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 Francisco Divorce Lawyer Discusses Divorce

There was a time when divorces were not common and many people will hold on to their marriage no matter what happened. However, through the years, when married couples started to encounter problems in their marriage, they would turn to divorce more and more to solve their problems. The divorce statistic is getting higher each year. What is the reason and why do marriages fail? Andrew Kristen in his article "Why do Marriages Fail?" gives us some insight into some of the top reasons as outlined below:

1. Lack of care and concern. When one party is spending too much time outside such as work, friends or hobbies, this can fade the love slowly in the relationship leading to no communication and understanding in each other.

2. Nagging. too much nagging can be bothersome causing adverse impact on the marriage.

3. Possessive and Jealousy. Being possessive is not showing out your love to the person. When a person is too possessive, he or she will get jealous and controlling over small issues as well. Reacting like this is as good as taking away the freedom and space in the marriage.

4. No Respect Respecting each other is one way to make a marriage strong and happy. Criticizing and not showing respects can kill a marriage slowly.

5. Arguments. Arguments are one top reason why marriages fail. It all begins when one party does not know how to fight fairly. Disagreements occur when both react negatively.

6. Overboard Habits. Each person has different habits. However, when it is hurting the family or relationship, quarrels become more frequent. Bad habits such as gambling, drugs, violence are very difficult for most people to accept.

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: Divorce , Family Law , Family Law Issues , Santa Clara County Family Law Issues

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Sacramento Family Law Attorney Discusses Child Support for 21 Children

Tennessee man has 21 children to support, and not from the same woman. The children ranger in age from 11 years to 11 months. How you ask, can a man possibly pay child support for 21 children? Apparently in, Tennessee, he can’t. Some of the mothers only receive about $2 in child support from him every month. $2! Clearly these mothers end up requiring state assistance in many cases with such a miniscule amount of child support being paid.

Most states calculate child support on the basis of income and timeshare. It no longer depends exclusively on income or requires one parent to pay a certain percentage regardless of timeshare. And, most states, Tennessee included, adjust child support based on the number of children to support. And all states require child support where the custodial parent is receiving public assistance.

This man does not live in California, but it seems as though there is a lot of similarity between the states. 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.

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 , Divorce

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San Jose Divorce Lawyer Discusses Divorce and Social Security Beneifits

Many people who are getting divorced are concerned with collecting Social Security benefits from their former spouse, and want to know if language to that effect needs to be included in any final judgment. In fact, Social Security benefits are controlled by federal law, so no specific language is needed.

The basic rule is that any time a marriage lasts 10 years or more, the divorced spouse with the lower earnings record can collect retirement benefits based upon the record of the higher-earning spouse. In addition to the required 10 years of marriage, there are four key qualifications to collect divorced spouse benefits:

• The person seeking to collect must not have remarried.
• This person must be 62 or older.
• The benefit this person would collect based on his or her own earnings record must be smaller than what they would collect on their former spouse's earnings history.
• The ex-spouse must be entitled to Social Security retirement or disability benefits on their own.

The benefits collected by a divorced spouse does not reduce the benefits received by the other spouse. Nor does it reduce benefits paid to a subsequent spouse of the former spouse. If you remarry, you generally cannot collect on your former spouse's record unless the later marriage ends by death, divorce or annulment.

If the ex-spouse has not yet applied for retirement benefits but does qualify, you must have been divorced from him or her for at least two years before you can begin collecting against his earnings record
Another common concern is what if the former spouse dies before you can collect Social Security benefits from him. You will qualify for survivor benefits as a divorced spouse, just as if you had been married to him at the time. And you always retain the right to the benefits you earned based on your own work history. You don't give those up even if you collect against your ex-spouse’s record. This could be an issue if you ever remarry yourself. You also can begin by collecting Social Security through a divorced spouse benefit first and delay receiving your own retirement benefits until a later date.

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: Divorce

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Fremont Divorce Attorney Discusses Getting Divorced While Living Abroad

Divorce is stressful under even the best of circumstances, and it can be particularly difficult for those living abroad. Whether you reside in a foreign country due to military service, other business or simply to be in a place you prefer to live, it won't be easy to manage a divorce across international borders. One problem international couples face when seeking a divorce involves jurisdiction. It can be difficult for those living abroad to meet residency requirements courts demand for divorce proceedings. You may not be able to dissolve your marriage in court within the country where you reside. You also might not qualify to divorce in your spouse's country of residence.

Another issue faced by those living abroad involves the time and expense involved in travel. How many times will you need to appear in a court thousands of miles away? How will you manage the costs associated with airfare, time off from work and accommodations? Issues regarding time off can be particularly challenging for those in the military.The length of time it can take to dissolve a marriage is another source of stress international couples must face. It could take a year or more to legally divorce in many countries, including the United States. If you're eager to start your own business or remarry, this delay can be devastating. In all cases, it's inconvenient and stressful to have the process dragged out for months on end.

The ultimate reason international divorces are so difficult is because they rely on government legal systems to dictate how and when couples can legally end their marriages. Even if both spouses are in agreement about the divorce and even agree on child custody and economic issues, their ability to divorce is in the hands of courts and their governments' legal systems. The only ones truly working on their behalf are family law attorneys, and divorce lawyers are ultimately in the business of making money, not making things easier.

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 , Divorce , Santa Clara County Family Law Issues

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San Jose Divorce Lawyer Discusses Divorce and Custody

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

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

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

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

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

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

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

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

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

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Posted In: Child Custody & Visitation , Child Support , Divorce

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

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

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

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

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

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Posted In: Child Support , Divorce , Family Law , Family Law Issues , Spousal Support & Alimony

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San Jose Divorce Attorney Discusses Fears of Divorce

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

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

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

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

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

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Posted In: 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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Sacramento Family Law Attorney Discusses No-Fault Divorce

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

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

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

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

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

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San Jose Divorce Attorney Discusses - Countess Seeks over $100K Monthly Spousal Support!

