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fire disaster reliefFire ravaged multiple corners of California yet again this year. In the aftermath, families find themselves displaced, frightened, anguished over losses, and grateful to be alive. From Santa Rosa to Gilroy, from San Rafael to Napa, and from Redding to Modesto, vicious flames have attacked mercilessly, aided by high winds and low humidity. The trauma of this devastating natural disaster to families and communities cannot be understated, making it incumbent on the rest of us to do what we can to provide support and assistance in any way we can. In the face of such horrendous loss, what can we do to help? 

What is Needed?

The immediate needs for families who have been impacted by this year’s fires are wide-ranging, including:

  • Physical and emotional support during the evacuation process;
  • Temporary shelters;
  • Food and basic hygiene supplies;
  • Information about family/friends, and assistance in reuniting with loved ones;
  • Health care, including prescription maintenance;
  • Opportunities for children to continue schooling;
  • Assistance related to family pets and livestock;
  • Individual case management.

The long-term needs for victims of natural disasters can be more complex:

  • Assistance rebuilding or finding completely new housing;
  • Opportunities to earn a living;
  • Counseling;
  • Additional assistance for the most vulnerable.

Donations

While many onlookers may wish to donate clothing, household supplies, hygiene kits, food and water, the fact of the matter is that cash donations are much more useful.  While well intended, physical items can add to the logistical problems being faced by firefighters and those trying to escape danger.  Volunteers become overwhelmed with sorting and apportioning goods, rather than more efficiently making purchases of specific items that are needed and spending time working with victims. 

That being said, well-meaning fire relief donors should be careful to choose the right charity to direct their funds. Unfortunately, there are still a lot of scams out there, so doing your homework will pay off.  One idea might be to check out Charity Navigator as you contemplate ways to contribute. Otherwise, there are well-known national organizations such as the American Red Cross, the United Way, and the Salvation Army, who can reliably be entrusted with your donation dollars.  Local organizations such as the Community Foundation Sonoma County in Santa Rosa and Direct Relief in Goleta are also excellent establishments that can be counted on to administer your fire relief donation to efficiently assist with local efforts. Support the LAFD is one of many organizations set up to assist firefighters and provide essential equipment and materials.  Continue reading →

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engagement ringWho keeps the engagement ring if one of the biggest events of your life — your wedding day — is suddenly called off? It can be an extremely emotional time. There are a lot of feelings swirling around, not the least of which have to do with that expensive little piece of jewelry that was given to the bride-to-be to solidify the engagement. Now that there is to be no wedding, who gets to keep the ring? 

What is the Engagement Ring Worth?

In terms of dollars and cents, the typical engagement ring costs more than $5,000. For some couples, the number goes much higher. In addition to the fiscal note, the ring doubtlessly has some serious feelings associated with it. Originally a symbol of love and promise, in may now signify anger, resentment, and pain. A jilted bride may wish to keep it, not for sentimental reasons, but as a final jab at her former love. Likewise, a groom who is no longer going to be heading for church bells may want to steal away with the symbol of his affections in order to ensure the finality of the break. Fighting over possession of the ring could cost you, both in terms of legal fees and in terms of further emotional damage. You need to think about just how far you are willing to push the issue if you are considering going to battle over the ring.

Who Cancelled the Wedding?

When it comes to the legal wrangling, understand that the matter of who gets the ring is a civil matter. The court will have to make a determination as to the nature of the gift.

Normally, recipients of a gift are entitled to keep it if the relationship ends. In the case of an engagement ring, however, we move into new territory. That is because an engagement ring is usually considered a conditional gift. The ring was given, the court might reason, with the understanding that the giver expected marriage in return. In the event that there is no wedding, the giver should be entitled to take possession of the ring.

In fact, California Civil Code 1590 states clearly that if the person receiving the ring backs out before the wedding day, the giver of the ring may recover it.  

