LEGAL CLARITY: Adult Adoption

  • December 5, 2016

This article originally appeared in Incline Law Group’s Legal Clarity column, which is published monthly in the Sierra Sun North Lake Tahoe Bonanza.

Many people do not realize that there is a procedure available for the adoption of adults. There are several reasons that make adult adoption worth exploring.

Adult AdoptionIn the age we live, divorce is common and children are often raised by stepparents or other individuals who are not their natural parents, playing an important de facto parent role in a child’s life.

During the child’s minority (e.g. up to age 18), it is not possible to adopt a child without the consent of the child’s natural parent, or grounds to terminate the relationship between the child and its natural parent.

Nevertheless, the de facto parent may establish very close bonds with a child and desire to legally solidify the nature of their relationship, even if it is after the child has grown. Once the child turns 18, the adult adoption process is a wonderful opportunity to do this.

Adult adoptions provide a means to legally recognize the relationship and to secure inheritance and other rights for the child from the stepparent. Even if a stepchild has been raised in a stepparent’s home for their entire life, the adult stepchild would not be eligible to inherit by intestacy from a deceased stepparent.

The adult adoption is the perfect remedy for this type of circumstance. It is important to note that the adult adoption does not have any impact on the relationship between the child and his natural parent and does not preclude the child from inheriting from his natural parent through the laws of intestacy as well.

Adult adoptions can also assist in aiding a young person to legally immigrate to the United States. It bears mentioning that the best time to accomplish the adoption would be before the child reaches the age of 16. However, even if the child has already reached the age of majority, the adult adoption is another factor that may assist the person’s ability to achieve legal immigration.

The adult adoption procedure is very simple and does not involve much in terms of time or money. There is rarely a home study or investigation by a social worker required and there is only a small amount of court filings necessary.

Only one court appearance (which can even be waived under certain circumstances) is required by statute. It is always important to be vigilant in reviewing your estate plan to determine areas which need improvement. If you have been part of a blended family, adult adoption may provide a component, which may be currently lacking in your estate plan.

Most importantly, it has the effect of not only enhancing and legitimizing the bonds of a blended family, but also providing for much needed security to stepchildren after they have grown.

A Bright Line Rule on “Date of Separation”

  • March 3, 2016

The “date of separation” is a pivotal issue in many California divorce cases. This date signifies the end of the community estate. It is used to determine everything from the characterization of community and separate property assets and debts to

The date of separation signifies the end of the community estate.

The date of separation signifies the end of the community estate.

determination of the length of the parties’ marriage to determination of the length required for the payment of spousal support. It also develops a date to utilize for the calculation of the entitlement to reimbursements for payment of community expenses. It is an extremely important question and is often one of the most hotly contested issues in California divorce cases.

For the past 65 years, there has been much to argue about on this issue in any particular case. Determination had been determined largely on the interplay of various intentions, communications, facts and circumstances, unique to each case. Parties who lived under the same roof could still be “separated” under the prior case law just as parties who have lived in separate homes, sometimes for years, could still be deemed not to have separated. The determination in each case was unique to the facts and circumstances of each case and the flexibility provided for fairness.

Not anymore. The California Supreme Court just radically changed the landscape surrounding this issue. In re Marriage of Davis (2015) 61 Cal.4th 846 established a public policy bright-line rule requiring two people to actually cease living under the same roof in order to be considered living “separate and apart”.  While the intention may be to simplify things and give clarity to a confusing issue, it may likely have the opposite result.

People at the end of their marriages feel trapped in many directions and are facing a great deal of uncertainty. A bright line rule on an issue with such importance may prove to be quite limiting in a time that already feels very hopeless.  At first blush, having a clear rule may avoid the “he said, she said” that confounds lawyers and judges, making their jobs easier. However, it can only create more confusion and stress for family law litigants or those contemplating a divorce.  How will this rule impact parties who cannot afford to move out, especially with young children?  In order to file a Dissolution (e.g. divorce) in the State of California, the Petitioner must allege the date of separation. Do we now require that a person must move out of the home before filing for divorce?

