California Family Law Blog

San Jose Divorce Attorney Discusses Automatic Temporary Restraining Orders

Upon the filing of the initial petition, the court automatically makes four orders which bind the Petitioner. These same four orders are binding on the Respondent when served with the summons and petition. These orders are known as the Automatic Temporary Restraining Orders, or ATROS. The orders are listed on page 2 of the summons, if you want to review them yourself. ATROs remain in effect until final judgment in the action (or dismissal of Petition) unless earlier modified or terminated by court order, pursuant to Fam. Code §233.

The orders enjoin or prevent a party to a marital action from doing any of the following four things:
(1) removing a minor child from the state of California without prior written consent of the other party or a court order;
(2) transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real, or personal whether community, quasi-community, or separate without the other party’s written consent or a court order except in the usual course of business or for the necessities of life;
(3) cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability held for the benefit of the parties and their child or children for whom support may be ordered;
(4) creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the other party’s written consent or a court order.

You may be wondering, after reading the above paragraph, what this means for you. For example, (2) above prevents you or your spouse from transferring, encumbering, hypothecating, concealing or in any way disposing of any property in the marriage regardless of characterization, except “in the usual course of business or for the necessities of life.” In plain language this means you cannot move large sums of property around to hide it. You cannot give a large sum to someone else. What is large? It depends on the circumstances. In a very high asset marriage, the amount that will be a violation will be different from a low asset marriage.

Another example is (4): what does “creating a non-probate transfer” mean? A probate transfer is a transfer on death, such as a will, or a revocable trust. Those types of estate planning transfers are acceptable under the ATROs. Any other transfer, such as a deed, or a trust, not intended for estate planning purposes, would be a violation.

Bottom line: if you have questions about whether an action you wish to take could be a violation of the ATRO, you should contact us before taking any action. Our team of attorneys here at Sagaria Law handles all aspects of divorces, from filing the petition, litigating the issues and drafting the judgment paperwork. Some of the issues that are common to divorces are spousal support, property division, child support, child custody and visitation. We have four Bay Area locations, including San Jose, Fremont, Monterey and Redwood City. We handle cases throughout the Bay Area, and offer a free thirty minute in person or telephonic consultation. Call our office today.

San Jose Divorce Attorney Comments on Former New Jersey Governor’s Divorce

Former New Jersey Governor James McGreevey’s divorce is final, after a sordid trial involving sex scandals, disputes about employment, and support. This case was litigated in New Jersey, but the issues are common to many if not all divorces, so it is instructive for us here in California.

The first issue was child support. The parties share custody of their daughter, and Mr. McGreevey was ordered to pay $1,075 per month in child support. The child is 6, and Mr. McGreevey has a regular visitation schedule with her.

Spousal Support was another big issue, especially for the former Mrs. McGreevey, also known as Dina Matos. Recall, Mr. McGreevey had been the governor of New Jersey, and the parties lived a very high standard of living. Ms. Matos requested $2,500 per month in spousal support (or alimony, as it is known in New Jersey), as well as reimbursement for the lost time in the governor’s mansion. Ultimately, the Court ruled that Mr. McGreevy, who is now a seminary student, did not have to pay support to Ms. Matos, as he did not have the income. Interestingly, the Court rejected claims that Mr. McGreevey was purposefully underemployed, despite his past career track. The Court also declined to order reimbursement for lost time in the governor’s mansion.

Property division is an issue in nearly every divorce, and this one was no different. Mr. McGreevey was ordered to pay Ms. Matos $109,000 as an equitable distribution of community assets.

California law handles things a little differently than New Jersey, so the outcome could have very well been radically different had the McGreeveys divorced out here. One area that I think would likely have been different is spousal support. The marital standard of living guides spousal support in California, and the McGreeveys had a high standard during marriage. Furthermore, Mr. McGreevey’s return to school raises concerns of avoiding support, and its plausible he would have been under an employment efforts order, his education notwithstanding.

If you are getting divorced in California, and have questions about these issues, or others, call our experienced team of family law attorneys. We handle all types of dissolutions and other family law cases. We have four Bay Area locations, including Redwood City, San Jose, Monterey and Fremont. We offer a free consultation, either in person or over the phone. Call today to schedule your consultation.

San Jose Divorce Attorney discusses Child Custody

Recently in the news, Britney spears has been making waves regarding her child custody battle with her ex-husband Kevin Federline. On July 17, 2008, Spears agreed to give her ex-husband Federline sole legal and physical custody of their two sons, Sean Preston and Jayden James, while she retains visitation rights. Under the agreement, Spears will be allowed to have three days and one night a week with the boys.

In California, child custody is broken into two parts: physical and legal custody. Sole physical custody means that the child will reside with and under the supervision of, one parent, subject to the court’s power for visitation. Joint physical custody means that each parent will have significant periods of physical custody that ensures that the child have continuing contact with both the parents.