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

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

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

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

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

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

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

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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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Sacramento Divorce Lawyer Discusses Divorce and Custody

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

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

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

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

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

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

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

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

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Posted In: Divorce

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San Jose Divorce Attorney Discusses Legal Separation vs. Divorce

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

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

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

Here at Sagaria Law, we offer a full range of family law legal services, from divorce and property disputes to custody and visitation matters. We handle all types of family law actions, including adoptions, guardianships, parentage, dissolution and support. We have five Northern California locations including San Jose, San Francisco, Redwood City, Fremont, Salinas, Roseville and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today to schedule your free consultation with one of our family law attorneys: (408) 279-2288 or (800) 941-6730 or visit www.sagarialaw.com

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

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

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

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

Here at Sagaria Law, we offer a full range of family law legal services, from divorce and property disputes to custody and visitation matters. We handle all types of family law actions, including adoptions, guardianships, parentage, dissolution and support. We have five Northern California locations including San Jose, Redwood City, Fremont, Salinas and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today to schedule your free consultation with one of our family law attorneys: (408) 279-2288 or (800) 941-6730 or visit www.sagarialaw.com

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Posted In: Child Custody & Visitation , Child Support , Divorce

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

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

Custody and Visitation

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

Child Support

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

Division of Property

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

Here at Sagaria Law, we offer a full range of family law legal services, from divorce and property disputes to custody and visitation matters. We handle all types of family law actions, including adoptions, guardianships, parentage, dissolution and support. We have five Northern California locations including San Jose, Redwood City, Fremont, Salinas and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today to schedule your free consultation with one of our family law attorneys: (408) 279-2288 or (800) 941-6730 or visit www.sagarialaw.com

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

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San Jose Divorce Attorney Discusses Spousal Support and Child Support

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

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

Here at Sagaria Law, we offer a full range of family law legal services, from divorce and property disputes to custody and visitation matters. We handle all types of family law actions, including adoptions, guardianships, parentage, dissolution and support. We have five Northern California locations including San Jose, Redwood City, Fremont, Salinas and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today to schedule your free consultation with one of our family law attorneys: (408) 279-2288 or (800) 941-6730 or visit www.sagarialaw.com

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Posted In: Child Support , Divorce , Spousal Support & Alimony

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Fremont Divorce Attorney Discusses Divorce and Children

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

• Are more often involved in abuse or neglect.

• Have more health, behavioral and emotional problems.

• Are more involved in crime and drug abuse

• Have more incidents of suicide.

• Perform poorly in reading, spelling and math.

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

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

• Lose their virginity at a younger age.

• Are less likely to have children of their own.

• Are more likely to divorce as adults.

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

Here at Sagaria Law, we offer a full range of family law legal services, from divorce and property disputes to custody and visitation matters. We handle all types of family law actions, including adoptions, guardianships, parentage, dissolution and support. We have five Northern California locations including San Jose, Redwood City, Fremont, Salinas and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today to schedule your free consultation with one of our family law attorneys: (408) 279-2288 or (800) 941-6730 or visit www.sagarialaw.com

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Posted In: Divorce , Family Law

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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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Redwood City Divorce Attorney Discusses Common Forms and Hearings You May Encounter in your Family Law Case

Anybody who is involved in a family law case has probably thought to themselves “what a lot of paperwork!” Family law cases, whether they are divorce, paternity, support or other actions, involve lots of forms, requiring personal information, and frequently, multiple court appearances. In this edition of the blog, you will learn about the common forms you may fill out and hearings you may attend.

Income and Expense Declaration

This form is probably the one most frequently filled out in any case involving money. Parties have to fill it out every time support or attorney fees are at issue. This four page form involves two pages of income information, including source of employment, salary or wages earned, other sources of income, including spousal support, interest income, and any self employment income. The next section involves total assets and net worth of a party. Page 3 is all about expenses: rent or mortgage, groceries, gasoline, insurance, education and entertainment, among other things. Page 4 is exclusively for cases where child support is involved. The last two months worth of paystubs must be attached to an Income and Expense Declaration.

Case Management Conference Statement and Hearing

Nearly all Santa Clara county cases will encounter a Case Management Conference at some point. Parties must complete, file and serve the Case Management Conference statement ten days before the hearing. A Case Management Conference is an opportunity for the court to check in with the parties to see how the case is progressing, and if there is a role for the court to play in resolving administrative problems, such as scheduling, exchange of documents, or trial setting.

Schedule of Assets and Debts

This form is typically only used in dissolutions and legal separations, where division of assets is an issue. Parentage actions do not involve property, so assets and debts are not relevant except as they relate to income. The Schedule of Assets and Debts is a 4 page form, but this form is not filed with the court. This form requires extensive supporting documents including bank statements showing the balance of accounts, car titles, credit card and 401k statements, and any other documents that show values and balances of assets or debts.

As a party to a family law action, you probably have encountered these forms, these hearings, and others. You may have questions about the forms, or about other aspects of your case. Our team of experienced, talented attorneys here at Sagaria Law can help answer these questions. You are welcome to arrange a free consultation with any of our attorneys, at any of our offices: Sacramento, Fremont, San Jose, Redwood City, Monterey and Salinas. These consultations can be either via phone or in person, and last thirty minutes. Call today to schedule your free consultation at 1-800-941-6730 or visit www.sagarialaw.com.

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San Jose Divorce Lawyer Discusses Santa Clara County Issues New Local Rule on Tentative Rulings

It’s a new year, and that means new rules in many county courts. Santa Clara County has implemented a new local rule regarding tentative rulings in family law matters.

What are tentative rulings? Tentative rulings are a fancy legal term for when the judge reviews the file ahead of time, and based on the pleadings that each party has submitted, issues a memo about how the judge would rule on the issues as presented in the pleadings. This is not set in stone, but its designed to give litigants an idea of what the judge is thinking so they can decide if the judge misunderstood something, or if additional information would change the judge’s mind, or if they like the ruling. Importantly, tentative rulings are only applicable to cases where both parties are represented by attorneys. Additionally, many judges limit the topics appropriate for tentative rulings to matters of support and financial issues, rather than custody and visitation. However, potentially any matter can be subject to a tentative ruling, so it is key to remember to check these rulings pursuant to the local rule.

What is the new rule? Previously, in Santa Clara County, judges handed out these tentative rulings the day of the hearing and let litigants decide then if they liked them or wished for the court to hear further argument or facts on an issue. Now, judges will issue the tentative rulings the day before, and at 3 p.m. these rulings will be available via a phone call to the court and sometimes on the court’s website. Attorneys then have one hour to notify the court and opposing counsel of an intention to contest a tentative ruling and request argument on it the next day.

What does this mean for me? It means you may not have to go to court. Suppose at 3:05 the day before your hearing, your attorney (our office) calls the court and finds out the judge thinks we are right. We will not request argument, and if opposing counsel agrees with the proposed ruling, they won’t request argument, and the tentative ruling becomes the order of the court, no court appearances necessary.

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: Divorce , Family Law

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Fremont Divorce Lawyer Discusses The Rainbow of Visitation Schedules

This morning, I had a case where the parents were on a complicated visitation schedule that involved an exchange nearly every day. Neither parent particularly loved this schedule, but neither parent wanted to lose time. The challenge to parents who are divorcing, or who never were married but have kids together is how to craft a visitation schedule that is both workable, beneficial, and enjoyable.

