Prenuptial Agreements Are Not Just For Hollywood Celebrities

Prenuptial agreements are often associated with the rich and famous (Barry Bonds, anyone?)… but, the reality is that many couples in California can benefit from a carefully constructed premarital agreement to identify separate assets and define the rules of their marriage. For example, prenuptial agreements are frequently considered by parties who have been previously married and divorced (or widowed), or by older, established individuals with significant property and/or children whom they want to protect. A recent article published on Bankrate.com discusses this very topic.

Prenuptial agreements, as unromantic as they may sound, can eliminate disputes at the time of divorce if the marriage ultimately fails. The agreement can serve as a snapshot inventory of assets and debts owned or incurred by each spouse prior to marriage. It can convey interest in property between the parties, or dictate that neither spouse will acquire interest in each other’s property.

In community property states like California, the prenuptial agreement can even permit parties to opt out of the community property system, allowing each spouse to earn income and obtain assets independently of the other during marriage and requiring express and definitive steps for the parties to obtain property jointly. The agreement can also limit or eliminate spousal support (alimony) for one or both spouses.

Of course, prenuptial agreements can potentially be unfair to one spouse or the other, which is why states like California have overhauled their domestic relations statutes in recent years. In California, for example, the party receiving a proposed premarital agreement must be given at least seven days to read, review and contemplate the agreement prior to signature. The law also requires that each party have their own, independent counsel (with only a very strict, limited exception), and that the parties provide each other with “full and fair” disclosure of their financial circumstances.

Despite all of the things a couple can do with a prenuptial agreement, there are limits. For example, the agreement cannot limit or restrict a parent’s rights to custody, visitation or child support. Additionally, although an agreement can limit or eliminate a party’s right to spousal support, the agreement itself is subject to scrutiny by the Courts and examined to ensure it is not “unconscionable,” or unreasonably unfair to one party. If a Court decides that the agreement rises to the level of being unconscionable, it may redline the provision(s) it finds excessively unfair. In other words, depending on the circumstances of the couple, the Court may nevertheless award some property interest or spousal support to a party who waived his/her rights to that property or support in the prenuptial agreement.

A couple contemplating a premarital agreement should have a frank discussion about such an agreement at least six months in advance of the anticipated wedding. Not only will this allow plenty of time for the agreement itself to be drafted, reviewed and revised (in and of itself a process that will take several months), but it will allow the parties to put the business of the agreement behind them and then focus on what should presumably be one of the happiest days of their lives.

Just Confirmed: Gary Sparks to Appear as Special Guest on the Ronn Owens Program

We are pleased to announce that Gary Sparks will be appearing as a special guest on the top-rated Ronn Owens Program on KGO-AM 810 radio in San Francisco on September 8, 2011. Gary will be discussing California divorce and family law issues with Ronn and with callers to the program, and is eager to reach out to listeners throughout the greater Bay Area and Northern California.

From KGO: Ronn Owens has had the top rated program with KGO Newstalk 810 for over 35 years. In that time he has had thousands of guests in the hot seat, including President Barack Obama, Nancy Pelosi, Steve Martin, Condoleezza Rice, Benjamin Netanyahu, John McCain, Eliot Spitzer, Joe Montana, Tony Bennett, Jimmy Carter, Willie Mays, Secretaries of State, CIA Directors and community leaders. ronn-thumb

As a versatile talk host and author, Ronn covers everything from politics to pop culture, and his show has been called the “ultimate town hall meeting.” Similar to KGO’s listenership, Ronn is unpredictable and has long been the voice of reason in the Bay Area, balancing issues so that listeners can make up their own minds. As Ronn says, “I’m just like everybody else – I look at the world around me and comment on it.”

Over the years, Ronn has won numerous awards and was inducted into the Bay Area Radio Hall of Fame in December 2007. The National Association of Broadcasters presented him with the prestigious Marconi Award for Major Market Personality of the Year Award in 2003 and again in 2010. Talkers Magazine named Ronn one of the Top 25 Greatest Radio Talk Show Hosts of All Time, ranking him 13th and the top local personality in the country. His first book, “Voice of Reason: Why the Left and Right are Wrong,” was published in 2004.

Pennsylvania Father’s “Psycho Ex-Wife” Blog Ordered Shut Down by Court

A Pennsylvania judge has created a First Amendment uproar by ordering a father to take down his “Psycho Ex-Wife” blog in which he railed against and blasted his former spouse, and sometimes speaks unflatteringly about his children.

