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Premarital Agreement Disregarded in Divorce Case

November 18, 2014, by Law Offices of James V. Sansone

prenup.jpgInternational marriages, when a divorce follows, can turn into messy divorces with surprising outcomes.

Consider this case. After marrying in the Ukraine in 2004, Richard Villar and Olga moved to Alaska with the woman's daughter, Linda.

As Olga's immigration sponsor, Richard filed an I-864 affidavit agreeing to support his new wife and stepdaughter at 125 percent of the federal poverty threshold.

Five years later, the Villars divorced and the final papers included Richard's support obligation. Then the mother and daughter moved to California where Olga met and married George Nasif that same year.

Sometime that same year, the daughter moved to Louisiana to live with her stepfather Richard under a temporary guardianship agreement.

Life can get messy.

Couple Battles Over Support Payments

Richard, probably feeling that he didn't need to send support payments now that his ex-wife remarried, stopped his payments to Olga during the first eleven months of 2010.

Not happy about the loss of income, Olga decided to file a motion in Alaska to enforce the divorce decree. Richard responded by making several payments.

The matter proceeded to a hearing. The court ruled that Richard's 2010 support payments needed to meet Alaska's federal poverty level, not California's. Furthermore, the court said the support payments should meet a single-person household level.

In the end, the court decided that Richard didn't owe his ex-wife any further payments. Olga filed an appeal; she prevailed, and Richard filed a motion asking the court to reconsider its June 20 order.

In addition, he filed a motion for relief. In other words, Richard asked the court to reconsider its earlier order.

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U.S. Supreme Court Hands Another Win to Gay Marriage Activists

October 21, 2014, by Law Offices of James V. Sansone

usup.jpgThe same-sex marriage battle tipped in the favor of gay and lesbian couples last week.

On October 7, 2014, the Supreme Court refused to hear same-sex marriage decisions appealed from the lower courts.

Those courts had ruled in favor of gay marriage, and state Attorneys General and interest groups had filed appeals, hoping to gain support from the Supreme Court justices to ban same-sex marriage once and for all.

Instead, the Supreme Court's refusal to consider the appeals nullifies those appeals and allows the affected states' to proceed to allow same-sex marriages.

In many of the cases under appeal, the lower courts based their decisions on rights guaranteed under the U.S. Constitution. Those judges had ruled in favor of same-sex marriage because to treat people differently based on sexual orientation is tantamount to being unconstitutional unless there were a compelling government need or argument.

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Domestic Violence Dominates Sports Headlines

October 14, 2014, by Law Offices of James V. Sansone

Thumbnail image for goodell.jpgAs of this writing, the San Francisco Giants, a wild card pick, just trounced the Washington Nationals in the Division Series. The Giants, who tend to perform well in post-season games, are off to play the San Louis Cardinals.

Sports, it seems, is always in the air.

Unfortunately, the sports channels have been covering more than just runs batted in, home runs, strikes, errors and balls.

There's a new statistic being tabulated: The number of times major league athletes are arrested for domestic violence.

Take the case of Ray Rice of the Baltimore Ravens. The Atlantic City Police Department claims he struck his fiancée, caused her to lose consciousness, and dragged her body out of the elevator where they argued.

Then there's Adrian Peterson, one of the league's biggest stars and the 2012 NFL MVP. Police arrested him for reckless or negligent injury to a child following a grand jury investigation.

That case involved Peterson's decision to use a tree branch to spank his child, a discipline measure his parents had used on him. His case proceeds to trial on December 1 of this year. In that case, the National Football League banned Peterson from playing pending closure of his case.

In September of this year, Anheuser-Busch issued a public statement expressing its concern about the manner in which the NFL has handled recent domestic violence controversies.

Perhaps the company's concern and outrage expressed by organizations serving domestic violence victims or advocating stronger policies to protect women, caused NFL Commissioner Roger Goodell to strengthen his league's stand on these issues.

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The Struggle for Same-Sex Divorce

October 7, 2014, by Law Offices of James V. Sansone

gay-divorce-brides.jpgIt's natural that the rise in gay marriage cases would create ripples throughout other areas of family law.

The new frontier appears to be over the issue of same-sex divorce.

Just as in heterosexual marriages and subsequent divorces, the division of property, guardianships, adoptions, custody, spousal support and other issues will need to be uniformly addressed.

