Mirkarimi has been charged with domestic violence battery, child endangerment and dissuading a witness. The charges stem from an incident that took place on New Year's Eve with his wife. Last month, the judge in charge of the case issued a stay-away order which prevented the Sheriff from seeing his wife and young son, but he has been granted visitation rights in recent days.
]]> The incident in question took place at the couple's home. According to court documents, there are allegations that Mirkarimi grabbed his wife arm during the altercation and caused her bruising. Shortly after the incident, a neighbor filmed a video confession during which the Sheriff's wife discussed the incident, as well as a previous one earlier in 2011. That video was later turned over to police, despite the protests of the Sheriff's wife.Mirkarimi has pleaded not guilty to the charges and his wife has defended him, claiming that the video was taken out of context. Mirkarimi has said that the incident was a private matter between husband and wife,
At this point, he is set to go to trial on February 24. If convicted, he could face up to a year in jail.
When judges make determinations of visitation rights, their primary concern is the best interests of the child. This standard, which governs all questions of custody, allows judges a good deal of discretion.
Source: Huffington Post, "Ross Mirkarimi Granted Visitation Rights With Son," February 8, 2012.
]]>Among the commonly asked questions for those considering divorce is the question of what business owners can do to protect their business in the divorce process. Perhaps not surprisingly, this question would be better asked before the marriage began.
]]> The structure of the company in question determines to a large extent how complicated the divorce will be with respect to that item. If it is structured as a 50-50 partnership between husband and wife, it is split equally. If it is an LLC, one partner can purchase the other share or allow them to continue receiving an income stream.Generally speaking, the partner in a weaker position with respect to talent or support capacity will be the one to exit the business.
One of the difficulties, of course, with spouses going into business together is that it can become difficult to separate the marriage from the business. Married people considering throwing in their chips together should consider a prenuptial agreement. This is becoming more and more common, of course, as couples become more realistic about the possibilities and complications of marriage and business partnerships.
Most people do not plan or hope for their marriage to fail, but it can and does happen. Prenuptial agreements, while not the most romantic discussion topic for engaged persons, can be a valuable safety exit when a marriage fails.
Source: Marriage and Business, "The Ultimate Balancing Act," Kate Rogers, February 13, 2012.
]]>The Utah-based firm said that, according to a survey of 1,039 conducted in late 2011 by a Los Angeles firm, twelve percent of men and 10 percent of women say they have personally been in a situation where it would be appropriate to seek out paternity testing. And nearly one-fifth of the participants said they have had family members or close questions who have questioned paternity.
]]> Since 2008, Identigene has sold over half a million testing kits for $29.99 each. According to the company's founder, folks going through divorce and child custody sometimes have the issue of paternity come up, and the devices meet that need.The results have of the survey don't exactly match up with estimates of scientists who study the issue. What is generally agreed on is that the rate of what has been termed "misidentified paternity" is higher in the United States since there are more children born outside of marriage and more couples living together than in other countries.
The tests are marketed as being 99.9 percent accurate, and nearly one-third of them come back positive, according to company officials. That number is higher, though, than the rate found in the broader population, since those who purchase the drugstore test belong to a group that has reason to question paternity.
Parent-child relationships carry both rights and obligations, and so it is important in disputed cases to be sure the people are in the picture. Children born within a marriage are presumed to be the natural children of the married couple. When a child is born outside of marriage, a paternity action can establish that legal relationship.
Source: msnbc.com, "Paternity questions plague 1 in 10, DNA test firm says," JoNel Aleccia, February 7, 2012.
]]>The fire itself was started by the father, who had been embroiled in a bitter custody battle with his wife's parents since her disappearance in 2009. He had reportedly been a suspect in the investigation. Immediately before he set the house on fire, a child welfare case worker had dropped the boys off at his home for what was supposed to be a supervised visit.
]]> The man was apparently denied custody of his sons last Wednesday following the discovery of child pornography in his home last September. Since that time, the boys had been staying with their maternal grandparents while their father underwent psychiatric evaluation and was allowed supervised visits.The case has triggered criticism from those who say more should have been done to protect the children. According to some critics, judges have too much discretion to determine who gets custody of children, what it means to lose custody, and where and when supervised visits occur.
Typically, without evidence of danger to children, loss of custody means that children are temporarily not allowed to lived with the parent, but that visitation can still take place, and usually in that parent's home. In this case, the boys had supervised visits with their father initially at the offices of the Washington Department of Social and Health Services, but they were later moved to the father's home after November 2.
