California Family Law Blog

San Jose Divorce Attorney Discusses Imputation of Income for Child Support

Family Code states that the court may, in its discretion and consistent with the child’s best interests, consider a parent’s earning capacity instead of his or her actual income when making a guideline support order. Thus, in a situation where the supporting parent capable of working quits his/her job and refuses to work; or where the supporting parent has the ability and opportunity to earn more than he/she is earning but is unwilling to do so, the Court may impute that parent with income. Determination of the amount to impute is based on an objectively reasonable work regiment, as it would exist at the time the support determination is made. Therefore, the Court would not order an individual to work 100 hours per week, even if that person that the ability and opportunity to work that much.

In appropriate cases, the Court may also consider the parent’s ability to generate income from income producing assets when making a guideline support order. For example, if the parent was underutilizing investment assets, the Court may impute a higher rate of return for those underutilized assets.

If you or someone you know has a question about child support, or any other family law issue, the team of attorney’s at Sagaria Law may be able to assist you with your case. Sagaria Law handles all aspect of family law including divorce, custody, and support issues; and represents clients throughout the Bay Area. Contact our office today to schedule a free consultation with one of our attorneys today.

San Jose Divorce Attorney Discusses Need-Based Attorney Fee and Cost Award

Under the Family Code, any award of attorney fees or costs in a marital action must be based on a determination of ability to pay and consideration of the parties’ respective incomes and needs in order to ensure each party’s access to legal representation. For example, a spouse who was primarily supported by the other spouse during the marriage, and who does not himself or herself have the financial means to retain an attorney, may be able to obtain a court order requiring the sole or higher earner spouse to pay their attorney fees. The fact that the party requesting the award has the resources to pay his or her own attorney fees and costs, however, is not itself a bar to ordering the other party to pay part of all of the fees and costs requested. For example, the fact that one spouse has a net worth of $2 million would not necessarily bar a need based attorney fee request, if the other spouse has a net worth of $40 million.

Moreover, the scope of costs recoverable in a divorce is broader than most civil actions generally because the Family Code permits the court to award any amount reasonably necessary for attorney fees and for the costs of maintaining or defend the proceeding. Therefore, family courts may consider applications for cost awards associated with items such as accountant, actuary and appraiser; none of which are generally recoverable in other civil actions.

If you or someone you know is going through a divorce, or have questions regarding other family law issues, the team of attorneys at Sagaria Law may be able to assist you with your case. We handle cases throughout the Bay Area and have offices in Santa Clara, Alameda and Monterey counties. Contact our office today to schedule a free consultation with one of our attorneys.

San Jose Family Law Attorney Comments on recent California appellate opinion Estate of McDaniel

On March 27, 2008, a California court for the third appellate district issued an opinion which held that a wife was not entitled to inherit from her husband’s estate because she was not a surviving spouse within the meaning of section 78 of the Probate Code. In this case, the husband passed away in a motorcycle accident on September 23, 2005. When husband passed away, he and his wife were separated and going through a dissolution proceeding. 2 months prior to his accident, the family court entered a stipulated judgment dissolving the marriage and ordering the marriage terminated, restoring the parties to the status of single persons on October 29, 2005; six months and one day after husband responded in the dissolution action.

According to the stipulated judgment, the parties waived spousal support and agreed on a division of community property and debts. Neither party challenged the Judgment or its legal effect. On August 17, 2006, his mother filed a petition of distribution of husband’s estate alleging that husband had passed away intestate, and that he did not have children. Wife opposed the petition claiming that she was husband’s surviving spouse and therefore entitled to his estate. As it turns out, notwithstanding the stipulated judgment, the parties were attempting to reconcile their differences before their marital partnership terminated.

Section 78 of the Probate Code stated in relevant part that a surviving spouse for purposes of the Probate Code does not include “a person who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights. ”The trial court found that Wife was not a surviving spouse within the meaning of the Probate Code because the partied as entered into a stipulated judgment terminating their marital property rights, and thus, had no right to share in Husband’s estate. Wife appealed, arguing that the stipulated judgment settled property rights, but it did not settle inheritance rights. The appellate court affirmed the trial court’s holding, finding that nothing in the language or meaning of section 78 requires an express termination of inheritance rights; the obvious effect of the statute itself is to terminate inheritance rights of such a spouse. Wife further argued that under the family code, her marital status was not terminated until after husband’s death. The Court found that although Wife was still legally married to Husband at the time of his death, she was not legally his surviving spouse, and therefore not entitled to share in his estate.