Sole legal custody means that one parent will have the right and responsibility to make decisions regarding the health, education and welfare of the child. Joint legal custody means that the parents will share that right and responsibility. In this case, Britney Spears, most likely due to her recent erratic and sometimes irresponsible behavior, has allowed for Federline to have sole physical and sole legal custody. This means that the children will reside with Federline, and that Federline will be the parent that makes all the decisions regarding the children’s well-being.

Although it seems it seems radical to give a failing hip-hop artist sole legal and physical custody of two young children both under the age of 4, the court has granted this order under legislated public policy. In California, custody must be awarded according to the child’s best interest (Family Code 3040(a)) The legislature has declared that it is the public policy of the state to ensure that each child’s “health, safety, and domestic violence in the child’s residence, be the court’s primary concern in determining the child’s best interest when making physical or legal custody orders.” Therefore, despite Federline’s disparaging reputation as a partier, the court has deemed him to be a parent that will look after the welfare and safety of his children, over that of the children’s mother Britney Spears. Spears will however have a chance to modify these custody orders as long as the children are still minors and as long as she can show that she too will be a competent parent.

If you have a child custody issue or question 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 Divorce Attorney Discusses No Fault Divorce

Every time a celebrity gets divorced we all hear the headlines that a divorce was filed citing irreconcilable differences. What the press does not get into is that in California there are actually only two grounds for divorce, irreconcilable differences or incurable insanity. As you might imagine most divorcing couples believe that their estranged spouse is insane but of course the medical standard is far more stringent.

California actually became the first state to offer no fault divorces as an option about 40 years ago. This change meant that divorcing couples did not have to assign blame to one party and cite a reason such as adultery or cruelty in order to become divorced. Therefore one party can get divorced even if the other party wants to stay married. Some experts state that this change allowed for shorter, cheaper and less acrimonious divorces. Research by an economist at the Wharton School at the University of Pennsylvania has shown that easier divorces have reduced domestic violence within marriages by one-third.

Some states allow for no-fault divorces but have lengthy waiting periods, such as New Jersey where there is an eighteen month waiting period. In California the waiting period is six months. Our attorneys here at Sagaria Law would be happy to meet with you for a free consultation to go over your specific situation regarding divorce or other family law issues. Please contact us for a consultation at one of our offices in Monterey, San Jose, Fremont or Redwood City.

San Jose Divorce Attorney comments on Recent Article Regarding Divorce

This week Newsweek Magazine reports on how divorce changed the lives of children who lived through what Senior Editor David Jefferson coins as the “divorce generation.” Jefferson recounts how the myth of the nuclear family exploded in the 60s, and the woman’s rights movement opened the workplace doors to mothers which in turn made divorce a viable option for many women. In 1969, California governor Ronald Regan signed the “no-fault” divorce law, allowing couples to end a marriage by declaring “ireconciable differences” and divorce became a routine occurrence. Despite the depressing statistics about the rise and impact of divorce on a societal level, Jefferson’s article focuses on the personal impact that divorce had on his classmates at Grant High School and concludes that a surprising number of his classmates wound up in solid marriages.

Jefferson reports that the urge to stay married was stronger in his classmates generation than the urge to get divorced was in their parents’ generation. Moreover, Jefferson found that despite complications and collateral damage, his research indicates that divorce was probably for the best, both in the lives of his classmates who themselves got divorced later in life and their parents who had divorced while they were children. Most people, it seemed, did not think ill of their parents for having split up, rather as one classmate put it, “…as an adult, I learned that my parents were just two people who met each other, fell in love, had children, and it didn’t work out,” and that “good people get divorced too.” Jefferson’s article can be found on newsstands this week or on Newsweek.com.

If you or someone you know if going through a divorce, the team of attorney’s at Sagaria Law may be able to assist you. We handle all aspects of family law and endeavor to resolve your legal matters and quickly and sensitively as possible. Our firm take cases throughout the Bay Area, and we have offices in San Jose, Monterey, and Fremont. Contact our office today for a free thirty minute initial consultation with one of our attorneys wherein you can get to know our firm and obtain insight into how we can assist you with your case.

San Jose Family Attorney Discusses Division of Personal Injury Damages in Divorce

Personal injury awards are subject to special characterization and division rules in a divorce. Unlike most property, characterization of money or property received or to be received as personal injury damages depends on when the cause of action arose; it is not affected by when the actual proceeds are received. In other words, if the cause of action arose during the marriage, and prior to separation, the award for damages are considered community property. If the cause of action arose before marriage, or after separation, the award for damages are considered separate property. Additionally, personal injury damages received by one spouse pursuant to a personal injury claim against the other spouse, are always the separate property of the injured spouse, regardless of when the cause of action arose.