Parents usually only lose the ability to have their children in their home when there is clear evidence of violence or substance abuse.
This story, disturbing as it is, reminds us of the importance of presenting judges all the information they need in order to make a good decision regarding the best interests of children in custody cases.
Source: Reuters, "Father in Washington state house blast left farewell message," Laura L. Myers, February 7, 2012.
]]>According to the Applied Research Center, roughly 5,100 children in 22 different states were in foster care after their parents had been detained or deported, as of last summer. And at least another 15,000 will face difficulties being reunited to their parents over the next five years. Already, a number of children of illegal immigrants have been placed up for adoption to American families after their parents had their parental rights removed.
]]> That is the case with a couple from Carthage, Missouri, which currently has custody of a child who was taken from his birth mother against her will while she was in federal custody in 2007 for an immigration crime. She had been working at a poultry plant in Missouri which was raided. Afterward she was charged with aggravated identity theft and sentenced to two years in prison. Shortly after her release, the U.S. Supreme Court ruled that aggravated identity theft charges cannot be used in cases like hers.During her time in prison her son was transferred into the custody of a couple interested in adopting, and he began living with the couple full-time. Because of language barriers and other issues, the couple was allowed to adopt the child, against her will. The judge's reasoning was that the woman had abandoned her child and that she could not provide him what he needed.
Last year, the mother's case went to the Missouri Supreme Court, which reversed the lower court's decision to remove her parental rights. The case is set to go back to the trial court for a retrial at the end of February.
Advocates of immigrants say this problem is not an isolated one. Lack of polices regulating the care of children born as legal U.S. citizens while their parents are incarcerated presents many challenges for these parents.
Source: ABC News, "Adoption Battle Over 5-Year Old Boy Pits Missouri Couple Vs. Illegal Immigrant," Laureen Gilger, February 1, 2012.
]]>Advocates of the parents-mostly fathers-say the practice amounts to a modern day debtor's prison. The practice, they say, perpetuates a bad cycle, causing parents to lose their jobs and therefore making it more difficult for them to pay their child support obligations.
]]> At present, there is a suit that has been filed by five Georgia fathers that seeks to force the state of Georgia to provide parents with attorneys at hearings so that they may better defend themselves. The suit was recently granted class-action status, which will allow other parents in the same situation to join the action. Only those who cannot afford to pay for an attorney are permitted to join, though.Georgia is one of four states that currently do not require indigent plaintiffs facing incarceration for failure to pay child support the right to representation. States are not required to make that provision when the state itself was not involved, a decision that was made by the U.S. Supreme Court in June. That decision, however, left open many cases where the state was involved in the incarceration of parents.
Should the lawsuit succeed, the state of Georgia could be forced to spend millions of dollars to pay for attorneys to represent the parents. The state might also begin taking other approaches to child support delinquency, such as wage garnishment or placing liens on property.
Source: Washington Examiner, "Fathers challenge jail sentences for child support," Greg Bluestein, January 29, 2012.
]]>As we noted, one of the potential difficulties in taking on a mortgage is that it may be difficult to refinance, for a variety of reasons. In situations where this is the case, there are some possible options for the spouse willing to assume the mortgage.
]]> These include looking around for a loan product with more flexible terms, taking advantage of the federal Home Affordable Refinance Program, finding a co-signer, and waiting for one year, during which alimony payments can be documented for income qualification purposes.In terms of finding co-signing a loan, one of the challenging factors is that it is rarely going to be beneficial personally for the co-signer. Another potential challenge to keep in mind, particularly for those who are low on funds, is that refinancing can sometimes cost as much as several thousands of dollars. Not everybody will have that kind of disposable income, particularly in the midst of a costly divorce.
In some cases, it may make more sense financially for a couple to sell their home. Of course, the decision to keep the family home must be financially feasible. Even where it is so, the decision to keep the home will likely involve sacrifice.
Financial decisions are often difficult when it comes to divorce. Realizing this going into it can make the process a bit easier, though.
Source: Nasdaq.com, "How to divorce your mortgage," Marcie Geffner, January 26, 2012.
]]>With the poor state of the housing market and widespread reduction in home values, many couples going through divorce fight over who will assume the mortgage.
]]> The biggest risk in keeping the home after divorce is that the lender will continue assuming that both spouses are jointly and individually responsible for the payments. Because missed payments adversely affect both spouses' credit score, regardless of whether the couple forms any agreement saying otherwise, there are definite risks to maintaining a mortgage after divorce.Another of these risks is that the spouse that moves out of the home may not be able to purchase another home, as the existing mortgage can complicate the loan application process.
