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Pursuing Assisted Reproduction? Good Agreements Are Essential

November 2, 2016

This is part 3 of a 3 part series on assisted reproductive technology and divorce in California. Disclaimer: This article does not constitute legal advice. If you have any questions about your individual situation it is best to seek the advice of an experienced family law professional. Please click here to set up a consultation with experienced family law mediators Boileau Conflict Solutions.

We’ve seen how disputes about frozen embryos can easily get complex and emotionally delicate (See Part 1 and Part 2 in this series). No one wants to imagine they will divorce but when there are high emotional or financial stakes, any unresolved issues can cause conflict later. Assisted reproduction can even involve more than just the divorcing couple. Especially if a surrogate is someone known to the couple, having a child can involve several parties interested in the birth or upbringing of a child. At Boileau Conflict Solutions we have experience working with families and couples dealing with unique issues related to assisted reproduction.

Signing on the Dotted Line

When you sign a consent form with an assissted reproduction facility, are you signing an agreement with the facility or with your partner? This is a subtle, but important distinction. In the case of Dr. Mimi Lee and Stephen Findley, Lee argued that she hadn’t signed an agreement with Findley, but that the couple had signed an agreement with the facility.

You may imagine that your main obstacle would be your former partner’s wishes, but California law also outlaws the use of ‘”sperm, ova, or embryos in assisted reproduction technology” without the written consent of their providers.’ (Source: FindLaw) The second hurdle Dr. Lee could have faced was the facility refusing to release the frozen embryos.

A divorce dispute about frozen embryos has to cover so much more than the disputes over property you would expect from divorce. In the beginning, there was a contract made and that contract is protected. It’s important to have an attorney review your contract with your fertility clinic and to enter into any agreement with your spouse with the consciousness of what your choices mean in the future legally.

Leftover Embryos and Ambiguity

The San Francisco Chronicle reports that there are more than 600,000 frozen embryos in the US, and many of these are embryos left over from successful treatment. (Source: Findlaw) There has been an explosion in the use of this technology in California in particular.

Sometimes, even after a couple has children, disputes revolve around what happens to leftover embryos, as in the case of a Tacoma, Washington couple who were in conflict over whether the children should later be adopted or whether the wife would get to raise them (in this case the egg donor was also involved). Just because reproduction has been successful, it doesn’t rule out the possibility for future disputes.

What Should Be Discussed

Amongst many potential issues, here are some key points that should be on the table when working out a PreNuptial or Post-Nuptial agreement, or when carefully reviewing and understanding the terms of an agreement with an assisted reproductive technology facility:

  • What will happen to the embryos on the death of one party?
  • What will happen to the embryos upon divorce?
  • Should the embryos be destroyed or donated under certain circumstances?
  • If the embryos are donated, who or what will they be donated to?
  • If one party can no longer conceive at divorce, who gets the embryos?
  • If there are any questions that are unique to the couple that may cause problems in the future, they should be broached as early as possible.

Experts in Conflict Resolution

At Boileau Conflict Solutions, we are experts in resolving complex and delicate financial and emotional situations between couple. We believe in making good agreements, and making them as early as possible. We can help you craft your prenup or postnup. Alternatively, we can use our expertise in working in complex areas of family law to help resolve disputes that have already arisen. Please contact us today to see how we can help.

Sources for this Series:

http://blogs.findlaw.com/law_and_life/2012/01/who-wins-in-an-embryo-custody-battle.html

http://blogs.findlaw.com/law_and_life/2012/01/who-wins-in-an-embryo-custody-battle.html

http://family.findlaw.com/child-custody/who-gets-custody-of-embryos.html

http://family.findlaw.com/child-custody/who-gets-custody-of-embryos.html”>http://family.findlaw.com/child-custody/who-gets-custody-of-embryos.html

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Which Partner Gets Custody of Frozen Embryos in A Divorce?

