SANTA ROSA FAMILY LAWYER BLOG

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AlimonyAlimony, which may also be referred to as spousal support, is a monthly payment made by one spouse to the other following divorce. Alimony is used to prevent any unfair economic effects of a divorce on one spouse, such as a spouse’s impaired earning potential.
There are no definite formulas for determining the amount of spousal support that a former spouse can receive. Every divorcing couple is different and the amount of support a spouse can expect to receive is based on each couple’s individual circumstances. However, some common factors that are considered include:

· Income and property of each spouse
· Earning capacity of each spouse
· Impairments in earning capacity
· Whether there are any children and who will be raising the children
· Standard of living
· Duration of marriage
· Sacrifices or contributions one spouse made to the career or education of the other spouse
Spouses that have income and earning capacity that is comparable to the former spouse’s, they will receive less in alimony. However, if the lower earning spouse has custody of the children, if the marriage was particularly long or they contributed to their former spouse’s success, the amount of alimony may be adjusted accordingly.
Many people do not realize that there are different types of alimony. Rehabilitative alimony is made for a fixed period of time to allow the receiving spouse to get a job or finish their education. It acts as a transition for the receiving spouse. Many courts will periodically review rehabilitative alimony to determine if it should be continued, discontinued or adjusted.
Former spouses may also receive reimbursement alimony. Reimbursement alimony is awarded when one spouse reimburses the other spouse for expenses incurred during the marriage. For example, if a wife works to pay for her husband to attend college, the former husband may be ordered to pay his former wife reimbursement alimony for the costs of college. The reimbursement alimony payments will only continue until the amount is paid off.
Finally, where the marriage is long or one spouse is ill, the court may order one spouse to pay permanent alimony, which will continue until the death or remarriage of the receiving spouse.
While alimony is typically paid on a month by month basis, some courts have begun to allow the paying spouse to pay one lump-sum alimony payment. Lump-sum payments are really only appropriate where the amount of payment is fixed, like rehabilitative or reimbursement alimony. However, if the divorcing spouses wish, they can agree on a lump-sum alimony payment where permanent alimony is awarded. A lump-sum payment, where possible, can often be beneficial to both parties. The receiving spouse has the money immediately and does not have to deal with payment issues in the future. The paying spouse benefits by paying the amount outright, and not having to worry about making monthly alimony payments in the future. However, there are negatives with a lump-sum payment. Most lump-sum payments are less than what the receiving spouse would receive if they elected to receive monthly payments. In addition, with the receipt of such a large sum all at once, the receiving spouse may have negative tax consequences.

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Prenuptial Agreement.jpgPrenuptial agreements, or premarital agreements as they may also be called, are contracts entered into before a marriage to establish the property rights of each spouse in the event of a divorce. A prenuptial agreement is most common where one or both spouses are wealthy, but they can also be used to protect a family business or to serve other important functions. For example, prenuptial agreements can protect a party from assuming the debts of the other party, determine how property will be passed upon death, clarify financial rights and responsibilities during a marriage or avoid long, costly disputes during divorce proceedings.
Without a prenuptial agreement, California law determines how property is divided during marriage and after a marriage ends. Generally, a spouse is entitled to share and receive ownership of property acquired during the marriage, receive some of your property upon death, share in any debts acquired during the marriage, and share in the responsibilities in managing property acquired during the marriage.
The decision to enter into a prenuptial agreement is one that every couple should make individually, as every situation is unique. Many couples fear that discussing a prenuptial agreement, or the issues that the prenuptial agreement will cover, may cause problems in the relationship. However, often the opposite is true. One of the main reasons couples divorce is finances, and a prenuptial agreement will allow a couple to discuss those issues prior to marrying.
There are some downsides to a prenuptial agreement. Depending on your relationship, it may take some of the romance and excitement out of the wedding and its preparation. Sometimes, the beginning of a marriage is not the appropriate time to discuss prenuptial agreement issues because you and your future spouse may not know enough about your life together to answer the questions required. If that is the case, you can always wait until you are married, when you know more about how you and your spouse intend to manage your household and its finances before discussing what is referred to as a postnuptial agreement.
Like many contracts, a prenuptial agreement must be in writing and signed by both parties. In addition, if a spouse is pressured into signing the agreement, or if they were not provided enough time to read and consider the agreement, a court may find the agreement invalid.
Prenuptial agreements cannot address everything; courts will invalidate certain portions if they do not comply with current California law. A prenuptial agreement may not contain any decisions regarding child support or child custody, because the court has final say in determining proper child support and the child’s best interests. In addition, a spouse cannot waive his or her right to alimony, which is one of the most frequent provisions struck down by courts. The prenuptial agreement cannot include personal preferences, such as who does each chore, where holidays are spent, or what school the children will attend, because a prenuptial agreement is primarily intended to address financial issues, and judges do not like to interfere in private domestic matters.
In any case where future spouses are considering a prenuptial agreement, each person should acquire their own legal counsel, to ensure that the agreement is fair to both parties and to reduce the chances of any impropriety.

