Family Law, Divorce, Estate Planning, Wills, Trusts, Probate, Guardianship, Elder Law
 
Serving Orange County, California, including;
 Anaheim, Brea, Costa Mesa,  Fullerton, Huntington Beach, Irvine, Newport Beach, Orange, Santa Ana, Tustin, Villa Park, Yorba Linda

"Knowledge is power."
Sir Francis Bacon

FAMILY LAW

Family Law or marital / matrimonial law, involves the legal aspects of the relationships between a husband and wife and family relationships.  The interrelationship and complexity of family life and its legal aspects brings to bear other areas of law such as constitutional law, contract law and property law, within the practice of family law.

The goal and role of a family law lawyer is to act as an advocate for the client's interests in the case.    

Prenuptial Agreement

A premarital agreement (also called antenuptial or prenuptial) is a contract entered into by and between parties who are prospective spouses, in contemplation and preparation of an impending marriage.  These contracts are used to limit or waive marital property rights they would acquire upon marriage.   A prenuptial agreement may be recognized as a legally valid contract if it is fair, and provides for a full disclosure of the assets of the parties, and where independent legal advice was provided and available, especially to the prospective spouse with lesser resources. 

Marraige Contract and Solemnization 

A marraige is a persoinal relationship which arises out of a civil contract by parties who who consent to and are capable of making the contract.  In accordance with California Family Code Section 300 the consent of the parties must be followed by the issuance of a license and solemnizaiton of the marraige.  The document issued by the county clerk is a marrriage license until it is registered and then become a marraige certificate.     

Postnuptial Agreement

A postnuptial agreement, also called a postmarital agreement, is a contractual marital agreement between the parties or spouses, after they are married.   If the spouses are contemplating dissolution of the marriage (divorce), then the postnuptial agreement would be drafted in the form of a separation agreement.  Where the parties are not contemplating dissolution of marriage (divorce), then the contractual agreement would be drafted to specify agreements between the spouses to handle the disposition of existing marital property and how that property is to be bought, sold, exchanged, or disposed of, such as by will or trust.

Legal Separation

A legal separation is different from a divorce, or a dissolution of marriage, in that it does not terminate the marriage.  The spouses live independently of each other, but they still retain the status of married persons.  Legal separation does not have the residency requirement of divorce in California, where a party must have resided in California for six-months prior to filing for divorce.        

Divorce

A divorce is referred to as a dissolution of marriage in Family Law court.  In California, there is a six-month waiting period.  A final judgment of dissolution of marriage, or divorce, does not become valid until at least six months after the initial petition is served upon the respondent. 

Contested Divorce
 
A contested case is a court proceeding that is opposed, or where there is opposition by the other party, or an interested person in the matter.  A contested divorce is one in which the parties do not agree on all the issues.  In a contested divorce, the parties may not agree on who gets the property, or how the property should be split, who pays support, and the amount of money for spousal support and child support, who the children should live with, who should get custody of the children, and how often each party should get to visit with and see the children, who should pay, or how much each party should pay for attorneys fees.

Uncontested Divorce

The parties may execute a marital settlement agreement, which will become their stipulated divorce judgment and thereby avoid the expense, necessity, and stress of a litigated court trial.   

Fault and No-fault Divorce

A  marriage dissolution, in California, can be obtained on grounds of irreconcilable differences.  A dissolution of marriage sought on the grounds of irreconcilable differences is more commonly known as a no-fault divorce.  The grounds of irreconcilable differences represents the actual reasons underlying a marital breakdown.  Where a dissolution of marriage is sought on grounds of irreconcilable differences, the actual reasons for the marital breakdown is made irrelevant, along with questions of fault or misconduct, on the part of either party.

Nullity of Marriage (Annulment)
 
A petition for a judgment of nullity of marriage may be sought where there is a question as to the validity of the marraige.  A marraige may be found to never have existed based on a theory of nullity.  A petition for a dissolution of marriage (divorce) is one in which the marriage was valid and the parties are seeking to dissolve the marraige.  Whereas a petition for a nullity seeks a judgment based on the theory that the marriage was void from its' inception or voidable due to a legal imperfection.