Appearing on the Today show, Anthony Morelli said that although he took down the blog as ordered, he is appealing the order on the grounds that it violates his First Amendment rights. Judge Diane Gibbons ordered the blog to be taken down, citing the emotional damage it was capable of inflicting on the parties’ children. Morelli claims that the blog is therapeutic in nature, and that the children can be protected by the content provided that the parents exercise control of the children’s computer viewing habits. The question facing the appellate court is whether Morelli’s right to free speech outweighs the potential harmful effect of his inflammatory comments on the children.

I happen to be a big defender of First Amendment rights, and of free speech in particular. For the most part, provided that the speech does not incite violence, I will almost always stand up for the rights of individuals to say and express what is on their minds. And although I am torn by a case like this, I still ultimately come down on Morelli’s right to say and express his feelings, regardless of how distasteful they may be. However, I clearly am not the appellate court in this matter.

At the same time, and although I would defend Morelli’s free speech rights, I would also advocate that the family court judge who adjudicates custody in the case should consider Morelli’s actions in determining what is in the best interests of his children. Although it may be legal (or should be) for him to post the comments, I believe the family court would be well-within its discretion to determine he is not exercising sound judgment and make the corresponding custodial orders.

I’m not aware of a case in California (yet) involving any such court order. In fact, in my experience, family court judges frequently refuse to grant restrictions on speech in divorce cases. At the same time, we frequently see orders whereby the parties are compelled not to make disparaging remarks about the other parent within the children’s earshot, or prohibitions on discussing the adult litigation matters with the children other than in a cursory, age-appropriate manner (and without the gory details). Whether such an order would eventually include the censorship of an inflammatory blog has yet to be determined.

We’ve Moved!

We are pleased to announce our move our Walnut Creek main office into new office space! Our new space is located at:

THE LAW OFFICES OF GARY D. SPARKS
2890 North Main Street, Suite 205
Walnut Creek, CA 94597

Our Solano County office is still at the same location and available by appointment:

THE LAW OFFICES OF GARY D. SPARKS
918 Merchant Street, Suite C
Vacaville, CA 95688

We’ve only moved across the freeway, but the new space is larger and more efficient. We’re still in semi-move-in mode, but should be completely finished within the next two weeks or so. After that, be sure to stop in for a visit!

Thanks to all our clients for their patience and support over the past two years, and we look forward to continuing to provide outstanding legal services for many years as we keep growing and building our practice.

GARY SPARKS
Attorney at Law

AMY MILLER
Attorney at Law

ANNE WOLF
Paralegal

JANA LONG
Administrative Assistant

UK Couple Sues for Right to Civil Union Instead of Marriage

Here’s a new twist on the heated debate we have here in California regarding civil unions vs. marriage. The ABA Journal reports that a straight couple in the UK are suing for the right to tie the knot in a civil union rather than in marriage.

Over the past few years here in California, the state has gone from expanding the Family Code to permit same-sex couples to register as domestic partners with the same rights and privileges as spouses, to the Supreme Court determining that marriage for same-sex couples was a constitutional right, to Proposition 8 which amended the state constitution to prohibit same-sex marriage. And the story is still unfolding in the courts. Currently, Proposition 8 has been found to violate the federal constitution on multiple grounds, and an appeal is working its way through the appellate courts.

Gay couples across the country, and around the world, have long argued that they should be entitled to marry, just as straight couples have the right to marry, instead of being forced to settle for civil unions or domestic partnerships. Opponents, led by religious groups such as the Mormon church, strongly oppose this argument and argue that marriage has “always been” between a man and a woman, and that permitting same-sex couples the right to marry would impose rules on churches that violate their dogma. They insist that same-sex couples are offered the same rights and benefits as opposite-sex couples through civil unions, just under a different name. (Note: although at the federal level, same-sex civil partners are not offered the same marital tax benefits as opposite-sex spouses.)

In this new twist, a straight couple have been denied a civil union in the UK because they are not a same-sex couple. “In our day-to-day life we feel like civil partners—we don’t feel like husband and wife, and we want the government to recognize that,” says Katherine Doyle. She and her partner, Tom Freeman, argue that a civil partnership under British law is more in keeping with their personal style, even though marriage and civil unions provide the same benefits.

Gay rights activists believe that a win in this case would likely help encourage the right of same-sex couples to wed. Regardless of which side of the argument you support, this will be a fascinating story to watch unfold in the coming months.

