California Family Law Blog

San Jose Family Law Attorney Discusses Children and Divorce

Children have it hardest in a divorce. The kids think it's their fault or they are confused as to why their parents are angry and leaving each other. Therefore it is important to keep them isolated from the negativity that inevitably surrounds a divorce. Dr. Allan Schwartz gives us 5 mistakes that parents should avoid when dealing with their divorce below:

1. Do not use your child as a messenger between you and your ex spouse.

2. Do not use your children as your therapist.

3. Do not criticize your ex spouse to the children.

4. Avoid the "third degree" when the child returns from a visit with their father or mother.

5. Repair the damage you've already done.

Depending on the age of the children, violating these rules could have damaging results for the children. They can become angry at both parents for using them as pawns in their parents' divorce. Especially if the children are older and in their teens. Younger children may feel confused by their parents' interrogations. Many divorced parents reading these tips may recognize mistakes they've unintentionally made with their own kids. Is it ever too late to undo emotional fall-out from a nasty split? Dr Schwartz says no and advises parents to apologize to them because "saying you're sorry" goes a long way with your kids. Explain in detail exactly what you did wrong, and then commit to changing your behavior from that moment on." No two divorce situations are identical and many divorced people experience frustrated and angry feelings of hurt and betrayal. It is common for people to demonize their former spouse and attempt to propagandize the children into their way of thinking. However, this is a short sighted way of thinking that does not take into consideration the emotional well being of the child and future adult.

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

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Posted In: Child Custody & Visitation , Child Support , Division of Property , Divorce , Family Law , Family Law Issues

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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

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Posted In: Child Custody & Visitation , Child Support , Division of Property , Divorce

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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

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Posted In: Child Custody & Visitation , Child Support , Division of Property , Divorce , Family Law , Spousal Support & Alimony

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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

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Posted In: Division of Property , Divorce , Family Law , Family Law Issues , Santa Clara County Family Law Issues

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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

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Posted In: Child Custody & Visitation , Child Support , Division of Property , Divorce , Family Law

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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

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Posted In: Child Custody & Visitation , Child Support , Division of Property , Divorce

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Sacramento Divorce Lawyer discusses divorce and dividing assets

Not all divorce cases are contentious cases where the parties are fighting over every penny of their estate. Many times, there are ways where the parties are able to resolve their issues on their own and have very amicable divorces. The California judicial system promotes both parties settling matters without the stepping in to do so for them. Therefore, the judge in a divorce case will most likely refer the parties to mediation before the court will make any decisions on the pending issues to give the parties a chance to work out the details on their own.

At the mediation session, the mediator generally gives an opening introduction of the mediator's expertise, how the process works, what the mediator understands about the issues in dispute and asks for the commitment of both parties that they are at the mediation in good faith to try to resolve the issues in the case, and asks each side generally for a non-confrontational opening statement. The mediator generally separates the parties into two rooms and shuttles between the parties to help them narrow their issues and come to an agreement. The agreement that is made is reduced to writing and signed by the parties. The parties do not have to see each other during the mediation, which lessens the tensions between the parties and better promotes settlement.

It’s always better to have you be in control of your own assets and your own decisions then letting the court make those decisions for you. Thus, if you are ever referred to mediation, take advantage of the time to settle the matter amicably and in a way that is comfortable for you.

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

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Posted In: Division of Property , Divorce , Family Law

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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.

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Posted In: Child Custody & Visitation , Child Support , Division of Property , Divorce , Family Law , Legal Separation

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Fremont Divorce Attorney Discusses Division of Assets

Besides matters relating to children, the division of assets is often the most hotly contested issue that arises during divorce proceedings. Over the course of a marriage, a couple’s finances become intimately intertwined and separating finances can prove time consuming and frustrating. Divorcing spouses must split all of their finances, property and assets and this can be a long and arduous process that must be mediated by an outside entity such as the courts and a judge.

Each state has its own laws about how people are to divide their property. In California, we are a community property state and determining who owns what can be a very complicated process. The first step in dividing property is determining what community property is and what constitutes separate property. Separate property usually includes gifts, inheritance, and personal injury settlements, pensions acquired before marriage and a separate property or business. Sometimes separate property can become mixed with community property, which complicates an already complex situation.