Void Marraige

A marriage may be a void marraige based upon the familial relationship of the parties.  A marraige between parents and children is a void marraige.  California Family Code Section 2201 provides that a marraige between ancestors and descendants, between brothers and sisters, whether brothers and sisters of the whole or half blood, and between uncles and neices or aunts and nephews void.  These marriage are incestuous and void from the beginning.

Voidable Marraige

A marraige, which may be a voidable marriage, is a valid marraige until it is declared to be void by a court of competent jurisdiction.  A voidable marraige may become valid by affirmation by the parties and by the passage of time, if a proceeding to annul is not commenced within the statutorily prescribed period of time.

A voidable marraige may be one in which the following circumstances arise.  Where one or both of the parties were below the age of consent, unless after attaining the age of consent the party freely continued to cohabit with the other party as husband and wife.  Where the husband or wife of either party was living and that marraige was in full force, and it was unknown, to the party seekng the judgment of nullity, the husband or wife was living, for five years immediatley preceeding the subsequent marriage for which nullity is sought.  Where the husband or wife of either party was living and that marraige was in full force, and it was bel;ieved by the party seeking the judgment of nullity that the husband or wife was dead. Where either party is of unsound mind, unless the party of unsound mind, freely continued to cohabit with the other as husband and wife after coming to reason.    

California Family Code Section 2210 provides:
A marriage is voidable and may be adjudged a nullity if any of the following conditions existed at the time of the marriage:
   (a) The party who commences the proceeding or on whose behalf the
proceeding is commenced was without the capability of consenting to the marriage as provided in Section 301 or 302, unless, after attaining the age of consent, the party for any time freely cohabited with the other as husband and wife.
   (b) The husband or wife of either party was living and the marriage with that husband or wife was then in force and that husband or wife
      (1) was absent and not known to the party commencing the proceeding to be living for a period of five successive years immediately preceding the subsequent marriage for which the judgment of nullity is sought or
     (2) was generally reputed or believed by the party commencing the proceeding to be dead at the time the subsequent marriage was contracted.
   (c) Either party was of unsound mind, unless the party of unsound
mind, after coming to reason, freely cohabited with the other as husband and wife.
   (d) The consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife.
   (e) The consent of either party was obtained by force, unless the party whose consent was obtained by force afterwards freely cohabited with the other as husband or wife.
   (f) Either party was, at the time of marriage, physically incapable of entering into the marriage state, and that incapacity continues, and appears to be incurable.

California Family Code Section 2211 provides:
A proceeding to obtain a judgment of nullity of marriage, for causes set forth in Section 2210, must be commenced within the periods and by the parties, as follows:
   (a) For causes mentioned in subdivision (a) of Section 2210, by any of the following:
   (1) The party to the marriage who was married under the age of legal consent, within four years after arriving at the age of consent.
   (2) A parent, guardian, conservator, or other person having charge of the underaged male or female, at any time before the married minor has arrived at the age of legal consent.
   (b) For causes mentioned in subdivision (b) of Section 2210, by
either of the following:
   (1) Either party during the life of the other.
   (2) The former husband or wife.
   (c) For causes mentioned in subdivision (c) of Section 2210, by the party injured, or by a relative or conservator of the party of unsound mind, at any time before the death of either party.
   (d) For causes mentioned in subdivision (d) of Section 2210, by the party whose consent was obtained by fraud, within four years after the discovery of the facts constituting the fraud.
   (e) For causes mentioned in subdivision (e) of Section 2210, by the party whose consent was obtained by force, within four years after the marriage.
   (f) For causes mentioned in subdivision (f) of Section 2210, by
the injured party, within four years after the marriage.


Custody

Child Custody

Custody is one of the most sensitive and important concerns for clients.  The need for empathetic and expeditious handling of this matter is critical. The parents or the court must decide which parent may be granted the legal and physical custody of the child. The superior court is empowered under the Family Code to make an order for the custody of a child under the age of majority, as it deems necessary and proper.  Where the parents of the child are spouses, legal issues of child custody and visitation, regarding the minor children, may be litigated in actions of dissolution, legal separation or nullity.

Custody for the care, control and maintenance of a child may be awarded to one of the parents, or joint custody may be awarded where both parents share in the responsibility and authority in caring for the child.   Joint custody may involve joint legal custody and joint physical custody. 

