Santa Rosa Family Lawyer Blog

Mother on Trial for Having Sexual Relations With Her Son

Fri, 11 May 2012 13:35:51 -0800

In a disturbing sequence of events reported in an article in The Press Democrat, a Lake County woman is accused of having sex with her teenage son. She is scheduled to be back in Napa County Superior Court on Thursday. According to Napa County court records, Mistie Atkinson faces four felony charges of incest, oral copulation with a minor, lewd contact with a minor and distributing lewd materials to a minor.

Each Lake County family law attorney has worked on many cases involving unique family situations, but these allegations are a reminder that no matter how long one has practiced law, bizarre circumstances continue to arise. Of course, this sort of conduct has criminal implications: a sexual relationship between a parent and his/her child is not only a violation of the California Family Code, but it is also a violation of the California Penal (Criminal) Code.

The California Penal Code makes clear that incest is illegal in California. The language of the Code pertaining to incest is as follows: "Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous are void, who intermarry with each other, or who being 14 years of age or older, commit fornication or adultery with each other, are punishable by imprisonment in the state prison." Therefore, in application of this provision, Atkinson remains in the Napa County jail, where she is being held on $200,000 bail.

The Napa County court records provide a little more context for the story. Apparently, Atkinson and her son were absent from each other's lives until just recently when Atkinson located her 16-year-old son through the Internet last year. Prosecutors allege that the two developed a sexual relationship in the latter half of 2011. Disturbingly, the son knew that Atkinson was his biological mother. Although the son had knowledge and the sexual relationship was consensual, our Lake County family law attorney understands that neither the Penal Code nor the Family Code in California allows for such an incestuous relationship between mother and son to go unpunished.

Not only does Atkinson face criminal ramifications for her actions, but she also faces child custody issues with her son's father. In response to the sordid turn of events, the father obtained a restraining order against Atkinson in December 2011. Reports have yet to disclose what, if any, further action the father has taken. It is logical to infer that the next step the father will take is to file for full custody of the son (if he doesn't already have it), asserting that it is in the "best interest of the child" to be under the supervision of the father given the mother's criminal behavior. Based on this argument, it is likely that the court will grant the father full custody.

In previous posts, we had discussed several factors that fathers in child custody battles should be mindful of in order to protect their custody rights. Those concerns notwithstanding, however, the father in this particular case is likely to find favor with the court under the circumstances.

Our Northern California family law attorneys appreciate that unexpected, unusual and complicated family issues can arise. When faced with uncertain situations, it is always important to seek the advice of a qualified legal professional in order to protect your rights.

See Related Blog Posts:

Determining the Best Interest of the Child

Fathers and Child Custody in California

Spousal Inheritance May be Barred if Homicide is Cause of Death

Thu, 10 May 2012 14:19:03 -0800

Losing a spouse is a traumatic experience. During the midst of the tragic loss, however, the surviving spouse must deal with the legal effects of the death, including property and inheritance issues. Our Santa Rosa family law attorney knows that under California law, the surviving spouse has a right to inherit the decedent's property through intestacy if there is no will or other non-probate instrument.

Yet a high-profile local case is making news across the country which turns this basic marriage inheritance issue on its head. What happens with inheritance issues when one spouse kills the other?

General public policy based rules establish that anyone who kills should not profit from such wrongdoing by allowing the wrongdoer to inherit the property of the donor, either through intestacy, will, or non-probate instruments, such as life insurance.

But what happens when the surviving spouse claims the killing was in self-defense?

The Criminal Case

According to an article in Press Democrat, a Petaluma man, Kenneth Mullennix is on trial for the January 9, 2010 murder of his wife. The couple had been in the midst of marital strife just before the wife's death. The discord was due to the wife's extramarital affair. Mullennix admitted that he shot and killed his wife, but he claims that on the night of the incident he was very drunk. He did not recall the exact sequence of events. On the tape of Mullennix's call to 911, he told the emergency dispatcher that his wife had attacked him and that she was insane. Some evidence suggests that before Mullennix shot and killed his wife, the wife had been in possession of the gun and was pointing it at Mullennix.

If this is in fact true, then, as our Santa Rosa family law lawyer knows, Mullennix may not be barred from inheriting his deceased wife's property since he was acting in self-defense.

Further supporting the argument that Mullennix was acting in self-defense, Mullennix has testified that his wife had a very violent temper, stating that there were incidents where she came at him with knives and bottles. There were also incidents where she had punched him. On the other hand, the prosecution has offered evidence that depicts Mullennix as a man obsessed with his wife's affair, ultimately causing him to murder her.

The law states that a person convicted of an intentional and felonious killing cannot inherit from his victim. Hence, a killer may not receive any property transfer from his victim. Because the killing must be willful and felonious, anyone convicted for involuntary manslaughter or who was insane at the time of the act can still inherit from the victim.