The most common types of community property that become issues during divorce include family homes, pensions acquired during the course of the marriage, family businesses, and any jointly owned property that cannot be clearly identified as separate. These properties often take quite a bit of time to process and if they are not distributed equally, the court can sometimes mandate that they be sold in order to compensate for the inequity of asset distribution.

If you have a question regarding asset division 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.

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Posted In: Division of Property , Divorce , Family Law , Family Law Issues , Santa Clara County Family Law Issues

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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.

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Posted In: Division of Property , Divorce , Family Law , Family Law Issues , Santa Clara County Family Law Issues

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San Jose Divorce Attorney Discusses Retirement Plans and Settlement

Many people who are in a divorce are faced with many issues regarding division of assets and settlements. One of those problems is the division of a retirement account. If some of the portion of your settlement consists of retirement assets, you should be aware of the tax ramifications and potential penalties involved. William Donaldson and Adam Westphalen in their article state the penalties involved when parties are subject to divorce and must divide their retirement assets.

West phalen and Donaldson advised that most of the time, distributions from a retirement plan prior to age 591/2 are considered "early distributions" and are subject to a 10% penalty tax as well as ordinary income tax. There is an exception to this rule. It is a transfer to an ex-spouse as part of a divorce settlement. A Qualified Domestic Relations Order (QDRO) is used to affect this transfer. Income taxes still apply, so any assets you receive from a "qualified plan", such as a 401(k), will be subject to a mandatory 20% tax withholding. This means that, if you are awarded a $100,000 distribution from an ex-spouse’s 401(k) you will actually receive only $80,000.

To avoid this mandatory withholding, the transfer must be made directly to another retirement account, such as your own IRA. Once the assets are in your retirement account, you are now subject to the early distribution rules. If you need some of the assets to live on, or pay bills, make sure you take them out prior to transferring them to an IRA to avoid the 10% penalty.

If you have questions regarding your divorce and retirement asset 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 Family Law Attorneys in San Mateo, Monterey, Fremont, Salinas, and San Jose. Please call Sagaria Law at 408.279.2288 for a free consultation or visit us a www.sagarialaw.com.

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Posted In: Division of Property , Divorce , Family Law , Family Law Issues , Santa Clara County Family Law Issues

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San Jose Divorce Attorney Discusses Community Property:

Equal ownership of community property assets has never been dependent upon a determination of labor or talent. Men and women are considered equal partners in a marriage in California. Each shares marital property equally regardless of whether their assets were earned by one or the other. For example, if the wife is a highly paid attorney and the husband is unemployed, the differential in actual earnings is irrelevant to the ownership rights of each.

Both marital parties are an equal agent of the partnership, binding it if acting within the scope of his or her authority and if acting for the joint benefit of the family. The California community property system adds to joint ownership the right of equal management and control. In dissolution of marriage, the court is empowered to allocate assets of comparable value to the former husband and wife to make the overall division of the gross marital estate substantially equal, and each asset does not have to be divided.

The theory behind the division of property is that dissolution of marriage should be treated much like the dissolution of a business partnership. Regardless of the conduct during the existence of the partnership, on dissolution the partners receive a portion of the assets commensurate with their respective partnership interests. The trial court may divide the community property, where warranted, by methods such as awarding an asset to one spouse conditioned upon later payments or making offsetting awards of the community assets. Even when this occurs, the spouse must receive property of an approximate equal value.

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

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Posted In: Division of Property , Divorce

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Monterey Divorce Attorney Discusses Community Property Declaration

If you are considering filing for a divorce in California or you have spoken to a Monterey Divorce Attorney, then you probably have some idea how community property laws will affect your property division after a divorce, however, you may not realize how much or your property is considered community property. Anything accumulated during your marriage is considered community property in California unless it was a gift or an inheritance. Anything that is community property must be divided during the divorce and your spouse is entitled to one-half.

