your goal is to begin piecing together the history so that a detailed chronology will be readily available for reporting to your experts, for motions, settlement conference statement, and trial brief. In large part this history will not be finished until after the agency's adoption records have been produced.

At the initial meeting find out what type of child the adopting parents initially requested from the adoption agency when they filed their application. What were they were told about the child's and his/her natural parents' medical and social history at the time of placement or adoption as required by Civil Code Section 224s?

Is the child's condition today consistent with undisclosed prenatal abuse, fetal alcohol syndrome, pre-adoption physical, emotional abuse or neglect, or inherited mental illness? Has there been a failure to bond? Is the child abusive, rebellious, out-of- control, sexually active, or violent?

Has the adoption agency admitted at any time that it failed to fully disclose or at any time after the adoption made any additional disclosure? Has the client demanded from the agency all records which may indicate the cause of the child's current condition? If so, when? How long has the client's statute of limitations time clock been ticking?

Has the failure to disclose aggravated the child's condition or delayed securing appropriate treatment?

Content of the Claim and the Complaint

Under current law, a claim is treated as a pleading and must set forth, each party, each legal theory upon which a recovery will be sought and each item of damage.

It is important to include as claimants both the child, the adopting parents, and any siblings who have also suffered as a result of the disruption to the family home caused by the adopted child's psychiatric condition.

A claim must include each theory of liability and the supporting facts. In short, say more rather than less in explaining the basis of liability and the damages claimed. Since the essence of the action is delayed discovery, be especially careful to plead the date your client first suspected they had a cause of action against the adoption agency.

The Government Code Section 818.8 and 822.2 grants public entities immunity from liability for negligent misrepresentation. The immunities apply only to interferences with financial or commercial interests, including issuances of permits or licenses. Johnson v. State (1968) 69 Cal.2d 782, 800. These immunities do not shield defendants from liability for misrepresentation or deceit in adoptions. Michael J., supra, at 872. So while the claim must include as grounds for liability willful misrepresentation and concealment, in order to secure the resources and participation of the agency's insurance carriers in any eventual settlement, the claim and the complaint to follow must plead the defendants' negligent conduct, negligent infliction of emotion harm and negligence per se for violating statutory duties.

Claimed economic damages should include: past and future mental health care for life, including residential care; supervising advocate for life; life time home care and supervision; and lifetime lost wages for the child.

Do not forget to include non-economic, general damages for every claimant.

Although public entities as a matter of law are not subject to punitive damages for oppression and despicable misconduct, public employees can be held for punitive damages. So while punitive damages need not be listed in the claim, be sure to include a punitive damage claim against the individual tortfeasors in the final complaint.

Relinquishment is Not the Exclusive Remedy

The defendants will claim that the parents exclusive remedy is to relinquish their child under Civil Code Section 228.10 which provides that a petition to relinquish " shall be filed within five years after the entering of the decree or order of adoption." In most cases, the five year statute will have run years ago and the agency will claim it is insulated from suit.

This argument is flatly contradicted by the express language of Section 228.10 itself. There is no mention nor hint in Section 228.10, nor in any case, that it was intended to be an exclusive remedy.

The plain wording of the statute is that relinquishment is one option. The word used is "may:" "a petition setting forth those facts may be filed by the adoptive parents" and "If those facts are proved to the satisfaction of the court, it may make an order setting aside the decree or order of adoption." There is no mandatory language used in Section 228.10, and be sure to explain to the court when the defendant's motion is heard that the word is "may" not "must."

The fact is that Section 228.10 (formerly Section 227(b)) dates back approximately fifty years. Yet claims for monetary damages have been approved for concealment and misrepresentation in the area of social services. In reversing Summary Judgment, the Michael J. Court specifically held at 875:

Under these circumstances, and recognizing deliberate concealment and misrepresentation would be actionable, we hold that Summary Judgment is improper. (emphasis added)

Thus, case law approves of claims for damages and this statute offers no support for a wishful exclusive remedy defense. If the adoption statutes are to be liberally construed to promote justice and the welfare of the children, the statutes cannot be tortuously construed to insulate wrongdoers who conceal and misrepresent all to the harm of the child and their adopting parents.

Defendants will also claim in support of an exclusive remedy claim that money damages awards will cause more children to be deemed "unadoptable" because they might later develop mental illness.

The effect of exposure to money damages awards is to force full disclosure of information to the adopting parents in compliance with the law, and discourage the reprehensible concealment and misrepresentation seen in the instant case. After all, "just as couples must weigh the risks of becoming natural parents, taking into consideration a host of factors, so too should adoptive parents be allowed to make their decision in an intelligent manner." Michael J., supra, footnote 10. Adoptive parents should not be left to make the life-long decision of adoption with anything less than all the available information on the child.

If the exclusive remedy argument were the law, adoption agencies could routinely withhold vital information from adoptive parents with impunity. Civil Code Section 224s would be rendered meaningless. Defendants could withhold information to facilitate the adoptive parents' agreement to adopt, and if the situation did not work out or the concealed information became known, the adoptive parents could only petition to vacate the order of adoption, but only if the adoptive parents petitioned within five years. Beyond five years the adoptive parents and the child would have no remedy for what will inevitably become a life-long tragedy for both. That is the true social cost of the concealment and misrepresentation that adoption agencies seek to protect from liability with their absurd exclusive remedy argument.

Conclusion

Adoption fraud cases couple claims for psychiatric injuries to a child, with the claims of parents who have been emotionally and financially brutalized by an adoption that was expected to bring happiness to their home and family. Losing the expectation of a happy child and a wholesome home life and having it replaced with wholesale grief is an especially tragic injury to be inflicted on parents who opened their homes, families, financial resources, and their hearts to a needy child. The lifetime damage inflicted on children, leaving them only with the prospect of being anti-social and unemployable due to emotional injuries and damaged personalities, obviously leaves them as prime candidates for criminal activity, prosecution and imprisonment.

The strength of the tort law is that it provides the jury a public forum to express the community's standard of accountability. In the wrongful placement of children for adoption, there are no emotional or psychological impediments to the jury's unleashing a roar of disapproval, once the legal hurdles have been overcome. Obtaining a recovery for a wrongfully adoption placement is requires informed and extremely vigorous advocacy.

Current legal impediments to assure these victims full and complete psychiatric care should be removed. Our least protected citizens, orphaned children, deserve the best possible care by county adoption agencies and when that does not occur our Courts and Legislature should provide full and complete remedies to hold perpetrators of adoption fraud fully accountable.

Author - Richard Alexander

Are You Prepared For Your Child Custody Hearing?

2007-09-28T15:53:00.001-07:00

The court plays a significant role in determining what is in the ‘best interests’ of your child. The court considers all aspects including physical, educational, spiritual, emotional as well as preferential requirements of a child, so it makes a study of homes of both parents, along with schools, location, neighborhoods and facilities, before making a decision on custody.

Although the courts have the best interests in mind, there can’t be anyone more important in making the best decision for their children than parents. Parents should try and settle their Child Custody issues outside the courts. A custody decision arrived on your own with two agreeing parents is more desirable than the one which is disputed a determined by the court.

Preparing for the Child Custody trial, you should possess certain documents and information related to your children, which will help determine the best interests of your child. It is better if you maintained a record of your children’s life about events which affect them, like visiting with the other parent, grandparents, doctor’s appointment, school activities, family and religious activities, medical appointments and counseling dates, etc. You should support your position, by keeping notes with you regarding,

1. Parent’s Home: This factors determines whether you can provide good surroundings and adequate shelter for your children, the size of the house, neighborhood, availability of help and babysitters, hospitals, bathrooms, bedrooms, etc. play a significant role in determining the best one for the child. Though not an important point, it does help make a good impression.

2. New Relationships: This is a comparatively irrelevant factor in determining Child Custody cases, the court will consider this factor if only the relationship makes any impact on the child’s well being. If the new relationship does not play any important relationship then this point will not be relevant to determination of Child custody.

3. Status Quo: It is an important factor in determining custody case, if a child’s parents reside in different districts, it in unlikely that the court will order to change the residence during the academic year, especially if the child is being properly brought up. If you want a change in status quo, you will be required to furnish a strong reason for this. A good example would be an issue with the current conditions unsafe for the child.

4. Child’s Preference: A child’s preference is not considered by the court since the court will not give a child to make a decision for himself, however this might not be the case if the child happens to be a teenager and possess enough power to think and evaluate position.

5. Parent’s Availability: Full time parenting has an advantage over working full time for supporting oneself. However, the court might not deter from giving you the custody only because you need to work to support yourself and your child.

These are just a few things to consider while preparing for your Child Custody case.

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Preparation for Child Custody Court Ordered Mediation

2007-09-28T15:50:00.000-07:00

In cases where it is child custody is contested, family lawyers therapists and mediators can help get parents in this difficult situations, it is necessary that the plan developed is child centered so that their children’s interests are taken care of.

Most of the cases can be solved through a mediator, it might be a private one or someone sent by the court, if the couple is unable to reach a plan in the process of mediation next process that they could enter into is evaluation. Mediation takes place for 90 minutes in court-assigned cases, however, in order to have full discussion this time limit can be extended further. In case of private cases there is not time pressure.