There can also be risk if one spouse lives in the home and the other refinances the mortgage, because if a payment is missed, both are on the hood as the lender is not legally obligated to keep up on the latest changes in the spouses' lives.
In terms of refinancing, things can be complicated. A spouse who is willing to refinance and take on the mortgage may run into difficulties or not be able to do so. Some of the reasons for this may be poor credit, inadequate income, or negative equity.
In our next post, we'll pick back up on this topic, beginning with possible solutions for refinancing.
Source: Nasdaq.com, "How to divorce your mortgage," Marcie Geffner, January 26, 2012.
]]>To collect a former partner's benefit, one must have been married to them for at least 10 years prior to the divorce and must currently be unmarried or have married after 60 years of age. What this means for many divorced individuals already collecting Social Security is that they may be entitled to a larger monthly benefit.
]]> There are other options if a spouse is under full retirement age, which allow them to receive a reduced benefit and later collect on their own benefit. Certain limitations do apply. If a former spouse has died, one may begin collecting a reduced benefit at age 60 and later switch to his or her own benefit at when full retirement age is reached. These options, of course, would have to make financial sense before one would want to take advantage of it.Monthly income is critical when it comes to retirement, especially for those on a fixed income. Every dollar counts. Taking advantage of a former spouse's benefit can help divorced individuals make ends meet.
On a general note, financial planning is critical for those seeking divorce. Many changes can occur to one's financial resources, and it is important to ensure that the changes are manageable ones, not crippling ones.
Source: Wall Street Journal, "When a Divorce Pays Off," Ellen E. Shultz, January 14, 2012.
]]>The bottom line with divorce and social security is that a person can collect Social Security benefits based on their own earnings history, or 50 percent of a spouse or former's spouse's benefit, if it is greater than her own, and 100 percent if the partner is deceased.
]]> These rules apply to both genders, though women usually earn less over their career than men, and are more likely to be collecting lower benefits than they may be eligible for based on a former spouse's earnings history.Divorced spouses wishing to take advantage of a former partner's benefit must have been married to their former partner at least 10 years, and must currently be unmarried, unless they were remarried after the age of 60. It doesn't matter whether the ex-partner is or was remarried or not, and collecting on their earnings record will not affect what any other spouses will receive. Neither are any other spouses involved in the process, since the Social Security Administration already has information about a former spouse's earnings history and makes it determination based on those records
It often happens that people are eligible for these benefits without knowing it. For those who have been determined eligible for higher benefits, the Social Security Administration will pay retroactive amounts of increased benefits going back six months.
In our next post, we'll continue looking at this topic,
Source: Wall Street Journal, "When a Divorce Pays Off," Ellen E. Shultz, January 14, 2012.
]]>One of the interesting things to see about celebrity divorce is how much money and financial wrangling is often involved. When there are millions of dollars in assets, there can be a lot at stake in a marriage. Even with short marriages, there can be a lot of money at stake. And the longer the marriage, the better the chance the financial ties run deep.
]]> Of course, the average person seeking divorce will not have millions of dollars at stake, but protecting oneself with respect to the financial consequences of divorce is important. For this reason, divorce preparation is essential to coming out of divorce with minimal damage. The following are several tips for this preparation.When preparing for divorce, it is wise to make sure you have access to all your financial records, including bank statements, investment and retirement records, loans, credit cards and other debts prior to breaking the news to your partner. This will allow you to better track significant changes or shifting of assets by your spouse.
Another tip is that, when working with your attorney, you should disclose anything that could harm your situation. This could be anything from extramarital affairs, criminal activity, to psychological problems. This can affect both financial and custody matters.
A third tip is to carefully follow your attorney's advice. While you understand your personal situation with your partner best, your attorney has more knowledge of the legal implications of your personal situation. Working together, you can come out with a best possible outcome, but only if you come up with a game plan and stick to it.
Source: The Washington Times, "Katy Perry and Russell Brand: What to Consider When You're Considering Divorce," Myra Fleischer, January 9, 2012.
]]>The case highlights the current state of laws concerning same-sex partners, especially in states like Florida that don't recognize gay marriage. Sources did say, though, that Florida legalized second-parent adoption last year.
]]> Second parent adoption is a legal procedure which allows a same-sex parent to adopt a partner's biological or adoptive child without terminating the legal rights of the first parent. That procedure was not available in Florida at the time of this incident.The kinds of legal issues that come up for same-sex couples are obviously unique. In cases like this, where one mother is the birth mother and the other the biological mother, it apparently is not uncommon for a birth mother to become uncooperative with custody after an amicable separation.