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Cohabitation in CaliforniaToday, many couples choose to live together, but do not wish to get married. Some do it for legal reasons, where they are still married and do not want a divorce, and some choose not to marry simply because they do not believe in the institution of marriage.
Most married couples do not realize that, by marrying, they entered into a legal contract. The contract defines the rights and obligations they owe to one another as a married couple. Unsurprisingly, unmarried couples can also enter into contracts to establish rights and obligations. While these contracts can be referred to by many names, they are most commonly called nonmarital agreements or cohabitation contracts.
In 1976, the California Supreme Court issued a decision establishing nonmarital agreements. The decision allowed unmarried couples to enter into written and oral contracts covering rights often associated with marriage, such as property rights. In addition, an unmarried couple may create a nonmarital agreement through their actions, without ever writing anything down or specifically speaking about it.
Nonmarital agreements are not right for every unmarried couple; generally, they are appropriate when the couple expects to stay together for a long period of time and a significant amount of money, property, and debt will be accumulated. Even those couples opposed to the institution of marriage should strongly consider a nonmarital agreement to protect their interests, and to ensure that if the relationship ends the property distribution is orderly. Older couples may wish to use a nonmarital agreement to ensure that their property is distributed the way they wish.
Just as every relationship is different, so is every nonmarital agreement. The nonmarital agreement should be tailored to your relationship, and include the level of detail you want. Most nonmarital agreements should contain items discussing:

Acquired property – How should ownership of items acquired during the relationship be determined? Should it be 50% or should the property belong solely to the person who bought it?

Previously owned property – Many couples prefer to solely own the property they owned when they entered into the relationship, but memorializing it can help cut down on confusion.

Expenses – It may be helpful to include information regarding which partner will pay for expenses. You have several options, including an even split, a proportional split based on income, or pooling money in a joint account.

Separation or death – It is important to include information on how property should be distributed if the relationship ends or one partner passes.
While the California courts have upheld nonmarital agreements, they may refuse to enforce an agreement in some circumstances. If the nonmarital agreement appears to include consideration for sexual services it may not be enforceable. For example, if one partner agrees to share his or her income in return for the other partner’s love and companionship, a court may decline to enforce the contract for requiring sexual activity. In addition, some courts may not enforce an oral agreement, because it can be difficult to determine the terms of the agreement without written evidence.

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Chess GameQ: What is an action for contempt against spouse and what is it used for?

You and your soon to be ex-spouse are going through a highly contested divorce proceeding. You believe that your spouse does not play by the rules, and your spouse believes that you are hiding assets. The unfortunate aspect of your divorce is that you have three young children, and there are child custody orders which grant both you and your spouse joint legal and joint physical custody of your children. In conjunction with those orders, you have a child visitation schedule with your three children on a week-on, week-off time-sharing schedule, with exchanges to take place every Sunday at 6:00pm.
It never fails that whenever there is a major sporting event on television, your spouse NEVER exchanges the children on time. In fact, your spouse is always hours late to the exchange, and you never can count on receiving the children on time. This last Sunday, October 28, 2012, the San Francisco Giants were playing the Detroit Tigers for the World Series. If the San Francisco Giants won the game, they would have been crowed the World Series Champion. Well, you knew, just as it always happens, that your spouse would not exchange the children on time. In fact, on this October 28, 2012, after the San Francisco Giant beat the Detroit Tigers to win the World Series, your spouse did not exchange the children but withheld them from you. As far as you were concerned, this was the last straw and you wanted to know how you could compel your spouse to abide to the rules set forth by your child custody court order.
The answer is simple. You have the right to file an action for contempt against your spouse. An action for contempt is a quasi-criminal matter. If found guilty, your spouse could actually be sent to jail or could instead receive a sentence requiring them to perform a significant amount of community service.
Actions for contempt are governed by California Code of Civil Procedure §1209 et al, which states that “(5) Disobedience of any lawful judgment, order, or process of the Court…” are contempts of the authority of the court. CCP §1209(5). Pursuant to CCP §1218(c), in any action where a party is found in contempt pursuant to the family code, “the court shall order the contemner to perform community service of up to 120 hours, or to be imprisoned up to 120 hours, for each count of contempt.” In addition, CCP §1218 prescribes a fine and/or punishment and provides that for each act of contempt the contemnor may be fined up to $1,000.00.