The team of attorneys at Sagaria Law, P.C. handles a variety of family law and estate planning cases. If you or someone you know needs assistance with a divorce or estate planning issue, we may be able to assist you. We represent clients throughout the Bay Area and have offices in San Jose, Fremont and Monterey. Contact our office to schedule a free consultation with one of our attorneys today.

San Jose Family Law Attorney comments on Fiduciary Duties

Ronald Miserendino, once a multi-millionaire, may live the rest of his life in poverty. According to an article on Trading Markets.com, the ex-millionaire’s plan to hide assets from his ex wife has been in a Milwaukee County jail since 2005 facing ten counts of bank fraud, mail fraud, wire fraud, tax evasion, and money laundering. Miserendino built up a successful real estate management and development company called Trace Corp. After his spouse filed for divorce in 2001, Miserendino secretly set out to liquidate his company’s assets and to go into hiding. By the time the divorce was final, Miserendino had converted nearly $5 million to cash and stashed it in safe deposit boxes in Australia and several other states. In the family court, Miserendino had agreed to pay his now ex-wife $750,000 from the $2.9 million he had hidden in an Australian safe deposit box; he thought he would be able to keep the rest of the $2.9 million. However, the IRS is now bringing a civil action to collect back taxes and penalties, leaving him owing more than he is worth. In addition to back taxes and penalties, Miserendino also faces additional jail time.

In California, as in other states, the family code imposes on both parties the obligation to act in the highest good faith where transactions concerning the other party is involved. Among other duties, spouses are required to disclose all material facts and information regarding the existence, characterization and valuation of all assets in which the community has an interest; and to act in the highest good faith and fair dealing as to all activities that affect the assets and liabilities of the other party. Liquidating a community asset such as a business, and/or hiding funds would certainly violate the California Family Code. Therefore, in addition to possible jail time and sanctions for his federal offenses, Miserendino would likely have faced sanctions for serious violations of fiduciary duties owed to his spouse had their divorce been litigated in California.

If you or someone you know is going through a divorce, the team of attorneys at Sagaria Law may be able to assist you with your case. We have offices in San Jose, Fremont and Monterey and represent clients throughout the Bay Area in all aspects of family law. Contact our office for a free thirty minute consultation with one of our attorneys today.

San Jose Divorce Attorney Discusses the Service Members Civil Relief Act

Unfortunately many soldiers and sailors are facing family court while preparing for a deployment or after they have been deployed for duty. The Service Members Civil Relief Act has shielded service members by staying civil court actions and administrative proceedings during military activation. This prevents evictions and seizure of property. However, the Act never specifically addressed family court matters and some family court judges refused to postpone custody decisions until the service member could appear.

President Bush signed a change to the Act into law this week which clearly states that deployed service members who seek a stay in custody disputes shall be granted at least a 90-day stay. It also protects service members against default judgments in custody proceedings while they are deployed. “It really should have been covered already,” according to Kathleen Moakler, director of government relations of the National Military Family Association, “but because family court judges were choosing to disregard that section Congress had to pass something and kind of underline it.”

The change was pushed by Rep. Mike Turner, R-Ohio, who read an Associated Press story last May that revealed the custody fights facing an unknown number of the 140,000-plus single parents in uniform. "Service members were protected if a bank foreclosed on their house or went after their car ... but we had failed to protect their children," Turner said. "It's unthinkable that our men and women in uniform, when they're deployed, would have the added stress of worrying about the custody of their children."
Turner said he is hopeful the amended act will make judges think twice before using a military parent's deployment as the primary reason for permanent custody changes. Still, some military lawyers and advocates worry that custody problems will continue for these service members unless similar protections are written into state laws, which generally govern family courts. If you are facing the possibility of deployment or if you have already deployed and our concerned about your custody case or your divorce then please contact our office. We assist several members of the military on active duty and we communicate with them via e-mail regularly and by phone when possible. We have offices in Monterey, San Jose, and Fremont where out attorneys would be happy to advise you on your family law matters.

Monterey County Attorney Discusses Child Custody Investigations

In the event that separated parents cannot agree on a custody and visitation schedule with their children, even after going through court assisted mediation, the parties will likely participate in a child custody investigation. Each county in California has different names and different procedures for these investigations. In some counties they may be called Assessments and in others they are called Evaluations. In some counties they are performed through an agency of the court called Family Court Services while in others they are performed by private psychologists hired by the parties.

