Cohabitants Beware

Cohabitants Beware

Married couples are not the only ones beholden to a contract. Since 1976, people living together in California may be subject to paying the other support and to dividing pooled assets after a cohabitation relationship goes sour.

Before 1976, the only people on the hook for paying alimony and dividing pooled assets were married couples going through a divorce. After the Marvin case, things changed.

Lee Marvin was a famous actor in Hollywood circa the 1960s and 1970s. After his divorce from Betty, Lee began dating and living with Michelle. Even though Lee and Michelle never married, they entered into a verbal agreement that they would live together, combine their efforts, and earnings and that they would share equally in all property that accumulated during their relationship, whether obtained individually or through a concerted effort. They held themselves out to their community and friends as a married couple, and Michelle gave up her career as an entertainer and singer to be a homemaker, housekeeper, cook, and companion. In return, Lee agreed to provide for all of her financial support and needs for the rest of her life. When their relationship went south, Michelle expected Lee to hold up his end of the bargain. When he didn’t, she sued him.

As California is not a common law state, and financial rights like alimony and community property division were traditionally reserved for married couples only, Lee’s attorneys were not concerned. Indeed, Lee won at the trial court level. But, Michelle appealed. Eventually, the California Supreme Court determined that the verbal contract between Lee and Michelle was valid, and Michelle won.

What this means to legions of people cohabitating in California, regardless of whether they have a romantic or sexual relationship, is cohabitators beware. Before you hand your apartment keys over to your friend or lover, it is good practice to make sure you understand what you could be facing down the road. We suggest you consult with an attorney if any of these situations apply to you and a significant other:

  • You are thinking about moving in together;
  • You start pooling your assets;
  • You start sharing the mortgage, rent, utilities, groceries;
  • You start having children together…

Don’t get caught up in a financial twist by accident.

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Shorter Marriage? You May Be in For a Smoother (and Cheaper) Divorce!

Shorter Marriage? You May Be in For a Smoother (and Cheaper) Divorce!

Not all marriages are created equal, and neither are all divorces. California law allows for an expedited divorce process, called a “summary dissolution” under certain specific circumstances.

To qualify for a summary dissolution, all of the following must be true:

  • You were married for 5 years or less;
  • You have no children that are a product of your marriage;
  • You do not own any real estate, and your lease ends within one year;
  • Your community debts do not exceed $6,000;
  • Your community assets do not exceed $45,000 (do not include any vehicles);
  • Your separate assets do not exceed $45,000 (do not include any vehicles);
  • You waive any rights to spousal support;
  • You have an agreement regarding asset and debt distribution and assignment.

If these circumstances apply to you, you can achieve your divorce with less court filing fees, much less paperwork, much more cheaply, with significantly less acrimony, and within the statutory 6-month waiting period. We suggest you consult with an attorney to make sure your situation falls squarely within these, (and other) guidelines, and that you move through the process as efficiently as possible.

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Family Law Judgement Debt Collection

Family Law Judgement Debt Collection

Your divorce is final.  You have a judgment.  You are owed money…and your ex WILL NOT PAY! Where do you go from here?

We can help!  Remember, you cannot ask the Court to collect on a judgment for you.  You have to do it yourself or ask an attorney to do it for you.

There is nothing preventing you from immediate collection efforts on a judgment, so long as:

  • The Court has entered the judgment.  You can check to local court register of actions to confirm entry of judgment; and,
  • There is no stay (suspension) on the enforcement of the order.
    • Some causes for a stay are as follows:
      • Appeal; or,
      • bankruptcy case; or,
      • other legal action.

      If you wish to take some steps toward collecting on your own, here are some tips:

      • Give your ex an address where s/he can send the payment. You can give them a Venmo option, or PayPal option.  They can also wire funds from their bank.  This will also create a paper trail for purposes of tracing a payment should you be undercut on the full amount due, preventing your ex from claiming they paid in full.
      •  You can offer to accept a reduced amount than the whole judgment requires, under the condition, there is immediate payment. Remember to keep any modifications to a judgment in writing.  BEWARE:  An agreement to take a reduced amount prevents you from collecting the remainder at a later time.  Before you consider this option, definitely, talk to us at Mendes Weed.
      • You can offer to collect payments over time.  Any payment structure should be memorialized in a writing.  Even text of email is sufficient, although, not better than a court order permitting the modification.
      • If your ex does not pay you by the date the court ordered, write your ex a letter (email is also acceptable, but ask for a read receipt if possible), and be sure to include a copy of the judgment. Diplomatically remind your ex that you are owed funds under the judgment and if they do not comply you will be forced to seek legal action.   Keep in mind, most judgments (especially if drafted by an attorney) have attorney’s fees clauses in them which permit a spouse to seek attorney’s fees for having to return to court to enforce terms of a judgment.
      • Call an attorney. If your ex refuses to comply with the judgment, the legal process can be complicated, expensive, and time-consuming.

