California Family Law Blog

San Jose Divorce Attorney comments on Recent Article Regarding Divorce

This week Newsweek Magazine reports on how divorce changed the lives of children who lived through what Senior Editor David Jefferson coins as the “divorce generation.” Jefferson recounts how the myth of the nuclear family exploded in the 60s, and the woman’s rights movement opened the workplace doors to mothers which in turn made divorce a viable option for many women. In 1969, California governor Ronald Regan signed the “no-fault” divorce law, allowing couples to end a marriage by declaring “ireconciable differences” and divorce became a routine occurrence. Despite the depressing statistics about the rise and impact of divorce on a societal level, Jefferson’s article focuses on the personal impact that divorce had on his classmates at Grant High School and concludes that a surprising number of his classmates wound up in solid marriages.

Jefferson reports that the urge to stay married was stronger in his classmates generation than the urge to get divorced was in their parents’ generation. Moreover, Jefferson found that despite complications and collateral damage, his research indicates that divorce was probably for the best, both in the lives of his classmates who themselves got divorced later in life and their parents who had divorced while they were children. Most people, it seemed, did not think ill of their parents for having split up, rather as one classmate put it, “…as an adult, I learned that my parents were just two people who met each other, fell in love, had children, and it didn’t work out,” and that “good people get divorced too.” Jefferson’s article can be found on newsstands this week or on Newsweek.com.

If you or someone you know if going through a divorce, the team of attorney’s at Sagaria Law may be able to assist you. We handle all aspects of family law and endeavor to resolve your legal matters and quickly and sensitively as possible. Our firm take cases throughout the Bay Area, and we have offices in San Jose, Monterey, and Fremont. Contact our office today for a free thirty minute initial consultation with one of our attorneys wherein you can get to know our firm and obtain insight into how we can assist you with your case.

San Jose Divorce Attorney comments on new study by American Academy of Matrimonial Lawyers

With e-mail and text messaging becoming the preferred method of communication, couples going through a divorce should be warned about the ramifications of what they communicate via such methods. According to USA Today, a new survey by the American Academy of Matrimonial Lawyers say that they’ve seen an increase in the number of divorce cases using electronic data as evidence during the past five years. Such evidence is being used to accomplish a variety of things, including catching cheating spouses and discovering hidden assets. In cases where one spouse has had complete control of the finances, electronic data has proven to be particularly useful. Not only are divorce attorneys scouring e-mail accounts, they are also looking to at online communication networks such as Facebook and MySpace for information.

Lawyers have found that although people tend to be careful about written information, however, they do not treat electronic data the same way. Moreover, several companies also now market software to spy on their spouses’ computer use, and secretly accessing a spouse’s e-mail account is not uncommon. A new survey conducted by Google indicates tat 27% of women, and 21% of men have admitted that they have “snooped” on someone else’s e-mail. Although discovery of electronic data is not likely to lead to an increase in divorce rates, it is certainly now a source of information which needs to be scrutinized.

If you or someone you know is going through a divorce, the team of family law attorneys at Sagaria Law, P.C. may be able to assist you. We handle all aspects of family law and divorce including property division, support, and child custody matters. We have offices in Santa Clara County, Alameda County, and Monterey County, and handle cases through the Bay Area. Contact our office to schedule a free thirty minute consultation with one of our attorneys today.

San Jose Divorce Attorney Discusses Need-Based Attorney Fee and Cost Award

Under the Family Code, any award of attorney fees or costs in a marital action must be based on a determination of ability to pay and consideration of the parties’ respective incomes and needs in order to ensure each party’s access to legal representation. For example, a spouse who was primarily supported by the other spouse during the marriage, and who does not himself or herself have the financial means to retain an attorney, may be able to obtain a court order requiring the sole or higher earner spouse to pay their attorney fees. The fact that the party requesting the award has the resources to pay his or her own attorney fees and costs, however, is not itself a bar to ordering the other party to pay part of all of the fees and costs requested. For example, the fact that one spouse has a net worth of $2 million would not necessarily bar a need based attorney fee request, if the other spouse has a net worth of $40 million.