October 18, 2016

This is part 2 of a 3 part series on assisted reproductive technology and divorce in California. Disclaimer: This article does not constitute legal advice. If you have any questions about your individual situation it is best to seek the advice of an experienced family law professional. Please click here to set up a consultation with experienced family law mediators Boileau Conflict Solutions

Dr. Mimi Lee and Stephen Findley were a Bay Area couple who decided to freeze embryos created together when they discovered Dr. Lee had cancer. When the couple decided to divorce, a dispute arose between the two over whether Lee could use the embryos to have children with a surrogate.

The couple’s dispute revolved around two perspectives: first, Lee’s right to have children and second, the rationale that Findley can’t be forced to have children. In the end, the court ruled that Lee’s right to procreate didn’t give her the right to procreate with Findley.

The couple had signed a consent agreement with the fertility clinic that the embryos would be destroyed if the couple were to divorce. Another high profile couple who signed an agreement with a clinic was Sofia Vergara and Nick Loeb. In this case it was the husband who wanted to retain the embryos. The agreement here called for the embryos not to be released unless and until both parties could agree on it. Vergara continued to object, a case wasn’t brought and the agreement stood. (Source: FindLaw)

It’s important to remember that in the majority of cases of disputes over frozen embryos, the courts have favored the objecting party. This is partly because the courts are likely to uphold the terms of the original contract with the fertility clinic, and partly because there is currently no way of absolving the other parent from parental obligations as if they were a sperm or egg donor. To avoid future complication and ambiguity, the other spouse is spared from the possibility of becoming a parent with their ex-spouse by eliminating this possibility, ie destroying the embryos the couple had created together. At Boileau Conflict Solutions we will sit down with you to review these important legal issues along with any other concerns you may have. We specialize in assisting couples who may be career-focused and working to integrate career, family and relationships into busy lives.

Fertility clinic consent forms have terms that may not suit both partners, so it’s important to be as clear about your feelings on future children as early as possible. When complicated emotional issues like this are involved, a Prenuptial agreement can help to bring clarity to the situation. It can compel couples to review the legal issues surrounding their choices and the impact of these future choices. And it may allow one of the parties to come to an early acceptance that their right to have children will likely be outweighed by their partner’s decision not to be a parent should they divorce in the future.

Clarity

If you have concerns surrounding the clarity of your conversations and agreements about assisted reproduction, Boileau Conflict Solutions can help. We have experience dealing with these issues and use the best approaches to help work through complex emotional, financial and legal concerns towards clear, mutually respectful agreements. Please contact us today to see how we can help.

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California Community Property and Frozen Embryos – What Exactly Are Future Children?

October 5, 2016

This is part 1 of a 3 part series on assisted reproductive technology and divorce in California. Disclaimer: This article does not constitute legal advice. If you have any questions about your individual situation it is best to seek the advice of an experienced family law professional. Please click here to set up a consultation with experienced family law mediators Boileau Conflict Solutions

During a divorce couples have to come to terms with the task of dividing lives that were once entangled and property that was once shared. At the beginning of this process, nobody knows what kinds of emotional and practical obstacles will arise. But one overlooked issue that can have serious consequences is assisted reproduction

Even with a growing trend of couples making use of these evolving technologies, an interesting and somewhat startling fact is that “there are no federal regulations governing the disposition of frozen embryos created through assistive technology.” (Source: NYT) California is one of the states that makes a large contribution to the US’s supply of stored embryos, with an abundance of fertility clinics, so this ambiguity may hit couples who haven’t planned what to do with frozen embryos when they come to a decision about separating. At Boileau Conflict Situations we have experience mediating issues involving reproductive technology. We can intervene at an early stage to work out agreements that lessen ambiguity, or ease disputes that can arise later.

With Roe v Wade establishing that unborn fetuses are not persons under the US Constitution, a divorcing couple might be under the impression that they are somehow property instead, and that California community property law will find a way of fairly disposing of them so that both parties are accommodated. For a divorcing couple to have to consider whether their frozen embryos are property or children is an incredibly painful assessment to have to make, but unfortunately, it is an issue that needs to be confronted. With the current ambiguity, the outcomes of any future disputes over frozen embryos are far from clear.

