California Family Law Blog

On November 26, 2007, Britney Spears was granted visitation with her two sons with Kevin Federline on Christmas morning. Currently Federline has full custody of both Sean and Jayden and Spears has only two weekly supervised visits, one of which is overnight. At the conclusion of the closed-door hearing Los Angeles Superior Court spokesperson Allan Parachini confirmed: “There was extensive discussion and agreement on the visitation over the holiday period. It’s different from the existing [custody] schedule.”

It is unclear whether the parties were able to come to an agreement or if the Judge made the order himself. However Federline’s attorney, Mark Vincent Kaplan did state: “Kevin thinks it’s absolutely appropriate that they both get to see the kids over the holidays.”

Apparently Spears isn’t the only one who should be worried about custody though as reports claim both Spears and Federline are under investigation by DCFS regarding their parenting of the two toddlers. Spears was previously investigated twice this year by DCFS. An inside source tried to play down the report by stating that the allegations were not particularly alarming and that the department has a legal obligation to investigate all such claims.

Unfortunately child custody disputes are not unique to celebrities. Our team of San Jose Family Law Attorneys can assist you with all aspects of child custody and visitation. We also have attorneys in Alameda and Monterey Counties who can assist with all aspects of your family law cases.

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In the eyes of the law, it takes two to agree to a marriage but only one to force a divorce. Or does it?

Under the California Family Code, the spouse asking for the divorce need only cite “irreconcilable differences” as the reason for divorce for it to be granted by the court. However, the other spouse (or the same spouse) can tell the court that there is a “reasonable possibility of reconciliation” and the court may delay granting a divorce for 30 days.

California gives parties that one last opportunity to save their marriage because the public policy is that marriages are good and divorces are bad. How is this helpful to a marriage on the rocks? Prior to a final judgment for divorce, there are many issues that remain “restrained.” One example is that neither spouse can get remarried. Another is that health insurance cannot be cancelled. So that one extra month can be an issue that ruins a future wedding date or covers that last checkup planned. Or that extra month will give the spouses a last chance to work things out.

However, the problem is proving what is “reasonable.” The courts do not have a bright line test for such a showing. Clearly if the spouses move back in together and hold themselves out as married, then a reasonable possibility exists. Then again, both spouses scheduled to marry new people is proof that no possibility exists. The problem is the cases in between.

The free advice of the day? If you have any hope of reconciliation, start dating your spouse again. Take pictures, keep receipts, and tell everybody how you are back in love with your spouse. It may not stop your divorce but it does seem like a reasonable possibility that you will reconcile at some point.

If you have any questions on divorce or reconciliation, feel free to contact Sagaria Law to schedule a consultation with our attorneys who focus in family law.

The general rule when it comes to dividing marital property at dissolution, also referred to as community property, is equal division. For example, if a married couple purchases a home together, each party is entitled to a one-half interest in the equity of that home they purchased together. However, these days it is not uncommon for one spouse to enter a marriage having already purchased a house. Imagine a situation in which one spouse (Spouse A) purchases a house before marriage. Spouse A makes the down payment, and starts paying the mortgage. Spouse A then marries Spouse B; they continue to make mortgage payments on the house. Spouse A and B then decide to get divorce. The question is how much of the equity in the house is each spouse entitled to? Under the law, when community funds are used for mortgage payments on property purchased by one of the spouses before marriage, the community acquires a pro-tanto interest in the ratio that the payments on the purchase price made with community funds bear to the total payments on the purchase price, and any appreciation must be apportioned accordingly. (Marriage of Moore, 28 Cal. 3d. 366 (1980)). The approach, further clarified in the Marriage of Marsden 130 Cal. App. 3d 426 (1982), indicates that the community interest is determined by the ratio that the payments on the purchase price made with community funds bear to the total payments on the purchase price. Similarly, the separate interest is determined by the ratio that the payments on the purchase price mad with separate funds bear to the total payments on the purchase price. Going back to our interest above, Spouse A is entitled to one half of the community interest and the separate interest. Spouse B, is entitled to one half of the community interest.