Most people realize that community property laws will impact how bank accounts are split and whether a house must be sold but there are other assets that people often overlook. A good example of this is in the case of John Moores and his wife Becky who are going through a very public divorce. Mr. Moores is owner of the baseball team the San Diego Padres and his wife filed a motion with court over access to the owner’s box at the stadium. Of course most couple do not have such expensive items like a luxury box at a professional stadium to worry about but they may have two season tickets to a professional sports team. This is a community property item. Also most people overlook other items like frequent flyer miles and vacation time accrued during marriage.

Any item acquired during marriage in California is presumed to be community property and can be divided in kind, i.e., splitting stock shares, or monetary compensation paid out, receiving one-half of the value of your spouse’s accrued vacation time. As community property assets can be varied it is important to consider all of the possible community property assets that you may be entitled to.

If you are considering a divorce please contact our office to schedule a free consultation at the office nearest you. We have offices in Monterey, Salinas, San Jose, Fremont and Redwood City.

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Posted In: Division of Property

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San Jose Family Attorney Discusses Division of Personal Injury Damages in Divorce

Personal injury awards are subject to special characterization and division rules in a divorce. Unlike most property, characterization of money or property received or to be received as personal injury damages depends on when the cause of action arose; it is not affected by when the actual proceeds are received. In other words, if the cause of action arose during the marriage, and prior to separation, the award for damages are considered community property. If the cause of action arose before marriage, or after separation, the award for damages are considered separate property. Additionally, personal injury damages received by one spouse pursuant to a personal injury claim against the other spouse, are always the separate property of the injured spouse, regardless of when the cause of action arose.

To the extent that the Court finds that a personal injury award is community property, it is subject to special division rules. Unlike most community property subject to equal division, community personal injury damages must be assigned to the injured party unless the court determines that the interest of justice require another disposition. In making this determination, the Court will take into account the following factors: (1) the economic condition and needs of each party, (2) the time that has elapsed since recovery of damages or accrual of the cause of action, (3) all other facts of the case. After consideration of the factors, if the Court determines that the personal injury award should not be entirely assigned to the other spouse, the non-injured is assigned a proportion which the Court determines to be just. The amount assigned to the non-injured spouse, however, may not exceed half the damages. Additionally, when more than half to he personal injury damages are awarded to the injured spouse, case law has determined that the other party is not entitled to an offsetting award of other community property to make the overall division of community property equal.

Circumstances in which community personal injury awards may not be awarded entirely to the injured spouse include those in which the community has incurred costs in caring for the injured party; or where commingling of the personal injury damages with other funds make tracing the source impossible.

If you or someone you know is going through a divorce, the team of attorneys at Sagaria Law, P.C. may be able to assist you. Our attorneys deal with all aspects of family law and can assist you through any stage of your divorce. We serve clients through the bay area and have offices Santa Clara, Alameda, and Monterey Counties. Contact our office today to set up a free consultation with one of our attorneys

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Fremont Family Law Attorney Discusses Taxes and Divorce

With tax season upon us if you are currently going through a divorce or separation it is very important to consider tax implications. The first question to consider is how to file your taxes. There are generally three options available. Filing as "Head of Household" may save you the most money and varies with income. In order to qualify you must pay more than half the cost of keeping up the home and a qualified person, such as a child, must be living with you.
The second option is to file jointly which may be more beneficial to you and your spouse, according to experts. Joint filing means you are both responsible for all taxes and are each entitled to a prorated share of any refunds. It also might put you in a better tax bracket. If there are additional taxes or penalties because of fraud or negligence on past returns, you could potentially qualify as an "innocent spouse.” Filing separately is generally the last way to file. This option usually means paying the most taxes. However, you are only responsible for your own taxes.
It is important to discuss with your spouse who will be claiming the deductions available in order to avoid both parties duplicating the deductions when filing separately which can lead to problems and penalties. Generally if you are in the middle of a divorce it has already been decided who will claim the children but if not that issue must be worked out. The dependency exemption is usually decided when the parties have a child support order. The parties must also decide how property deductions for mortgage interest and property tax payments will be allocated.
Specific questions about your return should be asked directly of your tax preparer but if you have any questions related to your divorce such as how to agree on who claims the children for the dependency exemption or who can file as head of household please contact our office to set up a free consultation. Our team of attorneys can explain all aspects of a divorce from property division to child and spousal support. We have attorneys in Monterey, San Jose, and Fremont who would be happy to assist you.

