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San Jose Divorce Lawyers Blog

Avoiding Common Prenup Pitfalls

A prenuptial agreement can help protect your assets in the event of a Santa Clara County divorce, but only if it holds up in court. Here are some ways in which you can avoid common prenup pitfalls.

First, you must plan ahead. Prenups can be invalidated if they are signed too soon before the wedding, as this may indicate one party coerced the other into signing by threatening to back out of the nuptials. Prenups can also be invalidated if both parties don’t have separate and independent legal representation, so you must allow yourself time to find a suitable attorney. You should plan to take care of the prenup two or three months before the wedding. It’s best to end up with four signed copies of the document: one for you, one for your future spouse, and one for each of your attorneys.

Honesty is crucial when it comes to preparing a prenup. A prenup that fails to disclose all assets, properties, and debts will not hold up in a court of law. A valid prenup requires full disclosure. Omitting important details now will cost you dearly if you end up in divorce court later.

As to the terms of the agreement itself, keep in mind that a prenup absolutely can’t contain provisions that relate to child support. Parents are not allowed to forfeit support on behalf of a minor child, as the welfare of children is considered a matter of public interest. Unusual provisions, such as clauses requiring one person to handle all of the housework or agree to be penalized for weight gain after the wedding, are not enforceable in court and may weaken the entire agreement. The lower earning party is allowed to forfeit the right to spousal support and a share of community property, as long as the agreement is not considered to be unconscionably one-sided.

Finally, a prenup must be prepared in a way that is legally sound. This means avoiding ambiguous wording that could lead to misinterpretation.

The best way to ensure that your prenup will hold up in court is to contact a San Jose family law attorney with experience in preparing this type of document. This investment in your future will give you the peace of mind that comes from knowing you’re ready for the future.

Divorce and Your Retirement Plan

If not handled appropriately, a divorce can have devastating consequences for your retirement plan.

Many divorcing people fail to reevaluate their budget, a common mistake that can pose a major problem later on. If both spouses worked during the marriage, they may each find themselves trying to live a two-income lifestyle as a single person. Even if you were the sole breadwinner, you may have to cut expenses once spousal support and/or San Jose child support payments are factored in.

California’s community property laws entitle you to a percentage of your spouse’s retirement benefits, which can be a vital asset if your own employer offered limited retirement funding. Only benefits earned during the marriage are community property, however. This means that a retirement plan your spouse held before you were married and continued to contribute to after your wedding would be classified as part separate property and part community property.

If you are the lower earning spouse, you may also be entitled to a Social Security spousal benefit based on your former spouse’s record. To receive this benefit, you must have had a marriage that lasted 10 years or more, be age 62 or older, and be currently unmarried. The divorced spouse benefit is equal to one-half of your ex-spouse’s full retirement or disability benefit if you start receiving benefits at full retirement age. Taking the benefit does not in any way limit the amount of money your ex-spouse will receive. However, you must take the benefit based on your own earnings if it is the larger benefit amount.

As you begin your life as a single person, consider the increased need for long term care insurance. It’s assumed that spouses will take care of each other if one falls ill, but you’re left without an automatic caretaker if you end your marriage. Do not assume that your adult children will be willing or able to step into this role, since many people in their 30s and 40s are raising young children of their own and still struggling to get on their feet financially. Purchasing long term care insurance guarantees that you’ll be protected no matter what the future holds.

Seeking the assistance of skilled San Jose divorce attorney can help you win the most favorable divorce settlement possible, but you may also wish to meet with a financial planner to create a new retirement plan that takes into account your changed circumstances.

Dividing an Art Collection After Your Divorce

For couples going through a Santa Clara divorce, an art collection can be one of the most difficult assets to divide. Fine art can have both sentimental and financial value, and deciding who gets what piece can exacerbate the already tense process of ending a marriage.

As soon as you make the decision to divorce, you’ll need to create a detailed inventory list for your art collection. Your inventory list should include full descriptions of the art purchased before the marriage, art purchased during the marriage, and any art that was sold during the marriage. You should also take photos of any pieces currently in your collection.

Art is considered separate property if it was purchased before the marriage or received as a gift to just one person. If it was purchased during the marriage, it is protected by California’s community property laws regardless of who first suggested the purchase. The proceeds from art sold during the marriage would also fall under California’s community property laws.

