California Family Law Blog

San Jose Divorce Lawyer Discusses Divorce and Custody

When getting a divorce, one of the most difficult questions is whether a parent wants joint custody or sole legal and physical custody of the child. Deciding on if joint custody is right for you depends a great deal on the ability of you and your spouse to get along. If you are to share decision-making, you must be able to sit down with your former spouse in a non-combative atmosphere and make decisions together. Shared values and parenting styles make this custody style more viable.
Here's what psychologists have found after long-term studies of families in joint-custody arrangements and sole-custody arrangements in an article from Pamela Weintraub and Terry Hillman:

Joint custody is a viable option only if the parents have an amicable relationship with each other, communicate well, and understand the nuances of their kids' day-to-day routines. Parents in this situation feel more involved in their children's lives than the noncustodial parent in the sole-custody arrangement. On the other hand, in a family where one parent says "black" and the other parent says "white," the children are better off with a sole-custody arrangement to reduce the possibility that their parents will fight over every decision that must be made on their behalf.
For parents not on friendly terms, joint legal custody (that is to say, joint decision-making) means more room for disagreement and continuation of conflict. These parents are more likely to return to court than parents who have one decision-maker (sole custody).
If you're able to communicate about the kids, are willing to live in close proximity to your ex, and have the time and resources to share "possession and access" (as they say in Texas) or "physical custody" (as it's more commonly called), then it can be a great thing for everyone. But generally, only children who tend to be easy-going by nature can adapt well to this kind of living arrangement. Children who do poorly with constant change, have difficulty adjusting to new situations, and seem to need a great deal of stability and security in their lives don't do well with joint physical custody.

In short, if you can agree to most of the following statements, joint custody could work for your family:

I will communicate openly with my ex-spouse regarding the children's needs and activities.

I can be flexible in working with my ex-spouse and put my children's needs first.

I will never bad-mouth my ex-spouse in front of my children. On the contrary, I will show nothing but respect for my children's other parent.

I will respect my ex-spouse's right to have his or her own house rules and not undermine them.

If communication doesn't work, then joint custody is not a good choice for your family.

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 Attorney Discusses Child Custody and Visitation

An article appeared in the Mercury News last week about a child custody case involving our office. The specifics of that case are not the subject of this blog, but some of the concepts involved in any custody and visitation dispute were at issue there, and are the subject of this post.

Custody and visitation cases always turn on what is in the best interests of the child or children. Best interests takes into consideration the health, safety and welfare of the children. Many times parents bring laundry lists of concerns to court that they claim affect the health, safety and welfare of the children. Many of these concerns are personality driven or involve different styles of parenting (playing indoor games versus outdoor activities, or feeding no junk food versus occasional junk food). However, there are hard cases where a parent is abusing a child, or abusing drugs or alcohol in the presence of the child, and it is those cases that test the family court system the most.

Courts and judges have only limited information in front of them. The attorneys only have the information from their clients and from the other side, not all of which is disinterested. Some of it may be misleading or untruthful. The family court system is imperfect, and tries to resolve disputes between parents on the basis of what little information it has. Ideally, parents would agree on the best custody and visitation arrangement for their children. When parents agree, it typically results in a better outcome for the children.

Sometimes a case is so bad that it ends up not in family court, but in juvenile dependency court. This happens when CPS becomes involved and removes the child or children from the home. These children then become wards of the state. Parents in dependency cases are closely monitored, and given reunification plans. These plans typically include counseling, parenting classes, visitation (supervised and unsupervised), and drug testing as needed. There are regular meetings with social workers and frequent court dates regarding the status of the case. This is very different from family court where parents are often ordered to take similar classes and other provisions, but there are fewer instances of monitoring. Its places the burden on parents to ensure compliance or to enforce non-compliance.

Custody cases are often emotionally charged and the most difficult cases to handle. There rarely is one right answer, a fact that frustrates many parents. 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 Actor/Singer Tyrese’s Divorce Woes Mount

Tyrese has been in the news a lot lately. The parties were married a mere 10 months, before filing for divorce. The parties had signed a pre-nuptial agreement limiting the terms of support and property division. Apparently, the wife recently filed seeking a modification not only of support, but also of custody and visitation, and attorney fees.