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Posted In: Division of Property , Divorce , Spousal Support & Alimony

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San Jose Divorce Attorney Discusses Fiduciary Duty Between Spouses

In California, spouses owe each other a fiduciary duty, which is defined in California Family Code §§ 721 and 1100. In a nutshell, California Family Code requires each spouse to act in the highest good faith and not take unfair advantage of the other when doing things involving property division that involve the other.

This fiduciary duty includes, but is not limited to, the duty to disclose “all material facts and information regarding the existence, characterization and valuation of all assets in which the community has or may have an interest and debts for which the community is or may be liable,” as well as all material facts and information relating to the income and expenses of each party. Moreover, each spouse must “provide equal access to all information, records, and books that pertain to the value and character of those assets and debts, upon request.”

Spouses undergoing a divorce are under an obligation to disclose all material facts and information regarding the existence, characterization and valuation of assets and debts, and about income and expenses. The purpose of this section of the Family code is to ensure spouses do not conceal assets or intentionally mislead the other spouse about the extent or nature of assets or income. The code requires the disclosure of all material facts and information regardless of whether the asset is community property or separate property in nature.

The effects of a violation of the fiduciary duty provisions of the Family Code, intentional or unintentional, are substantial. The violation of any provision of California Family Code § 2102 results in mandatory sanctions. The court is required to order the party violating this code section to pay the reasonable attorney and expert fees incurred by the other party as a result of the violation, and to impose a form of punitive damages in the nature of “money sanction” unless there was “substantial justification” or “other circumstances” which makes the sanction unjust.

Whether you are in a marriage with millions of dollars in assets or just a few thousand, you are bound by these provisions in the Family Code. We strongly recommend all parties seeking a divorce consult with one of our attorneys. We offer a free thirty minute consultation, either in person or over the phone, where we can assess the nature and complexity of your case. We have offices in three Bay Area locations (Fremont, San Jose and Monterey), and handle cases throughout the region. Our experienced attorneys specialize in family law and can guide you through the somewhat complex and difficult process that is getting a dissolution. Call our office today to schedule your free consultation.

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San Jose Family Law Attorney Discusses Division of Stock Options in Divorce

Generally, community property, or property that is not specified by statute to be separate property, will be divided equally between the parties in a dissolution action in California. Certain property, however, have specific rules for how the property is characterized and divided in a divorce; among them are stock options. With the big “internet boom” in Silicon Valley, and the proliferation of companies issuing stock options to their employees, more and more couples are presented with the questions of how to divide this asset in a divorce.

When stock options are granted to an employee before the date of separation but do not become exercisable until after separation, the Court has found that it has broad discretion in allocating the community and separate property interest. Stock options are generally considered community property, and therefore subject to division, to the extent that work done to earn them is performed between the date of marriage and the date of separation. Thus, in order to figure out if the option is subject to division, the period of employment to which the option may properly be allocated needs to be ascertained. According to case law, the circumstances of the grant must be discovered in order to allocate the option to a period of employment.

When stock options are granted to an employee after separation, at least one Court has found that those options were entirely the separate property of the employee spouse and not subject to division because the employee had no expectation of the grant, and could profit only if the stock value rose after the date of the grant.

If you or someone you know is going through a divorce, the team of family law attorneys at Sagaria Law, may be able to assist you with your case. We can answer any questions you may have regarding division and characterization of property and will assist you through the process. We also handle custody, support, and other family law matters; and work with client from Santa Clara County, Alameda County, Monterey County, San Mateo County, and surrounding areas. Contact our office today to schedule a consultation with one of our attorneys.

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San Jose Family Law Attorney Comments on the Current Housing Market and Divorce

All across the nation and particularly throughout the Bay Area, the housing market has seen a slump in sales and an increase in foreclosures. Although a decline in real estate sales creates a difficult situation for people would-be sellers, throwing a divorce into the mix makes a difficult situation, even more complicated. News sources report that support groups for women going through divorce are finding that more and more real estate woes are creeping into the discussions.

