California Family Law Blog

San Jose Divorce Attorney Discusses Retirement Plans and Settlement

Many people who are in a divorce are faced with many issues regarding division of assets and settlements. One of those problems is the division of a retirement account. If some of the portion of your settlement consists of retirement assets, you should be aware of the tax ramifications and potential penalties involved. William Donaldson and Adam Westphalen in their article state the penalties involved when parties are subject to divorce and must divide their retirement assets.

West phalen and Donaldson advised that most of the time, distributions from a retirement plan prior to age 591/2 are considered "early distributions" and are subject to a 10% penalty tax as well as ordinary income tax. There is an exception to this rule. It is a transfer to an ex-spouse as part of a divorce settlement. A Qualified Domestic Relations Order (QDRO) is used to affect this transfer. Income taxes still apply, so any assets you receive from a "qualified plan", such as a 401(k), will be subject to a mandatory 20% tax withholding. This means that, if you are awarded a $100,000 distribution from an ex-spouse’s 401(k) you will actually receive only $80,000.

To avoid this mandatory withholding, the transfer must be made directly to another retirement account, such as your own IRA. Once the assets are in your retirement account, you are now subject to the early distribution rules. If you need some of the assets to live on, or pay bills, make sure you take them out prior to transferring them to an IRA to avoid the 10% penalty.

If you have questions regarding your divorce and retirement asset issues, please contact our office for a free consultation. Our team of Family Law Attorneys can assist you with all aspects of your case. We have Family Law Attorneys in San Mateo, Monterey, Fremont, Salinas, and San Jose. Please call Sagaria Law at 408.279.2288 for a free consultation or visit us a www.sagarialaw.com.

Fremont Family Lawyer Discusses Enforcing Child Support by Collecting Directly From Wages

One of the most common mechanisms for enforcing child support in California is the earnings assignment order, or as it is more commonly known, a wage assignment. This ensures that child support (or spousal support) is subtracted from an employee’s wages. It is then sent to the custodial parent, usually via the State Disbursement Unit.

California Family Code Section 5320 requires child support to be paid via wage assignment. The wage assignment is binding on all employers, and is enforceable even where the employer information is outdated or incorrect. See California Family Code Section 5231. Employers who do not comply with a wage assignment are subject to being brought into court and possibly found to be in contempt.

What do you do if the non-custodial parent’s employer refuses to comply with the wage assignment? First, you must make the employer a party to the case, by filing a joinder. The next step is to file a motion with the Court to have the employer be ordered to comply with the wage assignment. Finally, the Court can find an employer in contempt for not honoring a valid wage assignment, meaning the employer will likely pay a fine for non-compliance.

What do you do if the non-custodial parent is self-employed or earns a cash income? Other means of collecting child support include garnishing or intercepting tax refunds, placing a lien on bank accounts. Punishment for non-payment can include suspension of a driver’s or professional license, contempt of court, and revocation of a passport.

Remember, child support is mandatory. This includes people who are getting divorced, parents involved in a paternity action, and parents who never lived together. Furthermore, payment of child support (or non-payment of it) does not impact visitation. The only relationship between visitation and support is how the timeshare impacts the guideline support number.

If you are having trouble collecting child support, you need to speak to an attorney. Our experienced family law attorneys handle all types of child support cases, including those incident to a divorce or paternity action, as well as those involving the Department of Child Support Services. We have five offices throughout the Greater Bay Area, including Redwood City, Fremont, San Jose, Monterey and Salinas. We offer a free consultation, either over the phone, or in person. Contact our office today to arrange for your free thirty minute consultation at 408.279.2288 or www.sagarialaw.com.

San Jose Divorce Attorney Discusses Community Property:

Equal ownership of community property assets has never been dependent upon a determination of labor or talent. Men and women are considered equal partners in a marriage in California. Each shares marital property equally regardless of whether their assets were earned by one or the other. For example, if the wife is a highly paid attorney and the husband is unemployed, the differential in actual earnings is irrelevant to the ownership rights of each.

Both marital parties are an equal agent of the partnership, binding it if acting within the scope of his or her authority and if acting for the joint benefit of the family. The California community property system adds to joint ownership the right of equal management and control. In dissolution of marriage, the court is empowered to allocate assets of comparable value to the former husband and wife to make the overall division of the gross marital estate substantially equal, and each asset does not have to be divided.

The theory behind the division of property is that dissolution of marriage should be treated much like the dissolution of a business partnership. Regardless of the conduct during the existence of the partnership, on dissolution the partners receive a portion of the assets commensurate with their respective partnership interests. The trial court may divide the community property, where warranted, by methods such as awarding an asset to one spouse conditioned upon later payments or making offsetting awards of the community assets. Even when this occurs, the spouse must receive property of an approximate equal value.

If you have questions regarding your divorce and community property issues, please contact our office for a free consultation. Our team of Family Law Attorneys can assist you with all aspects of your case. We have attorneys in San Mateo, Monterey, Fremont, Salinas, and San Jose. Please call us at 408.279.2288 for a free consultation or visit us a www.sagarialaw.com.

San Jose Family Law Attorney Discusses Parental Rights Likely to be Terminated in Child Abuse Case

A couple in Texas is set for trial on termination of parental rights following CPS intervention and removal of the parties’ three children. A year ago, the children were removed at the ages of 2, 1, and infancy, when they tested positive for amphetimines and methamphetimines. When CPS takes the children away, the situation is pretty much as bad as it gets. As the parents fight for custody of their children, the foster parents are ready and willing to adopt the children.

The juvenile dependency system is a complicated system that balances parental rights, safety and welfare of the children. Federal law controls much of the juvenile dependency system, particularly the time frame, the various hearings, and when a permanency plan is considered. In California, the state may seek to terminate parental rights after reunification services have been provided, parents have been notified, the child has been found to be adoptable, and a hearing has been set. By statute, the preference is that when the family cannot be reunified, parental rights are terminated and the child is placed for adoption. The burden of proof is “clear and convincing evidence,” which is below “reasonable doubt” but higher than “preponderance of the evidence,” the lowest and most common standard. Another way to think about clear and convincing evidence is “leaves no substantial doubt.”

The parent facing termination can avoid termination if he or she can show that reunification services were not provided, or the services were not reasonable. Furthermore, even if services were reasonable and the child is adoptable, the court must not terminate if one of the six following circumstances exists and would be detrimental to the child:
• The parent has maintained regular visitation and contact with the child, and the child would benefit from continuing the relationship with the parent.
• Child over the age of 12 objects to the termination.
• The child is placed in a residential facility, and adoption is unlikely or undesirable.
• The current relative custodian or foster parent is unable or unwilling to adopt the child but is willing to continue to provide a stable and permanent environment, and removal of the child from that home would be detrimental to the child’s emotional well-being.
• Termination would substantially interfere with sibling relationships.
• For Indian Children only: If there is a compelling reason given that termination is not in the best interests of the child.

If you or someone you know is involved in a juvenile dependency case, or any other child custody dispute, professional legal advice is a must-have. Our attorneys here at Sagaria Law have experience in all types of custody matters, whether they are incident to a divorce, paternity action, dependency or guardianship. We have five Bay Area locations, including San Jose, Fremont, Monterey, Salinas and Redwood City, and we offer a free consultation either in person or over the phone. Call today at 1-800-941-6730 or visit us at www.sagarialaw.com to schedule your free consultation!