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International Travel and Child Custody – What You Should Know

Sometimes it seems that issues around child custody are needlessly complicated and difficult to understand. So when a parent who shares custody of a child wishes to travel internationally, he or she should be aware of the additional legal ramifications of taking that child out of the U.S.

In one respect, things are fairly straightforward, at least for residents of California. This state has no statutory prohibitions for international travel with a child, unlike state laws affecting a parent’s decision or desire to relocate with a child out of his or her county of residence to another part of California (or another state). However, other variables, such as travel restrictions in a court order, may impact travel plans.

To understand how child custody may affect international travel, let’s look at situations (1) where there are no court orders and (2) where a child custody order is in place.

No court orders

If your child doesn’t already have a passport, federal law requires both parents to sign the passport application. To complete this process, both parents can appear in person to present the application or one parent can give the other parent a document of signed consent to indicate their agreement.

In cases where one parent objects to the other parent traveling out of the country with their child, obtaining a passport may prove difficult. Sometimes this may legal proceedings to establish each party’s rights—that is, to file a petition for custody orders.

Another reason why it is important to have the other parent’s consent (or court orders establishing specific rights) is that various government agencies in the country you wish to visit may require a letter of consent signed by the other parent. This can also apply to customs and/or airline officials who ask to see a signed letter of consent before taking the child’s boarding pass.

A custody order in place

Some child custody orders may include provisions that prohibit or at least limit the extent of international travel with the child (this can apply to domestic travel restrictions as well). Even if there are no specific restrictions, it is a good rule of thumb to make every effort to get the consent of the other parent before making travel arrangements and to ensure that, unless the other parent is in total agreement, such travel does not conflict with either the other parent’s time with the child or with the child’s school attendance.
Even when a custody order is silent on the issue of travel with the child, you may still have to “jump through hoops” regarding, as stated above, passports, letters of consent, and so on. Again, my advice is to always obtain permission for your travel plans, in writing wherever possible.

Nightmare scenarios

What happens should you choose to disregard the other parent’s wishes and travel out of the country with your child without the consent of the other parent? Here are possible nightmarish consequences to consider:

• The other parent can file a police report with local law enforcement, charging you with parental kidnapping.

• The other parent can appeal to the U.S. Department of State and set proceedings in motion that charge you with federal parental child abduction.

• If a custody order exists, the court can deem your actions “contemptible,” laying the groundwork for additional penalties and fines on your part, as well as grounds for a change of custody.

Again, if you must travel to Mexico or elsewhere outside of the U.S. with a child, do everything in your power to get the other parent to consent. Once the other parent has consented, you can travel with the child worrying of facing the above-indicated civil and criminal penalties.

If for some reason you’re unable to obtain consent and still need to travel with your child, promptly consult a family law attorney to explore your other legal options.

Unclear as to your rights under a child custody order? The Law Offices of Ian S. Topf, APC offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.

What To Do When A Family Court Order (Child Support, Visitation, Debt Responsibility, etc.) is Ignored?

Clients often ask me what they can do when an ex-spouse or former domestic partner violates or ignores a Family Court order regarding child support, visitation rights, restraining orders, etc. If such a violation occurs, they ask, shouldn’t the offending party be subject to a contempt of court action?

In California, most contempt of court actions relating to Family Court orders are considered criminal proceedings. When such an action is brought in Family Court, the person charged with contempt has the same rights as anyone facing criminal prosecution. This includes the right to an attorney, the right to a formal reading of the charges against them, and the right to testify and cross-examine witnesses. As for prosecuting such an action, there is generally higher burden of proof involved where the accused can be found guilty only if the admissible evidence provides their guilt beyond a reasonable doubt.

If found guilty, the Defendant faces possible jail time, community service, and/or having to pay a substantial fine.

There are exceptions to what can be brought as a contempt action. For example, when the court orders one party to pay a debt obligation to a third party (such as a credit card company), a former spouse/partner cannot seek contempt for failure to pay. California, like most states, do not allow criminal charges for failure to pay consumer debts.