I can’t even begin to imagine the strangulation effect this will have on stay at home mothers or disabled spouses who do not have the means to move out and must petition the court for the funds to do so. The time period between the decision one makes to leave his or her spouse and the time the Court first makes interim orders to protect the parties can already seem like an eternity. I have no doubt that the Davis decision will only add further complexity and stress during this period of transition and may create problems in its practical application to the realities of contemporary families.

Incline Law Group’s Family Law attorneys can help you navigate the application of this bright line rule and related issues.

Five Ways to Keep Your Divorce Clean

  • October 1, 2015

We have all heard people refer to some divorces as “messy” or “ugly”.  Fortunately, these cases are not the norm but every so often there are cases that are so fueled by anger and vindictiveness that they take inordinate amounts of time, money and emotional energy to get them resolved. Almost every divorce litigant starts off the process expressing a desire to “be amicable”, “stay out of court”, and “keep it clean”. How exactly can that be done? In my experience, following a few simple steps can result in a successful and fair divorce.

  1. Channel Anger. Anger is almost unavoidable in a divorce, but it has its proper time and place. Feel free to vent when necessary to friends, therapists, support groups, and any others who you can rely on to help you work through it. Try to keep your anger out of the negotiations. Question your own motivations behind your proposals. There is an old expression that criminal lawyers see bad people at their best and family law attorneys see good people at their worst. People who are normally pretty mild mannered and kind often default to “scorched earth” when they sense an attack.
  2. Do an Ongoing Cost-benefit Analysis. Although the agreement on the table may leave you with less than you feel a judge would award to you at trial, you have to look at the big picture. Your assessment should take into account the literal cost of fighting — attorney’s fees — as well as the emotional cost of further delays.
  3. Accept Compromise. As Mick Jagger says, “you can’t always get what you want, but if you try, sometimes you just might find, you get what you need.” After a divorce, no one feels like they’ve “won” and most believe their exes you-cant-always-get-what-you-want“won”. Dissatisfaction is guaranteed when you are dividing one household into two and dividing the time you spend with your children. To cope with the grieving process, try and appreciate, or even enumerate, the compromises you are both making. Everyone feels like he or she is losing out. The trick is ensuring you wind up with what you need in order to move on.
  4. Ignore the Peanut Gallery. Do not listen to your well intentioned neighbor or coworker or friend or family member who knows nothing about the law but is able to rattle off the custody arrangements and support awards that all the people they know have obtained in a variety of courts. Listening to these people will cause you to become insecure. It will make you second guess yourself or feel you’re caving too early or being a sucker. Keep in mind that family law cases are determined on a very factual basis. It is guaranteed that the Peanut Gallery only has limited facts about your case and about the other cases. Nobody knows everything about a marriage except the two people in it. Rely on your friends for emotional support only. Unless they are a family law attorney practicing regularly in your jurisdiction, do not rely on them for legal strategy or advice.
  5. Find the Right Professionals. Retain an attorney and/or a mediator who understands your desire to keep things clean and amicable and agrees to help you try and achieve that goal (assuming your spouse and his or her lawyer are on the same page). Don’t just blindly call lawyers out of the phone book. Talk to others about their experiences with various lawyers and find a lawyer who has a good track record for achieving good results for clients outside of court and who is willing to work with you to keep you on track in your efforts to “keep it clean”.

Mediation – A Cost Effective Alternative to Divorice Litigation

  • September 2, 2015

It is possible to resolve your entire divorce by engaging a skilled mediation attorney as an alternative to the time consuming, emotional and costly litigation divorce process.

Mediation-Square-200

Mediation is best for couples hoping to obtain closure of their divorce issues without having to navigate the pitfalls of the court system. However, mediation is not for everyone and there are definitely several requirements which can help to assure its success. If all of the factors for a successful mediation are not present, mediation may become as time consuming, frustrating and costly as divorce litigation.

The first, and most basic requirement for mediation, is that both parties want to mediate as mediation requires two active voices in the room. The goal is to get an agreement that reflects what each of you needs, in order to move forward in your life. If you are not both willing and voluntary participants, then we will not have two voices, and the result will likely be failed mediation or, at best, an unbalanced agreement which could be subject to enforceability issues in the future.

Other requirements of a successful mediation are as follows:

Both Parties Are Determined to Settle The Matter: If both parties want to resolve everything in mediation, and keep coming back to the table to talk and to try, then they will likely be successful.