Take for example, a couple who agrees to split the equity in their family residence as part of their divorce settlement. The longer their family residence stays on the market, a divorcing couple does not have the ability to purchase a new home. In a place like the Bay Area where rent is increasing and cost of living is high, couples may be forced in continue to live in the same house, or one spouse may be stuck in a house, with an overbearing mortgage. The main problem with both of these arrangements is it may make it difficult for the couple to leave the divorce behind and move forward with their lives. Perhaps one option for some divorcing couples may be for one spouse to refinance the mortgage on the property, and then buy out the other spouse’s equity in the house.

If you or someone you know is going through a divorce, the team of family law attorneys at Sagaria Law, may be able to assist you with settlement negotiations on property issues and any other aspect of your case. We regularly handle all aspects of family law and work with client from Santa Clara County, Alameda County, Monterey County, San Mateo County, and surrounding areas. Contact our office today to schedule a consultation with one of our attorneys.

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San Jose Divorce Attorney Discusses Real Property Issues

If you are thinking about a divorce or are already going through divorce proceedings then the current housing market issue is of concern to you if you own real property. It is imperitive that you seek the aid of a San Jose Family Law Attorney. It can be very difficult when facing divorce proceedings to consider how to dispose of assets. Many people do not even seriously consider what to do with their community property family residence until much further along in their divorce proceedings. Unfortunately in the current housing market this is an issue that should be considered and when possible discussed with your spouse. If your home is in a price range that is subject to the lowering of the housing market then time is of the essence. The longer you wait to list your home for sale the more its value could fall. There is also the issue of how long it will take to sell. Once you have completed your divorce you will most likely prefer not to be tied to your ex-spouse by a house that has not sold. Therefore the sooner this issue is decided the sooner you can take action.

Selling your home is not the only option available. You may consider whether or not it makes sense to buy out your spouse’s interest in the residence or even defer a sale of the residence. A buy out of your spouse’s interest is a decision that requires a careful look at your overall finances with your spouse. There may be other assets that instead of splitting equally could be used to off-set your spouse’s interest in the residence you wish to buy-out. Additionally if it is necessary to refinance the property to accomplish the buy out then you must consider whether you can afford that monthly payment without your spouse’s financial assistance. A deferred sale of the residence is another option but requires a consideration of a number of factors including tax implications.

At Sagaria Law our team of attorneys is experienced in all areas of community property and real property implications. We have offices located in Santa Clara County, Alameda County and Monterey County where we would be happy to meet with you for a free consultation.

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Under the California Family Code, debt incurred during a marriage is considered community property or each party owes half of it. While community debt common for auto loans, mortgages, or credit card debt, does it also apply to gambling debt? For example, if a husband went to Reno and bet $10,000.00 on the Oakland Raiders to win last week’s football game and they lost, then is the community should be responsible for that $10,000.00? Is the wife responsible for $5,000.00 of the debt even though she never knew of the bet?

Although a wife whose husband gambled away the retirement fund as well as marriage has no recourse against the casino, she may have recourse in the divorce. Under the California Family Code, gambling loss during marriage is considered a debt not in the benefit of community property and, therefore, the husband’s separate debt. That means that the husband owes the community for the money lost and the wife can offset that lost money against other property in a divorce. This is not surprising since no wife would ever agree to a bet on the Raiders regardless of the odds. Therefore, the wife could get her $5,000.00 back by taking more of the equity in the house, getting the better car, or just taking more of the remaining cash left in the community account.

However, California is not so kind to the husband who bet against the Raiders and won big. All gambling winning made during marriage is considered community property and the wife is entitled to half of that at divorce. Therefore, the husband will have to give half his winnings to the wife in the form of more equity in the house, the better car, or just more cash. The moral of the story is that the house may have an edge on the odds but the wife can’t lose, sort of.

If you need to consult an attorney regarding a divorce with gambling involved, please contact Sagaria Law to setup a free consultation.

