California Family Law Blog

San Jose Divorce Attorney Discusses Fiduciary Duty Between Spouses

In California, spouses owe each other a fiduciary duty, which is defined in California Family Code §§ 721 and 1100. In a nutshell, California Family Code requires each spouse to act in the highest good faith and not take unfair advantage of the other when doing things involving property division that involve the other.

This fiduciary duty includes, but is not limited to, the duty to disclose “all material facts and information regarding the existence, characterization and valuation of all assets in which the community has or may have an interest and debts for which the community is or may be liable,” as well as all material facts and information relating to the income and expenses of each party. Moreover, each spouse must “provide equal access to all information, records, and books that pertain to the value and character of those assets and debts, upon request.”

Spouses undergoing a divorce are under an obligation to disclose all material facts and information regarding the existence, characterization and valuation of assets and debts, and about income and expenses. The purpose of this section of the Family code is to ensure spouses do not conceal assets or intentionally mislead the other spouse about the extent or nature of assets or income. The code requires the disclosure of all material facts and information regardless of whether the asset is community property or separate property in nature.

The effects of a violation of the fiduciary duty provisions of the Family Code, intentional or unintentional, are substantial. The violation of any provision of California Family Code § 2102 results in mandatory sanctions. The court is required to order the party violating this code section to pay the reasonable attorney and expert fees incurred by the other party as a result of the violation, and to impose a form of punitive damages in the nature of “money sanction” unless there was “substantial justification” or “other circumstances” which makes the sanction unjust.

Whether you are in a marriage with millions of dollars in assets or just a few thousand, you are bound by these provisions in the Family Code. We strongly recommend all parties seeking a divorce consult with one of our attorneys. We offer a free thirty minute consultation, either in person or over the phone, where we can assess the nature and complexity of your case. We have offices in three Bay Area locations (Fremont, San Jose and Monterey), and handle cases throughout the region. Our experienced attorneys specialize in family law and can guide you through the somewhat complex and difficult process that is getting a dissolution. Call our office today to schedule your free consultation.

San Jose Family Attorney Discusses Mediation

In California parents are required to attend child custody and visitation mediation if they cannot agree on a timeshare schedule for their children after they separate. It is important to know the procedures for mediation in the county where you case is being litigated. In some counties parents can attend mediation with their attorneys while in other counties attorneys are not allowed. It is especially crucial to know the procedures for mediation when your attorney cannot attend with you. Some counties are recommending counties while others are not.

In the recommending counties if the parents cannot agree on a visitation schedule then the mediator will make a recommendation to the Judge. The parties will first be assisted by the mediator to see if an agreement can be reached but if that fails then the mediator will make a recommendation. This is important to remember because the parent will be judged during the process. If one parent is uncooperative or does not come across well the mediator will be considering that when making the recommendation.

In the non-recommending counties mediation is confidential. This means the mediator will only try to assist the parents in making an agreement. If no agreement is reached the parents will not be judged by the mediator and no information from mediation is conveyed to the Judge. The parents in this scenario only have to be concerned about what they want and not how they are coming across to the mediator. However, the mediator can put pressure on parents to come to an agreement that they might not be comfortable with. Therefore it is important not to agree to something you cannot live with because if you agree the mediator can write it up as an order of the court.

Issue of child custody and visitation are complicated and so is the mediation process which is mandatory if parents cannot agree. Our team of family law attorneys is very experienced in these issues and others such as spousal support and child support. We have offices in Monterey, San Jose, and Fremont where our attorneys would be happy to meet with you for a free consultation regarding your case.

Fremont Divorce Attorney Comments on Default Dissolution

Many people are familiar with the following situation: couple breaks up, decides to get divorced. If you are considering divorce please contact one of our San Jose Divorce Lawyers. One party files the petition for dissolution and, after being properly served, the other party does not file a response. This scenario plays out usually in one of two ways: the non-responding party cannot be found or does not care, or the non-responding party does not want to participate but the parties already have an agreement.

