California Family Law Blog

Redwood City Family Lawyer Discusses Proposition 8: Marriage v. Domestic Partnerships

As Californians get ready to vote for president next week, they are also considering whether to vote for or against Proposition 8. Proposition 8 is a constitutional amendment defining marriage as one man and one woman. In 2008, California’s Supreme Court overturned a similar law as being unconstitutional. Currently, gays and lesbians can be married in California. If Proposition 8 passes, gays and lesbians will only be able to obtain domestic partnerships under the laws passed in 2003 and 2005.

You might be wondering what the differences between domestic partnerships and marriages are, so here at Sagaria Law, we’ve decided to post a little primer, so you can make an informed decision for yourself about whether the two are equal or unequal, and if that makes a difference in your vote.

Marriage:
Married couples have the same basic rights and protections in all fifty states. Someone can get married in New Mexico, move to Florida, and then move to California, and their marriage is valid in all fifty states. In addition to the multitudes of benefits extended under state laws, married couples receive tax benefits, and death benefits under Social Security. Married couples can divorce, receive spousal support and child support, and in California, their property is subject to division under community property laws.

Domestic Partnerships:
Domestic partners in California are subject to many of the same rights and protections and obligations as married couples, including those under probate law, employment law and discrimination law, provided those are California state laws. This means that in California, any right extended to a married couple under California law, has to be extended to a domestic partnership. Furthermore, domestic partnerships are subject to the community property rules and support obligations should the relationship dissolve. The parties must even file a formal termination petition, just as married couples do.

Domestic partnerships are limited to two classes of people: same sex couples, and opposite sex couples over age 62 receiving Social Security.

The biggest difference between domestic partnerships and marriage is recognition, by the federal government and by other states. Domestic partnerships are not valid in all fifty states. So a couple may be a registered domestic partnership in California, but if they move to another state, they will have no rights whatsoever. Furthermore, the federal government does not recognize any type of domestic partnership for any reason.

Marriage, on the other hand, is supposed to be recognized in all fifty states under the Full Faith and Credit Clause of the Constitution. However, many states have enacted laws that do not recognize marriage between same sex couples, so the picture is complicated by that development. Additionally, at the federal level, Congress passed the Defense of Marriage Act which recognizes marriage as between one man and one woman. The future of same sex marriage is unknown, both in terms of California’s laws and what other states or the federal government may do, but one thing is certain: the issue is far from moot.

If you are interested in learning more about dissolving your marriage or domestic partnership, be in same or opposite sex, contact our office today to set up your free consultation. The consultation is thirty minutes long, and is available either by phone or at one of our six Northern California offices: Salinas, Monterey, San Jose, Redwood City, Fremont, and Sacramento. We have a team of talented and experienced family law attorneys who can discuss your specific concerns and situation, and give you advice on how to proceed. Call today to schedule your free consultation 1-800-941-6730 or visit www.sagarialaw.com

San Jose Divorce Attorney Discusses Santa Clara County Court Locations

Santa Clara County opened up a north county location for family law cases in January of 2008 in Sunnyvale. This new location meant that parties living in North County would not have to travel to downtown San Jose to have their family law matters heard in court. The county also planned on having a south county location added as well, originally that was planned to open in September of 2007. Due to construction delays the south county location in Morgan Hill is now expected to open in early 2009. This new location will serve parties who reside in South County. New family law cases are required to complete a Declaration of Residence in order to determine which of the three court locations is appropriate for a new case to be heard. Existing cases have already been transferred to Sunnyvale.

Originally Judge Susan R. Bernardini of Department 73 in the San Jose courthouse was going to transfer to the new location in Morgan Hill but now it will be Judge Kevin McKenney of Department 71 in the San Jose courthouse who will be transferring in early 2009. New south county cases will automatically be assigned to Judge McKenney in Department 71 and therefore transfer with him when the court house opens. However Judge McKenney will also transfer with his current cases assigned to Department 71 regardless of where the parties reside unless the parties complete a request to transfer their cases to the North County location in Sunnyvale. This stipulation must be completed and filed by January 30, 2009 or the case will be transferred to Morgan Hill.

If you have an existing family law case and have questions about how to proceed or if you are thinking about filing for divorce or have questions regarding custody or support issues we would be happy to meet with you for a free consultation to answer any questions that you may have. Please contact us at 408-279-2288 to schedule a free consultation at the office location nearest you. Sagaria Law has offices in Salinas, Monterey, San Jose, Fremont, Sacramento and Redwood City.

Sacramento Family Lawyer Discusses Domestic Violence Against Men and Restraining Orders:

Very little is known about the actual number of men who are in domestic relationships in which they are abused or treated violently by women. In 100 domestic violence situations, approximately 40 cases involve violence by women against men. There are many reasons why we don’t know more about domestic abuse and violence against men. One main reason is that the incidence of domestic violence reported by men appears to be so low that it is hard to get reliable estimates.