To the extent that the Court finds that a personal injury award is community property, it is subject to special division rules. Unlike most community property subject to equal division, community personal injury damages must be assigned to the injured party unless the court determines that the interest of justice require another disposition. In making this determination, the Court will take into account the following factors: (1) the economic condition and needs of each party, (2) the time that has elapsed since recovery of damages or accrual of the cause of action, (3) all other facts of the case. After consideration of the factors, if the Court determines that the personal injury award should not be entirely assigned to the other spouse, the non-injured is assigned a proportion which the Court determines to be just. The amount assigned to the non-injured spouse, however, may not exceed half the damages. Additionally, when more than half to he personal injury damages are awarded to the injured spouse, case law has determined that the other party is not entitled to an offsetting award of other community property to make the overall division of community property equal.

Circumstances in which community personal injury awards may not be awarded entirely to the injured spouse include those in which the community has incurred costs in caring for the injured party; or where commingling of the personal injury damages with other funds make tracing the source impossible.

If you or someone you know is going through a divorce, the team of attorneys at Sagaria Law, P.C. may be able to assist you. Our attorneys deal with all aspects of family law and can assist you through any stage of your divorce. 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 Divorce Attorney comments on new study by American Academy of Matrimonial Lawyers

With e-mail and text messaging becoming the preferred method of communication, couples going through a divorce should be warned about the ramifications of what they communicate via such methods. According to USA Today, a new survey by the American Academy of Matrimonial Lawyers say that they’ve seen an increase in the number of divorce cases using electronic data as evidence during the past five years. Such evidence is being used to accomplish a variety of things, including catching cheating spouses and discovering hidden assets. In cases where one spouse has had complete control of the finances, electronic data has proven to be particularly useful. Not only are divorce attorneys scouring e-mail accounts, they are also looking to at online communication networks such as Facebook and MySpace for information.

Lawyers have found that although people tend to be careful about written information, however, they do not treat electronic data the same way. Moreover, several companies also now market software to spy on their spouses’ computer use, and secretly accessing a spouse’s e-mail account is not uncommon. A new survey conducted by Google indicates tat 27% of women, and 21% of men have admitted that they have “snooped” on someone else’s e-mail. Although discovery of electronic data is not likely to lead to an increase in divorce rates, it is certainly now a source of information which needs to be scrutinized.

If you or someone you know is going through a divorce, the team of family law attorneys at Sagaria Law, P.C. may be able to assist you. We handle all aspects of family law and divorce including property division, support, and child custody matters. We have offices in Santa Clara County, Alameda County, and Monterey County, and handle cases through the Bay Area. Contact our office to schedule a free thirty minute consultation with one of our attorneys today.

San Jose Divorce Attorney Discusses Calculation of Temporary versus Long Term Spousal Support

Under the Family Code, temporary support may be ordered in any amount based upon the party’s need and the payor’s ability to pay while a divorce is pending. Generally, the purpose of temporary spousal support is to enable the recipient to live in his or her accustomed manner pending Judgment. This means that if parties live very modestly in comparison to their means, allocating funds for savings and investments, temporary support may be set to allow for that level of savings and investments. Moreover, Court recognize that a dual income allows for parties to maintain a certain standard of living, while maintaining two separate households will in many circumstances require the parties to lower their standards. Although the guideline formula for spousal support will attempt to equitably allocate income, it is not always possible to provide fully for the financial needs of both parties. Guideline calculations may also be adjusted if child support is being paid in addition to spousal support, and may further be modified by the presence of special circumstances not contemplated by the guideline formula.

Long term spousal support may be ordered in certain cases in the judgment for dissolution. Unlike temporary support, the Court may order a party to pay spousal support, to the other party, for any period of time that the court deems just and reasonable. An award of long term spousal support requires the Court to consider and evaluate a variety of statutory factors, as opposed to relying on a guideline calculation. In addition to evaluating the marital standard of living, the court must consider the following statutory factors: (1) the extent to which each party’s earning capacity will maintain the standard of living establishing during the marriage, taking in account the marketable skills or period of unemployment of the supported spouse; (2) the extent to which the supported party contributed to the supporting party’s attainment of an education, training, career, or license; (3) the supporting party’s ability to pay, (4) each party’s needs, based on the standard of living established during the marriage; (5) each party’s assets and obligations; (6) the duration of the marriage; (7) the supported party’s ability to be gainfully employed without interfering with the interests of dependent children in his or her custody; (8) each party’s age and health; (9) documented evidence of domestic violence between the parties; (10) immediate and specific tax consequences to each party; (11) the balance of hardships to each party; (12) the goal that the supported party be self-supporting within a reasonable period of time; (13) the criminal conviction of an abusive spouse; and (14) any other factors the court deems just and equitable.

If you or someone you know has questions about spousal support or divorce, the team of attorneys at Sagaria Law may be able to assist you. The attorneys at Sagaria Law handle all aspects of family law, and work on cases throughout the Bay Area. Contact our office today for a free thirty minute consultation with one of our attorneys.