Hire a Hit Man, Lose Out in Your Divorce

In a story reported by the Associated Press, a bill pending before the California legislature is intended to close a loophole in the state’s “no-fault” divorce laws. Under California law, if you are convicted of murdering or attempting to murder your spouse, you cannot collect any financial reward from the divorce proceedings. But, if you hire a hit man to do it, the law is silent.

“It’s just a glaring case where California law as it is now can reward someone who plans vicious murder,” said Democratic Assemblyman Marty Block, who introduced the bill, AB2674. “In a way, the current law rewards the
spouse for committing this kind of crime against the person they’re married to or in the process of divorcing.”OLYMPUS DIGITAL CAMERA

The full article appears below:

Calif. bill would target spouses who hire hit men
June 14, 2010|By CATHY BUSSEWITZ, Associated Press Writer

The story behind the legislation reads like a movie pitch.

The wife of a Southern California police detective, distraught because she had lost custody of her children, tries to hire a hit man from the Vagos motorcycle gang to kill him.

Instead, gang members alert police, who disguise themselves as biker thugs and secretly tape a conversation with her, leading to the wife’s arrest and ultimate conviction for solicitation of murder.

But later on, in divorce court, she is awarded half the couple’s property, even though she tried to have her husband whacked. He then calls Sacramento, determined to change the divorce law.

A bill scheduled to be heard Tuesday in a state legislative committee seeks to close what its author says is a loophole in the state’s no-fault divorce code. In part, the legislation will specify that spouses who solicit the murder of their husband or wife are not entitled to collect financial rewards in divorce proceedings.

The bill was prompted by John Pomroy, a police detective in Pomona, about 30 miles east of Los Angeles. His wife collected about $70,000 from their estate after she was released from prison in 2004.

“If you commit arson on your house, you don’t get the insurance money. You go to prison and all sorts of things happen to you,” Pomroy said in an interview. “But if you try to kill someone that is your spouse, the current law allows you to collect something.”

State law says that if spouses are convicted of murdering or attempting to murder their husband or wife, they are not entitled to reap any financial benefits during divorce proceedings. But if they hire someone else to do the dirty deed for them, their victims’ assets are not protected.

The bill would amend the law to include husbands or wives who solicit the murder of their spouse.

“It’s just a glaring case where California law as it is now can reward someone who plans vicious murder,” said Democratic Assemblyman Marty Block, who introduced the bill, AB2674. “In a way, the current law rewards the spouse for committing this kind of crime against the person they’re married to or in the process of divorcing.”

Divorce laws vary from state to state. In California, a couple’s shared assets are generally split evenly during a divorce.

That’s the case in most states, said Krystal Callaway Jaime, supervising attorney for the Family Protection Clinic at the University of California, Davis.

“This bill is very, very necessary,” Jaime said. “It seems obscure, but this does happen more frequently than people realize.”

After being married for a decade, Pomroy said his marriage dissolved when his wife became addicted to pain killers after injuring her foot in a dirt bike accident. She later turned to alcohol, and finally illegal drugs, he said.

He said they separated when she became physically abusive. He lived in the basement of the police department for a month after moving out of the couple’s house and later gained custody of their children.

When his wife faced losing the children and her husband’s monetary support, she solicited members of the Vagos motorcycle gang living down the street. She said she wanted them to kill her husband while he was on duty, Pomroy said.

“I think she felt like she had to hurry up and get rid of me, because she was going to lose our sons,” Pomroy said.

The San Bernardino County district attorney’s office said Pomroy’s ex-wife pleaded guilty to soliciting others to murder her husband in early 2003.

An official at the Central California Women’s Facility in Chowchilla said Pomroy’s ex-wife entered the prison in February 2003 and served time until she was paroled in March 2004. She was returned to prison twice since then and is currently on parole, said the official, who was not authorized to speak publicly but relayed the details of the woman’s corrections department record.

Attempts to contact her were not successful.

Michael O’Brien, a Covina-based attorney who represented Pomroy’s wife during the trial for solicitation of murder, agreed with the details of Pomroy’s story.

But O’Brien said he doesn’t believe Pomroy’s wife was going to follow through with the murderous plot. He said she was broke, desperate and strung out after years of drug abuse, and couldn’t afford to pay someone to kill Pomroy.

“She tried to steal a basket full of groceries for her family and got caught,” he said. “She was at the end of her rope when these events took place.”

During their separation, their house went into foreclosure and his wife said the cars were stolen, Pomroy said. His bank account, to which she had access, was drained. The only money he had left was in his pension account, and she was awarded half its value.

