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Our Law Blog and Articles is an online publication that covers our latest news, hot cases, emerging trends and big personalities in law. It’s brought to you by Attorney Matt J. Rudy.

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b2ap3_thumbnail_Rudy-family-digital-assets.jpgToday’s society largely stays in touch over social media and other electronic means. Individuals may share a number of digital assets or may want to keep them separate. Knowing how digital assets will be treated and divided in the event of divorce or death can provide clarity to this issue. Prenuptial agreements can help safeguard digital assets.

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b2ap3_thumbnail_Rudy-Family-Law-Dating-During-Divorce.jpgBefore considering to date someone while a divorce is still being finalized or has not had the paperwork completed may risk negative consequences. There are often possible legal ramifications to understand that could cause a negative impact on the individual that does date another person when going through a divorce. These issues could affect the divorcing partner and the other dating him or her.

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b2ap3_thumbnail_Rudy-family-law-child-custody.jpgChild custody laws are based on state law. There are a number of different types of custody. What is best in a particular case depends on the state laws, the parents’ agreement and the circumstances.

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b2ap3_thumbnail_Rudy-Family-lawyer-Domestic-Violence.jpgDomestic violence is a highly underrated crime. Many people do not even understand that they are facing a domestic violence at home and they continue to suffer it. Domestic violence is not limited to physical assault but many verbal, emotional, and sexual abuse are considered the parts of domestic violence.

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b2ap3_thumbnail_Rudy-family-law-Forensic-Accounting.jpgAn experienced divorce attorney will be able to advise if using a forensic expert accountant will substantially help a case for dissolution of marriage. They will know the possible financial advantages versus the cost.

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b2ap3_thumbnail_child-divorce-2016.jpgWhat some divorcing parents would like, more than anything, is for the other parent to vanish. They believe that would solve all their problems. What they don't recognize is that when one parent disappears, the children's problems generally get worse.

A few years ago a case in the Court showed us what a high price children can pay when they lose a parent through divorce.
The case had started 14 years earlier. The divorcing parents had a one-year-old daughter. They were quarreling about how much time dad should spend with her. At some point the mother grew weary of the fight, and she moved to Nevada where she filed a second divorce suit. People could do that back then. It seems the father had also grown weary of the fight, because he ignored the Nevada court papers.

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b2ap3_thumbnail_family-law-attorney-in-monterey-2.jpg

Abandonment: A Divorce Issue

In high conflict divorces, those that never seem to end, abandonment is a common factor.
These days, when we see divorced spouses returning to court two or more years after the divorce process was technically completed, we inquire into their early childhood experiences, and we frequently find abandonment trauma in their family histories.
The most obvious form of abandonment is when a parent deserts the family, but it can also be the result of a parent dying when a child is young. Sometimes the effect of a parent being ill and away at hospitals or just not able to invest adequate time and energy into parent/child interactions is perceived by the child as abandonment. It can even be one consequence of parental drug or alcohol abuse. A substance-impaired parent is not emotionally available, and to a child that can feel like abandonment. Not surprisingly, many adopted children have feelings of abandonment.

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b2ap3_thumbnail_bigstock-latin-business-man-worried-pay-70398460-resized-600.png When spouses are not living together, it can be difficult to determine which spouse is legally responsible to pay debts. The timing of when the debt was incurred, the nature of the debt and state law are important considerations in this assessment.

Necessaries Doctrine

At common law, the spouse – typically the husband – was legally liable for the support of the other spouse. This right could be enforced on the spouse, either by the other spouse or by third-party creditors. Today, some states have established statutes that require a spouse to be responsible for necessary or family expenses, even in the absence of an express agreement to pay such a debt.

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b2ap3_thumbnail_private-investigator-career.jpg Divorce is often a contentious experience in which formerly intimate spouses are now adversaries. With this dynamic, spouses may start to hide information or take part in activities that may threaten the well-being of the family. Private investigators are sometimes retained to assist in divorce cases for a number of reasons.

Evidence of Adultery or Misconduct

A private investigator can investigate if a spouse is committing adultery or other types of marital misconduct. Every state has no-fault divorce laws that do not require the evidence of wrongdoing in order to grant a divorce. However, marital misconduct is sometimes relevant for proceedings involving spousal support in states in which support is barred if one party’s conduct led to the demise of the marriage. Additionally, marital misconduct may also help provide more favorable terms for a spouse under a prenuptial agreement.

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Posted by on in Spousal Support

 

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Posted by on in Prenuptial Agreements
 

b2ap3_thumbnail_The-Catch-15-Reasons-why-a-Pre-Nup-Discussion-Can-Ruin-Everything-photo11.jpg Although couples do not enter a marriage with divorce in mind, a prenuptial agreement (prenups) can protect both parties and avoid a long, costly divorce process.

Traditionally, wealth was the driving factor behind premarital agreements; today they are commonly thought of as a financial plan that sets forth expectations in a marriage.

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Posted by on in Child Support

b2ap3_thumbnail_download-1.jpg Every state recognizes that each parent is responsible for providing support for their children, whether the child lives with each parent or not. However, there are many circumstances when the family court should no longer have jurisdiction of the case or when child support should otherwise end.