With all of the above in mind, many people who believe they have been wronged as a result of their ex-spouse/partner’s violation(s) of court order(s) think it’s a no-brainer to file contempt charges and throw the “dead-beat” in jail, especially if the other side fails to pay court-ordered support.  However, I offer a word of caution: often incarceration leads to additional, future issues.  A person responsible for paying support may have trouble paying support when he/she is not working due to being in jail and the conviction/jail sentence may cause that person to lose his/her job permanently.

If you still desire to pursue contempt charges against a spouse or partner, you will need to make sure your pleadings specifically set out your claims.  Here are a couple of tips:

Burden of Proof. To establish contempt of a Family Court order, you have to show (1) you have a valid court order, (2) the other party has actual knowledge of that court order, and (3) the other party willfully violated that court order.

A valid court order 

Contempt can only be brought when there is a violation of a valid court order.  Any agreement between parties that’s hasn’t been accepted by the Court as its order is not enforceable by contempt. If you assert to the Court that the other party “promised” by email or text to make pay you child support or allow visitation with your child but no court order has been issued, your contempt action will likely be turned away.

Knowledge of the court order 

The person you wish to have charged with contempt must be shown to have knowledge of the existing Family Court order. This requirement is usually met if the Court entered orders after a hearing attended by both parties.  However, if you proceeded with obtaining orders by default—i.e., a situation where the other party didn’t participate in the original court proceeding where the support obligation was ordered —you must prove that person actually received (and has knowledge of) the court order.

Willful violation of the court order 

The person being charged with contempt must be shown to willingly defy the Family Court order. In a situation where that person is in jail or otherwise incapacitated (and therefore unable to earn money to make payments), a contempt action probably won’t result in the desired outcome.

Be Specific. In my experience, many contempt actions get tossed out of court because the description of the violation is too vague or ambiguous.

For example, charging someone with contempt because he “always fails to make regular monthly child support payments” generally won’t hold up as a valid count of contempt. However, being specific—“In January 2015, my ex-husband was supposed to pay $1,000 in child support and he didn’t make the payment”—is a much better charge.

In general, always be prepared to provide your attorney with specific details about your matter.

Contempt of Family Court order actions do have their place in enforcement of orders, but usually are a last-ditch effort.  Fortunately, there are other means by which to enforce a court order to pay child support, to ensure a parenting plan is adhered to by the other party, and to try to make sure each party takes responsibilities for their respective obligations under court orders. If you are banging your head against the wall because the other side refuses to cooperate with court orders, seek the advice of an experienced attorney to explore your options and take the appropriate steps to get the relief you desire.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

2015 Resolution: Take Care of Your Legal Needs

On behalf of all of us at the Law Offices of Ian S. Topf, APC, best wishes for a happy, healthy and prosperous 2015!

It’s not too late to make a New Year’s resolution that will benefit you and your family throughout the new year. This is a great time to take care of some essential legal planning responsibilities – and you’ll feel much better when you do.

Estate planning

Many people mistakenly think of an estate plan as something that matters only when they die, but there’s really much more to it than that. With a thorough and carefully prepared plan in place, your loved ones won’t have to experience the additional stress of wondering about your final wishes (health, financial, etc.) should you become physically incapacitated and unable to share those wishes during a highly emotional time.

If you already have an existing estate plan, the new year offers a perfect opportunity to review the plan so it reflects any changes that took place during 2014. Such changes might have included:

  • Got divorced or remarried
  • Blessed with the birth or adoption of an additional child in the family
  • Need to remove or replace an agent or beneficiary who passed away
  • New wishes for how you want to have your medical needs addressed

It’s also important to note that, depending on when you first created your estate plan, California law may have changed in ways that invalidate some provisions (or at least affected them so they’re no longer practical). In my legal practice, for example, I’ve come across very old estate plans that haven’t been modified to accommodate requirements under HIPAA (Health Insurance Portability and Accountability Act) and/or the California Probate Code. Without being updated, such plans could run into serious legal problems at a later date; the same problems you have sought to avoid by creating your estate plan in the first place.

In summary, now’s a good time to check with an experienced lawyer to make sure your estate plan is still legally valid and will sleeping aids carry out your wishes, and, if you do not have an estate plan in place, get to it!

