Atty. Carina Castaneda

LAW AND ORDER: THE LEGAL SYSTEM

What are My Fiduciary Duties if I Am Involved Romantically with Someone?

It is important to understand that when people live together, whether or not they are married, a ìconfidential relationshipî arises between them. For married persons this relationship arises from a legally recognized nature of matrimony. For unmarried persons, certain important legal obligations are present but may be of lesser value. Nonetheless, due to the trust and confidential nature of the relationship, duty of loyalty, care and disclosure in transactions will be imposed.

Spousal duties have evolved over the years but management and control of assets and disclosure of such assets are well established. Family Code 721 is the starting point. Subsection (b) states, ìThis confidential relationship is a fiduciary relationship subject to the same rights and duties as non-marital business partnersÖî as set forth in the Corporations Code. It imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.î

Section 721 (b)(1) further entitles each spouse access to information about all things affecting any transaction which concerns the community property estate.î This duty arises by operation of law and no requests needs to be made of that status of property or assets. FC 2100 (c) makes this obligation clear that ìeach party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the relevant underlying facts.î

An interesting and on point case is Marriage of Rossi. Ms. Rossi won $1,336,000 in a lottery pool and shortly thereafter filed for divorce. She never told her husband about her lottery winnings and failed to disclose the funds in any of her required disclosures. She even consulted with lottery officials how to conceal her winnings from her husband learning about the price. A judgment was entered in the divorce case without Mr. Rossi knowing about the winnings. Two years later, he inadvertently received a letter regarding the winnings. He filed a motion to set aside the divorce judgment and the court held that Ms. Rossiís failure to disclose constituted fraud, oppression and malice and award him 100% of the winnings.

Another seminal case is Marriage of Feldman. This case focuses on the duty of disclosure during dissolution proceedings and confirms the consequences of breaching those duties. The trial court found that the husband established a ìpatternî of financial non-disclosures and issued sanctions against him. The sanctions were set in an amount the court deemed sufficient to deter future noncompliance with the disclosure requirements.

Notably, unlike FC 271 which requires the court to consider the partiesí incomes, assets, and liabilities. FC 2107 addresses sanctions and attorney fees for violations for nondisclosure only require sanctions in an amount sufficient to deter bad behavior.

Transparency and honesty is required in divorce proceedings as to asset disclosures, ìhiding the ball,î means severe penalties as these two seminal cases exemplify. Preliminary and final declaration of disclosures are exchanged prior to judgment and for some cases, discovery work will be required to get all critical information about the assets obtained during marriage and their valuation thereof.
A qualified and experienced family attorney will be needed to navigate the complexities of these issues.

Any questions, call my office at 310-601-7144 or email me directly at This email address is being protected from spambots. You need JavaScript enabled to view it. and always visit my website for more articles, attycastaneda.com.

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What are My Fiduciary Duties if I Am Involved Romantically with Someone?

It is important to understand that when people live together, whether or not they are married, a “confidential relationship” arises between them. For married persons this relationship arises from a legally recognized nature of matrimony. For unmarried persons, certain important legal obligations are present but may be of lesser value. Nonetheless, due to the trust and confidential nature of the relationship, duty of loyalty, care and disclosure in transactions will be imposed.

Spousal duties have evolved over the years but management and control of assets and disclosure of such assets are well established. Family Code 721 is the starting point. Subsection (b) states, “This confidential relationship is a fiduciary relationship subject to the same rights and duties as non-marital business partners…” as set forth in the Corporations Code. It imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.”

Section 721 (b)(1) further entitles each spouse access to information about all things affecting any transaction which concerns the community property estate.” This duty arises by operation of law and no requests needs to be made of that status of property or assets. FC 2100 (c) makes this obligation clear that “each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the relevant underlying facts.”

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Attacking Premarital Agreements

There are several ways a prenuptial agreement can be attacked and found invalid. A premarital agreement is unenforceable if a party against whom enforcement is sought proves either of the following: (1) consent was involuntary; (2) the agreement was unconscionable.

