California Family Law Blog

Sacramento Divorce Lawyer Discusses How Even Celebrities Gets the Blues

Even celebrities with very unusual behavior gets the blues. Jackass star wife of Johnny Knoxville filed for divorce two years ago. They were officially divorced in March, 2008 in a bifurcated proceeding, reserving all financial matters for resolution at a later date. Just last week, Knoxville (real name: Philip John Clapp) settled with his ex-wife Melanie Clapp, agreeing to pay $6,000 monthly in child support for their 13-year-old daughter, Madison.The former couple split in July 2006 after 11 years of marriage. According to reports, the financial statement appears to be a fairly even split of marital property. Melanie was awarded half of their bank accounts and half of Knoxville’s residuals from the Jackass franchise and Dukes of Hazzard film, pursuant to the terms of their agreement. Knoxville retained his share of several production companies. The parties will share joint custody of Madison, their daughter.

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 Divorce and Separation

Even though people are very emotionally taken under during a divorce, separation can also lead to a great deal of physical harm as well. It makes sense since when your psychology and emotions are affected, it will show in you physically as well. CTV news has an article regarding the effects of divorce on a person’s health. Researchers found that women in unhappy marriages are more likely to experience injurious effects to their health than men. Although both genders are likely to suffer from general depression resulting from a strained marriage, women more frequently suffer from signs of “metabolic syndrome”: including high blood pressure, obesity and other risk factors of heart disease, stroke and diabetes. In fact, men for the most part did not face an increased risk of metabolic syndrome at all. Involving 276 couples aged 40 to 70, the study entailed couples filling out several questionnaires, including three to examine positive aspects of marriage quality; three to measure negative aspects of marital quality involving arguments and feelings of hostility; and four to determine symptoms of mild depression.

It’s best to keep a cool head and realize that divorce happens to many people, but it’s all in the way you deal with it. The way you deal with things can mean health and happiness in looking forward to a new life, or stress that can hur you physically down the line.

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

Redwood City Divorce Attorney Discusses Social Networking and Divorce: Yays and Nays

Now that everyone and their dog (or their spouse) is on Facebook, MySpace and the various other social networking sites, individuals can easily keep track of friends, family and even ex-spouses. Its either the best thing to happen for divorcing families or the worst.

Couple of things to watch for on these sites if you are getting divorced:
1. Don’t brag about fancy new purchases, extravagant vacations or other indulgent luxuries. You don’t want your ex-spouse to find out about it and use it to claim you have more money than you say you do when it comes to child support or spousal support. Courts can and do use expenses as a guide in support calculations.
2. Delete all your crazy party girl or boy photos. This is especially true for people with children. First of all, your kids don’t need to know how much partying you are doing. Second, you don’t want that one fun time used to portray you as an alcoholic partier who cannot be trusted with the kids.
3. Don’t let your friends through you under the bus. Your ex may troll your friends pages for similarly disparaging photos.
4. Keep it calm: it’s ok to be stressed during a divorce, but keep the sh** talk to your self. Especially about the judge and your ex. You don’t want to show up in Family Law Court one day and have the opposing side hand the judge a copy of your Facebook wall wherein you describe the judge in negative terms. And if you have kids, definitely avoid the negative talk about the ex. Family courts are serious about the no disparagement clauses in custody agreements. That includes no disparagement on Facebook.

Everyone understands the value these sites provide. But as always, it’s a good idea to mind your ps and qs while using them, especially when you are under a microscope, which you frequently are in divorce or other family law action.

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 West Wing Actor is Divorcing Malcolm in the Middle Wife
Bradley Whitford, known primarily for his role on The West Wing, is divorcing his wife of sixteen years, Jane Kaczmarek. The parties have three children together, and have professed to the media a desire for privacy so they can focus on their children.

The longtime couple lives in Los Angeles, and filed for dissolution in Los Angeles County. This means their dissolution will be controlled by California community property law. Possible issues include custody and visitation, support (child and spousal support) and property division.