Debt relief

Are you one of the many, many Americans who spent too much money during the holidays and find yourself starting the new year in considerable debt? Rather than wallow in this predicament, take advantage of free consultation offered by many debt relief attorneys (including myself)!

We can help you design pro-active ways to resolve your debt and gain control of your financial situation, so you can actually move forward in 2015 without this enormous weight on your shoulders. Don’t wait for debt collectors to start coming after you!

Take action

This brings me to what I think should be everyone’s most important New Year’s resolution: Stop procrastinating! It’s understandable that people put off their legal planning—after all, approaching a lawyer about estate planning or debt relief or any other legal matter seems like a severely negative thing, and most of us naturally drag our feet on these issues, sometimes until it is too late. But think how much better you’ll feel after you address and resolve these matters directly.
For families and individuals who have enrolled in legal insurance plans, I suggest you take a closer look at what these plans have to offer. Many plans provide full-service benefits for legal matters like estate planning and debt relief. They’re also very helpful for general legal advice on a wide range of legal matters.

Remember—you don’t have to wait until you’re facing a lawsuit (or initiating one) to get in touch with an attorney. We can help you cope with many of life’s challenges and free you up for other important goals in the coming year.

Are you in need of legal counseling or have any questions about the above topics? The Law Offices of Ian S. Topf, APC offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

Want to Bad-Mouth Your Ex-Spouse? Bite Your Tongue!

Divorce triggers a lot of strong feelings, so it’s natural for each side to have negative emotions and the desire to express them. But as a family law attorney with extensive experience in this area, I strongly urge my clients not to express those feelings in the home setting.

Kids are “sponges”

As a parent myself, I know first-hand that children are “sponges,” taking in everything they hear and see, and easily influenced by the people around them—especially their parents. If one spouse demeans the other, the result is almost always a negative one. It can bias a child against a parent or, if the child has strong, loving feelings about the criticized parent, can end up generating negative feelings about the spouse doing the bad-mouthing.

As any experience family law practitioner would attest, the general legal consequences of such negativity can be severe, including but not limited to a seemingly never-ending barrage of arguments and verbal attacks, extensive expensive and time-consuming litigation for modification of child custody, intervention by a child welfare agency due to accusations of abuse and neglect, and a very possible loss of various parental rights.

In other words, bad-mouthing is a no-win proposition all around.

Non-disparagement clause

Most child custody orders now include a non-disparagement clause, wherein both parents are admonished that neither parent is to make negative statements about the other parent in the presence of children. This provision usually includes a requirement that each spouse must also do everything possible to avoid letting other people (family members, significant others, etc.) say negative things about the other parent in front of the children.

Violating the non-disparagement clause can affect an individual’s custody rights. The offending party may be required to attend a co-parenting class or, in extreme cases where one parent simply can’t keep his or her mouth shut, the Court can limit that parent’s visitation rights (e.g. supervised visitation) to attempt to insulate the children from such negativity being said about the other parent.

What can you do in a bad-mouthing situation?

If you feel that your children are being affected by unwelcome comments, there are steps you can take to address the problem.

  • Discuss the situation with the other parent in a non-retaliatory, non-confrontational manner. This could be as informal as sitting down with your ex-spouse and reminding them that the Court has ordered both parties not to bring up any legal matters, parenting problems or other issues you have with the other parent in front of the kids. Then you can work together on developing a strategy for dealing with issues as they arise between you.

 

  • If you’re worried that such a discussion will fall on deaf ears, then address the issue in a letter or email to the other parent. In this way, you have documentation of attempts to address the problem informally, trying to amicably resolve the issue without extensive litigation, in the event you must bring it to the Court’s attention in the form of a request to modify custody.

 

  • If the problem still persists, consider filing an action requesting parenting classes or changes to the terms of the parenting plan.

