Friday, January 31, 2014

Relationship for Domestic Violence Restraining Order

You can request a domestic violence restraining order if a person has abused, or threatened to abuse, you and that person has one of the following relationships with you:

  • Married or registered domestic partners,
  • Divorced or separated,
  • Dating or used to date,
  • Living together or used to live together(more than roommates),
  • Parents together of a child, OR
  • Closely related (parent, child, brother, sister, grandmother, grandfather, in-law).

You can also request a domestic violence restraining order if the person has repeatedly contacted you with the intent to annoy or harass you by phone, e-mail, text message, or other electronic means.  

You will have the burden of proving by a preponderance of evidence that there was abuse, threat of abuse, or unwanted annoying or harassing communications.  

The first step is to obtain a temporary restraining order (TRO) based upon your signed affidavit.  Your case will then be set for a hearing to determine if a permanent ("long term") restraining order will be issued.  If granted a domestic violence restraining order can last anywhere from 2 to 5 years and can potentially be renewed at the end of that term.  Before the hearing on the permanent restraining order, you will need to have the restrained person personally served with the Notice of Hearing and TRO and file proof of service with the court.

*This information does not constitute legal advice.  For more information on domestic violence restraining orders, contact Senh Law Associates at (925) 408-8546.

Tuesday, November 12, 2013

Claiming Community Interest in Spouse's Separate Real Property

Attorneys and judges will often refer to the Moore/Marsden formula when determining the community property interest in one spouses' separate real property at the time that assets are divided upon divorce.  Moore/Marsden formula refers to a California Supreme Court case decided in 1980 (In re Marriage of Moore (1980), 28 C3d 366) and a subsequent California Court of Appeals case decided in 1982 (In re Marriage of Marsden (1982), 130 Cal.App.3d 426).  

The principal in the calculation is that if the community (i.e., the marital unit) has made payments reducing the principal balance of a mortgage of real property owned by only one spouse, then the community is owed a reimbursement.  The reimbursement is based upon the percentage of principal paid down on the mortgage by the community.  This amount is divided in half between the parties to the divorce.  The spreadsheet below can help estimate the community interest in a separate property house if any community money was used to pay down the principal on a mortgage.  In contested divorces, this calculation is not simple because fair market values need to be determined as of the date of division and, at the very least, the date of marriage.  For these reasons, if you are dealing with a Moore/Marsden calculation, it is best to receive the advice of an attorney.  To learn more about divorce and Moore/Marsden calculations contact the attorneys at Senh Law Associates, (925) 408-8546.

1.   Purchase Price _______
2.   Amount of Down Payment _______
3.   Amount of payments on loan principal made
      with separate funds _______
4.   Fair Market value at date of marriage _______
5.   Amount of payments on loan principal made
      with community funds ________
6.   Fair market value at time of division _______
7.   Subtract line 1 from line 4 _______
8.   Subtract line 4 from line 6 _______
9.   Divide line 5 by line 1 _______
10. Multiply line 8 by line 9 _______
11. Subtract line 10 from line 8 _______
12. Add lines 2, 3, 7, and 11 _______ = SP Interest
13. Add lines 5 and 10 _______ = CP Interest

*This information is not meant to constitute legal advice.

Monday, November 11, 2013

Getting Your Separate Money Back From Real Property Upon Divorce: Family Code Section 2640

Family Code Section 2640 provides that separate property contributions used to acquire property during marriage is reimbursable to that party upon divorce.  There is no increase for interest or adjustment for change in monetary values.  Further, the equity must be present in the property at the time of the divorce to cover the separate property contribution.

For example, John uses $100,000 that he had earned before marriage (his separate property) as a downpayment for a house that he purchased with his wife Jane.  Several years later, the couple decides to divorce and at that time, the house has equity of $200,000.  John would then receive his $100,000 back as his separate property contribution to the acquisition of real property, pursuant to Family Code section 2640.  There is no increase in John's $100,000 down payment investment for interest or inflation.  Note that John would also receive an additional $50,000 for his one-half community property interest.

However, assume that at the time of divorce the house only has $50,000 in equity.  Then John would only receive $50,000 because his right to reimbursement of his separate property contribution may not exceed the net value of the property at the time is divided.

*This information does not constitute legal advice.  For more information on divorce and reimbursements, contact Senh Law Associates at (925) 408-8546.