Mediators help collect complete information about each parent and organize this information in a useful way. During mediation all history of both the parents is extremely useful. All aspects including childhood, past divorces, past history, parent’s history, parents’ martial status, siblings, relations with siblings, history of crime, domestic violence, etc. are also taken into consideration. You as a parent must be prepared to show yourself in the best possible light.

Mediators and evaluators look for red flags, which mean that there are certain details like dates etc. which do not match among both the clients. Mediators and evaluators then may challenge the dates and timelines. The more each can see with one another’s perspective, the more constructively proceedings will take place.

In order to be successful in presenting actual parenting plan, mediators and evaluators should try to make their clients understand that they should present themselves to be reasonable, articulate and flexible parents and that they should not in anyway disturb the court in anyway while proceedings are on.

At the time of evaluation, you should conduct a safety check on your clients. You have to inspect their homes and see whether things are generally in place. All the residents of the home should make themselves available for the interview and guests should leave within 10 minutes of arrival of the evaluator. Evaluator can ask for references of people you know, it would be better if you can furnish these immediately.

Plans that are not well thought off might turn out to be red flags, so preparing for evaluation in advance is necessary. There are special considerations offered by courts in cases where there is a history regarding domestic violence, abuse, etc.

Therefore, it is required that solid preparations are carried out for the purpose of mediation and evaluation, these can bring success. The client will not make any mistakes since the level of confidence would be higher. These tips will go a long way in maximizing chances of success in mediation and evaluation.

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California Prenuptial Agreements

2007-08-16T05:06:00.000-07:00

Aren’t Prenups unromantic and indicate a lack of trust?

Even though one in ten couples now enter into some kind of prenuptial or premarital agreement (“prenups”) many couples are reluctant to enter sign a prenup because it seems unromantic and indicates a lack of trust.

There are several reasons why this reluctance is misplaced.

First, if not you do not sign a prenup, your marriage will be governed by a complex set of laws. In California they are the California Family Code and Probate Code. Either way your marriage will be governed by a complex set of rules. The choice is between a set of rules negotiated by you or imposed by the State.

Second, from a historical perspective, premarital contracts lie at the root of the institution of marriage. For two thousand years, Jewish marriages have been preceded by a prenuptial agreement called the “Ketubah.”

Third, far from undermining trust, the process of drafting and negotiating a prenuptial agreement may, in fact, strengthen your relationship. The process requires a full disclosure of your financial situation and involves an open and honest discussion of about how you will handle your money and plan your future. One psychiatrist states: “openly agreed upon rules are likely to be a better foundation for growth than are those latent rules that surface and prove to be either disagreeable or downright outrageous (‘What do you mean, you don’t do dishes?’)”

Fifth, prenups prepare you for marriage. Sooner or later you are going to have to talk about money issues. Why not do it now and save heartache and trouble later on? After your honeymoon is over you will soon find out how earning and spending money is an integral part of your marriage. The Catholic Church recognized this fact and incorporates a prenuptial dialogue in a marital preparation process called “Pre-Cana.”

Sixth, prenups can be drafted to protect both spouses not just a wealthy spouse.

Seventh, it just makes sense. No-one plans on their house burning down, ending up in a nursing home or suffering a disability but they still take out insurance. As Dr. Ruth says: “We live in such a litigious society. Nobody knows what life brings. Hopefully we will never need it. What’s the big deal? Let’s do it and give it to the attorneys…for the new millennium, a prenup is part of a mature relationship, based on love, mutual trust and optimism.”

Do I need a California Prenup even if I don’t plan to live here?

Even if you do not live here when you divorce, California can still assert jurisdiction over you for support, attorneys' fees, and the division of property. California also applies the doctrine of divisible divorce which means that each aspect of a divorce is treated differently for jurisdictional purposes. For example, a California court could assert jurisdiction over custody and visitation matters but relinquish property matters to the Court of another state. Consider the billion dollar divorce of David and Susanne Sapperstein. Vanity Fair reported that David Sapperstein left was his wife of 23 years for their Swedish nanny. Suzanne lived in Los Angeles with their youngest child in what is reported to be the most expensive mansion in Los Angeles. During a trip to France on the couple’s gulf stream jet, David said they had to stop over in Houston, Texas where he had business. Once they hit the ground, his attorneys served Suzanne with divorce papers. A few days later she filed divorce papers in California. Why? California has more liberal rules on alimony (spousal support) than Texas which ends after three years.

Even though a California prenup is designed to apply only if you are divorced in California, it may apply if you are divorced in another state. That result is not guaranteed but there is a good chance that it will be. If you want to make sure that your California prenup is enforced in other states you need to retain counsel in that state to review the prenup.

There is an even greater risk that a California prenup will not be enforced in a foreign country. Many countries such as Denmark, France and Germany recognize prenups but have different marital laws and specific procedures for the execution and registration of prenups. England and Australia do not recognize prenups but some courts have taken them into account when dividing property. If you plan on living in another country you should consult with a family law attorney in that jurisdiction.

Sex and Prenups

California prenups cannot regulate child custody or child support. They cannot regulate your behavior and they cannot punish a spouse for being unfaithful. In one highly publicized prenup, a New Mexico couple agreed that they should have sex at least five times a week, pay for everything in cash and not leave clothes strewn on the floor. Those provisions wouldn’t be enforceable in California. It should be noted that the couple are reportedly still happily married.

Religion and Prenups

Prenups cannot regulate the practice of religion. However, in one important area prenups can provide a spouse with an important religious protection. Under traditional Jewish law, if a husband does not grant his wife a religious divorce or “get,” the woman is considered an “agunah” and cannot get re-married. California does not have a “get” law like New York so in order to protect a Jewish woman’s right to a “get” it is suggested that a prenup contains a penalty clause that the husband pays a fine for every day he does not grant a “get.”

Prenups and Community Property

In the absence of a prenup, California community property law provides that all community property (any property acquired during the marriage while the parties are living in California that is not a gift or an inheritance) is divided equally upon divorce. It usually does not matter if the property is in one party’s name – if it is acquired during marriage, with some exceptions, it is community property. Property owned before marriage is separate property and cannot be divided by a court and belongs to that party. However, efforts to improve, enhance or contribute to separate property can create a community property interest in that separate property. That is where a prenup comes into play. A prenup can provide that your spouse never acquires a community interest in your separate property.

If you do not have a prenup, the determination of what is separate and what is community property often requires the use of forensic accountants. In high-asset cases, the accounting and legal fees can run into the hundreds of thousands, or even millions, of dollars. Furthermore, in determining whether a business owned before marriage has any community interest, the property must be valued both at the time of marriage and at the time of separation, and sometimes again at the time of the divorce trial which can be years after filing for divorce. Similar calcula¬tions are made for real estate and intellectual property. Furthermore, earnings are commu¬nity property. If you married without a prenup and earned $50,000,000 during your marriage, that entire sum would be community property. That means your spouse would own one-half of that property and anything purchased with that property.

Furthermore, if you lost any of that money in a bad investment or mismanaged your assets, your spouse may have an action against you for a breach of fiduciary duty. And if you reinvested those earnings in a separate property business or any other property, your spouse could request that you reimburse the community for the money spent. In a long term marriage that tracing may be impossible to do and sometimes the person claiming a separate property interest forfeits their claim.

Under California law, the proceeds of loans are community property under certain circumstances. If an individual owns compa¬nies and uses financing or factoring to finance a business, the loan proceeds can be so commingled in the business that the owner can end up losing his separate property interest. Also if you refinance your real estate, you may be contributing community property to your separate property asset.

A prenup can regulate all aspects of how separate and community property assets and liabilities are treated. In the case of a financially independent couple with their own resources a prenup can provide that all income, assets and debts acquired or incurred remain separate property. Alternatively, in lieu of a community property distribution, a wealthier spouse might agree to pay the other spouse a lump sum based on the length of the marriage. On the other hand, a couple might agree that all property accumulated during the marriage remain community property but that certain property brought into the marriage such as family businesses or funds always remains separate property. Since each situation is different a prenup should be carefully tailored to meet the circumstances of each couple.

Spousal Support

California law allows you to waive or limit spousal support as long as the provision is not deemed unconscionable. Unfortunately, as yet there is no case law defining the word "unconscionable." If there is a significant disparity in the amount of wealth between the parties, instead of waiving spousal support, the prenup may place limits on the amount and duration of support. The amount and duration can be based on a formula which takes account of the income of the parties and the duration of the marriage.

Do it right

When Steven Spielberg and actress Amy Irving divorced after four years, she argued that their prenup which was written on the back of a napkin was not enforceable because she was not represented by an attorney. The Judge agreed and she received a $100 million settlement. When Spielberg married Kate Kapshaw, both were represented by attorneys when they signed a prenup.

© 2007 Warren R. Shiell. All rights reserved. The information contained in this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

By Warren R. Shiell Esq., Attorney at law, at http://www.la-familylaw.com

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Divorce Glossary

2007-08-10T18:17:00.000-07:00

Here are some of the legal terms you should know during the divorce process.

By David M. Wildstein, Esq.

Case Information Statement (CIS)
A multi-page financial document that must be completed by each party, describing the details of income, expenses, assets and debts.