On the other hand, if the giver of the ring gets cold feet, the recipient may be able to keep it. This is based on Simonian v. Donoian, a 1950 case in which a couple became engaged and the man presented his fiancé with an engagement ring. In addition to the ring, the prospective groom’s mother gave his fiancé a diamond watch. When the gentleman called off the wedding indefinitely, the rejected bride felt she should be able to keep the “gifts.”  The court agreed, finding that the promise of marriage was breached through no fault of hers. Continue reading →

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visitation deadbeat parentsDeadbeat parents are one of the biggest complaints among divorced couples. While deliberately ignoring one’s financial responsibilities toward one’s progeny is, indeed, despicable, can a custodial parent respond by refusing to allow the non-custodial parent court-ordered visitation? The short answer is an unambiguous NO! That being said, there are other ways to deal with this situation. A local family practice attorney can address this and other issues in greater detail. 

Unrelated Court Orders

The fact of the matter is, a visitation order is separate and unaffiliated with a child support order in terms of enforcement. The only linkage between the two relates to the percentage of custody one parent has related to the incomes of both parties.  Just as a parent who is ordered to pay child support must continue to do so even if the custodial parent refuses to allow visitation, a custodial parent must continue to allow visitation even if the non-custodial parent fails to pay child support.

Collecting Payments

There are a number of tools available to parents who are struggling to collect payments on behalf of their minor children. Among them are:

  • Wage Garnishments: Income may be automatically deducted from a delinquent parent’s wages in order to ensure the required payments are made in a timely manner;
  • Interception of Federal Tax Returns: When deficits in payments occur, the state can intervene to snag federal tax returns;
  • Capturing lottery winnings: Delinquent funds may be stripped off the top of any such winnings;
  • Licensing Restrictions: Driver’s and other professional licenses may be suspended or revoked until payments are up to date;
  • Passport Revocation: The delinquent parent will not be allowed to travel outside the country;
  • Contempt Charges: The delinquent parent may be charged with contempt of court and ordered to pay fines and/or go to jail.

In the event none of these strategies gets the attention of a delinquent spouse, the Federal Office of the Inspector General can pursue delinquent parents who live outside the state wherein the child resides. Those actions might include fines and/or a prison sentence:

  • Fines and/or six months behind bars for a first offense;
  • $250,000 and two years behind bars if payments have been lagging for two years or more, or more than $10,000 is delinquent.

Will Bankruptcy Impact Child Support?

Even if a non-custodial parent files bankruptcy, the child support obligation remains. The only way to amend this order is to go back to court and convince a judge that future payments should be changed. Until that happens, the previous order stands and will be enforced. Continue reading →

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key divorce documentsEssential divorce documents. While a number of questions necessarily accompany any divorce proceeding, some of the most intense and complicated issues often relate to financial matters. To ensure a reasonable settlement and the peace of mind that comes with knowing you got a fair shake, it is essential to have a strong legal voice advocating for you throughout the process. Securing the services of a local divorce attorney is likely the best move you can make.

Three Essential Divorce Documents

Although there are numerous forms and documents that will be associated with your divorce, key financial decisions will be centered around three documents that reveal a lot about your life and money:

  • Tax Returns: You will want a minimum of three years’ worth of your tax returns, along with any documentation associated with them.  In particular, couples who divorce when one or both partners hold ownership in a business will want their attorneys to take a look at these forms. They can literally provide a wealth of information that could impact your divorce settlement.
  • Lifestyle Analysis: It is essential that you complete a detailed analysis of one-time and continuous expenses. This should include anticipated expenses that you will incur down the road, as well as those that are part of daily life. Future expenses, including medical and education costs, should be viewed while considering inflation. Online expense trackers can be helpful in organizing this for you.  
  • Net-worth Statement: Finally, you will be filing an affidavit for the court that provides a clear picture of the financial status of the marriage, including earnings and income, assets and liabilities, and current and projected expenses. One way to get an overview of present costs is to run your credit report, which will help you to get a snapshot of liabilities and joint obligations. You should also consider any assess you have, including items in your safety deposit box, artwork, antiques, etc. This statement will serve to elucidate spending priorities in the context of all other financial information, including retirement accounts and other investments.

Hidden Assets?