As an attorney, I recommend that parties work together whenever possible to create a visitation schedule everyone can live with. In California, parties are required to attend mediation over any custody or visitation dispute. The goal is to get the parties to put their personal interests aside, and consider what is in their children’s best interests. I also recommend the parties reduce everything to writing because that minimizes conflict.

A popular timeshare or visitation arrangement for many families is the alternate weekend and one overnight a week plan. This is popular for a reason: stability, consistency, and plenty of time. It’s not quite a 50-50 plan, but it provides large blocks of time less often over small blocks more frequently. For working parents, its also the most reasonable – spend the time when you are not at work with your children. This schedule also seems to work for a variety of ages of children.

For parents seeking a more even split of time, people often request a 50/50 plan. 50/50 can mean many things, depending on your situation. For some families, a 2-2-3 schedule works: 2 days to Mom, 2 days to Dad, then the weekend alternates (Fri-Sun) between parents, so Week 1 – Monday and Tuesday are Mom’s Day, Wednesday and Thursday are Dad’s days, and the weekend is Mom’s. Week 2 Monday-Thursday is the same as Week 1, but the weekend belongs to Dad. Both parents get extended weekends with the kids, with Mom getting Friday to Tuesday one week, and Dad getting Wednesday-Sunday the next. Still other families prefer an week on – week off schedule, where Week 1 is Dad’s and Week 2 is Mom’s.

The most important thing to consider in a visitation schedule is what is the best interests of the children. In fact, that is the standard the court uses. So consider the children’s ages, maturity, school schedules, health issues and the location of the parties. What works for one family may not work for another.

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 , Divorce , Family Law

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San Jose Divorce Attorney Discusses Child Support

Is the father of those octuplets liable for child support?

With all the hubbub surrounding the recent birth of a set of octuplets in California, information has begun to filter out about the family situation of these children. First, their mother has six other children, and is apparently divorced. It is unknown who the father of these eight children are at this time, but it seems likely the children were conceived through some sort of assisted reproduction.

The real question is, who is the father, and is he liable for child support for these children?

Both parents are liable for the support of their children under California law. However, where a parent’s parental rights are terminated, that parent is no longer liable for support, and similarly has no rights to the child.

If the father of these octuplets was anything but an anonymous sperm donor, it seems likely he could be asked to pay child support, particularly if the mother requires public assistance to survive. Agreements to waive child support are not enforceable.

However, if the father is an anonymous donor, it is probably the case that the mother signed a waiver of support and the donor a waiver of parental rights, meaning he has no rights and no obligations to the child as a result of the donation.

How big is a child support payment for eight kids, you ask? Child support depends on two factors (primarily): income and timeshare. So, eight kids from a moderate income family may receive less support (per kid and overall) than 2 kids from a high income family. So, there’s no way to know how much support the father would potentially pay without knowing more about his financial situation, but one thing is for sure, he’ll pay more for 8 kids than he would for 2 in the same circumstances.

Here at Sagaria Law, we offer a full range of family law legal services, from child support to custody and visitation matters. We handle all types of family law actions, including 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 , Divorce

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Sacramento Divorce Lawyer Disccusses the Effects of Divorce on Children

During a divorce, it is always hard for the kids to deal with their parents separation. Many kids feel abandonment or even that it is their fault that their parents are getting divorced. One of the most harming situations for a child going through this situation is the parents fighting over custody and visitation. Many times this will cause the kids anxiety and force them to decide which parent to turn to. Holidays are one of the worst times to go through a custody battle. Making a child choose between a parent during the holidays will cause the child to not only resent the parents but also ruins their holidays altogether. Susanna Schrobsdorff from Newsweek offers some helpful tips for parents when it comes to splitting holiday time with the kids.

1. Communicate and coordinate with your child's other parent.
A brief e-mail, telephone message or conversation can insure that you don't duplicate presents or plan back-to-back feasts for stuffed and confused children. Ten minutes now can save days (or weeks) of fuming later.

2. Work out the details.
Work out exactly where your children will be during what times: when, where and how exchanges will take place. Your children will feel more secure, and all of you will avoid frustration and disappointment.

3. Celebrate with your children's other parent.
Consider celebrating part of the holidays together with your children's other parent, especially if your separation is fairly recent.

4. Set up a plan for next year now.
If you went through the agony of 11th-hour negotiations this year, set up a plan for next year now. Everyone will be happier knowing what is coming, and avoiding conflict on the eve of the holidays.

5. Plan in advance with your extended family.
Work things out in advance with your own extended family, too, whether that means that you say no, spend the holidays a little differently than usual or ask for your family's understanding and help.

If you have questions about divorce, child custody, or child support, or any other family law matter, the attorneys at Sagaria Law can help. We have a team of divorce attorneys experienced in all types of family law cases, including divorce, paternity, support and property division. We offer a free thirty minute consultation, either over the phone or in person at any of our five Northern California locations: Redwood City, Fremont, San Jose, Sacramento, Salinas. Call 1-800-941-6730 today to schedule your free consultation.

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

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San Jose Divorce Attorney Discusses Bifurcation—Termination of Status

The common myth in divorce is that a person is automatically “divorced” after six months from the date of filing. However, this is not true. A person is only qualified to be “divorced” if all issues including community property have been resolved. However, if a person wants to have the status of “single” and possibly remarry, they can make a motion to bifurcate just their status. This means that all the community property issues and any other unresolved issues remain however, a person may have the status of “single” in stead of “married.”

What needs to be noted is that before a bifurcation will be granted the party must also join any pensions or retirement plans as a party to the case. This is pursuant to Family Code §2337 which states that in a proceeding for dissolution of marriage, the court may sever and grant a bifurcation of status apart from the other issues that need to be resolved in the marriage. Under the statute, prior to the entry of judgment terminating status “the party’s retirement or pension plan shall be joined as a party to the proceeding for dissolution.” This is because pension plans especially must be divided by the time it was accumulated during the marriage. Therefore, timing issues and division issues can arise if the pension is not joined as a party prior to the bifurcation of status. With a bifurcation, you will still have to deal with the difficult issues that arise out of divorce, like property division and custody (if there are children). But at the very least, this gives people the emotional closure that they need to move on.