Certification
A sworn document describing facts of a particular issue, similar to an affidavit. A certification is filed with a Notice of Motion or in reply to a Notice of Motion brought by your spouse.

Deposition
Procedure during which an attorney questions a witness or a party to the divorce under oath and the questions and answers are transcribed by a court reporter.

Discovery
Exchange of information regarding all issues relevant to your divorce. The most frequently used forms of discovery are interrogatories and depositions.

Early Settlement Panel (ESP)
A conference at the Court House attended by you, your spouse, and both attorneys. The facts of your case are presented to a panel of family-law practitioners who volunteer their time to assist in the settlement of cases. These panelists consider the specific circumstances of your case and make a recommendation for settlement. While non-binding, this recommendation frequently helps the parties and their attorneys reach a settlement agreement.

Equitable Distribution
The statutory right to receive a fair distribution of assets acquired during the marriage.

Interrogatories
Written questions used as part of discovery which are answered and sworn to by each party.

Joint Custody
There are two aspects to joint custody:

Joint legal custody means that the parties share the rights and responsibilities for making decisions concerning the significant aspects of a child's life, including educational, medical, and religious issues.
Joint physical custody means that the child lives part of the time with each parent. The nature and extent of sharing of time may vary significantly.
It is not unusual for parents to have joint legal custody while one parent has sole or primary physical custody and the other has substantial time with a child.

Judgment of Divorce
A document that grants a divorce and reflects the CourtÕs decision following trial, resolving all issues such as alimony, support, custody, visitation and equitable distribution.

If the parties settle out of court, the Judgment of Divorce includes all the terms of the Settlement Agreement.

Notice of Motion
To obtain a court order for support, discovery, or other relief, either party may file a Notice of Motion with the Court. The Notice is supported by the certification of the party seeking the relief.

Most often, the Court permits attorneys to appear in court and make arguments on behalf of their clients on the return date of the motion. Clients may appear in court on motion days to observe the procedure but are rarely allowed to testify. Occasionally, the Court makes its decision solely by reading the papers submitted. After the decision is entered, one of the lawyers prepares an order that documents the judge's ruling.

Order
A document that reflects the Court's decision after hearing a Motion or Order to Show Cause.

Order to Show Cause
When emergency relief is sought from the Court, a party may file an Order to Show Cause. For example, a party might file an Order to Show Cause when there is an imminent threat that funds will be dissipated or that a child will be taken out of the State.

Trial
If the parties cannot resolve their differences, the parties and their witnesses testify and present evidence in open court, subject to interrogation by the other spouse's lawyer. At the conclusion of the trial, the Court renders a decision called a Judgment.

David M. Wildstein is a senior partner in Wilentz, Goldman & Spitzer, and Chair of the firm's Family Law Department. He has exclusively practiced family law for over 25 years, and he has been a member of several New Jersey Supreme Court Committees that have shaped the rules and procedures for family law in this State. He is the author of a helpful guidebook entitled Divorce and Child Custody: Frequently Asked Questions.

The Child's Bill of Rights

2007-08-10T18:01:00.000-07:00

By Stacy D. Phillips

Our nation was founded with certain inalienable rights, rights that were won after a monumental struggle to establish a society in which all its citizens could be free and secure within its borders. Since the concept we all cherish became a reality more than 225 years ago, we have done a fairly good job of eventually including just about everyone under the Constitutional umbrella we know as the Bill of Rights.

I say "just about everyone", because it was only a few years ago that someone got the long overdue notion of including in the equation the victims of marital and paternity wars -- the children. It finally came to our attention that children had been largely ignored as citizens who must be accorded full protection under the law, even if it meant creating another Bill of Rights.

And so it came to pass that a little-known document has been drafted exclusively for the children of divorce and paternity cases known as the Child's Bill of Rights, a set of guidelines established and endorsed by the courts in all 50 states that must be preserved in any custody arrangement.

While each state's judicial system has its own laws governing divorce and custody issues, all the states embrace a general blueprint that was originally designed by the Wisconsin Supreme Court. I have taken the court's concept a step further by adding a few articles so it now resembles the U.S. Constitution's version even more strongly.

Divorce and paternity are anguishing processes for adults, but they must remember that dissolution and custody issues have the potential to traumatize their children, indelibly injuring them to the extent it may endanger their growth into productive, loving adults.

Accordingly, here is our nation's other Bill of Rights, one that each American parent should store with their other treasured documents. Like the original, there are 10 of them:

Divorcing parents shall enact no rules or regulations that impact each child's rights to be treated as a human being, recognized to have unique feelings, ideas and desires consistent with that of any other individual.
Each child has a right to a continuing relationship with both parents.
Each child is entitled to continuing care and proper guidance from each parent.
Each child has the right not to be unduly influenced by either parent so as to view the other parent differently.
Each child is entitled to an explanation that the impending action of divorce was in no way caused by the child's actions.
Each child has the right to express love, friendship and respect for both parents.
Each child is entitled to honest feedback with respect to a change in the family structure and its impact on the changing relationships of the family.
Each child has the right to maintain regular contact with both parents and to have a clear explanation for any change in contact.
Each child has a right to never be employed as a manipulative bargaining tool in custody negotiations or in any interaction between the parents.
Each child is entitled to a safe, healthy and loving living environment.
I cannot emphasize strongly enough the importance of these guidelines. I have been a participant in hundreds if not thousands of divorce, custody and paternity cases, and all too often, the adults become so wrapped up in their own emotions that the children are ignored.

The turmoil that goes hand-in-glove with dissolution or custody proceeding is wrenching for everyone, but children are the least equipped to deal with the irrevocable separation of their parents. We have to remember to be there for them, especially at the most anguishing of times.

From my perspective, it is a matter of priorities. And the children should be priority Number One.

Stacy D. Phillips is a founding partner of Phillips, Lerner & Lauzon, L.L.P., a leading Los Angeles family law firm, which has represented a broad spectrum of clients facing serious paternity, custodial and marital issues. She is also a certified family law specialist. She can be contacted at (310) 277-7117 or by email at sdpdissoqueen@plllaw.com. View her Divorce Magazine profile online.

Common Law Relationships in Canada

2007-08-10T17:58:00.000-07:00

Common-law relationships are on the rise: according to Statistics Canada, the number of common-law couples is growing at 16 times the rate of marriages. There's a lot of confusion about the rights and obligations arising from this kind of relationship -- especially when it breaks up. Here's a brief primer.

By Malcolm Kronby, LL.B., Q.C.

Through a long period of English history, competent individuals could marry without the intervention of any civil or religious authority. If there was at the time a statute governing marriage, this was not the only way a marriage could be formed. Parties could be married at "common law," that is, quite apart from "legal" marriage or accordance with the formal requirements of a Marriage Act, such as issuance of a licence, and a ceremony of solemnization conducted by some person officially empowered to do so.

To create a common-law marriage, there had to be an agreement between the parties, as in some exchange of promises; legal capacity to make a contract, e.g., sufficient age, sound mind and free will; cohabitation; consummation by sexual intercourse; and public and continued recognition of the relationship.

After a lengthy controversy, a statute was passed in England in 1753 aimed at the abolition of common-law marriages and secret marriages, and that contained strict requirements for a valid marriage. By 1844, as a result of judicial decisions, it was clear that no valid marriage could be formed at common law in England, and that this was the state of the law at least back to the 1753 statute.

The effect of the English statute in Canada is not as clear as it should be after all these years. Probably the statute was not imported into Canada, so that in every province except Quebec it is possible to have a valid marriage in very special circumstances without strict compliance with the provincial Marriage Acts setting out the formal requirements. For instance, parties may not absolutely need a marriage licence if they go through a ceremony of some sort with the intent to be validly married, then live together, particularly if there are children of the union. This body of law is extremely technical. Our courts have a long-standing tendency to narrow the possibility of a valid marriage of this sort.

Also, the courts will interpret formal validity of marriage in accordance with the law of the place where the marriage was solemnized. Many places do not have procedures as strict as our provinces, or adverse conditions, such as war, make these procedures impractical.

So, although it is possible to create a common-law marriage recognized in Canada in the sense that common-law marriage hasn't been specifically abolished, no one who wants the legal state of marriage should fail to comply with all of the statutory rules of the place where the marriage is performed.

What constitutes a "Common-Law" Marriage?
We generally use the term "common-law marriage" to describe the voluntary union of a man and woman in a lasting relationship resembling marriage. The parties may indeed behave as if married, refer to each other as if married, and be recognized or assumed to be married in their community. In fact they are not married -- no matter how long they have lived together, no matter how many children they have.

They may have specific rights as conferred by statutes. For instance, they may treat each other as dependants for tax purposes, and take the same deductions as if they were married. They have mutual obligations to their children, with all rights of custody and access, as if married. They receive Child Tax Benefits. They can insure each other's life and qualify for pension benefits.

In Ontario, they have a mutual support obligation at law because of the Family Law Act. This arises because the Act states: "Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so," and defines "spouse" to include either of a man and woman not being married to each other who have cohabited:

a) continuously for a period of not less than three years; or
b) in a relationship of some permanence,if they are the natural or adoptive parents of a child.