Tyrese has an annual income that undoubtedly puts him in the high earner bracket. California law requires both parents to support their children. Child support is calculated using a formula that considers the incomes of both parties, as well as the timeshare. Typically, this formula results in a number which becomes the child support amount. Sometimes, courts will adjust the number either up or down to reflect additional expenses, or for some other reason. The Court has to consider the lifestyle of a high earning parent, and order support in an amount to enable that child to share in his or her parent’s lifestyle. Recent reports indicate support in the range of $6,000 - $7,000/month was ordered.

Additionally, it appears that the wife is contesting the prenuptial agreement. The agreement allegedly has a provision in it that for every year of marriage, the wife would receive $50,000 lump sum. Unfortunately, since the marriage lasted a mere 10 months, the terms imply the wife will receive nothing. She is now claiming she was essentially coerced into signing the prenuptial agreement.

According to California law, a prenuptial agreement is considered involuntary unless the party against whom it is asserted was represented by independent counsel or expressly waived, in writing, such representation had at least 7 calendar days to review prior to signing; and there must have been full disclosure of all assets and obligation.

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

Fremont Divorce Attorney Discusses Securing Medical, Life, and Homeowners Insurance

Securing medical, life, and homeowners insurance for yourself and your children must be considered during pre-divorce settlement negotiations with your soon-to-be ex. Insurance issues may be complicated and largely the purview of lawyers but you need to be actively involved to protect yourself and anyone who depends upon you. You should know that your life insurance policy could still cover your spouse even if you two are divorced and no longer a part of each other's lives. You need to negotiate who will be paying the premiums. If husband is to pay, he can stop paying or cash in the policy and leave you with nothing unless life insurance is a negotiated part of the divorce settlement.

To protect the children, make sure that your divorce settlement states that the children are to be kept as the beneficiary and make sure that your spouse shows proof of it each year. If your spouse allows the policy to lapse, your ex may not have to reinstate the policy unless ordered by the court. Get it in writing before the divorce is finalized. If you would like only your children to benefit financially from your life insurance policy, you will want to open a trust fund and then name the trust as the beneficiary and name a trustee to manage the proceeds. Many banks offer this service. This way your ex will never get parental control over any of the money left to your children should you die before they are of legal age.

You can also prevent your children from giving any of the money to your ex by setting up the trust fund and stipulate that the children cannot receive any of the money until they are young adults. The normal age of legal maturity for such trusts ranges from 18 to 21. You may also stipulate that the insurance proceeds be restricted to higher education use only and held in trust until your children or other heirs avail themselves of the money for education.

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 Fears of Divorce

Divorce is a tough time for everyone that has to go through it. Although most people will come out stronger and better off than staying in an awful marriage, a little mental divorce preparation never hurt anyone. Bruce Derman, Ph.D. and Wendy Gregson, MS give us three different circumstances for why couples may want to get divorced and to overcome the fears of divorce.

The first situation is you want the divorce, but I am not sure if it is the right decision. Since going through a divorce affects the lives of your children as well as your lifestyle, economics, and marital investment, the pressure to make the "perfectly correct" decision is enormous. Unfortunately, there are no guarantees. The best-case scenario is to make a decision that is not emotionally based, nor driven by your ego.

The second situation is when you do not want the divorce, but your spouse does. Being in this situation place will leave you feeling out of control and a helpless victim. You will experience intense emotional devastation, as your life will be changing before your eyes without you having any say in the outcome. In addressing this dilemma, you need to ask yourself if you are clinging to staying on familiar, safe ground and to a marriage based on illusions. It is not easy to acknowledge and confront the problems in a marriage, when you are feeling so hurt by your partner.