Moreover, the scope of costs recoverable in a divorce is broader than most civil actions generally because the Family Code permits the court to award any amount reasonably necessary for attorney fees and for the costs of maintaining or defend the proceeding. Therefore, family courts may consider applications for cost awards associated with items such as accountant, actuary and appraiser; none of which are generally recoverable in other civil actions.

If you or someone you know is going through a divorce, or have questions regarding other family law issues, the team of attorneys at Sagaria Law may be able to assist you with your case. We handle cases throughout the Bay Area and have offices in Santa Clara, Alameda and Monterey counties. Contact our office today to schedule a free consultation with one of our attorneys.

San Jose Family Law Attorney Comments on recent California appellate opinion Estate of McDaniel

On March 27, 2008, a California court for the third appellate district issued an opinion which held that a wife was not entitled to inherit from her husband’s estate because she was not a surviving spouse within the meaning of section 78 of the Probate Code. In this case, the husband passed away in a motorcycle accident on September 23, 2005. When husband passed away, he and his wife were separated and going through a dissolution proceeding. 2 months prior to his accident, the family court entered a stipulated judgment dissolving the marriage and ordering the marriage terminated, restoring the parties to the status of single persons on October 29, 2005; six months and one day after husband responded in the dissolution action.

According to the stipulated judgment, the parties waived spousal support and agreed on a division of community property and debts. Neither party challenged the Judgment or its legal effect. On August 17, 2006, his mother filed a petition of distribution of husband’s estate alleging that husband had passed away intestate, and that he did not have children. Wife opposed the petition claiming that she was husband’s surviving spouse and therefore entitled to his estate. As it turns out, notwithstanding the stipulated judgment, the parties were attempting to reconcile their differences before their marital partnership terminated.

Section 78 of the Probate Code stated in relevant part that a surviving spouse for purposes of the Probate Code does not include “a person who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights. ”The trial court found that Wife was not a surviving spouse within the meaning of the Probate Code because the partied as entered into a stipulated judgment terminating their marital property rights, and thus, had no right to share in Husband’s estate. Wife appealed, arguing that the stipulated judgment settled property rights, but it did not settle inheritance rights. The appellate court affirmed the trial court’s holding, finding that nothing in the language or meaning of section 78 requires an express termination of inheritance rights; the obvious effect of the statute itself is to terminate inheritance rights of such a spouse. Wife further argued that under the family code, her marital status was not terminated until after husband’s death. The Court found that although Wife was still legally married to Husband at the time of his death, she was not legally his surviving spouse, and therefore not entitled to share in his estate.

The team of attorneys at Sagaria Law, P.C. handles a variety of family law and estate planning cases. If you or someone you know needs assistance with a divorce or estate planning issue, we may be able to assist you. We represent clients throughout the Bay Area and have offices in San Jose, Fremont and Monterey. Contact our office to schedule a free consultation with one of our attorneys today.

San Jose Divorce Attorney Discusses the Service Members Civil Relief Act

Unfortunately many soldiers and sailors are facing family court while preparing for a deployment or after they have been deployed for duty. The Service Members Civil Relief Act has shielded service members by staying civil court actions and administrative proceedings during military activation. This prevents evictions and seizure of property. However, the Act never specifically addressed family court matters and some family court judges refused to postpone custody decisions until the service member could appear.

President Bush signed a change to the Act into law this week which clearly states that deployed service members who seek a stay in custody disputes shall be granted at least a 90-day stay. It also protects service members against default judgments in custody proceedings while they are deployed. “It really should have been covered already,” according to Kathleen Moakler, director of government relations of the National Military Family Association, “but because family court judges were choosing to disregard that section Congress had to pass something and kind of underline it.”