Almost exactly the same words are used in the Ontario Succession Law Reform Act to permit an unmarried dependent "spouse" to claim against an estate. One remarkable case dealt with the effect of an incomplete sex change. The parties, both born female, had in the course of their lives married and had children. After that, they formed a relationship together that endured for twenty years. One of them, taking the male role, had extensive psychotherapy, hormonal injections, a double mastectomy and a panhysterectomy but no genital surgery. He (she) had changed the gender designation on his (her) birth certificate. They separated, and the male partner claimed support from the female. The Court held that they were not a man and woman who had cohabited, since the sex change was incomplete, and reversible if hormone injections were stopped. The mastectomy and hysterectomy were inconclusive, since many women have this surgery without any question of their gender. The result might well have been different if there had been genital surgery.

Property rights
Parties who live together as if married have no property rights under the Family Law Act, so that there's no statutory entitlement to sharing of assets if they separate. Parties who live together may have property rights against each other based on the same legal principles that govern property rights between any unrelated people. This law is founded on the idea of compensating a person for the contribution he or she makes to the property of another, by imposition of a constructive or implied trust from the recipient in favour of the contributor.

The Supreme Court of Canada considered the case of a couple who lived together unmarried for about twenty years, during which they worked together to build a successful and prosperous beekeeping business, registered in the name of the man. The Court found that the woman's contribution in equal work and effort gave rise to a constructive trust in her favour for one-half of the property and business assets. There have been many other cases in which a share of property or some money award has been given to a party in a "common-law" union.

Cohabitation agreements
Parties who live together can create their own support obligations and property rights by making a "cohabitation agreement." The Family Law Act specifically permits this, in the following words:

"A man and a woman who are cohabiting or intend to cohabit and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit, or on death, including:

a) ownership in or division of property
b) support obligations
c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children
d) any other matter in settlement of their affairs."

To be valid, a cohabitation agreement must be in writing, signed by the parties, and witnessed. If the parties to a cohabitation agreement subsequently marry, in the absence of specific words to the contrary, their agreement becomes a marriage contract.

This article has been edited and excerpted with permission from the seventh edition of Canadian Family Law (Stoddart Publishing, $15.95) by Malcolm Kronby, LL.B., Q.C. This book is invaluable for anyone who needs to understand the current laws regarding marriage, separation, divorce, child custody, support, property rights, and much, much more. Malcolm Kronby is a respected Toronto lawyer with Epstein Cole, and an instructor in family law at Osgoode Hall.

Common Facts

By Diana Shepherd

Released in October 1997, the 1996 Census states that: "Of all family structures, growth was strongest among common-law couples." The Census defines common-law couples as "two persons of the opposite sex who are not legally married to each other, but live together as husband and wife in the same dwelling." Here's some food for thought from this Census:

between 1991 and 1996, the number of common-law families rose by 28%, while married-couple families increased by only 1.7%
in 1996, there were 434,950 common-law couples with children at home -- up a whopping 47% from '91
in Ontario, there were 164,550 children living in common-law families in '96 -- a 45% jump from '91
common-law and single-parent families make up more than a quarter of the 7.8 million families in Canada; ten years ago, they accounted for one-fifth of the total
almost half of all Canadian common-law couples live in Quebec

Who's In Control - You or Them?

2007-08-10T17:56:00.000-07:00

By Stacy D. Phillips, Certified Family Law Specialist
The Judge

In the continuation of a six-part series of excerpts from the book, Divorce: It’s All About Control—How to Win the Emotional, Psychological and Legal Wars by certified family law specialist, Stacy D. Phillips, she discusses the different “types” that tend to control a divorcee’s divorce process in the courtroom. In this segment, Ms. Phillips details the characteristics of the “judge variety”—those individuals who often assert authority taking complete control of a couple’s divorce, leaving them at the mercy of the courts.

The "Heard-It-Alls" This category of judge has little patience for the daily routine that goes on in the courtroom, between counsel, or for that matter, the parties, and refuses to grant continuances for “frivolous” reasons. Heard-It-Alls become easily fed up with standard excuses and can see past every histrionic ploy. Don’t try to pull anything over on a Heard-It-All because they already have heard it all! This moniker suggests a negative connotation. However, the label can equally apply to a very experienced, no-nonsense, truly fine judicial officer who, indeed, does know it all.

The "Peacemakers"
Contrary to the Heard-It-Alls, the Peacemaker is the type of courtroom boss who attempts to get the parties to come to terms and may even suggest the case be continued until additional settlement discussions can take place. The Peacemakers are known for being big on child rights. They also tend to be more sensitive to the perils only divorce can bring. As such, they try to minimize the trauma of the courtroom experience on the parties who come before them.

The "Technocrats"
This group tends to care less about the “people” side of the hearing and rules by the book. They typically have no “heart” and could care less about the parties personally. The way the Technocrat sees it, they have one duty and one alone: to uphold the statutes under which the marital laws fall. Do not try the emotional plea or pray to the Technocrat for mercy. A Technocrat will rule right over you!

The "Equalizers"
This group always wants to do what is fair and usually come from a “one for her, one for him” point of view. They have a “split down the center” mentality. As such, they are calmly focused on dividing everything equally—that includes responsibility for the children, assets and liabilities! Their focus is on equality, whether it means ordering each party to pay his and her fair share of attorneys’ fees or picking up responsibility with regard to the children. Though equitable, this judge does not have any patience for antics, so save any outbursts for the hallways.

The "Solomons"
Often times they are not focused on what might please the parties or what will cause the least amount of havoc. The Solomons are simply trying to get to the bottom line—or at least what they perceive is the right result. Like King Solomon who knew that the real mother would not allow him to “split the baby,” the Solomonesque judge will work with the parties to achieve the right moral result. This approach is particularly important in child custody disputes.

The "Hammers" Highly respected for their familiarity with all the family law statutes—new and old—the Hammers will strictly enforce each code. Low on patience, they are high on authority and not afraid to wield it. The Hammer often reaches a conclusion on the merits, i.e., decides the outcome he/she wants and then strives to reach that result through rulings and/or pressure on the parties. Hammers are particularly dangerous if they are not well versed in the facts or the relevant legal issues. You never want to get on the bad side of Hammers because they can pound you right into the courtroom floor. Good for you if the Hammer rules in your favor, but it could go the other way next time!

The 'Judge's Judge" combines the best traits and skills of each of the judges described above and is thoroughly well versed in all aspects of the law and is not afraid to make the tough call or lean hard on the parties when necessary. This judge does not mind hardball, but insists on fair ball. They can be Solomonesque when appropriate, or address issues with diplomacy. A Judge’s Judge takes each case individually and listens to all the facts before making a decision. These judges are typically compassionate types who make both parties feel as though they were well heard and their requests considered.

The "Lazy Judge" combines the worst traits of the various judges described above (except, of course, the Judge’s Judge). This is the judge who doesn’t read the papers and simply goes through the motions of performing his/her judicial duties. The Lazy Judge may fall back on hyper technicalities, “split the baby,” or do anything else necessary to get the matter off his/her docket. With the other judges—for better or for worse—you can plan. With the Lazy Judge, the outcome is truly unpredictable.

Your judge can be a mixture of some or all of the above. As you go before them, know that they can have tremendous control over your marital circumstances. This can bode well for you or it can be difficult, depending on how the court’s rulings come down, and it can affect you for years to come!

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Stacy D. Phillips' book may be purchased through Amazon.com, Barnes & Noble.com and in all major bookstores throughout the country. Visit her website: www.controlyourdivorce.com for more information.

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Agreeing To Part - The Uncontested Divorce

2007-08-09T05:00:00.000-07:00

This is fast becoming the major trend in the UK. It is on the rise in the USA too, but not to the extent it is in this country. The picture is mixed in Europe, France being the country with the largest number of couples fighting their way to a highly contested court case and emotionally charged divorces. Does this mean that the British people are surpassing examples of matured and calm understanding when it comes to divorce? Not necessarily, but it does mean that law cases costs a fair bit here, and few are in the position to afford it. Uncontested divorces have become so very popular precisely because the very areas of conflict that are causing the divorce had been resolved as far as possible between the partners before they came to the court. When the areas of conflict are eliminated, there remains little left to do except finish the paperwork and formalities.

Advantages of Uncontested Divorces

There are several direct and indirect advantages of this form of divorce, which have been listed below:

There is scope to cut costs in a major way. A court battle is not the only thing that requires expenditure, but a lot of money is wasted when a couple fights, and misses out on work, therefore, being unable to earn as they normally do. It is time that costs most, in very literal terms.

The need to go to a lawyer and spend for it rises only when there are issues into which a lawyer needs to look into. The necessity of calling in a lawyer at all arises only when there are unresolved conflicts between the two parties. If both partners realise that dragging it out in painful and bitter detail will only hamper their work and empty their purses, then there is little need to fear for a situation when the expenses are spiralling out of control.

Saving time is a major issue, not just where the lawyer or office working hours are concerned. The faster the two partners see reason and agree, they would be able to get the divorce process started. Even a slimmed down DIY will take a minimum number of days if a divorce is to be obtained according to the given laws of the land, where provision has been made for gaps between crucial stages not just to give some time to the court to prepare the papers, but also to let the couple think it over before taking the next step. If everything else except processing the papers is already done beforehand, it is possible to finish the divorce in exactly the minimum time as stated in the law books.

