Gigliotti Law Blog
Welcome to the Gigliotti California Family Law Blog. The Gigliotti Law Group is an experienced Civil & Family Law Practice located in Encino, California. Los Angeles Lawyer Robert Gigliotti Represents Southern California Clients in all aspects of Family Law, including, Divorce, Separation, Domestic Relationships, Paternity, Custody and Visitation, Move-Away Disputes, Child Support, Spousal Support, Property Rights, Modification of Custody and Support Orders, Prenuptial Agreements, Domestic Violence, Restraining Orders, and Family Law Mediation Services since 1991.
State of California Premarital Agreement - What Happened In Barry Bonds' Case?
The case involved the marriage of San Francisco Giants All-Star baseball player Barry Bonds. Bonds was earning $106,000 annually when he married his ex-wife (Sun) in 1988. Prior to getting married, Bonds asked Sun to sign a prenuptial agreement that waived any interest in his earnings and acquisitions during the marriage. Sun signed the agreement despite not having a lawyer present, while Bonds was represented by an attorney.
The parties were divorced six years and two children later at a time when Bonds’ salary was much higher than when the prenuptial agreement was signed.
Sun sued to have the prenuptial agreement ruled invalid. Sun argued that because she did not have a lawyer present at the time she signed the agreement, it was unenforceable, and demanded more money for both spousal and child support.
The case first went to the California Court of Appeal, who determined the prenuptial agreement was invalid. This ruling was appealed all the way up to the California Supreme Court, who found the prenuptial agreement to be valid, deciding in favor of Barry Bonds. The court concluded that the prenuptial agreement was entered into voluntarily, and it was fair to enforce it.
What Was California Law Regarding Prenuptial Agreements Prior To Bonds Case?
Prior to this case, prenuptial agreements signed by two spouses were generally considered valid even if both spouses were not represented by independent legal representation (i.e. their own lawyer).
What Effect Does This Case Have On Spouses Wishing To Create Prenuptial Agreements Prior To Getting Married In California?
If you live in California and want to enter into a prenuptial agreement, it is highly recommended that both parties be represented by legal counsel. If you sign such an agreement without a lawyer and you later feel the terms are unfair, you may be able to argue that not having a lawyer present makes the agreement invalid. Thus, retaining an experienced family law attorney is essential if you need assistance in understanding the terms of a prenuptial agreement before signing it.
California Move Away Cases
California in particular is a transient state with a large percentage of the population coming from another state or even another country resulting in a higher number of move-away cases. Our increasingly mobile society and the economy have contributed to a rise in the number of move-away cases. Many times a divorced/separated parent wants or needs to return to her or his home state or country to be able to take advantage of a family support system. Often a parent is going to where a job or remarriage necessitates the move. Rarely parents can agree on one parent moving and the resulting changes in timeshare, which usually consists of the non-moving party having the child during the majority of holidays and vacation. This is problematic when very young child of “tender years” are involved and they cannot spend significant time away from the other or either parent. These situations often become emotional powder kegs and the parties can’t agree on anything, let alone what is in the child’s best interest. In these cases it is up to the Court to play King Solomon and decide whether to allow the relocation with the children. In California and other states with permissive move-away laws, the burden of proof has been placed on the non-custodial parent (usually those parents who spend less than 35 percent of the time with the children) to prove that the move will be detrimental to the minor child(ren).
Here are major factors that the Court will consider in move-away decisions:
- Maintaining stability and continuity in the child’s life: The Court will look at the timeshare percentage in the current custody order, evaluate how much time the child actually spends with each parent, how long the custody order has been in place, the child’s connections to the custodial and non-custodial parents, as well as to the community (including ties to school activities and friends).
- Distance of the move: Shorter moves (i.e., a couple hours’ drive) may not be seen by the Court as disruptive to the child’s life and relationship with the non-custodial parent. However, a move across the country or overseas will come under greater scrutiny. In international cases, the Court will consider factors such as cultural differences including language, potential or actual dangers in the country, risk of abduction and whether the Court’s orders will be enforced in the country in which the child will reside with the custodial parent.
- The reason for the move: In California the parent does not have to justify the move. However, if there is evidence that the purpose of the move is in bad faith, i.e., to interfere with the relationship between the child and the non-custodial parent, the Court will factor this into its decision and may not permit the move. In particular, the Court will look for a pattern of “restrictive gatekeeping” in which the custodial parent interferes with the child’s relationship with the other parent, speaks negatively about the other parent or “forgets” to share important information about the child’s school, health or social life.
- Child’s age: A move-away may be seen as more detrimental to very young children who have a strong attachment to one parent versus the other and who do not have a conceptual understanding of time, i.e., they do not know or understand measurements of time and how they relate to when they will see the other parent.