Natural Born and Adopted Children: The court's jurisdiction over the issue or children of the marriage includes natural born and adopted children.

StepChildren:  The issue or children of the marriage do not include a stepchild and therefore the court s have no jurisdiction to hear the custody request of a stepparent. 

Legal Custody

Legal custody or sole legal custody entitles a parent to make decisions regarding the health care, education, religion, and the general welfare of the child.

Parents may agree to or may be granted joint legal custody of the child, which means that decision-making is to be shared by both parties. 

Physical Custody

Physical custody may be granted to a parent or parents in the form of sole physical custody or joint physical custody, respectively.

A parent may be granted sole physical custody of the child, which means that this parent will be the one with whom the child will live on a day-to-day basis.  The other parent will generally be allowed visitation rights with the child according to a specified visitation schedule and arrangement. 

The parents may be granted  joint physical custody of the child.  Under this arrangement the child will actually live with each parent on a regular on-going basis according to a specified custodial schedule which indicates the days and times the child will reside with each party.   
 
Spousal Support

A husband and wife mutually assume obligations of spousal support for each other, upon entering into the contract of marriage.  Generally as long as spouses are married and living together they mutually owe each other a duty of support.

In a judgment of dissolution of marriage or legal separation, the court may order one spouse to pay for the support of the other spouse for a period of time that is determined to be just and reasonable, based upon the standard of living during the marriage.

A pendente lite order for support may order a spouse to pay the other spouse an an amount necessary for that spouse's support, during the time that a dissolution of marriage or a legal separation is pending.

The court will consider a number of factors in ordering spousal support. the standard of living established during the marriage and the extent to which the earning capacity of each party is sufficient to maintain that standard of living is to be taken into account, the duration of the marriage, the age and health of the parties, the extent to which the supported party's earning capacity is impaired by periods of unemployment during the marriage due to domestic duties, the ability of the supporting party to pay spousal support taking into account the supporting party's earning capacity and assets, and the assets and obligations of each party.

The factors the court shall consider in ordering spousal support (alimony) are provided in the California Family Code.  The pertinent Family Law Code section follows below. 

California Family Code Section 4320
In ordering spousal support under this part, the court shall consider all of the following circumstances:
factors the court shall consider include:
(a)  The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
    (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
    (2)  The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career posiiton, or a license by the supporting party.
(c) The ability to pay the supporting party, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.  
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party. 
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) The immediate and specific tax consequences to each party.
(k) The goal that the supported party shall be self-supporting within a reasonable period of time.  A "reasonable period of time" for purposes of this section generally shall be one-half the length of the marriage.  However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section and the circumstances of the parties.
(l) Any other factors the court determines are just and equitable.  

Child Support

Both parents are mutually responsible to support their minor children, according to the parent's individual circumstances and position in life.  The court may order either or both parents to pay any amount necessary for the support of the child or children. Child support orders remain in full force and in effect until modified or revoked by the court or until they are termineted by operation of law.  Child support orders remain modifiable , based on a change in circumstances and to conform to the current state guidelines.  The statutory duty of child support normally ends when the child reaches 18 years of age, which is the age of majority, or the child marries or otherwise becomes emancipated.  An extension or exception may apply to an unmarried 18-year-old, who is a full-time high school student and an incapacitated adult child. 

Paternity
 
Paternity is rebuttably presumed in favor of a man who meets the specified conditions, under the Uniform Parentage Act. The district attorney (DA) is charged witht the duty of enforcing child support obligations. A DA child support enforcement action is limited to issues of paternity and support. 
 
Post Judgment Modification

A proceeding for a post judgment modification to modify custody, visitation, child support, or spousal support may be brought at any time, upon a showing of a substantial change of circumstances.  Child custody and visitation orders are modifiable during the child's minority when the court finds that it is in the child's best interests.

Juvenile Dependency

Juvenile dependency law seeks to ensure the child's safety, protection, and physical and emotional well-being; and to preserve and strengthen the family, if possible.  Children have a fundamental interest in belonging to a family unit, and the right to be safe from abuse and neglect and to have a stable, home life and permanent placement.  Parents have the fundamental right to the care, custody, management, and companionship of their children.  Juvenile dependancy law seeks to accomodate and balance the rights of children and parents.