A recent case that brought these issues to light was the case of Dr. Mimi Lee and Stephen Findley, a couple from the San Francisco Bay Area. Dr. Lee fought for the right to use the couples’ embryos to have children with a surrogate (in her mid-forties, it was her last chance to have biological children). This high profile case was widely anticipated to be a benchmark for how future cases are treated in California. Although the ruling wasn’t strictly precedential (the lower courts ruled), the courts ruled against Dr. Lee.

Despite Roe v.Wade’s dictates, in practice the court felt compelled to treat the frozen embryos as much more than a couple’s shared property. Its decision anticipated future issues such as child support that could have forced Stephen Findley to participate in parenting. This is an important case for couples using reproductive technologies, because the court’s decision opens up a whole range of considerations that need to be openly discussed by couples opting to freeze their embryos. To be continued…

Mediate First

At Boileau Conflict Solutions we use sophisticated techniques to help you mediate your dispute. We can help to craft agreements such as Prenuptial or Post-Nuptial agreements before conflict arises, or we can apply psychological and financial know-how to work through complex disputes about reproductive technology that may be emotionally charged. Please call us today to see how we can help.

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A Short Marriage, a Long Partnership: Why Brad and Angelina Need to Divide Their Assets Carefully

September 23, 2016

The Jolie-Pitt divorce announcement has been greeted with intense speculation about what will happen to the family now that Angelina has filed for divorce requesting sole physical custody.

For once, the media has avoided too much speculation about spats over money, given that both partners are independently wealthy. Brad’s net-worth is estimated at $240M, while Angelina is worth slightly less at $160M. In addition, the couple has been married for just 2 years, and California law doesn’t mandate spousal support unless the marriage is of long duration, over ten years. Before this, support will usually last for half the duration of the marriage. Spousal support is intended to compensate for a drop in standard of living for the lower earning spouse. For Brad and Angelina, this won’t be much of an issue. In fact with spousal support taxable for the recipient, it may not even be worth it for the couple to arrange taxed support that would last just one year (half of their 2 year marriage).

This doesn’t mean their divorce won’t be financially complex, however. The picture becomes more complicated when you take into account the need to protect the financial security of a sizeable family of 6. The children will need to be protected against potential future spouses and future children’s claims. We don’t know whether Brad and Angelina signed a prenup when they married in 2014, though rumors cite a cheating clause and a trust funneled towards the kids.

Disclaimer: This article does not constitute legal advice. If you have any questions about your individual situation it is best to seek the advice of an experienced family law professional.

A prenup would be an ideal way of framing a long, shared parenting partnership like Brad and Angelina’s. The couple may be independently wealthy in dollars, but their wealth in real estate is where things might get complicated, especially because some of the homes where they have raised their family may be hard to part with. As Forbes reports, their beautiful French home Chateau Miravale, which the couple purchased for 60M in 2012, was the setting for the couples’ marriage in 2014.

Dividing up money is one thing, but tangible assets like homes have more emotion attached to them. Careful agreements that honor both partners’ feelings but make prudent decisions for the family’s future will be the best way forward.

Intelligent Solutions for Complex Divorce

Mediation is a confidential, non-adversarial process that brings complex negotiations about finances into a private space where respectful and useful agreements can be made. At Boileau Conflict solutions we have a reputation as experts in financially complex divorce.

Detailed Financial Analysis: We perform extensive analysis of assets, liquidity, cash flow, and equalization options, which includes child support and spousal support. We also offer the only mediated business valuation of any mediation firm in California.

Unique Approach Combines Mathematics and Psychology: We are developing a mathematical algorithm that uses fair division, game theory, and psychoanalysis, drilling down into both conscious and unconscious preferences and needs.

Flexibility:
We provide several minor and major solution sets for each component and the deal as a whole. This gives the parties a great deal of flexibility.

If you find yourself facing a financially complex divorce that requires an intelligent strategy and thoughtful negotiation of both parties’ needs, please contact us today to see how we can help.