I have a client that was not represented by an attorney at the time she signed the agreement and needed an Italian translator. She is conversational in English but due to the legal terms used in the agreement should have had a translator provided. In fact, she did request that the documents be provided to her in Italian too—but was never provided to her.

The court will strongly scrutinize the facts on a case-by-case basis factors that the judge will review are if a party is not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party. That the party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations and could not have reasonably obtained adequate knowledge of that information.

The issue of whether an agreement is unconscionable is a decided as a matter of law by the court. The court must find on the record and or in writing all of the following: (1) party was represented by an independent legal counsel at the time of signing the agreement or after being advised to seek an attorney, expressly waived, in writing, representation. (2) party had less than 7 calendar days between the time that the party was first presented with the agreement and advised to seek representation and the time it was signed (3) if unrepresented, the party was fully informed of the terms of the agreement (4) agreement not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into an agreement (5) and any other factors the court deems relevant.

Independent legal counsel are recommended by the court in drafting a prenuptial agreement since the parties’ interests are often adverse. Due to the nature of the relations, there may be certain situations in which it is critical. For example, when one of the future spouses is considerably wealthier than the other, or when only spouse waives his or her rights to an elective share.

An agreement is unenforceable if not voluntary or the result of duress (Uniform Premarital And Marital Agreements Act, Section (9)(a)(1). Evidence of lack of capacity, duress, fraud, and undue influence as demonstrated by a number of factors are probative in proving involuntariness (In re Marriage of Bonds, 24 Cal.4th 1 (2000) Adequate legal representation will often be the best evidence that a spouse signed a premarital agreement knowledgeably and voluntarily.

A court may refuse to enforce a term of a premarital agreement if in the context of the agreement taken as a whole (1) a term was unconscionable at the time of signing; (2) enforcement of the term would result in substantial hardship for a party because of a material change in circumstances arising after the agreement was signed (Uniform Premarital and Marital Agreements Act, Section 9 (f))

The hearing requesting invaliding a prenuptial agreement is a complex matter and highly contested. Be prepared, this hearing will require a great deal of legal work. Any comments, feel free to call my office at 310-601-7144 or email me at This email address is being protected from spambots. You need JavaScript enabled to view it.

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THE INTERSECTION OF FAMILY AND CRIMINAL LAW

Although family law and criminal law are two very distinct areas of the law, they frequently overlap creating challenges for lawyers who specialize in just one area. When a family law case involves elements of criminal law such as domestic violence, child abuse, restraining orders, alcohol (DUI) or drug offenses, the case becomes exponentially more complicated for the family law practitioner.

Since I have been a District Attorney in Los Angeles County for ten years with extensive experience in family violence and DUI/Drug criminal cases along with prosecution of child support cases, I have now twenty-one years experience in both the family and criminal law arena.

Often the multitude of orders in the family courts and criminal courts need to be consistent since conflicting orders will detrimentally affect your client and parties involved (including the children). Cases may proceed simultaneously in different courts and through different attorneys exposing the challenges of which orders take precedence. Note as well the different burden of proof since family law is in the civil arena while criminal law poses the paramount burden of proof of beyond a reasonable doubt.

I have written about the importance of how criminal charges such as child abuse, domestic violence, drug related arrests by a defendant involved a divorce case must be litigated to its full extent in order to prevent negative consequences to his/her divorce case. A conviction of a violation of a restraining order, drug possession and use, or child abuse/neglect for example, would be considered by the family court judges in determining custody, visitation and spousal support.

All states, including the District of Columbia (“DC”) have statutes that require the courts to consider domestic violence committed by one parent against the other in resolving custody or visitation disputes between parties. Additionally, in all states and DC, individuals who have experienced domestic violence have civil and criminal remedies to protect themselves from further orders.

In many states, when the police encounter a domestic violence situation, one of the two parties involved in the dispute is required or requested to leave the home. In about one-third of the states, police officers are also authorized or required to remove guns when they arrive at the scene of a domestic violence incident without further investigation or court intervention.