The emotional toll on both parties is much less in the case of uncontested divorces. It is bad enough they need to part forever, but there is no need to make it worse by screaming and fighting and storming out at each other. At the end of the day, we are human beings, all of us have a bit of good and bad in us, yes, and even the man or woman with whom your partner is having an affair is not an entire villain. The most silently suffering spouse is not entirely saintly either. If we cooperate with each other on the grounds of common humanity, leaving some space for our frailties and some respect for our opinions, the world, maybe, not turn better, but it would be easier to sleep at night. The small mercies that we show each other at times of crisis are the true measures of our humanity. This is not poetry, it is plain hard common sense, and helps to save a few pounds too.

It is definitely much easier on children if a divorce is uncontested. The greatest victim of the battle between a pair of adults is often the child who has no fault at all, but on whom both parties vent their frustrations. In the process, they scar an entire generation for life, and it is simply unfair. There is no way to justify the suffering of children for their parents’ follies. Our country is already full of unhappy kids; we don’t need to add to the number.

James Walsh is a freelance writer and copy editor. For more information on getting a Divorce see http://www.quickie-divorce.com

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Rhode Island Family Law - Children, Schools, Schooling And Education

2007-04-12T04:39:00.000-07:00

By Christopher Pearsall

Though not specifically addressed within the realm of Rhode Island divorce proceeding, a particular issue has raised its head several times in my practice over the years in the form more of a particular factual set of circumstances rather than as a direct legal issue itself.
A recent call presented this scenario from a Rhode Island lawyer and colleague who was endeavoring to assist clients with a preplexing issue. It went something like this.

Two parents who have not yet become a divorce statistic have moved across the country. Their minor child has remained with a friend (unrelated by blood or marriage to either parent) here in Rhode Island to provide consistency with the child remaining in his current school system, etc. The parents would like to have the child remain with the friend through the remainder of his or her schooling. The friend is presumably agreeable to his as long as the parents continue to provide the financial support necessary for the child and that the friend is not held responsible for any liability of the child. The friend also needs the authority to be able to act in the best interests of the child and take legal action as necessary to enroll the child in programs, receive confidential health care information regarding the child, etc...

This of course causes a variety of questions to arise that the colleague wanted my input on. The general question was, how should this be done properly (i.e. legally) to be able to accomplish what they would like to do.

The tremendous number of Rhode Island family law questions that this factual situation presents is remarkable and therefore, I will end this particular blog post with the questions it raises rather than simply providing the answer I believe is appropriate under the circumstances.

Now you may be saying.... huh . . . Chris, what the heck are you doing? This is a Rhode Island Divorce Tips blog. What you've set your self up for is to give us TIPS and HELP on these issues, not to give us the darn questions and have us figure it out for ourselves!

This may or may not be a semi-useless exercise but it is one that I wanted to try. True, this is a Rhode Island Divorce Tips blog and that it is my intention to give at least some general guidance regarding the issues presented as opposed to any specific legal advice. Yet the one common thread that I have found in writing this Rhode Island divorce and family law blog is that when people contact me about these issues they rarely appreciate the nature and depth of the issues or the true value that are getting by some insight from a legal professional who is trying to assist in the understanding of these issues.

In truth, it seems that Rhode Islanders, divorce and family law clients, and even other Rhode Island lawyers who don't practice in the areas of divorce and family law have a greater appreciation of the the depth and complexity of these legal problems and issues if they at least consider the questions. . . .or by considering the number and type of questions that present themselves to a legal practitioner when he or she either endeavors to provide some helpful information on a Rhode Island legal issuerelating to divorce and family law.

Ultimately, is you consider the Rhode divorce and family law questions presented before receiving the answer directly, you gain a better understanding and appreciation of what legal professionals offer in their services and perhaps why their education is so costly which often necessitates rates that seem out of whack with today's minimum wage.

All this digression from the topic aside, consider these various questions that this scenario presents:
1. Can an unrelated person be given legal authority over all aspects of their minor child's life?

2. Can custodial rights be given or assigned to another person?

3. What are the bodies of rights that a parent has with respect to a child?

4. How would you absolve people who take in your child from any liability for decisions relating to your child?

5. If you have your child stay with an unrelated person iin a particular school district n order to keep the child in a particular school system, is this perpetrating a fraud upon the school department.

6. If you can place your minor child with another person voluntarily and you do so, what are your obligations to support that minor child?

7. If place your minor child with an unrelated person voluntarily and with the person's consent and agree to continue to support the child but assign the child's care to that unrelated person, who is responsible for the minor child's transgressions if he or she decides to damage school property?

The questions are truly endless. What are your thoughts? What else should you consider? These are all questions that are very specific and your matter is factually driven. There is no real set answer to any general questions such as these that could be included in an article such as this. In my opinion, the best you can hope for is to be informed and to think about all the concerns that need to be presented to the Rhode Island attorney that your approach to seek guidance about your factual situation.

When approaching an attorney about these issues, list all the issues and concerns in the form of questions and present to the attorney a detailed picture of all the facts and relationships based on all the possible scenarios that may be encountered both by you as a parent or as a caregiver for the child. It is only be identifying all the facts and the anticipated issues that you want the caregiver to address and/or be protected on when executing those duties that a good Rhode Island family law practitioner will be able to provide you with sound legal advice to address your particular facts and circumstances.

This article is for informational purposes only and is not legal advice. You should not take legal action without legal advice from a licensed practitioner who has been fully informed about your specific circumstances.

And Discover Valuable Rhode Island Divorce Information
PLUS . . . enjoy detailed Rhode island Divorce Information at Rhode Island Divorce Tips Blog
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How to Change Your Name in Ohio

2007-04-12T02:37:00.000-07:00

All legal name changes in Ohio are attached to your existing birth certificate which is a computerized birth abstract showing the name change. After you change your name in Ohio all agencies, federal and state will accept your new name as your new legal name and will issue you documents with your new name if you wish.

Court ordering a legal change of name decreed in Ohio.

If you were born after December 20, 1908 then you are apart of a group of people the court is allowed to grant a legal change of name to. Once you get the court to certify your legal change of name decree the Ohio Vital Statistics office requires a copy. The court order must have been granted by a probate court. If you never had a birth certificate or were born before December 20, 1908 then the Vital Statistics office requires a delayed birth registration established by a probate court along with the certified copy of the legal change of name decree. The probate court is the only court that can do delayed birth registrations in Ohio.

Court ordering a legal change of name decreed outside Ohio.

If you were born after December 20, 1908 then you can be granted a legal name change outside Ohio. The Ohio Vital Statistics office will need a certified copy of the court ordered legal change of name and a delayed birth registration, which can be established by an Ohio Probate Court. Only Ohio probate courts can file delayed birth registrations.

The court order to legally change your name must contain:
1) The name prior to change
2) Changed Name
3) Name or county of court
4) Case number
5) Final date of the change of name
6) Signature of the Probate Judge or Deputy Clerk
7) Court Seal (not mandatory)

They may also ask for your date of birth, place of birth, and parent's names if they feel they don't have sufficient enough information.

This article was brought to you by Legal Forms Bank .Biz which provides your state's specific downloadable legal name change kit with instructions.
We also provide your state's power of attorney form and partnership agreement form.

Texas Family Law - Child Support

2007-04-10T17:55:00.000-07:00

By Todd Going

Texas is very precise on the guidelines of family law when it comes to child support. Most statues for child support place consideration on the income of the obligated parents capping it at $6,000 a month. Based on the amount of income, the number of children and the situation of the divorce, the parent is obligated to pay a minimum of 20% of their net resources to the parent with the possession of the child. In addition, the child must have health care and the payor must also provide this if it’s not available through their employer. These obligations must be paid until the child turns 18 years old, or graduates from high school.

If either party wants to adjust their obligation to this child support, they must petition the court for a reexamination of the situation and provide proof of the changes to the circumstances. This process of dealing with the courts can be long and confusing without the proper legal help. In addition this process is also taxing both emotionally and financially while not always providing the desired outcome. In this situation it is in one’s best interest to be consulted by an experienced family lawyer. An experienced family lawyer will significantly increase the chances of the decision going in your favor.
Your child is worth it.

For more information on Texas family law, please visit http://www.setexasfamilylaw.com.
This article may be freely reprinted as long as this resource box is included and all links stay intact as hyperlinks.

How To Change Your Name in California

2007-04-08T00:47:00.000-07:00

The main way to change your name the quickest is by filing a Petition for a Change of Name. There’s a hard way and an easy way to petition the court to change your name. The hard way is to dig up Form NC-100, NC-110, NC-120, Form CSM-010, and form NC-130 1-by-1 on your own. The easy way is to find a site online that has all the forms as a kit and you should be able to find a kit with instructions. Instructions would help because there's more to this process.
Once you fill out the forms make sure you have a copy for yourself and a copy to give to the court. The next step is to then go to the court in the county you live and file your papers.

The third step is a bit trickier; you must "Publish the Order to Show Cause". This means you must call one of the newspapers your court recognizes as a general newspaper (the court house can provide you with a list) and ask them to publish your Order to Show Cause in their newspaper, they know the routine. You must Publish the Order to Show Cause once a week for 4 weeks in a row.