The change was pushed by Rep. Mike Turner, R-Ohio, who read an Associated Press story last May that revealed the custody fights facing an unknown number of the 140,000-plus single parents in uniform. "Service members were protected if a bank foreclosed on their house or went after their car ... but we had failed to protect their children," Turner said. "It's unthinkable that our men and women in uniform, when they're deployed, would have the added stress of worrying about the custody of their children."
Turner said he is hopeful the amended act will make judges think twice before using a military parent's deployment as the primary reason for permanent custody changes. Still, some military lawyers and advocates worry that custody problems will continue for these service members unless similar protections are written into state laws, which generally govern family courts. If you are facing the possibility of deployment or if you have already deployed and our concerned about your custody case or your divorce then please contact our office. We assist several members of the military on active duty and we communicate with them via e-mail regularly and by phone when possible. We have offices in Monterey, San Jose, and Fremont where out attorneys would be happy to advise you on your family law matters.

Monterey County Attorney Discusses Child Custody Investigations

In the event that separated parents cannot agree on a custody and visitation schedule with their children, even after going through court assisted mediation, the parties will likely participate in a child custody investigation. Each county in California has different names and different procedures for these investigations. In some counties they may be called Assessments and in others they are called Evaluations. In some counties they are performed through an agency of the court called Family Court Services while in others they are performed by private psychologists hired by the parties.

In any event these custody investigations are a critical part of determining a long-term custody and visitation order. In fact these investigations are so important that a state bill was introduced in 2007 to address an issue that is often raised in these investigations which is a controversial theory called Parental Alienation Syndrome. This theory describes behavior where one parent turns their child against the other parent. Under California law if alienation is proven the alienating parent can lose custody of the child even if they have been the child’s primary caretaker since birth. The custodial parent must support a relationship between the child and the other parent.

The reason that this theory is so controversial is that the psychological community and child custody investigators are split in regards to whether this type of alienation is even possible. Even those who believe it is a legitimate syndrome are concerned about the negative impact on a child when it is incorrectly found in a case. The text of 2007 version of the bill AB 612 would have explicitly banned the use of Parental Alienation Syndrome, or just the term alienation from use in evaluations. It also aimed to minimize the use of custody evaluations. The family law section of the state bar and several psychologists groups banded together to oppose the bill. In the 2008 version of the bill the wording is much vaguer stating evaluators will be forced to conform to "standards generally accepted by the medical, psychiatric, legal, and psychological communities." The bill does not specifically mention Parental Alienation Syndrome.

If you are concerned about alienation issues in your case or other issues related to a child custody investigation then please contact our office for a free consultation. Our team of Family Law Attorneys can assist you with all aspects of child custody and visitation whether it is part of a divorce action or a paternity matter. We have attorneys in Monterey, Fremont and San Jose who can assist you with all aspects of your family law cases.

Fremont Family Law Attorney Discusses Taxes and Divorce

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

San Jose Divorce Attorney Discusses Internet Postings and Custody Battles

It is understandable that people going through a divorce will want to vent their frustrations about their soon to be ex spouse to friends and family. However, in the electronic age it may also be too easy to voice that frustration to the world through the Internet. It is important to remember that anything you say that is disparaging about your ex can come back to hurt you in court, especially in a custody battle.

Tricia Walsh Smith has garnered national attention after she uploaded a video on YouTube where she aired the dirty laundry of her husband in the middle of their divorce proceedings. An Internet search will also find blogs where people are venting their frustrations about their separated spouses. Some of these Internet postings have led to civil suits alleging defamation by the spouse who is being written about. You can also guarantee that these types of postings will be brought into the family court as evidence in the event of a custody dispute.

In California the Court will consider which parent is more likely to facilitate contact with the non-custodial parent when deciding which parent should have primary custody. If one parent is more likely to disparage the other parent or try to alienate the child from the other parent that person could lose custody of the child. Therefore these public Internet postings could be used as evidence that the person public attacking the other parent would not facilitate a close relationship between the child and the other parent. That may in fact not be true, because the poster may never say the things that are posted in front of the child but the evidence could be very damaging because if it comes down to credibility the poster will have seriously damaged their credibility in the eyes of a Judge.