 

When parents divorce and go their separate ways, one of the main goals of the Court is to minimize disruption in children’s lives. This should be each parent’s goal, as well. For this reason, it’s best for each party in a divorce proceeding – even if they can’t stand each other – to bite their tongues and keep their opinions to themselves when around their kids.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

Develop a Game Plan for Separation or Divorce

If you and your spouse face impending separation or divorce, there are important legal and emotional factors to consider. Whether you intend to hire a lawyer to represent you in Family Court or you wish to represent yourself, here are several things to keep in mind:

Put a game plan together. The legal process of divorce or legal separation can be costly and time-consuming, but you can take action to avoid unnecessary expenses and time spent. The key, as I tell all of my clients, is preparation. Before embarking on the process of filing for divorce/legal separation, living through litigation and dealing with the final judgment, you should develop a game plan to see you through.   Create a budget for future expenses of the legal process, develop a timeline for where you want to be in the process at what times, attempt to anticipate potential obstacles (e.g. cooperation or lack thereof of your spouse) that may delay the process and identify possible solutions to avoid/alleviate those obstacles.

Shore up emotional support. Even under the best of circumstances, divorce is an emotional roller-coaster for everyone involved. There will be moments of happiness (knowing you’ve made a decision that hopefully improves your life), but there will be many more feelings of anger, depression, sadness and regret.

It’s easy to see, therefore, how maintaining one’s composure throughout the process is a real challenge. Get prepared by cultivating (or strengthening) an “emotional support system.” This usually consists of trusted family members, friends, a clergyperson, therapist or someone else in whom you can confide and share your feelings.

Prepare your children. Regardless of how amicable the impending process may be, your children will be negatively affected. There’s no way around it.

If possible, talk with your spouse or partner about how best to approach the children and explain what’s going on now and what will happen next. I don’t mean discussing the legal issues, rather, focus on how their lives will probably change during and after the process. Help them find a way to deal with their emotions and the prospect of separation anxiety that will likely occur. It’s far better to address this beforehand, rather than wait for children to act out as a result of the divorce/separation.

Compile your financial information. If you haven’t already done so, compile information and documentation about finances – both yours and your spouse – held individually or jointly – including assets, debts, income and expenses.

Once proceedings get underway, you’ll be glad you put all this together in advance.  Not only does it save time, but after the divorce petition is filed and litigation starts, even the most well-meaning people begin playing games, concealing important details about assets and debts, etc., that can lead to costly discovery efforts and will ultimately affect the final resolution of the key issues of support and property/debt division.

In many marriages, one or the other spouse is often in the dark about household finances. One spouse handles most, if not all, financial matters (paying bills, depositing checks, etc.) and the other person lives in “willful blindness” of the grand scheme of the household finances. That’s all well and good when people are in a happy situation with trust all around, but it’s the worst possible scenario in the event of divorce or separation. At that point, the person who hasn’t been involved is generally clueless about the status of individual and joint assets and what money went where – and definitely at a disadvantage  when it comes time to either negotiate a global settlement or present your case in court.

Set goals for life after divorce or separation. As difficult as it is to imagine, you will have a new life after this painful episode. Try to see yourself after the legal process is over. Where do you want to be after the divorce judgment comes in? What do you want out of the settlement and what are you willing to accept? (These questions apply both to finances and child custody, where appropriate.) The court expects you to be willing to negotiate, so your attorney needs to know ahead of time what is your “ceiling” (i.e. what would be optimal for you) and what is your “floor” (i.e. what you would accept) in the overall settlement of the various pending issues of your matter (e.g. custody, support, assets and responsibility for debts).

Again, preparing for the road ahead in advance of the legal process is the best thing you can for yourself and your loved ones. Otherwise that road will be a very bumpy one (and much more expensive than it has to be).

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

Protect Your Assets by Keeping Records

When two people fall in love and decide to get married, they don’t want to consider the possibility that at some time in the future they may no longer feel the same way about each other – and that the experience of separation and divorce might turn ugly over issues of community assets and debt obligations.

Sadly, as we all know, this scenario happens all too frequently. But while divorce is an unhappy topic to consider before such a happy occasion as marriage, I believe it’s vitally important to do so. A well-considered and expertly crafted pre-nuptial agreement can set out rights and responsibilities, address issues of property characterization, and minimize the potential legal costs involved in a lengthy and contentious divorce.

Division is right down the middle

Here’s a common problem I see in my practice. A client comes in who’s been married a long time (10 years, 12 years, longer) but doesn’t have a pre-nup. This person is very unhappy at the prospect of having to divide practically everything he or she owns 50-50 – as generally is required by California community property law. Why? Because, the client says that they came into the marriage with substantial assets acquired well before anyone said, “I do.”