The issue for the petitioner becomes how to get a divorce without a proper response from the other party. In California, the answer is to proceed by default. After the petition is filed and served, there is a 30 day period for the respondent to file his or her response. If that is not done, then the petitioner may file a request to enter a default judgment against the respondent. Once the default has been entered, the petitioner can submit a proposed judgment to the court. Some counties require this be done in person at a hearing, whereas others do not.

Obtaining a default judgment against the respondent can be quick and easy, or it may be complicated. Sometimes the parties may have a written agreement they want the court to enter as a judgment. Courts often have particular rules about accepting these types of agreements, so it pays to do some research ahead of time. Default judgments can be entered on all the issues that may arise in a marital dissolution proceeding, including property division, child custody and visitation, as well as child and spousal support.

Default judgments are also available to petitioners in nullity and parentage matters. Anybody seeking a default should know that courts prefer for cases to be decided on the substantive issues, rather than by default, so the defaulted party does have the option of seeking to set aside any judgment obtained. Therefore, it is advisable that you proceed by default after you have reviewed all your choices.

Regardless of circumstances, it is wise to seek the advice of experienced attorneys like ours if you are trying to get a default entered, or you think your divorce may proceed by default. Our family law attorneys have successfully obtained default judgments in cases in Alameda, Santa Clara and other counties around the San Francisco Bay Area. We have offices in San Jose, Fremont and Monterey, and we offer a free initial thirty minute consultation, either in person or by phone. Call our office today to schedule your appointment.

San Jose Divorce Attorney Comments on Same Sex Divorce

As states begin to allow same sex couples to marry or register as domestic partners, they must simultaneously begin to address what happens when these couples split up. If a couple is divorcing or terminating a domestic partnership in the same state where they married, then the process is somewhat simpler. However, for couples who married in a different state from where they now live, there are often times no good choices.

One of the biggest challenges facing same sex couples who are splitting up is taxes. Because federal law does not recognize marriage between individuals of the same sex, spousal support or alimony payments are not deductible by the payor. Divison of retirement savings and pension plans are usually fairly straightforward in the context of a heterosexual divorce, but when a same sex couple splits up, these accounts must often be cashed out and heavily taxed.

The other significant problem faced by same sex couples is custody and visitation of minor children. Because both parents cannot be the biological parent, one parent often has no rights under the law. And while a child born during a heterosexual marriage is presumed to be the child of the marriage, in California, and elsewhere, that is not necessarily so in a same sex relationship. Fortunately, California has taken steps to ensure that provisions of the Uniform Parentage Act apply to same sex and opposite sex couples alike.

If you are seeking to terminate your registered domestic partnership in California, attorneys in our office suggest you seek the advice of counsel before proceeding. Our experienced family law attorneys can assist you with custody, visitation, support and property division as part of a dissolution of domestic partnership. We offer free consultations by phone and in person

San Jose Family Law Attorney Discusses Epstein Credits

Given that it takes a minimum of six months and one day to obtain a divorce in California, it is common for one spouse to continue paying community debts while the divorce is pending. When a party uses his or her separate property for community purposes after separation, that party, as a general matter is entitled to reimbursement. These reimbursements are commonly known as Epstein credits, so named after the Marriage of Epstein (1979) 24 Cal. 3d. 76, 84. Circumstances under which reimbursement is appropriate is the subject of case law. The Court has found, for example, that if one party used their separate property funds to make mortgage payments on a community residence, the paying party would be entitled to reimbursement. The Court has also found, for example, that the value of a spouse’s post separation services necessary to complete performance owed by the community under a contract made during marriage is subject to reimbursement. Using the authority of Epstein, and in appropriate circumstances, the Court has also ordered reimbursement to the community when one party unilaterally uses community property to pay for his or her separate obligations, after separation.