State-by-State Divorce Laws Are Inconsistent for Same-Sex Couples

Unfortunately, the courts have not kept pace with the sudden meteoric rise in the legalization, state-by-state, of the right for gay and lesbian couples to marry.

That is what a couple from Texas has recently discovered. In this case, all Cori Jo Long and Brooke Powell want is to get a divorce from each other.

Here's some background on this case. After many years of friendship, in 2010 Long and Powell traveled from Texas, where they lived, to New Hampshire to wed. After three years of marriage, they initiated the divorce process in Texas.

That's where the divorce procedure stopped because a judge ruled that the courts in Texas have no jurisdiction to void the union or grant the women a divorce.

In the absence of national reform on this issue, to get a divorce Long and Powell will need to return to New Hampshire to establish residency there before proceeding with dissolution of their marriage.

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Divorce and the Family Home

September 30, 2014, by Law Offices of James V. Sansone

home-and-money.jpgYou married, purchased a home, and started a family. Isn't that the typical recipe of marital success that most married couples strive to emulate?

Then bickering with you spouse ensues, or there's a betrayal, or your spouse sinks your life savings into an "investment" that goes bust. Tensions rise; you no longer want to live with the person you thought you wanted to spend your entire life with, and you take the first step of separating from your spouse by making an appointment with a divorce lawyer.

Our children and our health are our biggest concerns, of course. When you initiate a divorce, another huge question tends to loom: What will happen with the house?

For you, it's no longer a 3-bedroom, 2-bath structure located within the boundaries of a good school district. That house has become more personal; it's your home. The place where you brought your children home from the hospital and where you changed diapers, raised a puppy and played ball with your kids.

There are as many memories as associated with the house as there are old wedding pictures. The home feels like part of your family, right? So what happens next?

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Divorce Tips for Sonoma County Boomer Women

September 10, 2014, by Law Offices of James V. Sansone

o-BABY-BOOMER-DIVORCE-facebook.jpgIf you're reading this blog, you're probably a Boomer. A study released in February found that Americans who are over 50 years of age are twice as likely to divorce as people who were that age 20 years ago.

No one wants to have a midlife divorce, but it happens.

Women tend to file for divorce more often than men. Their reasons range from a renewed focus on their careers to a sense of empowerment. Interestingly, men are more reluctant to leave a marriage while children are still living at home. And according to the U.S. Census Bureau, more working women than men have college degrees.

Of course, there are always exceptions to the rule. There are cases in which a woman is more reluctant to leave the marriage. She may want to keep the family together to raise the children, or she might have taken a break from work to become a stay-at-home mom and is nervous about re-entering the workplace.

Social Security Tips for Divorced Women

Then there are women in their sixties or seventies who worry about Social Security. I have some good news that could lessen your worries in this regard. Women can receive Social Security survivor benefits based on the ex-husband's earnings provided you aren't remarried when you seek to collect them. In addition, he either has to be collecting his retirement benefits or you have to have been divorced for at least two years, and you must be at least age 62.

Here are some additional tips:

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Florida Gets Closer to Allow Same-Sex Marriage - Update on Gay Marriage Around the Country

September 2, 2014, by Law Offices of James V. Sansone

images.jpgIn July, two Key West residents prevailed in a same-sex marriage case in a Florida district court. In that case, Monroe Chief Circuit Judge Luis Garcia - similar to other judges -- characterized the ban on gay marriage as unconstitutional.

Florida Attorney General Pam Bondi immediately issued a stay on Judge Garcia's decision. When the men asked the appellate court to lift the automatic stay, the appellate court responded with a firm denial.

It was the couple's second attempt to lift the stay.

Consequently, Judge Garcia's ruling only applies to the residents of Monroe Count.

Update on the Status of Same-Sex Marriage in the U.S.

So far, same-sex marriage is legal in 19 states and the District of Columbia. Those states are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington.

Same-sex marriages continue to be banned in Alabama, Alaska, Arizona, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, West Virginia and Wyoming.

These are the states where judges ruled that the ban on same-sex marriage was unconstitutional and yet state attorney generals have issued stays: Arkansas, Colorado, Florida, Idaho, Indiana, Kentucky, Michigan, Oklahoma, Texas, Utah, Virginia and Wisconsin.

Colorado allows civil unions. In a civil union, couples enjoy many of the rights of a married couple. However, they are unable to enjoy a number of benefits, including Social Security benefits upon the death of a spouse.