      Do not exercise illegal self-help methods.

      Your ex could possibly be protected from offensive or unfair ways to collect the debt. It is not wise to engage in harassing and deceitful tactics to try and get your money. Further, these tactics could prevent you from collecting any attorney’s fees to which you may be otherwise entitled.  Consult an attorney at Mendes Weed about additional, lawful methods of dealing with a non-paying ex.

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“We Want Prenup, Yeah! It’s Something That You *May* Need to Have”

“We Want Prenup, Yeah! It’s Something That You *May* Need to Have”

Kanye West and Jamie Foxx were on to something with their 2005 hit song “Gold Digger,” ever-so-subtly advising their listeners to get prenuptial agreements. But, if you are looking for a prenuptial agreement that will stand the test of time, you may want to fill in those lyrics with some legal advice. Now, with COVID forcing many couples to delay their weddings, you have that much more time to thoroughly vet those prenup terms.

But first, a little story. One day in court, an attorney was overheard telling his business client, who was getting married for the fourth time, that he should let him prepare a “fill-in-the-blank prenup” for him. The attorney went on to joke that, every time his client got (re)married, he could just change the name in the prenup. If only they were that easy…

Unfortunately, or rather, fortunately, prenuptial agreements do not work that way. Prenups require more reasoned negotiations than Kanye and Jamie may have led you to believe. Parties to a prenuptial agreement can contract with respect to any of the following:

  • Their rights and obligations with respect to property, wherever it is located;
  • The right to buy, sell, use, transfer, exchange, lease, etc. any property;
  • The disposition of property upon separation, divorce, death, or other specified events;
  • The making of a will, trust, or other arrangements to carry out the provisions of the agreement;
  • The ownership rights in and disposition of the death benefit from a life insurance policy;
  • Agreements regarding spousal support or waivers of spousal support so long as the party taking the detriment was represented by counsel;
  • Any other matter, including their personal rights and obligations, not in violation of public policy or criminal laws. (Child support, for example, cannot be waived in a prenuptial agreement.)

Understandably, it takes some time to fully understand the extent of the rights one may be giving up or altering in a prenuptial contract. To ensure parties have some time to let the terms of their prenuptial agreement sink in, California Family Code 1615 now requires a 7-day “cooling off” period for all prenuptial agreements prepared after January 1, 2020. Thus, regardless of whether a party is represented or not, a prenuptial agreement will be invalid if the 7 day “cooling off” period is not honored. Even so, if a court senses that a contract was executed too hastily, under duress, fraud, undue influence, or lack of capacity or competence at the time the agreement was signed, the contract could be invalidated, and your pre-marital negotiations could be all for naught.

There are numerous other intricacies and formalities required to drawing up a valid prenuptial agreement, and we suggest you and your soon-to-be-spouse retain counsel to be fully informed.

Do you still plan on saying your happily-ever-after vows? We at Mendes Weed will enthusiastically raise a glass to you and yours and hope you never have to pull that prenuptial contract out of the filing cabinet. 

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Custody and Visitation in a COVID-19 World

Custody and Visitation in a COVID-19 World

Even in good times, and times of certainty, co-parenting, custody and visitation can be challenging, and often adversarial.  Excuses are commonly made to refuse custodial time and visitation (I hear them from clients, opposing parties, and even attorneys).  Now in the COVID-19 world, there now appears to be a very strong basis for justifying the refusal of custody and timeshare…But is there really?

In response to Governor Gavin Newsom’s strict shelter-in-place order, people have freely modified their custody and parenting time orders for numerous reasons, e.g., geographic distance between homes, in and out of county; a member of a parent’s household is a first responder or frontline person and both parents agree not to take the risk; a member of a parent’s household is more vulnerable to the virus because of underlying medical conditions, or someone has tested positive for the coronavirus.

Also in response to Governor Newsom’s orders, parents/caretakers are acting unilaterally and violating court orders, making efforts to justify disobeying the Court’s order by claiming it is in their child(ren)’s best interest and leaving the other parent needing the assistance of a Court which is running at limited capacity.  Most courts are essentially closed for all routine matters and are only handling emergencies; some courts are not even prepared to handle emergency matters.