In some states, the police can give the victim an emergency protective order (EPO). An EPO is a short-term protection order typically given to a victim by the police or a judge. This permits the victim to file the necessary paperwork in family court for a permanent restraining/protective order.

Any drug or alcohol related arrests and conviction impacts the court’s ruling as to which parent should have legal and physical custody of the child. In determining what is the best interest of the child, the judge will review a parent’s history of drug and alcohol use/abuse and impose certain conditions for visitation or even impose no visitation.

As for any reports of child abuse and/or neglect, the Department of Children Services will also become involved and depending on the police findings and agency recommendation, a criminal case will be filed. The family law judge will then make a finding of whether a parent (defendant in the criminal case) has any visitation or custody rights.

I have represented many clients in both arena and have even taken the criminal cases to trial since I know the dire consequences to my client’s divorce/family law case if a conviction results. A false allegation of domestic violence, child abuse, drug use is not uncommon while a divorce is ongoing so it is critical that a client who faces both a criminal charge and an ongoing divorce is represented adequately in both arenas.

If you have any questions, feel free to email me directly at This email address is being protected from spambots. You need JavaScript enabled to view it. or visit my website attycastaneda.com.

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FIREWORKS: ARE THEY LEGAL?

It is approaching July 4th and as many of us know many people enjoy “blowing” things up. It maybe a “homage” to the rockets’ red glare that Americans love fireworks and prior to 1950, few states regulated them. But due to concern over injuries, enactment of laws were implemented.

Even sparklers burns at 2,000 degrees Fahrenheit and so it will severely burn and scar skin. In fact sparklers are the number one cause of reported injuries due to fireworks. The federal government regulates fireworks under the Hazardous Transportation Act and Hazardous Substances Act. But the federal government allows the states to enact their own more stringent statutes.

In California, the State Fireworks Law was enacted in 1974 (Health & Safety Code Section 12500 and following). Under this, the state classifies the items that qualify as “fireworks”, who may possess or sell them, and dictates when and where they may be set off.

Fireworks are defined as being any device containing chemical elements that do not require oxygen to burn and that produces audible, visual, mechanical or heat pyrotechnic effects for entertainment. Private citizens who are not licensed by the state to discharge explosives are strictly prohibited from possessing and/or discharging certain fireworks that state law lists as “dangerous.”

Unlike some states, California explicitly defines what are “safe and sane” fireworks. These are the fireworks that may be sold, purchased, and used by the general public, but only within very strict parameters. Only licensed retailers can sell them and they can only do so from June 28 to July 6 each year.

It is illegal to sell or give dangerous fireworks to anyone under 18 and illegal to sell or give safe and sane fireworks to anyone under 16. Most violations are misdemeanors with penalties of up to 1-year county jail and/or fine of up to $1000, excluding penalties and assessment charges. However, if you possess large quantities of dangerous fireworks and not licensed to do so, you can be charged with a felony with up to 3-years of state prison and up to $50,000 of fines, excluding restitution (i.e. fire department, victims).

Unlike people, pets do not associate the noise, flashes, and burning smell of the fireworks with celebration. Pets, as many of you know, are terrified of fireworks. In fact, July 6 is the busiest day of the year for animal shelters so keep your pet indoors. The loud noise creates panic for them and will make them break free and jump a fence to attempt to find safety. If your pet does manage to become lost, it is critical that proper identification is on them (microchip, ID tags) should be placed on them at all times.

Enjoy a safe and stress-free July 4th everyone! Any questions or inquiries, do not hesitate to email me at This email address is being protected from spambots. You need JavaScript enabled to view it. or call my office at 310-601-7144.

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USE YOUR RIGHT TO REMAIN SILENT

I had two clients call me recently about why they were not provided their “Miranda” rights prior to the police asking them questions. If you are not under “arrest,” the rights are not triggered. Both clients made admissions to the alleged crimes and the analysis then proceeds to whether they were under arrest and should have been advised of their constitutional rights.