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Gay Marriage Bans Overturned in Utah and Indiana

600x4179.jpgNot only has the tide changed on the issue of same-sex marriage, last year's US Supreme Court's pair of decisions has caused a tsunami to sweep across the shores and Midlands of this country.

Just last week, a federal appeals court in Denver ruled that gay and lesbian couples have a constitutional right to marry. If there is an appeal, the issue will head to the Supreme Court where justices will be forced to tackle the issue head-on.

The 10th Circuit Appeals Court that made the decision about Utah's ban on gay marriage also governs Colorado, Kansas, Oklahoma, Wyoming, and New Mexico, where it is already legal for gay couples to marry.

Last Wednesday, the justices found little justification under the Due Process and Equal Protection Clauses of the U.S. Constitution to bar same-sex couples from marrying. In fact, the justices found the opposition's arguments based on procreation and parenting skills lacking in merit.

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Gay Adoptions - Bans on Gay Marriages Ruled Unconstitutional in More States

Thumbnail image for gay-adoption.jpgA lesbian couple from Virginia has a lot to celebrate these days. Desiree Bryan recently gave birth to twin girls, but not in her home state. Instead, Desiree and her partner Stephanie drove two hours to the District of Columbia were Stephanie gave birth to two healthy girls.

When children are born in the District of Columbia to a gay couple, both parents' names are added to the birth certificate. However, the birth certificate is not considered legal proof of parentage. That is why within a few months, the mothers will return to the District of Columbia were Stephanie will be able to adopt the girls and share full parental rights with her partner, Desiree.

The women couldn't have equal parental rights if the child had been born in Virginia. However, a recent law allows the courts to grant adoptions to out-of-state lesbian couples when the children are born in the District of Columbia. The District of Columbia is one of few jurisdictions where second-parent adoptions can occur even when the parents don't reside there.

In addition, even in states that don't have gay-friendly laws, court rulings are enforced despite the state court that issued them.

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ACLU Joins Fight Over Same-Sex Marriage in Michigan

bilde.jpgYou may recall that a Michigan judge, not too long ago, stated his conviction that a ban on same-sex marriage violated the U.S. Constitution and issued an order invalidating the state's constitutional restriction limiting marriage to a union between a man and a woman.

Following U.S. District Judge Bernard Friedman's ruling on March 21, 2014, 300 same-sex couples jumped at the opportunity to marry until, that is, the 6th U.S. Circuit Court of Appeals, following a request by Attorney General Bill Schuette, temporarily stopped same-sex marriages in the state.

Shortly thereafter, Gov. Rick Snyder issued a statement noting that same-sex couples who had been legally married would not necessarily be afforded the same benefits as married heterosexual couples.

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Older Couples Have a Higher Rate of Divorce

Thumbnail image for Thumbnail image for divorcecakeFayMillar2.jpgNew studies indicate that the social scientists who read data on marriage and divorce rates have been studying the wrong data.

According to the Minnesota Population Center, it turns out that more people are splitting up these days, not fewer.

One-In-Two Marriages Do Not Fail

Who hasn't heard the statistic that one-in-two marriages fail? Well that proclamation, as it turns out, was based on shaky data. In recent years, we were also told that after divorces peaked in the 80s, the divorce rate has been steadily dropping.

That's not true either.

The American Community Survey - an ongoing statistical survey that samples a small percentage of the population every year - started asking divorce questions six years ago, and the data gives little to no cause to celebrate.

It seems that the divorce rate is higher than previously estimated, especially among older people. Among younger couples, marriages tend to be more stable.

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Are Your Unvested Retirement Benefits Community Property?

US-Army-retired-logo.jpgAre unvested military retirement benefits considered community property?

That's the question a trial court dealt with in the divorce case of Daniel v. Daniel. In this case, Christen and Sean Daniel had married in 1995 and had three children. Just prior to marrying, Sean enlisted in the National Guard and at the time of his divorce, he had served 16 years and had reenlisted for an additional six years.

The parties handled all areas of their dissolution amicably except for the military pension. In court, a judge concluded, "Ohio law does not permit the court to divide a non-vested pension benefit."

The plaintiff argued that her ex-husband had reenlisted and would, therefore, be automatically vested by the time he ended his new commitment. Despite her argument, the court of appeals in Ohio affirmed the trial court's decision.