The fourth step is to go to your court date and take the proof of publication from the newspaper. Make sure you get the newspaper with your Order to Show Cause and bring it with you to your court case. You’ll also need to have the Decree Changing Name form that should of came with your kit (Form NC-130). The judge will need to sign off on the Decree Changing Name form this is what you’ll need to change all your legal documents which include your birth certificate, social security card, and passport.

Once you get the Decree Changing Name form signed get a certified copy from the court.

This article was brought to you by Legal Forms Bank .Biz a leading provider of up-to-date legal forms including your state's legal name change kit, residential lease agreement kit, and last will and testament kit.

Family Law Courts

2007-04-07T01:06:00.001-07:00

By Steve Valentino

Family law courts take up cases relating to all kinds of family related issues. These can be adoption, prenuptial agreements, marriage, divorce, separation, legal separation, annulment, alimony, division of the property accumulated during the marriage, domestic violence, negotiation, adjudication, child custody and support, child abduction, kidnapping or child seizure, emancipation, abuse in the marriage, parental rights, paternity, juvenile, felonies, and many such cases related to family.

Family law courts also deal with regular cases relating to criminal laws, property related laws, probation law, trusts, and so on. However, the majority of the cases that come to family law courts are the divorce, separation, abuse or child custody cases. A number of details need to be considered when it comes to these cases. Family law courts are specialized in all the legalities involved in such cases.

As you can imagine, family law courts are some of the most crowded courts in America. They deal with social and economic issues so universal that the courts can hardly bear the brunt of the demand. As a result, family courts are notoriously underfunded. Economically disadvantaged people often get left by the wayside when trying to gain monetary compensation for just cause.

Family law courts are the subject of much criticism as well for prejudice. Many think one gender or the other is favored in family courts. This may or may not be the case, but it might be impossible to study, since the numbers are so great. Until then, the family courts are a necessary aspect to a society in which people can treat each other unfairly sometimes.
Family Law provides detailed information on Family Law, Family Law Attornies, Family Law Courts, Divorce And Family Law and more. Family Law is affiliated with Divorce Without A Lawyer.

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When Can a Tenant Terminate Their Lease Legally?

2007-04-07T01:04:00.001-07:00

There’s 3 ways a tenant can terminate their legal obligations to the lease during its term:
(1) You can terminate due to legal misconduct on behalf of the landlord
(2) When the landlord legally replaces you with new tenants
(3) And by an agreement with the landlord and the tenant

An example of legal misconduct would be if the landlord does not maintain the premises it could be considered as legal misconduct. Some local/state laws give you the right to terminate any lease obligations if you (the tenant) have problems accessing his/her premises or if your premises have code violations you didn't know about you could terminate your lease legally.
An example of number two when a landlord replaces a tenant with new tenants would be; if another tenant moved in and pays the full amount of the rent the first tenants obligation is terminated, ended, over.

It's against the law for a landlord to collect rent from more than one tenant for the same premises. The landlord and tenant could at anytime end their lease obligations by a mutual agreement.

It's not advisable to pay a deposit unless you’re signing the residential lease agreement form at the same time. Unless they refuse you based on race, color, age, sex, they can legally refuse to allow you to move in and take your deposit if you haven't signed a residential lease agreement form already.

"Repair and deduct" what’s that?If the landlord hires a professional to repair damages on your home he/she can deduct the cost of the repairs from the rent paid to the landlord. It's against the law for the landlord to charge more than 1 month's rent for repairs.
What is "constructive eviction?"Constructive evictions are when the inhabitable condition of your premises makes the property unsuitable to live.

This article has been brought to you by Legal Forms Bank .biz which is your best source for your state's Residential Lease form.We also provide up-to-date state specific last will and prenuptial agreement forms.

Collaborative Divorce or Cooperative Divorce?

2007-04-06T18:00:00.000-07:00

By Linda Roberson

Introduction
“Collaborative divorce” is the new buzz word in family law practice. Its proponents enthuse about better and less costly settlements, greater client satisfaction, fewer accounts receivable, and less stress in the practice of law, than they can achieve through a conventional approach to family law disputes. How realistic are these claims? What are the down sides of “collaborative divorce”? Does the concept of “collaborative divorce” present ethical pitfalls and possible malpractice minefields for the unwary practitioner?

Lawyers who participate in the “collaborative divorce” movement use methods borrowed from more established alternative dispute resolution procedures to resolve family law disputes without litigation. However, unlike more accepted dispute resolution procedures, in “collaborative divorce” the lawyers and their clients agree that they will not engage in formal discovery, will voluntarily disclose information, and will settle the case without court intervention of any kind . They assume a duty to inform the attorney for the other party of errors they note in opposing counsel’s legal analysis or understanding of the facts. If they are unable to settle the case, both lawyers must withdraw from representing their respective clients and the estranged spouses must start over with new counsel.

Good Lawyers Routinely Practice Cooperatively

Even the most enthusiastic supporters of “collaborative divorce” concede that the concept of settling cases rather than litigating them is hardly novel. Capable family law practitioners have always directed their effort and creativity toward reaching agreement rather than duking it out in court. It isn’t news to anyone that litigation is expensive – sometimes prohibitively so – and that the most satisfactory settlements derive from skilled negotiation between capable counsel rather than a court-imposed resolution of disputed issues. How does the idea of “collaborative divorce” differ from what experienced practitioners do as a matter of course?

Courtesy. The commitment of lawyers and parties to treat each other courteously is not a new one. Capable attorneys consistently endeavor to work cooperatively with opposing counsel to identify and value assets, set and meet scheduling deadlines, and otherwise facilitate resolution of the case. They respect legitimate positions taken by the other party and encourage their clients to be realistic and respectful as well. They are willing and able to compromise, and they are creative in crafting acceptable resolutions of disputed issues. “Collaborative divorce” supporters intimate that their process is unique because lawyers commit that they will not “threaten, insult, intimidate, or demonize” other participants in the divorce process. Good lawyers don’t do that now. The American Academy of Matrimonial Lawyers, which historically has provided a model for good practice nationally, has promulgated “Bounds of Advocacy” that set a high standard for professional courtesy and cooperation.

Emotional cost. “Collaborative divorce” proponents say their process is designed for parties who don’t want to go to war and who don’t want “to hate each other for the rest of their lives.” This description fits the vast majority of family law clients, including most of those whose cases end up in court. Clients almost always care about the emotional cost of adversary proceedings, and about the impact of the divorce action on their children and other family members. To suggest that people who really care will give up the protections provided by court oversight is to do a vast disservice to most of our clients.

Financial cost. “Collaborative divorce” supporters want to reduce the costs of the process by streamlining the discovery process. This also is not a new idea. Good lawyers have always sought to keep formal discovery to a minimum, to share costs of appraisals, to stipulate to values, and to cooperate in other ways to keep costs down. Many experienced practitioners routinely utilize mutually agreed upon short-form interrogatories, four-way meetings, joint telephone or in person conferences with experts, and other such collegial arrangements.
As the above analysis indicates, the goals espoused by “collaborative divorce” lawyers do not differ in degree or in kind from the goal of the vast majority of the family law bar. Most lawyers try a cooperative approach first. Most lawyers agree – and most of their clients concur – that resolution of issues by settlement is preferable to litigation. And in most cases, lawyers and their clients resolve disputed issues by agreement and do not resort to the courts.

The Limits of Collaboration

Despite the most concerted efforts of capable counsel, we all know that not all cases settle, and those that do settle sometimes don’t settle easily. All of us have encountered the frustration of the last-minute, courthouse steps agreement, after completion of all the work and stress of trial preparation. Why is it that some cases don’t settle until the very last minute, and some cases don’t settle at all?

Unsettled Legal Issues. Legitimate reasons to resort to litigation are not always evident at the beginning of a case. Much appellate work involves issues the existence of which – or at least the seriousness of which – did not surface until significant discovery and negotiation had occurred. Where the law is unsettled or where counsel genuinely disagree about the appropriate interpretation and application of the law to the facts of their case, it is not only reasonable but necessary to ask the judge to intervene. Cooperative counsel can reduce the complexity and expense of litigation by limiting contested issues, stipulating facts where possible, agreeing in advance to the admission of exhibits, declining to engage in delaying tactics, and other behavior that is both practical and considerate. Lawyers can commit themselves to conduct the proceedings without animosity and can counsel their clients to be courteous to the other side. But the court has the last word on interpreting and applying the law.

Reality Testing. All clients say they want a “fair” result and many of them genuinely mean it. But they may have a very self-absorbed definition of “fair.” Many years ago Leonard Loeb, whose wisdom and example have greatly influenced the development of a civilized standard of practice for family law attorneys, pointed out an important truth: “Sometimes the hardest negotiation you have to engage in is the one with your own client.” A client who simply cannot see the broader picture despite counsel’s best efforts may require the reality therapy of a temporary order hearing, or a pretrial with the judge, or a deadline for responding to formal discovery, in order to be capable of backing down from an unreasonable stance so settlement negotiations can proceed.