It is important to note that reimbursements are discretionary and the Epstein Court did specifically indicate that it would be unreasonable to expect reimbursement under certain circumstances such as: (1) when there is an agreement between the parties that payment would not be reimbursed, (2) when the paying party truly intended the payment to constitute a gift to the community, (3) when the payment was made on a debt for the acquisition or preservation of an asset the paying party was using, and the amount paid was not substantially in excess of the value of the use, (4) or when the payment constituted a discharge of the paying party’s spousal support or child support duty.

The team of attorneys at Sagaria Law, P.C. deals with all aspects of family law and can assist you through any stage of your divorce, custody, or support litigation. We serve clients through the bay area and have offices Santa Clara, Alameda, and Monterey Counties. Contact our office today to set up a free consultation with one of our attorneys.

San Jose Family Law Attorney Discusses Division of Stock Options in Divorce

Generally, community property, or property that is not specified by statute to be separate property, will be divided equally between the parties in a dissolution action in California. Certain property, however, have specific rules for how the property is characterized and divided in a divorce; among them are stock options. With the big “internet boom” in Silicon Valley, and the proliferation of companies issuing stock options to their employees, more and more couples are presented with the questions of how to divide this asset in a divorce.

When stock options are granted to an employee before the date of separation but do not become exercisable until after separation, the Court has found that it has broad discretion in allocating the community and separate property interest. Stock options are generally considered community property, and therefore subject to division, to the extent that work done to earn them is performed between the date of marriage and the date of separation. Thus, in order to figure out if the option is subject to division, the period of employment to which the option may properly be allocated needs to be ascertained. According to case law, the circumstances of the grant must be discovered in order to allocate the option to a period of employment.

When stock options are granted to an employee after separation, at least one Court has found that those options were entirely the separate property of the employee spouse and not subject to division because the employee had no expectation of the grant, and could profit only if the stock value rose after the date of the grant.

If you or someone you know is going through a divorce, the team of family law attorneys at Sagaria Law, may be able to assist you with your case. We can answer any questions you may have regarding division and characterization of property and will assist you through the process. We also handle custody, support, and other family law matters; and work with client from Santa Clara County, Alameda County, Monterey County, San Mateo County, and surrounding areas. Contact our office today to schedule a consultation with one of our attorneys.

San Jose Family Law Attorney Comments on the Current Housing Market and Divorce

All across the nation and particularly throughout the Bay Area, the housing market has seen a slump in sales and an increase in foreclosures. Although a decline in real estate sales creates a difficult situation for people would-be sellers, throwing a divorce into the mix makes a difficult situation, even more complicated. News sources report that support groups for women going through divorce are finding that more and more real estate woes are creeping into the discussions.

Take for example, a couple who agrees to split the equity in their family residence as part of their divorce settlement. The longer their family residence stays on the market, a divorcing couple does not have the ability to purchase a new home. In a place like the Bay Area where rent is increasing and cost of living is high, couples may be forced in continue to live in the same house, or one spouse may be stuck in a house, with an overbearing mortgage. The main problem with both of these arrangements is it may make it difficult for the couple to leave the divorce behind and move forward with their lives. Perhaps one option for some divorcing couples may be for one spouse to refinance the mortgage on the property, and then buy out the other spouse’s equity in the house.

If you or someone you know is going through a divorce, the team of family law attorneys at Sagaria Law, may be able to assist you with settlement negotiations on property issues and any other aspect of your case. We regularly handle all aspects of family law and work with client from Santa Clara County, Alameda County, Monterey County, San Mateo County, and surrounding areas. Contact our office today to schedule a consultation with one of our attorneys.