Help for men who are victims of domestic violence is not as prevalent as it is for women, as there are virtually no shelters, programs or advocacy groups for men. The best route for a man who is suffering from domestic violence is to file a request with a local court for a restraining order

A restraining order is an order made by a court to protect a person from physical pain or injury or from the threat of pain or injury. If you swear to the court that you are in immediate physical danger, the court may give you an ex parte restraining order. An ex parte restraining order is a temporary, emergency order that is made when only the requesting party (called the applicant or petitioner) is present to talk to the judge. If the judge agrees you are in immediate physical danger, the ex parte order will be granted and a hearing will be scheduled.

If you have a question regarding a domestic violence situation and are seeking a restraining order, please contact our office at 1-800-941-6730 for a free consultation or visit www.sagarialaw.com. Our team of Family Law Attorneys can assist you with all aspects of your case. We have attorneys in San Mateo, Monterey, Fremont, Salinas, Sacramento and San Jose.

San Jose Family Lawyer Discusses Grandparents’ Custody Rights

In today’s fast moving age, many parents rely on grandparents to take care of their children as they are at work during the day. Therefore, many times, when the nuclear family breaks down it is the grandparents that step in to take control of the children’s best interests. But what kinds of rights do grandparents have in terms of visitation?

According to a child custody coach cited in Newsweek, while hearing a petition filed by grandparents for visitation rights, courts almost always consider the decision and wishes of the custodial parent. In the Supreme Court case Troxel v. Granville, 530 U.S. 57 (2000), the Court held that it is a fundamental liberty of parents to make decisions concerning their child’s custody. It includes the freedom to decide when and with whom minor children can spend their time, and applies to time spent with the grandparents. This means that no matter how involved the grandparent may be involved with their grandchildren, the decision for visitation is ultimately on the custodial parent.

The child custody coach advises any grandparent that has children who are in the midst of a divorce to be supportive of both of the parents of the grandchildren, including the ex-spouse. Handling visitation issues with grandparents is a lot easier when the law is not involved. Divorce is always hard, but if you are a grandparent and would like to have an impact on your grandchild, keeping the peace with both parties including the ex-spouse can only work in your favor.

Our team of experienced and talented family law attornneys handle all aspects of child custody, visitation and support cases, as well as all other family law cases. We have six Bay Area locations, including Redwood City, San Jose, Monterey, Salinas, Sacramento and Fremont. We offer a free consultation, either in person or over the phone. Call Sagaria Law today at 1-800-941-6730 to schedule your free consultation with an experienced Redwood City Family Law Attorney.

Sacramento Divorce Attorney Discusses Paternity Establishment:

Establishing paternity is the process of determining the legal father of a child. When parents are married, paternity is automatically established in most cases as the husband of the mother is automatically presumed to be the child’s father. If parents are unmarried, paternity establishment is not automatic and the process should be started by both parents as soon as possible for the benefit of the child. Unmarried parents can establish paternity (legal fatherhood) by signing a voluntary "Declaration of Paternity” form. This can be done in the hospital after the child is born. A Declaration of Paternity may also be signed by parents after they leave the hospital.

Unmarried parents who sign the Declaration of Paternity form help their child(ren) gain the same rights and privileges of a child born within a marriage. Some of those rights include: financial support from both parents, access to important family medical records, access to the non-custodial parent’s medical benefits, and the emotional benefit of knowing who both parents are.

In an effort to create a legal link between unmarried fathers and their children, the California Department of Child Support Services joined other states in a partnership with licensed hospitals and clinics with birthing facilities to establish the Paternity Opportunity Program (POP). This voluntary in-hospital paternity acknowledgement program, implemented in January 1995, involves about 330 of California’s licensed hospitals and clinics with birthing facilities. The program has since been expanded to prenatal clinics, county welfare offices, local vital records offices, and courts.

If you have a question regarding paternity establishment please contact Sagaria Law at 1-800-941-6730 for a free consultation or visit us at www.sagarialaw.com. Our team of Family Law Attorneys can assist you with all aspects of your case. We have attorneys in San Mateo, Monterey, Fremont, Salinas, Sacramento and San Jose.

San Jose Divorce Lawyer Discusses Long Term Marriage Spousal Support

Almost everyone remembers the divorce between Nicole Kidman and Tom Cruise. Tom ended his divorce with Nicole just a few weeks shy of their 10 year anniversary. Some say that he was slick for doing so and avoiding having to pay Nicole spousal support for an indefinite amount of time.

Under FamilyCode 4336, “except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration.” The last part “long duration” has been long fought over because it is so ambiguous. Case law has established a “long duration” to be 10 years of marriage. The standard for support for a marriage of less than ten years is half the time of the marriage. This means that if a couple was married for 6 years, support would be granted for about 3 years.