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The general rule when it comes to dividing marital property at dissolution, also referred to as community property, is equal division. For example, if a married couple purchases a home together, each party is entitled to a one-half interest in the equity of that home they purchased together. However, these days it is not uncommon for one spouse to enter a marriage having already purchased a house. Imagine a situation in which one spouse (Spouse A) purchases a house before marriage. Spouse A makes the down payment, and starts paying the mortgage. Spouse A then marries Spouse B; they continue to make mortgage payments on the house. Spouse A and B then decide to get divorce. The question is how much of the equity in the house is each spouse entitled to? Under the law, when community funds are used for mortgage payments on property purchased by one of the spouses before marriage, the community acquires a pro-tanto interest in the ratio that the payments on the purchase price made with community funds bear to the total payments on the purchase price, and any appreciation must be apportioned accordingly. (Marriage of Moore, 28 Cal. 3d. 366 (1980)). The approach, further clarified in the Marriage of Marsden 130 Cal. App. 3d 426 (1982), indicates that the community interest is determined by the ratio that the payments on the purchase price made with community funds bear to the total payments on the purchase price. Similarly, the separate interest is determined by the ratio that the payments on the purchase price mad with separate funds bear to the total payments on the purchase price. Going back to our interest above, Spouse A is entitled to one half of the community interest and the separate interest. Spouse B, is entitled to one half of the community interest.

As a practical matter, the following are the “key figures” that each spouse needs to determine their respective interest: (1) purchase price, (2) amount of down payment, (3) amount of payments on loan principal made with separate funds, (4) amount of payments on loan principal made with community funds, (5) fair market value of the house at date of marriage, and (6) the fair market value at time of division. While an appraiser can determine the value of the house at various points and time, it is critical that spouses keep accurate records of mortgage payments in order to accurately assess their separate and community interest.

If you or someone you know is going through a divorce, our team of attorneys at Sagaria Law can help assess your interest in marital property under varying circumstances. Moreover, our office deals with all aspects of family law including divorce, property settlement, child custody, child and spousal support. We represent clients throughout the bay area and have offices in Santa Clara, Alameda, and Monterey County. Contact our office to schedule a free consultation with one of our attorneys today.

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Our Fremont divorce lawyers recognize that the decision to move forward with a divorce is never an easy one. The family attorneys in our Fremont and San Jose offices stumbled upon a recent article in USA Today that explains five common mistakes people make when dividing their finances during a divorce, and the information contained in this article could be very helpful to anyone facing a similar situation.
1. Many couples scrambling to obtain a divorce settlement wish to keep the house at any cost. However, financial experts say that more attention should be given to who can afford to maintain the property, pay the mortgage, and manage the taxes. While it is possible to ask for spousal support to help make the mortgage payments, unexpected maintenance costs may pop up, and make home ownership more of a liability than a luxury.

Continue reading "USA TODAY: TOP 5 MISTAKES COUPLES MAKE IN A DIVORCE" »

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They say that money cannot buy happiness. Yet, to those who desire luxurious material goods, the pricey homes, manicured lawns, and luxury automobiles nestled among the rolling hills of Palo Alto and the tree-lined streets of San Jose’s Rose Garden District symbolize a level of comfort highly coveted by the average American. Nevertheless, while a life steeped in wealth may seem intriguing and desirable to many, a new report published by Forbes Magazine today indicates that spending power does not equal staying power when it comes to moneyed marriages. According to the study, conducted by Connecticut firm Prince and Associates, nearly 50% of America’s wealthiest citizens indicate that they are stuck in unhappy marriages, and over 50% of those surveyed report that they have been or are currently involved in an extramarital affair. It comes as no surprise to our family law attorneys in Santa Clara County that one third of the individuals surveyed for the study were examining divorce as an option.
In the experience of family attorneys in Monterey County or Santa Clara County, where there are many wealthy residents, divorce is a financially intimidating prospect, but not an impossibility. If a person is in an irretrievably broken marriage, it is better to research divorce as a solution than to give up and exist in a miserable or unfaithful relationship.