The landmark case of Miranda v. Arizona continues to evoke confusion by many individuals confronted by the police. Ernesto Miranda, a rape suspect, was arrested and taken to the police station. After two hours of questioning, he signed a written confession and was subsequently found guilty. Miranda appealed his conviction on the grounds that prior to confessing, he had not been informed of his Fifth Amendment right against self-incrimination or his Sixth Amendment right to counsel.

The United States Supreme Court overturned Mr. Miranda’s conviction finding that the coercive nature of detention in a police situation necessitates certain safeguards in order to ensure that suspects that do not intelligently waive their rights. The ruling held that when law enforcement officers take a suspect into custody with the intention of conducting an interrogation, they must advise the suspect of certain fundamental rights.

(1) The right to remain silent;
(2) Anything you say will be used against you in court;
(3) The right to have an attorney present;
(4) If you cannot afford an attorney, one will be provided at no cost to you.

This case had broad ramifications for all police officers and required them to issue these warnings when a person is placed under arrest and will be interrogated. Note also that the officers are required to make sure you understand either each right specifically or in its entirety. In practice, many officers will state, “do you understand” after each right or at the end of the warning—either way has been held to be proper.

We are all aware of the contents of Miranda. It is recited on police shows everyday and many can repeat it verbatim, though often without a clear understanding of its significance. More importantly, as I have seen in my criminal cases, simply ignored, misunderstood or feared. Simply stated, many either turn a “blind eye” or disregard the best course of action for any arrestee: say nothing or seek the help of an attorney.

Keep in mind that the environment that Miranda must be invoked requires custody (arrest) and interrogation (questioning) by law enforcement officers. Hence, if they are not cops, Miranda does not apply. Moreover, statements “volunteered” by the suspect at any time; “spontaneous” statements, or providing basic personal information such as name, address, and social security does not require the advisement. I placed quotes on the words volunteer and spontaneous. As a criminal defense attorney, these types of statements are subject to analysis and should be carefully scrutinized if they are truly voluntarily or

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Motion for bifurcation (getting divorced sooner))

Divorces could take years and in California, at least six months minimum would be required. If you want or need to get divorced sooner, there is a Motion for Bifurcation in which a party asks the court to terminate the marriage and restore each spouse to their single status.

In some situations, the parties’ or the judge may order a trial to be bifurcated (an issue is “tried” separately). For example, if there is no agreement on, the court may require that legal and physical custody be determined immediately and separate these issues from the rest of the divorce case.

As for getting the divorce sooner—as noted above, six months minimum is required in California from the filing of the Petition to the status of being single (being divorced). Even with a bifurcation, you cannot divorce any sooner than six months after your separation date.

Why do this? One of the most prevalent reasons are that one or both of the spouses are remarrying or if one or both of the spouses wants to file as a single person on their taxes. If your divorce case has been open for a significant period of time and no resolution seems to be near, filing for a bifurcation of marital status will allow you to return to your status as a single person but it will not resolve all the other issues that are still contested in your divorce.

For a spouse who is paying any kind of support (child or spousal) this is beneficial. The support is 100% deductible on income taxes, but only if you are filing as a single person and the person receiving the support must then list the payments as income on their taxes.

Even if the request is granted, you or your spouse may still need to meet certain conditions:

If one spouse maintains medical insurance, he/she must continue to do so;
If either spouse has a pension plan through their employer, the other spouse receives indemnification for the loss of death benefits;
The opposing party must be reimbursed for any tax consequences of the loss of the right to claim probate homestead or family allowance.

If you want to take advantage of a bifurcation, be sure to file the necessary paperwork as early in the year as possible and no later than November 15, of that year.

Additionally, before you can file this motion, a Preliminary Declaration of Disclosure consists of serving a completed Schedule of Assets and Debts and Income and Expense Declaration on your spouse.