In any event these custody investigations are a critical part of determining a long-term custody and visitation order. In fact these investigations are so important that a state bill was introduced in 2007 to address an issue that is often raised in these investigations which is a controversial theory called Parental Alienation Syndrome. This theory describes behavior where one parent turns their child against the other parent. Under California law if alienation is proven the alienating parent can lose custody of the child even if they have been the child’s primary caretaker since birth. The custodial parent must support a relationship between the child and the other parent.

The reason that this theory is so controversial is that the psychological community and child custody investigators are split in regards to whether this type of alienation is even possible. Even those who believe it is a legitimate syndrome are concerned about the negative impact on a child when it is incorrectly found in a case. The text of 2007 version of the bill AB 612 would have explicitly banned the use of Parental Alienation Syndrome, or just the term alienation from use in evaluations. It also aimed to minimize the use of custody evaluations. The family law section of the state bar and several psychologists groups banded together to oppose the bill. In the 2008 version of the bill the wording is much vaguer stating evaluators will be forced to conform to "standards generally accepted by the medical, psychiatric, legal, and psychological communities." The bill does not specifically mention Parental Alienation Syndrome.

If you are concerned about alienation issues in your case or other issues related to a child custody investigation then please contact our office for a free consultation. Our team of 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 have attorneys in Monterey, Fremont and San Jose who can assist you with all aspects of your family law cases.

San Jose Family Law Attorney Discusses Family Law Restraining Orders

For obvious reasons claims of domestic violence are taken very seriously in the family court. Unfortunately some people choose not to fight a restraining order without understanding that doing so will prejudice their custody rights and potentially have a negative impact on their immigration status or job prospects. A restraining order is usually generated in one of two ways. In the more serious of the two circumstances there is some argument between the spouses that leads to either someone in the household or in the neighborhood calling the police. When the police arrive the alleged victim will tell the police that he or she is afraid for his or her safety or if there is some visible injury such statements will not even be necessary. The police can then offer the alleged victim an immediate emergency protective order which is obtained by calling an on call judge and relaying the circumstances. This type of criminal protective order lasts for five days in order to give the alleged victim time to file a request for a civil restraining order. The police at their discretion will decide whether or not to arrest the alleged abuser. If an arrest is made then a police report and request for charges will be sent to the District Attorney’s Office and at their discretion charges will issue. If charges do issue then another criminal protective order of a longer duration may also issue in criminal court.

A request for a restraining order can also be requested if there has never been any police involvement. This occurs by filing the request for a Temporary Restraining Order (TRO). This request is made in writing and submitted to the Court where it will go to a Judge who will make a determination as to whether or not it will be granted. At this time notice will not be given to the opposing party so the Judge will make the determination on the alleged victim’s writing alone. If it is granted the TRO will last only until a hearing can be held on the request for a restraining order which typically happens in about 14 days. The alleged abuser must be served with the initial request for the TRO and is given an opportunity to respond in advance of the court hearing.

At the time of the hearing the alleged abuser is asked whether or not they agree to the granting of a restraining order. Some people consent because they do not want to argue about it in court and because they do not want further contact with the alleged victim so they do not fight it. The problem is that they do not realize the consequences of consenting to a restraining order. Under Family Code Section 3044 a restraining order can prevent the restrained party from having sole or joint custody of their children. In addition it can very severely impact other custody and visitation rights. Additionally it is also important to consider your immigration status and/or your job prospects before agreeing to a restraining order. If you are applying for a visa, a green card or for U.S. citizenship having had a restraining order could negatively impact your chances. It is also important to consider your career goals because if you are considering applying for a job where you need a security clearance or where a background check would be run having had a restraining order could hurt your chances. Additionally you cannot own a firearm during the time the restraining order is in effect so that would bar approval for most law enforcement jobs.

If you need to defend a restraining order in family court or if you need a restraining order for your protection please contact our office for a free consultation where we can advise you of your options. We have offices in San Jose, Fremont, and Monterey where our team of family law attorneys would be happy to go over your rights and advise you how to proceed.