Santa Rosa Family Law Help

Fortunately, few local residents will ever be in a situation similar to this one. However, unique legal issues related to family property, dissolution, and custody concerns do arise. No two cases are identical. That is why if you are in our area and may be in need of legal help connected to family issues, it is imperative to seek the advice of an experienced Santa Rosa family law attorney. The legal professionals at Beck Law have been working on these issues for years and can provide the advice and advocacy you need.

All information discussed during your visit to the Beck Law Offices is confidential. Please contact our office for a free consultation at 707-576-7175 today.

See Related Blog Posts:

Uncovering Marital Assets in a Divorce

What to Do When Your Spouse Has a History of Domestic Violence

Determining the Best Interest of the Child

Thu, 03 May 2012 13:00:30 -0800

Some assume that child custody matters are simple issues that can be quickly resolved given that, according to California law, custody is ultimately determined upon what is in the "best interest of the child." However, complexities in child custody matters often emerge when parents' fail to reach an agreement on their own about what is in their offspring's best interest. Our Santa Rosa child custody attorneys understand that a wide range of factors can play into the "best interests of the child" standard. We have helped guide many local residents through this process.

In California, either parent can have custody of the child or the parents can agree to share custody. The child custody agreement consists of both legal custody and physical custody. Legal custody grants the parent the right to make important decisions for the child in regards to such issues as education and health care. Physical custody refers to with who the child lives. Both parents may share the rights and responsibilities to both legal and physical custody or one parent may have the sole right to either legal or physical custody.

Custody is not given automatically to the mother or the father. A common misconception is that the mother has the more favorable platform in gaining custody rights of the child. However, the court takes into account several factors in determining what is best for the child, including the age of the child, the health of the child, the emotional ties between the parents and the child, and similar issues. Also taken into consideration by the court is the behavior of the parents during both the divorce proceeding and the child custody matter. Therefore, the father has an equal opportunity to gain legal rights and responsibilities of the child during a custody proceeding.

Although California courts give mothers and fathers an equal chance to gain legal rights in child custody matters, our Santa Rosa custody lawyers advise fathers seeking custody to take certain precautions so as not to thwart their equal opportunity. Due to the societal preconception that children are better off with their mothers, judges may have an instinctual disposition to unknowingly favor the mother. It is important for fathers in child custody battles to refrain from certain behaviors that might reinforce those preconceived notions.

A recent article touched on these issues. The story suggested that in order to protect their custody rights, fathers should not exude behavior that would suggest dominance or an attitude that men are more powerful than women. Such behavior that might suggest dominance and power include yelling at a wife, criticizing their partner to friends and family, or failing to inform the mother in advance of any decisions made in regards to the child. A display of dominance and power may allow the mother to assert the claim that she is afraid of her husband, which may ultimately put the father in a negative light in the court's judgment. Overall, it is important to understand - especially for fathers - that determining the best interest of the child also entails how the mother and father treat each other.

Our Santa Rosa family law attorneys appreciate that child custody matters are emotional, complex, and often wrought with uncertainty. No matter what your situation, each Northern California family law attorney at our firm has the experience to help protect your rights. Please give us a call at 707-576-7175 to learn how we can help you in the child custody process.

See Related Blog Posts:

Fathers and Child Custody in California

What Does Joint Custody of Your Child Involve?

California Property Division and Divorce

Thu, 03 May 2012 11:49:20 -0800

California is a "no fault" divorce state which means that grounds for divorce are rarely controversial. Instead, property division and custody arrangements are usually the most important issues to resolve between the spouses during a separation.

As our experienced Santa Rosa divorce lawyers often explain, a "no fault" divorce means that the spouse filing for the divorce is not required to prove that the other spouse committed any kind of misconduct, such as infidelity or domestic violence. In California, it is enough for the spouse to simply state that the couple cannot get along. However, before the spouses can go their separate ways, they must resolve several issues, including the property portion of the case. Depending on the amount of property that must be divided and what property is considered a marital asset, establishing a property division agreement between the spouses can be a lengthy, contentious, and downright stressful process.

Obviously, if the couple acquired a lot of property together during the marriage, it will likely take longer for the spouses to reach a mutual agreement, further dragging out the divorce proceeding.

For example, a recent story in the Press Democrat reports that Susan Decker, a former president of Yahoo, and her husband, Michael Dovey, finally reached a settlement on Monday in their divorce. They filed for divorce in 2007. It took five years to reach a settlement in large part due to the property involved, including about $71 million in real estate, stock, cash and other assets.