If you have questions about child custody, or child support, or any other family law matter, the attorneys at Sagaria Law can help. We have a team of attorneys experienced in all types of family law cases, including divorce, paternity, support and property division. We offer a free thirty minute consultation, either over the phone or in person at any of our five Northern California locations: Redwood City, Fremont, San Jose, Sacramento, Salinas. Call 1-800-941-6730 or visit us online at www.sagarialaw.com today to schedule your free consultation.

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Posted In: Divorce , Family Law

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Fremont Divorce Attorney Discusses Notice of Divorce

Deciding to get a divorce is a difficult decision, sometimes made more difficult by the fact that you may no know where your spouse is to tell them that you want to get a divorce. This happens more than people think. One spouse moves away or leaves the other spouse without telling them where they went or for how long. Since a divorce petition needs to be served on the other party or the other party must have notice of the petition, this problem can cause an obstacle to getting a divorce. In this instance, notice to your spouse can often be satisfied through “service by publication". This means that you must publicize your divorce petition in a regularly circulated newspaper or magazine. This process takes about 3 months in order for service be considered proper. To get the court to accept this form of service, you'll have to prove that you have made a diligent effort to locate your spouse and by "diligent", we mean more than just a few phone calls.

Once you've exhausted all of your efforts and received approval of the court, you can publish an ad in a local newspaper notifying your missing spouse of the divorce proceedings in process. Notice that the ad is run after the divorce is filed and the choice of which newspaper is typically left up to you, although you may want to verify this with the court clerk as there may be a recommended paper typically used by the court or a requirement as to the size of the paper's circulation for such matters.

Assuming your missing spouse does not respond within a given timeframe, your divorce would then be granted as a default judgment. The court would grant you a divorce and decide all of the terms of the divorce in the manner which you have requested.

If you have questions about divorce, child custody, or child support, or any other family law matter, the attorneys at Sagaria Law can help. We have a team of family law attorneys experienced in all types of family law cases, including divorce, paternity, support and property division. We offer a free thirty minute consultation, either over the phone or in person at any of our six Northern California locations: Redwood City, Fremont, San Jose, Sacramento, and Salinas. Call 1-800-941-6730 today to schedule your free consultation.

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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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Sacramento Divorce Attorney Discusses Joint Physical Custody

Many fathers believe that mothers always get physical custody of the children, but while that may have been true 20 or 30 years ago, things are a lot different now, especially here in California. Two changes in the law have contributed to this increase in joint physical custody: (1) a statute preventing preferring a parent because of their gender; and (2) changes in child support calculations that consider the percentage of time spent with each parent.
California Family Code Section prevents preferring one parent to the other solely on the basis of that parent’s gender. This means that courts cannot prefer mothers as the custodial parent simply because they are mothers. When one parent cannot be preferred solely on the basis of gender, the courts then consider what type of custodial arrangement is in the best interests of the child. This has meant that many fathers are able to secure more than every other weekend with the children, and for some, an equal timeshare with the other parent, allowing the children equal time with both parents.

Additionally, California laws regarding child support mandate the court consider not only the income of the parents, but the amount of time the child or children spend with the parents. Non-custodial parents can have their child support adjusted to reflect the actual time spent, which, all other things being equal, usually results in support being modified downward.
These changes have led to a rise in fathers having joint physical custody of their children. Whereas in the past fathers might have had every other weekend, many fathers now have at least one mid week visit, if not a 50/50 schedule with the children. While this arrangement requires parents to have a working co-parenting relationship, its often in the best interests of the children to have frequent visitation with both parents.

If you have questions about child custody, or child support, or any other family law matter, the attorneys at Sagaria Law can help. We have a team of attorneys experienced in all types of family law cases, including divorce, paternity, support and property division. We offer a free thirty minute consultation, either over the phone or in person at any of our six Northern California locations: Redwood City, Fremont, San Jose, Sacramento, Salinas and Monterey. Call 1-800-941-6730 today to schedule your free consultation.

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Posted In: Child Custody & Visitation , Divorce

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San Mateo Family Law Attorney Talks About Public Policy and Settlements

When a couple begins or is going through a divorce, there is one piece of consistent advice that is given. Settle. The couple will hear their attorneys, the judge, and their friends who all tell them to settle as quickly and as soon as possible. To a lawyer and a court, settling is coming to an agreement over issues. The agreement may be a hard fought compromise over a hotly contested point or a tradeoff where each side gets what they really wanted. As a policy, a Court is loathe to interfere with a settlement agreement because the best people to make a decision about their lives are themselves. The Court is ill equipped to consider all factors from a couple’s marriage and life situation to make an extremely tailored agreement that the couple themselves could. For example, the couple may agree to keep the family residence for the next 5 years in hopes of recovering their lost equity which includes a detailed payment schedule for the house. The Court would have just sold the house at a loss to end the fighting.

However, there is one area that the Court’s will not or may not allow the parties to settle. This is in the area of the children. Specifically, the termination of parental rights for child support. A couple, depending on the circumstances, may decide that one parent is going to walk away from the child(ren) of the union. This parties have agreed that it would be best if one parent assume all parenting duties and the other parent surrender all say, control and rights to the child. The usual exchange is that the caring parent will waive any and all child support claims against the other parent. While this is a “settlement” between parties, the Court’s will not or may not approve it because it is against “public policy.”

Public Policy simply means the State’s interest or the Public’s interest. There is no one person who is the State or who is the Public. There is contacting the State or the Public for a discussion. The State or the Public’s interest means that the certain agreement cannot be allowed because the State or the Public do not want people to make such decisions. In this case, the State or Public’s interest is that a creation of a parent-child relationship for both emotional and financial support which includes the parental support of that child trumps any private ordering of parenthood after the birth of the child. In other words, both parties are stuck being that child’s parents. It is against what the State or Public interest to have a child without a parent simply to remove a financial liability. The State or Public’s interest is so overwhelming that parties cannot negotiate away their obligations by contract. Therefore, the parent’s ability to settle on this issue is extremely limited.

If you have a question regarding custody settlements 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: Child Support , Divorce , Family Law , Family Law Issues

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San Jose Divorce Lawyer Discusses Custody and Visitation

Recently, a child named Isabella’s parents have been in the news, as the parents challenge each other for custody and visitation of Isabella. What’s so special about Isabella? Her parents are two women – she has two moms. Isabella’s moms had her while they were living in Vermont, as a couple united under Vermont’s civil unions law. They split with Isabella was only 17 months old, and one mom (Mom #1) moved with her to Virginia and renounced her homosexuality. Mom #2 stayed in Vermont, and now Isabella is at the center of a dispute of the rights of homosexual parents, the influence of homosexuality, and the issue of same sex marriage.