Our team of experienced family law attorneys are very knowledgeable about custody and visitation disputes and would be happy to speak with you for a free consultation in this area or in any other family law matter. We have offices in Monterey, San Jose, and Fremont where we would be happy to meet with you at your convenience.

Monterey County Divorce Attorney Discuses John Cleese’s Divorce

John Cleese is famous for his acting roles in movies like a Fish Called Wanda and for his roles in the British series Monty Python and Faulty Towers. According to friends Mr. Cleese is said to be livid that his soon to ex-wife, Alyce Faye, has turned what should have been an amicable divorce into a litigation battle that could reach the same level of notoriety as the Paul McCartney and Heather Mills divorce. This will be Mr. Cleese’s third divorce. The couple married in 1992 and split in January of this year.

Ms. Faye is seeking spousal support of over $140,000.00 per month. Cleese is 68 years old and his wife is 63. Cleese is said to have told friends he wanted to wanted to wind down his career but after his wife’s demands he will have to keep working in order to fund her extravagance. Faye alleges that the parties share an opulent lifestyle which Cleese disputes. Faye is also seeking half of the nine properties Cleese owns around the world and half of his earnings during the marriage. Faye is also seeking attorney’s fees from Cleese in excess of $150,000.00.

If the parties continue into litigation both sides will likely have legal bills in excess of $100,000.00 before their divorce is final. According to reports the parties did seek counseling in order to have an amicable divorce but apparently those efforts have failed. Faye is also seeking funds from Cleese to pay for the services of a forensic accounting to trace her share of Cleese’s properties and financial holdings. Under California law Faye is entitled to one-half of Cleese’s earnings during the marriage. She is also entitled to spousal support which is why the couple is arguing over their marital standard of living. Cleese is disputing Faye’s claims of their opulent lifestyle during the marriage which if proven correct will affect how much support Faye receives.

Here at Sagaria Law we are very familiar with high income divorce cases and their impact on spousal support. We can also advise you on pre-divorce planning in order to discuss with your spouse settlement options in order to avoid contested litigation. Please contact us to set up a free consultation with you regarding divorce at our office in Monterey, San Jose or Fremont.

San Jose Divorce Lawyer Comments on Eddie Murphy’s Divorce and Almost Second Marriage

Eddie Murphy’s divorce from his first wife of 12 years, Nicole Mitchell Murphy, with whom he shares five children, was finalized in 2006. However, the division of property is still continuing to the present. The parties have recently sold their Granite Bay compound, in Placer County east of Sacramento, for a reported $6.1 million. The house is located in a gated community and sits on 2.5 acres of lush grounds, boasting 10-bedrooms, a tennis court, gym, pool, spa and outdoor kitchen with barbecue. Nicole also has her home in Calabasas on the market with a listing price of slightly under $10 million.

Murphy appeared to enter into a second marriage, exchanging vows with producer Tracey Edmonds on New Year’s Day on a French Polynesian private island off of Bora Bora. However, just two weeks later, before the couple even had the chance to make their ceremonial union legal in the United States, the pair announced their split. No explanation was given although reports have surfaced that Edmonds called things off after Murphy became very controlling and physically intimidating. Different reasons behind the split have also emerged since then, including Edmonds’ refusal to sign a prenuptial agreement and Murphy’s insistence on bringing his mother on the honeymoon. In any case, it is clear that no divorce is needed as the two never attended a planned civil ceremony which would have made their marriage valid.

If you or someone you know has questions about divorce or other aspects of family law such as spousal support, child support, or child custody and visitation, please contact Sagaria Law. Our team of family law attorneys can answer any such questions you may have and assist you through the process. We represent clients from Santa Clara County, Alameda County, Monterey County, San Mateo County, and surrounding areas. Contact our office today to schedule your free consultation to speak with one of our attorneys.