Other issues that extended the divorce proceedings were allegations of infidelity, drug use, and spying. Although these issues are irrelevant in the granting of the actual divorce, since California is a "no fault" divorce state, our Santa Rosa child custody lawyer knows that such allegations are can become relevant when children are involved, ultimately slowing down the process of finalizing a divorce. In this particular case, the allegations were pertinent factors to consider since Decker and Dovey had three children together. The judge will take these factors into consideration when determining custody of the children when they might affect what is in their best interest.

However, although custody of the children prolonged the divorce proceeding in this particular case, the main reason that the process was protracted was due to the large amount of assets the couple acquired during their marriage. Whatever the amount and type of assets involved, a couple going through a divorce must understand what exactly qualifies as "property" before a property division agreement can be established. Our Santa Rosa divorce lawyer can explain how property includes anything that can be bought or sold, and it is also anything that has value--such as bank accounts and security deposits. The court ultimately makes decisions regarding how to divide the property that was acquired during the marriage. However, couples have the option to divide their property by agreement on their own, but the judge must sign off on that agreement.

Because of the complexities that may arise during the property division portion of a divorce, in our area it is always important to seek the advice of an experienced Santa Rosa divorce lawyer. Our attorneys have years of experience guiding families through this process and ensuring that partners going through a separation have a strong advocate looking out for their unique interests.

See Related Blog Posts:

Uncovering Marital Assets in a Divorce

Where do I File for a Divorce in California?

Can My Smoking Habit Affect My Child Custody Case?

Mon, 23 Apr 2012 11:06:23 -0800

Our Santa Rosa child custody lawyer has seen firsthand how easy it is for parents to fall into the trap of believing that their custody battle will be fairly straightforward and simple because they generally believe themselves to be "good people." Often, parents fail to recognize what they are up against when it comes to fighting for custody with an ex-spouse or partner. They think that as long as they are not abusive, and as long as they are able to properly provide for their children, they will not face any real obstacles to being with their children. However, as our experienced Sonoma County divorce lawyer knows, marriages rarely end without any hard feelings between the parties. This is especially true when there are children involved. Therefore, parents must be prepared for every kind of attack, using any ammunition available to impinge their characters and their fitness as caregivers for their children.

One such attack that has been gaining ground and attention in courts across the nation involves the issue of parents who smoke cigarettes. According to an article in the Washington Times last month, family law courts in at least 18 states have begun to consider whether a parent smokes, and especially whether a parent smokes in the presence of his or her children, when making a child custody determination.

The article cites a study conducted by an anti-tobacco group called Action on Smoking and Health. The study analyzed thousands of child custody cases from all around the country to see what effect smoking had on a parent's likelihood of being granted partial or full custody. Among other things, the findings revealed that (1) no court has ever ruled that the issue of whether or not a parent smokes is irrelevant to the custody decision; (2) judges often make it a condition of visitation that a smoking parent refrain from smoking in the presence of the child and in the day or two preceding a visit; and (3) some courts will even hear evidence about the smoking habits of other people who the child sees routinely while in one parent's care, such as grandparents, close friends, or significant others. This means that even if one parent does not smoke, the fact that he or she is often around people who do can weigh against that parent when the ultimate decision is made.

Because of this growing concern, some parents will quit smoking altogether prior to filing for divorce or before a court proceeding to determine custody. However, California child custody law allows the court to reconsider a prior custody arrangement if the person seeking the change can demonstrate that there has been a substantial change in circumstances. According to the study cited above, courts have altered existing custody orders on the grounds that one of the parents is or has become a smoker. Therefore, even if someone quits before the date of a court hearing, if he or she starts back up again, it will be at the risk of losing custody and possibly even visitation rights.

As always, in our area it is important to have the advice of an experienced Santa Rosa divorce lawyer at Beck Law. Our attorneys are proud to serve residents communities like Santa Rosa, Rohnert Park, Petaluma, Kenwood, Glen Ellen, Bodega Bay, Ukiah, Clearlake, and throughout Sonoma County, Mendocino County and Lake County.

See Our Related Blog Posts:

Where do I File for a Divorce in California?

Am I Entitled to Spousal Support?

The Kardashian Case: The Effect (or Non Effect) of Adultery On California Divorce

Wed, 11 Apr 2012 16:29:33 -0800

Divorce is a difficult process no matter what, but when infidelity is a factor in the dissolution of marriage the process can becomes even more complicated. For those who stray in marriages, it is important to be aware that the issue may have consequences in the legal proceeding. However the effect is often less than what some assume. In certain circumstances your wallet may suffer from the legal ramifications of a failed marriage due to infidelity. But in many cases the adultery itself may not affect many issues related to property distribution, spousal support, or child support. Our Santa Rosa divorce attorneys can provide the necessary information to understand your specific legal rights when going through a divorce when infidelity is an issue.