In some cases, spouses may have engaged in some tricky shenanigans in order to hide assets. This may include hidden bank accounts, substantial payments provided to entities unbeknownst to you, or unusual payments to utility or phone companies. Sometimes, spending patterns do not match up to reported earnings, providing an indication that there may be secret sources of income.  In the event your spouse appears to be trying to keep the facts from the court, serious dings to their credibility may result, giving you the benefit of the doubt when the facts appear shady. Continue reading →

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baby boomer divorce ratesHas there been an increase in Baby Boomer divorce rates? Although time and practice make many endeavors simpler, that is certainly not the case in many marriages. Likewise, those who experience divorce in later years may find that it is one of the things that seems to get more complicated, not less so, after years of marriage. With the recent decline in divorces in the past decade, it appears divorce is a less likely option for many; this is simply not true when it comes to older Americans, among whom divorce rates have nearly doubled in recent years. Statistics show that more than one in four divorces in this country, in fact, involve individuals aged 50+. If you are one of them, a local divorce attorney can help you sort through the difficulties ahead.

Reasons For Baby Boomer Divorce Rates

According to this Market Watch article, Baby Boomer divorce rates are skyrocketing. Many older Americans find that marriage simply no longer suits them, and they look for a fresh start through divorce. Grey divorce, as it is often called, occurs for a variety of reasons:

  • The old classic: We have grown apart. Empty nesters often discover they no longer share common activities, goals, and dreams, making life together unsustainable.
  • Financial woes: After years of irrational spending decisions and poor investing, one partner decides to call it quits, frustrated with the never-ending bills and the stress of debt.
  • Aging at different rates: When one partner is no longer physically or mentally active, it can put a real strain on the relationship. When one partner chooses to let himself or herself deteriorate, it may become increasingly unpleasurable for the other to stick around.
  • Sex: Different levels of sexual interest may lead one partner to look elsewhere for physical satisfaction.

Baby Boomers Have Decisions to be Made

When it comes to the point that grey divorce is the final option, it is important to keep a clear head while making decisions related to how the divorce unfolds. Grey divorce may involve several pertinent issues that should not be overlooked:

  • Division of Property: After years together, it may be difficult to prove that particular items were the exclusive property of one partner prior to the marriage.  Since California’s community property laws exclude personal property that one person held prior to the marriage, this could prove to be an important issue.
  • Compensation:  When considering issues related to spousal support, earnings are a key factor.  It is crucial to consider all components of compensation, from the actual salary drawn, to stock options, travel incentives, bonuses, and other perks.
  • Expected expenses for adult children: Issues  such as tuition, marriage, and other significant responsibilities should be addressed in the divorce agreement.

Continue reading →

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stepparent rightsThough I never adopted the children, now that we are divorcing do I have any stepparent rights? Let us say you have spent a fair amount of time helping to raise the children that your spouse brought to the marriage, but you, for whatever reason, never took steps to adopt those children. Although you have deep attachments to the kids, you and your spouse are ready to call it quits. The biggest thing standing in the way is the kids: Will you ever be able to see them after a divorce if you have no legal claim to them? This, and other questions you may have, can be answered by a knowledgeable, local divorce attorney.

Stepparent Rights – California Code on Visitation

The laws (Family Code 3011) regarding children of divorce are quite clear: The court must make decisions based on the best interests of the kids. That means it is totally possible for a stepparent to have reasonable visitation granted. The key word is possible.

What Could Get in the Way of Court-Ordered Visitation for a Stepparent?

To be clear, determining what is best for a child is no small matter. Your past and present behavior will have a significant impact on a judge’s decision. Some questions that might be considered include:

  • Do you have a history of domestic violence?
  • Do you now, or have you ever had a problem with drugs or alcohol?
  • What was the nature of your role with the children in the past, and how what would you like to see happen in the future?
  • If the children are old enough, what are their wishes with regard to you?
  • Does the children’s biological parent support the idea of visitation rights for the stepparent?
  • Do you have a volatile relationship with your spouse at this time?
  • Are there other issues that might get the attention of the judge in a negative way?
  • Do you have a good reputation in the community, and have people willing to testify to your character, attachment to the children, and fitness as a stepparent?

Benefits to Visitation

In many circumstances, stepparent visitation can be extremely beneficial for children:

  • It can help lessen the strain of a major life change for youngsters;
  • It can validate that children are still loved and are not responsible for the breakup;
  • It can be a logistical help in terms of child pick-ups and drop-offs for school, activities, appointments, etc.;
  • It is a way to demonstrate that when adults disagree they can nonetheless behave in a civil manner.