The courts across the San Francisco Bay Area are fairly unified in their position that COVID-19 is not an excuse to unilaterally modify custody or justify withholding children from court-ordered timeshare and visitation.  I have heard from colleagues, as well as my own experience, that the Courts are intolerant of parents who use “The Rona” to prevent parents from exercising their ordered timeshare.  The Courts have stated that COVID-19 is not, of itself, grounds to withhold children from court-ordered visitation, and frankly, doing so may be playing with fire; it may be viewed by the Courts as a reason to reduce or eliminate the “offending parent’s” timeshare.

These times are unprecedented, and there are constant conflicting messages, from the media, the public, the Courts, counsel, etc.  Who do you listen to?  What do you do?  You listen to your attorney (if you have one), and you follow the direction of your order.  A modification of child custody, even on an emergency basis, is always an option, and the Courts are engaging in emergency hearings at this time.

Notwithstanding court orders, parents may voluntarily modify their custody orders, either permanently, or temporarily, by mutual agreement.  The key words being mutual and agreement.  Both parents must agree to the medication, and as an attorney who practices in this area, I would strongly advise these agreements are, at a minimum, memorialized in email format, and even better, by legal Stipulation and Order, protecting both parents’ rights under the modification.

Also, consider, if making a modification to a child custody order,

  • how long does the modification need to be in place,
  • should there be a self-executing provision, conditional upon the lifting or relaxing of the Shelter-in-Place which changes the agreement again, or returns the agreement to the original agreement,
  • are provisions necessary for childcare modifications,
  • changes or agreements required to facilitate distance learning. 

There is a myriad of issues to consider, and it is critical that they are outlined, and drafted thoroughly if they are to be effectively enforced.

If you have questions or concerns about a child custody order or informal agreement, we are here to help. Safeguard yourself, and your children, by ensuring your rights as a parent are protected.

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How Social Distancing and COVID-19 Related Employment Changes Impact Your Child Support and Childcare Related Issues

How Social Distancing and COVID-19 Related Employment Changes Impact Your Child Support and Childcare Related Issues

The financial crisis experienced by many families in America is extreme-shut-downs, limited services, and even law firms, are suffering and unable to maintain their business infrastructure and revenue.  Layoffs, if they have not happened yet, are all but promised.  At this time, the shelter-in-place is extended almost weekly, and no one truly knows when, of even if, life will return to what we once knew.

Those with child support or modifiable spousal support obligations are surely concerned about paying bills while also obeying court orders for support payments. Adding fuel to the fire, Contra Costa County, as well as many Bay Area Counties, have moved into hearing only “emergency” requests, and the definition of “emergency” is not exactly clear.

Meanwhile, California has implemented some of the strictest shelter in place regulations in the nation-schools and most daycares are closed, and adequate childcare can be an issue, especially for essential workers.  The luxury of having family at home to assist with childcare, home schooling, etc., is not something everyone enjoys. So what next?

Should you file a Request for Order to Modify Support?

The first stop is to review the local rules for the county your case is in, or in the county which would have jurisdiction over your case.  Most, if not all, counties have implemented emergency COVID-19 local rules.  You may reference COVID-19 resources on our website, www.mwlawca.com, or connect with us on Facebook, to review your county’s local rules.  If support motions are permitted, and mostly they are, you may file for a modification; however, a court date may not be offered until your courthouse reopens for hearings, or until your county has a virtual hearing system in place.

California law permits the Court to have authority (often referred to as jurisdiction) to make support orders retroactively to the date the motion was filed. If you are the parent obligated to pay support (the payor), and you have a substantial change in circumstances (job loss, hour or salary reductions, etc.) you may file a Request for Order requesting a modification of the required support payment, while also asking for the Court to make the new order retroactive to the date the motion was filed.  If you anticipate a substantial change in circumstances, you may draft your Request for Order in advance, so it is prepared and ready for filing if/when your income change occurs.  This will help prevent any delay which can be caused by the drafting time.  Job loss, reduction of hours or salary, would unquestionably be a basis to modify child support, especially if it was not due to any act by the payor.  However, remember, a motion to modify support doesn’t excuse non-payment or otherwise order support while you await new orders.

On balance, if your childcare costs have increased as a result of the COVID-19 pandemic, a Request for Order is appropriate as well. Due to the court closures and the hearings on emergency matters, your case may not be heard quickly, but you will have preserved the retroactivity rights with the timely filing of your Request for Order.  Remember, most orders are written with an equal responsibility to both parents to pay for childcare costs.  Times are uncertain and unclear at this time.  It is critical that you understand your court orders, and you act on them timely and appropriately. If you need further assistance in review, understanding, modifying or enforcing your court order, we can help.  Stay healthy!

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