California is a "no-fault" divorce state. That means that the only two grounds for marriage dissolution are (1) irreconcilable differences and (2) incurable insanity. The insanity grounds are quite technical, and the vast majority of divorces are filed on grounds of irreconcilable differences. However, that does not necessarily mean that adultery has no effect on divorce.

Most are aware of the high-profile Hollywood divorces that usual come with the stock claim that the couple is splitting due to irreconcilable differences. For example, The Huffington Post reports that infidelity may have been a factor in the breakdown of the infamous 72-day marriage of Kim Kardashian and Kris Humphries. Kardashian and Humphries wed last year in a lavish ceremony in California. However, the fairytale was short-lived as Kardashian filed for divorce just over two months after the wedding. The reason for the failed marriage has not been explicitly stated. However, recent reports have suggested that Kardashian was cheating on Humphries during their marriage.

There are many different ways that this might play out in a divorce. More than anything it may affect the negotiation process between the parties. Beyond that, Kardashian may be faced with the obligation of paying Humphries a certain sum of money if during their marriage, she spent any money on her other partner. Our Santa Rosa divorce lawyers know that under California law Humphries would be legally entitled to have the marital estate reimbursed money if it can be proven that Kardashian did in fact spend any money on her other partner.

Beyond the potential for money spent on a paramour being reimbursed to the marital estate, there are not many other issues where infidelity plays a key role. Spousal support cannot be granted simply because of adultery because that would be akin to a punishment (which is not a part of marriage dissolution). Similarly, adultery rarely affects child custody issues. The only way the infidelity would play a role is if it can be shown that the actions somehow directly interfered with the best interests of a child.

At the end of the day our Santa Rosa divorce attorneys appreciate that each divorce situation is different. Family law issues have changed substantially over the last few decades, and that includes the effect of issues like infidelity in a divorce. Whatever the case may be in your situation, it is important to ensure that you have experienced family law professionals on your side throughout the process. If you are in our area, be sure to contact our California divorce lawyers to see how we can help protect your interests.

See Related Blog Posts:

Uncovering Marital Assets in a Divorce

Am I Entitled to Spousal Support

Facebook and Divorce in the Real World

Wed, 28 Mar 2012 05:04:51 -0800

A few weeks ago our Santa Rosa divorce lawyer provided some recommendations on how clients can safeguard their online identities in order to protect themselves during turbulent divorces. Recently, an Ohio man learned firsthand how big a role Facebook can play in these difficult cases. The husband, Mark, and his wife, Elizabeth, were involved in an acrimonious divorce, child custody, and visitation case last year. They have one child together, a son, and the custody dispute has involved a great deal of emotional turmoil for both parents. Elizabeth had also lodged allegations of threats and abuse against her husband.

Even more trouble arose when Mark decided to use his Facebook page as an outlet for his hostile feelings towards Elizabeth. According to a USA Today article, Mark posted a comment to his page that said, among other things, "...if you are an evil vindictive woman who wants to ruin your husband's life and take your son's father away from him completely -- all you need to do is say that you're scared of your husband or domestic partner." Even though Mark had taken steps to keep his page private from his wife, she found out about the post anyway, probably through a mutual friend with access to Mark's profile.

When Elizabeth discovered what he had written, she called her attorney, who brought the matter to the court's attention. Due to Elizabeth's accusations of abuse, the domestic relations magistrate had previously granted her protection by ordering her soon-to-be ex to refrain from any activity that would cause his wife to experience physical or mental abuse. The magistrate determined that the Facebook rant was a violation of that order and found Mark in contempt of court. The magistrate judge told Mark that he could either post an apology or spend the next 60 days in jail. Not surprisingly, Mark chose the first option.

Our Santa Rosa divorce lawyers appreciate that this particular ruling has garnered a fair amount of media attention in the last few weeks. Attorneys and other advocates around the country have contributed to the debate over whether or not judges and magistrates should be able to threaten people with jail for what many say is a protected form of expression under the First Amendment. The husband's attorney argued that by posting online, Mark was merely expressing himself and that his comments were not intended to cause Elizabeth any distress. In fact, Mark thought that his wife would not be able to see the comments because he had removed her as a "friend" on Facebook and blocked her from seeing his profile.

Each Northern California family law attorney at our firm appreciates that disagreement about the appropriate balance between free speech principles and effects on divorce will continue to rage in the coming years. In any event, the story demonstrates how essential it is to not only protect your social media profiles during a divorce but also to take the time to think before posting anything derogatory about your spouse. All too often, especially in cases that involve intense emotion and conflict, internet posts can come back to haunt a spouse with severe (and unwanted) consequences.

