California Family Law Blog

San Jose Divorce Attorney Discusses Calculation of Temporary versus Long Term Spousal Support

Under the Family Code, temporary support may be ordered in any amount based upon the party’s need and the payor’s ability to pay while a divorce is pending. Generally, the purpose of temporary spousal support is to enable the recipient to live in his or her accustomed manner pending Judgment. This means that if parties live very modestly in comparison to their means, allocating funds for savings and investments, temporary support may be set to allow for that level of savings and investments. Moreover, Court recognize that a dual income allows for parties to maintain a certain standard of living, while maintaining two separate households will in many circumstances require the parties to lower their standards. Although the guideline formula for spousal support will attempt to equitably allocate income, it is not always possible to provide fully for the financial needs of both parties. Guideline calculations may also be adjusted if child support is being paid in addition to spousal support, and may further be modified by the presence of special circumstances not contemplated by the guideline formula.

Long term spousal support may be ordered in certain cases in the judgment for dissolution. Unlike temporary support, the Court may order a party to pay spousal support, to the other party, for any period of time that the court deems just and reasonable. An award of long term spousal support requires the Court to consider and evaluate a variety of statutory factors, as opposed to relying on a guideline calculation. In addition to evaluating the marital standard of living, the court must consider the following statutory factors: (1) the extent to which each party’s earning capacity will maintain the standard of living establishing during the marriage, taking in account the marketable skills or period of unemployment of the supported spouse; (2) the extent to which the supported party contributed to the supporting party’s attainment of an education, training, career, or license; (3) the supporting party’s ability to pay, (4) each party’s needs, based on the standard of living established during the marriage; (5) each party’s assets and obligations; (6) the duration of the marriage; (7) the supported party’s ability to be gainfully employed without interfering with the interests of dependent children in his or her custody; (8) each party’s age and health; (9) documented evidence of domestic violence between the parties; (10) immediate and specific tax consequences to each party; (11) the balance of hardships to each party; (12) the goal that the supported party be self-supporting within a reasonable period of time; (13) the criminal conviction of an abusive spouse; and (14) any other factors the court deems just and equitable.

If you or someone you know has questions about spousal support or divorce, the team of attorneys at Sagaria Law may be able to assist you. The attorneys at Sagaria Law handle all aspects of family law, and work on cases throughout the Bay Area. Contact our office today for a free thirty minute consultation with one of our attorneys.

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.

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 Family Attorney Discusses Grounds for Termination of Spousal Support

Unless the parties have otherwise agreed in writing, a court-ordered spousal support obligation terminates upon either party’s death or the supported party’s remarriage. Said spousal support termination is self-executing, meaning no motion to terminate is required and therefore no court action is required. While no particular words are required to make spousal support nonterminable on account of either party’s death or the obligee’s remarriage, silence on the subject is not sufficient.

A supported spouse’s nonmarital cohabitation is not a terminating event unless expressly made so by the parties’ agreement or court ordered based thereon, although a modification of spousal support may be based on such grounds. Similarly, once a spousal support order ceases to exist by the obligee’s remarriage, it cannot be later “revived” if the supported spouse’s remarriage fails. This is questionable in cases where the remarriage was obtained by force as the thinking in such a situation is that there is no voluntary decision incident to the remarriage to forego spousal support from the prior spouse and rely instead on support from the new spouse. A supported party’s remarriage extinguishes a spousal support obligation from a prior marriage even if the remarriage is to the same former spouse. In limited circumstances, it may be proper for the court to consider the total length of the two marriages between the parties in determining the amount and duration of spousal support in the second proceeding.

If you or someone you know has questions about spousal support or other aspects of family law such as the divorce process, 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 Divorce Attorney Discusses the Change of Circumstances Requirement Necessary to Obtain a Modification of a Spousal Support Order

The change of circumstances necessary to obtain a modification of a spousal support order are the same as those the Court considers in making the initial long-term spousal support order at the time of the judgment under California Family Code Section 4320. They include, but are not limited to, the extent to which each party’s earning capacity will maintain the standard of living established during the marriage, the extent to which the supported party contributed to the supporting party’s attainment of an education, training, a career position, or a license, the supporting party’s ability to pay, and each party’s needs based on the standard of living established during the marriage. It is important to note that even when a showing of changed circumstances is made, it does not necessarily mean a modification of spousal support will be ordered by the Court. A careful consideration of the factors set forth in California Family Code Section 4320 is necessary, especially the reasonable needs and financial abilities of the parties.

Like other aspects of spousal support, the change of circumstances requirement is subject to agreement of the parties. Thus, if the parties agree to modify spousal support, no showing of changed circumstances is necessary. The parties may also agree, as part of the spousal support provision, that specified occurrences will or will not constitute the required change of circumstances to allow for subsequent modifications of that provision. However, the required change of circumstances cannot be an event that was specified by a previous court order. The supported party’s cohabitation with a person of the opposite sex is a changed circumstance in which a rebuttable presumption arises. As such, the supported party has the burden to show that despite the relationship, his or her need for support has not diminished. The requisite cohabitation must be a sexual relationship, a romantic involvement, or at least a homemaker-companion relationship.

If you or someone you know has questions about spousal support or other aspects of family law such as the divorce process, 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.

Society, religion, and even Republicans tell everyone that marriage is a good thing and we should all strive to work things outs in hopes of saving a marriage. However, the California Family Code is not so supportive of the couple who tried to work things out and but still ends up in divorce. The major bread winner of the marriage may have to pay the ex-spouse spousal support (sometimes called alimony) after a divorce. While the amount and length of spousal support can be negotiated, the California Family Code gives a guideline of half the length of marriage.