The third situation is when only you want this divorce because your marriage is not working. If this is your dilemma, then you will want to avoid responsibility at all costs by seeing your partner to blame for the downfall of the marriage. There will be tremendous preoccupation and anger about how your partner caused you to make this decision. The amount of noise generated from this blaming will be in direct proportion to your unwillingness to risk expressing any of your own fears and sadness. If this doesn't occur, the divorce proceedings to follow will be riddled with tension and conflict, and a continuation of the blaming.

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 Attorney Discusses Guardianships

Lately, our office has fielded a bunch of calls from people interested in setting up guardianships for minor children either who are friends or family. One of the first questions is usually, what is a guardianship and why would a child need one?

A guardianship is established by a court order when the court appoints an adult, who is not the parent, to be responsible for a minor. This may occur if a parent is deceased, incarcerated or otherwise unable to care for a minor child. Guardianships are specific to children – where an adult is unable to care for themselves, the appropriate procedure is a conservatorship.

There are two types of guardianships: of the minor’s person, and of the minor’s estate. A guardianship of the minor’s person means the guardian has legal custody of the minor and is responsible for the minor’s well being. The guardian provides food, shelter, health care, and assumes responsibility over education and religious development, and can obtain medical treatment for the minor. A guardianship of the minor’s estate is not typical, unless the minor has substantial assets, usually from an inheritance.

Certain circumstances do not require a guardianship. These circumstances include short-term caregiving (up to 3 months), or a minor whose parents are living, or a stepparent caregiver. For situations such as these, it is useful to consider a Caregiver Authorization Affidavit, which allows the informal guardian to obtain medical care and enroll the child in school. A Guardianship Authorization form gives a nonparent caregiver a broader range of responsibility including applying for health insurance and obtaining benefits for a child.

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 Headlines Scream Mel Gibson Getting Divorce

The internet and entertainment news sources are abuzz with the recently filing for divorce by Mel Gibson and his wife of 28 years, Robyn. Gibson, who is known not only for his movies, but for his strongly held extremely conservative Catholic beliefs, seems an unlikely candidate for dissolution, but the petition filed by Gibon’s wife cites irreconcilable differences. The long-term marriage was not preceded by a pre-nuptial agreement, so under California law all property acquired during marriage (except as a result of a gift, bequest or devise) is community property. That means that the millions of dollars earned from movies during the last 28 years, and the assets acquired with those funds are community property and subject to division in the dissolution.

Among the issues likely to be raised in the dissolution are distribution and division of property, spousal support, and attorney fees. Six of the parties’ seven children are past the age of majority, but since one remains a minor, the Gibsons will likely be addressing child custody, visitation and support issues in addition to those identified above. Rumors are circulating that the reason for the split is Mel’s infidelity with a Russian singer recently signed by his record label.

One possible issue may be the date of separation. Some sources say the parties formally separated some time ago, whereas others indicate the last straw was the new girlfriend. The petition filed by Robyn Gibson, apparently lists the date of separation as TBD, whereas Mel Gibson’s response indicates it as August of 2006, nearly 3 years ago. The date of separation matters because 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).

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 Family Law Attorney Discusses Property Distribution

Both divorce and the death of a loved one are difficult life events for people to cope with. Both of these situations also deal with property distribution. It becomes a more complicated situation when someone dies whom you are in a divorce with because there are competing laws regarding property distribution: estate law, and community property law. Community property law states that everything that is acquired during marriage is the couple’s community property to be split in half on divorce. However, estate law allows for a person to distribute their assets in the event of their death to any person that they choose. So what happens when the decedent dies and wants to give away community property to another person? First, the ex-spouse or current spouse of the decendent has two options when someone dies. 1. The can elect to take from the will of the decedent or 2. they can elect to take their community property share. But the surviving spouse is not allowed to elect to take both. Therefore, in this event the surviving ex-spouse or current spouse should consider which distribution gives them the most assets and elect to take the more advantageous approach.

Either way death and divorce are times of difficulty and it will be hard to discuss property and distribution in the event that these things happen. However, these events are inevitabilities that need to be considered so that one can be protected when they are faced with these difficult situations.

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