As a practical matter, the following are the “key figures” that each spouse needs to determine their respective interest: (1) purchase price, (2) amount of down payment, (3) amount of payments on loan principal made with separate funds, (4) amount of payments on loan principal made with community funds, (5) fair market value of the house at date of marriage, and (6) the fair market value at time of division. While an appraiser can determine the value of the house at various points and time, it is critical that spouses keep accurate records of mortgage payments in order to accurately assess their separate and community interest.

If you or someone you know is going through a divorce, our team of attorneys at Sagaria Law can help assess your interest in marital property under varying circumstances. Moreover, our office deals with all aspects of family law including divorce, property settlement, child custody, child and spousal support. We represent clients throughout the bay area and have offices in Santa Clara, Alameda, and Monterey County. Contact our office to schedule a free consultation with one of our attorneys today.

When two people get divorced, the best advice they could ever receive is “move on.” The marriage is over and the parties need to move on and rebuild their lives. However, the California Family Code does not always give people the option to move on. The law allows for a spouse to ask for spousal support (also called alimony) from the other spouse who makes significantly more. This spousal support could go on for years. It is really difficult to move on in your life when you are paying your ex-spouse money every month or if you are trying to collect from your ex-spouse every month. It is a little reminder of how you two are still dependent on each other.

However, alternatives do exist. One possible alternative is to “buy out” your spouse at the time of marriage. At the end of a divorce, the court will probably set an amount and duration for alimony. For example, the court may order alimony of $500.00 per month for 3 years. This would be the equivalent of $18,000.00. Instead, the paying spouse could offer a one time buy out to cover the $18,000.00 or a reduced amount and terminate spousal support at the time of payment. While this may not be the best financial choice, it is a really good life choice because then the parties can move on without a three year commitment.

Even more important is that the lump sum buy out need not be in cash. It could be some property equivalent to the cash such as a car, stock, retirement account, or the furniture.

A lump sum buy out does not fit for every situation or every couple and parties should consider consulting an attorney before making such an arrangement. There may be some tax consequences involved and cannot be done for child support. If you are considering hiring an attorney, please contact Sagaria Law and schedule a free consultation with our family law attorneys.

Title companies in California have helped recover hundreds of millions of dollars in delinquent child support payments. According to the Department of Child Support Services (DCSS), which is the primary source for the collection of child support liens filed against real property, title companies helped recover more than $49 million dollars in delinquent child support payments during the 2006-2007 fiscal year.

Earlier this year Governor Schwarzenegger signed into law Senate Bill 892 which help DCSS and local child support agencies automate the filing of real property liens against delinquent child support obligors. It is important to remember to pay child support obligations on time or they can turn into child support arrears which are then grounds for a child support real property lien. Such a lien becomes part of your property’s chain of title and could impact any requests to refinance the property and will be paid off when the property is sold. This is a very useful tool if you are owed back child support and have not been able to collect.

Our team of San Jose Family Law Attorneys can assist you with enforcement of child support or with negotiations for payment of child support arrears. We also have attorneys in Alameda and Monterey Counties who can assist with all aspects of your family law cases.

Terry “Hulk” Hogan’s wife, Terry Bollea, recently filed for divorce, calling the 24-year marriage “irretrievably broken.” Hogan, a wrestler and reality television star, appeared alongside his family in four seasons of the reality show, “Hogan knows best.” Reportedly, Bollea is seeking half of the parties’ $9.5 million in assets, including a share of the value of the Bel Air mansion the parties once shared. Newspaper reports indicate that in her divorce petition filed in Florida, Bollea has requested to share custody of the parties’ 17-year old son, Nick, whose primary residence she would like to remain with her with Hogan having “liberal” visitation rights. The parties’ eldest child, 19-year old daughter, Brooke, is not legally subject to any child support requirements.