If your collection includes several pieces, hiring an appraiser will be necessary. Appraisers don’t always agree on the value of a piece, however. This can create conflict if you and your spouse insist on hiring two separate appraisers. You may need to split the difference when assigning a dollar value to each item.

When dividing the collection, you’ll need to make sure you and your spouse receive assets of comparable value. If you’re a passionate collector and he or she is not, you may be able to trade your interest in the marital home, vehicles, furniture, or other assets in exchange for a larger portion of the art collection. If you have children together, you could negotiate an arrangement that keeps particularly meaningful items set aside for them to enjoy.

Although working things out between the two of you can be complicated, this is preferable to letting a judge decide the fate of a treasured art collection. If a judge does need to be involved, it’s likely that he or she might order you to sell the entire collection and split the proceeds down the middle.

If you have questions about the distribution of art and other assets during a California divorce, please contact a qualified San Jose divorce attorney.

Protecting an Inheritance During a California Divorce

Under California’s community property laws, separate property is defined as any asset that belongs solely to one spouse. This includes items acquired before the marriage and gifts given to one person alone, as well as inheritances.

If you receive an inheritance while you are married and the bequest is made solely to you, the gift is yours alone. If, for example, the bequest was made to you “and your family or kin”, this may open the door for your soon-to-be-ex-spouse to stake a claim.

During a California divorce proceeding, inheritance issues arise when the money is managed in a way that calls into question its status as separate property. For example, if you were to inherit $500,000 and deposit in a joint bank account with your spouse, the inheritance would lose its status as separate property. When assets are commingled, it becomes impossible to identify the original source of the funds. In order for the money to be considered yours alone, it must be held exclusively in your name and kept away from any general household funds.

If your inheritance came in the form of real estate, you may run into problems if you are using the home as your primary residence and have added various improvements to the property. In this case, a judge might rule that the residence is either partially or entirely classified as a marital asset.

Transmutation occurs when you’ve gifted a portion of the inheritance to your spouse and created a change in the legal ownership of the asset. This is almost impossible to do unintentionally, as you are required to provide a written document stating that you intend to have a portion of the inheritance turned into community property or the separate property of your spouse.

A postnuptial agreement can override California’s community property laws regarding the status of an inheritance. As long as both spouses sign the agreement voluntarily and with the necessary legal representation, the court will honor it in the event of a divorce.

If you have questions about how California’s community property laws will affect your divorce settlement, it is best to speak to an experienced San Jose divorce lawyer for advice that is specific to your case.

Am I Eligible for a Summary Dissolution?

If you are seeking a divorce in Santa Clara County, you may want to consider a summary dissolution. Be advised, however, that while a summary dissolution is a quicker, less complicated way to divorce, it is only available to certain couples.

California law allows married couples, domestic partners, and those who began as domestic partners but later married to pursue a summary dissolution if they meet all of the following criteria:

  • You’ve lived in California for the last six months and in the county in which you want to file your summary dissolution for the last three months.
  • You’re in agreement that the marriage or domestic partnership is ending because of irreconcilable differences.
  • You were married or in a domestic partnership for less than five years.
  • You have no children with your spouse or partner.
  • You are not pregnant or expecting children (i.e. through adoption) with your spouse or partner.
  • You don’t own any real estate.
  • You have limited debts.
  • You have limited separate and community property.
  • You both agree to give up the right to spousal support.
  • You and your spouse or partner have no disagreements about how you wish to divide your assets and debts.

For many people, the main appeal of a summary dissolution is that it does not require a court appearance. Unfortunately, you still have to wait six months before your divorce becomes final, even if you meet all of the criteria for obtaining a summary dissolution. This means that while a summary dissolution allows you to skip many of the procedures required in a regular divorce, it does not technically speed up the process.

The purpose of the six-month waiting period is to give couples a chance to reconcile before permanently ending their marriage. If you and your spouse decide that you no longer want to get a divorce, you can stop the summary dissolution at any point in the six-month waiting period by simply filing a Notice of Revocation for Summary Dissolution.

If you are interested in ending your marriage through a summary dissolution, an experienced Bay Area divorce lawyer can explain the process in greater detail.