- Ability to effectively co-parent: The Court will assess how well the parents communicate with each other; whether they’re able to put the child’s interests before their own; and how the moving parent will foster contact between the child and the other parent.
- Where the child wants to live: In some cases, the child may be able to testify about her or his wishes for custody. In fact, in California the law requires that children 14 and older must be allowed to testify, unless the Court finds it will be harmful to the child to do so. Children under 14 may also give their preference if the Court finds it appropriate. Children can also express their wishes to a Court-appointed evaluator.
- The child’s relationship with each parent. As discussed in some of the other sections above, the Court will examine the child’s relationship with each parent, i.e., in very young children, is there a primary attachment to one parent and in older children, is a child estranged from a parent; is there conflict between a parent and child; or is a child too enmeshed with a parent. In many cases the Court will appoint a child custody evaluator to assist the Court in making a decision to allow the move or not.
If you are seeking a move-away order or are looking to prevent one, your first step should be to consult with a family attorney. Los Angeles family law attorney Robert Gigliotti has the particular expertise in this area and will be able to advise you on the factors in your case that may influence the Court, what you can do to support your position and strategies for effectively presenting your case.
Prenuptial, Post-nuptial and Cohabitation Agreements
Prenuptial, Post-nuptial and Cohabitation agreements have a significant emotional component as two people who are in love with each other are forced to address difficult financial issues. Yet having an agreement in place can eliminate the need for costly litigation, as well as the emotional and financial strain should the marriage/relationship end in divorce/separation.
Grandparent Visitation Rights in California
Under certain circumstances, grandparents may seek visitation rights by commencing an independent action under California Family Code, Sec. 3104.
California Custody Law & Move-Away Cases
In California, when parents separate or divorce, a court will issue orders for custody and visitation arrangements based on what is in the best interest of the minor child. In general, the goal of a custody order is for both parents to maintain frequent and continuing contact with their child(ren).
Limited Scope Representation in Family Law Matters
September 29, 2017
What is Limited Scope Representation?
Gigliotti Law Group provides clients with the option of retaining legal services on a Limited Scope basis (also referred to as "unbundling.") Instead of retaining the Gigliotti Law Group to fully and completely represent your interests in all aspects of your family law case, you can decide to retain Robert Gigliotti and Gigliotti Law Group for only a portion of the case.
There are many benefits to limited scope representation over full representation.
Some examples of limited scope representation include:
You simply consult with attorney on an hourly basis to obtain legal information and advice concerning the issues in your case;
You retain an attorney to represent you in only one aspect of your case, such as child support, while you represent yourself on the othis issues;
You retain an attorney to represent you at only one court hearing (for example, the initial hearing on custody and or support issues); or
You retain an attorney to assist you with some of the more complicated legal tasks in your case, such as discovery or legal research, while you do the simpler tasks yourself.
Limited scope representation may be a way for you to obtain competent legal assistance while keeping your costs down. Oftentimes, Gigliotti Law Group clients retain Robert Gigliotti for one limited scope purpose and then expand upon his representation by retaining Robert Gigliotti for additional tasks.
Gigliotti Law Group is dedicated to helping you find effective legal representation in your family law matter that works best for you.
DIVORCE WITHOUT LITIGATION
September 29, 2017
DIVORCE WITHOUT LITIGATION
Ending a marriage or a domestic partnership through agreement with your ex-spouse and/or co-parent has many advantages over traditional litigation.
Negotiating your own resolution can allow you to avoid or at least minimize the harsh emotions of a contested divorce. It also enables you and your spouse/ other parent make the decisions yourselves, rather than having them imposed by a judge.
Which Process Will Work Best For You?
Mediation - Mediation involves using a neutral person to help the parties reach a mutually agreeable resolution. The help is in the form of facilitating honest negotiation and problem solving. Mediators do not actually make decisions, but they can empower you and your ex to do so yourselves.
Collaborative law - Also known as collaborative divorce, this involves each party - you and your spouse - hiring a lawyer. The parties and the lawyers meet to try to resolve the issues, sometimes using common experts such as accountants or child psychologists. If you cannot arrive at an agreement, you can still go to court, but the lawyers from the collaborative process would have to withdraw.
What If The Other Party Isn't Agreeable?
Mediation and collaborative law work very well if both parties are committed to using them properly. However, dispute resolution methods aren't always possible in every situation. At Gigliotti Law Group we understand that not all cases are amenable to mediation or collaborative divorce, and remain prepared to effectively represent Clients through any and all contested family and civil litigation.
Los Angeles Lawyer Robert Gigliotti has developed a unique civil and family law practice located in Encino, California representing Southern California Clients in Family Law and Divorce, Civil Litigation, Personal Injury Law, and Estate Planning since 1991.
We solve difficult legal issues by thinking creatively, identifying the broadest array of potential solutions, translating client interests into positions, assessing both conventional and novel options, and building consensus around our clients interests.