Spring 2006 Newsletter

We are excited to share the success of our new website, which has added many new readers of our newsletters. Since our last newsletter, we have both been on the speaker circuit and working on developing various cutting edge issues in family law. In this Spring 2006 issue, we focus on some recent developments in family law and trusts and estates management, planning and litigation. Avery will tell you about an area of estate planning of relevance to almost everyone - ideas about bequests to minors. We have much success in our collaborative law practice, which continues to grow, as has our mediation practice. Our clients are fortunate to be learning the benefits of controlling the outcome of their divorce or custody dispute.

Our Focus Continues to be Finding the Best and Easiest Solutions for our Clients.
A s we strive to assist our clients in taking charge of the outcomes and empowering them to make informed decisions with regard to their own legal issues, we continue to hone our litigation skills so that we can produce the results our clients desire with the least amount of expense and anxiety possible. We continue to specialize and emphasize the two areas of law that we practice: (1) all aspects of family law, including complex international and interstate custody and visitation matters, high-end property division issues, spousal and child support, paternity, cohabitation, pre-and post-nuptial agreements and step-parent adoption matters, and (2) all aspects of Trusts and Estates, including drafting of estate planning documents, trusts and estates litigation and trusts and estates administration.

Annalisa Provence has proven invaluable as our paralegal, who interfaces with our clients both in family law matters as well as in our Trusts and Estates department. Annalisa prepares forms and gathers and examines the various documents that are so much a part of our practice. In addition, she assists our clients with preparation of their declarations and assists the lawyers draft their agreements. Annalisa helps us prepare accountings required for our Conservatorships, Guardianships, Trusts Administration and Probates.

Victor Varadi has returned to us full time and he is working with us to lessen our load by managing our office and generally assisting us in streamlining our output. We are interviewing for an associate who we plan to hire in the near future. We have continued to upgrade all of our technology with new hardware and software products. We congratulate Nolan who successfully completed the first (and hardest) year of law school at Southwestern University School of Law, Avery and Frieda’s alma mater. We all look forward to one day having him back as our associate.

Frieda Gordon and Avery Cooper Have Both Been on the Lecture and Conference Circuit.
Frieda spoke for a second time at the Association of Certified Family LawSpecialists’ Annual Spring Seminar held at Aliso Creek Inn on April 1, 2006 in Laguna Beach, CA. Her topic there was Assisted Reproduction Technologies. Another exciting segment of the Spring agenda was a trip on May 4, 2006 to Phoenix, Arizona, where Frieda and Avery were delegates to the Conference of Community Property States. That weekend spawned a great deal of interchange among family law practitioners from the nine community property states on the topic of third party rights and remedies with regard to community property and separate property interests. It was also a great deal of fun hanging out with the group.

Avery and Frieda also recently spoke at the National Continuing Legal Education Conference in Aspen, Colorado in January 2006where they were able to combine a sharing of ideas on various topics of national and international interest with the top lawyers from all areas of the country with skiing in some of the most beautiful ski country in the world. Avery spoke on the topic of Family Law and Probate “Crossover” Issues. The presentation concerned those tricky areas of the law where Family Law and Probate issues intersect. The topics included what happens when a client dies while the divorce action is pending, and what remedies are available to a spouse who is receiving spousal support and/or child support following the death of the “paying” spouse. Frieda spoke on the topic of Risk Identification of Abduction to Non-Hague Nations.

Recent Case Law and Legislation
THREE recently published California supreme court cases awarded parental rights to parents who intended to have a child and then engaged themselves in raising that child, regardless of genetic ties. The cases are Elisa B. v. Superior Court (Emily B.}, Kristine H. v. Lisa R. and K.M. v. E.G. [A child can have two parents, even if both are women.]

THE medical field of reproductive technology has made huge leaps forward in affording parents new opportunities to have children with the aid of scientific procedures but has also left in its wake a plethora of conundrums for both the mental health and legal profession. It is important to all persons contemplating such an opportunity to investigate the issues and develop plans of action so that legal and mental health professionals can work together with the medical field to be one step ahead rather than one step behind the thorny legal issues and painful psychological experiences that can confront both parents and children in families who have turned to assisted reproductive technology to build their families.

In addition to the legal issues, it is important to address the social and psychological experience of same sex couples, heterosexual couples, and single parents who have built their families with the aid of a donor, surrogate, or gestational carrier.

Unusual Appointment as Minor’s Counsel
Frieda was appointed to act as Minor’s Counsel in a very interesting and difficult case in which the husband and wife recently began the adoption process of an exquisite newborn girl. Right after they returned with the child from the child’s birth state, both parties filed and obtained temporary domestic violence restraining orders due to their admitted emotional, psychological and physical abuse of each other. The heartbreaking problems of such a scenario seem pretty obvious, but adding to those are the facts that both adoptive parents are in law enforcement, so the restraining orders put their jobs at serious risk. Frieda was able to manage the case such that the adoptive parents could share custody, even though they could not speak to each other, and go to individual therapy, conjoint therapy, batterers’ treatment programs and anger management programs. Father expressed a high degree of concern and lack of willingness to continue with the adoption process. However, at the time of this writing, he is determined to learn how to “parallel parent.