San Jose Family Lawyer Discusses Adultery as a Grounds for Divorce

A survey recently identified extramarital affairs as the most common reason for divorce in the United Kingdom. Undoubtedly, adultery is the leading cause of divorce in the United States as well. In California, irreconcilable differences is one of only two grounds available for obtaining a divorce. Such irreconcilable differences must have caused the irremediable breakdown of the marriage. It is up to the Court to determine whether there are substantial reasons for not continuing the marriage and which make it appear the marriage should be dissolved. This ground for divorce is purposefully broad so as to represent the actual reasons underlying marital breakdowns and simultaneously make irrelevant questions of “fault” or misconduct by either party. Needless to say, adultery is often the reason behind the irremediable breakdown of a marriage in California.

In sharp contrast, some states delve into the various grounds for divorce including adultery and cruel and inhuman treatment. The State of New York, for example, provides these as causes of action for a divorce. Nevertheless, adultery is difficult to prove and requires corroborating evidence from a third party. Cruel and inhuman treatment must be behavior that rises to the level such that it makes it improper for the plaintiff to continue to reside with the defendant as husband and wife. The longer the duration of the marriage, the more severe the level of cruelty must be in order to establish grounds under this cause of action. It is impossible to say which system is better but it is clear that adultery is one of the most common reasons for a divorce no matter whether “fault” is at issue or not.

If you or someone you know has questions about divorce or other aspects of family law such as spousal support, child support, or child custody and visitation, please contact Sagaria Law. Our team of family law attorneys can answer any such questions you may have and assist you through the process. We represent clients from Santa Clara County, Alameda County, Monterey County, San Mateo County, and surrounding areas. Contact our office today to schedule your free consultation to speak with one of our attorneys.

Fremont Divorce Attorney Comments on Default Dissolution

Many people are familiar with the following situation: couple breaks up, decides to get divorced. If you are considering divorce please contact one of our San Jose Divorce Lawyers. One party files the petition for dissolution and, after being properly served, the other party does not file a response. This scenario plays out usually in one of two ways: the non-responding party cannot be found or does not care, or the non-responding party does not want to participate but the parties already have an agreement.

The issue for the petitioner becomes how to get a divorce without a proper response from the other party. In California, the answer is to proceed by default. After the petition is filed and served, there is a 30 day period for the respondent to file his or her response. If that is not done, then the petitioner may file a request to enter a default judgment against the respondent. Once the default has been entered, the petitioner can submit a proposed judgment to the court. Some counties require this be done in person at a hearing, whereas others do not.

Obtaining a default judgment against the respondent can be quick and easy, or it may be complicated. Sometimes the parties may have a written agreement they want the court to enter as a judgment. Courts often have particular rules about accepting these types of agreements, so it pays to do some research ahead of time. Default judgments can be entered on all the issues that may arise in a marital dissolution proceeding, including property division, child custody and visitation, as well as child and spousal support.

Default judgments are also available to petitioners in nullity and parentage matters. Anybody seeking a default should know that courts prefer for cases to be decided on the substantive issues, rather than by default, so the defaulted party does have the option of seeking to set aside any judgment obtained. Therefore, it is advisable that you proceed by default after you have reviewed all your choices.

Regardless of circumstances, it is wise to seek the advice of experienced attorneys like ours if you are trying to get a default entered, or you think your divorce may proceed by default. Our family law attorneys have successfully obtained default judgments in cases in Alameda, Santa Clara and other counties around the San Francisco Bay Area. We have offices in San Jose, Fremont and Monterey, and we offer a free initial thirty minute consultation, either in person or by phone. Call our office today to schedule your appointment.

San Jose Divorce Attorney Comments on Same Sex Divorce

As states begin to allow same sex couples to marry or register as domestic partners, they must simultaneously begin to address what happens when these couples split up. If a couple is divorcing or terminating a domestic partnership in the same state where they married, then the process is somewhat simpler. However, for couples who married in a different state from where they now live, there are often times no good choices.