The effects of a bifurcation are that your marital status will be terminated, you can remarry without having to wait for a final judgment on the remaining issues, your name can be restored to your maiden name, and you will be able to file your income taxes as single or head of household.

If you have any comments or questions, feel free to call my office at 310-601-7144 or email me at This email address is being protected from spambots. You need JavaScript enabled to view it.

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ADMINISTRATIVE HEARINGS FOR REVOCATION OF PROFESSIONAL LICENSES

Professional licensing agencies may suspend or revoke a license issued for reasons enumerated in the California Business and Professions Code (BPC). For many who have criminal convictions, whether they are doctors, nurses, contractors, they will be served and must defend against an accusation that impacts their careers and livelihood. I had a client come in recently who is a pharmacist and had an underlying drug-related arrest. I did not represent him in his criminal case and he represented himself in his administrative hearing.
The outcome of the hearing meant probation for 5 years with terms that are extensive and very rigid. It is critical to hire an attorney who is experienced in direct and cross-examination, gathering evidence and highly skilled in conducting hearings. In California, the Attorney General (AG) is the representative of the various professional licensing boards. Even prior to the date of the hearings, I worked with the Supervising Deputy AG in providing her mitigating evidence such as character letters and evidentiary documents lessening the culpability of my client.
Even though an early termination of probation and a criminal expungement may not be conclusive in getting the Board to withdraw the accusation, it is an important factor that enables the judge and the board to reconsider the gravity of the charges.
If the board or its designee asks a licensee to provide criminal history information, a licensee shall respond to that request within 30 days. The licensee shall make available all documents and other records requested and shall respond with accurate information.
As a condition of renewal for a license that expires on or after April 1, 2009, a licensee who was initially licensed prior to 1/1/98, or for whom an electronic record of the submission of fingerprints no longer exists, shall furnish to the Department of Justice (DOJ) fingerprints for the purpose of conducting a criminal history record check and to undergo a state and federal level criminal offender record information search through the DOJ.
A licensee shall disclose whether, since the licensee last applied for renewal, he/she has been convicted of any violation of the law in CA. or any other state, the United States, or other country, omitting traffic infractions under $300 not involving alcohol, dangerous drugs, or controlled substances.
I have just mentioned some of the general criminal background checks that are in effect. It is critical that if you have been arrested of a crime, a review of your employee manual is necessary since reporting it to a supervisor may be mandatory. For example, for nurses, sections 2520.4 and 2520.5 of the Vocational Nursing, California Code of Regulations, both the licensee and the employer must report of any act listed in the BPC, Sections 2878, 2878.1 and 2878.5. The report shall be made to the board within a required time period a violation had occurred.
For licensed individuals, in all sorts of professions, if you have been arrested and subsequently convicted of a crime it means facing both the criminal and administrative consequences. It is important that the attorney that you hire for the administrative hearing be aware of the rehabilitation criteria. The Board has the final decision to revoke, suspend, or place the licensee on probation. Keep in mind as well that the facts of the underlying criminal case must be adequately explained to the board and the witnesses for the administrative hearings are generally the same for the administrative hearing.
Having the same criminal and administrative attorney represent the client in both venues is a benefit. I find that since I have knowledge and information about the criminal case and the reasons for the disposition and other critical information are available to me, it is more advantageous to my client. Frankly, to some of my clients, the board hearing is more stressful for them since it ultimately means their livelihood is at stake. While the criminal case if of equal importance, to many they know there is a conclusion to the criminal case. But if their license to work is taken away, it means their professional life is destroyed.
Thus, when the Board considers the disciplinary actions that should be implemented, the attorney must be able to advise the administrative judge of the rehabilitation possibilities of an individual article. If you are personally experiencing such issues, call me immediately at 310-601-7144 or email me at This email address is being protected from spambots. You need JavaScript enabled to view it.