Child support is likely going to be granted to the primary custodial parent, using California’s guideline support calculator. This calculator focuses on income and respective timeshare between the parents. Because the parties are both fairly high earners, the court may decide to deviate from guideline if that calculation results in an extraordinary amount of support.

Spousal support is less likely. Both parties are successful actors, with Ms. Kaczmarek currently starring in Raising the Bar, and Mr. Whitford engaging in theatrical and film pursuits of late.

There is no information as yet about the extent of the parties’ assets, or how they have been acquired. After a marriage of 16 years, it seems likely there will be substantial amounts of community property to divide up, unless the parties entered into a prenuptial agreement.

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 Affect of Filing a Family Law Case on Travel with Children

Now that we are in the midst of summer and vacation plans are being made – visits to grandma’s house, trips to Disneyland, etc., many people who are in the early stages of a family law case should be aware of what their limitations may be and plan their vacations accordingly.
Often times when someone opens a family case – either a dissolution, custody and visitation or paternity case, they are usually unaware of what exactly the repercussions are of filing. In California, when a family law case is opened, a Summons is issued and a standard family law restraining order is issued. This is also referred to as the Automatic Temporary Restraining Order (ATRO). The Petitioner, party who filed the case, is automatically subject to the ATRO upon filing the case, and the Respondent is subject to the ATRO upon being personally served with the Summons.
The ATRO specifically prohibits both parties from “removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court.” This means that if you are a party to a family law case, you should not be planning on traveling outside of California without first getting permission from the other party or first requesting permission from the Court. For example, if Mom filed for divorce and was planning on taking the children to Washington to visit grandma, she better first ask Dad if its okay, or request permission from the Court.
Parents who are further into the court process should also take further caution. Generally when a court makes orders regarding custody and visitation, they may also make orders preventing both parties from traveling outside that particular county without the permission from the other party or the Court. This practice is common in most counties.

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 an Exception to the Rule

People magazine reports that the Countess LuAnn de Lesseps divorce is now complete. The process was relatively expedient, given the high amount of assets and issues involved. The Count and Countess dissolved their union after 16 years of marriage and producing two children, Victoria, age 14 and Noel, age 12. Although the full details have not been disclosed, it appears that the Countess has received a very generous spousal and child support award, primary custody of the two minor children, and a $7.5 million estate in the Hamptons. She even gets to keep her title! This relatively simple resolution of their marital issues is certainly not the norm, especially in the current economic climate.

In California, couples that have decided to end their marriage are currently often faced with the consequences of short-selling or allowing their homes to go into foreclosure because neither spouse can afford to maintain the mortgage payment on one income. The inability to sell the family home for a profit creates a severe hardship for parents hoping to use equity from their home to start over. This often leads to increased demands for spousal and child support, which creates additional acrimony in an already difficult situation.

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 How the Recession Changes Face of Divorce in California

As the economic downturn continues to damage housing values, force job losses and cuts in services, one thing that has not changed is that couples are still divorcing, child support is still being sought, and property is still being divided. What has changed is how those divorces are proceeding, in terms of financial awards and assets.

One of the largest assets in any divorce is typically the house. That asset used to have, particularly in California, equity which could be used to either buy the other party out or sold and divided equally between the parties. Frequently, we are now seeing that the houses not only have no equity, but that the parties owe substantially more than the house is worth, and often, the parties are behind on payments, or will be when the two-income household is no longer in existence. This poses a dilemma for family courts, parties and attorneys – how do we get divide a negative asset? Every couple has to decide for themselves, but options include a short sale, returning the property to the bank, or allowing the party who can make the mortgage to assume responsibility for the property.
Other issues being affected by the recession include child and spousal support. As one or both party loses their jobs, the need for support increases, but often the income that maintained the standard of living during marriage is no longer available to the parties. This lack of income can force families to make hard decisions about where to live, where to send children to school, and how to get buy on substantially less income.
The recession has also pummeled many people’s retirements, leaving many spouses wondering what happened to the financial nest egg. Fortunately, many 401(k) type accounts can be divided in kind, so that as the financial markets change and begin to recover, so too will the 401(k).

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 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

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

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

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

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

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

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.

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.

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.

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.

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.

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.