It appears that Bollea is also seeking to split the couples’ marital property, which includes the 17-000 square foot Bel Air mansion, real property in Clearwater Beach, Florida, and a condominium under construction in Las Vegas. Additionally, Bollea is requesting spousal support from her estranged husband. In a statement to a reporter last week, Hogan stated that the divorce petition caught him completely off guard. Reports have also surfaced that Hogan is “devastated” by his wife’s decision to file for divorce and friends of the couple are shocked by Bollea’s decision to do so.

If you or someone you know is facing a similar situation or simply have questions about the divorce process, child custody and visitation or any other family law issue, such as spousal support, child support and issues related to division of marital property, please contact Sagaria Law. Our team of family law attorneys can answer any family law questions you may have and assist you through the process. We represent clients from Santa Clara County, Alameda County, Monterey County, San Mateo County, and surrounding areas. Contact our office today to schedule your free consultation to speak with one of our attorneys.

Last Friday, November 23, 2007, representatives from 68 countries gathered in the Hague to finalize the text of a new international convention intended to make it easier for parents to collect child support from parents living in other countries. The new convention calls for countries to exchange information and employ measures such as wage assignments, withholding pension payments or tax refunds and making deductions from welfare payments. Countries may also use measures such as revoking or denying drivers licenses. Among the nations signing the text were the United States, Canada, Australia, and Brazil along with several major European and Asian countries.

California law already allows the use of similar measures to collect child support from in-state and out of state parents. However, it can be very difficult to collect child support when a parent has left the United States. The new convention, which organizers hope will come into force within three years, will hopefully make it easier for parents, with the help of child support authorities, to collect child support.

Whether you need a child support order, or maybe you are having trouble collecting on an existing order, our team of experienced and talented family law attorneys can assist you. We have offices throughout the Bay Area, including San Jose, Fremont and Monterey, and offer a free consultation to answer your questions.

As a general rule and unless otherwise designated, spousal support (also known as alimony) is taxable to the recipient and deductible by the payor. On the contrary, child support is not taxable to anyone and is not deductible. Unlike other personal deductions, the deduction for spousal support is are an “adjustment to income” for both California and federal income tax purposes. This means the payments reduce gross income in calculating adjusted gross income and may generally be deducted even though the taxpayer does not itemize deductions. Since the party who pays spousal support is usually in a much higher tax bracket than the recipient, such payments may generate significant tax savings.

The following are important factors to keep in mind in regards to the deductibility of spousal support payments: (1) The payments must be in cash and must be received by or on behalf of the supported spouse. (2) The cash payment must be received under a divorce or separation instrument. (3) All of part of spousal support payments may be nontaxable or nondeductible simply by designating them as such in the divorce or separation instrument. (4) The payor’s obligation to pay spousal support must cease upon the death of the supported spouse. (5) Spousal support payments are not deductible if the payor and payee file a joint tax return together for the taxable year in question. (6) The payee must provide the payor with his/her social security number and the payor must disclose this information on his/her tax return. (7) Upon a final judgment of divorce or separation, payments are not deductible if the separated/divorced spouses are living in the same dwelling.

If you have any additional questions about spousal support or any other family law issue, please contact Sagaria Law. Our team of family law attorneys can answer any family law questions you may have and assist you through the process. We represent clients from Santa Clara County, Alameda County, Monterey County, San Mateo County, and surrounding areas. Contact our office today to schedule your free consultation to speak with one of our attorneys.

Society, religion, and even Republicans tell everyone that marriage is a good thing and we should all strive to work things outs in hopes of saving a marriage. However, the California Family Code is not so supportive of the couple who tried to work things out and but still ends up in divorce. The major bread winner of the marriage may have to pay the ex-spouse spousal support (sometimes called alimony) after a divorce. While the amount and length of spousal support can be negotiated, the California Family Code gives a guideline of half the length of marriage.

Therefore, if a marriage on the rocks managed to survive another two years before it ended, then the spouse paying alimony may have to shell out an additional year of spousal support for their efforts. Not a great motivation to make the marriage work.

It gets worse. Once a marriage is over ten years, the marriage is considered long term and there is a presumption that spousal support should go on indefinitely.