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Contempt of Court

The primary purpose of the contempt power is to preserve the effectiveness and sustain the power of the courts. The secondary purpose is to protect and enforce the parties’ rights by compelling obedience to court orders and judgments. Examples of this would be failure to appear when subpoenaed, screaming profanities in court, and failure to obey a court order.
The judge may impose sanctions such as fines or jail for someone found guilty of contempt of court. For criminal cases, sanctions typically are a jail term and fines that are intended to punish. Probationary terms may also be imposed. As for civil contempt, sanctions may include a fine or a jail term that ends when the offending behavior ends and money damages may be awarded to the injured party.
To prove contempt the prosecutor or complainant must prove four elements: existence of a lawful order, knowledge of the order, ability to comply and the failure to comply. As referenced, my client had attorneys and an accountant to insure that effective and full compliance with court proceedings would be effectuated.
I have a case now in which the opposing party in a divorce case is facing numerous contempt charges for failing to provide financial information as ordered by the Court. The crux of the case generally falls on the factors of the “Respondent/Defendant’s” ability and willingness to comply with a court order. Another relief that could be requested is attorney fees incurred in filing an affidavit of contempt in the family court case scenario.
I have defended several clients in numerous counts of family law contempt cause of actions pertaining to financial obligations such as child support, spousal support and attorney fees (financial issues). Another area where contempt is brought forth is in violations of a visitation order or restraining orders. My most recent case is about noncompliance and overt disobedience of a court order requiring the other party to provide financial documents for “discovery.”
The four factors to be proven: valid court order, knowledge of the order, ability to comply with the order, and willfulness of conduct must all be proven beyond a reasonable doubt in both the civil and criminal arena. Since the court can impose up to five days per count of jail, a maximum of 180 days of jail would trigger the right of the Respondent/Defendant to request a jury trial.
The power to punish for contempt is broad and carries with it great responsibility to apply it judiciously and only when contempt is clearly and unequivocally shown. Defendants in criminal matters should be given every opportunity to exonerate themselves. Criminal contempt sanctions should be only utilized after the judge has determined that civil contempt remedies are inappropriate.
It is incumbent and prudent if you are the party that is attempting to get a contempt action initiated and successful that you hire an attorney that have both the experiences and expertise in both the criminal and civil arena. While in family law (civil) court is not the criminal arena, the constitutional rights afforded a criminal defendant will be required, including but not limited to, a right to an attorney, right to a speedy trial, and a right to remain silent.
It is a complex matter that will require you to get an attorney not only to decipher the pleading requirements but also to effectively win the case in trial.
Any questions, call me at 310-601-7144 or email me at This email address is being protected from spambots. You need JavaScript enabled to view it.

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Modification of child custody or visitation orders

I have a client that has a visitation order of a mere 5% due to a prior restraining order. He came to my office and wants to know what his options would be. Since the restraining order had expired, a modification is “necessary or proper” in the child’s best interests. Generally, a custody or visitation order may be modifiable during the child’s minority whenever the court finds a modification is “necessary or proper” and consistent with the child’s best interest.

I suggested reaching out to the opposing party’s attorney prior to filing any motion to see if a stipulation for more visitation time would be available. This not only curbs legal fees and court costs but is consistent with the duties required in family law of both parties’ to act in good faith.

If there is no agreement and court intervention is the only means to an end, I will always note in our motion that best efforts were made in order to prevent judicial intervention and increased costs. Depending on the acts or behaviors of both the attorney and opposing party, sanctions for legal fees and costs may be requested.

The standard governing custody adjudications requires the court to review and conclude what is the child’s best interest. However, if the custody order has been deemed “final”—usually a Judgment has been filed, then a showing of “significant change of circumstances will be needed. The policy behind this is that modifications to custody or visitation create instability and security is essential to the child’s welfare.

The paramount goal is to preserve the need for continuity and stability in custody arrangements, unless some significant change in circumstance reflects a different arrangement would be in the child’s best interest. As for my client, there is no final custody order so the best interest standard is the applicable law.

Unless the order is permanent or final, the court is only required to make an initial custody determination of what custody order is consistent with insuring continuity and stability for the child. The burden of proof must be on the party requesting the change –my client.

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