Why Men Shouldn’t Think Twice About Seeking Alimony

Men are often reluctant to seek alimony during a Santa Clara County divorce because of the potential stigma attached to being supported by a woman, but this is not the time for foolish pride. The law does not take gender into account when determining eligibility for alimony and these payments can be a vital tool for helping you establish your post-divorce life.

According to the Bureau of Labor Statistics, 38.1% of households have a wife who earns more money than her husband. When these couples divorce, there is no reason for the husband not to seek alimony.

Some common reasons men decide to seek alimony in a divorce include:

  • You and your spouse mutually agreed that it would be best if you stayed at home to care for the children and attend to household responsibilities so she could focus fully on her career.
  • You’ve continued to work full time, but have made sacrifices such as relocating or turning down promotion opportunities in order to advance her career.
  • Your own earning potential is limited because of a lack of education and/or medical conditions that make working difficult.

The length of your marriage plays a significant role in how long you are eligible to receive alimony. If your marriage lasted less than ten years, the standard length of time you can receive alimony is one half the length of the marriage. If your marriage lasted ten years or more, it is considered a marriage of long duration under California law and not subject to automatic time limits. However, if you were to remarry or your ex’s income were to drastically drop during this time, alimony payments could end sooner.

San Jose divorce lawyers often find that many high earning women would prefer to make a larger settlement payment in lieu of ongoing alimony payments. If you are awarded alimony and your ex-wife refuses to make the payments, you can enforce the action through a contempt proceeding or earnings assignment order. If necessary, the court even has the authority to jail those who are deliberately refusing to pay.

Will My Child’s Wishes Be Considered When Determining Custody?

Parents who are seeking a San Jose divorce are often under the misconception that a child is allowed to decide where he or she wants to live. Ultimately, the judge must decide custody based on what is in the child’s best interests. There is no guarantee that the judge’s findings will match the child’s personal preferences.

California does not state any specific age at which a child’s wishes must be considered, since children develop at different rates. However, children aged fourteen and older must be given the opportunity to address the court regarding custody and visitation. Younger children may be allowed to address the court if the judge permits it.

A child’s wishes regarding custody and visitation will be considered if the child is determined to have formed an intelligent, reasonable opinion on the issue. The judge will not honor the child’s wishes if there is reason to believe the child simply wants to live with the more lenient and permissive parent. The judge will also refuse to honor the child’s request if there is reason to believe that the child has been coached or manipulated into requesting a specific custody and visitation arrangement.

In addition to the child’s personal preference, the court will consider the following:

  • Any relevant health and safety concerns, such as previous allegations of child abuse or mental health conditions that would limit a parent’s ability to safely care for the child
  • The importance of stability in the child’s life, including protecting emotional bonds with a primary caretaker and the value of keeping siblings together
  • Which parent is most likely to encourage a continued relationship between the child and his or her other parent

If both parents agree to it, California law generally favors joint legal and physical custody after a divorce. When sole custody is awarded, the court has the authority to require visitation with the child’s other parent even if the child has expressed a preference to avoid visitation entirely. In this circumstance, the court may also require counseling and other remedial measures intended to repair the relationship between the child and the parent he or she wishes to no longer visit.

In any contested child custody case, it is strongly recommended that you seek the assistance of a qualified San Jose family law attorney.

Thinking of Filing for Divorce? Here’s What You Need to Do

The decision to file for a Santa Clara divorce should be carefully considered. The worst thing you can do for yourself is to angrily demand a divorce before you’ve done any of the necessary prep work.

When it comes to filing for divorce, knowledge is power. To take full advantage of California’s community property laws, you need to understand your income, assets, and debts. You should gather copies of tax returns for at least the past three years as well as insurance documents, loan documents, and employee benefit information. If you own valuables such as jewelry, art, or antique collectibles, take photos of each item and/or move them to a safe location to prevent your spouse from selling them as a form of revenge. Track your expenses and develop a realistic budget for your life as a single person. Pull a copy of your credit report to make sure all of the information is accurate and that your spouse has not opened any accounts that you are unaware of.

It’s natural to have an emotional attachment to the family home, but think carefully about whether or not it’s in your best interests to fight to keep this asset. If your budget was based on having two incomes, it may be difficult to keep up with a mortgage, taxes, maintenance, and insurance on your salary alone. Downsizing may be the best choice to ensure a secure financial future.

If you’re debating about the timing of the divorce, keep in mind that filing when you’re earning less money generally results in a more favorable settlement. Having a recent decrease in your earnings may lower your liability for future alimony and child support payments.