Continue reading →

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divorce parent passport problems childrenLet’s say you are a divorced parent hoping to take a trip out of the country with the kids, but your former spouse is not supportive of the idea. Are you allowed to leave the country anyway? The short answer is maybe. An experienced local family law and divorce attorney can address these, and other related issues in your specific case.

Divorced Parent Traveling With Kids

If you have shared physical and/or legal custody of the child/children, then each divorced parent has a legal right to participate in decisions regarding travel. A divorced parent who has sole custody has more latitude to make such decisions, but is required to provide documentation to prove their legal status. According to the State Department’s Public Law 116-113, the consent of both divorced parents is required before any child under the age of 16 may be issued a passport. Certain documents are required in the event both parents cannot be present during the application process. Depending on your circumstances, one or more of the following may be necessary during the application process:

  • The court order or divorce decree that grants the divorced parent sole custody of the child/children;
  • A court order that explicitly defines the divorced parent’s right to apply for a passport or to travel internationally;
  • A signed, dated, and notarized Form DS-3053 Statement of Consent from your former spouse along with a photocopy of their ID.

Flagging Kid’s Passport Applications

A divorced parent of minor children can also request to have their child/children’s names entered into the Children’s Passport Issuance Alert Program.  This is a system that automatically notifies the parent in the event someone else, such as a former spouse, attempts to apply for a passport.

If Parents Were Never Married

In the event a child’s parents have never married, both still have the right to block a passport application if both of their names are on the child’s birth certificate. The exception is in a case in which one has been granted sole legal custody in a family court.

If Children Already Have Passports

What if your children had passports prior to the divorce? Can you or your spouse take the child/children out of the country without the other’s consent? If your divorce does not specifically address travel outside the United States, it is possible for such travel to occur.  However, in the event that there is a serious concern about one parent absconding with the children with no plans to return, you should definitely consider getting a court order preventing international travel. The court can also require one parent to surrender the child/children’s passports to the other, or to keep the passports in the possession of the court. Continue reading →

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contested divorce processWhile the contested divorce process is obviously familiar to your divorce attorney, it is likely something new to you. Getting a general outline of what is in store can help you to be ready for the weeks and months ahead, both practically and emotionally. Breaking the contested divorce process into easily understandable stages can make the whole thing easier to wrap your head around. A local divorce attorney can help to make the entire process easier.

Contested Divorce – Initial Steps

  • The Complaint and Summons: It all starts with one spouse filing a complaint describing the grounds for divorce and the basic details related to the parties. The court will then issue a summons with the attached complaint to the responding spouse, requiring a response. At this point, it will become clear whether or not this is a contested divorce. A contested divorce will clearly require more time and deliberation.
  • Discovery: The facts outlined in the original complaint and any counterclaims will now be verified.Documents may be requested related for finances and other matters. Assets will be appraised, child custody issues will be examined, and interrogatories will be given to each spouse to answer.  There is a potential that both spouses will be interviewed under oath with a court reporter present to record answers.
  • Motions and Hearings: In the best-case scenario, spouses will be able to resolve the majority of issues with the help of their attorneys. In the event resolution does not occur, a motion will be filed asking for the judge to determine the outcome. Hearings will be held to determine temporary issues while the divorce proceeds. Some temporary issues to be weighed might include spousal support, child custody and support, and possession of the family home. Each of these issues will hold until the divorce is finalized, when a more permanent solution is determined.
  • Pre-trial Conferences/Court-Ordered Mediation: At this point, an attorney will file notice requesting a trial date.  In some cases, a judge may order parties to make one more attempt to determine a mutually agreeable outcome on all matters through conferencing or mediation. While it may be difficult to come to a compromise, this is the last opportunity for the parties to work together to determine the outcomes of their divorce. This is often a time to get a sense of how the judge is looking at the specific issues of this divorce.
  • Trial: A divorce is a civil proceeding, and the actual trial will unfold in several distinct steps:

Contested Divorce Process – Trial

  1. Opening statements from each side;
  2. Evidence to support the claims of the plaintiff, potentially including documents, witnesses, and exhibits, each to be challenged by the defendant’s side;
  3. Presentation of evidence to support the defendant, including cross-examination by the prosecution;
  4. Rebuttal by the plaintiff;
  5. Closing arguments by both sides;
  6. Judge’s ruling on any issues under dispute, along with the judgment for dissolution of the marriage.