The rub comes when the marriage is for longer than 10 years where one of the parties may have been kept from working or gaining any work potential. In these cases, the Court will have jurisdiction to continue support for longer than the usual “half the time that the couple was married” standard. The court takes into account many factors with a long-term marriage. Whether the party getting support can become employed, they’re standard of living and the supporting party’s ability to pay.

If you have a spousal support issue our team of experienced and talented family law attorneys handle all aspects of divorce, temporary and permanent spousal support, as well as all other family law cases. We have four Bay Area locations, including Redwood City, San Jose, Monterey, Sacramento and Fremont. We offer a free consultation, either in person or over the phone. Call today 1-800-941-6730 to schedule your free consultation with an experienced Fremont Divorce Attorney.

Sacramento Divorce Attorney Discusses Child Custody:

California has a “joint custody” law that encourages judges to award joint “legal custody” to parents. This means that both parents have a right to make decisions concerning their children, such as education, medical treatment and religious training. The court also has the power to award “physical custody” to one or both parents. Physical custody determines where the child actually lives, and it is most common for the children to spend most of their time with one parent. The parent who does not have primary physical custody is usually granted “secondary physical custody,” also called “visitation rights.”

It is most common for the non-custodial parent to have specified periods of time consisting of alternating weekends, one evening per night and one-half of the children’s school vacations. In some cases, the parents agree to “reasonable” secondary physical custody or visitation rights, which means that the parents agree on the times when the non-custodial parents will have the children.

In some cases, a judge will issue orders preventing either parent from changing the residence of the children from a specified geographical area. Locally, it is not uncommon for a judge to restrain the parents from removing the residence of the children from what are referred to as “the seven Southern California counties.” Such orders are common where both parents have a considerable amount of time with the children and removing them from the metropolitan area would be disruptive to the children and their development.

Over the last ten years, courts in California have been dealing with the right of a custodial parent to move with the children to another metropolitan area or out of state. The California State Supreme Court recently decided a case that settled this controversy. Under the new rule, the custodial parent generally has the right to decide where the children are to live, as long as he or she is not moving simply to deny the other parent access to the children.

If you have a question regarding Child Custody and Visitation please contact Sagaria Law at 1-800-941-6730 or visit us at www.sagarialaw.com for a free consultation. Our team of Family Law Attorneys can assist you with all aspects of your case. We have divorce attorneys in San Mateo, Monterey, Fremont, Salinas, Sacramento and San Jose.

San Jose Divorce Attorney Discusses Community Debts

Debts incurred during marriage are sometimes very sensitive topics. Sometimes, one spouse is unaware of the debts that the other spouse incurred, and yet they are still made to pay for it. Therefore, it is good to know about how debts are divided on divorce.

In Tracy Achen’s article regarding credit debt on divorce, she cautions that if both of the parties applied for credit together, then each party is responsible for repaying the debt. Since creditors are not bound by a divorce decree, if the account goes into default because of non-payment, both parties are held liable for the debt. Therefore, if you think that charging up the credit card and not paying is going to stick it to the other person, you are wrong. It only makes matters worse because you will be also be charged with that debt. Your credit score will also go down based on the default and non-payment.

As long as there's an outstanding balance on a joint account, both of you are responsible for it. So keep making the payments so that your credit score won’t go down. A divorce is already financially costly, try not to make the costs worse.

If you have questions regarding your divorce and community debt 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, Sacramento and San Jose. Please call us at 408.279.2288 for a free consultation or visit us a www.sagarialaw.com.

Redwood City Divorce Attorney Discusses Spousal Support:

When a married couple gets a divorce, the court may award spousal support to one of the former spouses, based either on an agreement between the couple or a decision by the court itself. The purpose of spousal support is to limit any unfair economic effects of a divorce by providing a continuing income to a non wage earning or lower wage earning spouse.

Unlike child support, which in most states is mandated according to very specific monetary guidelines, courts have broad discretion in determining whether to award spousal support, and, if so, how much and for how long. The Uniform Marriage and Divorce Act, on which many states’ spousal support statutes are cased, recommends that courts consider the following factors in making decisions about spousal support awards: the age, physical condition, emotional state, and financial condition of the former spouse; the length of time the recipient would need for education or training to become self-sufficient; the length of the marriage; and the ability of the payer spouse to support the recipient and still support himself or herself.

Spousal support is only ordered for so long as is necessary for the recipient spouse to receive training and become self-supporting. If the divorce decree does not specify a spousal support termination date, the payments must continue until the court orders otherwise. Most awards end if the recipient remarries. Termination upon the payer’s death is not necessarily automatic. In cases in which the recipient spouse is unlikely to obtain gainful employment, due perhaps to age or health consideration, the court may order that further support be provided from the payer’s estate or life insurance proceeds.

If you have questions regarding spousal support, please contact us for a free consultation at 1-800-941-6730 or visit www.sagarialaw.com. 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.