So if you are in your ninth year of marriage and things are just not working out, it might be financially prudent to file for divorce before that tenth anniversary, just in case. You can always reconcile later and get remarried. A second wedding sure beats $25,000.00 in spousal support.

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San Jose Family Law Attorney Comments on Boris Becker’s Closet Baby Battle

Tennis great Boris Becker is reportedly pursuing legal action to gain custody of his young daughter. The child was a result of a brief liason between Becker and the child’s mother in a restaurant closet in 1999. Becker confirmed he was the father in 2001 after a contested paternity battle.

The child, who is now seven, is a regular in German magazines, and was most recently in the news following a cosmetic company’s illegal use of her image to promote their products. Becker was reportedly furious with the child’s mother, and this has provided the impetus for his most recent decision. Becker also has two sons by another woman, whom he divorced in 2002.

Paternity and custody are just two of the many issues that our Santa Clara County family law attorneypaternitys can assist you with. Whether you are getting divorced, or need to establish paternity , our experienced attorneys can help you navigate the legal system, providing superior representation for all Bay Area residents. Our firm has offices in Santa Clara, Alameda and Monterey counties, and we handle cases all over the area.

Previously when filing for divorce in Santa Clara County the only residency requirements that were relevant to a divorce were those involving jurisdiction. A party must have been a resident of California for six months and a resident of Santa Clara County for three months before filing a petition for divorce. If neither spouse had met that requirement the only option was to file for a legal separation which could then be amended to a divorce after the residency requirements were met. However effective November 1, 2007, there is a new jurisdictional issue in Santa Clara County Family Law Division of the Superior Court which now requires that upon filing for divorce, or initiating a paternity action, that a Declaration of Residence form be completed.

The Declaration of Residence form divides Santa Clara County into three separate locations and the Petitioner must state in which location they live. Central County covers San Jose, Milpitas, Los Gatos, and Campbell. North County covers Sunnyvale, Saratoga, Cupertino, Los Altos, Palo Alto, Alviso, Santa Clara, and Mountain View. South County covers Morgan Hill, Gilroy, San Martin, and Coyote. This form is now required because currently there is only one Family Law courthouse which is located in San Jose, but they will be opening additional branches in Sunnyvale and San Martin. Eventually this form will be used to send Central County cases to the current division in San Jose; the North County cases will be heard in Sunnyvale; and the South County cases will be heard in San Martin.

One of the questions that people often ask is whether or not there is a benefit to file for a divorce first and with this new system the answer is definitely yes. If you have separated from your spouse and live in different areas of the county you may not want the inconvenience of travelling from Gilroy to Sunnyvale for court hearings. Therefore it would be beneficial to file for divorce first to have a location closer to home. Our team of San Jose divorce attorneys are very experienced in addressing all of the issues that come up during a divorce, such as community property division, spousal and child support, and custody and visitation. We also have offices in Fremont and Monterey for any issues that arise during a divorce in Alameda County or Monterey County.

A recent Pennsylvania court decision declared a marriage invalid because the couple had been married by an internet-ordained minister. Heyer v. Hollerbush No. 2007 SU 2132 Y08 (York Col, Pa., Ct. C.P) held that the officiant who conducted the marriage ceremony was unauthorized under state law to perform a wedding. San Jose Divorce attorneys believe this case sets a dangerous precedent in which unhappy spouses who want out of a marriage and do not want to pay spousal support or engage in property division could simply argue that since the wedding was not valid, neither is the marriage.

Currently, internet-ordained ministers are legal in all 50 states, except for certain counties in Virginia, Pennsylvania and North Carolina, where the practice has been legally challenged. Seattle-based Universal Life Church, the largest provider of online ordination, claims to have ordained more than 20 million ministers through the mail or online since 1959. Prominent divorce attorney, Raoul Felder, in New York, who handled New York Mayor Rudolph Giuliani’s second divorce stated that he would not recommend getting married through the use of an intenet-ordained minister, but rather advised the safest route was to go through a regular county clerk. Regardless of this court ruling, some divorce attorneys continue to believe that courts remain likely to rule in favor of the spouse being left, not the one claiming an invalid marriage, as the law favors marriage. For example, where parties had a ceremony, marriage license, and lived together, it is believed that courts will protect the spouse who would otherwise be injured.