O’Brien said it was fair that Pomroy’s wife got the money because she had supported him during the early years of their marriage by raising the children while he became a police officer.

But Pomroy, who still fears his ex-wife, disagreed.

“This Assembly bill is not going to award me anything retroactively; I’m not looking for that,” he said. “I’m just trying to prevent some poor sap in the future who goes through this, to prevent him from losing his assets to somebody that’s trying to kill him.”

For more information about California family law and divorce issues, please contact attorney Gary D. Sparks at (925) 465-2500 or (707) 398-6008. Or, send a contact request directly from the californiadivorcelawyerblog.com page you are currently viewing.

Flat Fee Divorce Comes to Northern California

Click Here For Official Press Release

Bay Area family law practice offers refreshing alternative to traditional divorce billing

Walnut Creek, CA – June 21, 2010 – Divorce is too expensive, fees are too unpredictable, and attorneys pad their bills to maximize profits. At least that’s the general sentiment shared by many divorce clients in California.

According to family law attorney Gary D. Sparks, there is a better way. Attorney Sparks, whose small family law practice has offices in Walnut Creek in the San Francisco Bay Area and in Vacaville just outside the Bay Area, is one of the first Northern California family law attorneys to forsake the traditional “billable hour” model in favor of flat fee (fixed fee) pricing for his clients.

“Many of my clients are concerned about their legal fees,” says Sparks, “and are worried that their family law case will put them into bankruptcy.” He continues, “More importantly, clients lay awake at night wondering how much their next bill will be, or how much that letter, phone call or email will cost. Flat fee billing removes the uncertainty from the process and gives clients the peace of mind and ability to know up front what their case is going to cost.”

Under the traditional hourly billing model, a family law attorney collects an initial retainer or security deposit – generally around $5,000 – and then bills against that retainer for every hour or fraction thereof. Then, some 14-15 hours later when the funds have run out, the attorney will demand to collect an additional retainer from the client. This cycle repeats until the case is complete, typically some $15,000 to $25,000 (or more) later.

On the other hand, under the flat fee model, the attorney quotes the client a fee in advance for the case, and that fee remains fixed for the remainder of the case unless some unanticipated event occurs. But even then, the attorney quotes the client a flat, fixed fee for that additional event. The base flat fee for an uncontested divorce begins at only $950, while the base flat fee for a contested divorce begins as low as $6,000.

Sparks explains, “The client’s base flat fee is based on several factors, including the size of the community property estate and whether or not there are businesses or professional practices to divide. To keep fees as low as possible, the base flat fee is quoted based on the assumption that the case will settle.” However, this is not always the case. “Sometimes a client needs to prepare a motion or defend against a motion and appear in Court. Other times a client may be deposed. Or the parties may need to seek the Court’s assistance with settlement. For each of these events, an additional flat-rate fee is quoted and applies.”

Flat fee pricing for family law cases represents a substantial value for clients and simplifies the process for both attorney and client. But it is important to understand the limitations of flat fee pricing ahead of time to avoid confusion and misunderstanding. Therefore, Sparks provides his clients with a detailed, comprehensive fee agreement that fully explains what is and what is not included.

Sparks concludes, “Clients are grateful that we are able to quote a fee for the case, giving them the assurance of knowing that everything necessary will be done to move the case forward and that the attorney is not doing unnecessary work or otherwise trying to maximize legal fees.”
CONTACT:

Gary D. Sparks
[email protected]
The Law Offices of Gary D. Sparks
2950 Buskirk Avenue, Suite 300
Walnut Creek, CA 94597
(925) 465-2500 or
(707) 398-6008

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Flat-Fee California Divorce Lawyer – A Refreshing Approach to Family Law

Concerned about your legal fees? You should be. The fact is that working with an California divorce or family law attorney can be expensive. However it doesn’t have to put you or your family into bankruptcy, nor does it have to keep you awake at night wondering how much your attorney’s next bill will be. There is a better way.

INTRODUCING FLAT-FEE (FIXED-FEE) PRICING
I am pleased to announce that we are one of the first Northern California family law firms to offer flat-fee, fixed-rate pricing for both contested and uncontested divorces. Flat-fee billing removes the uncertainty from the process and gives you the ability to know up front and in advance what your case is going to cost.

In many cases, we are able to provide our clients with upfront, fixed fees for their cases. This includes uncontested divorces, basic and contested divorce settlements, and even court-based (litigated) cases in addition to our new online divorce coaching and flat-rate mediation plans. (We continue to offer traditional hourly billing for clients who prefer that option, and for those cases that simply do not lend themselves to fixed fees.)