Monday, October 7, 2013

Marriages of "Long Duration" for Purposes of Spousal Support

In California, many parties to a divorce erroneously believe that a marriage of 10 years or more leads to spousal support (aka alimony) that may be ordered indefinitely.  This misconceived notion comes from a cursory review of Family Code section 4336 without understanding its nuance.  In fact, the law provides that the court retains jurisdiction indefinitely to order spousal support in a divorce where the marriage is of "long duration."  Family Code section 4336, defines a marriage of "long duration" as follows:

…there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration.  However, the court may consider periods of separation during the marriage in determining whether the marriage is in fact of long duration.  Nothing in this subdivision precludes a court from determining that a marriage of less than 10 years is a marriage of long duration.

Rather than a bright-line rule, a marriage of 10 years or more only effects the burden of proving that the marriage is of “long duration” such that the court can retain jurisdiction indefinitely to order spousal support.  The court has discretion to determine that a marriage of less than 10 years is a marriage of “long duration” for purposes of retaining jurisdiction.

This is a very different issue than whether spousal support will be ordered to be paid indefinitely.  There are numerous mandatory factors that the court must take into consideration when making any order for spousal support.  The duration of spousal support will be for a “period of time, that the court determines is just and reasonable, taking into consideration the circumstances.”  [Family Code section 4330].  There is a mandatory consideration for the supported party to be self-supporting within a reasonable period of time.  [Family Code section 4320(l)].  Generally, this period of time is one-half the length of marriage, unless the marriage is of “long duration.”  Even then, the court has discretion to order it for a greater or lesser period of time, taking into consideration mandatory factors as provided under law and the circumstances of the parties.  [Family Code section 4320].

Ultimately, there are no two cases that are exactly alike.  Therefore, the court should have discretion to order spousal support for a period of time that is reasonable based upon the unique circumstances of the parties.  However, without any bright-line rules, parties to a divorce can be understandably uncertain and weary of how long or short an order for spousal support can continue for.  As such, having a knowledgeable and experienced attorney advocating for you may be necessary when litigating this issue.

Friday, September 6, 2013

Mandatory Child Custody Mediation in California

In California, whenever there is a litigated dispute over custody and visitation of a child, mediation between the parents is mandatory before the court can make an order on child custody and visitation.  California Family Codesection 3170 provides:

If it appears on the face of a petition, application, or other pleading to obtain or modify a temporary or permanent custody or visitation order that custody, visitation, or both are contested, the court shall set the contested issues for mediation.

As a practical matter, this means that when a case for child custody or visitation is filed, the case is referred to Family Court Services for mediation. The mediators in Family Court Services are skilled and trained to access the child custody dispute and attempt to get the parents to reach an agreement on a parenting schedule.

More meaningful, the requirement for mandatory mediation on child custody and visitation is an indication from legislation that as a matter of public policy the persons most able to decide how children should be parented in separate homes is the parents themselves.  Often times, I represent clients who believe that the court (i.e., the judges) will be able to solve the problems they have with co-parenting.  Or, that the judge will be able to clearly see that the other parent is not a good parent or role-model for their child.  

In reality, family law judges are hard pressed to determine a suitable visitation schedule or arrangement.  There are many reasons for this: time constraints and the "vacuum" of the courtroom or two major disadvantages facing judges when they are called upon to make child custody and visitation orders.  Family law judges face incredible case loads and are only able to devote a small amount of time to each case.  Given judges' time constraints, it is, understandably, a challenge for them to see a complete picture of the family dynamics and what is in the best interest of the child.  Further, the judge can only receive admissible evidence and hear argument within the confines of a courtroom.  They do not get to see the child at home with parents and, usually, never get to meet the child.  They must base their decisions on testimony on life outside the courtroom and sometimes receive child custody evaluations (something that is typically cost prohibitive to the parents).  Given time constraints and limited information, judges often rely heavily on mediator's recommendations if the parents are unable to reach an agreement.  In this way, a judge's decision is made in the "vacuum" of a courtroom and not based upon what is really happening in the child's life. 

Only parents are able to make decisions regarding their children that is based on the real context of their child's life.  To that end, legislation has been enacted to ensure that the best people (i.e., parents) able to make a child custody and visitation schedule are given that opportunity with the aid of a skilled and trained mediators.  This mediation service is free of charge to the parents and presumably included in the court filing fee.  