See our related blog posts:

Safeguarding Your Internet Presence During a Divorce

Northern California Annulment/Nullity Attorney

Uncovering Marital Assets in a Divorce

Fri, 23 Mar 2012 11:48:53 -0800

Most local community members understand the basic idea of property distribution in a divorce. Property is deemed either marital or separate. At divorce, all property that is deemed marital will be split between the two spouses. Each individual spouse keeps their separate property. While that basic concept is somewhat simple, sorting out the details can be quite complex and contentious. Our Santa Rosa divorce attorneys work closely with local residents on this process, helping to ensure property is classified and distributed to maximize their interests.

One challenge to the property distribution process is simply uncovering all of the involved assets. It is quite common for a divorcing spouse to try to shield assets from the other during divorce. After all, if the other spouse does not known about certain property, they will not try to fight for it during the separation. In this way, hidden assets are always a concern in divorce law. Hiding assets is not something that only comes up with millionaires. Couples with varying martial asset values may face these issues.

Our North Bay area divorce lawyers are experienced with these concerns and are adept at noticing certain red flags they might suggest assets are being hidden. For one thing, when one spouse controls most of the financial information, is secretive about money issues, and owns private mailboxes, the potential for hidden assets is increased. Erratic behavior by that spouse might also raise suspicions, such as when a computer with financial information mysteriously crashes or personal finance programs are eliminated.

So how are assets hidden? Here a few of the more common methods...

1) Unrecorded cash in hidden bank accounts. Taking money from accounts and placing it in offshore bank accounts is relatively easy and attractive for those trying to hide assets in divorce.

2) Understating business revenue. Undervaluing known assets is also a common way that one spouse will try to pull one over on their ex. This is particularly possible in situations where businesses are involved. Revenue in the business can be deferred for a time to manipulate the value during the divorce process.

3) Transferring ownership of assets to a third party. Parents, siblings, and friends are often used to act as fake owners of property during a divorce with agreements for the property to return to the spouse after the divorce is finalized.

Each Santa Rosa divorce lawyer at our firm understands that these and similar tactics must always be guarded against. Financial statements are often difficult for some spouses to read, and so manipulations to them may go undetected. Divorce is always contentious, and it is made worse when underhanded tactics are used. That is one of many reasons why it is vital to have an experienced and aggressive legal professional on your side throughout this process. There is simply no alternative to having a legal advocate in your corner ensuring that your rights are protected and respected every step of the way.

The experienced attorneys at Beck Law P.C. are here to help. We serve residents in many areas including communities like Santa Rosa, Cotati, Rohnert Park, Petaluma, Windsor, Kenwood, Glen Ellen, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport, Kelseyville and throughout Sonoma County, Mendocino County and Lake County.

Please take a moment to send us a message online or give us a call at 707-576-7175 to learn more about how you can take control of the divorce process.

See Our Related Blog Posts:

What Rights Do You Have if You are Not Married and Your Relationship Ends?

Northern California Annulment/Nullity Attorney

Can California Grandparents Adopt their Grandchildren?

Wed, 14 Mar 2012 12:04:48 -0800

Local community members have many different family structures. Different arrangements present unique family law issues that were not as common even a few decades ago. For example, there are many more cases of children being raised, in part or in whole, by their grandparents. In many cases a teenager or young adult may have a child and be unable to provide the care that the child needs. They may turn to their own parents for assistance. In other situations, there are sometimes adults who are unable to manage the responsibility of raising a child, whether it be because of financial difficulties, drug and alcohol dependency, or any number of other reasons. In these scenarios it is common for one or more of the child's grandparents to take an active role in providing food, clothing, shelter, and a stable environment. Such arrangements differ greatly in how they are managed and the length of time that they exist.

Circumstances are constantly changing, and a parent who cannot provide a proper home one day may be in a different position a month, a year, or a decade later. Major conflicts can arise when a parent attempts to remove his or her child from a grandparent who has been acting as a parent. Naturally, the longer the grandparent has been caring for the child, the more difficult it usually is to find an easy solution to a potential custody dispute.

California grandparent adoption law allows a grandparent to turn to the justice system to gain permanent custody of a grandchild in certain situations. Usually, a grandparent must demonstrate that allowing the child to live with his or her natural parent would be a risk to the health, safety, and well-being of the child. For example, if the grandparent can prove that the parent is abusive or on drugs, then a court may terminate the parent's rights and award custody to the grandparent.

Of course, biological parents can always sign over their rights as parents and allow the child's grandparents to adopt. It is not uncommon for parents who have not had much contact with their children for an extended period of time to tell the grandparents that they will sign over their rights. However, as our Santa Rosa child custody attorneys know from experience, when it actually comes to voluntarily giving up their rights, parents often change their minds, which can lead to a difficult and painful custody battle.

At the end of the day, a court that is tasked with deciding whether to award custody to a parent or grandparent is almost always going to be faced with an extremely difficult choice. All court battles are emotional, but few are more contentious than one where a relationship with a child hangs in the balance. Ultimately, the court must determine what is in the best interests of the child and will shape its decision around that question.

