California Family Law Blog

Fremont Divorce Attorney Discusses Tax Time and Family Law

It’s tax season again, and for families involved in the family law court system, one of the issues is nearly always who is going to claim the child on their taxes, better known as the dependency exemption. This is a separate issue from the filing status, where one parent files as Head of Household.

Normally, the parent with physical custody of a child for the greater portion of a tax year is entitled to claim the child as a dependent for tax purposes. However, the non-custodial parent may claim the child if the custodial parent agrees and signs a declaration (an IRS form) releasing the exemption to the non-custodial parent. The non-custodial parent must include this form with his taxes.

Many custodial parents release the exemption to the other parent, either in alternating years, or permanently for tax reasons which can lead to increased child support. If parents have joint physical custody of a child, and alternate claiming the child, it is best to have it clearly laid out in a written agreement which parent claims the child in which year (Mom gets even years, Dad gets odd years).

California law generally is similar to federal law in regards to how children are claimed as exemptions. There is one significant exception, and that is California has a joint head of household credit for parents with joint physical custody arrangements. Under federal law, the head of household status is only available to the parent with the child for the majority of physical time, and the status cannot be released to the other parent. It is a fact based determined, not a legal one which can be exchanged.

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 or visit www.sagarialaw.com

San Jose Divorce Lawyer Discusses Hague Convention’s Custody Provisions in News Lately

The United States is one of 68 nations that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. It provides a mechanism for the expeditious return of child wrongly taken from one member state to another. The primary purpose of the Convention is to ensure the status quo custody arrangement existing immediately prior to the alleged wrongful removal or retention thereby discouraging a parent from crossing international boundaries in search of a more sympathetic court.

California has enacted a statute specifically to deal with the issues raised under the Convention and possible child abduction. California Family Code Section 3048 requires the court to identify the basis for the court’s exercise of jurisdiction and the identification of the country of habitual residence. In cases where there is a risk of abduction, the court may, among other options, order supervised visitation, posting of a bond, restricting the right of a parent to leave the county, state or country; and/or restricting the right of the custodial parent to relocate unless he/she provides advance notice of and written approval of the move from the non-custodial parent or a court order. In determining whether there is a risk of abduction, the court must assess whether: (1) a party has previously taken, enticed away, kept, withheld, or concealed a child in violation of the right of custody or of visitation of a person; (2) a party has previously threatened to take, keep, or conceal a child in violation of the right of custody or of visitation of a person (3) a party lacks strong ties to this state (4) a party has strong familial, emotional, or cultural ties to another state or country, including foreign citizenship. This factor shall be considered only if evidence exists in support of another factor specified in this section; (5) a party has no financial reason to stay in this state, including whether the party is unemployed, is able to work anywhere, or is financially independent, (6) Whether a party has engaged in planning activities that would facilitate the removal of a child from the state, with consideration given to whether a party is carrying out a safety plan to flee from domestic violence (7) a party has a history of a lack of parental cooperation or child abuse, or there is substantiated evidence that a party has perpetrated domestic violence, or a criminal record.

The Convention provides that the court in which a Hague Convention action is filed should not consider the merits of any underlying child custody dispute, but should determine only that country in which those issues should be heard. Return of the child is to the member nation rather than specifically to the left behind parent.

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 or visit www.sagarialaw.com

Sacramento Divorce Lawyer Discusses Jon and Kate Plus 8 Rumored to Be Splitting

The internet is abuzz with rumors that Jon and Kate Gosselin, of Jon and Kate Plus 8 fame, are splitting up. Putting aside the actual truth of such a rumor, let’s examine the many issues a divorce with eight children and a tv show produces. Let’s further fictionalize the situation by setting it in California.

Custody and Visitation

Custody and visitation are not going to be substantially different with eight kids than with two, except it presents logistical problems for the parents in terms of transportation. Another issue that may present is living arrangements and whether all 8 kids would have the same schedule. Many families cannot afford two residences comparable to the one residence they shared, regardless of the size of said family. Would the Gosselins have the same problem? After all, they currently have an enormous house, but its one where the children share bedrooms. Additionally, the Gosselins have substantial resources, so were they to split, those resources could ease that transition.

Child Support

Child support depends on visitation and income, as discussed in previous blog posts. The Gosselins likely earn a significant income from their tv show. However, its in no way clear that a tv show premised on a big happy family would continue in the event of a divorce. There’s no way to predict how high or low a child support order would be in a case like this. If one or both parents is a high earner, support will be higher than if the parents are low to moderate earners. Additionally, caring for 8 children is, in and of itself, a full time job, so the parents may want to consider the high cost of child care if both parents are working. Remember, in California, parents are required to split the cost of work related child care. Even for school age children, after school care multiplied by 8 is going to add up quickly.

Division of Property

Aside from the family residence, the Gosselins would likely have a pot of money earned in the course of the tv show. Obviously these funds were earned during marriage and are community property. One or the other party may also have some funds from prior to marriage, which would be separate property.

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 or visit www.sagarialaw.com

San Jose Divorce Attorney Discusses Spousal Support and Child Support

The issue of spousal support and child support is one of contention among parties of divorce. There are times when spousal support or child support is set higher than what a party can pay. Some of these people who cannot pay their support decide to quit their jobs or cut off their income to avoid paying their ordered support. However, a person should be warned that doing this is a bad idea, because the court could then impute that party with the income that they were earning before they quit and force them to pay the amount anyways. This basically means that if the court has ordered that you pay a specific amount, you will have to pay it unless and until your ex agrees to a different amount or the court orders a different amount after you file the appropriate request. But although you claim you cannot afford the support, the judge may not agree with you. Thus if your financial circumstances have changed, you can file for a modification of your support order.

You will have to state how your expenses have changed or how your monthly income has decreased. You must have a legitimate reason in order for the Court to accept your modification and you must prove that your monthly income has diminished. Outside of a modification in a courtroom, your only other option is to ask your attorney to negotiate with your ex through his/her lawyer to see if you can get him/her to agree to a reduction in monthly payments. Though most exes will not usually agree to such modification, your request to negotiate a lower monthly expenditure is certainly worth a try. But again, you need evidence to have a chance at modification.

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 or visit www.sagarialaw.com

Fremont Divorce Attorney Discusses Divorce and Children

While getting a divorce can cause people to spiral into an emotional abyss; the people that get the most hurt are often times the children. Children thrive on routine, and when their lives are turned upside down it manifests in different ways. James M. Robbins in his article The Costs of Rising Divorce Rates Across the US gives us some helpful reasons and effects on children of divorce. While many children grow up happy and healthy following a divorce, studies have shown that this not always the norm. According to Robbins' research children of divorced parents are effected in some of the ways below:

• Are more often involved in abuse or neglect.

• Have more health, behavioral and emotional problems.

• Are more involved in crime and drug abuse

• Have more incidents of suicide.

• Perform poorly in reading, spelling and math.

• Are more likely to repeat a grade, drop out and be unsuccessful completing college degrees.

• Will likely earn less as adults than children of intact families.

• Lose their virginity at a younger age.

• Are less likely to have children of their own.

• Are more likely to divorce as adults.

• Are more likely to grow up in a level of poverty.

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 or visit www.sagarialaw.com