It is important for parents to understand what the mediators will be doing.  This is why a mandatory mediation must be completed prior to the mediation session, to inform the parents on the parameters and procedures of the mediation. 

Parents should be prepared to discuss relevant issues and provide the mediator with documents, reports, and other information that will be helpful to the mediator in attempting to resolve the dispute.  The ability and preparation of the parent for mediation is also important because, if an agreement is not reached, the mediator will provide a report and recommendation to the court.  In the report, the mediator will summarize each parents position, concerns, and arguments.  Based on that, the mediator will also provide a recommendation to the court.  

The mediator's recommendation is often times adopted (perhaps with some changes) as the court order for child custody and visitation, if the parents can't reach an agreement.  Given the relative frequency of mediator's recommendation being adopted as orders of the court, the importance of mediation cannot be overstressed.  Parents should be prepared to provide succinct information and reasonable desires, in order to influence the mediator's recommendation if an agreement is not reached.  That is not to say that the goal of parents in mediation is attempting to sway the mediator to his or her side. Rather, the goal should always be try to reach an agreement with the other parent, but barring that, to provide important and relevant information to the mediator so that the mediator can be well informed and able to provide a suitable recommendation. 

Ultimately, if the parents are not able to reach an agreement and there are enough issues in dispute, a trial on custody and visitation may be unavoidable.  However, parents should work in good faith towards reaching an agreement because they really are the persons in the best position to make that decision for their children.  

Thursday, September 5, 2013

United States vs. Windsor - IRS Declares Relief

In United States vs. Windsor, the Supreme Court struck down core provisions of the Defense of Marriage Act of 1996 (DOMA).  Last week, the IRS announced in a press release that same-sex couples "will be treated as married for all federal tax purposes," including for income tax filing, gift and estate taxes, individual retirement accounts, and in other tax regulations where marriage is a factor.  

Treasury Secretary Jacob J. Lew stated in the release that the "ruling provides certainty and clear, coherent tax filing guidance for all legally married same-sex couples nationwide. It provides access to benefits, responsibilities and protections under federal tax law that all Americans deserve," Treasury Secretary Jacob J. Lew said in the release.

The tax benefit granted to same-sex couple is regardless of whether the couple lives in a state that recognizes their marriage as lawful or not.  Secretary Lew stated that the ruling "assures legally married same-sex couples that they can move freely throughout the country knowing that their federal filing status will not change."  

Tuesday, June 11, 2013

Maintaining the Status Quo During Divorce Proceedings

In California, after filing for divorce and while your case is pending, the law provides for a number of ways to ease the separation from your spouse.  These prophylactic measures are meant to ensure that both parties to the divorce receive the benefit of the marital community while litigating their case.  There are number of automatic restraining orders (ATROs) [Family Code Section 2640] that become effective when the summons is issued and served upon your spouse.  They are found on the second page of the divorce summons and prevent each party from:

  • Removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court;

  • Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their minor child or children;

  • Transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life; and

  • Creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party. 

  • In general, these ATRO's prevent the other party from displacing community property or the parties' children, such that the other party would be placed at a disadvantage during the divorce.  The portions regarding not canceling any insurance for the benefit of the family also serves the same purpose and helps ease the transition from being a married couple to being self-sufficient.  These protections are necessary to ensure that no unfair advantage is gained by either party in the proceeding while they are going through litigation that can potentially last for months or years.

    Besides ATRO's, there are other mechanisms of the law that help maintain the status quo, or ease the transition of a divorce.  These include temporary child custody and visitation, temporary spousal support, and pendente lite (or interim) orders for attorney fees.

    Taken as a whole, the law has attempted to create fair and equal divisions of the bounty of the marital community during the time that the parties are litigating their divorce.  Sometimes this becomes difficult because resources are stretched thin when a couple decides to divorce.  Ultimately, it can be a rocky road because dividing something in half never equals the sum of its parts.  However, the alternative to these stop-gap, or prophylactic measures, would likely be that one party to a divorce is left holding the short end of the stick.  

    *This information is not meant to constitute legal advice.  To learn more about divorce, contact our attorneys at Senh Law Associates, (925) 408-8546.