California Family Law Blog

San Jose Divorce Attorney Discusses Poor Economy Affects Child Support

As unemployment rises, more and more people are falling behind on their child support. Child support orders, at least in California, do not automatically reset to 0 when someone loses their job. The payor needs to seek a modification of support in order to avoid falling behind on payments.

A payor who does not seek modification is not only accumulating arrears, but could potentially be in contempt of court for non-payment. Arrears accrue interest at the legal rate of 10%, and the more you owe, the worse the interest. Additionally, the local child support agency or the other parent could seek to have you held in contempt, a potentially criminal proceeding that can result in jail time for non-payment.

To find someone in contempt in California, the party seeking the citation must show that the contemnor had knowledge of the order, willfully chose not to obey the order, and had the ability to comply with the order. For parties not paying because of strapped finances, the 3rd prong is the hardest to prove. If you are receiving unemployment, chances are your unemployment benefits will be garnished showing you are trying to pay, which helps with prong 2.

If you are having trouble meeting a child support order, you should seek the advice of an experienced family law attorney. Even if you have not lost your job, there may be other circumstances justifying a modification – additional children, changed income, or changed timeshare.

Here at Sagaria Law, we offer a full range of family law and legal services including divorce, paternity, adoption, child custody and visitation matters, child support, spousal support, alimony, juvenile dependency, domestic violence, division of property, grandparent visitation and custody, etc. We have seven Northern California locations including San Jose, San Francisco, Redwood City, Fremont, Salinas, Roseville 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 and we can connect you with an attorney immediately or we can schedule your free consultation with one of our family law attorneys: (408) 279-2288 or (800) 941-6730 or visit www.sagarialaw.com

Sacramento Family Law Attorney Discusses No-Fault Divorce

People get divorced for many different reasons. A prevalent reason is infidelity. Many people decide to get divorced because their wife or husband has cheated on them. Once the cheated on spouse finds out about the infidelity, divorce most likely ensues. I then becomes a battle between spouses and usually the cheated on spouse feels some sort of entitlement for punishing the cheating spouse by taking all the community assets. However, California has what is called a no-fault divorce. This means a married person may terminate the marriage even if the other person disagrees. California no-fault divorce acknowledges that both husband and wife have contributed in some way to the marriage's breakdown, so one party is no longer "punished" financially or otherwise for being solely to blame for the marriage's failure.

One advantage of California no-fault divorce is that parties don't have to waste time and money to prove grounds. It reduces the need to litigate for about grounds and allows couples to move on to important issues, such as custody, child support, maintenance and distribution of marital assets. Fault does not enter into settling property division or support. California is a community property state, which means that all assets and liabilities the parties earn or acquire during the marriage are presumed to be shared and must be divided equally unless the parties agree otherwise. So, rather than looking for which party has the biggest list of complaints against the other, the California Family Courts now try to create an equitable agreement based on what each spouse will need to be financially independent and off public assistance.

So, rather than looking for which party has the biggest list of complaints against the other, the California Family Courts now try to create an equitable agreement based on what each spouse will need to be financially independent and off public assistance.

Here at Sagaria Law, we offer a full range of family law and legal services including divorce, paternity, adoption, child custody and visitation matters, child support, spousal support, alimony, juvenile dependency, domestic violence, division of property, grandparent visitation and custody, etc. We have seven Northern California locations including San Jose, San Francisco, Redwood City, Fremont, Salinas, Roseville 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 and we can connect you with an attorney immediately or we can 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 - Countess Seeks over $100K Monthly Spousal Support!

The web is abuzz with the story of the Swedish countess who was married to an American investment banker and is now seeking to set aside their post-nuptial agreement that would have awarded her $43 million as a settlement following their brief marriage from 2002-2005.

The case of the Swedish countess brings up interesting questions about spousal support for family law attorneys, judges and litigants. After all, who really needs over $100,000 a month in spousal support? The lovely countess and her soon to be ex husband are litigating in Connecticut, but were they in California, the rules would as follows.

