Articles Posted in Santa Clara County Family Law Issues

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Sacramento Divorce Attorney Discusses Guardianships

Lately, our office has fielded a bunch of calls from people interested in setting up guardianships for minor children either who are friends or family. One of the first questions is usually, what is a guardianship and why would a child need one?

A guardianship is established by a court order when the court appoints an adult, who is not the parent, to be responsible for a minor. This may occur if a parent is deceased, incarcerated or otherwise unable to care for a minor child. Guardianships are specific to children – where an adult is unable to care for themselves, the appropriate procedure is a conservatorship.

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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.

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San Jose Divorce Lawyer discusses Chris Brown and Rihanna: When to File for a Restraining Order

By now we all know that Rihanna and her boyfriend Chris Brown were in a physical altercation last week. Perhaps the question on everyone’s mind (besides why did he do it), is should Rihanna be seeking a restraining order against him? Or did she get one from the police?

In California, there are two main types of restraining orders available to victims of domestic violence: domestic violence restraining orders, and criminal protective orders. Criminal protective orders are issued in cases where criminal charges are pressed. A domestic violence restraining order is issued by the family law courts, and requires no pending criminal charges. These domestic violence restraining orders are issued on an ex parte basis, and set for a hearing in a short period of time. At the hearing, courts can issue longer restraining orders, anywhere from 1 to 5 years.

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San Jose Family Lawyer Discusses Adoption

November 15, 2008 is National Adoption Day!

National Adoption Day is a collective national effort to promote awareness of the 129,000 children in foster care waiting to find permanent, loving families, as well as those families that have been happily created through the adoption process. National Adoption Day helps make the dreams of thousands of children come true by working with courts, judges, attorneys, adoption professionals, child welfare agencies and advocates to finalize adoptions and find permanent, loving homes for children in foster care. National Adoption Day is normally celebrated the Saturday before Thanksgiving, but was moved in 2008 for one year only.

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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.

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San Jose Family Attorney Discusses Post-Nuptial and Pre-Marital Agreements:

A Post-Nuptial Agreement, sometimes referred to as an After Marriage Agreement, is a written document signed by parties to a marriage that sets out how they agree to have property divided, spousal support determined and attorneys fees paid in the future if the marriage ends in divorce. These agreements are usually entered into by parties not already in the divorce process, while a Marital Settlement Agreement is usually entered into by parties going through a divorce.

A Pre-Marital Agreement is entered into before marriage. Before marriage, the parties are entering into an agreement much like two business persons entering into a contract. In a Pre-Marital Agreement, both parties do not necessarily need to have an attorney. However, if both parties have an attorney, it makes it much more difficult for either party to later seek to challenge the agreement based upon a claim that they did not understand the document, or that they were forced into signing the agreement.

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San Jose Divorce Attorney Discusses Santa Clara County Court Locations

Santa Clara County opened up a north county location for family law cases in January of 2008 in Sunnyvale. This new location meant that parties living in North County would not have to travel to downtown San Jose to have their family law matters heard in court. The county also planned on having a south county location added as well, originally that was planned to open in September of 2007. Due to construction delays the south county location in Morgan Hill is now expected to open in early 2009. This new location will serve parties who reside in South County. New family law cases are required to complete a Declaration of Residence in order to determine which of the three court locations is appropriate for a new case to be heard. Existing cases have already been transferred to Sunnyvale.

Originally Judge Susan R. Bernardini of Department 73 in the San Jose courthouse was going to transfer to the new location in Morgan Hill but now it will be Judge Kevin McKenney of Department 71 in the San Jose courthouse who will be transferring in early 2009. New south county cases will automatically be assigned to Judge McKenney in Department 71 and therefore transfer with him when the court house opens. However Judge McKenney will also transfer with his current cases assigned to Department 71 regardless of where the parties reside unless the parties complete a request to transfer their cases to the North County location in Sunnyvale. This stipulation must be completed and filed by January 30, 2009 or the case will be transferred to Morgan Hill.

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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.

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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.

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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.