Therefore, if a marriage on the rocks managed to survive another two years before it ended, then the spouse paying alimony may have to shell out an additional year of spousal support for their efforts. Not a great motivation to make the marriage work.

It gets worse. Once a marriage is over ten years, the marriage is considered long term and there is a presumption that spousal support should go on indefinitely.

So if you are in your ninth year of marriage and things are just not working out, it might be financially prudent to file for divorce before that tenth anniversary, just in case. You can always reconcile later and get remarried. A second wedding sure beats $25,000.00 in spousal support.

Continue reading "San Jose Divorce Attorney Talks about the Pitfalls of Temporary Reconciliation of Marriage" »

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

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

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

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

When a couple is filing for divorce, but the divorce decree has not been finalized yet, they can still file a joint tax return. Once the divorce goes through, an ex-spouse can file the return as a head of household, if he or she has paid for over half the maintenance of the house and has a dependent living at their home for over half the year.

When two parents are divorced, only one of them can claim the $3300 dependency exemption for each child on their tax returns for 2006. The parent claiming the dependency exemption is also allowed a $1,000-per-child tax credit for children younger than 17 as long as their income is not above a certain figure.

Usually, it is the person named as the custodial parent in the child custody portion of the divorce decree that is allowed to claim the child as a dependent. If the divorce decree does not name a custodial parent, then the parent with whom the child has lived with the longest throughout the year is the custodial parent.

Continue reading "Dependents, Divorce, and Taxes" »

When filing for divorce, it is important to be aware of the tax rules regulating spousal support and child support:

Child Support
This is not included on a recipient’s tax return. It is also not deductible on the return of the ex-spouse paying child support.

Spousal Support
This must be reported on the recipient’s tax return as income. It is deductible against the payer’s gross income.

If an ex-spouse pays less than the alimony and child support amounts ordered under the divorce degree, the excess over the total child support required will be what is considered alimony.

Continue reading "Divorce, Spousal Support, Child Support, and Taxes" »

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

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

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

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

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

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

Writer-director Alexander Payne does not want to pay his ex-wife, actress Sandra Oh, spousal support. In his response to her divorce claim, he is asking a court to deny the Grey’s Anatomy star her request for spousal support. The couple was officially divorced last December, but they have not yet settled their financial affairs.

In California, there are a number of factors that a judge must consider before ruling on spousal support. These include:

- The needs of each person.
- The number of years the marriage lasted.
- The amount of money each person makes.
- The potential of each person to make money in the future.
- How much support a person is able to pay.
- The overall health and fitness of each person.
- Whether one person must stay home to take care of the children.
- If there was a history of domestic violence in the relationship.
- Who owns what property or owes any debts.
- If one person’s earning potential is less because they took time off from work to help the other person build their career or stay home with the children.

Continue reading "In Divorce Proceedings, Sideways Director Alexander Payne Files A Response Refusing To Pay Spousal Support To Actress Sandra Oh" »

In one of the largest billion dollar divorce cases to reach the Texas Supreme Court, attorneys for David Saperstein and Suzanne Saperstein respectively argued over whether Suzanne’s spousal maintenance should be determined by a California court in the state where she resides or by a Texas court in David’s home state. While Texas has a three-year limit for spousal support, the alimony laws in California are much more liberal.

According to Suzanne, David surprised her in July 2005 when he convinced her to disembark from their private jet during a stopover in Houston. Once they were outside the plane, he served her with divorce papers. She later filed her own divorce petition in California where, by law, she is entitled to a larger, more longlasting settlement.

The couple has been married for 20 years. They have 3 children. The youngest one lives in California, while the older two reside in Texas.

Last fall, District Judge Lisa Millard from the Harris County family court agreed with a California judge to divide the support issues between them. Texas was to handle spousal support, while the California judge was to rule over child support and custody. Suzanne appealed Millard’s spousal support order and was denied. She then petitioned the Texas Supreme Court, which is now hearing the case.

Currently, there are competing orders for temporary spousal support. Texas Judge Millard granted Suzanne $33,000 a month, while the California court order a $60,000 a month payment. The $29,500 monthly child support is not in dispute.

Continue reading "In Divorce Case, Question Of Whether California Court Or Texas Judge Will Decide Spousal Support Amount For Billionaire Couple" »

Two weeks after filing for legal separation from her husband actor Ryan Phillippe, actress Reese Witherspoon is filing for divorce. In her divorce papers, filed in Los Angeles County Superior Court last week, Witherspoon cited irreconcilable differences as her reason for filing. She is asking for sole physical custody of her children and requesting that Phillippe be granted visitation rights. Witherspoon requested that Phillippe’s ability to receive spousal support be terminated. It is believed that Witherspoon and Philippe did not sign a prenuptial agreement before they were married.

California is a community property state, which means that when a couple gets divorced, each spouse is entitled to 50 percent of the net value of their community property—defined as any asset acquired or income earned by either person while married. Currently, Witherspoon makes over $20 million a movie, while Phillippe earns over $2 million a picture.

When a couple divorces or legally separates, the court can order one spouse to pay spousal support to the other spouse every month.

Continue reading "Hollywood Star Reese Witherspoon Files For Divorce From Ryan Phillippe; She Seeks Physical Custody Of Their Two Children" »

Pamela Bach, the former Baywatch star and ex-wife of actor David Hasselhoff is asking a California judge to increase her spousal and child support payments. She filed papers in court this month and is asking that her monthly spousal support be increased to $45,463. She also wants her monthly child support payments to be raised to $31,546. The couple have been divorced since July 2006.

In California, a judge calculates spousal support by taking into consideration the following:

· How long the couple has been married or been in a legal domestic partnership.
· The age and health of each spouse.
· How much income each can earn on their own.
· What the expenses of each spouse are.

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