Since California is a community property state, we start with the assumption that, when it comes to property that has been acquired in the course of a marriage (that is, all the assets as well as debt obligations), the division almost every time will be right down the middle.

A possible exception occurs in cases where domestic violence is involved. If the court determines that one person has been severely injured and is leaving the marriage with substantially diminished capacity to acquire new assets and income, he or she may be entitled to more than a 50-50 division of assets and debts.

The importance of “tracing”

 But what about assets and debts acquired either before the marriage or after separation?  The key to asserting one’s exclusive rights to property acquired before marriage or after separation is through what’s known as “tracing.” If you can trace the timing of the acquisition of an asset to a date either prior to the marriage or after you and your spouse/partner separated, the court will, in most cases, take this as proof of separate property belonging to the person who acquired it. The same principle applies to assignment of debt in the divorce.

But tracing depends on accurate documentation – and that’s where many of us fall short. As in the long-term marriage I mentioned above, it’s easy to lose track of any documents you might have concerning the acquisition of assets 10, 15 or 20 years ago. Unless you can produce such documentation, it will be very difficult to establish that any specific asset should be deemed your separate property.

Things get further complicated when you have to reach out for assistance with documents. Many institutions like banks expunge records after a certain amount of time has passed. So when it comes to obtaining financial and investment information from long ago, unless you’ve kept good records on your own, you may be out of luck.

I can’t stress this strongly enough. Print out your important documents (bank statements, credit card statements, etc.) and keep them locked away. You never know when a particular document will prove useful in court.

How can you attempt to avoid all this drama and turmoil? Look into having a pre-marital agreement, even if it casts a momentary shadow over your upcoming wedding celebrations. It’s by far the best way for both parties in a marriage to identify and protect their separate assets and minimize the possibility of being liable for the other’s pre-marital debt obligations, if things take a turn for the worse somewhere down the road.

Is a pre-nup right for you or just have any questions regarding the above topic?  The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.  

The Double-Whammy of Divorce and Debt

It’s a sad fact of life, but money issues often lead to marital discord, which in turn can lead to the overall breakdown of marriage and eventual divorce.

In this difficult area, many misconceptions persist regarding the responsibility of debts. For example, one client recently came to me with the following situation: she and her husband had been married for 10 years, he had recently lost his job and there was a ton of debt on the credit cards in his name only. My client’s question was—If I file for divorce, will the court see this debt as being strictly my husband’s responsibility and absolve me of any debt obligations?

The answer is, no.

In California, while a debt may be incurred in one party’s name, if the debt is racked up while the parties are married, it is generally deemed “community debt.” Also, credit cards, while issued in one party’s name, still may have his or her spouse listed as a co-signer or “responsible party” (even if this doesn’t show up on the credit card or credit card statements).

Another important point to note here: Because California is a community property state, some creditors feel free to pursue the spouse of an account holder, regardless of whether he or she incurred the debt themselves or is even listed on the account. Additionally, generally speaking, a Family Court order assigning a debt to one spouse has no effect on a third-party creditor. As in the example mentioned above, just because a judge says the husband is responsible for credit card debt won’t stop a bank from going after the other spouse.

Options for resolving the situation

In many cases, a spouse, who in the divorce is going to be deemed to be not responsible for the debt (the “non-responsible spouse”), can request a court order stating that the responsible spouse pay for any out-of-pocket expenses tied to that debt. In these cases if a creditor obtains money from or sues the non-responsible spouse to recover the debt, that spouse can pursue the responsible spouse for appropriate reimbursement, including attorney fees and costs.

The non-responsible source can also attempt to assert that the debt be paid off prior to the close of the divorce, matter through the sale of community assets. Beyond that, all you can do is hope and pray the responsible spouse pays off the debt before the creditor comes after you.

In my opinion, unless the marriage situation is as bad as the warring spouses in the movie, “The War of the Roses,” both parties should do everything possible to set aside their differences and resolve the debt before going through with a divorce. Failing to resolve the situation will only lead to additional problems later on. Once a divorce proceeding gets underway, the adversarial environment may present insurmountable obstacles to seeking proper debt relief.