Both Parties Must Be Active Participants. Both people have to contribute to the discussion. This means that you have to be able to sit in the room together, and use your best efforts to listen to your ex, even when you don’t agree with what he/she is saying. If you and your ex have a dynamic where one of you feels intimidated by the other, and you can’t say what you are really thinking with him/her in the room – then mediation is probably not the right process for you.  It follows also that neither person should be cognitively or emotionally impaired (e.g., severe depression) in any way that affects capacity to mediate. Neither person should lack capacity due to drug or alcohol abuse.

Both Parties Want To Settle the Case, and Move On. The breakdown of a marriage is similar to a death and causes both parties to engage in the grieving process. This can involve transition through various stages such as denial, pain, anger, depression, reconstruction and eventually acceptance. It is often the case that divorcing couples are at different stages of the grieving process which can certainly complicate the ability of both parties to have rational discussions about child custody, visitation, division of assets, support, etc. Mediation of these important and often very emotionally charged issues requires a focus on the long-term, and the big picture. You must think about your ex and – on some level – hope to honor your past love for each other, the years of your lives that you spent together.

No Hidden Assets and Full Financial Disclosure. It goes without saying that parties cannot make informed decisions if they do not have all of the information on which to base decisions. In mediation, you will not have the power of the court behind you to compel your spouse to produce credit card statements, bank statements, stock options, small business records, etc. Most couples who choose mediation feel confident that they know what each other has, or can trust the other party to voluntarily produce information without engaging in formal discovery. Mediation would not be right for someone who wants to ‘make a deal’ without revealing their cards.

No Patterns of Intimidation, Control or Domestic Violence. Finally, it is important to note that, if you and your spouse have a history of violence between you, you probably should use more traditional methods for negotiating your divorce. It is difficult to speak freely and express what you want if you fear repercussions or do not feel that you can contribute productively without inciting anger in the abusive spouse.

Whether you decide to mediate or litigate, it is also important that you retain an attorney to assist you during either process. Mediation is a way to conserve resources and funds, but you still need to have an attorney reviewing your agreements to be sure your interests are being protected. Mediators represent the agreement or the goal or resolution and do not have the ability to be representing the interests of the individual parties with conflicting interests. You want to make sure to have any agreements reached in mediation reviewed by your own counsel.

Stacey F. Herhusky Named Top 10 Family Law Attorney in Nevada

  • May 6, 2015

Stacey F. Herhusky Named Top 10 Family Law Attorney in Nevada

Incline Law Group, LLP is pleased to announce that partner Stacey F. Herhusky has named by the National Academy of Family Law Attorneys (NAFLA) as one of Nevada’s Top Ten Family Law Attorneys.

Stacey F Herhusky Top 10 Family Law Lawyer Each year, NAFLA recognizes the top 10 Family Law Attorneys in each state.    Their peers nominate these attorneys because they have demonstrated an  extraordinary amount of knowledge, skill, experience, expertise and success in  their practice of Family Law.

Stacey has been practicing Family Law for over 22 years (9 with Incline Law Group) in the Tahoe-Truckee region. She is licensed to practice in all courts of California and Nevada and is a member of the State Bar of Nevada, the State Bar of California, the Washoe County Bar Association and the Truckee Tahoe Bar Association. Stacey is also a Director of Far West Nordic Ski Education Association and sits on the Sugar Bowl Ski Team and Academy Board of Trustees.

Beware of Marriage of Davenport: Sanctions for “Aggressive” Lawyer in Divorce

  • December 2, 2014

Beware of Marriage of Davenport: Sanctions for “Aggressive” Lawyer in Divorce

I do not have enough fingers (and toes) to count the number of times a potential client has called this office looking for a family lawyer who is “mean”. The adjectives describing their dream lawyer can actually be quite humorous ranging from “blood thirsty shark” to “pit bull” and these types of clients will make it clear they want someone who has a “take no prisoners” attitude in litigation.  It always gives me pause that someone would look for these qualities when looking for the person they will have to work with during one of the most emotionally devastating times of their lives; when they have to simultaneously have to face the dismantling of their family, the restructuring of the lives of their children, the loss of their partner and the division of the assets they have worked so hard their entire lifetime to acquire.  I do try explain that the courts do not favor this type of approach and our system has developed such avenues as mediation and collaborative law in response to the laws of supply and demand which favor a less invasive and bitter process for resolving these sensitive issues. Nevertheless, there are still those who favor the scorched earth approach.  Often, those are clients I am not willing to work with. And to those I share this cautionary tale of Marriage of Davenport (2011) 194 Cal.App.4th 1507.

