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 Family Attorney Discusses Division of Personal Injury Damages in Divorce

Personal injury awards are subject to special characterization and division rules in a divorce. Unlike most property, characterization of money or property received or to be received as personal injury damages depends on when the cause of action arose; it is not affected by when the actual proceeds are received. In other words, if the cause of action arose during the marriage, and prior to separation, the award for damages are considered community property. If the cause of action arose before marriage, or after separation, the award for damages are considered separate property. Additionally, personal injury damages received by one spouse pursuant to a personal injury claim against the other spouse, are always the separate property of the injured spouse, regardless of when the cause of action arose.

To the extent that the Court finds that a personal injury award is community property, it is subject to special division rules. Unlike most community property subject to equal division, community personal injury damages must be assigned to the injured party unless the court determines that the interest of justice require another disposition. In making this determination, the Court will take into account the following factors: (1) the economic condition and needs of each party, (2) the time that has elapsed since recovery of damages or accrual of the cause of action, (3) all other facts of the case. After consideration of the factors, if the Court determines that the personal injury award should not be entirely assigned to the other spouse, the non-injured is assigned a proportion which the Court determines to be just. The amount assigned to the non-injured spouse, however, may not exceed half the damages. Additionally, when more than half to he personal injury damages are awarded to the injured spouse, case law has determined that the other party is not entitled to an offsetting award of other community property to make the overall division of community property equal.

Circumstances in which community personal injury awards may not be awarded entirely to the injured spouse include those in which the community has incurred costs in caring for the injured party; or where commingling of the personal injury damages with other funds make tracing the source impossible.

If you or someone you know is going through a divorce, the team of attorneys at Sagaria Law, P.C. may be able to assist you. Our attorneys deal with all aspects of family law and can assist you through any stage of your divorce. 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

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 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.

San Jose Divorce Attorney Discusses Imputation of Income for Child Support

Family Code states that the court may, in its discretion and consistent with the child’s best interests, consider a parent’s earning capacity instead of his or her actual income when making a guideline support order. Thus, in a situation where the supporting parent capable of working quits his/her job and refuses to work; or where the supporting parent has the ability and opportunity to earn more than he/she is earning but is unwilling to do so, the Court may impute that parent with income. Determination of the amount to impute is based on an objectively reasonable work regiment, as it would exist at the time the support determination is made. Therefore, the Court would not order an individual to work 100 hours per week, even if that person that the ability and opportunity to work that much.

In appropriate cases, the Court may also consider the parent’s ability to generate income from income producing assets when making a guideline support order. For example, if the parent was underutilizing investment assets, the Court may impute a higher rate of return for those underutilized assets.

If you or someone you know has a question about child support, or any other family law issue, the team of attorney’s at Sagaria Law may be able to assist you with your case. Sagaria Law handles all aspect of family law including divorce, custody, and support issues; and represents clients throughout the Bay Area. Contact our office today to schedule a free 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 Family Law Attorney comments on Fiduciary Duties

Ronald Miserendino, once a multi-millionaire, may live the rest of his life in poverty. According to an article on Trading Markets.com, the ex-millionaire’s plan to hide assets from his ex wife has been in a Milwaukee County jail since 2005 facing ten counts of bank fraud, mail fraud, wire fraud, tax evasion, and money laundering. Miserendino built up a successful real estate management and development company called Trace Corp. After his spouse filed for divorce in 2001, Miserendino secretly set out to liquidate his company’s assets and to go into hiding. By the time the divorce was final, Miserendino had converted nearly $5 million to cash and stashed it in safe deposit boxes in Australia and several other states. In the family court, Miserendino had agreed to pay his now ex-wife $750,000 from the $2.9 million he had hidden in an Australian safe deposit box; he thought he would be able to keep the rest of the $2.9 million. However, the IRS is now bringing a civil action to collect back taxes and penalties, leaving him owing more than he is worth. In addition to back taxes and penalties, Miserendino also faces additional jail time.

In California, as in other states, the family code imposes on both parties the obligation to act in the highest good faith where transactions concerning the other party is involved. Among other duties, spouses are required to disclose all material facts and information regarding the existence, characterization and valuation of all assets in which the community has an interest; and to act in the highest good faith and fair dealing as to all activities that affect the assets and liabilities of the other party. Liquidating a community asset such as a business, and/or hiding funds would certainly violate the California Family Code. Therefore, in addition to possible jail time and sanctions for his federal offenses, Miserendino would likely have faced sanctions for serious violations of fiduciary duties owed to his spouse had their divorce been litigated in California.

If you or someone you know is going through a divorce, the team of attorneys at Sagaria Law may be able to assist you with your case. We have offices in San Jose, Fremont and Monterey and represent clients throughout the Bay Area in all aspects of family law. Contact our office for a free thirty minute 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.

San Jose Family Law Attorney Discusses Family Law Restraining Orders

For obvious reasons claims of domestic violence are taken very seriously in the family court. Unfortunately some people choose not to fight a restraining order without understanding that doing so will prejudice their custody rights and potentially have a negative impact on their immigration status or job prospects. A restraining order is usually generated in one of two ways. In the more serious of the two circumstances there is some argument between the spouses that leads to either someone in the household or in the neighborhood calling the police. When the police arrive the alleged victim will tell the police that he or she is afraid for his or her safety or if there is some visible injury such statements will not even be necessary. The police can then offer the alleged victim an immediate emergency protective order which is obtained by calling an on call judge and relaying the circumstances. This type of criminal protective order lasts for five days in order to give the alleged victim time to file a request for a civil restraining order. The police at their discretion will decide whether or not to arrest the alleged abuser. If an arrest is made then a police report and request for charges will be sent to the District Attorney’s Office and at their discretion charges will issue. If charges do issue then another criminal protective order of a longer duration may also issue in criminal court.

A request for a restraining order can also be requested if there has never been any police involvement. This occurs by filing the request for a Temporary Restraining Order (TRO). This request is made in writing and submitted to the Court where it will go to a Judge who will make a determination as to whether or not it will be granted. At this time notice will not be given to the opposing party so the Judge will make the determination on the alleged victim’s writing alone. If it is granted the TRO will last only until a hearing can be held on the request for a restraining order which typically happens in about 14 days. The alleged abuser must be served with the initial request for the TRO and is given an opportunity to respond in advance of the court hearing.

At the time of the hearing the alleged abuser is asked whether or not they agree to the granting of a restraining order. Some people consent because they do not want to argue about it in court and because they do not want further contact with the alleged victim so they do not fight it. The problem is that they do not realize the consequences of consenting to a restraining order. Under Family Code Section 3044 a restraining order can prevent the restrained party from having sole or joint custody of their children. In addition it can very severely impact other custody and visitation rights. Additionally it is also important to consider your immigration status and/or your job prospects before agreeing to a restraining order. If you are applying for a visa, a green card or for U.S. citizenship having had a restraining order could negatively impact your chances. It is also important to consider your career goals because if you are considering applying for a job where you need a security clearance or where a background check would be run having had a restraining order could hurt your chances. Additionally you cannot own a firearm during the time the restraining order is in effect so that would bar approval for most law enforcement jobs.

If you need to defend a restraining order in family court or if you need a restraining order for your protection please contact our office for a free consultation where we can advise you of your options. We have offices in San Jose, Fremont, and Monterey where our team of family law attorneys would be happy to go over your rights and advise you how to proceed.

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.