Temporary spousal support is set based on the needs of the parties and the ability to pay. It is usually a result of a computer based formula calculation, although judges have discretion to deviate from the formula amount as needed. This amount is subject to modification if one party loses or gains a job, or income source, or if their needs change dramatically.

Permanent spousal support, on the other hand, is actually driven by the Family Code and requires consideration of multiple factors. California Family Code § 4320 factors include: the earning capacity of the parties and the marital standard of living, the relative employability of each party; domestic violence, assets and obligations of the parties, age and health of the parties, tax consequences, and the duration of marriage. Other factors are also considered.

So while the countess’s request for $130,000 a month in spousal support may seem extreme to some readers, what if she and her husband routinely spent $250,000 or $300,000 a month on their basic living expenses: housing, food, etc. While not a typical marital standard of living, that would, in fact, be the standard these parties were accustomed to during marriage, and would make her request seem somewhat more reasonable.

Here at Sagaria Law, we offer a full range of family law and legal services including divorce, paternity, adoption, child custody and visitation matters, child support, spousal support, alimony, juvenile dependency, domestic violence, division of property, grandparent visitation and custody, etc. We have seven Northern California locations including San Jose, San Francisco, Redwood City, Fremont, Salinas, Roseville 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 and we can connect you with an attorney immediately or we can schedule your free consultation with one of our family law attorneys: (408) 279-2288 or (800) 941-6730 or visit www.sagarialaw.com

San Francisco Divorce Attorney Discusses Spousal Support

Spousal support can be granted based on a number of issues in order to keep the marital standard of living for the spouse needing the support. However, contrary to what people believer, spousal support can be terminated before the the receiving spouse gets re-married. If the receiving spouse starts living with their boyfriend of girlfriend but remain unmarried, the receiving spouse's support can be terminated. Family Code 4323 (a) (1) states "Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1. (2) Holding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision." This means that by just moving in with a new boyfriend or girlfriend creates a rebuttable presumtion that the receiving party is being supported by their new significant other. It is up to the receiving spouse to prove otherwise.

Cohabitation, however, is very hard to prove. Boyfriends and girlfriends spend time at each others homes without necessarily cohabitating with each other. More often than not, boyfriends and girlfriends will even the spend the night at each others homes without cohabitating with one another. This means that even if a person spends almost every night at their significant other's home does not necessarily consitute cohabitation. Therefore, if you are looking to prove cohabitation, it would be best to find a lease with both parties' names or some other concrete evidence that the parties live together.

Here at Sagaria Law, we offer a full range of family law and legal services including divorce, paternity, adoption, child custody and visitation matters, child support, spousal support, alimony, juvenile dependency, domestic violence, division of property, grandparent visitation and custody, etc. We have seven Northern California locations including San Jose, San Francisco, Redwood City, Fremont, Salinas, Roseville 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 and we can connect you with an attorney immediately or we can 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 Toronto Raptors Player In Child Support Dispute

Chris Bosh, the power forward for the Toronto Raptors, is the subject of a complaint filed in the state of Maryland by an ex-girlfriend seeking child support for their four month old daughter. Mr. Bosh, through representatives, has claimed to already be financially supporting the child, and to have filed a suit in Texas prior to the child’s birth to ensure child support (and custody). The parties are likely to be engaging in a jurisdictional suit as well as a substantive one about support itself.

Why, you ask, does it matter what state support is established in? Every state has slightly different laws regarding the calculation of child support, and in this case, some states are more generous than others, especially where one parent is an exceptionally high earner such as Mr. Bosh likely is. Apparently Texas has a rule of thumb that support is usually up to and no more than $1,500 in support unless a judge decides a specific child has needs that warrant a larger amount. This is different from California, for example, where child support is calculated from a formula using income and timeshare, and leaves very little to the discretion of judges.

Sometimes, in cases of professional athletes or other high-earners, the court in California will deviate from the computer formula, known as “guideline”, because the amount may be excessive. Other times, however, the court will go with the guideline formula because under California law, children are entitled to live in the same standard of living as their parents, whenever possible. A professional athlete such as Mr. Bosh likely earns in excess of $1 million dollars annually, and probably lives a lifestyle similar to what is expected of someone with that earning potential. The child, under California law, would be entitled to share in the lifestyle of that parent.