Virginia eventually ruled in favor of visitation rights for Mom #2, but that is not the focus of this post. Laws vary widely state to state on these issues, so today’s post discusses a relatively recent California decision on one of the primary issues present in that case: does a woman, who is not biologically the mother of a child, but who agreed to raise and support a child born of her lesbian partner, have any parental rights and obligation? This landmark case in California is known as the Elisa B case, and it essentially concludes that where a woman has supported her partner in artificial insemination, received the child (or children) into her home, and held them out as her own, that under the Uniform Parentage Act, she has the obligation to support them (and that obligation comes with rights too).

California’s domestic partnership law also states that the rights and obligations of domestic partners as to the children of either of them, shall be the same as those of spouses. So, if Isabella’s moms were in California, the outcome would be the same – Mom #2 has visitation rights even though she is not the biological mother.

Mom #1’s behavior in disobeying a court order has left her in contempt of court in Virginia. The outcome in California would likely be the same as well. Disobeying a court order, such as an order for visitation, is grounds for contempt, and contempt can be punished with a fine or with jail time in California.

If you are involved in a dispute over custody and visitation of a minor child, whether it’s a result of a dissolution of marriage or domestic partnership, or you never married, you should seek the advice and assistance of an attorney. Here at Sagaria Law, we offer a free consultation on all aspects of family law cases. Your consultation can be over the phone, or in person at any one of our six Northern California locations- Sacramento, Redwood City, Fremont, San Jose, Monterey and Salinas. Call us today at 1-800-941-6730 to schedule your appointment to speak to one of our experienced family law attorneys.

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Posted In: Child Custody & Visitation , Divorce

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Sacramento Divorce Lawyer Discusses the Relevance of Sexual Conduct in Custody Disputes

Have you ever wondered if your sexual preferences, either for partners or behaviors, might impact your custody dispute? Lots of people have former partners who threaten to use their sexual past against them, not realizing its rarely relevant to a custody dispute.

California Law specifically states that a party’s sexual conduct is not relevant in awarding custody unless there is compelling evidence that it has a significant bearing on the child’s welfare. Furthermore, until the enactment of domestic partnership legislation, homosexuality could not be determinative in and of itself in awarding custody, but it could be one factor. However, contemporary courts would probably conclude it now has no relevance at all because of changes in how same sex couples are treated in the court.

There are two special areas of concern relating to sexual conduct in custody disputes: parties required to register as a sex offender as a result of conduct toward a minor, and rape. A person who is required to register as a sex offender as a result of conduct toward a victim who is a minor may not be awarded physical or legal custody of, or unsupervised visitation with, any child unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record. A person who is convicted of rape may not be awarded custody of, or visitation with, a child conceived of that rape.

The bottom line is that all custody awards are made according to the best interests of the child, and the child’s health, safety and welfare are the primary concern in deciding what is in the child’s best interests. Courts have a lot of latitude in making these kinds of determinations, but generally, parties who have unorthodox sexual preferences are not likely to have them impact the custodial arrangement unless there is a showing of harm to the child. In any custody dispute, its always better to come to an agreement about where the children will live and when they will spend time with the other parent, rather than leaving it to a court to decide.

If you are involved in a contentious (or not contentious) custody dispute, or any other family law matter, be it support, divorce, property or paternity, you may benefit from having an attorney involved. The attorneys at Sagaria Law can assist you with all aspects of your family law case. We offer a free consultation, thirty minutes in length, either via phone or in person at any one of our six Northern California locations: Sacramento, Fremont, Redwood City, San Jose, Monterey and Salinas. Call today 1-800-941-6730 or visit www.sagarialaw.com to schedule your free family law consultation.

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Posted In: Child Custody & Visitation , Divorce , Family Law

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San Jose Divorce Attorney Talks About Subleasing

As many soon to be divorced parties know, a divorce can take a long time. It is common to find a divorce taking almost a year or longer before all the issues are resolved. One of the main issues will always be the family residence. The more equity in the house, the more the parties will fight over it. In the current real estate market, even selling the house may take 6 months or longer. Therefore, it is common for one spouse to continue to live in the house while the divorce or sale of house is pending. What happens when the spouse living in the house decides to sublease one of the rooms to generate some extra cash for bills?

A definitive family law case stated that the rent is considered “income” for the purposes of child support. Specifically, that means the rent collected must be added to the income of the receiving parent for when calculating child support. Therefore, the spouse who has the house, may end up paying more child support or receiving less if there is the sublease.

The irony of this situation is that a sublease is hardly considered a stable source of income. The sublease may only be in effect for a few months while the house is pending sale but the support order remains in effect until modified. Furthermore, the rental income gives a false impression that the party has a higher ability of income than they really have which may be held against them in future support modifications. Finally, the receiving spouse begins to believe that they are entitled to more support than what is normally possible which will cause resentment if and when the sublease is over and support levels drop.

If you have a question regarding support please contact Sagaria Law at 1-800-941-6730 for a free consultation or visit us at www.sagarialaw.com. Our team of Family Lawyers 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: Divorce , Family Law

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Fremont Divorce Attorney Discusses Christmas, Hanukah and Eid – Holidays and Children in Family Law Cases

As the holidays approach, many parents face the dilemma of how to split the holidays with their children. After all, every parent wishes to spend Christmas, Thanksgiving and other important holidays with their children – these holidays revolve around families. Unfortunately, kids are not easily split in half, and nor is it possible in most cases to spend the holidays with both parents at the same time, as happens with intact families. But, parents can be creative and positive about how to share the holidays.

For example, many divorced parents alternate the holidays, so if one parent has Thanksgiving, the next holiday goes to the other parent. Or, some parents will divide a holiday in half, so a child might be two Thanksgiving dinners, one early and one later in the day on Thanksgiving. Still other parents choose to celebrate the holiday on a different day, so a child might celebrate Thanksgiving on Thursday and again on Friday or over the weekend. Likewise, with Christmas, many families will agree that the children should spend Christmas Eve with one parent and Christmas Day with the other, and alternate which parent gets which in different years.

Parents of children who have divorced, separated or not living together parents need to do everything they can to make the holidays a positive and happy time for the children. Children should not feel pulled between parents, but instead they should look forward to having time with both parents, however that time may be structured. Many children look forward to having two of each holiday, even if one is celebrated somewhat belatedly. Christmas presents are just as exciting on December 26 or 27 as they are on December 25. Other holidays last over multiple days, such as Hanukah, so children get to enjoy time with both parents over that holiday.