Sources said that in this case, the birth mother attempted to caricature her former partner as the "donor mother," which-according to the biological mother's attorney-doesn't make legal sense, as she wasn't giving her eggs with no strings attached and thereby relinquishing parental rights. Indeed, she intended to be a mother to the child and be a part of its life.
At this point, the case is expected to go back up to appeal to the Florida Supreme Court, and perhaps even the U.S. Supreme Court. As it progresses, it will be interesting to see what happens in this area of law.
Source: ABC News, "Biological Mom Kept From Child in Lesbian Legal Case," Susan Donaldson James, January 5, 2012.
]]>The man was reportedly sued for child support after he was deployed to Iraq in November 2007. In the process, the state of Tennessee filed a motion for default judgment declaring him the father, and the Tennessee Department of Human Services garnished money for child support from his military earnings. But according to the soldier, a DNA test was never performed to confirm the judgment.
]]> Upon his return from Iraq, the soldier took a DNA test which revealed he was not the father of the child. After that, a juvenile court ordered the state to repay the soldier the $2,735 that had been garnished from his wages. Last Thursday, however, an appeals court overturned that ruling. In its ruling, the court explained that there was no state law to give juvenile courts authority to reimburse those who mistakenly paid child support.Under federal law courts may not retroactively modify child support orders, which creates a situation where states are unable to refund child support payments, even when it is known they never owed any child support in the first place.
While states have their hands somewhat tied on this issue, members of the armed services have available to them the Civil Relief Act, which protects troops from default judgments when they are unable to defend themselves in court. The act requires, among others things, that an attorney be appointed to represent the service member. The act does not provide restitution for damages sustained by a soldier in a situation like the one in this story, but it does require that default orders can be vacated.
While the act cannot help a soldier recover from wrong child support payments, it can help a soldier avoid the problem in the first place.
Source: Nashville Ledger, "Soldier denied reimbursement in paternity case," January 6, 2012.
]]>Prior to their separation, the couple reportedly enjoyed 11 years together, sharing finances and eventually beginning to raise the child together. At the time the women decided to have a child together, the birth mother was 39 years old and infertile. She had her egg fertilized by sperm from an anonymous donor who waived his rights to the child. When the child was born in 2004, the women hyphenated their names as the child's last name.
]]> By the time the child was two years old, the couple decided to separate and custody determination fell into the hands of a Florida Court. Following the couple's separation, the child moved with her birth mother to North Carolina and the two women formed a time-share arrangement. But later on the birth mother decided to take her daughter to Australia to pursue an education in law enforcement.The biological mother eventually filed a petition asking to be declared a legal mother with parental rights and challenging Florida law which had been used to deny her parental rights.
At the trial level, the court sided with the birth mother and cited a Florida statute. That decision was later overturned by the 5th District Court of Appeal, which rejected the statute as antiquated and recognized both women as legal partners. According to the appeals court, both the U.S. and Florida constitutions take precedence over the Florida statute.
In our next post, we'll continue looking at this story.
Source: ABC News, "Biological Mom Kept From Child in Lesbian Legal Case," Susan Donaldson James, January 5, 2012.
]]>What is interesting about this case is that the "dead beat dad" in question is a millionaire who owes a total of $10M in child support and spousal support payments.
]]> In recent weeks, a court issued a warrant for the businessman's arrest as well as a judgment of criminal contempt. As a result, the father will be spending five months and 29 days in jail.The man's ex-wife currently lives in California and has he identical twin sister attend court hearings on her behalf. According to her twin sister, the man initially seemed motivated to pay his support obligations, citing concerns about his son's health and well-being, but that he has continually failed to live up to his obligations.
According to the man's attorney, his client has been out of work for months and cannot afford the payments. He also noted that his client has had to borrow money, and that borrowed funds are not treated as available for support payments.
The man's ex-wife has accused him of hiding his wealth in order to avoid meeting his support obligations. Those accusations are, of course, not proven and remain just accusations.
It is true that there are some fathers out there that deliberately fail to meet their obligations, sometimes by wily means. It is also true, however, that there are many fathers who simply struggle financially to make ends meet and are unable to meet their obligations fully.
Fortunately, courts do allow for modifications of support agreements under certain circumstances.
Source: ABC Action News, "Arrest warrant issued for "millionaire dead beat dad" who owes $10M in child, spousal support," Alison Morrow, December 16, 2011.
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