Continue reading "Santa Clara Family Attorneys Examine the Lifestyles of the Rich and Unfaithful" »

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Divorce lawyers in Santa Clara, Alameda, and Monterey Counties are certainly familiar with the relationship between divorce and real estate. Spouses who have not worked could view the real estate market as their ticket to financial freedom, provided that they are able to win a settlement that is sufficiently bolstered by a large amount of equity. Conversely, the breadwinner could decide that a division of community property would still afford him or her a comfortable single life. Therefore, the decision to separate may be palliated, or even solidified, by a profit made from selling the marital home. According to a recent article in the Chicago Tribune, unhappy couples caught in the middle of a “real estate-enabled divorce” are scrambling to cash in on their homes and make a quick profit on their equity. This trend is especially notable in areas where those who have managed to hold on to their homes in the midst of a faltering real estate market could stand to generate a sizeable profit.

Continue reading "Divorce and Real Estate" »

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Donna Black is asking a San Diego court to grant her the status of “Putative Spouse.” James and Donna Black filed for divorce a few years ago—although the proceedings hit a snag when Black admitted to still having been married to someone else when he married Donna in 1978. Apparently, his first marriage was several days away from being officially terminated when he tied the knot a second time. A court in Tennessee therefore found his second marriage to be not valid and, therefore, Donna was not entitled to their community property, such as the shares he owns in the Biopraxis, the biotech company in San Diego that he helped build. The admission also prevented James, 75 from having to pay spousal support to Donna. Donna and James have three children together.

In California, if any member of a couple believes that they were in a valid marriage that was actually void, a court can declare that one or both parties be given the status of putative spouse. This person could then be entitled to receive alimony and a division of the former couple’s joint property.

Community property is characterized as all of the property, assets, and debts that each party in a couple acquired during a marriage. As California is a community property state, when a couple divorces, they must equally divide their community property unless they signed a prenuptial or postnuptial agreement where other arrangements was made.

Hiding assets to prevent the other party in a divorce proceeding from obtaining their equal share of the community property is illegal.

Examples of How Someone Might Hide Their Assets:
· Paying a salary to an employer that does not exist
· Not letting the government know about certain streams of income
· Asking one’s employer to delay the date of bonuses or raises
· Hiding money in their child’s name
· Hiding assets in a safe deposit box

Continue reading "Woman Is Asking California Court To Grant Her “Putative Spouse” Status, As Bigamy And Dementia Complicates Divorce Proceedings " »

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Singers and former real life/reality tv couple Nick Lachey and Jessica Simpson have finally settled the division of their financial assets. Although the couple’s divorce was finalized earlier this year, they just recently signed a "written stipulation" regarding their financial situation in Los Angeles Superior Court.

As the couple did not have a prenuptial agreement prior to their marriage, each spouse was entitled, under California law, to half of the financial assets acquired by both of them during their marriage. Simpson was reportedly the moneymaking spouse, earning $36 million during that time. She reportedly refused, however, to give half of her earnings to Lachey.

Under the new agreement, Lachey won’t receive $18 million, but he will receive significantly more than the $1.5 million she had initially offered to give him. Details of this new agreement are being kept private.

Community Property State
The state of California is a community property state, which means that all property acquired by a couple during the marriage is considered "community property" and—unless otherwise agreed upon or barring a premarital agreement—must be equally divided in terms of total net value when the marriage is dissolved.

Continue reading "Divorced Couple Jessica Simpson and Nick Lackey Settle Division of Financial Assets" »

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Our office represents clients with many different issues in regards to divorce, child custody and visitation, and spousal and child support. Recently, the court ruled on a case that pertains to an issue that occurs after a judgment for divorce has been entered. The Second District Court of Appeals recently held that the presumption of undue influence arising from interspousal trasaction in which one spouse obtains an unfair advantage over the other does not apply to a postmarital agreement in which (1) both spouses obtain advantages, both are represented by independent, comptetnent counsel, (3) the "disadvantaged" spouse is offer full access to other spouse's business records relating to marital assets, and (4) both spouses acknowledge in their agreement that netiher has obtained an unfair advantage.

Continue reading "Presumption of Undue Influence Does Not Arise Unless Spouse Obtains Unfair Advantage" »

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