Finally, since school is typically out for most of the time around these holidays, parents should take advantage of that time whenever possible to ensure their children enjoy the full holiday experience. Perhaps a noncustodial parent can spend some extra time with the kids during those school breaks, or the kids can see both parents more since class is not in session. Most importantly, parents should try not to fight and put their children in the middle at any point, but especially during the holidays. This is supposed to be a happy time of year, and children with parents who don’t live together may feel stressed that their family isn’t like their friends. Parents have to try to alleviate those feelings, and make the differences positive wherever possible.

If you have questions about sharing custody of your children during the holidays, or arranging a mutually beneficial visitation schedule for them, consulting a family law attorney can help. Here at Sagaria Law, we deal with all types of custody disputes, and we strive to help parents find solutions that work for them and their children. We offer a free consultation, either in person or over the phone, through any of our six Northern California locations: Monterey, Salinas, San Jose, Fremont, Redwood City and Sacramento. Please call 1-800-941-6730 or visit www.sagarialaw.com for your free consultation.

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Posted In: Child Custody & Visitation , Divorce , Family Law

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Sacramento Divorce Attorney Discusses Domestic Partnerships

Domestic partners are unmarried couples, of the same or opposite sex, who live together and seek economic and noneconomic benefits granted to their married counterparts. In a few states, domestic partnership status is offered and regulated by the state and grants many of the rights and responsibilities of marriage. These include health, dental and vision insurance, sick and bereavement leave, accident and bereavement leave, accident and life insurance, death benefits, parental leave, housing rights and tuition reduction, and even use of recreational facilities.

When a state, municipality, county, organization, private company, or university considers providing domestic partnership benefits, it must address several important issues: Who qualifies as a domestic partner? Should heterosexual couples be covered as well as gay and lesbian couples? How will an employer identify the employee’s domestic partner?

Today domestic partnership benefits are offered in numerous situations. However, these benefits are limited. In most cases, all that is offered is bereavement or sick leave. Ion other situations, the benefits offered are comprehensive, but also costly. Often either the employee foots the bill for his or her partner or the company pays but the employee must pay taxes on the benefits. This is because the IRS considers benefits awarded to an unmarried partner as taxable compensation. One interesting note is that even though most domestic partnership applications ask you to state that you are financially responsible for each other’s needs, these application are generally not considered binding or contracts of support.

If you have a question regarding a family law issue or domestic partnership 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: Dissolution Of Domestic Partnership , Divorce , Family Law

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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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Sacramento Divorce Attorney Discusses Common Misconceptions in Family Law

True or False:

Husbands can’t get alimony
False. California law provides for spousal support, as it is known, in any dissolution, regardless of the gender of the party seeking support. Women are frequently the recipients of spousal support because their husbands were the primary breadwinner in the family, but if the roles are reversed, men can collect support as well.
Spousal support comes in two forms, temporary and permanent. Temporary spousal support may be ordered in any dissolution, based on the needs and ability to pay of the parties. Temporary spousal support is usually calculated using a computer program, such as Dissomaster or XSpouse.
Permanent spousal support requires consideration of eleven distinct factors, including the age of the parties, health issues, the duration of marriage, the marital standard of living, the earning capacity of the parties, and many others. Permanent support is usually for half the length of the marriage, although in long term marriages, a termination date is not typical or appropriate.

Mothers are always preferred in child custody disputes.
False. California law actually forbids preferring a parent because of that parent’s gender.
California family law requires the court to consider the best interests of the child in making a determination about how to award custody and visitation rights. The court must consider the health, safety and welfare of the child, and, whenever it does not conflict with the health and safety considerations, frequent and continuing contact with both parents. California has no preference for joint or sole custody, where custody is contested. However, where the parents have agreed to joint custody, there is a presumption that joint custody is in the child’s best interests.

All property is divided equally (50/50) in a divorce.
Mostly false. All community property is to be divided equally. However, that can mean dividing assets down the middle, an equalization payment if one party keeps a significant asset, or offsetting various assets and debts until an equal division is achieved.
Separate property, such as property acquired before marriage, or gifted to one party during marriage, or property inherited during marriage, is not divided between the parties.

Child support and child visitation go hand in hand.
True and false. The amount of visitation affects the support calculation. However, non-payment of child support does not mean the supporting parent forfeits visitation rights. It also should not come into consideration by a court when reviewing visitation.

Do you have questions about the information listed here or elsewhere on this blog? Are you considering filing for divorce, or perhaps you have a child support matter pending in court? The attorneys here at Sagaria Law handle all types of family law cases. We offer a free consultation, either via phone, or in person at one of our six Northern California locations: Redwood City, San Jose, Monterey, Salinas, Fremont and Sacramento. Call today 1-800-941-6730 or visit us online at www.sagarialaw.com to schedule your free consultation.

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

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San Jose Family Lawyer Discusses Grandparents’ Custody Rights

In today’s fast moving age, many parents rely on grandparents to take care of their children as they are at work during the day. Therefore, many times, when the nuclear family breaks down it is the grandparents that step in to take control of the children’s best interests. But what kinds of rights do grandparents have in terms of visitation?

According to a child custody coach cited in Newsweek, while hearing a petition filed by grandparents for visitation rights, courts almost always consider the decision and wishes of the custodial parent. In the Supreme Court case Troxel v. Granville, 530 U.S. 57 (2000), the Court held that it is a fundamental liberty of parents to make decisions concerning their child’s custody. It includes the freedom to decide when and with whom minor children can spend their time, and applies to time spent with the grandparents. This means that no matter how involved the grandparent may be involved with their grandchildren, the decision for visitation is ultimately on the custodial parent.

The child custody coach advises any grandparent that has children who are in the midst of a divorce to be supportive of both of the parents of the grandchildren, including the ex-spouse. Handling visitation issues with grandparents is a lot easier when the law is not involved. Divorce is always hard, but if you are a grandparent and would like to have an impact on your grandchild, keeping the peace with both parties including the ex-spouse can only work in your favor.

Our team of experienced and talented family law attornneys handle all aspects of child custody, visitation and support cases, as well as all other family law cases. We have six Bay Area locations, including Redwood City, San Jose, Monterey, Salinas, Sacramento and Fremont. We offer a free consultation, either in person or over the phone. Call Sagaria Law today at 1-800-941-6730 to schedule your free consultation with an experienced Redwood City Family Law Attorney.

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Posted In: Child Custody & Visitation , Divorce , Grandparent Visitation & Custody

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Sacramento Divorce Attorney Discusses Paternity Establishment:

Establishing paternity is the process of determining the legal father of a child. When parents are married, paternity is automatically established in most cases as the husband of the mother is automatically presumed to be the child’s father. If parents are unmarried, paternity establishment is not automatic and the process should be started by both parents as soon as possible for the benefit of the child. Unmarried parents can establish paternity (legal fatherhood) by signing a voluntary "Declaration of Paternity” form. This can be done in the hospital after the child is born. A Declaration of Paternity may also be signed by parents after they leave the hospital.