Here at Sagaria Law, we offer a full range of family law and legal services including divorce, paternity, adoption, child custody and visitation matters, child support, spousal support, alimony, juvenile dependency, domestic violence, division of property, grandparent visitation and custody, etc. We have seven Northern California locations including San Jose, San Francisco, Redwood City, Fremont, Salinas, Roseville 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 and we can connect you with an attorney immediately or we can 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 Divorce and Custody

Can you still be a housewife if you aren’t married?

News reports today indicate that one of the “Real Housewives of New York City,” Countess LuAnn de Lesseps, and her husband, Count Alexandre de Lesseps have separated and are headed for divorce. The Count and Countess have two children, ages 14 and 12, and have been married for 16 years.

No details are available yet, but we can guess what the issues might be: property division, child support, child custody and visitation. Hard to say if spousal support will be an issue. The Countess is a former model, and the Count is… a Count.

As for the children, one is in boarding school, so there’s likely going to be an issue with educational expenses in addition to child support. In California, private school tuition is not a mandatory addition to child support unless the parties agree to it. However, in these circumstances, it seems quite likely the parents will wish to continue with the particular schools for their children.

It is also possible that special circumstances exist because the Countess is an American Indian, so her children are also Native Americans, and therefore fall under the Indian Child Welfare Act. The ICWA, as it is known, does not apply to custody litigation in a dissolution, but it requires special precautions in the event there is a possibility of custody being awarded to a non-parent. In this case, it seems unlikely, but its good to know.

One issue that seems certain to rear its head is adultery. The rumor mill says the reason for the divorce is the husband has been cavorting with a lovely Ethiopian woman in Switzerland. Most states have eliminated fault based divorce, so probably not going to be a relevant issue, but expect it to be discussed.

The marriage of the Count and Countess was a fairly long one, 16 years, and they probably have acquired substantial assets during those 16 years. Depending on the nature of all that property, its all going to need to be divided. California law requires that community property be divided between the parties, but each party retains whatever property is theirs as a result of gift, bequest or devise. Also, each party retains whatever was brought to the marriage. In the case of the Count and Countess, one or both of them may have separate property or income from separate property from prior to marriage.

Here at Sagaria Law, we offer a full range of family law and legal services including divorce, paternity, adoption, child custody and visitation matters, child support, spousal support, alimony, juvenile dependency, domestic violence, division of property, grandparent visitation and custody, etc. We have seven Northern California locations including San Jose, San Francisco, Redwood City, Fremont, Salinas, Roseville 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 and we can connect you with an attorney immediately or we can 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 Legal Separation vs. Divorce

Even though a marriage is going under, some people are not ready to take the steps towards getting a legal divorce. This could be because the parties may want to reconcile or do not want to break their ties completely yet. However, the parties probably still want to protect their assets and no longer want to be formally together. Before making a decision on divorce a person should know the differences and ramifications of choosing a legal separation and divorce.

There are several significant differences between a legal separation and a divorce. For instance, spouses must agree to a legal separation. If not, a legal separation automatically becomes a divorce. Second, there is no waiting period. In the state of California, it takes six months to become divorced. However, a legal separation can happen immediately. Finally, there is no residency requirement for a legal separation. A spouse does not have to live in the state for six months before filing the action. Most importantly, a legal separation will not allow the spouses remarry in the future.

A legal separation is not an appropriate lawsuit to file simply because a spouse is unsure about a divorce. If a spouse does not want a divorce, the filing of a legal separation almost always ends up in the other party requesting a divorce. If there is hope of reconciliation, a party should not take legal action of any kind. Generally speaking, it is usually appropriate to file a legal separation only in a very narrow set of circumstances: Divorce is against the spouses religion and neither party plans on remarrying; the parties need to remain married for an additional period of time in order for one spouse to be eligible to claim an interest in the other's Social Security benefits; one spouse has significant medical issues which prevents him or her from obtaining private medical insurance; neither spouse has lived in the state long enough to file a regular divorce action.

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, San Francisco, Redwood City, Fremont, Salinas, Roseville 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