Scheduling Orders. We have all represented a left-behind spouse who does everything possible to avoid or at least delay the divorce, or a party who is preoccupied with business affairs or other family problems and just can’t get around to dealing with the work and decision-making implicit in the divorce process. If one party would prefer that the marriage continue, or if completing the action is not a priority, the court may need to facilitate progress in the case by issuing a scheduling order and setting deadlines. Counsel can cooperate by being reasonable and courteous in setting initial deadlines and in agreeing to extensions where necessary. The process need not be – and usually is not – antagonistic.

Financial Disclosure. A client may, deliberately or inadvertently, fail to disclose assets without the rigorous attention to financial detail that formal discovery entails. Surely we have all had the experience of finding forgotten assets when a client produces the records necessary to back up his or her interrogatory answers. In other circumstances, the client and/or counsel may need the assurance of due diligence in discovery in order to be comfortable with a proposed settlement, especially where the estate is complex or the assets are substantial.

Stability. Then there is the personal factor: divorce presents a significant life crisis for most of our clients, and we see them at their most vulnerable and most needy. The commencement of a divorce action is often accompanied by anxiety, guilt, an danger, and may throw a family into chaos. If one party’s antagonism toward the other is so overreaching that he or she is unable to proceed rationally and courteously, interim court orders may be the only way to achieve a level of stability that permits collaborative discussion of the long-term issues presented by the case.
In each of the above situations, the legal system provides structure and finality, and often sets the stage for the ultimate negotiated resolution of the matter. Court processes, rather than being an impediment to settlement, often facilitate it.

The Effectiveness of a “Collaborative Divorce” Approach

Do “collaborative divorce” techniques provide an effective response to the above limitations? Unfortunately, they do not.

Reality Testing. A client whose sense of “fair” is out of kilter with that of the other party and the lawyers will defeat the collaborative process, and both sides will have to incur the expense and delay of starting over with new counsel. Reality testing through a temporary order hearing or a pretrial with the judge is not an option in “collaborative divorce.” The lawyer representing a difficult client must either advocate for the client’s unreasonable position or take a public position adverse to the client’s view. An attorney cannot ethically make either of these choices, The first is at least arguably frivolous; the second violates the requirement that we advocate diligently for our clients. Proponents of “collaborative divorce” have not provided a solution to this ethical dilemma.

Delay, Expense, and New Counsel. A client who wants to stall progress in a “collaborative divorce” can do so indefinitely, until the court threatens to dismiss the action and the party wishing to proceed must then retain new counsel to request a pretrial. Again, both sides incur the expense and delay of bringing a new attorney up to speed. The attorneys who know the facts and have established rapport with their clients cannot continue to be involved. How can this result benefit anyone?

Diligence. Lack of due diligence in discovery may subject the attorney to a malpractice claim [see Helmbrecht v. St. Paul Ins. Co., 122 Wis.2d 94, 362 N.W. 2d 118 (1985)], may violate the ethical requirement of diligent representation, and may make the client uneasy about signing on the dotted line. In complex cases and cases in which there is a disparity in the spouses’ respective familiarity with or involvement in financial affairs, the security of formal discovery is not available to help resolve “collaborative divorces.”

Timely and Efficient Court Intervention. If there is sufficient antagonism that experienced counsel are unable to negotiate an agreement, or if one party refuses to comply with an agreement, court intervention is necessary. Under the “collaborative divorce” approach, both lawyers must withdraw just at the time that an attorney who knows the case is most effective.

Malpractice Issues

In collaborative divorce, the parties and their respective lawyers sign a single contract, at least arguably creating obligations of each lawyer to the other attorney as well as to both clients. The collaborative law contract puts each lawyer in privity with both parties and with opposing counsel, creating a basis for contract claims to which an attorney is not exposed in standard practice. Moreover, the collaborative divorce contract assumes, though it does not specifically state, that each client completely waives his/her attorney’s obligations to maintain client confidentiality and not to inform the other party or lawyer of his/her legal, factual, or strategic errors. Yet, the contractual commitments required for “collaborative divorce” eliminate these obligations and substitute in their place obligations to disclose and to inform that are at least theoretically actionable either as contract claims or negligence (malpractice) claims.
Assume that Attorneys A and B and their clients have agreed to proceed with a “collaborative divorce.” Attorney A makes a mistake that disadvantages client A and benefits client B. If Attorney B fails (deliberately or negligently) to correct the error, can client A sue Attorney B for malpractice? If Attorney B corrects the error, to his/her own client’s detriment, can Client B sue Attorney B for malpractice? Does the existence of a “collaborative divorce” contract provide a defense to malpractice? Does it increase malpractice exposure by permitting each party to sue both lawyers?

If, unknown to Attorney A, Client A fails to provide full financial disclosure and thus disadvantages Client B, can Client B sue Attorney A for malpractice? Can Client B sue Attorney B for failing to take steps to discover the omission? Can Client A sue either or both of the attorneys for malpractice if the nondisclosure was inadvertent and would have been discovered through standard formal discovery, and if the effect of the error is that the judgment is vacated and litigated with new counsel with Client A held liable for Client B’s additional costs?
If Attorney A fails to spot an issue that would likely be resolved in Client A’s favor, does Attorney B have a duty to raise the issue? If Attorney B fails to do so, can Client A sue Attorney B for malpractice? If Attorney B raises the issue, can Client B sue Attorney B for malpractice?
Have you notified your insurance carrier? How will you pay for breach of contract litigation and possible judgments against you that your malpractice insurance does not cover?

“Collaborative Divorce” May Increase the Cost of Divorce

“Collaborative divorce” is marketed as a cost-saver for clients, but is it really? We all know that settlement is less costly than litigation. The issue is not whether “collaborative divorce” is less expensive than litigation, but whether it permits participants to spend less than they would if they employed more conventional settlement approaches. Most lawyers try informal discovery first and proceed to interrogatories or requests for document production or depositions only where informal attempts have failed or where the information provided is suspect. Most lawyers schedule contested trials only after repeated attempts to arrive at negotiated settlements. Most lawyers genuinely believe that better and more creative settlements can be achieved through negotiation and creative planning rather than through a court-imposed resolution. Virtually no good lawyer chooses litigation as the first and best option.

In a conventional divorce, the lawyer who has worked up the case, who knows the client and the facts, and who understands the interpersonal dynamics of the case, can use this knowledge base to proceed if necessary to a litigated conclusion. In “collaborative divorce,” if negotiations fail the clients have to begin again with new counsel and pay a new lawyer to learn the complexities of the case. If the clients have a relatively simple financial situation, they probably can’t afford to pay twice. If they have a complex situation, the time and expense necessary to duplicate or recreate the financial analysis and valuations will likely be outrageously high. In some cases, clients may save some money, though there is no evidence that “collaborative divorce” is less costly or less time-consuming than any cooperative settlement approach. In other cases, however, overall costs will skyrocket, and the time it takes to complete the process will be significantly extended because of the duplication of effort entailed by substitution of counsel. And while “collaborative divorce” proponents suggest that its practitioners will have fewer uncollected accounts, one may reasonably question whether clients who are forced to change lawyers will fully pay both sets of counsel.

Is “Collaborative Divorce” a Better Process?

Advocates of “collaborative divorce” say that clients are motivated to learn problem-solving strategies because there are no “court threats.” In some cases that may be true. Experienced attorneys know, however, that with many clients it is precisely the ability to schedule court dates and set deadlines that provides the impetus for settlement. Cases often settle only when delay is no longer possible and the time for gamesmanship is over. We’ve all had the experience – probably on both sides – of dealing with a client or opposing party who stubbornly sticks to a position until trial is imminent. Clients who employ more efficient problem-solving strategies do so in most cases because they understand that they will get the best results that way, and a contested trial date need not be scheduled in order to negotiate a settlement. There are no “court threats” because they are able to resolve their differences without the looming specter of a contested divorce. Moreover, where the bargaining positions of the respective clients are unequal – one is more financially experienced, or more legally knowledgeable, or simply more intimidating – the reality of “what the judge will likely do if we go to court” may be crucial to a fair settlement.

“Collaborative divorce” supporters also claim that clients are “more satisfied” with the results achieved with the collaborative approach. It’s not news that clients are more amenable to and more willing to comply with the terms of an agreed settlement than one that is court imposed. But what is the evidence that clients are “more satisfied” with a collaborative settlement than with a settlement reached through conventional cooperation and negotiation?

“Collaborative divorce” proponents contend that the process offers a way to practice law that is “more positive, more challenging, more rewarding, and more fun” than conventional practice. This is simply not the case for those of us who have historically settled most of our cases creatively, without having to give up the option to litigate if negotiations break down, or to dodge ethical issues, or to assume additional malpractice exposure.

Cooperative Divorce

The attorneys who are spearheading the “collaborative divorce” movement have adopted this idea with the best of intentions. They are looking in good faith for a more humane and less stressful way to deal with the sturm und drang of marital dissolution. They are legitimately frustrated with the waste of time and duplication of effort that goes into simultaneous settlement negotiations and trial preparation. They want to make a hard time easier for their clients and for themselves.

We can work toward these goals without running afoul of ethical rules, increasing malpractice exposure, and refusing to use the available resources of the court system appropriately to facilitate negotiated settlements wherever possible. Let’s call it “cooperative divorce.”