Whatever the case, always consult a family law attorney before taking any action. You may have more options as a married couple than as a single individual.

The Law Offices of Ian S. Topf offers a free consultation in a variety of issues, ranging from family law, bankruptcy, debt collection defense, estate planning, criminal defense, DUIs, and general civil matters.

If You Move Out During a Divorce, Do You Lose the House?

Many issues arise in the course of a divorce proceeding, but one of the most common (and most commonly misunderstood) relates to a couple’s marital residence. Who will live in the house while the divorce is pending? Can both spouses continue to reside there? Should they? Who’s responsible for maintaining the property (including general maintenance, payment of mortgage, HOA, property taxes, etc.)? If I move out, am I sacrificing all rights to the property?

The answer to the last—and probably most important—question is No. Many clients mistakenly believe that if they leave a house during a divorce proceeding, the other party gets it outright. This is a myth.

By moving out of the house, you don’t give up any interest you have in the property—or any other legal rights connected with owning the property. You still retain the privilege of possession and the ability to profit from the sale or rental of the house. If while a divorce is pending, one party needs to address an issue involving the house, he or she can present the issue through a motion—though a court will not generally order a sale or division of the house as a result of this motion.

In California, community property law dictates that each party is (in most cases) entitled to 50% of all community assets. While a divorce is underway, there’s usually insufficient information to determine a fair distribution of community assets, so the court won’t award the house to one party or another, until it’s clear the other party will be rewarded assets equal to the equity in the house.

When children are involved

Of course there are several factors involved in determining who should remain in the house while a divorce is pending. One of the key concerns is children.

For example, if the couple has lived in the house for the past decade, they may not want their children to undergo the emotional turmoil often involved in relocating elsewhere. In these cases, the best option may be for the mother to continue residing in the house. Then both sides must determine if she should be responsible for maintaining the residence on her own or if the father (or domestic partner) contributes to payments and upkeep.

Even when Mom stays at the property with the children, she doesn’t necessarily get more interest in that property. Any temporary arrangements made to address this issue can always be altered by a later agreement or a court ruling. A temporary order does not mean a decision has been set in stone.

Final disposition

As the divorce proceeding nears the end-point, the issue of final resolution of the marital residence is looked at more closely by both sides. The house can be put up for sale at any time, if both parties agree to this arrangement. Options for final disposition of the residence include:

  • The wife buys out her husband and gets awarded the property to herself
  • Husband buys out his wife
  • They sell the house together and split the proceeds

Another possibility involves what’s called “deferred disposition.” As part of a divorce settlement, both parties may agree that, upon some future contingency, their youngest child (or any child so specified) gets the property in question.

In general, issues related to real estate should be addressed early and often during the course of a divorce. Speak to an experienced attorney to get more information on this issue.

Elements of an Effective Parenting Plan

Whenever a divorce proceeding takes place and children are involved, issues of child custody and visitation inevitably arise. The goal for everyone involved should be to design a custody and visitation arrangement (also called a “parenting plan”) that effectively addresses the health, education and well-being of the children.

Typically, parenting plans are organized into two components:

Legal custody. This refers to which parent is responsible for making key decisions affecting the child’s daily life, most often those involving education, religious practice, medical needs and extracurricular activities. As with physical custody, legal custody can also be either sole or joint, though joint legal custody entitles each parent to participate in decisions about their children’s lives (even if they don’t agree on all of these decisions). In California, the presumption is that both parties can share legal custody, with exceptions where circumstances clearly dictate that one parent should have sole legal custody—as in situations involving domestic violence, abuse and abandonment.

Physical custody. This relates specifically to where a children lives and how best to organize their activities. With sole or primary custody, the child lives with one parent most of the time and visits the other parent. With joint custody, a child lives with both parents. In either case, certain questions need to be answered, including: Where should children live during the week and on weekends? Which parent is in charge of the children and at which times? How do children get from one parent to the other?