By Court Order

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b2ap3_thumbnail_lgbtDivorce.jpgMany in the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community celebrating a victory, not only for them, but for the Court’s interpretation of the constitutional rights of all Americans.
In the majority decision of the Court, all states must perform and recognize same-sex marriages, even if the marriage was performed outside of the home state of residence. Citing the protections offered by the Fourteenth Amendment Due Process Clause, the Court has given same-sex marriages the equal constitutional protection that heterosexual marriages are granted.

Justice Anthony Kennedy authored the Court’s opinion stating that the fundamental ideals of marriage are the same for both same-sex marriages and those between a man and a woman. Marriages based on love, fidelity, devotion, sacrifice, and family apply to both types of marriages and should be available to two consenting adults who respect that union. He added that same-sex couples want the same type of committed and respected marriage that heterosexuals enjoy where two people come together and become greater than before. To deny them of that right is unconstitutional in the eyes of the law.

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b2ap3_thumbnail_child-support-13.jpg State laws determine how and when a person can be ordered to pay child support. Additionally, these laws dictate the window in which a person can collect arrearages.

Legal Duties

Every state denotes that both parents are responsible for supporting their children until the child reaches the age of majority. This often means that child support remains due until the child turns 18. However, many states permit child support orders to last longer than the child’s 18th birthday.

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b2ap3_thumbnail_20121116202428-9.jpg Family courts around the country recognize that spouses own some property that is separate from what they accumulated as a marital couple. Those assets that comprise the marital estate are subject to division at the time of divorce while separate property is generally excluded from a divorce award.

Premarital Property

The property that a person brought into the marriage is usually off-limits to the other spouse. However, this can change if the old property has comingled with marital property. For example, a bank account can become comingled property if the other spouse was added to the account or funds were used from the account that make transactions indistinguishable between separate transactions and marital transactions.

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b2ap3_thumbnail_download_20160428-003849_1.jpgThe Supreme Court has acknowledged the validity of same sex marriage throughout the country. Of course, after parties get married, some of those parties decide to divorce. However, not all divorces are treated equally, because some of the doctrines surrounding divorce have traditionally been applied only to long standing heterosexual marriages.

For example, one of the grounds often asserted to obtain a divorce is that of adultery. However, adultery has traditionally been given a limited and narrow definition, involving vaginal intercourse between a married person and someone other than his or her spouse. Because of this limited definition of adultery, typically interpreted to apply to sexual intercourse between a man and a woman, by definition it is technically not applicable to infidelity in a same – sex relationship. As a result, this limited definition may deprive same sex couples of this ground for absolute divorce. It would be appropriate for the legislature to consider expanding the definition to be applicable to physical relationships between persons of the same sex.

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b2ap3_thumbnail_parar-de-beber_.jpgImagine a woman is so infuriated with her husband for his philandering, gambling and drinking that she disinherits him. Upon her demise, the husband commences an application for support under Part V of the Succession Law Reform Act (the “SLRA”).[1] The husband qualifies as a dependant because he is a spouse and his wife had a legal obligation to support him. What impact, if any, would his past behaviour have on his entitlement to dependant’s support?

By way of background, claims for dependant’s support are governed by Part V of the SLRA. Within Part V, section 57 contains the definition of a “dependant,” which includes the spouse of the deceased. The definition also provides that the deceased must have either been providing support or been under a legal obligation to provide support to the dependant immediately before his or her death.[2] Section 62 of the SLRA contains an extensive, but not exhaustive, list of factors the court will consider in determining the amount and duration of support to be awarded to a dependant. Section 62(1)(r) contains factors considered specifically for a dependant spouse, and subsection (i) therein contains the phrase “a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.”[3] This leads to the first question that a disinherited spouse might have: what will be considered unconscionable conduct sufficient to preclude or lessen the amount or duration of support awarded?

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b2ap3_thumbnail_71991154.jpg In addition to remedies that are available at the state level, such as garnishment of wages and state tax offset programs, the Deadbeat Parents Punishment Act creates a federal criminal cause of action for parents who refuse to make court-ordered child support payments.

Issuance

This federal act was signed into law in 1998 by then-President Bill Clinton. After Clinton passed the act into law, he publicly stated that a central reason why many single mothers have to rely on welfare programs is because the fathers of their children have failed in their responsibilities to support their children. He said that the act was established so that children could have a higher quality of life.

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b2ap3_thumbnail_o-DIVORCED-WOMEN-facebook.jpgDrafting settlement and separation agreements is an important part of any family law practice because only fifteen-percent of divorce cases eventually go to trial.

Written settlement proposals can be exchanged at any time. They, like interrogatories, may help determine if an agreement can be reached now or in the future. Obviously, you need your client’s direct input and authority when drafting a settlement proposal and it is absolutely vital that they review and approve the proposal. Many times, the first settlement proposal will be quite broad, while subse quent iterations can pin down the details of the agreement.

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Posted by on in Legal Separation

b2ap3_thumbnail_img.couple-yelling-silhouette-alberta-law.jpg In some circumstances, one spouse may consider suing his or her spouse for particularly egregious conduct. However, whether the spouse can bring a viable claim against his or her spouse depends on the nature of the behavior, the nature of the relationship, state law and the particular circumstances involved.

Common Law Considerations

At common law, suing one’s spouse was generally outlawed. The legal reasoning behind this is because a married couple was sometimes viewed as a single entity. Therefore, by suing one’s spouse, an individual was really suing himself or herself. This concept was largely known as the “spousal immunity” rule.

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Tagged in: divorce family law
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