Flat-fee pricing can provide peace of mind and has many advantages over traditional hourly billing. For one thing, it offers you the predictability of knowing in advance how much our services will cost without having to worry about the expense of each call, letter or email. It gives you the assurance of knowing that everything necessary will be done to move your case forward without the stress of wondering how much your legal bill will be each month. It permits you to be confident that your attorney is not doing unnecessary work or otherwise trying to maximize your legal fees.moneymatters

OUR SERVICES INCLUDE:
– Consultations and Second Opinions
– Limited Scope Attorney Court Appearances
– Unbundled (A la Carte) Attorney Services – “Attorney Assisted Divorce”
– Uncontested Divorces
– Basic and Complex Divorce Settlements
– Court-based (Litigated) Cases
– Mediation Services
– Online Divorce Coaching
– Paternity, Annulments and Other Family Law Matters

We understand that you have many options when it comes to selecting the attorney and legal services you need. Please contact attorney Gary D. Sparksfor more information about our new flat-fee pricing model: at (925) 465-2500 or (707) 398-6008. Or, send a contact request directly from thecaliforniadivorcelawyerblog.com page you are currently viewing.

California Flat-Fee Divorce: A Viable Alternative Coming Soon

Over the past few years, much has been written about the impending death of the billable hour. And the trend does seem to be picking up steam. Divorce cases would seem to be particularly ripe for flat-fee (also known as fixed-fee) billing.

Many of us, myself included, have heard the horror stories about families either shocked by their final invoices or driven into bankruptcy as a result of a high-conflict, high-cost divorce case. But, what are the alternatives? And are the alternatives as good? Well, the answer is “yes,” there is an alternative and “yes,” the alternative is as good and in many cases is much better.

In the coming weeks, my office will begin to offer flat-fee divorce services for both uncontested and contested cases. Not every case nor every situation lends itself to flat-fee services, so I will continue to provide hourly billing as well. However, I am excited about the prospect of offering flat-fee services, and look forward to discussing the various options with my clients to help them find the best solution for their particular case.

Watch this space over the next few weeks for more information and announcements. Be sure to visit our new domains (once they’re up and running, of course) at: www.californiaflatfeedivorce.com, www.bayareaflatfeedivorce.com, and www.sanfranciscoflatfeedivorce.com.

For more information about California family law and divorce issues, please contact attorney Gary D. Sparks at (925) 465-2500 or (707) 398-6008. Or, send a contact request directly from the californiadivorcelawyerblog.com page you are currently viewing.

California Short-sellers may face huge 2009 Tax

California homeowners beware: if you short-sold your home in 2009 (e.g. during your divorce) and received less for the home than what you owed the bank, you may be faced with a huge California state tax bill, according toKGO TV-7 in San Francisco.

Many of my divorce clients in the past two years have unfortunately found themselves in the position of losing their family home. In better economic times, the worst scenario usually involved selling the house and dividing whatever sales proceeds were earned. Nowadays, when neither party can afford the home any longer given the financial realities of divorce, and when the home is underwater, or worth less than what is owed on it, there are few options. Foreclosure is one of them, and short-selling is another.taxes-thumb

In most cases, if a homeowner short-sells his/her house and the bank forgives the remaining debt, the homeowner is given relief under federal tax law. In other words, the IRS gives them a break. [Note: keep in mind that there are exceptions, and you should consult a tax attorney or an EA (enrolled agent) to investigate your own particular tax situation.] However, California has its own set of tax laws – some of them bizarre, others not so much. In 2007 and 2008, California homeowners were given the same state tax relief as provided under federal law, but this law has since expired.

A new bill has been sent to Gov. Schwartzenegger’s desk extending the law into 2009, but the “Governator” has threatened to veto this bill because legislative leaders inserted an unrelated provision into the bill in an attempt to force the governor’s hand. The legislature is now considering replacing the bill with another version that does not include the unrelated provision.

If the legislature and governor cannot resolve this dispute, then the debt which was forgiven by the homeowner’s bank will be treated as taxable income under California law, even though it likely will remain tax free under federal law. This may cause a huge and unexpected tax burden for those homeowners, who should monitor the situation closely and plan accordingly.

For more information about California family law and divorce issues, please contact attorney Gary D. Sparks at (925) 465-2500 or (707) 398-6008. Or, send a contact request directly from the californiadivorcelawyerblog.compage you are currently viewing.