Unmarried parents who sign the Declaration of Paternity form help their child(ren) gain the same rights and privileges of a child born within a marriage. Some of those rights include: financial support from both parents, access to important family medical records, access to the non-custodial parent’s medical benefits, and the emotional benefit of knowing who both parents are.

In an effort to create a legal link between unmarried fathers and their children, the California Department of Child Support Services joined other states in a partnership with licensed hospitals and clinics with birthing facilities to establish the Paternity Opportunity Program (POP). This voluntary in-hospital paternity acknowledgement program, implemented in January 1995, involves about 330 of California’s licensed hospitals and clinics with birthing facilities. The program has since been expanded to prenatal clinics, county welfare offices, local vital records offices, and courts.

If you have a question regarding paternity establishment 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: Divorce , Paternity , Santa Clara County Family Law Issues

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San Jose Divorce Lawyer Discusses Long Term Marriage Spousal Support

Almost everyone remembers the divorce between Nicole Kidman and Tom Cruise. Tom ended his divorce with Nicole just a few weeks shy of their 10 year anniversary. Some say that he was slick for doing so and avoiding having to pay Nicole spousal support for an indefinite amount of time.

Under FamilyCode 4336, “except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration.” The last part “long duration” has been long fought over because it is so ambiguous. Case law has established a “long duration” to be 10 years of marriage. The standard for support for a marriage of less than ten years is half the time of the marriage. This means that if a couple was married for 6 years, support would be granted for about 3 years.

The rub comes when the marriage is for longer than 10 years where one of the parties may have been kept from working or gaining any work potential. In these cases, the Court will have jurisdiction to continue support for longer than the usual “half the time that the couple was married” standard. The court takes into account many factors with a long-term marriage. Whether the party getting support can become employed, they’re standard of living and the supporting party’s ability to pay.

If you have a spousal support issue our team of experienced and talented family law attorneys handle all aspects of divorce, temporary and permanent spousal support, as well as all other family law cases. We have four Bay Area locations, including Redwood City, San Jose, Monterey, Sacramento and Fremont. We offer a free consultation, either in person or over the phone. Call today 1-800-941-6730 to schedule your free consultation with an experienced Fremont Divorce Attorney.

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Posted In: Divorce , Family Law , Family Law Issues , Spousal Support & Alimony

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Sacramento Divorce Attorney Discusses Child Custody:

California has a “joint custody” law that encourages judges to award joint “legal custody” to parents. This means that both parents have a right to make decisions concerning their children, such as education, medical treatment and religious training. The court also has the power to award “physical custody” to one or both parents. Physical custody determines where the child actually lives, and it is most common for the children to spend most of their time with one parent. The parent who does not have primary physical custody is usually granted “secondary physical custody,” also called “visitation rights.”

It is most common for the non-custodial parent to have specified periods of time consisting of alternating weekends, one evening per night and one-half of the children’s school vacations. In some cases, the parents agree to “reasonable” secondary physical custody or visitation rights, which means that the parents agree on the times when the non-custodial parents will have the children.

In some cases, a judge will issue orders preventing either parent from changing the residence of the children from a specified geographical area. Locally, it is not uncommon for a judge to restrain the parents from removing the residence of the children from what are referred to as “the seven Southern California counties.” Such orders are common where both parents have a considerable amount of time with the children and removing them from the metropolitan area would be disruptive to the children and their development.

Over the last ten years, courts in California have been dealing with the right of a custodial parent to move with the children to another metropolitan area or out of state. The California State Supreme Court recently decided a case that settled this controversy. Under the new rule, the custodial parent generally has the right to decide where the children are to live, as long as he or she is not moving simply to deny the other parent access to the children.

If you have a question regarding Child Custody and Visitation please contact Sagaria Law at 1-800-941-6730 or visit us at www.sagarialaw.com for a free consultation. Our team of Family Law Attorneys can assist you with all aspects of your case. We have divorce attorneys in San Mateo, Monterey, Fremont, Salinas, Sacramento and San Jose.

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Posted In: Child Custody & Visitation , Divorce

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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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Redwood City Divorce Attorney Discusses Spousal Support:

When a married couple gets a divorce, the court may award spousal support to one of the former spouses, based either on an agreement between the couple or a decision by the court itself. The purpose of spousal support is to limit any unfair economic effects of a divorce by providing a continuing income to a non wage earning or lower wage earning spouse.

Unlike child support, which in most states is mandated according to very specific monetary guidelines, courts have broad discretion in determining whether to award spousal support, and, if so, how much and for how long. The Uniform Marriage and Divorce Act, on which many states’ spousal support statutes are cased, recommends that courts consider the following factors in making decisions about spousal support awards: the age, physical condition, emotional state, and financial condition of the former spouse; the length of time the recipient would need for education or training to become self-sufficient; the length of the marriage; and the ability of the payer spouse to support the recipient and still support himself or herself.

Spousal support is only ordered for so long as is necessary for the recipient spouse to receive training and become self-supporting. If the divorce decree does not specify a spousal support termination date, the payments must continue until the court orders otherwise. Most awards end if the recipient remarries. Termination upon the payer’s death is not necessarily automatic. In cases in which the recipient spouse is unlikely to obtain gainful employment, due perhaps to age or health consideration, the court may order that further support be provided from the payer’s estate or life insurance proceeds.

If you have questions regarding spousal support, please contact us for a free consultation at 1-800-941-6730 or visit 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, and San Jose.

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Posted In: Child Custody & Visitation , Child Support , Divorce , Spousal Support & Alimony

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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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Fremont Family Lawyer Discusses Enforcing Child Support by Collecting Directly From Wages

One of the most common mechanisms for enforcing child support in California is the earnings assignment order, or as it is more commonly known, a wage assignment. This ensures that child support (or spousal support) is subtracted from an employee’s wages. It is then sent to the custodial parent, usually via the State Disbursement Unit.

California Family Code Section 5320 requires child support to be paid via wage assignment. The wage assignment is binding on all employers, and is enforceable even where the employer information is outdated or incorrect. See California Family Code Section 5231. Employers who do not comply with a wage assignment are subject to being brought into court and possibly found to be in contempt.