Community members heading into such a case must be prepared for a grueling fight that may leave broken relationships. Having an experienced advocate is essential to ensuring that rights are protected and no legal stone is left unturned. The fact that the law in this area focuses on the "best interest of the child," means that the court has much discretion, and the quality of the advocacy can make all the difference.

Alternative Dispute Resolution in California Family Law Cases

Wed, 29 Feb 2012 04:45:07 -0800

In 2011 there were more than 450,000 total California family law court filings. These situations included divorce, child custody, spousal support, child support, and similar issues. These cases involve the familiar process that most envision in legal disputes: standing in a courtroom, attorneys making arguments, and an ultimate decision handed down by a judge. As Santa Rosa family law attorneys working on high-conflict matters, we help those in our area with contentious issues settle in the courtroom in just this way.

However, we are also aware that some community members may be interested in ways that disputes are being settled which do not follow the traditional courtroom model. Most of these different options are categorized under the term: alternative dispute resolution (ADR). Our California family law attorneys understand that on occasion there may be strategic reasons to explore options outside the traditional court system. However, one should only pursue them after being made fully aware of the implications by a legal professional.

In the family law context, the three most common forms of alternative dispute resolution are mediation, arbitration, and collaborative family law. Mediation is likely the most well-known form of ADR. It involves a third-party who helps clients reach a settlement voluntarily. This process can be stopped at any time by the parties and, even if an agreement is reached, it is only binding when the parties have officially concluded a settlement agreement. At times mediation is used to start the process to determine if a voluntary settlement can be reached. If not, then the traditional litigation approach is pursued.

Similar to mediation, arbitration is led by a neutral third-party. However, unlike mediation, arbitration is generally designed to be binding. In that way it is similar to the process conducted in the regulation litigation system, because parties are forced to abide by the decision handed down by the arbiter. For this reason, some refer to arbitration as a "private court."

Collaborative Family Law is a somewhat new area of ADR. It is an attempt at a less adversarial process where the parties, their attorneys, and others (therapists, child psychologists) agree to resolve the issues while staying out of the courtroom. This is still a somewhat novel approach to resolving these situations, and there are different agreements that are made regarding what happens if no agreement can be reached.

In many cases, one former partner in a relationship will suggest that their divorce, support, or custody dispute be settled out of court using one of these ADR methods while the other party remains unsure if the alternative is appropriate. It is important not to begin an ADR process without being fully aware of the ramifications. That is why it is vital that you never try to go it alone. Be sure to contact an experienced family law attorney to learn whether any of these options would be appropriate in your situation.

Our attorneys realize that the stress of the legal process makes it tempting to jump into these alternatives to settle family law affairs. While ADR may be worthwhile in some situations, it can also lead to one-sided results when entered into lightly. Depending on the specific situation, it may be clear from the outset that you have less to gain by using ADR. For example, an attorney may be able to explain how you are more likely to reach an agreement in your favor by being heard by a regular judge instead of a particular arbiter. In any event, mediation, arbitration, and collaborative family law still require that you have a strong advocate on your side ensuring that your interests and wishes are respected every step of the way.

See Our Related Blog Posts:

Where do I File for a Divorce in California?

What Does Joint Custody of Your Child Involve?

Safeguarding Your Internet Presence During a Divorce

Tue, 21 Feb 2012 10:44:10 -0800

In the midst of divorce, property rights, use of accounts, custody arrangements, and other issues become legal matters--rather than just private affairs. That is why a heightened level of personal scrutiny is always demanded during divorce proceedings. There is no way to keep emotions out of the process, but it is important to understand the legal ramifications of actions during marriage dissolution which are often fueled by emotion.

For example, our Santa Rosa divorce attorneys often remind residents that when you are involved in divorce proceedings it is extremely important to properly manage your social media presence and internet personality. If children are involved it is likely important to be careful about social media issues even after the divorce. In this context, "social media" is used expansively. It includes everything from Facebook, MySpace, Twitter, and personal blogs to email messages, online message boards, and text messages.

Social media in divorce cases is becoming an increasingly useful weapon, especially when children are involved. A recent attorney survey from the American Academy of Matrimonial Lawyers (AAML) found that 81% of attorneys were using evidence that had been gleaned from social media sites. This evidence can influence spousal support or child custody decisions.

California child custody laws focus on the best interests of the child. This usually includes a look at whether a parent is willing and able to help his or her child maintain a good relationship with the other parent. Public displays of animosity against another parent on a social media site can be harmful when it comes to determining child custody arrangements. Additionally, the social life of the parent can be a factor in the custody decision. Posting pictures of a night out with friends or other social activity may raise questions about a parent's actions or contradict previous statements which may influence a judicial determination. Even though it may be completely innocent behavior, comments and images gleaned from these social media sites can paint a deceptive picture. This is especially true in the courtroom where the only thing the judge has to go on is the evidence presented to him or her--they do not know those in front of them personally.