One of the biggest challenges facing same sex couples who are splitting up is taxes. Because federal law does not recognize marriage between individuals of the same sex, spousal support or alimony payments are not deductible by the payor. Divison of retirement savings and pension plans are usually fairly straightforward in the context of a heterosexual divorce, but when a same sex couple splits up, these accounts must often be cashed out and heavily taxed.

The other significant problem faced by same sex couples is custody and visitation of minor children. Because both parents cannot be the biological parent, one parent often has no rights under the law. And while a child born during a heterosexual marriage is presumed to be the child of the marriage, in California, and elsewhere, that is not necessarily so in a same sex relationship. Fortunately, California has taken steps to ensure that provisions of the Uniform Parentage Act apply to same sex and opposite sex couples alike.

If you are seeking to terminate your registered domestic partnership in California, attorneys in our office suggest you seek the advice of counsel before proceeding. Our experienced family law attorneys can assist you with custody, visitation, support and property division as part of a dissolution of domestic partnership. We offer free consultations by phone and in person

San Jose Family Law Attorney Discusses Epstein Credits

Given that it takes a minimum of six months and one day to obtain a divorce in California, it is common for one spouse to continue paying community debts while the divorce is pending. When a party uses his or her separate property for community purposes after separation, that party, as a general matter is entitled to reimbursement. These reimbursements are commonly known as Epstein credits, so named after the Marriage of Epstein (1979) 24 Cal. 3d. 76, 84. Circumstances under which reimbursement is appropriate is the subject of case law. The Court has found, for example, that if one party used their separate property funds to make mortgage payments on a community residence, the paying party would be entitled to reimbursement. The Court has also found, for example, that the value of a spouse’s post separation services necessary to complete performance owed by the community under a contract made during marriage is subject to reimbursement. Using the authority of Epstein, and in appropriate circumstances, the Court has also ordered reimbursement to the community when one party unilaterally uses community property to pay for his or her separate obligations, after separation.

It is important to note that reimbursements are discretionary and the Epstein Court did specifically indicate that it would be unreasonable to expect reimbursement under certain circumstances such as: (1) when there is an agreement between the parties that payment would not be reimbursed, (2) when the paying party truly intended the payment to constitute a gift to the community, (3) when the payment was made on a debt for the acquisition or preservation of an asset the paying party was using, and the amount paid was not substantially in excess of the value of the use, (4) or when the payment constituted a discharge of the paying party’s spousal support or child support duty.

The team of attorneys at Sagaria Law, P.C. deals with all aspects of family law and can assist you through any stage of your divorce, custody, or support litigation. We serve clients through the bay area and have offices Santa Clara, Alameda, and Monterey Counties. Contact our office today to set up a free consultation with one of our attorneys.

Santa Clara County Divorce Lawyer Comments on Sean Penn’s Divorce Proceedings

On December 21, 2007, Robin Wright Penn filed for divorce from husband, Sean Penn, with the Marin County Superior Court, citing irreconcilable differences. The couple was married in 1996 and have two minor children together: Dylan Frances, 16, and Hopper Jack, 14. Child custody will undoubtedly be an issue that needs to be addressed within the divorce proceedings as both parties are seeking joint custody.

In unusual fashion, it appears that Sean Penn filed for divorce a few days earlier but later withdrew his petition. Thereafter, his wife, Robin Wright Penn, filed for divorce which still stands and a hearing in the matter has been scheduled for sometime in April. The couple have worked together in several films and after a record 11-year marriage in Hollywood terms, there will certainly be a great deal of issues related to division of marital property and potentially child support and spousal support.

If you or someone you know is facing a similar situation or simply have questions about the divorce process, child custody and visitation or any other family law issue, please contact Sagaria Law. Our team of family law attorneys can answer any such questions you may have and assist you through the process. We represent clients from Santa Clara County, Alameda County, Monterey County, San Mateo County, and surrounding areas. Contact our office today to schedule your free consultation to speak with one of our attorneys.