Monday, April 26, 2010


Donald F. Conviser, Certified Family Specialist, owner of Warner Center Law Offices, located in the San Fernando Valley in the Warner Center area of Woodland Hills, serving Prenuptial Agreement, Divorce, Paternity, and other Family Law clients in the Courts of Los Angeles County and Ventura County for over 38 years, offering a free confidential consultation to address your family law questions, presents this blog entitled: Why should I have a Prenup, in an effort to clear up misconceptions that many people have about property rights in a marriage.

A Prenup is one and the same as an Antenuptial Agreement, a Premarital Agreement, and a Prenuptial Agreement.

In this era when more marriages fail than survive, a Prenup is a wise planning tool for anyone with assets or earnings of any significance to have in place before any wedding date has been chosen, or if already chosen, at least before a marriage license has been obtained, or wedding plans have been committed to.

Far too frequently, people enter into a marriage under mistaken beliefs about their property interests, a few of which are:

BELIEF: Whatever money I earn during our marriage is my own money. WRONG - Your earnings are community property. However, a properly and timely drafted and entered Prenuptial Agreement can make your earnings your own separate property.

BELIEF: If I own property before the marriage, my spouse can't ever get an interest in it. WRONG - even if you don't transmute the property into community property or the separate propery of your spouse, certain things can create a community interest in your separate property, including but not limited to using community income (yours or your spouse's) to pay down the mortgage or improve the property, using your or your spouse's labors or talents to improve the property, refinancing the property, etc. Your spouse could be entitled to a PRO TANTO community interest, under the MOORE/MARSDEN rule. You are far safer by having a Premarital Agreement drafted and entered before the marriage which preserves your property as your separate property and removes risks of community interests and reimbursements.

BELIEF: If I get a quitclaim deed to my separate property from my spouse, it will eliminate the risk of a community property claim to the property. WRONG. This is a common misconception. As addressed above, the community could still obtain an interest in the property through the use of your or your spouse's earnings to pay down the mortgage or improve the property, or using your or your spouse's labors or talents to improve the property, refinancing the property, etc., making you vulnerable to a MOORE/MARSDEN apportionment of community and separate interests in the property. A well-drafted Premarital Agreement can protect you against such an interest being acquired by your spouse.

BELIEF: If I refinance my separate property during the marriage, the proceeds of the loan will be my separate property. WRONG. Under Marriage of GRINIUS (1985) 166 Cal.App.3d 1179, the court would look to the intent of the lender to determine whether the loan proceeds are community and separate, and in this era of declining or uncertain property values, lenders are no longer providing "stated income" loans, but are requiring and scrutinizing detailed loan applications to ensure that the borrower can afford to make the loan payments - and remember, without a Prenup, earnings during the marriage are community property, so the risk is that the loan proceeds will be held to be community property. Far better for you to have a Prenuptial Agreement crafted in advance of the marriage for you by an experienced Certified Family Law Specialist, to avoid such risk.

BELIEF: If I buy an asset with my separate property duirng the marriage, the asset is my separate property. WRONG - kind of. Property acquired during a marriage is presumed to be community property, and the burden is on the spouse asserting its separate character to overcome the presumption. You will be far safer with a well-drafted Prenup.

If you wonder whether or not you should have a Premarital Agreement, you probably have enough to lose to take the wise step, early, and get the ounce of protection to avoid the pound of cure.

Wednesday, April 14, 2010


Donald F. Conviser, Certified Family Law Specialist, owner of Warner Center Law Offices in Woodland Hills, California, serving divorce and family law clients in the Courts of Los Angeles County and Ventura County for over 35 years, offering a free confidential consultation (call 818/880-8990) regarding your divorce or family law issue, provides insight regarding whether or not a payor can effect a private compromise of child support arrearages as opposed to a compromise through CSSD or any other local child support agency.

California Family Code Section 3651(c)(1) provides in relevant part that a support order may not be modified as to an amount accrued before the filing of a Motion or Order to Show Cause for modification. So going to Court to seek a retroactive modification would not work to compromise child support arrearages.

However, where justification exists, courts have refused enforcement of child support obligations. Marriage of JACKSON (1975) 51 Cal.App.3d 363 and in Marriage of TRAINOTTI (1989) 213 Cal.App.3d 1072, were cases in which the supporting party (the father) received actual physical minor child, albeit without an order changing custody. In those cases, the appellate courts acknowledged that an order for child support may not be retroactively modified, but held that the trial court had the discretion to deny enforcement of child support orders on equitable grounds - because the father was actually supporting the child, and in so doing, he was satisfying or discharging his support obligation.