Juvenile court dependency proceedings begin with the filing of a petition.  A parent's conduct usually creates the harm, or the risk of harm, to the child, and the petition is filed on the child's behalf to protect the child, rather than to prosecute the parent.  Juvenile dependency jurisdiction ends when a child reaches the age of 18, unless there is a risk of harm or the child is still in high school. 
 
ESTATE PLANNING

California is a community property state. In California, estate planning involves issues of whether property held by spouses is categorized as community property, separate property or quasi-community property.  
 
Wills

A will is an instrument that is testamentary in character, is revocable during the maker's lifetime and becomes operative at the testator's death.  An instrument or document is testamentary when it is written or made so as not to take effect until after the death of the person making it.  A will may be executed by any person over 18 years of age, who is of sound mind.  A formal will is a written document signed by the person who is devising the property, known as the testator.  Nonprobate assets cannot be disposed of by will.  A formal will in California must be witnessed by at least two persons, each of whom is present at the same time and are witnesses to either the testator's signing of the will, or the testator's acknowledgement of either the signature on the will or the will itself.  A person with testamentary capacity may revoke his will at any time prior to death. A will may be revoked by operation of law, such as the event of a subsequent marriage, divorce, or birth or adoption of children, by subsequent instrument, such as a subsequent written will or codicil, or by physical act, such as burning, tearing, obliterating or destroying it with the intent and for the purpose of revocation.   
 
Trusts

A trust is a relationship, whereby a trustee, who has legal title to specific property (called res), holds that property subject to the equitable title held by the beneficiaries of the trust.  The settlor is the creator of the trust and the owner of the trust property (called res). A person who has legal capacity to administer the trust and can acquire and hold property for his own benefit may be trustee.  A person capable of taking and holding title to property can be a beneficiary.  The purpose of a trust must be lawful and not against public policy to be a valid trust purpose. 
 
Inter Vivos Trusts

An inter vivos trust is a trust created during the lifetime of the settlor.  An inter vivos trust may also be known as a revocable living trust.  The revocable listing trust may be used as a tax planning and probate avoidance vehicle.  
 
Testamentary Trusts

A testamentary trust is a trust that derives its essential terms from a will.  A "pour over" trust is a (testamentary) trust created by will whereby property bequeathed in a will "pours over" into the trust which was created during the lifetime of the trustor.  A "pour over" trust may remain unfunded during the settlor's lifetime.  Trust assets such as life insurance and similar death benefits may be paid into an unfunded trust whose only purpose is to receive those funds upon the settlor's death.   
 
Revocable Trusts

A trust may be revocable and able to be amended if the settlor expressly reserved the right to revoke.  A revocable trust may be used as a convenient way to manage assets, as a future plan for potential incapacity, as a way to avoid guardianship, and to avoid the costs and delays of probate.  Where legal title to a person's assets is transferred to a trustee, the trust continues to operate and provide for the settlor/beneficiary of the trust without the necessity of guardianship administration.  Assets held in a trust are not subject to probate administration.   
 
Irrevocable Trusts

An irrevocable trust is a trust that cannot be revoked, modified or amended.  In most states a trust is irrevocable, where the settlor did not expressly reserve the right to revoke or amend the trust.  In California, a trust is revocable by the settlor, unless the trust is expressly made irrevocable. 
 
Supplemental Needs Trust

A supplemental needs trust is a trust established for the benefit of a minor or disabled person.  In California, neither the principal nor income held in a supplemental needs trust is considered to be an available resource for the beneficiary, for government benefits programs such as Medi-Cal.  
 
PROBATE

Probate refers to the proceeding in which an instrument is judicially determined to be the duly executed last will of the decedent, or if the decedent died intestate and did not execute a will, the proceeding in which the decedent's heirs are judicially determined.  The probate process is a system by which the assets of a decedent are collected, creditors of the decedent are satisfied, conflicts among the beneficiaries are resolved, and the remainder of the decedent's estate is distributed to the appropriate persons of institutions.  Generally only some a decedent's property interests are subject to probate.  Formal probate proceedings may be needed when the decedent's estate contains propberty that does not pass to the a surviving spouse, such as property that is the separate property of the decedent, or when an assets in an estate, that does not pass outside probate is valued at more than $100,000. 

