California Family Law Blog

San Jose Divorce Attorney Discusses Bifurcation—Termination of Status

The common myth in divorce is that a person is automatically “divorced” after six months from the date of filing. However, this is not true. A person is only qualified to be “divorced” if all issues including community property have been resolved. However, if a person wants to have the status of “single” and possibly remarry, they can make a motion to bifurcate just their status. This means that all the community property issues and any other unresolved issues remain however, a person may have the status of “single” in stead of “married.”

What needs to be noted is that before a bifurcation will be granted the party must also join any pensions or retirement plans as a party to the case. This is pursuant to Family Code §2337 which states that in a proceeding for dissolution of marriage, the court may sever and grant a bifurcation of status apart from the other issues that need to be resolved in the marriage. Under the statute, prior to the entry of judgment terminating status “the party’s retirement or pension plan shall be joined as a party to the proceeding for dissolution.” This is because pension plans especially must be divided by the time it was accumulated during the marriage. Therefore, timing issues and division issues can arise if the pension is not joined as a party prior to the bifurcation of status. With a bifurcation, you will still have to deal with the difficult issues that arise out of divorce, like property division and custody (if there are children). But at the very least, this gives people the emotional closure that they need to move on.

If you have questions about child custody, or child support, or any other family law matter, the attorneys at Sagaria Law can help. We have a team of attorneys experienced in all types of family law cases, including divorce, paternity, support and property division. We offer a free thirty minute consultation, either over the phone or in person at any of our five Northern California locations: Redwood City, Fremont, San Jose, Sacramento, Salinas. Call 1-800-941-6730 or visit us online at www.sagarialaw.com today to schedule your free consultation.

Fremont Divorce Attorney Discusses Notice of Divorce

Deciding to get a divorce is a difficult decision, sometimes made more difficult by the fact that you may no know where your spouse is to tell them that you want to get a divorce. This happens more than people think. One spouse moves away or leaves the other spouse without telling them where they went or for how long. Since a divorce petition needs to be served on the other party or the other party must have notice of the petition, this problem can cause an obstacle to getting a divorce. In this instance, notice to your spouse can often be satisfied through “service by publication". This means that you must publicize your divorce petition in a regularly circulated newspaper or magazine. This process takes about 3 months in order for service be considered proper. To get the court to accept this form of service, you'll have to prove that you have made a diligent effort to locate your spouse and by "diligent", we mean more than just a few phone calls.

Once you've exhausted all of your efforts and received approval of the court, you can publish an ad in a local newspaper notifying your missing spouse of the divorce proceedings in process. Notice that the ad is run after the divorce is filed and the choice of which newspaper is typically left up to you, although you may want to verify this with the court clerk as there may be a recommended paper typically used by the court or a requirement as to the size of the paper's circulation for such matters.

Assuming your missing spouse does not respond within a given timeframe, your divorce would then be granted as a default judgment. The court would grant you a divorce and decide all of the terms of the divorce in the manner which you have requested.

If you have questions about divorce, child custody, or child support, or any other family law matter, the attorneys at Sagaria Law can help. We have a team of family law attorneys experienced in all types of family law cases, including divorce, paternity, support and property division. We offer a free thirty minute consultation, either over the phone or in person at any of our six Northern California locations: Redwood City, Fremont, San Jose, Sacramento, and Salinas. Call 1-800-941-6730 today to schedule your free consultation.

San Jose Divorce Attorney Discusses Date of Separation Issues

Kate Walsh, Star of Private Practice, Getting Divorced After Only 15 Months of Marriage – Dispute Arises Over Date of Separation

In December, Kate Walsh’s husband, Alex Young, filed for dissolution of marriage, citing irreconcilable differences. In her response, Ms. Walsh apparently disputes the date of separation. By 5 days.

You may be wondering (a) how can anyone not know when they separated, and (b) why does it matter?

The answer to (a) is that the date of separation is not simply an objective test of what day it was, but a subjective matter that occurs when either of the parties does not intend to resume the marriage and his or her actions exhibit the finality of the marital relationship. Ergo, sometimes couples have a discussion and decide together that they are splitting up and they agree on the date of separation. Other times, one party decides the marriage is over and takes actions when demonstrate this in some way. The question for the court is whether the rift in the relationship was perceived by both parties as “the nail in the coffin.” So, Ms. Walsh apparently believes the marriage ended 5 days sooner than her husband. She will have to show that she had the subjective intent to not resume the marriage.

The answer to (b) is the date of separation matters because that is when the community ends. In California, a community property state, all income earned after the date of separation is that spouse’s separate property. All property acquired after that date is separate property (unless the source of funds for the property is community property funds). So theoretically, those 5 days could make a difference. A party could win the lottery 3 days after separation with a lottery ticket purchased the day after separation and those winnings could be 100% separate property.

California community property law is, at times, complicated and requires sophisticated legal advice. If you are pursuing dissolution, legal separation, or an annulment, we highly recommend you consider obtaining counsel. Here at Sagaria Law, we offer a full range of family law legal services, from divorce and property disputes to custody and visitation matters. We handle all types of family law actions, including adoptions, guardianships, parentage, dissolution and support. We have five Northern California locations including San Jose, Redwood City, Fremont, Salinas and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today to schedule your free consultation with one of our family law attorneys: (408) 279-2288 or (800) 941-6730.

Sacramento Divorce Attorney Discusses Joint Physical Custody

Many fathers believe that mothers always get physical custody of the children, but while that may have been true 20 or 30 years ago, things are a lot different now, especially here in California. Two changes in the law have contributed to this increase in joint physical custody: (1) a statute preventing preferring a parent because of their gender; and (2) changes in child support calculations that consider the percentage of time spent with each parent.
California Family Code Section prevents preferring one parent to the other solely on the basis of that parent’s gender. This means that courts cannot prefer mothers as the custodial parent simply because they are mothers. When one parent cannot be preferred solely on the basis of gender, the courts then consider what type of custodial arrangement is in the best interests of the child. This has meant that many fathers are able to secure more than every other weekend with the children, and for some, an equal timeshare with the other parent, allowing the children equal time with both parents.

Additionally, California laws regarding child support mandate the court consider not only the income of the parents, but the amount of time the child or children spend with the parents. Non-custodial parents can have their child support adjusted to reflect the actual time spent, which, all other things being equal, usually results in support being modified downward.
These changes have led to a rise in fathers having joint physical custody of their children. Whereas in the past fathers might have had every other weekend, many fathers now have at least one mid week visit, if not a 50/50 schedule with the children. While this arrangement requires parents to have a working co-parenting relationship, its often in the best interests of the children to have frequent visitation with both parents.

If you have questions about child custody, or child support, or any other family law matter, the attorneys at Sagaria Law can help. We have a team of attorneys experienced in all types of family law cases, including divorce, paternity, support and property division. We offer a free thirty minute consultation, either over the phone or in person at any of our six Northern California locations: Redwood City, Fremont, San Jose, Sacramento, Salinas and Monterey. Call 1-800-941-6730 today to schedule your free consultation.