Many people incorrectly believe that their information will be protected as long as they block their spouse and his or her close friends from seeing what they post. However, as individuals have discovered in a wide range of situations--including divorce--it is incredibly difficult to keep things private once they are posted online. It is always best to simply assume that anything sent in an email or put onto a social media site may eventually be seen by everyone.

Considering the potential pitfalls, sometimes the it is best to disable social media pages entirely for the duration of the divorce proceedings. Most social media sites allow you to disable your page so that it will not be available for anyone to see. This also usually prevents all others from locating your page via searches but does not require you to permanently delete previously posted information.

For the same reason, it is important to avoid saying anything in email and text messages that might come back to haunt you later. Even if you trust the person to whom you are writing, you simply cannot be sure that messages will stay private. Always try to write everything with an assumption that it will eventually become public, and try to imagine ways that it could be used against you. You cannot be too careful when it comes to social media and your internet presence during a divorce or child custody dispute. If you are in doubt about how a message or action may affect a proceeding always ask for guidance from your divorce lawyer or other legal professional.

See Our Related Blog Posts:

Where do I File for a Divorce in California?

Am I Entitled to Spousal Support?

California Paternity Law Attorney

Wed, 01 Feb 2012 10:49:05 -0800

Prior to a California court making a determination of child custody, child visitation and child support there first needs to be a determination of paternity and depending whether the parents are married or not, the law provides for different presumptions and procedures.

For example, when a married couple is living together and a child is born, as long as the husband is not impotent or sterile, it is presumed that the husband is the father. In several limited situations, this presumption may be challenged. .

If the parents of a child were never married there are different issues the parent must contemplate regarding the issue of paternity.

Parents who were not married may legally establish paternity through the execution of a Voluntary Declaration of Paternity, which is a document commonly available at any hospital. In essence, the voluntary declaration includes a statement by both the mother and father stating they each believe the declared father to be the child's biological father and that they consent to paternity being legally established. When unmarried parents have a child born in a different state and the parents signed a voluntary declaration in that separate state, a California court will recognize a declaration signed in that different state.

The signing of the voluntary declaration does not prohibit the declared father from later having a court enter a formal judgment regarding paternity or having the voluntary declaration set aside if DNA tests show that he is not the biological father.

For the any unmarried parents that have never signed a voluntary declaration who wish to establish paternity, they must petition the court to determine paternity. This requires a parent to file a Petition to Establish Parental Relationship. However, the filing of a Petition to Establish Parental Relationship does not allow the court to make orders regarding child custody, child visitation and child support. The Petition to Establish Parental Relationship only allows the court to determine paternity and if a parent wants the court make orders regarding child custody, child visitation and child support, the parent must file a separate motion for those particular issues.

Once a Petition to Establish Parental Relationship has been filed by either parent, the parties can either reach an agreement if neither the father or mother contests the issue regarding who is the biological father. However, if neither party agrees a DNA test may be ordered by the court to either establish paternity or disestablish paternity.

Northern California Annulment / Nullity Attorney

Tue, 24 Jan 2012 12:13:10 -0800

When parties in Northern California are considering a divorce, sometimes they question whether they can get an "annulment". Under very specific and limited circumstances, parties can request a California court to declare their marriage null and void.

For the court to grant a judgment of nullity the must determine that the marriage was either void or voidable. Under the Family Code, a marriage is void from the beginning when the marriage involves either incest or when a marriage is entered into while either party is married to another person. In the later situation, the marriage is usually bigamous and void from the beginning.

A party who mistakenly believes their spouse to be deceased can have a marriage deemed void if for 5 successive years immediately preceding the marriage, the party's spouse had been absent and not known to the party to be living or at the time the marriage was entered into, the party's spouse was generally reputed or believed by the party to be dead.

Under the Family Code, when a marriage is void, it is void from the beginning, technically meaning that no marriage has occurred. However, this does not mean that a party should not obtain a judgment of nullity, because depending on the circumstances, a party may want a public record of their marital status. Furthermore, in specific circumstances, a party to a void marriage may be entitled to assert property and support rights as though the marriage had been valid and the parties may also address issues of custody, visitation, and child support in a nullity action.
On the other hand, a voidable marriage is valid until it is declared void and judicially declared a nullity. A marriage is voidable when a spouse was a minor and lacked the ability of consent; a spouse had an unsound mind at the time of marriage; consent was gained through fraud or force; or a spouse is physically incapable of entering into the marriage.
In situations of minority, a marriage is voidable if, at the time of the marriage, the petitioner was under age 18 and the requisite parental and court consents were not obtained. Nullity based on unsound mind occurs when either party is incapable of understanding the nature of the marriage contract and the duties and responsibilities it creates at the time of the marriage ceremony. Seeking an annulment on the basis of fraud will require the court to determine that the consent to enter into the marriage was obtained by false representations relating to a matter of substance that go to the very essence of the marital relation.