The “cooperative divorce” practitioner would:
Respect all parties and counsel and treat all participants courteously.

Respond promptly and in a straight-forward way to requests – both formal and informal – for information. (No paper bags full of unsorted documents, receipts, and junk mail in response to a request for production of documents; if you need an extension of time, explain why and ask for it rather than leave the opposing attorney to guess when he or she will hear from you, etc.)
Cooperate with rescheduling requests, requests for extensions, and the like as a matter of common courtesy. Everybody needs a break sometime.

Tailor information requests to the information needed for each specific case, rather than sending blanket, form discovery documents or routinely scheduling depositions without a specific purpose.

Educate his or her client about the other party’s rights and perspective, rather than simply supporting the client’s position regardless of its merits or the realities of the case.

Encourage the client to take a broad view and consider relationship issues. Help the client focus on the issues that can be resolved within the legal system and discourage justification of the client’s bad behavior on the basis of the estranged spouse’s total lack of redeeming qualities.
Prepare seriously for settlement negotiations; do the homework that is necessary to conclude the case. Run after-tax cash flow schedules and marital balance sheets; put together comprehensive parenting plans, update financial statements – as if the case were going to trial instead of a negotiation session. Too often we contribute to delays by being unprepared to negotiate effectively.

Keep his or her word. If a cooperative lawyer commits to provide information or a document draft by a certain date, he or she does so or makes a courtesy call to explain an unavoidable delay. If a cooperative lawyer makes a proposal in negotiation, he or she does not renege on the proposal on the table and retreat to a more favorable position for his or her client.

Use the legal system as a resource to help settle the case if appropriate.

Understand the rich menu of alternative dispute resolution resources and recommend their use as appropriate.

Maintain a civil and courteous approach. If litigation is necessary, stipulate where possible, cooperate with the admission of exhibits, accommodate the other side’s expert witnesses, and advocate for his or her client without becoming antagonistic.

Most good lawyers do most of these things most of the time. But we all slip up on occasion. Committing to “cooperative divorce” avoids the problems of “collaborative divorce” and improves the practice of family law.

Thanks to Gary Young, Allan Koritzinsky, Linda Balisle, and Margo Melli for their input and support of the “cooperative divorce” concept.This articles provides general information only and is not intended as a substitute for legal advice. Nor does this article imply any attorney client relationship. This article is for informative purposes only and may not apply in your state, please consult an attorney in your area.

Linda Roberson
Shareholder of Balisle & Roberson S.C.
Practicing Family Law Statewide in Wisconsin
http://www.b-rlaw.com

What Are A Mother And Father's Rights In California, When You Are Not Married?

2007-04-06T17:57:00.000-07:00

By Norman Fernandez

In modern times many couples have children when they are not married. Problems can arise with respect to Child Custody, Visitation, and Child Support when these couples break off the relationship.

In a perfect world the mother and the father are amicable in such a situation, and do what is in the child or children’s best interest. However, it is much safer, and highly recommended, that you obtain Court orders with respect to custody, visitation, and support issues, so that the mother and father each know their respective rights and obligations, and so that there are no ambiguities regarding the same.

This article will discuss the issue of children who are born out of wedlock from both the mother and the father’s prospective to give you a general understanding of the law in California regarding children born out of wedlock.

The Mother’s Prospective

The mother of a child that is born out of wedlock has a unique advantage in that she does not normally have to prove that the child is hers. If hospital records indicate that a female has given birth to a child, and the birth certificate that is issued upon the birth of a child indicates that the female gave birth to the child, than there is usually no issue with the mother showing that she is the paternal mother.

The mother of a child born out of wedlock will automatically be entitled to full custody of a child absent a Court order indicating otherwise.

She may give the father visitation if she so chooses, or she can deny visitation to the father absent a Court order.

All minor children in California have a right to receive child support pursuant to a statutory guideline. (The subject of Child Support will be covered in a forthcoming separate article). If the mother of a child who is born out of wedlock wants to obtain child support from the father, she will have to file and serve a Petition to Establish Parentage on the father, and an Order to Show Cause for child support with the appropriate Court.

If the mother is on welfare or Aid to Families with Dependent Children, the District Attorney in the county in which the mother resides will ordinarily aid in this process so that the County gets reimbursed for the aid that is being provided to the mother by the County.

If a father voluntarily accepts paternity, than the Court will decide each party’s rights to custody, visitation, and child support based upon the facts in the case. If the father denies that he is the father, he may request that a DNA test be done to determine whether he is the father. Once this process is completed than the Court will determine each party’s rights.

If a mother is not sure who the real father of a child is, she will have to file a Petition to Establish Parentage on each potential father.

The Court will ordinarily allow the father visitation or custody rights to the child unless it can be shown that it is not in the best interest of the child for the father to have such rights.

The Father’s Prospective

The father of a child born out of wedlock has no rights to Custody, Visitation, or Child Support unless they obtain a Court order for the same.

If a father wants to have rights to custody, visitation, or child support for a child born out of wedlock, the will have to file a Petition to Establish Parentage, and an Order to Show Cause for Custody, Visitation, and/or Support.

The mother of the child may or may not agree that the father is the true father of the child. Either party may request that a DNA test be done to prove whether or not the father is the paternal father of a child.

Once the Court determines paternity, the Court will than look at many factors with respect to rights to Custody, Visitation, and Support.

The Court will ordinarily allow the father visitation or custody rights to the child unless it can be shown that it is not in the best interest of the child for the father to have such rights.

The Mother and Father’s Prospective as a Whole

The Court will always try to determine what is in the children’s best interest when determining who will have Custody and Visitation rights to a child or children. This can be a long and expensive process if litigated. It is recommended that a Mother and Father try to informally work out a Custody and Visitation plan for a child or children, and then get a Court Order which reflects the agreement of the mother and father.

If you cannot informally work it out than the Court will decide the issue for you.

Support of the child or children will be determined by the Court using a statutory formula which is based on both parties income, the percentage of time each person has with the child or children, and other factors.

It is always recommended that you retain a lawyer in these types of cases. Only a fool has herself or himself for a client.

You can check out our family law website at www.divorce-legal.net for more general family law information.

Norman Gregory Fernandez is a California lawyer who handles many types of legal matters. You can reach him through his website at http://www.norman-law.com

What is ‘adoption’ in a legal sense?

2007-04-05T01:17:00.000-07:00

Adoption is the process through which the natural parents' rights and obligations toward their children) are terminated, and the adoptive parents assume these rights and obligations. Once a child has been adopted, the natural or birth parents are no longer responsible for their child; the obligations that they have toward their child, likewise, cease to exist. It is as if the natural or birth parents become like any other third party with respect to the child. The adoptive parents become responsible for the child and all the obligations and rights between a parent and child are established between them.

Adoption is a process that is established by statutory law, and is treated in accordance with the laws established by the state in which the parent and child reside. The legal procedure by which a formal legal adoption occurs differs from state to state. An attorney will help you to determine the particular procedures of the state in which you live.

The primary obligation flowing from a parent to a minor child is to be responsible for his/her health, education and welfare. When a parent adopts a minor child, the parent must then provide for the needs of the child.

The primary right that a child obtains from a parent is the right of inheritance of the estate. Although this right of inheritance may be altered by a Will or Trust, or other disposition of property, in the event that a parent dies without a Will, the parent's children are entitled to the estate (all the property that the parent owned as of the date of death). Generally, an adopted child has no rights to the estate of his or her biological parents.

How to Get a Divorce in Utah

2007-04-04T22:16:00.000-07:00

A judge grants a divorce after your divorce form is submitted to the court, and all required appearances before the judge are completed. In uncontested divorce cases often times you do not even have to physically appear in front of court to get a divorce. In Utah you may file the forms yourself, or obtain a lawyer's assistance. You could also seek help from Utah's "Online Court Assistance Program" if you and your spouse have less than six children, and you and your spouse's combined income has to be under $10,100 per month.

FAQ

What is an annulment?
When the court declares an annulment, it’s declaring that the couple was never married because the marriage is void under Utah law, or the marriage resulted in fraud. Utah law does not recognize marriages involving incest, where one spouse has a previous undivorced spouse, and where the person performing your ceremony is unauthorized to do so. Generally courts refuse to annul a marriage if children were born during the marriage.

What is legal separation?
Legal separation is when the parties live separately, but remains legally married to one another, it’s not a divorce. The couples rights and legal duties to one another are defined in a "Decree of Legal Separation". A Decree of Legal Separation covers matters such as spousal support, child support, division of property and payment of debts.

Can the same lawyer represent both my spouse and me?
No. This is because there is almost always conflict of interest between spouses, which prevents the attorney from properly representing both sides.

How is property divided?
Regardless of the income source, Utah laws recognize that both spouses contributed to any property acquired during the time married. Utah requires an "equitable" division of property but not necessarily equal. The division or property usually uses these factors; how long the marriage lasted, the age and health of all parties, their occupations, the amounts and sources of income, and also related issues/matters. It doesn't matter whose name is on the house, the car, or even boat the courts have the power to divide all property owned by either or both spouses. The judge will consider if the parties divided their property by agreement, and he’ll review it to decide if it’s fair. Just remember the property division cannot be reopened after its final, except under very rare, limited circumstances.

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