The appellate court in Marriage of GRAHAM (1959) 174 Cal.App.2nd 678 held that a party can waive her right to a portion of spousal support and child support. Marriage of PABOOJIAN (1987) 189 Cal.App.3d 1434 was a case where the ex husband told his ex-wife that he had serious financial trouble, and the ex-wife told him to take care of the children and forget the alimony. The appellate court in PABOOJIAN affirmed the trial court's ruling that the ex-wife waived spousal support.

In Marriage of HAMER (2000) 81 Cal.App.4th 712, the appellate court found no evidence of an express oral agreement to accept less than the amounts required by the judgment and to forego collection of the difference, but commented in dicta about changes in the law, that child support was enforceable until paid in full, that child support was not retroactively modifiable, and that lack of diligence can no longer be asserted as a defense.

In Marriage of SABINE & TOSHIO M. (2007) 153 Cal.App.4th 1203, the appellate court disapproved Toshio's compromise with Sabine of past child support arrearages and future child support, and held that under Family Code Section 3651(c)(1), the trial court had no authority to make an order requiring Sabine to accept less than the full amount due. But the facts of that case reflect that Toshio imposed his will on his ex wife through nonpayment of her much-needed support payments, and essentially gave her no choice but to accept his compromise. Nevertheless, that case provides some authority for a court to disapprove a compromise settlement of child support arrearage.

Nevertheless, in Marriage of ROBINSON (1998) 65 Cal.App.4th 93, the appellate court held that the resolution of a bona fide dispute regarding support is acceptable, and in Marriage of THOMPSON (1996) 41 Cal.App.4th 1049, the appellate court indicated that there must be a dispute for there to be a valid accord and satisfaction.

If there were unfortunate economic circumstances which made it impossible for the payor to pay child support, the best thing to do would have been to file an Order to Show Cause to modify child support. But the circumstances may have been so dire that the payor may have not been able to afford an attorney, at the time. So what can you do now? If you have the understanding and sympathy of the payee, you could enter into a written agreement to compromise the arrearages, albeit without any guarantee that the Court would honor the agreement. In HAMER, the court found that there was no evidence of any alleged agreement, so a written agreement would be better than nothing, and would avoid the risk that the trier of fact might belive one party over the other regarding an alleged oral agreement. But it might be advisable, in addition, for the parties to enter into a written STIPULATION AND ORDER, to file with the Court. The Court might or might not sign the ORDER; if it doesn't, you would still have the written agreement to submit to the Court if needed later, again without any guarantee. If the Court signs the ORDER, it should create a greater level of comfort for the payor.

Monday, April 12, 2010


Donald F. Conviser, Certified Family Law Specialist, of Warner Center Law Offices in Woodland Hills, serving divorce and family law clients in the courts of Los Angeles and Ventura Counties for 38 years, offering a free confidential consultation (call 818/880-8990), writes about an oft misunderstood concept: Joint Legal Custody.

Clients frequently ask me: What is joint legal custody? If I have joint legal custody, am I required to consult with the other parent of my child regarding activities I want to enroll my child in? Do I need the other parent's consent for me to enroll my child in those activities?

Family Code Section 3003 states: "Joint legal custody" means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.

A look at Family Code Section 3083 and the Child Custody Orders in your case will assist in obtaining the answers.

Family Code Section 3083 states: In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court.

Only in those circumstances where the court order requires mutual consent for a decision or activity, is mutual consent required.

Where mutual consent is not required, you needn't consult with the other parent, and the other parent's consent to the activity or decision is not required.

However, where the order is unclear as to whether or not mutual consent is required, you are safer to discuss the activity with the other parent and seek consent, because the consequences of violation of a court order can include contempt of court or you may possibly risk an unfavorable modification of custody.

Your attorney could file an Order to Show Cause for clarification of the order, to get the order spelled out sufficiently so that you will know what you can and can't do without the other parent's consent.

Depending on the quality of your relationship with the other parent, and your ability to co-parent your child cooperatively with the other parent, it may be a good idea to meet and confer with the other parent from time to time to discuss issues that would best be resolved between the parties, instead of through adversary litigation and the Court.

But if your relationship with the other parent is not a relationship of trust or cooperation, there is a risk that what you propose could get pipelined to the other parent's attorney, so you need to evaluate the quality of your relationship with the other parent before you start sharing ideas which the other parent may be unwilling to accept.

Joint legal custody assumes that there is a spirit of cooperation between the parents. Where the Court opines that there is a lack of cooperation, the Court may well make a sole legal custody order, or the Court may give one party the ultimate decision making power. If you are seeking joint legal custody of your child, it is best to create a relationship of cooperation with the other parent.