However, there was a lone dissent opinion issued. The dissenting justice argued the potential military pension was the only marital asset the parties had. Furthermore, while the other justices asserted that a valuation of the plan was necessary to make a decision, the dissenting justice disagreed with that conclusion.

Emboldened by the dissenting justice, Christen Daniel appealed to the Ohio Supreme Court. The Supreme Court justices agreed with Christen Daniel. They even suggested that the parties follow this formula for dividing the benefits: the number of years in service compared to the number of years of marriage.

In explaining their decision, the justices wrote that the starting point in any divorce is the equal division of marital property. Furthermore, it noted that the statute the appellate court had relied on did not distinguish between vested or unvested retirement benefits. The justices remanded the case back to the trial court.

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Northern California Man Fakes Bankruptcy to Avoid Child Support

shutterstock_41419909.jpgDo judges take child support seriously? Oh, yeah.

Take the case of a businessman from Northern California who declared bankruptcy and hid assets just to avoid paying child support and alimony.

Steven K. Zinnel and his wife split up in 1999 and a contentious divorce ensued. He declared bankruptcy and it was finalized in 2005. He wasn't really bankrupt; he had moved his assets to shell companies in order to reduce his child support obligations.

The courts don't look lightly on people who hide assets, try to file bankruptcy, and attempt to avoid support payments. In fact, this particular father received a prison sentence of 17 years. In addition, he must pay a $500,000 fine and forfeit assets worth more than $2.8 million.

Call to FBI Leads to Arrest of Zinnel

Zinnel's problems began soon after he contacted the FBI and asked an agent to investigate his ex-wife for trying to get illegal access to his private health insurance information. When the FBI heard his ex-wife's side of the story, they became more interested in Zinnel's bankruptcy than her alleged offense.

The FBI discovered that Zinnel had laundered funds through a company owned by his attorney Derian Eidson. He and Eidson had set up a trust account through which he could essentially launder money from an investment in an electrical firm and some real estate. Furthermore, prosecutors discovered that Zinnel had placed much of his property in other people's names before and after his 2005 bankruptcy.

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The Long Battle of Same-Sex Marriage Recognition

scotus-gay-marriage.jpgLast week, the state of Arizona dominated the news. The state Legislature there passed SB 1062, which would have allowed people to claim their religious beliefs as a defense for discrimination against gays and lesbians.

After a public maelstrom of objections that emanated from both political parties, Gov. Jan Brewer vetoed the Republican bill last Wednesday.

State Sen. Al Melvin, a Republican running for governor in Arizona and who voted for the bill, was quoted as saying, "... it is a sad day when protecting liberty is considered controversial."

Arizona's History with Same-Sex Marriage Bans

In 1996, Arizona's legislature banned same-sex marriage and the recognition of same-sex marriages performed elsewhere. Eight years later the state's voters took another step toward preventing gay marriages in their state: They approved Proposition 102, which limited marriage to only a union of one man and one woman.

Despite the government's tough stand, a 2003 poll found that 53% of Arizonans supported same-sex civil unions, though 54% oppose allowing same-sex couples to marry.

Last month, four same-sex couples filed a class-action lawsuit in U.S. District Court seeking to have Arizona's definition of marriage ruled unconstitutional. The couples' complaint argues that the federal courts must declare Arizona's definition of marriage as unconstitutional based on the Supreme Court ruling last year. A rule has yet to be issued.

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Same-Sex Marriage Battle in Utah Continues

February 11, 2014, by Law Offices of James V. Sansone

CA Same Sex Marriage.jpgSeventeen states now allow same-sex marriage; however, 33 states continue to ban it.

California's Path to Same-Sex Marriages

In California, the right to marry someone of the same sex took a circuitous route, involving political battles, appeals, and finally a reversal of the decision to ban gay marriage. Here's what happened. A proposition was passed allowing same-sex marriage in the state. Then Proposition 8, banning same-sex marriage, was put to the voters and was passed.

The Ninth Circuit Court of Appeals affirmed that California's anti-gay marriage initiative, known as Proposition 8, was unconstitutional. Unhappy with that result, supporters of Proposition 8 appealed the case to the U.S. Supreme Court. In June of last year, in a 5 - 4 decision, the court ruled that the defenders of Proposition 8 lacked standing and, therefore, the Ninth Circuit Court of Appeals lifted its ban, blocking same-sex marriages.

Same-sex marriages are now legal in California.

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