Prenuptial Agreements

Published on 30 May 2017 by in blog

Prenuptial Agreements

Prenuptial

Memorial Day is in the rear view mirror and we are rounding the corner into June, the most popular month to get married in the United States.  Unfortunately, many of these marriages will not make it, and a prenuptial agreement is a solid, but not ironclad, tool to aid in a cleaner split in the event of a divorce.

A prenuptial agreement is a written document, signed before marriage, which allocates the assets and debts of each respective party.  The agreement can set aside hard assets such as homes, cars, and boats; as well as financial assets like pensions and accounts.  Provisions in the agreement can also bind parties to waive their spousal support in the event of a divorce.

Prenuptial Agreements are also useful in protecting the inheritance for children of prior marriages, and protecting business interest’s one spouse may have from before marriage.

Although effective, these agreements are not bulletproof, and are susceptible to interpretation by a judge.  For example, there may be a provision in your prenuptial agreement which waives financial support.  A judge may decide the financial situation has changed since the agreement was signed (one party’s income has significantly increased or decreased) and financial support is now needed.

Child support is an area that a prenuptial agreement cannot cover.  Child support is a separate issue from spousal support, and any other issues covered by a prenuptial agreement.  Child support is determined at the time of the child custody matter and is based on how much time each of you has with the child, as well your respective incomes.

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What is the Difference Between Domestic Violence and Domestic Abuse?

Domestic Violence and Abuse as a Abstract

Domestic abuse and domestic violence are two terms which hold a great deal of weight in family law courtrooms. Both are used to secure domestic violence restraining orders, and the prevention of domestic abuse, and violence, is one of the highest priorities for family law judges nationwide.

While these terms are frequently used interchangeably, and have similar definitions, there are nuanced differences between the two.

The State of California defines Domestic Violence as: Domestic violence is abuse or threats of abuse when the person being abused and the abuser are or have been in an intimate relationship (married or domestic partners, are dating or used to date, live or lived together, or have a child together). It is also when the abused person and the abusive person are closely related by blood or by marriage.

Within that definition of domestic violence, and within the laws that govern them, the State of California says domestic abuse is: Physically hurting or trying to hurt someone, intentionally or recklessly; Sexual assault; Making someone reasonably afraid that they or someone else are about to be seriously hurt (like threats or promises to harm someone); OR Behavior like harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property.

Given those two definitions, domestic violence is the overarching, all-encompassing, umbrella under which many different types of abuse falls under. As we can see by the definition of abuse; abuse is not just direct physical or sexual violence. Abuse includes threats, intimidating or threatening behavior and speech, and financial abuse.

Let’s say you and your wife get into an argument over what is for dinner. She wants chicken, you want steak. As the argument escalates, you raise your voice, and the conversation disintegrates into a yelling match. If this makes her fearful, or “disturbs her peace”, then that qualifies as domestic abuse. Under the law, she will be entitled to seek a domestic violence restraining order.

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Los Angeles family law attorney David Pisarra reviews the book, “A Family’s Heartbreak” by Mike Jeffries.

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What is Battery?

Published on 16 May 2017 by in blog

What is Battery?

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Under California Penal Code 242 battery is defined using the following elements:

  • You touched someone else,
  • Willfully
  • In an offensive or harmful manner.

The code does not have any limit on how insignificant the touching is. Deliberate acts from pushing someone, poking a finger in someone’s chest, to a full on physical altercation with someone all fall under the offensive “touching” used by the Penal code to describe battery.

Willfully means that the act was done on purpose and not by accident. For example, a husband and wife get into an argument. The wife picks up a lamp and throws it across the room. The lamp strikes her husband in the head. Although she did not intend to hit her husband with the lamp, she willfully threw the lamp. This would be considered a battery under California law.

Touching in a harmful or offensive manner is described as violent, rude, angry or disrespectful. The requirement that the touching be harmful or offensive is important because it distinguishes a battery crime from insignificant daily touching. For example, me and Dave do not like each other, but we work together. One day he closes a big sale and as I walk by him I say “good job” and pat him on the back. Although he does not like me, and is upset by the fact that I touched him; it is not a battery because the contact was not intentionally offensive or harmful.

Many people confuse assault with battery because the terms are often used together. The difference between assault and battery is simple. An assault creates a fear in the victim of physical harm or unwanted touching, and battery is the actual infliction of physical harm or unwanted touching.

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What Is Assault?

Published on 09 May 2017 by in blog

What Is Assault?

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Under California Penal Code 240 assault is an action that may inflict physical harm or unwanted touching on someone else. Further it describes assault using 4 points, or elements that must be proven for an assault to have taken place. They are as follows:

  • You did an act that, by its nature, would probably result directly in the application of force to someone else;
  • You did that act willfully;
  • When you acted, you were aware of facts that would lead a reasonable person to believe that the act would directly and probably result in the application of force to that person; and
  • When you acted, you had the present ability to apply force to that person.

Notice how no actual physical violence is needed to satisfy all the elements of this definition. The only thing necessary is the perception that violence will occur. Let’s go through an example and you can see how this scenario plays out.

Dave and I get into an argument at work. We have words with each other and it escalates quickly. I lose my temper and get right up in Dave’s face and begin screaming. I am standing inches apart from him, with my fists balled up in anger, yelling at him. Have I just committed an assault?

Absolutely.

Lets takes the first element of assault – “You did an act that, by its nature, would probably result directly in the application of force to someone else.” I have done several acts that satisfy this element. First, I am in David’s face inches away from him. Second, I have my fists balled up in anger, which is action. Finally, I am yelling.

The second element is satisfied because this was no accident. I did those things willfully.

The third element is satisfied because as a result of my action, a reasonable person would believe that my behavior would result in an application of force.

Finally, I am a able bodied male fully capable of applying force to David.

According to the definition of assault, as defined by the Penal code, there is a range of scenarios which could be deemed assault. The common misconception is that one needs to inflict physical violence on a person to be guilty of assault. As you can see that’s not the case. You don’t even need to touch another person, just the threat that you may harm that person is enough to justify an assault charge.

To prove an assault charge in a criminal matter one must prove beyond a reasonable doubt that this occurred.  In a civil matter, the standard of proof is much lower.  Only a preponderance of evidence has to be proved.

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