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The Boston Globe reports that the Boston-based legal advocacy group, Gay & Lesbian Advocates & Defenders (GLAD) that helped legalize same sex marriage in Massachusetts is gearing up for a fight to expand rights to same-sex married couples. A spokeswoman for the group that won the landmark 2003 Massachusetts state Supreme Judicial Court case legalizing gay marriage, stated that GLAD is taking aim at the federal Defense of Marriage Act of 1996 (DOMA). GLAD spokeswoman states that the group is targeting the provision of DOMA that denies federal recognition of wedded same-sex couples and is not trying to expand gay marriage beyond the traditionally liberal New England. GLAD has not stated whether they will file a lawsuit or urge Congress to repeal DOMA. However, for more than a year, GLAD has been surveying same-sex couples who have wed in Massachusetts to see whether they want federal benefits currently provided only to married heterosexual couples, including Social Security, payments to families of public safety officers killed in the line of duty, burial in Arlington cemetery, and family leave under federal law.

The Defense of Marriage Act, states that no state need recognize gay marriage from another state and denies hundreds of federal benefits to same-sex spouses. Therefore, California need not, and does not, recognize the marriage of same-sex couples. Although same-sex couples in California can register as domestic partners and receive state-level benefits, California does not yet recognize a marital union in the legal sense between same-sex couples states San Jose family law attorneys. The California Supreme Court is considering challenges to the constitutionality of law prohibiting same-sex marriage in the state, however, as of September 2007, the Court has not yet calendared the matter for oral argument.

After 34 years of marriage Carlos Santana’s wife Deborah filed for divorce on October 19, 2007 in Marin County Superior Court of California. Ms. Santana citied irreconcilable differences in her Petition for Dissolution of Marriage. The parties have three children together, ages 23, 22, and 17. Carlos Santana’s public relations representative stated that the pending divorce was “a private matter and there is no comment.”

While divorce is very common among celebrities the Santanas appeared to have an ideal marriage until Deborah Santana released her candid 2005 memoir, “Space Between the Stars.” In her book she revealed the infidelities of her rock star husband. After her book was released Carlos Santana stated “I’m a human being like everyone else and I have a lot of humility for my mistakes.”

As Deborah Santana filed for divorce in California their divorce will be subject to California’s community property laws In addition in California there are no penalties attached to Carlos Santana’s admission of infidelity so their property must be equally divided. As the parties were married for over ten years it is considered a long-term marriage so the duration of any spousal support owed to Ms. Santana could be quite lengthy. There will also be issues of child custody, visitation and child support relating to their one child who is still a minor. These issues are just as prevalent in divorces between non-celebrities in the San Francisco Bay Area. Our team of San Jose Divorce Lawyers work closely with our clients to resolve all matters of property disputes, spousal and child support issues, as well as child custody and visitation matters. We also have offices in Monterey and Fremont.

Once upon a time, in states other that California, people could live together for a certain number of years as husband and wife and be considered married under a theory called “Common Law Marriage.” Under this theory, the courts would treat the two people as officially married and be allowed to officially divorce, even though they may have never said “I Do” or signed a marriage certificate. This was an important finding because, in a divorce, alimony is always an issue to be resolved and community property is divided 50/50.

However, California does not allow for common law marriages. A couple who lives together for 10 years before breaking up is not automatically entitled to the divorce process. (Some exceptions may apply) Instead, the couples fall under the civil court system which considers all property and support issues a matter of contract law, which is based on promises to each other that may or may not be provable in court. This is a more difficult process because who can remember the wordy promises made under a pale blue moon after a romantic dinner and bottle of chardonnay? Certainly not the person who promised to give his lover half of the house.

Therefore, a word of advice to the people who eschew the system and do not want a marriage contract, get everything else in writing

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