Where do I File for a Divorce in California?

Mon, 16 Jan 2012 14:15:20 -0800

Making the decision to file for a divorce in California is very difficult and many people are overwhelmed with the process and the paperwork. There are complicated decisions about finances, dividing assets and debts, developing a parenting plan and so much more. Additionally, and often times just as important as the legal issues is the emotional turmoil many parties feel and a feeling of not knowing what to do.

When a person makes that difficult decision to file for divorce sometimes there are some initial questions such as "Where do I file?" and more importantly "Can I file for divorce in California?"

The later question should be answered first because in order to file for divorce in California, the state requires that you be a resident of California for at least six months and that you have been a resident of the county wherein you reside for at least three months. Depending on the specific circumstances of your matter even if you do not meet with the jurisdictional requirements for a divorce in California, you may be able to file for a legal separation, which can later be amended.
The question of "Where do I file?" is more easily answered. Filing for divorce in California requires the preparation of several documents and a filing fee. The required documents are a Petition for Dissolution of Marriage, a Summons and if the parties have children, an additional form called the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act or "UCCJEA". In short, the UCCJEA is a uniform act that grants the court of the "home state" of a child exclusive jurisdiction for issues of child custody. All of these documents listed above must be completed and delivered to the clerk of the family law court, with two copies, and the required fees.
However, simply filing a Petition for Dissolution will not grant either party rights to child custody, child visitation, child support, spousal support or divide any property rights. A party seeking to have any of the above issues must file a motion with the California court specifically seeking the requested relief.
Another serious issue to consider is the numerous tactical issues that affect the timing of a person filing a California Petition for Dissolution. These can range from specific issues regarding a determination of child custody and the best interests of the children to issues of property control. For example, by filing a California Petition for Dissolution and serving the required documents on your spouse, there are financial restraining orders that prohibit your spouse from transferring property, encumbering property or changing beneficiary designations without your consent.

Am I Entitled to Spousal Support?

Fri, 13 Jan 2012 12:08:34 -0800

When a marriage or domestic partnership is being dissolved, the issue of spousal support or alimony is often a primary concern of the parties. In part, this is because marriage involves mutual obligations of respect, fidelity and support and this continues even through the dissolution process. The experienced family law attorneys at Beck Law will assist you in this very important determination, regardless of whether you are the spouse entitled to receive temporary spousal support or the party that may have the obligation to pay

Temporary Spousal Support

During the dissolution process a spouse may have the right to receive temporary spousal for the purpose of assisting that spouse balance their financial obligations. Often times, it is very important to obtaining a temporary spousal support order immediately so as to secure financial security to a spouse who was dependent on the income of the other party. In the situation of temporary spousal support its calculation is generally based upon the needs of the supported party and the ability of the supporting party to pay. Prior to a judgment for dissolution, temporary spousal support is calculated much like child support and uses a judicially recognized "guideline" calculated by a program.

How is Temporary Spousal Support Calculated?

To calculate temporary spousal support, the experienced attorneys at Beck Law, will determine the relative income of each party and calculate what guideline temporary spousal support may be. This is a complex process, which involves many specific calculations and consideration of applicable deductions and allocation of expenses between the parties. If not performed correctly, the calculation may result in a spouse receiving far less than what they may be entitled to receive or paying far more than they should.

Permanent Spousal Support

Permanent spousal support, or support that may be ordered after a judgment for dissolution has been entered, is calculated by a careful consideration of a long list of factors under Family Code section 4320. In particular these include the respective incomes of each spouse, the length of the marriage, ability of a party to pay, the standard of living during the marriage, the assets and debts of each party and whether there has been any domestic violence. Permanent spousal support is generally payable for duration of half the length of the marriage, except in cases of a marriage of a long duration, or over 10 years, where the court may reserve jurisdiction over the termination of spousal support.

How is Permanent Spousal Support Calculated?

When calculating permanent spousal support it is important to evaluate the specific factors of the Family Code and also to consider the unique facts applicable to your case. For example, will the supported spouse require any retraining or education, did the parties pay for one spouse to go to school and obtain additional professional skills, did the supported spouse previously have job skills and is that supported spousal maximizing their earning potential. When you are going through a dissolution that involves spousal support and permanent spousal support in particular it is important to have an experienced family law attorney because a negative result may not be modifiable and financially impact you for many years to come.