What do you do if the non-custodial parent’s employer refuses to comply with the wage assignment? First, you must make the employer a party to the case, by filing a joinder. The next step is to file a motion with the Court to have the employer be ordered to comply with the wage assignment. Finally, the Court can find an employer in contempt for not honoring a valid wage assignment, meaning the employer will likely pay a fine for non-compliance.

What do you do if the non-custodial parent is self-employed or earns a cash income? Other means of collecting child support include garnishing or intercepting tax refunds, placing a lien on bank accounts. Punishment for non-payment can include suspension of a driver’s or professional license, contempt of court, and revocation of a passport.

Remember, child support is mandatory. This includes people who are getting divorced, parents involved in a paternity action, and parents who never lived together. Furthermore, payment of child support (or non-payment of it) does not impact visitation. The only relationship between visitation and support is how the timeshare impacts the guideline support number.

If you are having trouble collecting child support, you need to speak to an attorney. Our experienced family law attorneys handle all types of child support cases, including those incident to a divorce or paternity action, as well as those involving the Department of Child Support Services. We have five offices throughout the Greater Bay Area, including Redwood City, Fremont, San Jose, Monterey and Salinas. We offer a free consultation, either over the phone, or in person. Contact our office today to arrange for your free thirty minute consultation at 408.279.2288 or www.sagarialaw.com.

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Posted In: Child Support , Divorce , Spousal Support & Alimony

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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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Salinas Divorce Attorney Discusses Spousal Support and Domestic Violence

Most men who earn more than their wives are aware that in the event of a divorce they may owe some level of spousal support, formerly called alimony, to their wives. They may not know the amount or the duration but they are aware of the risk. During a recent consultation with a client I went over the details of how spousal support is calculated and ran the support numbers for him. We discussed the factors that go into calculating spousal support and the likelihood of how long the amount would be owed. It was not until the very end of the conversation that he brought up the fact that his wife had been convicted of domestic violence against him.

This case illustrates the classic example that a man who is a high earner, as in this case, is somewhat resigned to the idea of paying spousal support and does not necessarily considered his wife’s domestic violence as an important issue to bring up immediately. Women who are the victims of domestic violence will be much more likely to bring it up immediately, most likely because they want a restraining order. Men may feel like they can protect themselves so they do not feel they need a restraining order.

What my consultation was not aware of is how spousal support and domestic violence are connected under the law. If a spouse has been convicted of domestic violence against the other spouse within the last five years then under California law there is a presumption that the injured spouse should not have to pay spousal support to their abuser. Therefore my consultation would have a good case to make to the court that even though he would normally owe spousal support that he should not have to under these circumstances because of his wife’s criminal conviction of domestic violence against him.

If you have any questions about spousal support or domestic violence or any other family law issue then please contact Sagaria Law at 1-800-941-673 or vistit us a www.sagarialaw.com to schedule a free consultation at the office location nearest you. We have offices in Salinas, Monterey, San Jose, Fremont and Redwood City.

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Posted In: Divorce , Domestic Violence , Family Law , Spousal Support & Alimony

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San Jose Divorce Attorney Discusses Child Support

August is Child Support Awareness Month!

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.

California has what is called a Statewide Uniform Guideline Calculation for child support. This formula is rebuttably presumed to be the correct amount of child support. This calculation takes three factors into account: (1) the parents’ respective net monthly disposable incomes, (2) the number of children for whom support is being determined, and (3) the parents’ respective periods of primary physical responsibility for the children.

Where the payor parent’s net monthly disposable income is less than $1000, there is a rebuttable presumption that the obligor is entitled to a low-income adjustment. The court can reduce the amount to a fraction of the original amount.

Other adjustments to child support can be done because the parties can agree that either less or more than the guideline calculation is the appropriate amount of child support. Also, where one parent has an extraordinarily high income the guideline amount may be incorrect. Other circumstances the court can consider include the cost of housing as a percentage of income where the parties have a substantially equal timeshare, or the children have special medical or other needs that require more child support than the amount calculated under the guideline formula.

Child support may also reflect some mandatory add-ons, including work related child care expenses and uninsured medical expenses. Discretionary add-ons include travel expenses for visitation and costs related to the educational or other special needs of the children.

Child support is a numbers game, bottom line. But it can be a confusing situation for you, especially if you don’t have any experience with the court system. Our team of experienced and talented family law attorneys handle all aspects of child support cases, as well as all other family law cases. We have four Bay Area locations, including Redwood City, San Jose, Monterey and Fremont. We offer a free consultation, either in person or over the phone. Call today to schedule your free consultation with an experienced San Jose Divorce Attorney.

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Posted In: Child Support , Divorce , Family Law , Family Law Issues

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Monterey Divorce Attorney Discusses Divorce

A recent article on CNN.com was entitled “Happily Divorced Ever After” which unfortunately for most divorcing couples sounds too good to be true. While most divorces certainly can be very acrimonious to say the least it is certainly possible to have an amicable divorce and certainly something to strive for if children are involved. If you can manage to be civil with your estranged spouse then you stand a much better chance of finishing your divorce more quickly and certainly cheaper than you would if you were at each other’s throats.

As the article states it is important to strive to remain friendly with your estranged spouse for the sake of your children. Of course in many cases this is easier said that done if you both have very different views on parenting and your children’s needs. If you can make this work your children will benefit from seeing their parents successfully co-parenting and presenting a unified front to the children on all issues. As outlined in the article it is important to put the children’s needs first. If your estranged spouse is a good parent then keep the fact that they made a lousy spouse a separate issue and do not let it affect the children.

Going through a divorce is certainly never easy but there are ways to minimize the damage and look forward to happily divorced ever after. If you have questions regarding your divorce case we can assist you on all the pertinent issues from child custody and visitation to child and spousal support and property division. Please contact Sagaria Law to schedule a free consultation at one of the offices nearest you. We have offices in Monterey, Salinas, San Jose, Fremont and Redwood City 1-800-941-6730 or www.sagarialaw.com.

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Posted In: Divorce , Family Law , Family Law Issues

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Redwood City Attorney Discusses Family Law Issues and Divorce

Linda Stern has some helpful hints when dealing with a divorce. She writes in her latest Newsweek article on how to prepare financially for a divorce. The first tip for troubled couples is to deal with the house and the division of property. The real estate market is not looking good these days and some couples are thinking about keeping the house until the market gets better. Stern says that this is not a good idea because you’re binding two people together who do not want to be bound. If one spouse stops paying the mortgage it can cause credit and housing problems for the other spouse. So Stern recommends to transfer the house to one spouse if that spouse can qualify for the mortgage on their own.

Her second tip is to “plan for disasters and windfalls.” Many couples are askin