Continue reading →

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ATROS Automatic Temporary Restraining OrdersWhat is ATROS and what does it have to do with my divorce? Let’s say you have filed a petition for divorce, and your spouse is planning to clean out your savings account in order to move with the kids to another state and reside with the grandparents. Do you have any say in the matter? The short answer is, yes. A good, local attorney can explain your rights in more detail.

ATROS – Family Code Section 2040

ATROS or automatic temporary restraining orders, are included in the Summons of any California divorce. When the Petition for Dissolution of Marriage or Domestic Partnership is signed, the signatory is legally bound to adhere to the matters addressed by the ATROS, which essentially restricts both partners from a number of actions while the divorce is pending.  Included in the list of prohibited activities is removing any minor children from the state. In fact, even applying for a passport without the consent of both parties and the court is not permitted. Section 2040 has a number of additional restrictions that are worth understanding.

Parties are not allowed to transfer, encumber, conceal, or dispose of any property during this time frame without the written agreement of the other party and the court. This includes both community property and separate property, except under very specific circumstances:

  • When it is in the normal course of business, or;
  • If it is none as a necessity for living, or;
  • When the actions are undertaken in order to pay for attorney’s fees related to the divorce.

ATROS Can Restrict Certain Changes

Neither party may make changes to any insurance policies, including automobile, disability, life and health insurance policies. This restricts the ability of parties to:

  • Cash in on or borrow from policies;
  • Cancel policies;
  • Transfer policies;
  • Change beneficiaries on policies.

The parties may not create or modify a non-probate transfer in any fashion that might impact the disposition of property without the written consent of both parties and the court.

Purpose of ATROS

While any part of the ATROS may be modified if there is agreement on the issues, ATROS are in place in order to protect divorcing parties from unethical actions, like concealing or changing one’s financial status during the course of the marriage or sneaking the kids away from one spouse in order to cause distress. Some describe it as a sort of freeze on financial activity for a temporary period. It can be a crucial action, particularly if one party holds more control over assets than the other. In addition to offering a level of protection to divorcing couples. It also provides more clarity as to the value of assets, since little to no changes are allowed to occur during this period. Continue reading →

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mental health issues and divorceWith millions of Americans struggling with mental health issues, it is no surprise that these problems impact the health and viability of many a marriage. If divorce is in your future and mental health issues are a factor, having an attorney experienced in dealing with such concerns is well worth considering.

Grounds for Divorce – Mental Health Issues

In California, one of the reasons you may file for divorce or the termination of a domestic partnership is on the grounds that your partner has been declared incurably insane. Proving this requires documentation of a debilitating condition from a licensed psychiatrist. Divorcing on these grounds is rare, since California is a no-fault divorce state, meaning that by and large the majority of divorces are based on irreconcilable differences. This is more likely the course any divorce would take, even if serious mental health issues plague the relationship.

Mental Health Issues and Divorce

In the event you are unable to secure the necessary documentation to divorce on the grounds of insanity, or you simply choose not to go that route, you can still file based on irreconcilable differences, of course. Here, mental health problems may still factor into the terms of the divorce, in ways you may not have considered. With California’s no-fault divorce, community property is equally divided, regardless of who is “at fault” in the relationship. The fact that your partner has mental health issues, diagnosed or otherwise, will not mean that you get a bigger piece of the pie.

Mental Illness Considerations in a Divorce

Various mental illnesses may impact the way you proceed through the divorce process. If you are dealing with a partner who suffers with depression issues, you may have fears about self-harm, causing you to tread lightly through this difficult time.  If your partner is unstable or violent, you may fear for your own safety. Perhaps your divorce involves a partner with Narcissistic Personality Disorder. In this case, your partner may fill the coming months with lies and nasty smears to hurt you. Whatever your situation, dealing with a spouse who is plagued with a mental illness will require the careful diplomacy and finesse of an experienced attorney.  

Document Concerns

In the lead-up to your divorce, it is important that you carefully document any interactions that give rise to concerns around safety. It may be necessary to obtain a protective order in some cases. In other situations, a mentally unstable spouse may be unable to fulfill parenting obligations, impacting child custody and visitation arrangements.   Continue reading →

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