In this case, Justice Richman of the First Appellate District for Sonoma County, California made it clear that family law attorneys who embark on rampaging attacks against the opposing party and/or their attorneys risk meaningful and significant sanction awards. Clients who permit or encourage their attorneys to manage their cases in this style will find their purses and wallets opened very wide to the other side.

In Davenport, the court found that offending attorney had committed a variety of wrongs including (1) failing to meet and confer before filing a motion; (2) sending a series of  hostile and disrespectful letters; (3) referred with disdain to opposing counsel and his experts, (including referring to the IT experts in the case as “nerds”  that opposing counsel met in a karaoke bar); and (4) wasted the court’s time with a frivolous and expensive mini-trial in the midst of trial regarding the credentials of experts. For these offenses, the court found that the party who hired this lawyer would pay sanctions of $100,000 and attorney’s fees of $304,387 to her spouse. Nearly a half a million dollars just for choosing a lawyer who could not be civilized and play by the rules.  In its findings, the Court held that “Family law cases are not supposed to be conducted as adversarial proceedings. Quite the contrary, the goal is to reduce acrimony and adversarial approaches common to general civil litigation and instead to foster cooperation between the parties and their counsel with a view toward settlement short of full blown litigation.”

I try to remind clients of this. It is not always easy to consider being cordial to someone who is causing you pain. However, the long term benefits of conducting your divorce or separation proceeding in good faith and with grace and dignity cannot be overstated.  I like to suggest to my clients, especially those with very young children, how happy it might make their children in 25 years  to see them not only sitting nicely at the same table at their wedding, but perhaps even sharing a dance.

 Aggressive lawyers can cause sanctions in divorce.

SUMMER LOVE – A TALE OF SPOUSAL SUPPORT

  • July 25, 2014

By Stacey F. Herhusky, Attorney at Law, Incline Law Group

During the summer, many couples decide to tie the knot. It is a happy time for new love. Men are planning their bachelor parties. Women are busy being fitted for wedding dresses. Family law attorneys are preparing Premarital Agreements. But perhaps nobody is as happy at this time of year as the ex-husbands who anxiously await termination of their spousal support obligations when their ex-wives remarry. In California, as well as most states, the obligation to continue paying spousal support to your former spouse terminates upon remarriage.

In a recent California case, we learn that it is not always that simple. In Marriage of Left (August 2012), a former lawyer used her knowledge of the law to find a way to keep her alimony payments coming even after her re“marriage”. Andrea and Andrew Left married in 2001. Shortly thereafter, Andrea got pregnant and decided to stop working. Prior to this, she had worked as a program attorney at ABC Entertainment and Touchstone Television, earning a substantial income and honing her legal skills. Her new husband, Andrew, was a very successful stock trader and founder of Citron Research. He earned an extraordinarily high income which enabled her to retire from law and stay home with their children. Sadly, they divorced in 2008. Since Andrea was a stay at home mom and Andrew was a earning a very high income, he agreed to pay Andrea $32,547 per month in spousal support and $14,590 per month in child support (yes, those figures were per month).

Within six months, Andrea decided to remarry. They set a date, informed the children’s school they were getting married, registered at Bloomingdale’s and mailed wedding invitations to their guests. The celebration with her physician boyfriend took place in Palm Springs. Andrea wore a wedding dress and signed a Ketubah (which is a Jewish marriage contract). The only thing they did not do was obtain a marriage license.

Mr. Left stopped paying support based on her remarriage and Andrea took him back to court for back support, ultimately garnishing his Etrade account for $255,000. The Court, upon learning that there was no marriage license, refused to recognize the marriage and ordered Mr. Left to continue paying support. The court cited California laws which hold that in order to have a valid marriage, a marriage license must be issued.  Until that happens, the former Mrs. Left was not remarried and she has proven that you can, in fact, have your wedding cake and eat it too.