Litigating Ownership of Assets in Safe Deposit Boxes
A very has been very busy handling a number of cases which have evolved from the administration of a Trust. The dispute is between a brother and a sister and revolves around the question of “who” owns the contents of 28 safe deposit boxes. The contents of the safe deposit boxes includes cash and expensive jewelry. Many people are of the mistaken belief that the listed co-signors on safe deposit boxes (persons added on by the initial box owner) are automatically entitled to the contents of the box upon the death of the owner due to the fact that co-signors provided access to the box by the original owner are commonly added on as “joint tenants.” In reality, however, that is not the case. The applicable statutes specifically preclude this. The litigation only emphasizes the great need of everyone to make their wishes well known and expressed before they pass away. This avoids truly unfortunate intra-family disputes. We will keep you advised as this litigation proceeds forward.

On a similar note, Avery’s client was recently successful in defending an appeal of a Trust dispute regarding an accounting issue. Due to the fact that Avery’s client did not use an attorney when she was administering her Mother’s Trust, the door was left open for substantial litigation years later. We are often seduced into thinking that because a Court proceeding is not required in order to administer a “living” Trust, that legal representation is not required. This misconception has been proven wrong, time and time again.

Professional Associations
In addition to the organizations mentioned above, Frieda is also a member of the Executive Committee of the Family Law Section of the L.A. County Bar Association. The Minor’s Counsel Sub-Committee presented bi-monthly seminars in conjunction with various local bars across the County of Los Angeles to promote the ethical use of Minor’s Counsel by attorneys and judges. At the recent Annual State Bar Conference, legislation was adopted to provide for quasi-judicial immunity for Minor’s Counsel. It is working its way through the legislation process. They are also drafting a practical guide to appointment of minor’s counsel for bench and bar.

Avery remains a member of the Los Angeles County Central Court District’s “Probate Panel.” He is eligible to be appointed by the Court as an independent attorney for proposed Conservatees in contested Conservatorship cases. His recently written article, “Divorce and the Mentally Impaired Spouse - A Procedural Roadmap” was published in the last Association of Certified Family Law Specialists Newsletter.
What is a Family Allowance and How Do I Get One?

IN our last Newsletter we mentioned that this newsletter would address the question, What is a family allowance and how do I get one? The following brief comments will attempt to address this subject.

Curiously enough, a “family allowance” is just like it sounds–it is an “allowance” issued by the probate Court to the family to pay a surviving spouse’s monthly expenses and /or to provide support for the Decedent’s minor children. Family allowances almost always arise in a “probate” setting as there is no provision for a family allowance unless there is an open probate. In the case of living Trusts, for example, where no probate is needed or provided for, the spouse cannot apply for a family allowance.

Family Allowances are discretionary with the Court. That is to say, the providing of the allowance as well as the amount given is determined by the Court. Family allowances usually come up in situations where there is a second spouse or perhaps, situations where one parent has children arising from different relationships. Usually, the problem comes about when a decedent does not provide for the spouse or the children in question in his or her estate plan.

A classic example of this is as follows. The decedent has a child from his or her first marriage and then remarries in later life. He/She leaves his or her estate in equal share to the second spouse and to the child from the first marriage. However, upon his/her death, the “second” spouse seeks to set aside the funds for her support while the probate is pending. This may be needed, if all of the income and accounts are in the decedent’s name. Next thing you know, it is child versus stepparent arguing over how much the “allowance” should be, how long it should be fore and, where the funds should come from.

This litigation can be particularly expensive and troublesome, given the nature of the combatants. Equally upsetting are the circumstances when the Mother of the decedent’s minor child (who depends upon the monthly child support check that the decedent sends her) is suddenly without resources and is required to apply to the Court for an interim family allowance.

Both of these are all too common fact patterns which are particularly disturbing, because proper estate planning can eliminate the need for these types of Court battles.

Although many of us have estate plans in place, certain “life changes” mandate that we review our plans periodically for updating. The following is a partial list of reasons for reviewing and/or updating our plans:

• marriage, remarriage or divorce
• death of a spouse
• death or incapacity of an executor, trustee or guardian
• acquisition or sale of a property
• birth of a child or grandchild
• serious illness in the family
• marriage or divorce of a beneficiary
• the passage of a significant amount of time since you last reviewed your plan with an attorney

All of these are good reasons to sit down with your attorney and review your current plan to see if it would benefit from updating.

IS IT TIME TO REVIEW YOUR ESTATE PLAN?