Sources:http://www.ibtimes.com/brad-pitt-angelina-jolie-net-worth-who-gets-money-after-divorce-2419212

http://www.divorcenet.com/resources/divorce/paternity-issues/understanding-and-calculating-alimony-c#b

http://www.forbes.com/sites/trulia/2016/09/21/when-brad-pitt-and-angelina-jolie-divorce-who-gets-the-houses/#3c12e91b1f43

http://radaronline.com/exclusives/2014/09/angelina-jolie-brad-pitt-prenuptial-agreement-custody-will-wedding-kids-children/

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What We All Should Be Wishing for Brad and Angelina: Privacy, Healing and a Good Parenting Plan

September 21, 2016

In one of Hollywood’s saddest splits, Angelina Jolie and Brad Pitt recently announced their divorce, with Angelina citing “irreconcilable differences.”

Their marriage has been short: they wed in 2014, initially delaying marriage as an ethical protest until same-sex marriage was legalized. Angelina is known for her humanitarian work almost as much as for her career as a movie actress, and the couple are an interesting Hollywood pair in that their “power couple” status has always seemed very much secondary to their dedication to their family of six children.

Since the announcement, the media has focused on Angelina’s attorney’s statement that she was divorcing Brad for the health of the family and that she would be aiming to keep full custody of the children and granting Brad visitation rights rather than shared custody. Naturally it didn’t take long for the tabloid media to descend on this detail with rumors of Brad’s drug-use and bad parenting.

But let’s take a moment to look at Brad’s statement and the statement of Angelina’s lawyers:

Pitt told People magazine: “I am very saddened by this but what matters most now is the well-being of our kids.” “I kindly ask the press to give them the space they deserve during this challenging time.” (Source: Reuters)

Here is Angelina's attorney, Robert Offer: "This decision was made for the health of the family. She will not be commenting, and asks that the family be given its privacy at this time." (Source: Reuters)

The theme common to both these statements is “privacy and space.” No matter how hurt or blindsided Brad is feeling right now, it’s clear that he is focused on the wellbeing and stability of his family.

With visitation rather than shared custody, Brad and Angelina will need a well-structured but flexible parenting-plan that ensures the minimum disruption and access to the children’s father, to protect the best interests of the child. Assuming Brad is a competent parent, California law upholds that it’s in the interests of children not to lose one parent because of divorce.

Based on their dedication to their family thus far, let’s give Brad and Angelina the benefit of the doubt. Even if Angelina isn’t comfortable with granting Brad full access to their children, working together must surely be a priority for a couple who have put their children at the center of their lives. The good news for a couple like Brad and Angelina is that they can put their combined resources to work to craft a well-designed parenting plan, they can enlist staff so neither parents get burnt out (especially during the back-to-school period), and over time they can evolve into a new and thriving family that survives the Jolie-Pitt marriage. We can only wish them the best.

Smart Parenting Plans

At Boileau Conflict Resolution, we specialize in crafting intelligent parenting plans that take into account the myriad circumstances a divorcing couple can encounter. We have worked on complex International Parenting Plans, amongst others. We specialize in assisting professional couples with independent or shared resources who are dedicated to career and children, for whom timely and tailored conflict resolution is key. Though marriage may not always be forever, co-parenting is for life, and we believe the best and most discreet solutions can be found through mediation, a process that is timely, cost-effective and offers both partners freedom to choose their ideal future, a freedom often lost during the adversarial litigation process. Mediation proceedings further offer the protection of confidentiality to high profile families. We refer to attachment theory, developmental theory, and psychoanalysis to protect important bonding between parents and children during the process of mediating an agreement. Please contact us today to see how we can help.

Sources: http://www.eonline.com/videos/252758/inside-brad-pitt-angelina-jolie-s-400-million-divorce
http://www.reuters.com/article/us-people-jolie-pitt-idUSKCN11Q1ZK

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Rethinking Divorce as a Team Effort

September 19, 2016

There are so many aspects to divorce that it’s difficult to know where to start. Hiring a mediator or attorney is difficult enough without making the more mundane decisions about the car, the furniture, and living arrangements.