Physical custody also addresses the issue of each parent’s visitation rights. In my experience, visitation rights can be anything from “no rights” to having the children half (50%) of the time. Additionally, a parent can receive rights to supervised visitation, which generally involves the presence of a third party who monitors a parent’s time with his or her child; although the parties may agree to have a parent supervise the other parent, especially when it is in the child’s best interest, such as when a parent has previously had little to no contact with the child, to ease the previously-absent parent into the child’s life. Factors determining the need for supervised visitation may include, but are not limited to:

  • The child’s relationship to the parent
  • Any history of domestic abuse
  • A parent’s detrimental conduct (due to alcohol or drug abuse, for example)

I believe that generally when it comes to determining these concerns, parents are uniquely positioned to make the best judgment call. In the vast majority of cases, parents have greater personal knowledge of what’s best for the children. By contrast, other participants in a court proceeding—such as lawyers, judges, other mediators—generally know much less about the children’s own personal past, present and future needs.

When parents are sincerely motivated to do what’s best for their children, the results are generally very favorable. Parents know their own strengths and limitations best. If they focus on the kids, they can (and should) be able to work things out between themselves.

If this isn’t possible, it’s time to consult a family law attorney and get assistance in creating a workable parenting plan for the future.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

What a Pre-Nuptial Agreement Can and Cannot Do

A pre-nuptial agreement (also called a “pre-nup”) is a legal contract between two people who intend to get married. This document defines each party’s respective rights and obligations, should the marriage eventually go down the path of divorce or legal separation.

Can be used as evidence in a court of law

In California, pre-nups are governed by rules outlined in the Uniform Premarital Agreement Act. Such an agreement can be drafted to address present and future property rights, as well as either party’s future entitlement to spousal support and (in a very limited sense) issues relating to any children the couple might have.

In a court of law, the pre-nuptial agreement represents a contract that may be enforceable or, at the least, used as evidence of what each party intended at the time they got married. While the court may find reason to invalidate a part or parts of the pre-nup, the document can still be used as evidence of each individual’s prior intentions.

To make the pre-nup more enforceable, it must (a) be drafted under the rules of the Uniform Act and (b) include a stipulation that, at the time of creating the agreement, each party receives a full financial disclosure form the other party—including a complete list of assets, debts and respective incomes. Each party must then be allowed seven days to review the document prior to signing it, during which they can, and should, seek the advice of an attorney if they don’t already have one.

Make the best decision for your future

What can be included in a pre-nup:

  • Under California law, almost anything acquired during the marriage, be it income, property or debts, is presumed to be community property. This means either party is entitled to half of the assets or responsible for half of the debts, regardless of who actually acquired them. In some cases, a pre-nup can alter that presumption—not only by defining assets coming into the marriage as the separate property of the person bringing them into the relationship, but also by identifying a person’s acquisitions during the marriage (wages, bank accounts, etc.) as being in that party’s separate property.
  • Both parties may agree on either a waiver of spousal support or other limitations on one person’s entitlement to spousal support—that is, the maximum amount of support allowed or the maximum duration of payments of spousal support allowed.
  • The parties may agree on other terms of support that courts don’t usually consider, such as a child’s eventual college expenses. The pre-nup can stipulate that one party will assume the burden of paying those expenses, an issue usually beyond the court’s jurisdiction.

What cannot be included in a pre-nup:

  • Any terms deemed “unconscionable”—for example, a plastic surgeon earning $500,000 a year is unlikely to be permitted to insist on a waiver of spousal support from his fiancé, a teacher in the public school system, who earns vastly less.
  • Provisions pertaining to child custody, visitation and child support terms are not allowed in this document.
  • A pre-nup cannot include terms of “punishment,” such as “If he cheats on me, I get damages of $50,000.”

Should couples intending to get married have a pre-nuptial agreement? The answer varies depending on the individual circumstances, but I believe it’s always a good idea to know what you’re bringing into the marriage and what you’d like to have, should the marriage come to an end. Whatever the case, enlist the services of an experienced attorney to make sure you arrive at the best decision about your future.

Getting married or just have any questions regarding the above topic? The Law Offices of Ian S. Topf offers a free consultation in a variety of issues, ranging from family law, bankruptcy, debt collection defense, estate planning, criminal defense, DUIs, and general civil matters.