San Jose Family Attorney Discuses Visitation Issues after Separation

If you have recently separated from your spouse, or if you are considering it, one of the issues that will be of concern to you is how much you will be seeing your children. First, you should seek the cousnel of a San Jose Divorce Attorney. It is important to remember that until either party goes to court for custody and visitation orders there will be no enforceable orders regarding these issues. That means you cannot call the police to enforce any verbal agreements with the other parent. If the other parent is denying you visitation and contact with the children you should file a motion with the court as soon as possible to request access to your children. The longer you go without visiting with your children the more difficult it will be to be granted extensive visitation.

It is also important to consider how much visitation you want with the children and also how much visitation you want the other parent to have. If it becomes necessary to go to court to decide custody and visitation issues the court will generally grant orders based on the status quo. This means if you see the kids every other weekend then the court may only grant you visitation every other weekend. Therefore it is important to maintain as much contact with your children after separation if you would like to be the parent with primary custody or if you would like to have an equal parenting arrangement. If you have concerns about the other parent’s judgment and/or their parenting skills then you should not agree to them having extensive time with that parent or your concerns will not look credible in court.

If your case does require going to court because you and the other parent cannot agree then it is especially important to keep a log of visitation. That should include who has the children when, if they are returned late, and any other concerns that are noticed such as kids not being fed or bathed.

Our team of Monterey Family Law Attorneys can assist you with all aspects of child custody and visitation whether it is part of a divorce action or a paternity matter. We also have attorneys in Alameda and San Jose Counties who can assist with all aspects of your family law cases.

San Jose Divorce Attorney Discusses Real Property Issues

If you are thinking about a divorce or are already going through divorce proceedings then the current housing market issue is of concern to you if you own real property. It is imperitive that you seek the aid of a San Jose Family Law Attorney. It can be very difficult when facing divorce proceedings to consider how to dispose of assets. Many people do not even seriously consider what to do with their community property family residence until much further along in their divorce proceedings. Unfortunately in the current housing market this is an issue that should be considered and when possible discussed with your spouse. If your home is in a price range that is subject to the lowering of the housing market then time is of the essence. The longer you wait to list your home for sale the more its value could fall. There is also the issue of how long it will take to sell. Once you have completed your divorce you will most likely prefer not to be tied to your ex-spouse by a house that has not sold. Therefore the sooner this issue is decided the sooner you can take action.

Selling your home is not the only option available. You may consider whether or not it makes sense to buy out your spouse’s interest in the residence or even defer a sale of the residence. A buy out of your spouse’s interest is a decision that requires a careful look at your overall finances with your spouse. There may be other assets that instead of splitting equally could be used to off-set your spouse’s interest in the residence you wish to buy-out. Additionally if it is necessary to refinance the property to accomplish the buy out then you must consider whether you can afford that monthly payment without your spouse’s financial assistance. A deferred sale of the residence is another option but requires a consideration of a number of factors including tax implications.

At Sagaria Law our team of attorneys is experienced in all areas of community property and real property implications. We have offices located in Santa Clara County, Alameda County and Monterey County where we would be happy to meet with you for a free consultation.

San Jose Family Attorney

One of the jurisdictional tests under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in order for a California court to hear and make an initial child custody determination is the “significant connection” and “substantial evidence” test. A California court can exercise custody jurisdiction if all of the following are true: (1) No other stated has home state jurisdiction or the home state has declined to exercise its jurisdiction on the ground that California is the more appropriate forum; (2) The child and the child’s parents (or the child and at least one parent or person acting as a parent) has a significant connection with California other than mere physical presence; and (3) Substantial evidence is available in California concerning the child’s care, protection, training and personal relationships.

“Significant connection” jurisdiction is determined by looking at the evidence before the court at the time the jurisdictional determination is made and not by facts or events occurring before or at the time the action is commenced. In order to meet the jurisdictional requirement, there must be substantial forum state contacts between the child, parents and the forum state. The court construes the test narrowly and will balance whether the contacts with California are indeed significant compared against the contacts with the other forum.

If you or someone you know has questions about child custody and visitation or other aspects of family such as the divorce process or child and spousal support, please contact Sagaria Law. Our team of family law attorneys can answer any such 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.