Often a divorce involves a person splitting off from a bigger family unit, with sudden responsibility for property, finances or kids. When we think of divorce services, we think of agreements or court decisions, but we don’t often consider the practical and emotional legwork involved in sticking to those agreements or making changes happen. Another thing to consider is the timing and coordination of these efforts, and how much this matters when considering tax implications, school schedules, college applications, emotional and physical health, not to mention routine DIY. That’s why it may be better to think of the divorce process as a team effort involving attorneys and/or mediators, therapists, and people to help with practical maintenance, from DIY to shopping. Beyond your attorney or mediator, the following are some players you might consider on your divorce team:

• Therapist – It’s important to make sure you have an outlet for your feelings besides your friends, relatives, or people who may be too close to the divorce.

• Tax Advisor/Financial Advisor – A tax or financial advisor will look out for your interests and also help to educate you if you haven’t been responsible for your finances previously.

• Design Consultant – A design consultant, architect or builder may be your friend when you’re considering how to make the best start in a new space, or how to alter an existing space.

• Handyman/Mechanic, Mr/MS Fixit – Someone to advise on the house, car and garden, and to take care of small jobs may be ideal when your mind is occupied with your divorce, or when your spouse was the one responsible for these tasks.

At Boileau Conflict Solutions, we start with a team approach. A lead mediator, an assisting mediator, sometimes a consulting mediator, often a psychologist and in some cases an outside attorney are the building blocks of our team. We can also connect you with outside services to help you build your new life after divorce. We work with design partners 3 Riverz Creative, to help you with decisions in moving into and designing a new space. If your marriage is in trouble and you don’t want to face into the heartache of divorce, we can also provide marital mediation sessions. Please contact us today to see how we can help.

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A Tale of Two Lives: Divorced and Living Together in the Bay Area

September 8, 2016

Most of us are familiar with the classic closing scenes from a divorce: boxes packed, car backing slowly out of the driveway, children sad but learning to adjust to two homes and a new life.

If you’re living and renting in the Bay Area you may never even get to experience these divorce scenes. High rents in places like San Jose mean that couples who would rather live apart are compelled to share the same space, at least until a satisfactory arrangement has been found. If there’s some good news, it’s that while living together you can now work out all other aspects of your separation. In a significant move for couples renting in the Bay area, California law now allows you to officially separate while living under the same roof.

Disclaimer: This article does not constitute legal advice. If you have any questions about your individual situation it is best to seek the advice of an experienced family law professional.

A previous decision had established a one size fits all rule that meant the date of separation had to be correlated with the date of moving out. This was a rule that had serious consequences when it came to issues such as determining spousal support (marriage over ten years is considered longterm marriage). Thankfully “Davis” has been overturned and the changes will take effect from January 2017. Instead of just living arrangements, judges will be able to consider other factors in a separation, like establishing separate bank accounts and taking separate vacations.

With high rents and cost of living, it’s common in the Bay Area for divorced couples to stay living together, “nesting” with their kids, or in the same apartment as roommates. This may be the most practical arrangement financially, but it’s not easy. Establishing boundaries is a necessity, both for emotional well-being, and to establish the grounds for separation. Working with a mediator to set up practical and emotional boundaries may be crucial for couples considering this arrangement. Everything from doing separate laundry to learning to treat your spouse as a roommate or business partner may have to be finely tuned. If these arrangements aren’t agreed on by both parties, misunderstandings and resentments can add tension to the situation.

At Boileau Conflict Solutions we understand the unique concerns of divorcing couples living in the Bay Area. Our mediation solutions specifically focus on how the phenomenology of the living environment affects our everyday interactions. We work with a design firm, 3 Riverz Creative, that supports divorcing couples in redesigning their living spaces after divorce. Please contact us today to see how we can help.

Disclaimer: This article does not constitute legal advice. If you have any questions about your individual situation it is best to seek the advice of an experienced family law professional.