CONSERVATORSHIP/ GUARDIANSHIP

Conservatorship and Guardianship are among the most sensitive and important concerns for clients.  The need for empathetic and expeditious handling of this legal matter is critical.  A conservatorship is a court action by which, a person, called a conservator, petitions the court and seeks the legal authority to aid an incapacitated adult. 

A conservatorship of the person and conservatorship of the estate are court actions whereby a person (the proposed conservator) seeks the legal authority to assist an adult  who may be mentally incompetent , physically disabled or incapacitated or both.
 
Conservatorship/Guardianship of the Person

A conservatorship of the person may be awarded and a conservator of the person may be appointed by a court for a person who has been adjudicated incompetent and is unable to care for their own personal needs.  A conservator of the person may be appointed by a court for a person who is unable or no longer able, either temporarily or perhaps permanently, to provide for their own personal needs for health, medical care, shelter, food and clothing.    
 
Conservatorship/Guardianship of the Estate or Property

A conservator of the estate (or property) may be appointed by the court to manage the assets of a person who is unable to manage their financial resources on their own.  A conservatorship of the estate (or property) may be awarded and a conservator of the estate may be appointed by a court for a person who has been adjudicated incompetent, is unable to manage their financial assets, and lacks the legal capacity to enter into or make any transaction that legally binds or obligates their estate.
  
Powers of Attorney

A power of attorney is a written document executed by a person who is the principal in which the principal authorizes an agent to act for the principal.  A power of attorney may concern property and financial matters, or the health care of the principal.  A power of attorney may be either nondurable or durable and it may become efective immediately upon execution, or at a future point in time.  

Durable Powers of Attorney

A power of attorney may be created by any natural person who has the capacity to contract.  A durable power of attorney is one that may last beyond the incapacity of the principal and may continue to be in effect. 

Immediate Powers of Attorney

An immediate powers of attorney becomes efffective and grants authority to the agent immediately upon its execution.

Springing Powers of Attorney

A springing powers of attorney may become effective and an agent may become authorized to act for the principal upon the happening of a specific event or upon a contingency which may be, but is not limited to the incapacity of the principal.    

Powers of Attorney for Health Care

A power of attorney for health care is a written document or instruction, executed by a person who is the principal, in which the principal authorizes an agent to make health care decisions for the principal.   A power of attorney for health care may take effect upon a determination by the principal's primary physician that the principal lack capacity.

Advance Health Care Directive

An Advance Health Care Directive is a statutory form that contains a Power of Attorney for Health Care and instructions for the proper and mandatory formalities for execution.

ELDER LAW

The practice of Elder Law involves the planning and care for the personal needs and medical care, as well as the financial concerns and goals of individuals, as they move through the stages of their lives.  The areas that are addressed in Elder Law are not exclusively for "elders" as persons of any age may find themselves in the same of similar circumstances. The tools and legal documents that accomplish these goals include living wills, powers of attorney, and health care proxies.  
 
Medicare

Medicare is is a federal program whereby persons who are 65 years of age and older, and persons who are disabled and under the age of 65 are entitled to health insurance.  Social security recipients automatically receive Medicare Part A benefits, which covers hospital care. The Medicare program also offers Part B, which is an optional program that pays for doctors and outpatient services.    
 
Medicaid

Medicaid is a joint program between the federal government and the state.  The Medicaid program is administered by the individual states to provide medical assistance to medically needy eligible persons.  The federal government reimburses the state for a percentage of the payments made to recipients under the Medicaid program.  
 
Medi-Cal

Medi-Cal is California's implementation of the federal Medicaid program. The federal government reimburses the state of California for a portion of Medi-Cal payments made to the eligible recipients of Medi-Cal. 
 

America The Beautiful
O beautiful for spacious skies,
For amber waves of grain,
For purple mountain majesties
Above the fruited plain!
America! America!
God shed his grace on thee
And crown they good with brotherhood
From sea to shining sea!

O beautiful for pilgrim feet
Whose stern impassioned stress
A thoroughfare for freedom beat
Across the wilderness!
America! America!
God mend thine every flaw,
Confirm thy soul in self-control,
Thy liberty in law!
By Katherine Lee Bates

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