Fremont Family Law Attorney Discusses Taxes and Divorce

With tax season upon us if you are currently going through a divorce or separation it is very important to consider tax implications. The first question to consider is how to file your taxes. There are generally three options available. Filing as "Head of Household" may save you the most money and varies with income. In order to qualify you must pay more than half the cost of keeping up the home and a qualified person, such as a child, must be living with you.
The second option is to file jointly which may be more beneficial to you and your spouse, according to experts. Joint filing means you are both responsible for all taxes and are each entitled to a prorated share of any refunds. It also might put you in a better tax bracket. If there are additional taxes or penalties because of fraud or negligence on past returns, you could potentially qualify as an "innocent spouse.” Filing separately is generally the last way to file. This option usually means paying the most taxes. However, you are only responsible for your own taxes.
It is important to discuss with your spouse who will be claiming the deductions available in order to avoid both parties duplicating the deductions when filing separately which can lead to problems and penalties. Generally if you are in the middle of a divorce it has already been decided who will claim the children but if not that issue must be worked out. The dependency exemption is usually decided when the parties have a child support order. The parties must also decide how property deductions for mortgage interest and property tax payments will be allocated.
Specific questions about your return should be asked directly of your tax preparer but if you have any questions related to your divorce such as how to agree on who claims the children for the dependency exemption or who can file as head of household please contact our office to set up a free consultation. Our team of attorneys can explain all aspects of a divorce from property division to child and spousal support. We have attorneys in Monterey, San Jose, and Fremont who would be happy to assist you.

San Jose Divorce Attorney Discusses Internet Postings and Custody Battles

It is understandable that people going through a divorce will want to vent their frustrations about their soon to be ex spouse to friends and family. However, in the electronic age it may also be too easy to voice that frustration to the world through the Internet. It is important to remember that anything you say that is disparaging about your ex can come back to hurt you in court, especially in a custody battle.

Tricia Walsh Smith has garnered national attention after she uploaded a video on YouTube where she aired the dirty laundry of her husband in the middle of their divorce proceedings. An Internet search will also find blogs where people are venting their frustrations about their separated spouses. Some of these Internet postings have led to civil suits alleging defamation by the spouse who is being written about. You can also guarantee that these types of postings will be brought into the family court as evidence in the event of a custody dispute.

In California the Court will consider which parent is more likely to facilitate contact with the non-custodial parent when deciding which parent should have primary custody. If one parent is more likely to disparage the other parent or try to alienate the child from the other parent that person could lose custody of the child. Therefore these public Internet postings could be used as evidence that the person public attacking the other parent would not facilitate a close relationship between the child and the other parent. That may in fact not be true, because the poster may never say the things that are posted in front of the child but the evidence could be very damaging because if it comes down to credibility the poster will have seriously damaged their credibility in the eyes of a Judge.

Our team of experienced family law attorneys are very knowledgeable about custody and visitation disputes and would be happy to speak with you for a free consultation in this area or in any other family law matter. We have offices in Monterey, San Jose, and Fremont where we would be happy to meet with you at your convenience.

Monterey County Divorce Attorney Discuses John Cleese’s Divorce

John Cleese is famous for his acting roles in movies like a Fish Called Wanda and for his roles in the British series Monty Python and Faulty Towers. According to friends Mr. Cleese is said to be livid that his soon to ex-wife, Alyce Faye, has turned what should have been an amicable divorce into a litigation battle that could reach the same level of notoriety as the Paul McCartney and Heather Mills divorce. This will be Mr. Cleese’s third divorce. The couple married in 1992 and split in January of this year.

Ms. Faye is seeking spousal support of over $140,000.00 per month. Cleese is 68 years old and his wife is 63. Cleese is said to have told friends he wanted to wanted to wind down his career but after his wife’s demands he will have to keep working in order to fund her extravagance. Faye alleges that the parties share an opulent lifestyle which Cleese disputes. Faye is also seeking half of the nine properties Cleese owns around the world and half of his earnings during the marriage. Faye is also seeking attorney’s fees from Cleese in excess of $150,000.00.

If the parties continue into litigation both sides will likely have legal bills in excess of $100,000.00 before their divorce is final. According to reports the parties did seek counseling in order to have an amicable divorce but apparently those efforts have failed. Faye is also seeking funds from Cleese to pay for the services of a forensic accounting to trace her share of Cleese’s properties and financial holdings. Under California law Faye is entitled to one-half of Cleese’s earnings during the marriage. She is also entitled to spousal support which is why the couple is arguing over their marital standard of living. Cleese is disputing Faye’s claims of their opulent lifestyle during the marriage which if proven correct will affect how much support Faye receives.

Here at Sagaria Law we are very familiar with high income divorce cases and their impact on spousal support. We can also advise you on pre-divorce planning in order to discuss with your spouse settlement options in order to avoid contested litigation. Please contact us to set up a free consultation with you regarding divorce at our office in Monterey, San Jose or Fremont.