To protect your privacy, change your passwords and security questions on your email, social networking accounts, and any individual bank accounts that you might have. Avoid using any information for these accounts that would be easy for your spouse to guess, such a password using your child’s birthday and the name of a favorite pet or a security question regarding your mother’s maiden name.

Before you sit down with your spouse and ask for a divorce, you’ll want to meet with an experienced San Jose divorce attorney to discuss any concerns you have regarding issues such as the division of assets, child custody, child support, or spousal support. A skilled attorney can advocate for your interests throughout the divorce process.

Are Child Support Payments Needed When Parents Have Joint Custody?

After a Santa Clara County divorce , some parents push for joint custody thinking that this will ensure they do not have to make child support payments. However, this is not always the case.

First, it is important to realize that there are many interpretations of joint custody. Depending upon parental work schedules and the travel time between homes, it may not be physically possible for the child to be in the care of each parent exactly 50% of the time. A 60/40 split is fairly common with joint custody arrangements. However, depending upon the incomes of each parent, child support may be necessary even if the parents have a precise 50/50 split in the amount of time they are caring for the child.

Child support in California is calculated according the formula CS = K[HN - (H%)(TN)].

The components of the formula are as follows:

  • CS = Child support amount
  • K = Amount of both parents’ income to be allocated for child support
  • HN = High earner’s net monthly disposable income
  • H% = Approximate percentage of time that the high earner has primary physical responsibility for the children
  • TN = Total net monthly disposable income of both parties

If the high earning parent’s net monthly disposable income is significantly greater than the lower earning parent’s net monthly disposable income, child support may be ordered even if the parents are each physically caring for the child fifty percent of the time.

Deductions may also come into play when determining if child support would be ordered in a joint custody situation. Net disposable income is defined as actual gross income minus allowable expenses, including state and federal income tax liability, deductions for mandatory union dues and retirement benefits required as a condition of employment, deductions for health insurance for the parent and any child the parent is obligated to provide coverage for, and child support or spousal support being paid by court order for someone who is not the subject of the current child support order. Job related expenses are allowed as deductions under the court’s discretion.

Even if child support is not ordered, parents with joint custody may be required to share in the expense of employment-related child care costs or uninsured medical costs for the child. An experienced San Jose child support attorney can explain this in greater detail.

Back to School Tips for Divorced Parents

After a Santa Clara divorce, back to school season can be particularly complicated. Juggling a school schedule with custody and visitation agreements requires careful planning on the part of both custodial and noncustodial parents.

Before the year starts, consider sitting down with your ex to discuss how you’d like to divide supervisory responsibilities for school projects and special events. Dividing the labor based on your individual strengths makes more sense than forcing the parent who hates science to help with the science fair project and having the parent with no ear for foreign languages practice Spanish vocabulary words.

Custodial parents usually pay for school supplies and back to school wardrobes, unless the couple has worked out an agreement that says otherwise. However, a custodial parent is well within his or her rights to ask for help paying for expenses that are out of the ordinary — such as the cost of a special school field trip or a private algebra tutor for a child who is struggling with math.

If a noncustodial parent’s budget allows it, buying duplicates of basic school supplies like crayons, markers, glue, index cards, and notebook paper will make sure the child has access to learning materials regardless of the custody and visitation schedule. Noncustodial parents may want to set up a corner to use as a study area or keep everything in a box so it can be pulled out as needed.

California law states that a noncustodial parent can’t be denied access to records and information about his or her minor child based solely on custody status alone. This includes access to medical, dental, and school records. If you are a noncustodial parent who doesn’t have the greatest relationship with your ex, it may be best to simply request that the school provide separate, duplicate notifications regarding your child’s academic progress, participation in school activities, and any other relevant issues.

To help make sure everyone is on the same page, create a calendar that lists important school events as well as your custody and visitation schedule. Make four copies: one calendar for each parent’s house, one for the child’s backpack, and one to provide the teacher.

Remember that schools assume that both parents have an equal right to pick up and drop off the child unless they are told otherwise. If you have sole legal custody and do not want your ex picking up your child from school, make sure you provide the school with a copy of your custody order and a written request that your child only be allowed to leave school with you. Your San Jose divorce lawyer can provide assistance with this, if needed.