San Jose Family Attorney Discusses Hilary Clinton’s Brother the Deadbeat Dad

Hilary Rodham Clinton’s younger brother Anthony Rodham is a deadbeat dad who owes tens of thousands of dollars in child support to his former wife, Nicole Boxer. Unfortunately from Mrs. Clinton that would be the daughter of Senator Barbara Boxer. Mr. Rodham now owes his ex-wife more than $158,000.00. Mr. Rodham and Ms. Boxer were married in the White House Rose Garden in 1994. Their son Zachary was born two years later. They were divorced in 2000.

Soon after the split the former couple began arguing over child support. In 2002 Ms. Boxer charged that her ex had not paid anything in six months. Mr. Rodham now lives in a Washington town house with his new wife who he married in 2005. A former insurance salesman, prison guard and private eye, Rodham has been a headache for the former and possibly future first family before.

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.

Santa Clara County Divorce Lawyer Comments on Sean Penn’s Divorce Proceedings

On December 21, 2007, Robin Wright Penn filed for divorce from husband, Sean Penn, with the Marin County Superior Court, citing irreconcilable differences. The couple was married in 1996 and have two minor children together: Dylan Frances, 16, and Hopper Jack, 14. Child custody will undoubtedly be an issue that needs to be addressed within the divorce proceedings as both parties are seeking joint custody.

In unusual fashion, it appears that Sean Penn filed for divorce a few days earlier but later withdrew his petition. Thereafter, his wife, Robin Wright Penn, filed for divorce which still stands and a hearing in the matter has been scheduled for sometime in April. The couple have worked together in several films and after a record 11-year marriage in Hollywood terms, there will certainly be a great deal of issues related to division of marital property and potentially child support and spousal support.

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, please contact Sagaria Law. Our team of family law attorneys can answer any such 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.

San Jose Divorce Attorney

There many ways for a person to pass their estate to their children at their death. The most commonly known way is through a Will. A Will is usually a formal document outlining how a person wants to distribute all their assets after passing away. The document has many requirements to be valid, such as signatures of witnesses and notaries, etc. (Some exceptions apply). In California, a Will needs to go through the “probate” process which may delay the distribution of the estate by many months. Such a delay can be detrimental because estate debts will not wait for the court to examine a Will, they will come due much sooner than that.

This delay of transfer of money can be partially avoided by a “Totten Trust.” A Totten Trust is also known as a “Payable on Death” Account or POD for short. A typical POD account is a bank account. The owner of the account (often called the Settlor) names a beneficiary to the account or a person who will receive all its contents upon the owner’s death. During the owner’s life, they can use the account just like a regular bank account. They are allowed to withdraw money, deposit money, or even close the account. The beneficiary has no actual right to the money while the owner lives. The only time the beneficiary has any rights is after the owner passes away. Therefore beneficiary cannot make withdrawals or block the owner from doing the same while the owner is alive.

A Totten Trust or POD account is a useful tool because the account does not actually have to be included in the Will to take effect. For example, the owner can create a Totten Trust for the executor of their Will. That means the executor can probably have access to the money in the account quickly and pay off the estate debts while the official Will is being examined by the court. The quick access to funds may mean the difference between paying an estate debt or a debtor starting foreclosure proceedings due to non-payment while the Will is being examined.

A Totten Trust or POD Account makes sense if the owner has a regular bank account where they keep very liquid funds. However, Totten Trusts are limited in how beneficiaries are named (usually only one is allowed) and cannot hold real assets (such as land or cars). Therefore a Totten Trust would not be good way to distribute money to several people. A Totten Trust may have some tax consequences which can be avoided by other Trust instruments. A Totten Trust should really be used in a narrow fashion to transfer specific bank accounts. Please contact our offices to setup a consultation to discuss a Totten Trust or other estate plans that may work for you.