“The purpose of…civil contempt proceeding is not to punish but to secure future compliance with the orders of court…” Wilson v. Superior Court (1987) 194 Cal.App.3d 1259, 1275, citing Toussaint v. McCarthy (N.D.Cal 1984) 597 F.Supp. 1427, 1431.
In order for a party to be held in contempt of Court for disobedience of any lawful order, “the acts constituting the contempt must be clearly and specifically prohibited…” Brunton v. Superior Court (1942) 20 Cal.2d 202, 205. In fact, the “most basic premise in the law of contempt is that such punishment can only rest upon clear, intentional violation of a specific, narrowly drawn order.” Wilson v. Superior Court (1987) 194 Cal.App.3d 1259, 1273.

In your case, where your spouse has consistently disobeyed a Court order requiring exchanges of your children to take place each Sunday at 6:00pm, a Court may find that each instance of your spouse failing to return the children to you on time is a separate and distinct charge of contempt. Therefore, if your spouse has not returned the children on time on five different occasions, theoretically, your spouse could be held in contempt of five distinct charges. Under this scenario, your spouse could be sentenced to over 600 hours of community services, or fined up to $5,000.00.

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GrandparentsIn today’s challenging economic situation, grandparents are playing a more pivotal role in their grandchildren’s lives. This does not just mean that grandparents are visiting their grandchildren more, or that they are helping out a little more, but rather financially assisting in rearing their grandchildren. According to Reuters, the AARP reported that today, 37 percent of grandparents are assisting with the daily living costs of their grandchildren. Despite the large percentage of grandparents helping to support their grandchildren, our Northern California family law attorneys are still assisting many grandparents fighting for the right to visit their grandchildren.

Grandparent Rights in America:
In 2000, the grandparent’s right to visitation took a hard hit and has subsequently become a very difficult case to win. That year the United States Supreme Court decided the case of Troxel v. Granville, wherein a Washington state law that allowed courts to grant visitation rights to grandparents if it was in the child’s “best interest” was struck down. This decision led many other states to strike down similar laws. However, grandparents still may be granted visitation in some states across the U.S. .

Grandparent Visitation Rights in California:
In California Grandparents do not have an absolute right to visitation of their grandchildren. However, there are instances where grandparents may be able to have limited visitation granted by the courts. Some instances where grandparents may be granted visitation rights are when one parent of the grandchildren has passed away, when the grandchild is not living with either parent, or if the court makes a determination that visitation with the grandparent is in the best interest of the grandchild.

The type of visitation that may be granted can vary widely, depending on the specific circumstances of the case. Grandparents can be given a significant amount of visitation, such as a weekend a month or extended time during summer break. Grandparents can also be given very little visitation, such as invitations to the grandchild’s games or recitals. Grandparents can also be completely removed from their grandchildren’s lives.

As the parent’s rights are always first and foremost, gaining grandparent visitation rights can be difficult. If both parents do not want grandparents to have visitation, an extreme case would have to be found by a court in order to grant any sort of visitation. Further, this area of the law is ever evolving as family roles change. It is therefore vital for grandparents to seek a grandchild visitation lawyer’s help in these cases.

Getting Legal Help in Santa Rosa California:
Our Santa Rosa family law attorney can help you in your pursuit of obtaining visitation of grandchildren as a grandparent. These cases can be extremely tricky and it is very important to have the assistance of an experienced family law lawyer on your side. The attorneys of Beck Law PC has vast experience advocating for their client’s visitation rights and can adequately protect your rights during this complex process. For a free consultation regarding the specifics of your case contact Beck Law P.C. at 707-576-7175 or contact us online.


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Can California Grandparents Adopt their Grandchildren?
Where do I File for a Divorce in California?

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